STATE OF NEW JERSEY v. GUAROA SOLANO-TRINIDAD (16-02-0113, PASSAIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1690-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GUAROA SOLANO-TRINIDAD,
a/k/a GUAROA SOLANO,
Defendant-Appellant.
______________________________
Submitted September 28, 2021 – Decided February 18, 2022
Before Judges Fisher and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 16-02-0113.
Joseph E. Krakora, Public Defender, attorney for
appellant (Charles H. Landesman, Designated Counsel,
on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Guaroa Solano-Trinidad appeals the denial of his post-
conviction relief (PCR) petition. We affirm for the reasons set forth below.
I.
On October 12, 2015, defendant was driving in Prospect Park when he
engaged in a verbal confrontation with another motorist, Ana Tobon. The
parties' renditions of events are similar, but they differ in some respects.
Tobon contends that defendant was the aggressor, cutting her off and
driving carelessly in front of her for several blocks. When both parties stopped
at a red traffic signal, Tobon pulled alongside defendant's car. A verbal
confrontation ensued between Tobon and defendant. Tobon maintains that after
words were exchanged, defendant exited his vehicle and approached her car with
a knife.
Defendant, however, contends Tobon exited her vehicle and threw a cup
of soda through the window of his vehicle. The soda missed him but landed on
the passenger side dashboard. Allegedly fearing for his safety, defendant exited
his vehicle, removed a knife from his pocket and used it to puncture a hole in
the tire of Tobon's vehicle. Defendant claims that his actions were necessary to
prevent Tobon from retaliating.
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Defendant was subsequently pulled over by a police officer 1 for not
wearing a seatbelt, whereupon Tobon and another witness, Magdelin Pena,
approached the officer and reported the incident. Upon noticing the flat tire, the
officer questioned defendant to determine if he possessed any weapons.
Defendant told the officer that he had a knife in his pocket. The officer
recovered the knife and noticed that the top half of the knife's blade had black
residue. The officer then arrested defendant.
On October 12, 2015, a municipal court judge found probable cause. A
grand jury later indicted defendant on three charges: third-degree terroristic
threats, N.J.S.A. 2C:12-3(a); third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-4(d).
Defendant pled guilty to third-degree possession of a weapon for an
unlawful purpose and two motor vehicle violations.
Defendant was subsequently sentenced to a three-year term of
incarceration, concurrent to a three-year sentence on a separate indictment. The
remaining counts were dismissed. Defendant appealed, informing appellate
1
The record contains no reference to the officer by name but for an illegible
handwritten notation in the police report.
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counsel of what he believed to be the municipal judge's conflict of interest.
Defendant asked appellate counsel to incorporate the argument into the appeal.
Appellate counsel declined to pursue the claim, telling defendant that "this was
not a viable issue." Defendant's direct appeal was placed on an excessive
sentence calendar. We affirmed. State v. Solano-Trinidad, No. A-5674-16
(App. Div. Jan. 9, 2018).
Defendant then filed a pro se PCR application. Afterwards, PCR counsel
filed an amended verified petition and brief. Shortly thereafter, the PCR court
heard argument.
The PCR judge issued a written opinion. He rejected defendant's self-
defense theory, finding "nothing in [defendant's] actions [towards Tobon] that
could normatively be characterized as reasonable or immediately necessary."
Accepting defendant's version of events, the judge found "there was nothing to
preclude [defendant] from driving off and calling the police with a description
of the vehicle and his assailant." The judge further found that "no reasonable
jury could be expected to find that exiting one's car and puncturing an offending
driver's tire with a knife was in any sense a proportionate or justifiable response
to having a drink thrown in one's direction." Given these findings, the PCR
judge concluded defendant failed to make a prima-facie showing of ineffective
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assistance of counsel, because "[self-defense] was not viable in any realistic
sense." As to the second prong of Strickland,2 the PCR judge found defendant
made no showing "as to how the outcome would have been substantially
different or more favorable[] for [defendant] even had the claim of self-defense
been undertaken as it was[,] and is[,] wholly implausible."
Next, the PCR judge concluded that the municipal court judge's probable
cause finding against defendant was "limited," and "chiefly ministerial." The
PCR judge recognized that our law encourages judges to recuse themselves from
hearing matters involving defendants that they have prosecuted or defended
previously. See State v. McNamara, 212 N.J. Super. 102, 108 (App Div. 1986).
