                        NOT FOR PUBLICATION WITHOUT THE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-0311-16T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KATHLEEN M. DORSETT,

     Defendant-Appellant.
_________________________________________

              Submitted April 24, 2018 – Decided June 7, 2018

              Before Judges Yannotti and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              11-01-0207.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Gilbert G. Miller, Designated
              Counsel, on the brief).

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Mary R.
              Juliano, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Kathleen M. Dorsett appeals from an order entered

by the Law Division on July 19, 2016, which denied her petition
for post-conviction relief (PCR) and her motion to withdraw her

plea. We affirm.

                               I.

     Defendant, her father Thomas Dorsett (T. Dorsett), her mother

Lesley Dorsett (L. Dorsett), and Anthony Morris (Morris) were

charged with various offenses under Monmouth County Indictment No.

11-01-0207:

          count one: first-degree conspiracy to murder
          Stephen Moore (Moore), N.J.S.A. 2C:5-2 and
          N.J.S.A. 2C:11-3 (defendant and T. Dorsett);

          count two: first-degree murder of Moore,
          N.J.S.A. 2C:11-3 (defendant and T. Dorsett);

          count three: fourth-degree tampering with
          physical   evidence,    N.J.S.A.   2C:28-6(1)
          (defendant, T. Dorsett, and L. Dorsett);

          count four and five: fourth-degree tampering
          with physical evidence, N.J.S.A. 2C:28-6(1)
          (defendant, T. Dorsett, and Morris);

          count six: second-degree conspiracy to commit
          aggravated arson, N.J.S.A. 2C:5-2, N.J.S.A.
          2C:17-1(a)(2) (T. Dorsett and Morris);

          count seven: first-degree arson for hire,
          N.J.S.A. 2C:17-1(d) (T. Dorsett and Morris);

          count eight: second-degree conspiracy to
          desecrate human remains, N.J.S.A. 2C:5-2 and
          N.J.S.A. 2C:22-1(a) (defendant, T. Dorsett,
          and Morris);

          count nine: second-degree desecration of human
          remains, N.J.S.A. 2C:22-1(a) (defendant, T.
          Dorsett, and Morris);


                                2                          A-0311-16T3
            count ten: third-degree tampering with a
            witness or informant, N.J.S.A. 2C:28-5(a) (T.
            Dorsett);

            count eleven: third-degree conspiracy to
            commit financial facilitation of criminal
            activity, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-
            25(e)(3) (defendant, T. Dorsett, and L.
            Dorsett);

            count    twelve:    third-degree    financial
            facilitation of criminal activity, N.J.S.A.
            2C:21-25(e)(3) (defendant, T. Dorsett, and L.
            Dorsett);

            count thirteen: first-degree conspiracy to
            murder [E.M.], N.J.S.A. 2C:5-2 and N.J.S.A.
            2C:11-3 (defendant and L. Dorsett);

            count fourteen: first-degree attempted murder
            of [E.M.], N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-
            3 (defendant and L. Dorsett).1

     On May 9, 2013, defendant pled guilty to counts two (murder),

eight    (conspiracy    to   desecrate   human   remains),   and   fourteen

(attempted murder). The State agreed to recommend a sentence of

thirty    years   of   incarceration,    with    thirty   years   of    parole

ineligibility, on count two; a consecutive term of eight years on

count eight; and a consecutive term of twenty years on count

fourteen, with an eighty-five percent parole bar pursuant to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also

agreed to dismiss the remaining charges.



1
 In this opinion, we use initials to identify certain individuals,
in order to protect their identities.

                                     3                                 A-0311-16T3
      At the plea hearing, defendant testified that she was guilty

of these offenses and was pleading guilty of her own free will.

She stated that no one had forced or threatened her, that her

attorney had explained the charges and plea forms to her and

answered all of her questions, and that she understood the charges

and   was    satisfied    with    counsel's   representation.    She      also

testified that before accepting the plea offer, she had reviewed

the discovery with her attorney and discussed the possible defenses

and the likelihood of conviction, and that those discussions led

her to accept the plea offer.

      The judge reviewed defendant's sentencing exposure on the

charges and the State plea offer. Defendant said she understood

both. She denied that any promises or representations had been

made to get her to plead guilty, and she testified that she wanted

the court to accept the plea as described. The judge explained

that defendant did not have to plead guilty and she was entitled

to a trial in which the State would have to prove each and every

element     of   the   charged   offenses   beyond   a   reasonable    doubt.

Defendant testified that she understood but still wished to plead

guilty.

