STATE OF NEW JERSEY v. CARDELL BOYD (13-07-2228, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4461-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARDELL BOYD,
Defendant-Appellant.
_______________________
Submitted June 6, 2022 – Decided July 7, 2022
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Accusation No. 13-07-2228.
Joseph E. Krakora, Public Defender, attorney for
appellant (Marc R. Ruby, Designated Counsel, on the
briefs).
Grace C. MacAulay, Camden County Prosecutor,
attorney for respondent (Jason Magid, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
This matter returns to us after a remand to the Law Division for an
evidentiary hearing on defendant Cardell Boyd's petition for post-conviction
relief (PCR). State v. Boyd, No. A-5372-17 (App. Div. Sept. 17, 2019). On
remand, another PCR judge conducted an evidentiary hearing and denied PCR
in an April 21, 2020 order and written opinion.
On appeal, defendant renews his claims that his plea counsel provided
ineffective representation, specifically arguing:
POINT [I]
THE PCR COURT IMPROPERLY REVERSED THE
BURDEN OF PROOF AT THE EVIDENTIARY
HEARING, AND ALLOWED THE STATE TO OUT-
POSITION MR. BOYD BY PROCEEDING FIRST
AND CALLING [DEFENDANT]'S COUNSEL TO
THE STAND FOR FRIENDLY AND DIRECT
EXAMINATION HOSTILE TO [DEFENDANT]'S
APPLICATION THUS SABATOGING A PETITION
WHICH SHOULD HAVE BEEN GRANTED [1]
POINT [II]
THE PCR COURT COUNTENANCED [PLEA]
COUNSEL'S UTTERLY ABYSMAL
PERFORMANCE BY REACHING OUTSIDE THE
RECORD, AND IMPROPERLY CREDITING
COUNSEL'S PAST PERFORMANCES AND HELD
THE EVIDENTIARY HEARING SCANT MOMENTS
1
We have reorganized defendant's point headings to reflect the order in which
we discuss each issue in our opinion.
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2
AFTER SENTENCING [DEFENDANT] IN AN
UNRELATED MATTER AND BASING THE
DENIAL OF PCR ON OBSERVATIONS MADE OF
[DEFENDANT] FROM OTHER CASES THEREBY
DENYING MR. BOYD A FAIR HEARING AND
INSTEAD PROTECTING [DEFENDANT]'S
UNRELATED CONVICTION AND SENTENCE
JUST METED OUT BY THE PCR COURT
Having considered the record developed at the evidentiary hearing, we disagree
with all of defendant's arguments and affirm.
I.
We incorporate by reference the facts and procedural history set forth at
length in our initial PCR opinion. See State v. Boyd, No. A-5372-17 (App. Div.
Sept. 17, 2019) (slip op. at 2-8). We summarize certain of those facts, to provide
context for the present appeal.
After defendant pled guilty to an Accusation that charged him with third-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), the court
sentenced him in accordance with the plea agreement to a 270-day period of jail
time, required compliance with the registration requirements of Megan's Law,
N.J.S.A. 2C:7-1 to -23, and subjected him to Parole Supervision for Life (PSL).2
2
Defendant also pled guilty to a separate Accusation charging him with third-
degree possession of a controlled dangerous substance within 1000 feet of a
school, N.J.S.A. 2C:35-7, and received a concurrent 270-day custodial sentence
for that offense.
A-4461-19
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Prior to entering his plea, defendant signed a plea agreement containi ng a
supplement that addressed PSL. By circling "yes" next to each of the PSL-
related questions, defendant confirmed that he knew PSL was "in addition to
any other sentence," "that upon release from incarceration [he would] be
supervised by the Division of Parole for at least [fifteen] years and [would] be
subject to provisions and conditions of parole" that may prevent him from living
"in a home with minor children," that if he violated PSL he could be
incarcerated, and that he could be convicted for any violation of PSL, which
could result in an additional sentence being imposed for "up to [eighteen]
months."
At his plea hearing, defendant provided a factual basis for the endangering
charge by admitting he had "sexual intercourse with [a] child" he knew was
fourteen years old when he was twenty years old. Further, in colloquy with his
plea counsel, defendant confirmed that he "had an opportunity to review the
[p]lea [f]orms" and "initialed each page and signed the last pages of each
section." The plea judge then reviewed the terms of the plea agreement with
defendant. The judge stated, among other things, "[y]ou'd have to serve [PSL]"
and confirmed that defendant would be placed on PSL "immediately" after
sentencing.