However, the PCR judge also found the "[municipal court judge's] probable
cause finding was superseded and rendered moot by the return of the grand jury
indictment." The PCR judge concluded any defense challenge to the indictment
based on the municipal court judge's failure to recuse, in addition to being
unlikely to succeed due to mootness, would have "triggered a disadvantageous
escalation in the plea offer against [defendant's] penal interest."
2
Strickland v. Washington, 466 U.S. 668 (1984).
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The PCR court concluded defendant failed to prove the first prong of
Strickland, and that trial counsel's performance satisfied defendant's Sixth
Amendment right to counsel. The judge denied an evidentiary hearing.
On appeal from denial of his PCR application, defendant makes the
following arguments:
POINT I
DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL BY HIS TRIAL
ATTORNEY WHO DID NOT MOVE TO
DISQUALIFY THE MUNICIPAL JUDGE FROM
CONDUCTING A PROBABLE CAUSE HEARING
DUE TO A CONFLICT OF INTEREST BECAUSE HE
PREVIOUSLY PROSECUTED THE DEFENDANT
AS A MUNICIPAL PROSECUTOR IN TWO
UNRELATED CASES.
POINT II
DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL BY HIS TRIAL
ATTORNEY BECAUSE HE FAILED TO RAISE THE
DEFENSE OF SELF-DEFENSE.
II.
Rule 3:22-2 provides four grounds to grant a PCR petition: (1) substantial
denial of a state or federal constitutional right; (2) a sentencing court's lack of
jurisdiction; (3) imposition of an excessive or unlawful sentence; and (4) "any
habeas corpus, common-law, or statutory grounds for a collateral attack." State
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v. Preciose, 129 N.J. 451, 459 (1992). The burden rests with the defendant to
prove such a violation "by a preponderance of the credible evidence." Ibid. To
sustain that burden, the defendant must allege and articulate facts, which
"provide the court with an adequate basis on which to rest its decision." State
v. Mitchell, 126 N.J. 565, 579 (1992).
We analyze ineffective assistance of counsel claims by using the two-
prong test established by the Supreme Court in Strickland. See Preciose, 129
N.J. at 463; see also State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of
the Strickland test requires a defendant to establish counsel's performance was
deficient. Preciose, 129 N.J. at 463. "The second, and far more difficult, prong
. . . is whether there exists 'a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.'"
Id. at 463-64 (quoting Strickland, 466 U.S. at 694).
To obtain a new trial based on ineffective assistance of appellate counsel,
a defendant must establish that appellate counsel failed to raise an issue that
would have constituted reversible error on direct appeal. State v. Echols, 199
N.J. 344, 361 (2009). Appellate counsel will not be found ineffective if
counsel's failure to appeal the issue could not have prejudiced the defendant
because the appellate court would have found either that no error had occurred
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or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); State v. Harris,
181 N.J. 391, 499 (2004). Consequently, appellate counsel is not required to
raise every possible issue and need only raise issues that have a reasonable
possibility of success. State v. Gaither, 396 N.J. Super. 508, 515-16 (App. Div.
2007); State v. Morrison, 215 N.J. Super. 540, 549 (App. Div. 1987) (noting
"appellate counsel does not have a constitutional duty to raise every
nonfrivolous issue requested by the defendant").
There exists a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. Strickland, 466 U.S. at 690. Further, because prejudice
is not presumed, defendant must demonstrate how specific errors by counsel
undermined the reliability of the proceeding. State v. Drisco, 355 N.J. Super.
283, 290 (App. Div. 2002) (citing United States v. Cronic, 466 U.S. 648, 659
n.26 (1984)).
Where a PCR court does not conduct an evidentiary hearing, we "conduct
a de novo review of both the factual findings and legal conclusions of the PCR
court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting
Harris, 181 N.J. at 421).
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In addressing motions for judicial recusal, we are guided by several
fundamental principles. Generally, recusal motions "are entrusted to the sound
discretion of the judge and are subject to review for abuse of discretion." State
v. McCabe, 201 N.J. 34, 45 (2010) (citing Panitch v. Panitch, 339 N.J. Super.
63, 66 (App. Div. 2001)). However, "[w]e review de novo whether the proper
legal standard was applied." Ibid.The "overarching objective of the Code of Judicial Conduct is to maintain
public confidence in the integrity of the judiciary." In re Advisory Letter No.
