STATE OF NEW JERSEY v. BYRON SOLOMON

NOT FOR PUBLICATION WITHOUT THE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-5311-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BYRON SOLOMON, a/k/a
BRYON SOLOMON,

     Defendant-Appellant.
__________________________

                   Submitted March 21, 2022 – Decided March 30, 2022

                   Before Judges Sumners and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 16-04-1282.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Abby P. Schwartz, Designated Counsel, on
                   the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Byron Solomon appeals from a February 26, 2019 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing based upon ineffective assistance of counsel. In essence, defendant

alleged his attorney failed to: fully investigate his case; declined to file a motion

to dismiss the indictment; declined to file a motion to sever defendant's trial

from co-defendant's trial; pressured him into pleading guilty by threatening him

with a long prison sentence; refused to represent him at trial even though he is

innocent; failed to raise hardship as a mitigating factor; and failed to inform the

sentencing court of his accomplishments as a high school athlete.

      Judge Ronald D. Wigler entered the order and rendered a twenty-page

written decision. On appeal, defendant raises the following sole point for our

consideration:

             THE TRIAL JUDGE'S BEHAVIOR DENIED
             DEFENDANT A FAIR [PCR] HEARING AS THE
             COURT VIOLATED THE CODE OF JUDICIAL
             CONDUCT RESULTING IN THE DENIAL OF
             DEFENDANT'S PETITION. (Not raised below).

We are unpersuaded by defendant's contention and affirm the denial of PCR

substantially for the reasons expressed by Judge Wigler. Based upon our careful

review of the record, we also conclude the judge was not biased and did not




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violate Canons 1 or 2(a) of the Code of Judicial Conduct (Code). We add these

remarks.

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

court's standard of review is de novo as to both the factual inferences drawn by

the PCR judge from the record and the judge's legal conclusions. State v. Blake,

 444 N.J. Super. 285, 294 (App. Div. 2016).

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test enumerated in Strickland v.

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

State v. Fritz,  105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,

a defendant must establish his or her "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the
 Sixth Amendment." Strickland,  466 U.S at 687. A defendant must rebut the

"strong presumption that counsel's conduct [fell] within the wide range of

reasonable professional assistance." Id. at 689. Thus, this court must consider

whether counsel's performance fell below an objective standard of

reasonableness. Id. at 687-88.

      To satisfy the second Strickland/Fritz prong, a defendant must show "that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial


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whose result is reliable." Id. at 687. A defendant must establish "a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 689. "[I]f counsel's

performance has been so deficient as to create a reasonable probability that these

deficiencies materially contributed to defendant's conviction, the constitutional

right will have been violated." Fritz,  105 N.J. at 58.

      A defendant is only entitled to an evidentiary hearing when he or she "has

presented a prima facie [case] in support of [PCR]," meaning a "defendant must

demonstrate a reasonable likelihood that his or her claim will ultimately succeed

on the merits." State v. Marshall,  148 N.J. 89, 158 (1997) (first alteration in

original) (quoting State v Preciose,  129 N.J. 451, 462 (1992)). A defendant

"must do more than make bald assertions that he [or she] was denied the

effective assistance of counsel" to establish a prima facie claim entitling him or

her to an evidentiary hearing. State v. Cummings,  321 N.J. Super. 154, 170

(App. Div. 1999). A defendant bears the burden of establishing a prima facie

claim. State v. Gaitan,  209 N.J. 339, 350 (2012). We "view the facts in the light

most favorable to a defendant to determine whether a defendant has established

a prima facie claim." Preciose,  129 N.J. at 462-63.


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      Here, by virtue of a negotiated plea agreement between defense counsel

and the State, defendant, then twenty-two years old, pled guilty to first-degree

aggravated manslaughter, contrary to  N.J.S.A. 2C:11-4(a)(1), and second-

degree unlawful possession of a weapon, contrary to  N.J.S.A. 2C:39-5(b), in

exchange for the State recommending a fourteen-year term of imprisonment at

sentencing. The plea allocution was conducted before Judge Wigler on May 9,

2017. The factual basis for defendant's guilty plea established that on September

28, 2015, he, Khiree Smith, and Luis Martinez, Jr., shot and killed Tryon Smith

in Newark, then set his body on fire to conceal the evidence and hinder

apprehension. The record shows defendant owned a .38 caliber handgun without

a permit at the time of the shooting.

      Defendant testified at the plea hearing that he had no "difficulty reading,

writing or understanding English," was not on probation or parole, denied

having any psychological or psychiatric conditions, and was not under the

influence of any substance. In addition, defendant testified no one forced,

threatened, or coerced him to plead guilty; defendant understood he was under

oath and would be penalized for not being truthful; and that he was satisfied

with his attorney's services.




