Submitted February 2, 2017
appeal from Superior Court of New Jersey, Law Division,
Cumberland County, Indictment No. 10-11-0667.
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).
Judges Lihotz, Hoffman and O'Connor.
Edward Holland appeals from a July 23, 2015 Law Division
order denying his petition for post-conviction relief (PCR).
On appeal, defendant argues:
THE PCR COURT'S RULING THAT DENIED DEFENDANT'S MOTION
FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE THERE WAS
A SUBSTANTIAL DENIAL OF DEFENDANT'S CONSTITUTIONAL RIGHTS
IN THE PROCEEDINGS BELOW.
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.
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.
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.
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In an unpublished opinion, this court rejected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) .
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.
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
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."
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.
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 ...