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4
The judge also confirmed that defendant read the plea agreement, that it
reflected his plea "deal," and that its terms were "written accurately and
completely in the plea papers that [defendant] and [his] [a]ttorney filled out."
In response to the judge's questioning, defendant acknowledged that he read
"through those questions very carefully and check[ed] all the answers." The
judge also confirmed with defendant that "after [his] [a]ttorney went over
everything with" defendant, he understood and signed the agreement. Defendant
confirmed, and also stated that he was satisfied with his lawyer's services.
At sentencing, PSL was initially mentioned by the prosecutor who
clarified that defendant could not be sentenced to probation because he was
being placed on PSL. The only other reference to PSL was when the sentencing
judge stated defendant was "subject to [PSL]" as part of his sentence.
Defendant did not appeal his conviction or sentence. In July 2016,
however, he filed his first petition for PCR. In that petition, defendant argued
that "the terms of PSL were not explained to [him]" and he "was not aware that
programs such as Drug Court would be unavailable." Defendant later filed a
brief and amended petition in which he expanded upon his earlier argument that
his plea counsel failed to "adequately" explain PSL to him. He contended he
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was entitled to an evidentiary hearing and that his petition was not procedurally
barred.
In his amended petition, defendant also asserted that he was diagnosed
with a learning disability and attended special education classes while in school.
He certified that he had been diagnosed with various mental health disorders,
including depressive and anxiety disorders, post-traumatic stress disorder, and
antisocial personality disorder. He also verified that his plea counsel "advised
[him] that [he] had not paid her sufficient money for her to proceed to trial or to
conduct any investigations in [the] matter." She also allegedly advised him to
either accept the plea or proceed to trial with representation from the Public
Defender's Office.
After considering the parties' contentions, the PCR judge denied
defendant's petition and issued a nineteen-page written decision detailing the
bases for his decision. In addressing the first prong of the two-part test for PCR
articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), 3 the PCR
judge rejected defendant's claim that he was not advised of PSL.
3
To establish ineffective assistance of counsel, a convicted defendant must
demonstrate that: 1) counsel's performance was deficient, and 2) the deficient
performance actually prejudiced the accused's defense. Strickland, 466 U.S. at
687. The Strickland test has been adopted in New Jersey. See State v. Fritz,
N.J. 42, 58 (1987).
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Specifically, the PCR judge concluded defendant "was informed that PSL
was a condition of his plea" because "the record evidences that [it] was discussed
with defendant when he signed his plea form." In reaching that conclusion, the
judge relied upon defendant's circling the answers to the questions about PSL
on the plea form, his plea counsel's statement that she reviewed the plea form
and defendant initialed and signed it, the plea judge having told defendant he
would have "to serve [PSL]," and the fact that defendant confirmed the plea
form was accurate and that he read it and understood its contents. The PCR
judge also cited a reference to PSL that was made during sentencing, and stated
that although "every minutia of [PSL] was not explained by the [plea] judge . . .
[he was] satisfied the [plea] judge engaged in sufficient inquiry to ensure that
defendant read and understood the terms of his plea and adequately discussed it
with his attorney."
The judge also found that defendant failed to meet the second prong of
Strickland, which required defendant to demonstrate there was reasonable
probability that but for counsel's deficient performance, the outcome of the
proceedings would have been different. He noted that defendant failed to offer
any facts that established he suffered "legal prejudice" by accepting the plea. In
addition, the PCR judge found the record showed that defendant entered into the
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plea agreement "knowingly, intelligently, and voluntarily," and testified that he
was satisfied with counsel's representation. He therefore concluded that
defendant failed to establish a prima facie case of ineffective assistance of
counsel based on his allegations about PSL.
The judge also rejected defendant's claim that his counsel failed to
investigate his mental health. The judge observed that defendant did not
provide any documentation pertaining to his alleged mental health issues or
learning disability. He noted the evaluations contained in the record from Adult
Diagnostic and Treatment Center at Avenel did not indicate that defendant
suffered from any mental disorders or a diminished capacity that would impact
his ability to understand the proceedings.