7-11 of the Sup. Ct. Advisory Comm., 213 N.J. 63, 71 (2013) (citations omitted).
Such confidence "depends on a belief in the impersonality of judicial decision
making." Id. at 75 (quoting United States v. Nobel, 696 F.2d 231, 235 (3d Cir.
1982)). Because "justice must satisfy the appearance of justice[,]" State v.
Deutsch, 34 N.J. 190, 206 (1961) (citation omitted), we are as concerned with
how facts are perceived by the public as we are with the actual cases of partiality.
See Code of Jud. Conduct Rule 2.1 (stating "[a] judge shall act at all times in a
manner that promotes public confidence in the independence, integrity and
impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety."). Therefore, a movant need not show actual prejudice, "the mere
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appearance of bias may require disqualification." Panitch, 339 N.J. Super. at 67(quoting State v. Marshall, 148 N.J. 89, 279 (1997)).
"[J]udges sh[ould] disqualify themselves in proceedings in which their
impartiality . . . might reasonably be questioned . . . ." Code of Jud. Conduct
Rule 3.17(B). "However, before the court may be disqualified on the ground of
an appearance of bias, the belief that the proceedings were unfair must be
objectively reasonable." State v. Presley, 436 N.J. Super. 440, 448 (App. Div.
2014) (quoting Marshall, 148 N.J. at 279). With those principles in mind, our
Supreme Court adopted "the following standard to evaluate requests for recusal:
'Would a reasonable, fully informed person have doubts about the judge's
impartiality?'" McCabe, 201 N.J. at 44 (quoting DeNike v. Cupo, 196 N.J. 502,
517 (2008)).
Rule 1:12-1(g) mandates a judge to recuse themselves in a proceeding
when there is any . . . reason which might preclude a
fair and unbiased hearing and judgment, or which might
reasonably lead counsel or the parties to believe so.
Pertinent to this matter, an administrative directive promulgated by the
Administrative Director of the Courts, dated September 19, 1983 states:
A judge should disqualify himself or herself from
hearing a criminal matter involving a defendant who the
judge, in his or her previous capacity, had personally
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prosecuted or defended, or had represented in a civil
matter in the past.
[See also N.J.S.A. 2A:15-49.]
Despite those guiding principles, our Supreme Court in DeNike v. Cupo,
noted that judicial refusal is not mandatory "in certain instances," where the
"entry of judgment may constitute a ministerial act that does not involve the
exercise of discretion" on the part of a judge. 196 N.J. at 515.
III.
Recognizing that the "overarching objective of the Code of Judicial
Conduct is to maintain public confidence in the integrity of the judiciary," we
find the municipal court judge should have recused himself from defendant's
probable cause hearing. See In re Advisory Letter, 213 N.J. at 71. The finding
of probable cause against defendant was hardly "ministerial," as it required an
evaluation of defendant's conduct in light of the facts and circumstances of the
particular case and the charges brought. State v. Moore, 181 N.J. 40, 45 (2004)
(defining probable cause). The record shows the municipal court judge had
previously served as a municipal court prosecutor, and that he had prosecuted
defendant in that capacity. The municipal court judge knew defendant and had
previously recused himself from other cases involving defendant. Recusal
would have prevented the "appearance of bias," and we disagree with the PCR
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court's characterization of the municipal court judge's act as "ministerial." That
said, we are persuaded that the error is overcome by the grand jury's subsequent
indictment. See Panitch, 339 N.J. Super. at 67.
The grand jury has the dual function of "determining if there is probable
cause to believe that a crime has been committed and of protecting citizens
against unfounded criminal prosecutions . . . ." State v. Del Fino, 100 N.J. 154,
165 (1985) (quoting Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972)).
Because the grand jury made an independent finding of probable cause, any error
by the municipal court judge was superseded, and motions by trial counsel or
appellate counsel based on the error would have been fruitless.
We are satisfied on this record that defendant failed to establish a prima
facie claim of ineffective assistance of counsel for trial or appellate counsel.
Given the deference we afford defense counsel's trial strategy under our standard
of review, we cannot say counsel's choice to not argue the municipal court
judge's error was objectively unreasonable. On this record, we find defendant
has not overcome the "strong presumption that [trial] counsel rendered adequate
assistance," and that defendant's trial and appellate counsel "exercise[d]
reasonable professional judgment." Strickland, 466 U.S. at 690.
Affirmed.
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