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State of New Jersey v. Luis Solar

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 20, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LUIS SOLAR, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-08-2755.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 2010

Before Judges Carchman and Graves.

Defendant Luis Solar appeals from the denial of his petition for post-conviction relief (PCR). He is serving a fifteen-year prison term for aggravated manslaughter with a mandatory period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

Pursuant to a plea agreement, defendant pled guilty to an amended charge of aggravated manslaughter on January 9, 2004. Defense counsel explained that defendant was entering his plea because a key eyewitness, who had given a favorable statement to the defense, had recanted and given a new statement implicating defendant.

After defendant was sworn, he confirmed he reviewed everything with his attorney and was satisfied with his attorney's services. Defendant also testified as follows:

[DEFENSE COUNSEL]: . . . Luis, on September 24th, 2001, were you in the City of Camden?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: And that's . . . in the County of Camden, correct?

THE DEFENDANT: Yeah.

[DEFENSE COUNSEL]: And were you outside the Happy Dragon Restaurant on 28th and Mickle, by Cramer School?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: At that point in time, did a gentleman that you now know as Andres Comacho . . . arrive at the scene in a truck?

THE DEFENDANT: Yeah.

[DEFENSE COUNSEL]: And at some point on that evening of September 24th, 2001, did you cause to discharge a firearm, a gun, into that truck?

THE DEFENDANT: (Grunts)

[DEFENSE COUNSEL]: While Mr. Comacho was in it?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: And you knew that Mr. Comacho was in the truck when you were firing the bullets into the [truck] . . . ?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: And you find out later that one or two of the bullets had struck Mr. Comacho?

THE DEFENDANT: (No audible verbal response)

[DEFENSE COUNSEL]: And caused his death?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: Are you pleading guilty today because you are guilty of the offense, Luis?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: Do you have any questions of me or of the Judge or of [the assistant prosecutor] before we continue?

THE DEFENDANT: No.

[ASSISTANT PROSECUTOR]: Just briefly, Your Honor?

THE COURT: Go right ahead, sir.

[ASSISTANT PROSECUTOR]: Mr. Solar, you knew that when you pointed . . . a firearm at the vehicle and fired it, you knew where Mr. Comacho was sitting in the vehicle, is that correct?

THE DEFENDANT: Yes.

[ASSISTANT PROSECUTOR]: So you knew that . . . it was almost certain . . . that a bullet could strike him, is that correct?

THE DEFENDANT: Yeah.

[ASSISTANT PROSECUTOR]: . . . [Y]ou understand . . . that Mr. Comacho died and that a medical report was prepared by the Medical Examiner of Camden County who indicates that Mr. Comacho died of gunshot wounds which caused him to lose blood volume and result in his death. You don't have any way of objecting to that medical determination, is that right?

THE DEFENDANT: Yes.

THE COURT: Anything further?

[ASSISTANT PROSECUTOR]: Yes.

You didn't fire just once into the vehicle, you fired multiple times, isn't that correct?

THE DEFENDANT: Yes.

Five days later, on January 14, 2004, a second hearing was held to amend the plea agreement to include mandatory DNA testing. At that hearing, defendant reconfirmed his prior testimony.

Defendant's original sentence date was adjourned, and he was assigned a new attorney after he wrote a letter to the judge requesting permission to withdraw his plea. Defendant claimed he was "stressed and depress[ed]" and his attorney told him it was best "to take the plea" because "there wasn't enough time to investigate the new witnesses." In a letter brief in support of defendant's subsequent motion to withdraw his plea, his new attorney argued: "Mr. Solar felt he had no other choice but to take a plea deal since he would not receive a fair trial." Prior to sentencing on July 23, 2004, the court denied defendant's motion. Defendant was then sentenced in accordance with the plea agreement to a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility under NERA.

On December 13, 2005, following oral argument on the sentencing calendar, Rule 2:9-11, we affirmed both the order denying defendant's motion and his sentence. The New Jersey Supreme Court denied defendant's petition for certification on June 13, 2006. State v. Solar, 187 N.J. 491 (2006). In his pro se petition for PCR, defendant reiterated his original claims and requested a hearing to determine "the circumstances which caused counsel to encourage defendant to waive his right to trial and enter a guilty plea." In a supplemental brief, PCR counsel alleged that defense counsel was ineffective for failing to obtain a copy of a toxicology report dated October 26, 2001, which analyzed the victim's blood. The report stated that decedent's blood test results were "consistent with an overdose of cocaine." Based on the toxicology report, PCR counsel argued it was unlikely that defendant would have entered a guilty plea because "one cannot reckless[ly] cause the death of someone who already died of a cocaine overdose."

During oral argument on June 20, 2008, the court asked PCR counsel whether there was any medical proof that the victim's death was caused by an overdose of cocaine, and counsel candidly conceded he was unable to obtain an expert report to substantiate defendant's theory:

I understand the Court's point, why isn't there a forensic pathologist here today paid by the Office of the Public Defender saying this shows that this victim died by cocaine overdose? The fact is that the State of New Jersey through the Public Defender's Office paid for the forensic investigation and it resulted in nothing that could be presented credibly to this Court. That's not the point that Mr. Solar's making here today, though. The point is that this should have been available and it was either . . . not provided to [defense counsel], which should cause some problems for this Court, or [defense counsel] lost it and never presented it to Mr. Solar.

During an evidentiary hearing on December 18, 2008, the court heard testimony from defendant, defendant's trial attorney, and the assistant prosecutor who tried the case. Following the hearing, the court set forth its reasons for denying defendant's petition in a written decision on January 7, 2009. The court found there was "no basis whatsoever for defendant's claim that his trial attorney was unprepared for trial which forced him to enter a negotiated plea." In addition, the court determined that the victim had driven the vehicle he was operating for several blocks after being shot; the victim "had virtually no blood in his body at the time of the autopsy"; and there was no evidence to support defendant's claim that the victim died from a cocaine overdose. Therefore, the court concluded that defendant had failed to satisfy both prongs of the Strickland/Fritz test.*fn1

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

A. FACTUAL INTRODUCTION.

B. SINCE BOTH PRONGS OF THE STRICKLAND STANDARD WERE ESTABLISHED IN THE PRESENT CASE, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

POINT II

THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS BASED UPON A LEGAL ISSUE NOT PREVIOUSLY RAISED AND ADJUDICATED, RENDERING RULE 3:22-5 INAPPLICABLE, THUS PERMITTING THE ISSUE TO BE PROPERLY ADDRESSED ON A SUBSTANTIVE BASIS.

We conclude from our review of the record that defendant's arguments are clearly without merit. R. 2:11-3(e)(2). The PCR court carefully considered each of defendant's claims; the court's findings are supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 472 (1999); and the court correctly applied well-settled legal principles. We therefore affirm substantially for the reasons stated by Judge John T. McNeill in his letter decision on January 7, 2009. Affirmed.


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