Applying our de novo standard of review, we concluded "the PCR judge
incorrectly decided defendant's petition without conducting an evidentiary
hearing because there were no facts in the record establishing that plea counsel
ever discussed PSL with defendant and that neither the plea judge's nor the
sentencing judge's comments about PSL provide any information about the
consequences of PSL." Boyd, slip op. at 10. We explained that because
defendant established a prima facie claim of ineffective assistance of counsel,
he was entitled to an evidentiary hearing on the issue of whether he was
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adequately informed by counsel about the consequences of PSL, and if he was
not, whether he would not have accepted the plea offer if he had been properly
advised.
We reached a different conclusion with respect to defendant's contentions
about counsel's failure to investigate his alleged cognitive impairments. We
specifically rejected those claims and concluded they lacked sufficient merit to
warrant discussion in a written opinion, R. 2:11-3(e)(2). We affirmed
substantially for the reasons detailed by the PCR judge in his written decision
and specifically commented that "there was nothing in the record to support
defendant's claim as to this contention." Boyd, slip op. at 14.
On remand, a different PCR judge scheduled an evidentiary hearing where
both defendant and his plea counsel testified. The judge commenced the hearing
by stating to the prosecutor "I think you go first, who is your first witness ?"
Both defendant's counsel and the prosecutor requested an off-the-record sidebar,
which the judge granted, and the State proceeded with direct examination of
defendant's plea counsel.
Defendant's plea counsel testified that she recalled representing defendant
in 2012 and 2013, when she transitioned from the Public Defender's Office to
private practice. She testified that defendant was a "very active participant in
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negotiation," and "desperately" wanted to get out of jail. She also stated that
she discussed the plea with defendant, and although she could not recall
specifics of her discussions, she stated that it was her "standard practice" to
review plea forms with her clients and read each question with them. Further,
she testified that defendant asked several questions about his plea, specifically
with respect to PSL and Megan's Law. She stated that she answered these
questions and she recalled defendant being "very happy" with the plea outcome.
Defendant disputed that his plea counsel informed him of the PSL
obligations attendant to his plea. He testified that at the time he pled guilty, he
did not understand the implications of PSL, and that he only understood that he
would have to participate in the County Supplemental Labor Service Program
and register once a year for Megan's Law, N.J.S.A. 2C:7-1 to -23. He further
stated that he did not recall the court or the prosecutor discussing the
requirements of PSL at the plea hearing. He also testified that he did not recall
going over each question on the plea form with counsel. Defendant further
stated that he only met with counsel twice for brief periods, to which he
attributed his family's inability to pay counsel's full fee.
At the conclusion of the hearing the judge placed the following comments
on the record:
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I just want you to know that I've had, neither of you
were here, but I've had observations of him over the last
four or five months, in regards to what we sentenced
here today. In fairness, I have to -- I mean I'm going to
say objectively what I've observed related to this
matter, because in fairness to him, I just think I have to
do it.
I know that doesn't give you any indication of what it is
or what I'm doing with it, but I don't want you to be
surprised by it when you know, specifically he's, on the
plea, my recollection is when he was here with his
mother, we spent a few hours in regards to the pretrial
where I think he was subject to, and I got the file here,
went through the pretrial -- and maybe we didn't
execute the pretrial, but certainly we were going
through it where he was subject to, I think he was
sentenced to a life sentence in the even[t] he went to
trial and lost.
And he, I shouldn't say, I think it was [twenty-five]
years, it was [twenty] years he was exposed to, for a
relatively minor offer. And he, I think he
comprehended it, but my recollection of watching him
was that his anger or maybe somewhat his
misunderstanding was, that he, I said this, sir, you can
be done with your sentence now and go forward from
there, he understood, he still wanted to contest it. And
it was in relation to I think he made admission to some
aggressive combing of young girl's hair.
And when, after he rejected the plea, his mother was
here. And stood him up and basically pushed him back
before, and he remembered the plea from there. I may
reference that in my decision. I don't know that it
changes my decision. But I don't want either of you to
be blind sided by me just referencing, because I, for me
not to do it I think would be somewhat of a[n] ostrich
A-4461-19
11
not to say, I know something about him from there, in
just treating objectively. It's going to be an objective
recitation of what I saw.