      Defendant then read the following prepared statement into the

record to establish the factual basis for her plea:



                                      4                               A-0311-16T3
On August 16, 2010, at approximately 7:30
a.m., [Moore] came to my residence . . . for
a scheduled drop-off of our infant daughter.
Approximately [thirty] minutes prior to
[Moore's] arrival he texted me that he was on
his way.

     When he arrived, I told [Moore] to get
his tools in the backyard of the driveway.
After [Moore] was convinced to retrieve his
tools, I took my daughter into my house,
knowing all the time my father [T. Dorsett]
was back there waiting to kill him.

     As I was changing [my daughter's] diaper,
I heard screaming coming from the driveway.
By the time I secured my child and ran outside,
[Moore] was in the driveway, lying in the
driveway.

     I sat down next to him in order to shield
him from view of my next-door neighbor,
[J.C.], who was yelling out her window, asking
me what was wrong. I repeated several times
to [J.C.] that everything was all right, and
that she should shut her window. . . .

     After   my   conversation   with   [J.C.]
concluded, I assisted my father with lifting
[Moore's] body into the trunk of my ex-mother-
in-law's vehicle. My father drove off with the
car. And shortly thereafter he telephoned me
to meet him at [a restaurant] in Long Branch.
I met him there and then followed him to
another location in Long Branch where the
vehicle with [Moore's] dead body in it was
abandoned. I then drove my father home.

     After we arrived at my residence, we
cleaned up the area where [Moore] was killed,
and my father drove away with the cleaned-up
items. . . . I know now that he disposed of
everything   in   the    dumpster   at   [the
restaurant].


                      5                           A-0311-16T3
    The judge questioned defendant to confirm that she had stated

that she went into the backyard "knowing that [her] father was

there waiting to kill him." Defendant responded, "yes" when the

judge asked her if "this [was] something [she] knew was going to

happen, and it was [her] job to get him into the backyard."

    Defendant then continued reading her prepared statement:

         During late December 2010, and early January
         2011, I had numerous conversations with
         [A.A.], an inmate at [the county jail]. In my
         conversations, I discussed with [A.A.] her
         assistance in finding someone to kill my ex-
         mother-in-law, [E.M.]. I wanted my [ex]-
         mother-in-law killed so she could not have
         anything to say about my plea negotiations
         involving [Moore].

         [A.A.] told me she could find someone to kill
         [E.M.] for me. And then I contacted my mother
         [L. Dorsett] via the phone from the jail and
         told her to meet the hit man and give him
         $1,000 as a deposit, and a picture and address
         for [E.M.] for the purpose of having her
         killed. I later learned that the hit man was
         an undercover police officer.

    In   response   to   the   assistant   prosecutor's   questions,

defendant admitted she wrote a letter to her mother instructing

her how to kill E.M. She told her mother she wanted the death to

look "natural" and related to "some type of diabetic issue."

    On May 9, 2013, T. Dorsett pled guilty to counts two (murder)

and seven (arson for hire). On that same day, L. Dorsett pled

guilty to count thirteen (conspiracy to commit murder).


                                 6                           A-0311-16T3
     On August 8, 2013, the court sentenced defendant in accordance

with her plea. The court imposed an aggregate prison term of fifty-

eight     years,     with   a   forty-seven-year     period    of    parole

ineligibility. T. Dorsett was sentenced to an aggregate term of

forty-five years in jail, with a thirty-year parole bar, and L.

Dorsett was sentenced to a seven-year prison term, with an eighty-

five-percent period of parole ineligibility, pursuant to NERA.

     Defendant appealed from the final judgment of conviction and

challenged her sentence. The appeal was heard on our excessive

sentence oral argument calendar. R. 2:9-11. We entered an order

affirming the sentence. State v. Dorsett, No. A-2224-13 (App. Div.

April 7, 2014).

     Thereafter, defendant filed a pro se petition for PCR. She

withdrew her petition, and the court entered an order dismissing

the petition without prejudice. Later, defendant filed a pro se

PCR petition dated June 12, 2015, in which she alleged she did not

receive the effective assistance of trial or appellate counsel.

She also sought to withdraw her guilty plea. Defendant sought an

evidentiary hearing.

     Defendant alleged her trial attorney misled her when advising

her whether to accept the State's plea offer by stating that her

mother would be sentenced to twenty years in jail unless defendant

pleaded    guilty.    Defendant   claimed   her    attorney   "continually

                                     7                              A-0311-16T3
vacillated" between advising her to accept or reject the plea

offer, leaving her "with no clear guidance about her best course

of action."

     Defendant further alleged that as a result of her trial

attorney's    actions,   her     plea     was     obtained   by     fraud,

misrepresentation, and possibly coercion, thereby rendering the

plea unknowing and involuntary. She also alleged her trial attorney

was ineffective because he failed to seek a change of venue, and

that appellate counsel was ineffective because counsel failed to

raise on direct appeal a claim regarding the trial court's decision

to consolidate various counts in the indictment involving her co-

defendants.

     The court appointed PCR counsel for defendant. Defendant's

PCR counsel filed a memorandum of law in support of the petition,

and a certification by defendant, dated May 12, 2016. In her

certification,    defendant    asserted    that    her   trial    attorney

"demanded" that she plead guilty knowing that she had a "fragile

state of mind."

     She claimed her attorney told her she could not win the case,

and a trial could put her mother in jail for the rest of her life.

She also asserted that she "fell into a deep depression" after her

attorney told her that no matter what course she took, her child

would be taken from her "forever." She alleged she felt "powerless,

                                   8                               A-0311-16T3
helpless and eager to end everything" and that knowing this, her

attorney "coerced [her]" to accept the plea offer.

     T. Dorsett provided a certification, dated April 2, 2016. He

asserted that on August 11, 2010, Moore came to the rear of his

daughter's home to drop off his granddaughter. T. Dorsett stated

that he got into an argument with Moore, and accused him of

sexually abusing his granddaughter. They began to fight and Moore

"fell on a pile of metal junk" and he landed on top of him.

     T. Dorsett said Moore hit his head. T. Dorsett claimed he

"panicked and tried to cover-up the results of the fight." He also

said defendant "was not involved in the fight" and he did not

discuss with her that he was going to injure or kill Moore. He

stated that he did not believe defendant was culpable in Moore's

death.

     The PCR judge heard oral argument on July 19, 2016, and placed

a lengthy decision on the record. The judge rejected defendant's

claim that she did not provide an adequate factual basis for her

plea because she did not hold the weapon or strike Moore. The

judge    explained   that   defendant   pled   guilty   to   murder    as    an

accomplice. The judge found that based on the statement defendant

provided at the plea hearing, it was fair to infer that her

purpose, which she shared with her father, was to cause Moore's

death.

                                    9                                 A-0311-16T3
       The judge also considered whether defendant should be allowed

to withdraw her plea. The judge addressed the factors enumerated

in    State   v.   Slater,    198    N.J.      145,   154-55   (2009).   The    judge

determined that defendant had not asserted a colorable claim of

innocence. The judge found defendant's statement that she did not

kill Moore did not absolve her of accomplice liability for the

murder.

       Moreover, the judge found that T. Dorsett's certification was

not    credible,    since    it     was   inconsistent     with   the    statements

defendant made at her plea hearing and her statements during her

presentence        interview.        T.     Dorsett's      statements      in    the

certification also were inconsistent with statements he made at

his own plea hearing, where he said he instigated the argument

with Moore and struck him in the head with a cable with the purpose

and intent of causing his death.

       The PCR judge also found that defendant's claim that she was

pressured or coerced to enter a guilty plea was belied by her

sworn testimony at the plea hearing. The judge found that the fact

that her attorney advised her of the potential consequences of

proceeding to trial, including the consequences to members of her

family, did not render the plea involuntary.

       The judge also noted that the plea was entered pursuant to a

plea    agreement,    which       weighed      against   allowing   defendant      to

                                          10                                A-0311-16T3
withdraw the plea. In addition, the judge found that defendant

would receive an unfair advantage if permitted to withdraw her

plea because her mother was scheduled to complete her sentence in

December 2016, and would have received the benefit from defendant's

plea bargain. The State also would be prejudiced because Morris,

who set the car containing Moore's body on fire, had completed his

sentence and no longer had an incentive to cooperate in the

prosecution of defendant.

     In    addition,   the    judge     rejected    defendant's    claims      of

ineffective    assistance      of     counsel.     The   judge    found     that

defendant's claim that her attorney erred by allowing her to enter

the plea without an adequate factual basis was barred because it

could have been raised on appeal. Even so, the judge considered

the claim on its merits and determined that it lacked merit.

     The judge found that neither trial nor appellate counsel

rendered    ineffective      assistance.     The    judge   determined      that

defendant's assertions that her attorney pushed her to accept the

plea were inconsistent and entitled to little weight. The judge

stated that defendant had not raised sufficient credible facts to

support her claim that counsel failed to provide her with clear

advice and guidance.

