                                NOT FOR PUBLICATION WITHOUT THE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-1061-16T2

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

KEYSHON SOWELL,

     Defendant-Appellant.
_______________________

                    Submitted September 13, 2018 – Decided September 25, 2018

                    Before Judges Koblitz and Currier.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 07-11-
                    0986.

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

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Michelle J. Ghali,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, on the brief).

PER CURIAM
        Defendant Keyshon Sowell appeals from the July 7, 2016 denial of his

petition for post-conviction relief (PCR) without an evidentiary hearing.

Defendant pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1,

of a twelve-year-old child, Z.D., 1 and an adult, Shakeena Dean. He admitted

participating in an armed home-invasion robbery with three co-defendants in

July 2007. The four men had knives and a child was struck in the head and

injured when the door was kicked open. Defendant received two concurrent

sentences of sixteen years in prison, with eighty-five percent parole ineligibility

under the No Early Release Act, N.J.S.A. 2C:43-7.2. The remaining counts in

the indictment and an additional indictment were dismissed. We affirmed on

appeal, State v. Sowell, No. A-3568-09 (App. Div. Oct. 8, 2013) (slip op. at 26),

and the Supreme Court denied certification, State v. Sowell, 217 N.J. 587

(2014).

        In our prior opinion we reviewed the facts and issues raised on direct

appeal, affirming both the convictions and sentence. On direct appeal defendant

raised several issues including, as Point III:

               DEFENDANT'S PLEA TO COUNT FIVE WAS
               ACCEPTED WITHOUT ADEQUATE FACTUAL
               BASIS AND THE ENTIRE GUILTY PLEA MUST BE
               VACATED BY THIS COURT. (Not Raised Below.)

1
    The child is identified by initials in the indictment.
                                                                           A-1061-16T2
                                            2
        In discussing that issue, we wrote:

               We agree that in order to establish the elements of
               robbery of Z.D., defendant needed to admit he
               committed a theft against Z.D. It would not suffice to
               admit to theft only from [Dean], [2] the victim in count
               two, to which defendant also pleaded. See State v.
               Sewell, 127 N.J. 133, 137-38 (1992) (stating that one
               robbery was committed, not three, where defendant
               committed one theft, but inflicted physical harm on
               three persons). "[E]ach robbery is a separate crime,
               which entails a discrete theft from a single victim
               together with accompanying injury or force." Id. at 137.
               See also State v. Lawson, 217 N.J. Super. 47, 51, (App.
               Div. 1987) ("N.J.S.A. 2C:15-1(a) should not be
               extended by implication to sustain two robbery
               convictions for assaults upon two victims in immediate
               flight after a theft or attempted theft from a third
               victim.").

               In pleading to robbery of Z.D., defendant did not
               explicitly state that he committed a theft against her.
               However, he did so indirectly, by incorporating by
               reference his actions pertaining to [Dean]. Defendant
               admitted that "[his] conduct that [he] described for
               Count 2 involved that conduct regarding all people that
               were there." Defendant argues that the referenced
               conduct pertained only to the threats of force. However,
               there is no basis in the record to interpret "conduct" so
               restrictively. With respect to count two, defendant
               affirmatively answered the judge's leading questions,
               asking him whether he was "involved with or
               threatened bodily injury to [Dean] or put her in fear
               with any kind of a weapon or indicate[d] a deadly
               weapon"; whether he "stole stuff from her"; and

2
    We correct the name of the adult victim; all other modifications are in the original.
                                                                                    A-1061-16T2
                                              3
      whether he possessed and displayed a weapon to put her
      in fear. The phrase "conduct . . . described for Count 2"
      incorporated by reference all those actions, including
      theft.

      [Sowell, slip op. at 24-26.]

As Point IV on direct appeal, defendant argued:

      THE TRIAL COURT IMPROPERLY BALANCED
      THE   AGGRAVATING    AND   MITIGATING
      CIRCUMSTANCES    RESULTING   IN   THE
      IMPOSITION OF A MANIFESTLY EXCESSIVE
      SENTENCE.

We determined:

      Finally, defendant's challenge to his sentence lacks
      sufficient merit to warrant discussion in a written
      opinion. R. 2:11-3(e)(2). Suffice it to say that we find
      no error in the court's exercise of its sentencing
      authority. We are satisfied that the judge's findings
      regarding aggravating and mitigating factors were
      based upon competent and credible evidence in the
      record, that the judge correctly applied the sentencing
      guidelines set forth in the Code of Criminal Justice, and
      that the sentence imposed is not manifestly excessive
      or unduly punitive and does not constitute a mistaken
      exercise of discretion.

      [Sowell, slip op. at 26.]

On PCR appeal, defendant argues:

      POINT I: THE PCR COURT'S ORDER THAT
      DENIED DEFENDANT'S PETITION FOR POST-
      CONVICTION RELIEF MUST BE REVERSED OR
      THE    MATTER    REMANDED     BECAUSE

                                                                  A-1061-16T2
                                     4
DEFENDANT DID NOT HAVE A FULL
UNDERSTANDING OF THE LAW AS IT RELATED
TO THE FACTS OF THE CASE WHEN HE PLED
GUILTY TO COUNT FIVE AND THEREFORE
DEFENDANT'S ENTIRE GUILTY PLEA MUST BE
VACATED.

A.  DEFENDANT DID NOT ENTER INTO A
KNOWINGLY [sic] GUILTY PLEA BECAUSE HE
PLED GUILTY TO COUNT FIVE WITHOUT A
FULL UNDERSTANDING OF THE NATURE OF
THE CHARGES AS IT RELATED TO THE FACTS
OF THE CASE.

