Opinion
DOCKET NO. A-5035-13T2
11-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VINCENT HAWKINS, Defendant-Appellant.
Vincent Hawkins, appellant pro se. Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-02-0146. Vincent Hawkins, appellant pro se. Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Vincent Hawkins appeals from a June 10, 2014 order denying his second petition for post-conviction relief (PCR). We affirm substantially for the reasons stated by Judge Robert G. Malestein in his written opinion dated June 10, 2014.
The trial evidence is described in Judge Malestein's opinion. In summary, the victim testified that defendant entered his apartment without his permission, attempted to steal some of his possessions, and threatened him with a knife. In his trial testimony, defendant stated that the episode resulted from the alleged victim's failure to repay him for money defendant lent the victim to buy drugs. Defendant claimed the victim voluntarily gave him some possessions in lieu of cash, as repayment, but then changed his mind and started fighting with him. Defendant explained that he carried a knife with him every day.
The jury convicted defendant of second-degree burglary, N.J.S.A. 2C:18-2(b), and third-degree theft, N.J.S.A. 2C:20-2(b)(2)(d), and found that defendant possessed a deadly weapon at the time of the offenses. However, the jury acquitted defendant of possession of a weapon for an unlawful purpose, robbery, and aggravated assault. After merger, defendant was sentenced to a discretionary extended term of twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the burglary conviction.
In his direct appeal from the 2006 judgment of conviction, defendant raised the following points:
POINT IWe rejected those arguments and affirmed defendant's conviction on his direct appeal. State v. Hawkins, No. A-0782-07 (App. Div. July 1, 2009), certif. denied, 201 N.J. 145 (2009).
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT ELICITING HIS PRIOR CRIMINAL RECORD AFTER IT HAD BEEN FULLY DISCLOSED BY DEFENSE COUNSEL DURING DIRECT EXAMINATION. (NOT RAISED BELOW).
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING TO IMPOSE A DISCRETIONARY EXTENDED TERM ON COUNT III INVOLVING SECOND DEGREE BURGLARY, WARRANTING A REMAND TO IMPOSE A SENTENCE COMMENSURATE WITH A SECOND DEGREE OFFENSE.
POINT III
ASSUMING THE PROPRIETY OF THE TRIAL COURT'S DECISION TO IMPOSE A DISCRETIONARY EXTENDED TERM ON COUNT III, THE MAXIMUM POSSIBLE 20 YEAR EXTENDED TERM WITH AN 85 PERCENT PAROLE DISQUALIFIER WAS MANIFESTLY EXCESSIVE.
Defendant then filed his first PCR petition, which the trial court denied on February 23, 2011, after an evidentiary hearing. On his appeal from the denial of his first PCR petition, defendant raised these arguments:
POINT I
THE POST CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION ON THE VICTIM'S IMMIGRATION STATUS CLAIM.
POINT II
THE POST CONVICTION RELIEF COURT ERRED IN DENYING A HEARING ON ALL OTHER CLAIMS.
A. DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE APPROPRIATE OBJECTIONS DURING SUMMATIONS AND . . . THEREFORE SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING.
B. DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL WAS INEFFECIVE IN FAILING TO RAISE ADDITIONAL OBJECTIONS AND THEREFORE SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING.
C. DEFENDANT MADE A PRIMA FACIE SHOWING THAT APPELLATE COUNSEL WAS INEFFECTIVE AND SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING.
We rejected those arguments and affirmed the denial of defendant's first PCR petition. State v. Hawkins, No. A-1093-11 (App. Div. May 14, 2013), certif. denied, 201 N.J. 145 (2009).
Defendant filed his second PCR petition on January 15, 2014, which was nearly two years beyond the one-year time limit set forth in Rule 3:22-12(a)(2). In his second PCR petition, defendant contended that the jury's verdict was inconsistent because he was convicted of second-degree burglary but was acquitted of possession of a weapon for an unlawful purpose. He argued that the attorneys who represented him in all of the previous proceedings were ineffective for failing to raise that issue. Judge Malestein rejected the petition as untimely. However, in an alternative holding, he also addressed defendant's PCR arguments and rejected them on the merits.
On this appeal, defendant raises the following points of argument:
I. DEFENDANT'S CONVICTION ON COUNT THREE WHICH CHARGED SECOND DEGREE BURGLARY REPRESENTS AN[] UNCONSTITUTIONAL, INCONSISTENT VERDICT AND SHOULD BE SET ASIDE AND VACATED. IN THE ALTERNATIVE, IT SHOULD BE AMENDED TO THIRD DEGREE AND DEFENDANT SHOULD BE RESENTENCED.
II. THE LAW DIVISION JUDGE ERRED BY NOT ASSIGNING COUNSEL TO REPRESENT DEFENDANT IN THIS SUCCESSIVE POST-CONVICTION RELIEF APPLICATION, WHERE THE COURT FOUND SUFFICIENT MERIT TO ENTERTAIN THE ORAL ARGUMENTS AND THE PROSECUTOR [SIC].
III. THE LAW DIVISION ERRED BY EVOKING THE PROCEDURAL BAR OF THE FIVE-YEAR TIME PERIOD TO BRING THIS SUCCESSIVE PETITION.
We conclude that the arguments asserted in Points I and III were properly addressed by Judge Malestein, and they are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(2). The trial court did not err in declining to appoint counsel for defendant on his second PCR petition because the petition was patently without merit. See R. 3:22-6(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION