                                NOT FOR PUBLICATION WITHOUT THE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-0649-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHANIKAH S. DANIELS,
a/k/a SHANIKA DANIELS,

          Defendant-Appellant.


                   Submitted June 2, 2020 – Decided June 16, 2020

                   Before Judges Fisher and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 11-11-
                   0749.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Elizabeth H. Smith, Designated Counsel, on
                   the brief).

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Amanda Paige Frankel,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Shanikah Daniels appeals an order denying her petition for

post-conviction relief (PCR) following an evidentiary hearing.              Because

defendant failed to demonstrate her trial counsel's "deficient performance

prejudiced the defense," Strickland v. Washington, 466 U.S. 668, 687 (1984), 1

we affirm.

      For her part in crimes against a seventeen-year-old girl, defendant was

charged in a separate indictment from her two accomplices with first-degree

robbery, second-degree kidnapping, third-degree aggravated assault, and several

second- and fourth-degree weapons offenses. Prior to trial, the State extended

an open plea offer to defendant, which meant the State did not make a sentencing

recommendation but reserved the right to argue for a sentence in the second-

degree range. Defendant rejected that offer and a jury convicted her of nearly

all charges, except robbery and one weapons offense; she was sentenced to an

aggregate seven-year prison term, subject to the eighty-five percent parole

disqualifier under N.J.S.A. 2C:43-7.2.




1
   In Strickland, the United States Supreme Court established a two-part test,
requiring a defendant seeking PCR on ineffective assistance of counsel grounds
to demonstrate: (1) the particular manner in which counsel's performance was
deficient; and (2) that the deficiency prejudiced defendant's right to a fair trial .
Ibid. Our Supreme Court adopted the Strickland test in State v. Fritz, 105 N.J.
42, 58 (1987).
                                                                             A-0649-18T2
                                         2
      One month later, the trial judge resentenced defendant solely to impose

the registration requirements under Megan's Law. See N.J.S.A. 2C:7-2(b)(2)

(requiring registration as a sex offender for certain non-sexual offenses,

including kidnapping of a minor). We affirmed defendant's conviction and

sentence in our prior unpublished opinion. State v. Daniels, No. A-5451-12

(App. Div. Dec. 9, 2014).

      After the Supreme Court denied certification, defendant filed a petition

for PCR, contending her trial counsel was ineffective by failing to advise that

her kidnapping charge triggered Megan's Law consequences.            The State

conceded defendant established counsel's deficiency and was thereby entitled

to an evidentiary hearing. But the State further argued defendant could not

establish prejudice under the second Strickland prong because defendant's

ineffectiveness claim was "premised solely on the speculative success of a

theoretical plea negotiation in a multi-defendant case."

      Defendant testified at the hearing and presented the testimony of her trial

counsel. Defendant asserted that had she known she would have had to register

under Megan's Law, she would have attempted "to work out a plea" that avoided

that requirement. Trial counsel acknowledged he was unaware Megan's Law

registration applied to defendant's kidnapping charge until after she was



                                                                         A-0649-18T2
                                        3
sentenced, and said he would have attempted to negotiate a deal that avoided

that consequence. 2

      Notably, both witnesses conceded they did not know whether the State

would have agreed to eliminate the requirement. On cross-examination, trial

counsel recalled the State was "principally focused" on defendant's cohort, "the

Irvington police officer." Trial counsel acknowledged that the State would not

have "cut one loose and let the other [go] to trial alone," specifically stating:

"It's my understanding there was no plea by one without the other."

      Because defendant was unable to demonstrate the State would have

offered her a plea agreement eliminating her exposure to Megan's Law

registration requirements, the PCR judge, who was not the trial judge, denied

defendant's petition. In a written decision that accompanied his order, the judge

concluded defendant failed to establish prejudice under the second Strickland

prong. This appeal followed.

      On appeal, defendant renews her argument in a single point for our

consideration:

            THE [PCR] COURT ERRED IN FINDING THAT
            TRIAL COUNSEL WAS NOT INEFFECTIVE FOR
            FAILING TO ADVISE [DEFENDANT] THAT A
            CONVICTION OF KIDNAPPING WOULD SUBJECT

2
  Neither the trial judge nor the State was aware of the consequences until after
defendant's initial sentence.
                                                                         A-0649-18T2
                                       4
            HER TO THE REGISTRATION PROVISIONS OF
            MEGAN'S LAW.

We have carefully considered defendant's contentions in view of the applicable

law, and conclude they lack sufficient merit to warrant extended discussion in

this written opinion, R. 2:11-3(e)(2), beyond the following comments.

      Our review following an evidentiary hearing for PCR "is necessarily

deferential to a PCR court's factual findings based on its review of live witness

testimony." State v. Nash, 212 N.J. 518, 540 (2013). Where an evidentiary

hearing has been held, we should not disturb "the PCR court's findings that are

supported by sufficient credible evidence in the record." State v. Pierre, 223

N.J. 560, 576 (2015) (citation omitted). We review any legal conclusions of the

court de novo. Nash, 212 N.J. at 540-41.

      The testimony adduced at the hearing fell far short of establishing the

second Strickland prong. The record is devoid of any evidence that the State

would have offered a plea agreement eliminating Megan's Law consequences.

Rather, the record reveals the State was unwilling to negotiate a plea agreement

with defendant because her accomplice exercised his right to trial. The State's

open plea offer therefore required defendant to plead guilty to all counts, only

limiting her sentencing exposure on the first-degree robbery to the second-

degree range. Defendant simply presented no evidence to demonstrate the State


                                                                         A-0649-18T2
                                       5
would have extended a plea offer, eliminating the mandatory registration

requirement under the kidnapping charge. The record amply supports the P CR

judge's findings. 3 See Pierre, 223 N.J. at 576.

      Affirmed.




3
   We part company with the judge's reasoning in one respect. We discern no
distinction between a trial attorney's obligation to advise a client about Megan's
Law consequences in the context of "completing the plea form and/or during
the plea colloquy" and when informing the client's "decision to go to trial." See
State v. L.G.-M.,        N.J. Super.      ,       (App. Div. 2020) (slip op. at 11)
("impos[ing] an obligation upon defense attorneys to advise their clients of the
potential immigration consequences of any criminal disposition whether that
disposition will result from a guilty plea, trial, or diversionary program"), certif.
denied,      N.J.    (2020).
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