I don't think it affects my decision, but I'm going to put
it in there because I want, if there's another court that
looks at it, I want them to know that I had familiarity
with it. And I looked at [the first PCR judge's] opinion,
and I have familiarity with him. I sentenced him this
morning. So I have some background on him that I may
put in my order. I don't want you to be shocked by that,
okay?
[emphasis added.]
In his supplemental April 21, 2020 written opinion, the PCR judge
rejected defendant's application and concluded that defendant had met neither
the performance nor prejudice prong of the Strickland test, and rejected his
argument that he did not understand the implications of PSL when he signed his
plea offer. After assessing the testimony presented at the evidentiary hearing,
the judge made various factual findings. First, the judge found defendant's plea
counsel to be credible, and emphasized her description of defendant as a "very
active participant in his defense, specifically in negotiation of the sentence in
the instant matter." The judge was also satisfied that the fact that plea counsel
had not been paid fully by defendant or his family did not influence the quality
of counsel's representation.
A-4461-19
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The PCR judge next noted that it had observed defendant previously, as
"he ha[d] appeared before th[e] court on several occasions," and found
defendant's behavior was "similar" to his conduct in those previous matters. The
judge also stated that while it was "not addressing [defendant]'s cognitive issues
. . . , but [it nevertheless] express[ed] [its] observations." 4 The judge then
described the same incident he referenced orally at the evidentiary hearing, when
defendant's mother "pushed him back to the negotiating table to take the plea."
The PCR judge further stated "defendant may not like or have fully
grasped the severity of [PSL] conditions when he accepted PSL as a condition
of his plea agreement," but it found defendant to be "an engaged person," who,
were he to plead to a crime, "would certainly understand the conditions of the
plea." The judge found that counsel's performance fell within the "reasonable
range of professional assistance." The judge specifically found that plea counsel
"understood [the] sentence and explained to the defendant the significance of
4
The judge incorrectly noted that we remanded the matter in part "because of
[d]efendant's assertion that [plea counsel] failed to investigate his cognitive
issues prior to the plea." As noted, however, we limited our remand for the court
to conduct an evidentiary hearing on the issue of whether he was adequately
informed about the consequences of PSL, see Boyd, slip op. at 14, and
specifically determined his claims regarding counsel's failure to investigate his
diminished mental capacity were of insufficient merit to warrant discussion in a
written opinion.
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the sentence to the best of her ability," and that her actions had not prejudiced
defendant. The judge noted that he based this conclusion upon plea counsel's
testimony, as well as his "observations of her the numerous times she has
appeared before th[e] [c]ourt." This appeal followed.
II.
Defendant argues the PCR judge improperly allowed the State to "out-
position" defendant when he began the hearing with the State's direct
examination of plea counsel. Defendant maintains that this order of the
proceeding "improperly reversed the burden of proof at the evidentiary hearing,"
by depriving defendant of the opportunity to first "hostilely grill his attorney
with leading questions" before the State was able to question her. (Emphasis in
original). We conclude these arguments are without sufficient merit to warrant
discussion in a written opinion, R. 2:1 l-3(e)(2), and offer the following brief
comments.
We first note that defendant did not object to the order of questioning at
the hearing, and on that basis alone, we need not consider this argument. See
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We nevertheless have
reviewed the transcript of the remanded proceedings and are fully satisfied that
the order in which plea counsel testified was inconsequential, as defendant had
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a full and fair opportunity to cross examine, and re-cross examine, plea counsel,
and did so comprehensively and zealously. Specifically, defendant's PCR
counsel challenged plea counsel regarding her review of the "special conditions"
that accompany PSL with defendant, as well as her specific recollection of
whether she reviewed each question on the plea form with him. Simply put, we
are not convinced that any sequencing irregularity related to the questioning of
plea counsel affected the outcome of the remanded proceedings or prejudiced
defendant in any way.
III.
Defendant further argues the court improperly based its decision on its
observations of plea counsel's past performance and defendant's behavior in
previous matters before the court, rather than the evidence adduced at the
evidentiary hearing. He also contends the PCR judge should have recused
himself as he sentenced defendant in an unrelated matter the morning of the
evidentiary hearing.
