                                NOT FOR PUBLICATION WITHOUT THE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-3286-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHARLES SHEPPARD, a/k/a
CHARLES COWARD,

     Defendant-Appellant.
_____________________________

                    Submitted January 15, 2020 – Decided January 31, 2020

                    Before Judges Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 14-08-2323.

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

                    Jill S. Mayer, Acting Camden County Prosecutor,
                    attorney for respondent (Linda Anne Shashoua, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Charles Sheppard appeals from a December 14, 2018 order

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

hearing. We affirm.

      In 2013, defendant confessed to the murder of Rhonda Scott during an

interview with members of the Camden County Prosecutor's Office homicide

unit, who were investigating Scott's death. In 2016, prior to pleading guilty to

the murder, defendant filed a motion to suppress his confession. The trial judge

conducted a hearing and reviewed evidence, including defendant's videotaped

confession. The judge denied the motion and ruled his confession was voluntary

and admissible.

      Relevant to the issues raised in this appeal, she concluded "[d]efendant

was coherent. He was calm. He was speaking clearly. His answers were

intelligent. They were responsive." Afterwards, defendant pled guilty to first-

degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and admitted he stabbed Scott

numerous times with a knife, knowing it would kill her. Defendant received a

thirty-year sentence with thirty years of parole ineligibility. We affirmed his

sentence on appeal.

      In 2018, defendant filed his PCR petition. Among other grounds, he

alleged his plea counsel was ineffective for failing to have an expert evaluate


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                                       2
him to determine if he was mentally competent or suffered from diminished

capacity. Defendant argued his plea counsel knew defendant had a "difficult

childhood," "took medicine for his anger," and suffered from "black outs."

      The PCR judge denied defendant's petition. Regarding the mental health,

competency, and alleged diminished capacity, the judge concluded as follows:

                   Other than the isolated point raised by counsel
            here, there's nothing else in the record to implicate the
            defendant's mental health, certainly nothing to indicate
            an actual mental-health diagnosis that would trigger an
            obligation of trial counsel to . . . request a competency
            evaluation.

                  Also, . . . in the PCR record, there's nothing to
            indicate here from any profession[al] . . . how . . . any
            potential mental[]health issue could have affected the
            defendant's ability to assist his defense or could have
            constituted a defense to the crimes to which he pled
            guilty and was sentenced.

                   We have the defendant's statement that his
            counsel failed to order a psychological evaluation . . .
            or psychiatric evaluation, but the [c]ourt concluded that
            . . . none of that is enough to establish a prima facie
            case that trial counsel was objectively deficient in not
            ordering a competency evaluation or a mental[]health
            evaluation.

      Defendant raises the following point on this appeal:

            THE PCR COURT ERRED IN FAILING TO HOLD
            AN EVIDENTIARY HEARING ON [DEFENDANT'S]
            CLAIM THAT PLEA COUNSEL PROVIDED HIM
            WITH INEFFECTIVE ASSISTANCE OF COUNSEL

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                                       3
              BY FAILING TO HAVE HIM EVALUATED BY A
              MENTAL HEALTH PROFESSIONAL.

         The Sixth Amendment of the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610

(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)); see also

State v. Fritz, 105 N.J. 42, 58 (1987). To succeed on a claim of ineffective

assistance of counsel, the defendant must meet the two-part test established by

Strickland, 466 U.S. at 687, and our Supreme Court adopted in Fritz, 105 N.J.

at 58.

         Under Strickland, a defendant first must show that his or her attorney

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. Counsel's performance is deficient if it falls "below an objective standard

of reasonableness." Id. at 688.

         A defendant also must show that counsel's "deficient performance

prejudiced the defense." Id. at 687. He must establish "there is a reasonable

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

proceeding would have been different." Id. at 694. "A reasonable probability



                                                                        A-3286-18T4
                                        4
is a probability sufficient to undermine confidence in the outcome" of the

proceeding. Ibid.

      We review a PCR court's decision to proceed without an evidentiary

hearing for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401

(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)). A

defendant is entitled to an evidentiary hearing on a PCR petition if he or she

presents a prima facie case in support of PCR, the court determines there are

material issues of fact that cannot be resolved based on the existing record, and

the court finds that an evidentiary hearing is required to resolve the claims

presented. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354 (2013)

(citing R. 3:22-10(b)). The court must "view the facts in the light most favorable

to a defendant." State v. Preciose, 129 N.J. 451, 462-63 (1992). A defendant

"must do more than make bald assertions," and must instead "allege facts

sufficient to demonstrate counsel's alleged substandard performance." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "[V]ague, conclusory,

or speculative" allegations will not suffice. Porter, 216 N.J. at 355 (quoting

Marshall, 148 N.J. at 158).

      We are convinced the PCR judge did not abuse his discretion when he

denied defendant's petition without an evidentiary hearing. As the judge noted,


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                                        5
the record lacks any evidence defendant's competency to stand trial or mental

health were in issue, let alone material facts in dispute, necessitating a hearing.

The record reflects that from his confession, to his plea and sentencing,

defendant answered questions cogently and was satisfied with his counsel's

services.

      Finally, defendant was twenty-seven years old at sentencing. He faced

life in prison but received a much lower sentence. Aside from the bald assertion

raised on this appeal, he failed to demonstrate his counsel's performance was

deficient.

      Affirmed.




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