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      On June 27, 2017, Judge Wigler sentenced defendant to a fourteen-year

term of imprisonment subject to the No Early Release Act,  N.J.S.A. 43:7-2, and

five years post-release parole supervision. The judge found aggravating factor

nine applied (the need to deter the defendant and others from violating the law),

 N.J.S.A. 2C:44-1(a)(9), and no mitigating factors applied. Plea counsel asked

the judge to consider a thirteen-year sentence based on defendant's "lack of

record, high school education, work history, supportive family, and his skills[,]

which would make him a productive member of society," which was denied.

Defendant apologized to the victim's family for his actions. No direct appeal

was filed by defendant relative to his convictions or sentence.

      On May 13, 2018, defendant filed a pro se PCR petition claiming

ineffective assistance of counsel. The PCR was assigned to Judge Wigler, who

appointed PCR counsel to represent defendant. On February 22, 2019, Judge

Wigler conducted a PCR hearing. At the hearing, defendant insinuated the State

was disingenuous for asserting that he received a "free, fair plea deal" and "there

was [not] any evidence connecting him to this crime." During the hearing, the

judge acknowledged plea counsel is an effective attorney with an abundance of

experience and knowledge in the area of criminal law. The judge concluded

plea counsel's representation of defendant was not ineffective. In addition, the


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judge recounted his colloquy with defendant at the plea allocution in response

to his assertion that plea counsel coerced him to accept the plea against his will.

      Defendant also now claimed to be lying for the past five years under oath

relative to the testimony he gave at the plea allocution, and "he was pressured

to plead guilty despite what was placed on the record." Defendant "felt he had

no choice" because his counsel "didn't care about his best interests." The judge

ultimately denied defendant's PCR petition, without an evidentiary hearing, and

entered a memorializing order on February 26, 2019.

      In a comprehensive eighteen-page opinion accompanying the order, Judge

Wigler explained the relevant legal standard to review an ineffective assistance

counsel claim as basis for PCR; thoroughly analyzed each of defendant's claims

under the Strickland/Fritz prongs; determined the petition was procedurally

barred under Rule 3:22-4; and concluded defendant failed to establish a prima

facie claim to warrant an evidentiary hearing. The judge highlighted plea

counsel warned defendant about the risk of life imprisonment if convicted; made

a strategic decision not be file certain motions, which may have led to defendant

receiving a less favorable plea offer; defendant would not face any more

hardship than any other prisoner; and his sports career would not have factored

into the sentencing guidelines.


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      For the first time on appeal, defendant argues that Judge Wigler

demonstrated a "clear bias in favor of defense counsel" during the PCR hearing,

tainting the entire proceeding. By acting as "a virtual cheerleader for defense

counsel," defendant claims the judge's behavior was unethical and violated

Cannons 1 and 2 of the Code. Defendant asserts that based on the judge's "clear

bias," "his subsequent opinion cannot be held to be reliable and free of

partiality." Defendant requests the order denying PCR should be reversed and

the matter be remanded for an evidentiary hearing.

      Because defendant did not raise this issue below, "the scope of review on

appeal is narrow." State v. Walker,  385 N.J. Super. 388, 410 (App. Div. 2006).

We generally "decline to consider questions or issues not properly presented to

the trial court when an opportunity for such a presentation is available unless

the matter involves the trial court's jurisdiction or is of public importance."

Alloway v. Gen. Marine Indus., L.P.,  149 N.J. 620, 643 (1997) (internal

quotation marks omitted) (quoting Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229,

234 (1973)); see also Walker,  385 N.J. Super. at 410 ("An issue not raised below

may be considered by the court if it . . . [is] of special significance to the litigant,

to the public, or to achieving substantial justice, and the record is suf ficiently




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complete to permit its adjudication."). Nonetheless, we will address the merits

of defendant's argument.

      Defendant claims the judge's behavior violated Canons 1 and 2 of the

Code. Canon 1 states: "An independent and impartial judiciary is indispensable

to justice. A judge therefore shall uphold and should promote the independence,

integrity and impartiality of the judiciary." Code of Judicial Conduct Canon 1.

Canon 2 states:    "A judge shall avoid impropriety and the appearance of

impropriety." Code of Judicial Conduct Canon 2. "The overarching objective

of the [Code] 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). 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," the court's

concern with how facts are perceived by the public equal the concern with actual

cases of partiality. Id. at 75-76 (quoting State v. Deutsch,  34 N.J. 190, 206

(1961)); see Code of Judicial Conduct R. 2.1 ("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


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impropriety."). Therefore, a party claiming judicial bias need not show actual

prejudice, "the mere appearance of bias may require disqualification." Panitch

v. Panitch,  339 N.J. Super. 63, 67 (App. Div. 2001) (quoting Marshall,  148 N.J.

at 279).

      "However, before [a judge] 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).          The standard for determining

whether that belief is objectively reasonable asks: "Would a reasonable, fully

informed person have doubts about the judge's impartiality?" State v. McCabe,

 201 N.J. 34, 44 (2010) (quoting DeNike v. Cupo,  196 N.J. 502, 517 (2008)).

This "standard calls for an individualized consideration of the facts in a given

case." State v. Dalal,  221 N.J. 601, 606-07 (2015) (noting there is no bright-

line rule for determining whether a judge acted partially).

