                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5816-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WAYNE I. HODGES,

     Defendant-Appellant.
_________________________

                    Submitted November 18, 2019 – Decided April 9, 2020

                    Before Judges Rothstadt and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment Nos. 11-02-0192
                    and12-02-0092.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David J. Reich, Designated Counsel, on the
                    brief).

                    Jennifer Davenport, Acting Union County Prosecutor,
                    attorney for respondent (Carlos Paul Morrow, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Wayne I. Hodges appeals from the denial of his petition for

post-conviction relief (PCR) without an evidentiary hearing.          We affirm,

substantially for the reasons expressed by Judge Lisa Miralles Walsh in her

twenty-nine-page written decision that accompanied the order denying

defendant's petition.

      Defendant was convicted by a jury under one indictment for having

committed two counts of first-degree robbery, N.J.S.A. 2C:15-1, and other

crimes associated with his and his codefendants' robbery of two victims at

gunpoint. Prior to his sentencing on this conviction, he pled guilty under an

unrelated indictment to another count of first-degree robbery, N.J.S.A. 2C:15-1.

Thereafter, the trial court sentenced defendant on both indictments to an

aggregate term of twenty years, subject to a parole disqualification period under

the No Early Release Act, N.J.S.A. 2C:43-7.2.

      Defendant filed a direct appeal, arguing issues relating to the trial court's

dismissal of a juror, denying his motion for acquittal, and imposing an excessive

sentence. Defendant also contended that he was prejudiced by the prosecutor's

use of peremptory challenges, and that the trial court's jury charge was

erroneous. We affirmed defendant's conviction and sentence in an unpublished

opinion. State v. Hodges, No. A-2235-12 (App. Div. July 12, 2016) (slip op. at


                                                                           A-5816-17T4
                                        2
2). The Supreme Court denied defendant's petition for certification. State v.

Hodges, 228 N.J. 84 (2016).

        The facts underlying defendant's conviction are set forth in detail in our

earlier opinion and need not be repeated. See Hodges, slip op. at 3-4. Suffice

it to say, as it related to his PCR petition, prior to trial, defense counsel

successfully     moved    to   suppress    text   messages       between   defendant's

codefendants, J.O. and J.B. 1, as the messages failed to demonstrate defendant's

role in the conspiracy as charged in the indictment to rob one of the victims.

The suppression of that evidence led to the dismissal of a significant charge that

was to be presented to the jury as well. 2

        Additionally, at trial, two codefendants and one of the two victims

identified defendant in court as one of the participants in the crimes. The other

victim was not asked to make an in-court identification of defendant. One

codefendant participated in an out-of-court identification of defendant, as did

the victim who was not asked to identify defendant at trial. In his out-of-court



1
    We use initials to protect individual's privacy interests.
2
   The dismissal was as to the third count of the indictment that charged
defendant with first-degree use of a person seventeen years old or younger to
commit a crime, N.J.S.A. 2C:24-9.


                                                                              A-5816-17T4
                                           3
identification, that victim selected defendant's photograph after being presented

with a photo array at the police station a few days after the incident.

       Defense counsel did not seek a pretrial Wade3 hearing because at the time

he believed that all of the witnesses knew defendant from the neighborhood or

their common school. During trial, the victim who did not identify defendant,

explained that he never saw defendant before and that he was not sure he

selected the correct photograph in the first instance.      In response, defense

counsel again did not pursue a Wade hearing although it was discussed with the

trial court.

       Defendant filed a pro se PCR petition on October 19, 2016, in which he

argued that his plea should be withdrawn "pursuant to manifest injustice," his

trial counsel provided ineffective assistance of counsel (IAC), and there was

"newly discovered evidence." An amended PCR petition and a brief were filed

on defendant's behalf, in which he argued that: trial counsel provided IAC by

seeking to suppress the text messages, failing to request a Wade hearing, and

not arguing certain mitigating factors at defendant's sentencing.            In a

certification also filed by defendant, he stated that he wanted the text messages

read to the jury to establish that he was not part of the conspiracy. According


3
    United States v. Wade, 388 U.S. 218, 241-42 (1967).
                                                                          A-5816-17T4
                                        4
to defendant, the fact that he did not participate in the texting that preceded the

crimes demonstrated he was not part of the conspiracy.

