SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1679-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARIN HICKSON, a/k/a

DAARON HIXON,

Defendant-Appellant.

_________________________

Submitted March 21, 2022 – Decided March 30, 2022

Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 92-12-1863.

Darin Hickson, appellant pro se. 

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (William P. Miller, Assistant Prosecutor, of 

counsel; Catherine A. Foddai, Legal Assistant, on the 

brief).

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1679-19

Defendant appeals from a September 30, 2019 order denying his seventh 

petition for post-conviction relief (PCR) and a November 22, 2019 order 

denying reconsideration. Judge James X. Sattely entered the orders and 

rendered a written opinion concluding the petition is time barred. We affirm for 

substantially the reasons the judge gave and add these brief remarks. 

In an indictment filed December 30, 1992, defendant was charged with 

first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree 

robbery felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed 

robbery, N.J.S.A. 2C:15-1 (count three); and third-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four). In January 

1994, a jury acquitted defendant of murder and instead convicted him of the 

lesser-included offense of aggravated manslaughter. The jury convicted 

defendant of all other charges. After various mergers, the trial judge sentenced 

defendant to life imprisonment with thirty years of parole ineligibility. The 

convictions arose out of the May 1992 robbery of a jewelry store and the fatal 

stabbing of the store owner. 

We affirmed defendant's conviction and sentence in July 1996. State v. 

Hickson, No. A-6126-93T4 (App. Div. July 8, 1996), and the Supreme Court 

subsequently denied certification, State v. Hickson, 146 N.J. 570 (1996). 
3

A-1679-19

Defendant filed his first petition for PCR on July 18, 1997. The first PCR 

judge denied the petition without an evidentiary hearing. Defendant appealed 

the denial, and we remanded the case for an evidentiary hearing on his claim of 

jury taint based on an allegedly improper communication with a Sheriff's 

Officer. After an evidentiary hearing on the matter, the first PCR judge denied 

defendant's petition, we affirmed, State v. Hickson, No. A-3901-99T4 (App. 

Div. Apr. 19, 2001), and the Court denied certification, State v. Hickson, 

169 N.J. 610 (2001). 

We then affirmed defendant's second and third petitions for PCR. State 

v. Hickson, No. A-5329-01T3 (App. Div. Oct. 31, 2003) (denying second 

petition), certif. denied, 179 N.J. 373 (2004); State v. Hickson, No. A-1741-

04T3 (App. Div. Jan. 26, 2006) (denying third petition), certif. denied, 186 N.J. 

607 (2006). In 2009, we affirmed an order denying defendant's motion to correct 

an illegal sentence, amounting to a fourth petition for PCR. State v. Hickson, 

No. A-0249-07T4 (App. Div. Apr. 14, 2009), certif. denied, State v. Hickson, 

200 N.J. 471 (2009) (but remanding for a technical correction to the judgment 

of conviction). In 2010, defendant filed a motion for a new trial based on newly 

discovered evidence surrounding a purported immunity agreement between the 

State and two witnesses. We affirmed the order denying the motion. State v. 
4

A-1679-19

Hickson, No. A-0171-10T1 (App. Div. Feb. 8, 2012), certif. denied, State v. 

Hickson, 211 N.J. 275 (2012). 

Defendant filed a motion for a reduction of his sentence under Rule 3:21-

10 in 2014. The motion judge denied the motion in an order entered August 5, 

2014, finding it was "in the nature of a PCR" and not a request for modification 

of sentence. We affirmed the order denying the motion, State v. Hickson, A5907-13 (App. Div. Mar. 10, 2015), certif. denied, State v. Hickson, 223 N.J. 

164 (2015). 

In May 2016, defendant applied for assignment of a Public Defender in 

connection with his motion to correct an illegal sentence pursuant to Rule 3:21-

10(b)(5). Defendant argued that his sentence was illegal because the indictment 

was void. The Office of the Public Defender denied defendant's application for 

assignment of counsel and instructed defendant that his motion should be 

brought as a PCR petition. 