      In the matter under review, defendant contends the judge's allegedly

improper comments praising plea counsel during the PCR hearing warrants

reversal. Defendant asserts the "judge was so presumptuous that he spoke as if

he was counsel to defendant and dismissed all of defendant's concerns and

complaints of ineffective assistance of counsel."


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      Defendant also points to Judge Wigler's statements that highlighted plea

counsel's experience and knowledge as criminal defense attorney in homicide

cases as to why counsel did not file certain motions on behalf of defendant, not

arguing mitigating factor eleven at sentencing, 1 and recommending defendant

accept the plea deal. And, defendant takes issue with the judge acknowledging

counsel negotiated a fourteen-year plea deal in lieu of a potential thirty years to

life prison sentence for defendant.         We are unpersuaded by defendant's

arguments.

      Excessive or inappropriate comments by a judge, including comments

contrary to the Code, "do not, by themselves, necessarily equate to bias."

Panitch,  339 N.J. Super. at 68. Opinions a judge forms from the events of the

proceeding "do not constitute a basis for a bias or partiality . . . unless they

display a deep-seated favoritism or antagonism that would make fair judgment

impossible." Presley,  436 N.J. Super. at 453 n.9 (quoting Liteky v. United

States,  510 U.S. 540, 555 (1994)); see, e.g., State v. Leverette,  64 N.J. 569, 571

(1974) (holding trial judge's outward displeasure with defense counsel who

failed to appear for five successive calendar calls did not require



1
  Imprisonment "would entail excessive hardship to the defendant or" his or her
dependents.  N.J.S.A. 2C:44-1(b)(11).
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disqualification); State v. J.J.,  397 N.J. Super. 91, 103 (App. Div. 2007) (holding

"although the trial judge's comments were sometimes stern, they do not reveal

bias or prejudice").

      "To review a [PCR] judge's alleged prejudicial actions, the appellate court

should consider the entire record." J.J.,  391 N.J. Super. at 102-03. Here, the

record shows Judge Wigler described plea counsel as "a very, very experienced

criminal defense attorney" and "very knowledgeable." The judge went on to

mention plea counsel "fought extremely hard" for defendant to get him a

fourteen-year sentence instead of something much higher. The judge elaborated:

                   He had to negotiate very, very hard with the
            [p]rosecutor. The [p]rosecutor was not easily willing
            to just roll over and say, okay, you can have ultimately
            [fourteen] years. That was a lot of back and forth
            between [plea counsel], who probably wisely spent
            much of his time trying to go over the evidence and get
            the [p]rosecutor to get the best deal possible for
            [defendant], instead of perhaps wasting his time filing
            motions that [defendant] might have liked him to do,
            but really wouldn't go anywhere. His time was
            probably better spent working on [defendant's] behalf
            to try to get [him] the best deal possible.

                  And that's the kind of attorney [plea counsel] is,
            having had many cases before this [c]ourt and in this
            building, he's been around a long time, and he knows
            what he's doing.




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                  So as far as, that's sort of is where things are at
            with him not filing those two motions that would have
            been, in this [c]ourt's estimation, not productive.

      Judge Wigler's comments about plea counsel did not reveal a high degree

of favoritism to support defendant's bias challenge. See Liteky,  510 U.S.  at 555.

We are satisfied the judge's remarks do not provide "an 'objectively reasonable'

belief that the proceedings were unfair." DeNike,  196 N.J. at 517 (quoting

Marshall,  148 N.J. at 279).

      Moreover, defendant merely makes bald assertions on appeal that the

judge improperly ruled against him, citing select excerpts of the transcript

commending plea counsel's strategy. No certifications or affidavits attesting to

the judge's purported bias were submitted with defendant's PCR petition.

Defendant's unsupported argument essentially asks this court to construe his

"adverse decision as prejudice of the judge." Marshall,  148 N.J. at 279 (quoting

Matthews v. Deane,  196 N.J. Super. 441, 447 (Ch. Div. 1984)). However, "[i]t

is well-settled . . . that '[b]ias cannot be inferred from adverse rulings against a

party.'" State v. Harris,  466 N.J. Super. 502, 555 (App. Div. 2021) (third

alteration in original) (quoting Strahan v. Strahan,  402 N.J. Super. 298, 318

(App. Div. 2008)).




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     Without evidence in the record evidencing partiality and impropriety, we

have no basis to conclude Judge Wigler was biased towards defendant in favor

of plea counsel. Having presided over the case—from the plea allocution, to

sentencing, to PCR—the judge could opine regarding plea counsel's decisions

because his comments did not "display a deep-seated favoritism" for counsel.

Presley,  436 N.J. Super. at 453 n.9 (quoting Liteky,  510 U.S. at 555). We

perceive no error in the denial of defendant's PCR petition or bias by Judge

Wigler.

     Affirmed.




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