      As to the Wade hearing, defendant stated that he "believe[d] that a motion

would have shown that [the] identification [of him] was influenced by the police

officers in this case." According to defendant, the witnesses' identifications

were "not actually the result of their observations, but instead [were] the result

of observations presented to [the witnesses] later by the police and that they

caused a substantial likelihood of irreparable misidentification." Defendant

argued, at the very least, he established a prima facie case of IAC, which

warranted an evidentiary hearing.

      Judge Walsh denied defendant's petition by order dated June 29, 2018. In

her comprehensive written decision that accompanied the order, the judge

concluded that defendant failed to meet the two prong test under Strickland v.

Washington, 466 U.S. 668, 687 (1984), as adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 49-50 (1987). Addressing defendant's excessive

sentence claim, the PCR judge found that the claim was procedurally barred as

the issue was previously considered by us in defendant's direct appeal and, in

any event, his contentions about defense counsel's arguments at sentencing were

belied by the record.


                                                                           A-5816-17T4
                                        5
      Turning to the suppression of the text messages, the judge found that

defense counsel's suppression motion was "a tactical decision" that "was

favorable to defendant," because it prevented defendant from "potentially facing

conviction on an additional first-degree charge." Even if defense counsel was

deficient, Judge Walsh concluded that defendant failed to demonstrate "a

reasonable probability that the result would have been different," as there was

evidence that "support[ed] the contention that defendant became aware of the

plan, and took part of it" after the codefendants had been texting.         The

introduction of the text messages would only "support the State's case that a

robbery was planned between [two of the codefendants] at its inception" and

would not help defendant's case as multiple witnesses attested to defendant's

role in the robbery.

      On defendant's claim that his trial counsel should have pursued a Wade

hearing, Judge Walsh addressed each witness's identification individually. Of

the identifications, addressing the two out-of-court identifications, the judge

observed that there was no basis in the record to support a finding that had a

Wade hearing been conducted, defendant would not have been convicted. The

judge noted that one witness knew defendant before the incident, and as to the

other, there was no evidence that the police used suggestive procedures in


                                                                        A-5816-17T4
                                       6
securing the identification that created substantial likelihood of irreparable

misidentification. The PCR judge rejected defendant's remaining claims of IAC.

this appeal followed.

      Defendant presents the following issues for our consideration on his

appeal:

            POINT I

            THE PCR COURT ERRED IN DETERMINING THAT
            COUNSEL'S FAILURE TO SEEK A WADE
            HEARING DID NOT CONSTITUTE INEFFECTIVE
            ASSISTANCE.

            POINT II

            THE PCR COURT ERRED IN DETERMINING
            COUNSEL'S DECISION TO ARGUE TO SUPPRESS
            TESTIMONY    CONCERNING     THE    TEXT
            MESSAGES DID NOT CONSTITUTE INEFFECTIVE
            ASSISTANCE.

      We review de novo a decision to deny a petition for PCR where the PCR

court did not conduct an evidentiary hearing. State v. Harris, 181 N.J. 391, 419

(2004). Under those circumstances, "it is within our authority 'to conduct a de

novo review of both the factual findings and legal conclusions of the PCR

court.'" State v. Reevey, 417 N.J. Super. 134, 147 (App. Div. 2010) (quoting

Harris, 181 N.J. at 421).



                                                                        A-5816-17T4
                                       7
      Applying that standard, we agree that Judge Walsh correctly denied

defendant's petition, substantially for the reasons expressed in her thoughtful

and thorough written decision.     We find no merit to any of defendant's

contentions to the contrary, and conclude, as did Judge Walsh, that defendant

failed to establish a prima facie claim of IAC within the Strickland test.

Accordingly, the judge correctly concluded that an evidentiary hearing was not

warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

      Affirmed.




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