As to his first argument, defendant maintains the PCR judge's comments
on plea counsel's past performance and defendant's past behavior "reflect[ed] a
commitment" to the outcome. He claims the judge "covered for" counsel's
representation by invoking past instances of success, and that any observations
A-4461-19
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of defendant in past proceedings should have been disregarded because
defendant was not a testifying witness whose credibility was at issue. We
disagree with these arguments, as we are satisfied that the judge correctly denied
defendant's claims of ineffective assistance of counsel and made sufficient
factual findings based on the evidentiary hearing which are amply supported by
the record.
The Sixth Amendment guarantees to persons accused of crimes the right
to effective assistance of legal counsel in their defense. Strickland, 466 U.S. at
687. "Judicial scrutiny of counsel's performance must be highly deferential ,"
and there is a strong presumption that counsel "rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment." Id. at 687, 690.
As noted, to establish a claim that counsel was ineffective, a convicted
defendant must satisfy the two-part test enunciated in Strickland: first, that
counsel's performance was deficient; second, that the deficient performance
actually prejudiced the accused's defense. Id. at 687-88; see also Fritz, 105 N.J.
at 58 (adopting the Strickland standard in New Jersey). To set aside a guilty
plea based on ineffective assistance of counsel, a defendant must show "there is
a reasonable probability that, but for counsel's errors, [defendant] would not
A-4461-19
16
have pled guilty and would have insisted on going to trial." State v. DiFrisco,
137 N.J. 434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In
other words, a defendant "must convince the court that a decision to reject the
plea bargain would have been rational under the circumstances." State v.
O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla v.
Kentucky, 559 U.S. 356, 372 (2010)).
It is well-settled that a guilty plea must be entered into knowingly,
intelligently, and voluntarily. State v. Johnson, 182 N.J. 232, 236 (2005).
Before executing a plea, "the defendant must understand the nature of the charge
and the consequences of the plea" including "consequences that are 'direct' or
'penal.'" Ibid. (quoting State v. Howard, 110 N.J. 113, 122 (1988)); see also R.
3:9-2 (requiring the defendant to complete and sign the appropriate plea forms
before accepting a guilty plea). The consequences of PSL are penal in nature
and as such, a defendant must be properly informed of them. See N.J.S.A.
2C:43-6.4(b); State v. Perez, 220 N.J. 423, 441 (2015).
As we noted in our unpublished decision, "a defendant may not fully
understand 'the parameters of [a] plea' if neither the court nor counsel explains
the ramifications of PSL." Boyd, slip op. at 12 (quoting State v. J.J., 397 N.J.
Super. 91, 99-100 (App. Div. 2007)). Accordingly, "[w]hereas the court need
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not explain every possible consequence of a plea, it cannot simply utter a label
such as '[PSL] requirements.' Such a disclosure does not ensure that defendant
fully understands the parameters of his plea." J.J., 397 N.J. Super. at 99.
The obligation to ensure that counsel has discussed PSL with a defendant
before he enters a plea, and defendant understands its consequences, is not
satisfied by "solely rely[ing] on a written plea form when taking a plea." State
v. Williams, 342 N.J. Super. 83, 91 (App. Div. 2001) (citing State v. Kovack,
91 N.J. 476,484 n.1 (1982)). An attorney's role in assisting the defendan t to
understand conditions of the plea requires thorough review of each question on
the plea form. See State v. Antuna, 446 N.J. Super. 595, 601 (App. Div. 2016)
(concluding an attorney's failure to review a question on the plea form
addressing immigration consequences amounted to deficient performance).
Guided by these principles, we are satisfied that the PCR judge on remand
correctly rejected defendant's petition. The judge credited the testimony of plea
counsel, who stated that it was her practice to review the terms of PSL with all
clients and read through each question on the plea forms. Plea counsel's
testimony is fully supported by the documentary evidence. On this score,
defendant circled "yes" in response to five questions relating to PSL and the
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attendant conditions on the supplement to the plea form, "Additional Questions
for Certain Sexual Offenses." One of those questions read:
[B]eing sentenced to parole supervision for life means
that upon release from incarceration or immediately
upon imposition of a suspended sentence you will be
supervised by the Division of Parole for at least
[fifteen] years and will be subject to provisions and
conditions of parole, including conditions appropriate
to protect the public and foster rehabilitation, such as,
but not limited to, counseling, Internet access or use,
and other restrictions which may include restrictions on
where you can live, work, travel or persons you can
contact[.]
