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State v. Holland

Superior Court of New Jersey, Appellate Division

April 5, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
EDWARD HOLLAND, Defendant-Appellant.

          Submitted February 2, 2017

         On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-11-0667.

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

          Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle R. Pennino, Assistant Prosecutor, of counsel and on the brief).

          Before Judges Lihotz, Hoffman and O'Connor.


          LIHOTZ, P.J.A.D.

         Defendant Edward Holland appeals from a July 23, 2015 Law Division order denying his petition for post-conviction relief (PCR). On appeal, defendant argues:

A. Trial Counsel's Failure to Seek the Recusal of the Trial Judge Violated Defendant's Sixth Amendment Right to the Effective Assistance of Counsel.
B. [The trial judge's] Failure to Recuse Himself Constitutes a Substantial Denial of Defendant's Right to a Fair and Unbiased Trial.

         Following our review, we conclude the interests of justice require a judge to avoid all inference of impropriety. Although this record does not definitively show the trial judge remembered defendant was his former client many years ago, there is certainty of his prior representation of defendant on more than one criminal matter. Consequently, we are constrained to reverse the denial of PCR, vacate the judgment of conviction, and remand the matter for retrial.


         Defendant was arrested, charged, and convicted by a jury of third-degree possession of a controlled dangerous substance, heroin, with the intent to distribute, N.J.S.A. 2C:35-5(b)(3), and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). The State's evidence included defendant's admissions to the arresting officer, defendant's custodial statement, and heroin seized pursuant to a warrant. Following the verdict, the State moved to impose a mandatory extended term sentence, N.J.S.A. 2C:43-6(f), which was granted. After merger, the trial judge sentenced defendant to a custodial term of seven years, subject to a three-year period of parole ineligibility.

         Defendant appealed from his conviction and sentence. He challenged the State's summation and argued his sentence was excessive. In an unpublished opinion, this court rejected defendant's arguments and affirmed the judgment of conviction and the imposed sentence. State v. Holland, No. A-2007-12 (App. Div. Aug. 19, 2014) .

         Defendant timely filed a petition for PCR. He argued counsel provided ineffective assistance because counsel failed to seek the judge's recusal, knowing the trial judge had represented defendant in the past. During the evidentiary hearing, defendant's counsel testified defendant recognized the trial judge, explaining the judge prior to taking the bench, had represented defendant several times in connection with criminal charges, including drug offenses. Counsel additionally testified "there was an [in-chambers] conference" regarding the issue. Counsel asserted the trial judge "expressed that he had known [defendant]" and had a positive opinion of him. She acknowledged she did not move for recusal, stating defendant believed it was beneficial to allow his former counsel to preside over his case.

         Defendant testified, relating the nature of the prior legal representation by the trial judge, asserting there were separate matters in both the Superior and municipal courts. Defendant refuted his attorney's testimony suggesting he was pleased to learn his former lawyer was assigned to preside over his trial, stating, "I was bothered by it."

         The State presented no witnesses, but offered certifications from the assistant prosecutors who tried the case, stating they were told by defense counsel the judge had previously represented the defendant and believed the judge was advised of the prior representation. Each of the assistant prosecutors certified: "It was my understanding . . . defendant was adamant that he wanted to proceed with [his former attorney] as the trial judge."

         In a written opinion, the PCR judge confirmed defendant was previously represented by the trial judge in a 1993 criminal charge and a 19 95 violation of probation. He found defense counsel and the prosecutors knew of the prior representation provided by the trial judge. Further, he found defendant was pleased by this fact and characterized the decisions not to seek recusal or "place anything on the record" as "a strategic trial strategy." The judge then found:

Despite the testimony to the contrary by [defense counsel], this [c]ourt cannot and does not find, by a preponderance of the evidence, that [the trial judge] had any recollection of having represented [defendant] on a prior occasion. This finding is based upon several factors. First, there is no record in the case at bar that reflects that knowledge. Clearly, [the trial judge] would have and should have addressed the issue on the record if it was brought to his attention. Second, the representation occurred 17 years prior to the start of trial and it would be objectively reasonable and understandable that [the trial judge] simply did not remember [defendant] because of the passage of time. Third, there was nothing in the record in front of him, such as testimony, documents or the pre-sentence report that would have brought his attention to the fact that he represented . . . defendant 17 years prior [sic]. Finally, while [defense counsel] recalls a conference in chambers regarding that issue, specifics of that conference have not been provided to the [c]ourt, such as when and under what circumstances that conference occurred. This is not to imply that [defense counsel] was not credible, but rather, her memory of the events might be clouded by the passage of time. Further[, ] the certifications provided by the Assistant Prosecutors fail to allege with any level of specificity how and under what circumstances [the trial judge] was aware of his prior representation of defendant. It seems highly unlikely and improbable that four attorneys, the [j]udge and . . . defendant would fail to place anything on the record regarding the prior representation between the trial, sentencing and appeal.

         Relying on these findings, the PCR judge stated he could not "second-guess counsel's strategic decisions with the benefit of hindsight." Therefore, he concluded counsel's performance was not deficient. He also found defendant's right to a fair trial was not compromised as there was overwhelming evidence of guilt, the trial results were reliable, and ...

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