                                NOT FOR PUBLICATION WITHOUT THE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-3967-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AARON T. SHEPPARD,

     Defendant-Appellant.
______________________________

                    Argued December 18, 2019 – Decided January 2, 2020

                    Before Judges Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Gloucester County, Accusation No. 03-10-
                    0811.

                    Michael James Confusione argued the cause for
                    appellant (Hegge & Confusione, LLC, attorneys;
                    Thomas Gerard Hand and Michael James Confusione,
                    on the briefs).

                    Dana R. Anton, Senior Assistant Prosecutor, argued the
                    cause for respondent (Charles A. Fiore, Gloucester
                    County Prosecutor, attorney; Monica A. Bullock,
                    Assistant Prosecutor, and Dana R. Anton, on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

       This post-conviction relief (PCR) case returns to us after remand

proceedings directed by our previous opinion. See State v. Sheppard, No. A-

2079-09 (App. Div. July 12, 2011), certif. denied, 209 N.J. 97 (2012). On

remand, the matter was assigned to Judge M. Christine Allen-Jackson, who

conducted a four-day evidentiary hearing to address the issues identified in our

decision. Judge Allen-Jackson denied defendant Aaron Sheppard's petition for

PCR and explained the basis for her rulings in a comprehensive twenty-seven

page written opinion containing her detailed findings of fact and conclusions of

law.

       Defendant appeals from the March 13, 2018 order memorializing the

judge's decision, and presents the following arguments in the brief submitted by

his appellate counsel:

            POINT ONE

            THE PCR COURT ERRED IN DENYING THE
            PETITION BECAUSE TRIAL COUNSEL WAS
            INEFFECTIVE IN FAILING TO INVESTIGATE
            [DEFENDANT'S] STATE OF MIND WHEN THE
            CRIME WAS COMMITTED, WHEN [DEFENDANT]
            WAS INTERROGATED AND WHEN SHEPPARD
            PLED GUILTY.


                                                                        A-3967-17T1
                                       2
            A.    Trial Counsel Was Deficient Because He Failed
                  To Fully Investigate [Defendant's] State Of Mind
                  At The Time [Defendant] Confessed.

            B.    Trial Counsel Was Deficient Because He Failed
                  To Fully Investigate [Defendant's] State Of Mind
                  At The Time [Defendant] Pled Guilty.

            C.    Trial    Counsel's   Deficient       Performance
                  Prejudiced [Defendant].

            POINT II

            [DEFENDANT'S]    PLEA    SHOULD      BE
            WITHDRAWN     BECAUSE  HE    MET    THE
            REQUIREMENTS OF STATE V. SLATER, 198 N.J.
            145 (2009).

      In addition, defendant raises the following issues in his pro se

supplemental brief:

            Point 1

            Defendant's convictions and sentence should be
            vacated on the ground of ineffective assistance of trial
            counsel.

            Point 2

            Trial judge Honorable Christine Allen-Jackson and
            Defense Attorney Fred Last, Esq. failed to apply the
            "Fruit of the Poisonous Tree Doctrine" while
            considering whether or not defendant knowingly,
            intelligently, and voluntarily waived his Fifth
            Amendment Right: Not To Be Compelled To Be a
            Witness Against Oneself (United States Constitution,
            Article IV).

                                                                       A-3967-17T1
                                       3
            Point 3

            [Judge] Allen-Jackson['s] denial concerning the Slater
            requirements was incorrect for not adhering to the
            legislators [sic] intent when considering the charge of
            felony murder in this cases [sic] applicability, and the
            outcome would have been different if not for the
            ineffectiveness of Fred Last allowing the defendant to
            plea [sic] out to a charge of felony murder without the
            factual basis to support the charge.

      Based on our review of the record and the applicable law, we conclude

that defendant's arguments lack merit. We affirm substantially for the reasons

set forth in Judge Allen-Jackson's thorough decision.

                                       I.