      The   judge   further     found      that   counsel   did   not   mislead

defendant in explaining her mother's sentencing exposure, and

                                      11                                A-0311-16T3
counsel's advice that defendant could not win at trial was not

unreasonable in view of the strong evidence of defendant's guilt.

Trial counsel also was not ineffective for failing to file a change

in venue because defendant presented no evidence that she was

prejudiced by pretrial publicity.

      In addition, the judge found there was no merit to defendant's

claim that her appellate counsel was ineffective for failure to

challenge the court's decision to consolidate various counts in

the   indictment     pertaining   to    her   co-defendants.   The     judge

concluded that because defendant had not presented a prima facie

case of ineffective assistance of trial or appellate counsel, she

was not entitled to an evidentiary hearing. The judge entered an

order denying PCR. This appeal followed.

      On appeal, defendant raises the following arguments:

           POINT I

           THE COURT BELOW ERRED IN DENYING DEFENDANT'S
           POST-CONVICTION   RELIEF   PETITION  WITHOUT
           GRANTING HER AN EVIDENTIARY HEARING.

           A. Representation by trial counsel

           B. Representation by appellate counsel

           POINT II

           THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S
           APPLICATION TO WITHDRAW HER GUILTY PLEAS.




                                   12                                A-0311-16T3
                                   II.

     Defendant argues that the PCR court erred by denying her

application for an evidentiary hearing on her PCR petition. She

contends she presented a prima facie case of ineffective assistance

of trial and appellate counsel. We disagree.

     A defendant is entitled to an evidentiary hearing on a PCR

petition if the defendant 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 Sixth Amendment to 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); 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 686, and adopted by our

Supreme Court 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

                                   13                                A-0311-16T3
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. The defendant

must establish that "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"

is   a       "probability   sufficient    to     undermine   confidence   in   the

outcome" of the proceeding. Ibid.

         The right to the effective assistance of counsel extends to

legal assistance related to the entry of a guilty plea. State v.

Gaitan, 209 N.J. 339, 350-51 (2012). To set aside a guilty plea

based on ineffective assistance of counsel, the defendant must

"show that (i) counsel's assistance was not 'within the range of

competence demanded of attorneys in criminal cases'; and, (ii)

'that there is a reasonable probability that, but for counsel's

errors, [the defendant] would not have pled guilty and would have

insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129,

139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)

(citations omitted) (second alteration in original)).



                                          14                              A-0311-16T3
      Here,    defendant    argues    that    her   attorney   was   deficient

because he allegedly exerted "enormous pressure" upon her to accept

the State's plea offer. She claims her attorney knew she was in a

"very fragile emotional state" due to the impending loss of her

daughter and the prospect that her mother would languish and die

in prison. Defendant asserts her attorney told her that there was

no chance she would be found not guilty of the charged offenses,

and that her failure to accept the plea offer would result in her

mother being tried and incarcerated for the remainder of her life.

      Defendant further asserts she had a viable defense to the

murder charge. She states that she did not inflict the fatal blow

to Moore. She states she was not involved in the altercation that

led to his death, and she was not present when the fatal blows

were inflicted. She asserts her father did not implicate her in

his plea colloquy. In addition, defendant's father provided a

sworn statement in which he asserted that defendant was not

involved in his fight with Moore.

      Defendant claims that under the State's theory, at most, she

was guilty as an accomplice. She asserts the State had to prove

beyond a reasonable doubt that in directing Moore to go to the

backyard on the day in question, it was her purpose that her father

would kill Moore or inflict serious bodily injury, which caused

his   death.    Defendant    claims    that    despite   these   evidentiary

                                      15                               A-0311-16T3
hurdles, her attorney demanded that she admit to facts that did

not exist.

      We are not persuaded by these arguments. The record supports

the PCR court's finding that defendant did not present sufficient

credible evidence to show that she was coerced to enter the plea

agreement. As noted, at the plea hearing, defendant stated under

oath that she had not been pressured to plead guilty. She stated

that she understood the nature and consequences of the plea and

was pleading guilty voluntarily. She also stated she was satisfied

with the advice her attorney had provided.

     Moreover, the judge found defendant's attorney had given

defendant reasonable advice regarding her mother's sentencing

exposure and the consequences that her guilty plea would have on

her family. Defense counsel also reasonably advised defendant that

she would probably be found guilty if she rejected the plea and

proceeded to trial. The judge noted that there was substantial

evidence to support defendant's guilt. The record supports that

finding.