In 2018, defendant filed a sixth petition for PCR, claiming ineffective 

assistance of his trial and appellate counsel. On August 14, 2018, the judge 

dismissed the petition as time barred and because it did not allege any ineffective 

assistance by defendant's PCR counsel. On January 2, 2019, defendant resubmitted the petition, arguing that he received ineffective assistance from his 
5

A-1679-19

PCR counsel because PCR counsel failed to argue that his trial counsel should 

have challenged the jury instruction on felony murder and an allegedly void 

indictment. The PCR judge denied the petition as time-barred by Rule 3:22-12 

on September 30, 2019. Defendant moved for reconsideration, which the judge 

denied on November 22, 2019. 

On appeal, defendant asserts the following arguments: 

POINT ONE 

THE [JUDGE] ERRED IN DENYING 

DEFENDANT'S PETITION FOR [PCR], 

RESULTING IN VIOLATIONS OF . . . 

DEFENDANT'S CONSTITUTIONAL RIGHTS TO 

DUE PROCESS OF LAW UNDER THE SIXTH AND 

FOURTEENTH AMENDMENTS OF THE UNITED 

STATES CONSTITUTION, AND ART. I[,] P[AR]. 10 

[OF] THE CONSTITUTION AND LAWS OF THE 

STATE OF NEW JERSEY. 

POINT TWO

[DEFENDANT] RELIES ON THE APPLICATION OF 

THE INJUSTICE EXCEPTION AS HIS [PCR] 

COUNSEL ON HIS FIRST AND SUBSEQUENT 

PETITIONS FOR [PCR] WAS INEFFECTIVE IN 

FAILING TO RAISE INEFFECTIVE ASSISTANCE 

OF TRIAL COUNSEL RESULTING IN 

VIOLATIONS OF . . . DEFENDANT'S SIXTH AND 

FOURTEENTH AMENDMENTS UNDER THE 

UNITED STATES CONSTITUTION AND ART. I[,] 

P[AR]. 10 OF THE CONSTITUTION AND LAWS OF 

THE STATE OF NEW JERSEY. 
6

A-1679-19

A. [PCR] Counsel Was Ineffective In Failing To 

Raise Ineffective Assistance Of Trial Counsel 

Because Trial Counsel Did Not Challenge The 

Trial [Judge's] Failure To Charge The Jury On 

The Predicate Felony Of First-Degree Robbery 

Within The Felony Murder Charge Under Count 

Two Resulting In Prejudice And A Substantial 

Denial In The Conviction Proceedings Of 

Defendant's Sixth And Fourteenth Amendment 

Rights Of The Constitution Of The United States 

And Art. I[,] Par. 10 Of The Constitution And 

Law[s] Of The State Of New Jersey. 

B. [PCR] Counsel Was Ineffective In Failing To 

Raise Ineffective Assistance Of Trial Counsel 

Because Trial Counsel Did Not Challenge The 

Fact That . . . Defendant Has Been Served, Tried, 

Convicted, And Sentenced Upon An[] Invalid

And Void Indictment Thus Results In Denial Of 

Fundamental Fairness In A Constitutional Sense, 

Thus Resulting In Prejudice And Substantial 

Denial In The Conviction Proceedings Of 

Defendant's Sixth And Fourteenth Amendment 

Rights Of The Constitution Of The United States 

And Art. I[,] Par. 8 And Art. I[,] Par. 10 Of The 

Constitution And Laws Of The State Of New 

Jersey.1 

POINT THREE

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL 

BECAUSE TRIAL COUNSEL DID NOT 

CHALLENGE THE TRIAL [JUDGE'S] ERROR 

WHERE [HE] DID NOT INSTRUCT THE JURY TO 

THE ELEMENTS OF THE PREDICATE FELONY OF 

1

 To comport with our style conventions, we have altered the capitalization of 

defendant's subpoints A and B but have omitted these alterations for readability.
7

A-1679-19

FIRST[-]DEGREE ROBBERY WITHIN THE 

FELONY MURDER JURY INSTRUCTION THUS 

VIOLATING DEFENDANT'S RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL, A FAIR 

TRIAL AND DUE PROCESS OF LAW RESULT IN 

PREJUDICE AND A SUBSTANTIAL DENIAL IN 

THE CONVICTION PROCEEDINGS OF 

DEFENDANT'S SIXTH AND FOURTEENTH 

AMENDMENT RIGHTS OF THE CONSTITUTION 

OF THE UNITED STATES AND ART. I[,] P[AR]. 10 

OF THE CONSTITUTION AND LAWS OF THE 

STATE OF NEW JERSEY. 