      The parties are fully familiar with the procedural history and factual

background of this case, which was set forth in detail in our prior opinion.

Sheppard, (slip op. at 1-8). As noted in that opinion, we

            remand[ed] this matter for the [trial] court to conduct a
            hearing to resolve what, if any investigation trial
            counsel conducted regarding defendant's mental
            capacity when each of the incriminating statements
            were made and at the time he entered a guilty plea. The
            court should determine whether counsel's conduct "was
            within the range of competence demanded of attorneys
            in criminal cases." In the event the court should find
            that counsel's conduct fell below that standard, the
            question remains whether the circumstances precluded
            a voluntary waiver of rights. Finally, the court should
            review defendant's motion to withdraw his guilty plea


                                                                        A-3967-17T1
                                       4
              pursuant to State v. Slater, 198 N.J. 145 (2009) and
              [Rule] 3:21-1.

              [Id. at 14.]

                                        II.

       We begin by addressing defendant's contention that Judge Allen-Jackson

erred by determining that defendant's trial counsel was not ineffective for failing

to file a Miranda1 motion to challenge the admissibility of defendant's

confession.     By way of background, defendant stated he took heroin at

approximately 4:00 p.m. after the victim was murdered that morning. The police

apprehended him, 2 read him his Miranda rights, and attempted to interview him

around 8:35 p.m. that same evening. The detective believed that defendant was

under the influence and stopped the interview.

       Just after midnight, the detective again attempted to interview defendant.

After the detective read defendant his Miranda rights, defendant invoked his

right to an attorney, and the interview was immediately terminated.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
   Defendant's pants were covered with blood splatter. He was also wearing
bloody shoes, and the police found a shoe print at the murder scene that was
similar to the distinctive soles of defendant's shoes. Defendant told the police,
"[t]he evidence is all over me."
                                                                           A-3967-17T1
                                        5
      Around 12:40 a.m., defendant asked to speak to the detective, who again

provided him with Miranda warnings. At that time, defendant admitted he

entered a tire store early in the morning through a broken window to steal

property and money. Once inside, he saw the sleeping victim and struck him

six times with a tool after the victim stirred in his sleep. After killing the victim,

defendant stole a camcorder and some money, took a bus to Camden, and sold

the camcorder. Defendant then bought four bags of heroin, two for himself and

two for a friend, who helped him sell the stolen camcorder.

      At the hearing, defendant produced an expert psychologist, Dr. Edward

Dougherty, who opined that defendant was too intoxicated at midnight, eight

hours after he had consumed the heroin, to make a voluntary, knowing, and

intelligent waiver of his Miranda rights. Dr. Dougherty arrived at this opinion

after listening to the recording made of defendant's statement to the detective,

taking note of his speech cadence.

      In response, the State offered the testimony of Dr. Steven Simring, an

expert psychiatrist.   Dr. Simring opined that defendant's statements to the

detective were coherent and "completely logical." Perhaps more significantly,

Dr. Simring noted that defendant last took heroin at 4:00 p.m. in the afternoon

and did not give his statement to the detective until approximately 12:40 a.m.


                                                                              A-3967-17T1
                                          6
the next morning. According to Dr. Simring, this time frame was extremely

important because

            heroin, like any other drug, has a half-life and has a
            dose response curve. It's well known that heroin, which
            is converted to morphine, will reach peak levels at
            about 30 minutes to an hour, will then last for
            somewhere between four and six hours. So, that using
            these rough calculations, assuming that [defendant] was
            accurate, that the last usage was at 4:00 p.m., one would
            expect him to still be high at 8:00 p.m. But by midnight,
            eight hours later, he would have been over that four to
            six hour period of time and he would have cleared. So
            that's a normal way of clearing heroin.

