                                NOT FOR PUBLICATION WITHOUT THE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-1161-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DARREN HALE,

     Defendant-Appellant.
____________________________

                    Submitted October 2, 2018 – Decided October 18, 2018

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 05-02-0450.

                    Jacobs & Barbone, PA, attorney for appellant (Louis M.
                    Barbone and Daniel J. Solt, on the brief).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Kevin J. Hein, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an October 7, 2016 order denying his petition for

post-conviction relief (PCR) after an evidentiary hearing. We affirm.

      Defendant was arrested after the police responded to a report of an armed

robbery at a liquor store.    The police apprehended defendant and another

individual after they fled the scene. The other individual implicated defendant

in the liquor store robbery and two other robberies.

      Defendant was indicted and charged with three counts of first-degree

robbery, N.J.S.A. 2C:15-1; three counts of third-degree possession of a weapon

for unlawful purposes, N.J.S.A. 2C:39-4; three counts of third-degree unlawful

possession of a weapon, N.J.S.A 2C:39-5; three counts of third-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a); and

one count of second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7.

      Pursuant to a negotiated plea agreement, defendant pled guilty to two

counts of first-degree robbery.    In exchange for his guilty plea, the State

recommended an aggregate eighteen-year term in prison subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2, to run concurrently with a separate sentence

he was serving for an unrelated conviction.       At the sentencing, the court

considered the aggravating and mitigating factors and sentenced defendant in


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                                       2
accordance with the plea agreement and dismissed all remaining counts in the

indictment.

      Defendant did not appeal his conviction or sentence. Instead, nearly five

years later he filed a PCR petition in which he maintained that his trial counsel

was ineffective in failing to secure a reduced sentence for his cooperation in two

unrelated homicides.     The first PCR judge considered certifications of the

parties, including defendant's trial counsel, and denied defendant's petition

without an evidentiary hearing.

      Defendant appealed and prior to oral argument the State produced

correspondence between defendant's trial counsel and the prosecutor that raised

a question as to the accuracy of the representations trial counsel made in his

certification to the PCR court. Accordingly, we reversed and remanded and

commented that in light of the State's disclosures, the "PCR court [might want]

to . . . reconsider[] its original decision to deny defendant's petition without an

evidentiary hearing."    State v. Darren Hale, No. A-3154-12T1 (App. Div.

December 3, 2014) (slip op. at 11). We "[did] not, however, direct the outcome

either way and le[ft] it to the court's discretion." Ibid.

       On remand, defendant renewed the arguments he made before the first

PCR judge. A second PCR judge ordered an evidentiary hearing, which was


                                                                           A-1161-16T4
                                         3
conducted by Judge Edward J. McBride.            At the hearing, Judge McBride

considered documentary evidence, supplemental briefing and took testimony

from the prosecutor and investigator assigned to defendant's case, defendant's

trial counsel and the investigator and prosecutor assigned to the homicide trial.

The court found all of the witnesses credible.

      Judge McBride rendered a written opinion and concluded that defendant

satisfied the first prong of the two-part test for ineffective assistance of counsel

detailed in Strickland v. Washington, 466 U.S. 688 (1984) and adopted by the

New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987), but failed to

satisfy the second prong which required defendant to establish that trial

counsel's deficient performance prejudiced him.

      With respect to prong one, the court determined that trial counsel's

"omissions . . . relating to the potential impact of . . . [d]efendant's cooperation

in the prosecution of two murder cases were so deficient that they fell below the

wide range of professionally competent assistance to which a defendant is

constitutionally entitled." Judge McBride noted that trial counsel assisted in

arranging for defendant to provide a taped statement, but did nothing beyond

that rendering him unable to adequately advocate for defendant to receive a

lesser sentence.


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                                         4
      As to prong two, Judge McBride determined that defendant failed to prove

that his trial counsel's ineffective assistance deprived him of a promised reduced

sentence as there was "no evidence that such a promise was ever made." Further,

the judge noted it was clear from the record that the prosecutor would not have

given defendant consideration for any cooperation because he did not testify in

the homicide case, as it resolved by plea agreement.

      In addition, the judge explained that defendant received a favorable

sentence as a result of his plea. Judge McBride noted that despite his long

criminal history, including prior robbery convictions, defendant's sentence was

"below the top of the first-degree range." Further, defendant's two robbery

convictions ran concurrent to each other and to the sentence he was already

serving.   Finally, Judge McBride concluded that defendant was merely

speculating that the sentencing court would have agreed to a lesser sentence had

trial counsel informed the court of his cooperation and he failed to provide an

assessment of what the lesser sentence would have been.

      On appeal, defendant raises the following points:

            POINT I

            THE POST-CONVICTION RELIEF COURT'S
            LEGAL CONCLUSION THAT DEFENDANT
            FAILED TO SATISFY THE PREJUDICIAL EFFECT


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                                        5
            PRONG OF THE STRICKLAND/FRITZ TEST IS
            SUBJECT TO DE NOVO REVIEW.

            POINT II

            THE PCR COURT ERRED IN CONCLUDING
            DEFENDANT FAILED TO SATISFY THE
            PREJUDICE PRONG OF THE STRICKLAND/FRITZ
            TEST.

            POINT III

            THE POST-CONVICTION RELIEF COURT'S
            CREDIBILITY AND FACTUAL FINDING ARE NOT
            ENTITLED DEFERENCE BECAUSE THEY ARE
            NOT SUPPORTED BY SUFFICIENT CREDIBLE
            EVIDENCE

      We agree with defendant's first point, but find no merit to the contentions

raised in his second and third points and therefore affirm substantially for the

reasons stated by Judge McBride in his thirteen-page written decision of October

7, 2016. R. 2:11-3(e)(2). We agree with Judge McBride that the deficiencies of

trial counsel failed to meet the prejudice prong of the Strickland test.

      Affirmed.




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