As noted, the remaining questions explained that PSL conditions "could include
restrictions on residing in a home with minor children," and that any violation
of PSL could result in a prison term of twelve to eighteen months.
Plea counsel further testified that although (understandably) she could not
recall specifics of her conversations with defendant from 2013, "under the
circumstances with [defendant's] charges," she would have informed him of the
implications of PSL. She also noted that the judge reminded defendant that he
was being placed on PSL at his plea hearing. At the conclusion of the
evidentiary hearing, the judge clearly credited plea counsel's testimony over
defendant's self-serving statements that he was never told about PSL until his
sentencing hearing, and there was ample support in the record for that finding.
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Although the judge made brief comments with respect to counsel's past
performance, it is clear he impartially evaluated defendant's claims. While we
note it would have been better practice to avoid such observations, the judge's
critical findings were based upon counsel's practice and procedure testimony, as
well as the documentary evidence supporting the finding that defendant
understood the implications of PSL prior to accepting the plea offer. Further,
we understand the judge's comments regarding defendant's past behavior as an
attempt to be transparent. The issue of defendant's cognitive deficiencies was
outside the scope of our limited remand in any event.
Defendant does not address, let alone criticize, the judge's conclusion on
the prejudice prong of Strickland. This omission alone is sufficient for us to
reject the claims. See Green Knight Cap., LLC v. Calderon, 469 N.J. Super. 390(App. Div. 2021) (stating that issues not briefed on appeal are deemed waived).
We are again satisfied, however, that the record supports the judge's finding that
counsel's performance, assuming it was deficient (which we do not conclude),
did not prejudice defendant.
At his plea hearing, defendant admitted to having vaginal intercourse and
engaging in sexual conduct with a fourteen-year-old girl, and he has offered
nothing to suggest that this factual basis was incorrect or false. Defendant pled
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guilty to third-degree endangering the welfare of a child after waiving his right
to indictment by a grand jury. That charge itself carried a maximum prison term
of five years. Without the benefit of the plea, defendant faced the possibility
that the third-degree charge would be increased to a second-degree endangering
offense, which carried a maximum term of ten years' imprisonment, as well as
mandatory PSL. It is clear to us that any decision to reject the plea agreement,
for which defendant served only 270 days in jail, and which included a
concurrent term for his CDS charge, would not have been "rational under the
circumstances." O'Donnell, 435 N.J. Super. at 37.
We also reject defendant's argument that the PCR judge was obligated to
recuse himself because he sentenced defendant on an unrelated matter before
conducting the PCR evidentiary hearing later that same day. By allowing the
judge to preside over both proceedings, defendant claims he was prejudiced, and
the result of the evidentiary hearing was consequently "disastrous."
Where a PCR judge "seems committed to the outcome," we have held that
a matter should be assigned to another judge on remand. State v. Thompson,
405 N.J. Super. 163, 172 (App. Div. 2009) (citing R. 1:12-1(d)). Our Supreme
Court has cautioned, however, "that [a]bsent a showing of bias or prejudice, the
participation of a judge in previous proceedings in the case before him is not a
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ground for disqualification." State v. Walker, 33 N.J. 580, 591-92 (1960).
Where there can be "no showing that the trial judge had any personal or private
interest apart from the fulfillment of his judicial duties," a judge need not recuse
his or herself. State v. Salentre, 275 N.J. Super. 410, 421 (App. Div. 1994).
We first note that defendant did not file an application before the PCR
court seeking the PCR judge's recusal, and we could reject his argument on that
basis alone. See State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006).
We briefly address it, however, and conclude there is no evidence in the record
to suggest the judge had "any personal or private interest" in the outcome. See
Salentre, 275 N.J. Super. at 421. We are satisfied that the PCR judge's decision
was based upon the facts adduced at the evidentiary hearing, in which the judge
credited plea counsel's testimony over defendant's, as informed by defendant's
plea forms, and the plea and sentencing transcripts.
To the extent we have not specifically addressed any of defendant's
arguments, it is because we have concluded any such contention was of
insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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