      Thus, Dr. Simring testified that defendant was able to understand his

Miranda rights and to execute a knowing, voluntary, and intelligent waiver of

those rights when he was questioned for the third time at 12:40 a.m. Dr. Simring

stated that his opinion was further corroborated by the details defendant included

in his statement. Among many other things, defendant was able to recount how

he knew the victim; remember that he discarded the dimes he found in the cash

register, while taking only the quarters; and accurately describe the layout of the

tire store. After listening to the interview tape herself, Judge Allen-Jackson

concluded that Dr. Simring's opinion and testimony was much more credible

than that offered by the defense expert.




                                                                           A-3967-17T1
                                        7
        The judge also considered the testimony of one of defendant's trial

attorneys, Fred Last, Esq., a public defender with over thirty-five years of

experience.3 Last explained that the State approached him with a plea offer

before it submitted the case to a grand jury for indictment. In return for pleading

guilty to first-degree felony murder, the State agreed to recommend that the trial

court sentence defendant to an aggregate sentence of thirty-five years, subject

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Thus, rather than

facing the possibility of the death penalty or a life sentence, defendant would be

eligible for parole in thirty years.

        Last testified that in his long experience, once the State proceeded to an

indictment, and the case began to "go[] down the capital murder track, it [would

be] much more difficult to get a better plea offer." Thus, Last counseled

defendant to strongly consider the State's plea offer.

        In rendering this advice, Last considered whether to allow the State to

indict defendant for capital murder, and then file a Miranda motion to attempt

to suppress defendant's confession. However, Last explained that such a motion

would have "only a slim chance of success" because defendant appeared to be

very coherent during the statement he gave to the detective over eight hours after


3
    During that period, Last handled several capital murder cases.
                                                                           A-3967-17T1
                                         8
consuming heroin or any other illicit substance. In this regard, Last reviewed

the recording of defendant's confession and of the two attempted interviews that

preceded it. According to Last, "[w]hen [defendant] started talking to them,

when he asked to come back, and made most of the incriminating parts of his

statement, it was as if somebody had flipped a switch and he was sober, at least

in sound."

      In addition, Last believed that the State did not need the confession to

convict defendant of felony murder because the DNA evidence from defendant's

bloody clothing and shoes would have been sufficient to prove its case beyond

a reasonable doubt. 4 Thus, Last's strategy was to attempt to negotiate the best

plea agreement he could on behalf of his client in a case where defendant would

otherwise face the death penalty.

      After considering this evidence, Judge Allen-Jackson concluded that

Last's "recommendation to [d]efendant to take the plea was the product of sound

trial strategy based on his professional evaluation of the case and negotiations

with the State." Thus, the judge held that defense counsel was not ineffective



4
   Defendant's fingerprint was found on the stolen camcorder. Defendant also
told Last that he may have accidentally recorded himself on the camcorder while
he was taking it to Camden and "sooner or later someone's [going to] play what's
on that cassette they recovered."
                                                                        A-3967-17T1
                                       9
because he pursued the plea rather than a suppression motion that was u nlikely

to succeed and, in the final analysis, would not have significantly weakened the

overwhelming physical evidence of guilt amassed by the State.

      We discern no basis for disturbing the judge's reasoned analysis. When

petitioning for PCR, the defendant must establish, by a preponderance of the

credible evidence, that he or she is entitled to the requested relief. State v. Nash,

212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain

that burden, the defendant must allege and articulate specific facts that "provide

the court with an adequate basis on which to rest its decision." State v. Mitchell,

126 N.J. 565, 579 (1992).

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

defendant is obligated to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,

105 N.J. 42, 58 (1987). Under the first prong of this test, the defendant must

demonstrate that "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. Under the second prong, the defendant must show

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


                                                                             A-3967-17T1
                                        10
a trial whose result is reliable." Ibid. That is, "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceed ing would

have been different." Id. at 694.

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Id. at 690. Because prejudice is not presumed, Fritz, 105 N.J. at 52,

a defendant must demonstrate with "reasonable probability" that the result

would have been different had he received proper advice from his trial attorney.

Strickland, 466 U.S. at 694.