POINT FOUR

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL 

FOR FAILING TO CHALLENGE THE FACT 

THAT . . . DEFENDANT HAS BEEN SERVED[,] 

TRIED, CONVICTED, AND SENTENCED UPON 

AN[] INVALID AND VOID INDICTMENT THUS 

RESULTS IN DENIAL OF FUNDAMENTAL 

FAIRNESS IN A CONSTITUTIONAL SENSE, THUS 

RESULTING IN PREJUDICE AND SUBSTANTIAL 

DENIAL IN THE CONVICTION PROCEEDINGS OF 

DEFENDANT'S SIXTH AND FOURTEENTH 

AMENDMENT RIGHTS OF THE CONSTITUTION 

OF THE UNITED STATES AND ART. I[,] P[AR]. 8 

AND 10 OF THE CONSTITUTION AND LAWS OF 

THE STATE OF NEW JERSEY. 

When a PCR judge does not conduct an evidentiary hearing—like here—

we review the PCR judge's factual findings and legal conclusions de novo. See

State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). 
8

A-1679-19

Applying that standard, we agree that the judge correctly denied 

defendant's petition for the reasons expressed in his written decision. We find 

no merit in any of defendant's contentions and conclude that he failed to 

establish that his petition was not time-barred, and in any event, that his 

contentions did not meet the two-prong test enumerated in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), which our Court adopted in State v. 

Fritz, 105 N.J. 42, 58 (1987). 

Rule 3:22-4(b)(1) requires that a second or subsequent PCR petition be 

dismissed unless it is timely filed in accordance with Rule 3:22-12(a)(2). A 

second or subsequent PCR petition that alleges ineffective assistance of counsel 

"that represented the defendant on the first or subsequent application for" PCR, 

must be filed no more than one year after "the date of the denial of the first or 

subsequent application for [PCR]." R. 3:22-12(a)(2)(C). 

The one-year time limitation "is absolutely prohibited" by court rule from 

being enlarged for second or subsequent PCR petitions. State v. Jackson, 

454 N.J. Super. 284, 292-93 (App. Div. 2018) (quoting Aujero v. Cirelli, 

110 N.J. 566, 577 (1988)) (explaining the Court's recent rule amendments made 

evident "that 'no second or subsequent petition shall be filed more than one year 

after' the date one of the three claims accrued" (quoting R. 3:22-12(a)(2))); see
9

A-1679-19

R. 3:22-12(b) ("These time limitations shall not be relaxed, except as provided 

herein."). And appellate review of a defendant's conviction or previous PCR 

petition does not toll the time limitation of Rule 3:22-12. State v. Dillard, 

208 N.J. Super. 722, 727 (App. Div. 1986) (finding the Court's omission of any 

provision in Rule 3:22-12 to toll the time limit while direct appellate relief is 

available to be intentional). 

Here, defendant is alleging ineffective assistance by his PCR counsel on 

his previous PCR petition. Defendant had one year from the denial of the August

5, 2014 petition—August 5, 2015—to bring a timely PCR petition. See R. 3:22-

12(a)(2)(c). Defendant filed this PCR petition first in August 2018 and resubmitted it in January 2019, more than three years after the previous PCR's 

denial. For that reason, his petition is time-barred.

We are convinced that defendant's ineffective-assistance-of-counsel 

claims are without sufficient merit to warrant discussion in a written opinion. 

R. 2:11-3(e)(2). 

Affirmed.