B.  FOR THE REASONS SET FORTH IN I(A), THE
COURT SHOULD PERMIT DEFENDANT TO
RETRACT HIS GUILTY PLEA.

C.  THE PLEA MUST BE VACATED IN IT [sic]
ENTIRETY.

POINT II: THE PCR COURT'S ORDER THAT
DENIED DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF MUST BE REVERSED OR
THE    MATTER    REMANDED      BECAUSE
DEFENDANT      RECEIVED    INEFFECTIVE
ASSISTANCE    OF   COUNSEL    IN   THE
PROCEEDINGS BELOW.

A.  PLEA COUNSEL MISLED DEFENDANT
INTO PLEADING GUILTY TO COUNT FIVE.

B.  DEFENSE    COUNSEL     FAILED      TO
INVESTIGATE AND DEVELOP A DEFENSE.

C.  APPELLATE     COUNSEL   PROVIDED
INEFFECTIVE ASSISTANCE TO THE EXTENT


                                             A-1061-16T2
                    5
            COUNSEL FAILED TO RAISE THE CLAIMS SET
            FORTH ABOVE IN THE PROCEEDINGS BELOW.

            POINT III: THE PCR COURT ABUSED ITS
            DISCRETION   WHEN   IT APPLIED      THE
            PROCEDURAL BAR CONTAINED IN R. 3:22-5 TO
            DEFENDANT'S CLAIMS.

            POINT IV: THE PCR COURT ABUSED ITS
            DISCRETION WHEN IT DENIED DEFENDANT'S
            REQUEST FOR AN EVIDENTIARY HEARING.

      Defendant argues in this appeal that his plea counsel was ineffective by

allowing him to plead guilty to the robbery of the child, Z.D., when he did not

understand the charge nor was he factually guilty of stealing anything of value

from the child. Contrary to his representation before the PCR court, he seeks

to withdraw his plea of guilty, claiming he has satisfied the factors set forth in

State v. Slater, 198 N.J. 145, 157-58 (2009). He also argues that appellate

counsel was ineffective in not raising this issue on direct appeal. At the PCR

hearing defendant told the judge on the record that he did not wish to withdraw

his guilty plea. We affirm.

      The record is clear that the plea judge asked defendant if he was aware

that he was pleading guilty to two robberies, and defendant read and then signed

a plea form stating he was pleading guilty to two counts of first-degree robbery.

Defendant was indicted in separate counts with robbing nine individuals: the


                                                                          A-1061-16T2
                                        6
three women and their six children who were in the home at the time of the home

invasion.    He was also charged in nine separate counts with first -degree

kidnapping, N.J.S.A. 2C:13-1(b), as well as other charges. Thus, his attorney

negotiated a favorable plea agreement for him.

      To demonstrate ineffective assistance of plea counsel, defendant must

demonstrate that: (1) counsel's performance was deficient, and (2) the deficient

performance actually prejudiced the client's defense. Strickland v. Washington,

466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Where the

defendant seeks to vacate a guilty plea, the defendant must show "(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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)

(alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

"In Morrison, we found that 'in applying the Strickland standard to assess a claim

of ineffective assistance of appellate counsel, [the] defendant must show not

only that his attorney's representation fell below an objective standard, but also

that he was prejudiced, i.e., but for counsel's unprofessional errors, the

result would have been different.'" State v. Gaither, 396 N.J. Super. 508, 513


                                                                          A-1061-16T2
                                        7
(App. Div. 2007) (quoting State v. Morrison, 215 N.J. Super. 540, 546 (App.

Div. 1987)).

      Here, although the PCR court discussed and denied a request to withdraw

defendant's guilty plea, defendant clarified before the PCR judge that in fact he

did not wish to withdraw his guilty plea. We therefore do not consider his

appellate request to withdraw his guilty plea. We generally will not address an

issue on appeal that the parties did not pursue at the trial court level unless the

issue involves "the jurisdiction of the trial court" or "matters of great public

interest." Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (declining to consider

a Foreclosure Rescue Fraud Prevention Act claim raised for the first time on

appeal) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

Defendant's claim that his plea counsel failed to investigate the facts sufficiently

was also not argued before the PCR court.

      The issue urged before the PCR court was ineffective assistance of

sentencing counsel, which the PCR court properly found to be unfounded. On

appeal, defendant does not specify what mitigating factors his counsel failed to

argue at sentencing. His attorney argued for a reduced sentence of fourteen

years in prison, stressing defendant's family obligations and employment

history. We found the sentence imposed to be appropriate on direct appeal.


                                                                            A-1061-16T2
                                         8
      If an issue has previously been raised and adjudicated, "[a] prior

adjudication upon the merits . . . is conclusive whether made in the proceedings

resulting in the conviction . . . or in any appeal taken from such proceedings."

R. 3:22-5. In determining whether this procedural bar applies, the challenged

claim should be compared with the prior claim to determine if the two "are either

identical or 'substantially equivalent.'" State v. Marshall, 173 N.J. 343, 351

(2002). Defendant's claim of ineffective assistance of sentencing counsel under

these facts is substantially equivalent to his prior excessive sentence claim, and

is therefore procedurally barred. Ibid.

      Trial courts should grant evidentiary hearings if the defendant has

presented a prima facie case of ineffective assistance of counsel. State v.

Preciose, 129 N.J. 451, 462 (1992). "A defendant shall be entitled to an

evidentiary hearing only upon the establishment of a prima facie case in support

of post-conviction relief . . . ." R. 3:22-10(b). Defendant failed to make out a

prima facie case of ineffective assistance of counsel requiring an evidentiary

hearing. His other arguments before us are without sufficient merit to require

further discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                          A-1061-16T2
                                          9