      Moreover, the acts or omissions of counsel of which a defendant

complains must amount to more than mere tactical strategy. Id. at 689. As the

Supreme Court observed in Strickland,

            [a] fair assessment of attorney performance requires
            that every effort be made to eliminate the distorting
            effects of hindsight, to reconstruct the circumstances of
            counsel's challenged conduct, and to evaluate the
            conduct from counsel's perspective at the time.
            Because of the difficulties inherent in making the
            evaluation, a court must indulge a strong presumption
            that counsel's conduct falls within the wide range of
            reasonable professional assistance; that is, the
            defendant must overcome the presumption that, under
            the circumstances, the challenged action "might be
            considered sound trial strategy."



                                                                            A-3967-17T1
                                        11
            [Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101
            (1955)).]

      Where, as here, the judge conducts an evidentiary hearing, we must

uphold the judge's factual findings, "so long as those findings are supported by

sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440

(2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we

defer to a trial judge's findings that are "substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy."        Ibid. (alteration in original)

(quoting Robinson, 200 N.J. at 15).

      Applying these principles, there is ample evidence in the record to support

Judge Allen-Jackson's conclusion that Last made a well-calculated, tactical

decision not to risk losing an advantageous plea offer by filing a Miranda motion

that would likely be unsuccessful. In employing this strategy, Last tapped into

his decades of experience, and determined that a motion judge would find that

defendant was sober by the time he made his confession over eight hours after

he had ingested heroin or any other intoxicating substance.            This was

corroborated by the minute details defendant was able to recall about the murder

and all the events leading up to it, together with his later efforts to sell the

camcorder. Defendant knew he had the right to counsel and, indeed, invoked

                                                                          A-3967-17T1
                                       12
that right around midnight, before deciding to voluntarily waive it forty minutes

later.

         In ruling that defense counsel was not ineffective, Judge Allen-Jackson

also properly determined that Last's decision was amply supported by Dr.

Simring's expert testimony. "[W]e rely on the trial court's acceptance of the

credibility of the expert's testimony and the court's fact-findings thereon, [and

note] that the trial court is better positioned to evaluate the witness' credibility,

qualifications, and the weight to be accorded [the] testimony."                In re

Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc.

v. Epstein, 115 N.J. 599, 607 (1989)).

         In addition, even if defense counsel should have foregone the plea offer

that eliminated the possibility of defendant receiving the death penalty or a life

sentence in favor of pursuing a Miranda motion, defendant still failed to meet

the second prong of Strickland. This is so because, even if the confession was

suppressed, the State still had very strong physical evidence connecting

defendant to the crime. Thus, defendant did not demonstrate with reasonable

probability that the end result of this proceeding would have been different.

Strickland, 466 U.S. at 694.




                                                                             A-3967-17T1
                                         13
      Therefore, we reject defendant's contention that defense counsel provided

ineffective assistance by pursuing a plea agreement rather than filing a Miranda

motion.

                                      III.

      Defendant next argues that Judge Allen-Jackson erred by ruling his

attorney was not ineffective due to his alleged failure to adequately investigate

his state of mind at the time he pled guilty. We disagree.

      While defendant was in jail awaiting the consummation of his plea

agreement, he was prescribed Seroquel, a psychotropic drug that also had the

effect of making the patient sleepy. Defendant told Dr. Dougherty, and testified

at the hearing, that he was so sleepy and dizzy from taking this drug that he was

unable to voluntarily waive his right to a trial by pleading guilty to felony

murder in order to avoid the death penalty or a life sentence. He asserted that

Last should have investigated the effect this drug would have on him and, if Last

had done so, he would have prevented defendant from proceeding with the plea.

      However, Last testified he was very familiar with this drug and its effects

because a number of his clients were prescribed it. Thus, even though Last

readily conceded he was not an expert in this area, he did not see a need to




                                                                         A-3967-17T1
                                      14
conduct a "formal investigation" into the behaviors demonstrated by patients

who take Seroquel.

