                        NOT FOR PUBLICATION WITHOUT THE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-5387-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WAYNE B. HIX, a/k/a WAYNE BILAL
HIX, WAYNE HICKS, and WAYNE B.
HICKS,

     Defendant-Appellant.
_____________________________

              Submitted April 3, 2017 – Decided May 17, 2017

              Before Judges Haas and Currier.

              On appeal from the Superior Court of New
              Jersey, Law Division, Union County, Indictment
              No. 08-07-0628.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique Moyse, Designated
              Counsel, on the brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Meredith L. Balo,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Wayne Hix appeals from a June 9, 2015 order denying

his petition for post-conviction relief (PCR).               He argues that his
trial counsel minimized the injury he sustained at the hands of

the victim, failed to timely raise the issue of his learning

disability, and failed to object to the prosecutor's improper

comments in summation.   Because we find that defendant has failed

to present a prima facie showing of ineffective counsel, we affirm.

     Defendant was convicted by a jury of manslaughter and unlawful

possession of a weapon, and sentenced to an aggregate fifteen-year

custodial term subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2 (NERA).   We affirmed defendant's conviction, State v. Hix, No.

A-5034-09 (App. Div. Aug. 12, 2013), and the subsequent petition

for certification was denied.    State v. Hix, 217 N.J. 288 (2014).

     Defendant filed a PCR petition pro se, and thereafter, a

brief was filed by assigned counsel.      Judge Scott J. Moynihan

heard oral argument on June 9, 2015, and issued an order denying

defendant's petition on the same date.

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.

Fritz, l05 N.J. 42 (l987).      In order to prevail on a claim of

ineffective assistance of counsel, defendant must meet the two-

prong test of establishing both that: (l) counsel's performance

was deficient and he or she made errors that were so egregious

                                  2                         A-5387-14T3
that counsel was not functioning effectively as guaranteed by the

Sixth Amendment to the United States Constitution; and (2) the

defect in performance prejudiced defendant's rights to a fair

trial such that there exists a "reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

would have been different."       Strickland, supra, 466 U.S. at 687,

694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

     At trial, defendant and several witnesses testified that

after the victim and defendant exchanged verbal insults inside a

convenience store, the victim followed defendant out of the store

and "slapped" or "smacked" defendant across his face.             According

to one witness, he heard the blow from inside the store. Defendant

recounted that he feared for his life and he stabbed the victim

in the chest with a pocketknife, causing his death.

     At   trial,    defendant's     counsel   and     several    witnesses,

including defendant himself, referred to the injury he suffered

from the victim as a "slap" or a "smack."       Defendant contends that

his counsel failed to appropriately characterize the blow to him,

which precluded the jury from properly assessing his claim of

self-defense.

     In   his   thorough   oral   decision,   Judge   Moynihan    carefully

detailed every instance throughout the trial where defendant and

other witnesses described the blow as a "slap" or a "smack."               He

                                     3                              A-5387-14T3
also noted that "it's simply not true that the trial counsel simply

referred to the blow by the victim to the defendant [as] merely a

slap. She referred to it as a karate slap in her opening statement.

. . . And likewise, in her summation."     In her closing argument,

counsel listed the top ten reasons why the jury should find that

defendant acted in self-defense.     Her number one reason was:

          [T]his is not just a slap . . . in the face.
          This was a forceful karate slap.    You heard
          testimony that the slap was so loud it was a
          slap that could be heard around the world.
          You heard evidence from [a witness] way up on
          the third floor she heard the slap. You heard
          testimony from [defendant's friend] and other
          people in the store that they could hear the
          slap and the door was closed . . . .

               . . . .

          It was a situation where there was a physical
          encounter which [the victim] initiated,
          . . . spun him around so that they were face-
          to-face, slapped the living daylights out of
          him and then grabbed him again.

The record shows that defense counsel repeatedly emphasized that

defendant was hit with a powerful blow in an effort to persuade

the jury that his subsequent actions were justified.           Judge

Moynihan's determination that defendant was unable to meet the

first prong of the Strickland-Fritz test is well supported by the

evidence presented at trial.

     The remainder of defendant's arguments lack sufficient merit

to warrant discussion in a written opinion.    R. 2:11-3(e)(2).     We

                                 4                           A-5387-14T3
affirm substantially for the reasons expressed by Judge Moynihan

as reflected in his well-reasoned oral opinion and add only the

following brief comments.

    If counsel had chosen to present a diminished capacity defense

presumably based on a learning disability asserted by defendant,

it would have contradicted the proffered self-defense theory.

Counsel's trial strategy is supported by the facts presented in

the record and her trial performance was reasonable considering

all of the circumstances.   Strickland, supra, 466 U.S. at 688.

    We are satisfied that defendant did not establish a prima

facie case of ineffective counsel and is not entitled to an

evidentiary hearing.

    Affirmed.




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