     Furthermore, the judge correctly found that there was no

merit to defendant's claim that she had a strong defense to the

murder charge. "[T]o be guilty as an accomplice to murder, the

defendant must intend for the principal to engage in the killing,

and the defendant must act with purpose or knowledge in promoting

                               16                          A-0311-16T3
or facilitating the killing." State v. Norman, 151 N.J. 5, 32

(1997).

      As   the   judge   determined,    defendant's   purpose    can     be

established by her "acknowledgement of the underlying facts."

State v. Gregory, 220 N.J. 413, 419 (2015). At the plea hearing,

defendant testified that she knew her father was planning to murder

Moore when she convinced him to go to the backyard to retrieve his

tools. Defendant stated she knew her father was waiting there to

kill Moore and it was her job to get Moore to go to the backyard.

      The judge correctly determined that defendant intended for

her father to murder Moore, even if she did not specifically state

that it was her purpose that Moore be killed when she sent him to

the backyard, where her father was waiting. The record supports

the   judge's    determination   that   defendant   had   the   effective

assistance of counsel with regard to her plea.

      Defendant also argues that she was denied the effective

assistance of appellate counsel. She contends there was no sound

reason why her attorney did not argue on appeal that she failed

to provide an adequate factual basis for her plea. She claims the

factual basis for her plea was "egregiously ineffective" and caused

her "actual prejudice." Again, we disagree.

      As the PCR court found, defendant provided an adequate factual

basis for her plea. Thus, appellate counsel was not deficient in

                                   17                             A-0311-16T3
failing to raise that issue on appeal. Moreover, the result on the

appeal would not have been different if the issue had been raised.

     Therefore, we conclude defendant failed to present a prima

facie case of ineffective assistance of counsel on the part of her

trial   or   appellate   attorneys.     Accordingly,   defendant    was   not

entitled to an evidentiary hearing on her petition.

                                  III.

     Defendant argues that the PCR court erred by refusing to

permit her to withdraw her plea.

     Where,    as   here,   defendant    has   filed   a   motion   for   the

withdrawal of her plea after sentencing, she must show that

withdrawal is required "to correct a manifest injustice." R. 3:21-

1. "[A] plea may only be set aside in the exercise of the court's

discretion." Slater, 198 N.J. at 156 (citations omitted).

     In Slater, the Court identified four factors that the trial

courts should consider when evaluating a motion to withdraw a

guilty plea. Slater, 198 N.J. at 150. Those factors are: "(1)

whether the defendant has asserted a colorable claim of innocence;

(2) the nature and strength of defendant's reasons for withdrawal;

(3) the existence of a plea bargain; and (4) whether withdrawal

would result in unfair prejudice to the State or unfair advantage

to the accused." Ibid. The court must consider and balance all



                                   18                                A-0311-16T3
factors. Id. at 162. "No factor is mandatory; if one is missing,

that does not automatically disqualify or dictate relief." Ibid.

     On appeal, defendant contends that she did not provide an

adequate factual basis for the plea, and that she has asserted a

colorable claim of innocence. She further argues she has compelling

reasons to withdraw her plea because she was denied the effective

assistance of counsel with regard to the plea. In addition, she

contends the State would not be prejudiced and she would not have

any advantage if permitted to withdraw the plea.

     Here, the record fully supports the PCR court's denial of

defendant's motion. Defendant failed to show that withdrawal of

the plea is required "to correct a manifest injustice." R. 3:21-

1; Slater, 198 N.J. at 156. As we have explained, defendant

provided   an   adequate   factual   basis   for   her   plea   and,

notwithstanding her arguments to the contrary, she did not present

a colorable claim of innocence. She failed to "present specific,

credible facts" in support of her claim of innocence. Id. at 158

(citations omitted).

     The judge also found defendant did not present sound reasons

to withdraw her plea. In addition, the judge determined that

defendant had entered her plea as a result of a plea agreement,

and the State would be prejudiced if defendant were allowed to



                                19                          A-0311-16T3
withdraw her plea. Defendant had already realized the benefit of

her plea.

     The judge pointed out that defendant entered her plea in part

to protect her mother from a lengthy prison term, and defendant's

mother would have served her full sentence by December 16, 2016.

Furthermore, Morris had agreed to cooperate in the prosecution,

and he had served his seven-year sentence. The judge found that

Morris no longer had any incentive to cooperate in the prosecution.

The record supports these findings.

     Affirmed.




                               20                           A-0311-16T3