        Last testified that in his discussions with defendant leading up to the entry

of the plea,5 he did not observe "any signs of unusually slow mentation or

drowsiness, dop[i]ness or any of those features" that would have led him to

postpone the plea hearing.         There was also no evidence of a lack of

understanding or disoriented thinking on defendant's part during the plea

proceedings. Last testified that if he had thought defendant was impaired, he

would not have proceeded to put through the plea. However, defendant showed

no signs of impairment.

        Last's view of his interactions with defendant was corroborated by Dr.

Simring, who testified that Seroquel would not have adversely affected

defendant's ability to understand the plea proceedings. Judge Allen-Jackson

again found that Dr. Simring's expert testimony on this subject was more

credible than that of defendant's expert, and we again defer to her determination

on this point.

        The judge concluded there was

              insufficient evidence in the record to conclude that . . .
              defendant was impaired at the time of the plea. He was

5
    Last met with defendant approximately six times prior to the plea hearing.
                                                                             A-3967-17T1
                                         15
            responsive to questions; he further indicated that he
            went over the plea form with his attorney, who assisted
            in circling his answers to the questions on the plea
            form. There is no evidence of disoriented thinking, lack
            of understanding[,] nor [any] evidence of off[-]base
            answers at the time of the plea.

      Thus, the judge concluded that "[t]he effects of the Seroquel did not

interfere with [defendant's] ability to make a knowing, intelligent and voluntary

plea." Because there is sufficient credible evidence in the record to support this

determination, we perceive no basis for disturbing it. Defense counsel was

aware that Seroquel could make a patient sleepy and, accordingly, Last knew to

observe defendant during their discussions for any sign of this side effect.

Detecting none, Last was not required to conduct a further investigation into

defendant's condition before consummating the plea. And, in any event, the

credible expert testimony at the hearing demonstrated that Seroquel would not

have prevented defendant from making a knowing plea, as evidenced by his

straight-forward answers to all questions posed to him at that proceeding.

Because defendant thus failed to establish either prong of the Strickland test, we

affirm Judge Allen-Jackson's conclusions on this point.

                                       IV.

      Finally, defendant argues that the judge erred by denying his motion to

withdraw his plea under Slater. Again, we disagree.

                                                                          A-3967-17T1
                                       16
      Slater requires a court to weigh the following factors in considering a

motion to withdraw a plea: "(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."

Id. at 158-59. A motion to withdraw a guilty plea is committed to the judge's

sound discretion. Slater, 198 N.J. at 156. We will only overturn a judge's

decision if there was an abuse of discretion causing the decision to be clearly

erroneous. Ibid.

      Judge Allen-Jackson found that defendant did not "assert a colorable

claim of innocence." In addition to confessing to murdering the victim during

the course of a burglary, defendant was covered in the victim's blood and had

left a distinctive footprint with his bloody shoe.

      Defendant's reasons for attempting to withdraw his plea were also weak.

Defendant claimed he would not have pled guilty if he was not under the

influence of Seroquel.     As discussed above, however, defendant failed to

establish that this prescribed medication affected his ability to understand the

terms of the plea offer and to voluntarily accept them.




                                                                          A-3967-17T1
                                       17
      Turning to the third Slater factor, the judge noted that defendant pled

guilty and avoided the death penalty or a life sentence. Finally, the judge found

that the offense occurred in 2003, over fourteen years before her decision on

defendant's motion to withdraw his plea.         In that time, she noted that

"[m]emories fade, and witnesses retire and move away and become unavailable,

which would be an unfair disadvantage to the State in proving its case."

      Under these circumstances, where defendant failed to satisfy any of the

Slater factors, we conclude that the judge properly denied defendant's motion to

withdraw his guilty plea. 6

      Affirmed.




6
  The arguments raised in defendant's pro se supplemental brief largely parrot
the points raised by his appellate counsel. Defendant's supplemental contentions
are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).
                                                                           A-3967-17T1
                                      18
