                                NOT FOR PUBLICATION WITHOUT THE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-2742-16T1


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAKEYSHA L. PRUITT,

     Defendant-Appellant.
________________________________

                    Submitted September 25, 2018 – Decided October 18, 2018

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Accusation No. 14-06-1806.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Robert Carter Pierce, Designated Counsel,
                    on the brief).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Nancy P. Scharff, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an order of the Law Division dated February 3,

2017, which denied her petition for post-conviction relief (PCR). We affirm.

                                      I.

      On July 28, 2013, Kafarr Logan Horton called a friend and asked him to

come to his residence in Oaklyn, New Jersey. Horton said he would help his

friend retrieve his car, but he first had to drive a female to Camden. Horton's

friend drove to Horton's residence, and honked his horn to let Horton know he

had arrived. Horton and a female exited the apartment. Horton was covered in

blood from his chest to his shoes, and he said he had been stabbed. Horton had

to lean on the female to walk to the car. They entered the car and drove to a

hospital in Camden. Horton later was taken to a trauma center where he died.

      The police investigated the incident, obtained surveillance videos, and

identified defendant as the female who accompanied Horton to the hospital.

Defendant later provided a statement to investigators at the Camden County

Prosecutor's Office.   Initially, defendant denied knowing Horton, but later

admitted she was with him on July 28, 2013. Defendant said she met Horton at

a Dunkin' Donuts, and after making other stops, they went to his apartment.

      Defendant stated that she and Horton had sexual intercourse twice. She

claimed Horton became rough the second time, and after they finished, Horton


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                                      2
was lying on the bed talking on his phone. Defendant went to the kitchen, took

a knife, hid it under a towel, and returned to the bedroom. She stabbed Horton

in the chest. Defendant was charged in W-2013-000115-0426 with purposeful

and knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) or (2).

      On June 19, 2014, defendant appeared before Judge John T. Kelley,

waived indictment, and pled guilty to first-degree aggravated manslaughter,

contrary to N.J.S.A. 2C:11-4(a). The State agreed to drop the murder charge.

The State also agreed to an open plea, with a maximum term of twenty years of

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

      At the plea hearing, defendant admitted that on July 28, 2013, she

accompanied Horton to his apartment where they had "intimate relations" and

got into a dispute. She said she left the bedroom, went to the kitchen, got a

knife, folded it in a towel, and returned to the bedroom where she stabbed Horton

twice in the chest. Defendant admitted she recklessly caused Horton's death

under circumstances manifesting indifference to human life. She also waived

any defense of intoxication, self-defense, or passion/provocation.

      Judge Kelley sentenced defendant on July 25, 2014. The judge found

aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will

commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter


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                                       3
defendant and others from violating the law). The judge found mitigating factor

seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no history of prior delinquency or

criminal activity). The judge also found mitigating factor nine, N.J.S.A. 2C:44-

1(b)(9) (character and attitude of defendant indicate she is unlikely to commit

another offense), but gave it little weight. The judge sentenced defendant to

twenty years of incarceration, subject to NERA. The judge filed a judgment of

conviction (JOC), dated July 29, 2014.

      Defendant appealed and challenged her sentence, and the court heard the

appeal on its Excessive Sentence Oral Argument calendar. See R. 2:9-11. The

court affirmed defendant's sentence, finding that it was not manifestly excessive,

unduly punitive, or an abuse of discretion. State v. Pruitt, No. A-0830-14 (App.

Div. March 10, 2015).

      On May 11, 2016, defendant filed a pro se petition for PCR. The trial

court assigned counsel to represent defendant, and counsel filed an amended

petition. Defendant also filed a certification in support of her petition. Judge

Kelley heard oral argument and placed a decision on the record.

      Judge Kelley determined that Rules 3:22-3, 3:22-4, and 3:22-5 barred

defendant's claims regarding her sentence because a PCR petition is not a

substitute for a direct appeal; and the issues presented either were decided in the


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                                         4
prior appeal, or could have been raised in that proceeding. The judge also

determined that defendant had not presented a prima facie claim of ineffective

assistance of counsel, and an evidentiary hearing was not required. The judge

entered an order dated February 3, 2017, denying PCR.

      Defendant appeals and argues:

            POINT I
            THE PCR COURT ERRED BY NOT MAKING
            FINDINGS OF FACT AND CONCLUSIONS OF
            LAW CONCERNING [DEFENDANT'S] PRO SE
            [PETITION FOR] PCR.

            POINT II
            THE PCR COURT ERRED BY NOT ORDERING
            THE    RESENTENCING   OF  [DEFENDANT],
            BECAUSE SHE WAS DEPRIVED OF [THE]
            EFFECTIVE ASSISTANCE OF COUNSEL AT THE
            SENTENCING STAGE OF THE CRIMINAL
            PROCEEDING.

            POINT III
            THE PCR COURT ERRED BY DENYING
            [DEFENDANT] AN EVIDENTIARY HEARING.

            POINT IV
            THE PCR COURT ERRED IN DENYING
            [DEFENDANT]  PCR  UPON    PROCEDURAL
            GROUNDS PURSUANT TO [RULES] 3:22-3, 3:22-4
            AND 3:22-5.

            POINT V
            [DEFENDANT] WAS DEPRIVED [OF] EFFECTIVE
            ASSISTANCE OF PCR COUNSEL. (Not Raised
            Below).

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                                      5
                                        II.

      As noted, on appeal, defendant argues that the PCR court erred by finding

that she failed to present a prima facie case of ineffective assistance of counsel

and denying her request for an evidentiary hearing. She also contends the PCR

court erred by finding that her claims were barred by Rules 3:22-3, 3:22-4, and

3:22-5.

      The PCR court should conduct an evidentiary hearing if the defendant

presents a prima facie case in support of PCR, 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)). "To

establish a prima facie case, defendant must demonstrate a reasonable likelihood

that his or her claim, viewing the facts alleged in the light most favorable to the

defendant, will ultimately succeed on the merits." R. 3:22-10(b).

      A claim of ineffective assistance of counsel is reviewed under the two-

part test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), and

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under

Strickland, the defendant must show that counsel's performance was deficient

and, if so, that there was a "reasonable probability that, but for counsel's

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                                        6
unprofessional errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 687, 694.

      Here, defendant argues she was denied the effective assistance of counsel

at sentencing. She asserts she stabbed Horton without warning. She states that

instead of fleeing, she attempted to render treatment and accompanied Horton

to the hospital, where she purportedly apologized to him. Defendant argues that

"[t]he red flags for mental disease or defect were readily apparent" and "defense

counsel was required to investigate [her] mental health by ordering a psychiatric

evaluation."

      Defendant asserts that if her attorney had taken that course, counsel would

have had psychiatric evidence that she was suffering from Post-Traumatic Stress

Disorder (PTSD), depression, and other mental disorders, which were not being

treated at the time of the incident.   She claims this would have supported

findings by the sentencing judge of mitigating factors four, N.J.S.A. 2C:44-

1(b)(4) (substantial grounds tending to excuse or justify defendant's conduct);

and eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct the result of

circumstances unlikely to recur). 1


1
   Defendant also claims the evidence would have supported a finding of
mitigating factor nine; however, as noted previously, at sentencing, the judge


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                                       7
      Judge Kelley found, however, that defendant's attempt to re-argue the

aggravating and mitigating factors is barred by Rule 3:22-3 because a PCR

petition is not a substitute for a direct appeal. The judge also found that the

claim was barred by Rules 3:22-4 and 3:22-5 because defendant challenged her

sentence on direct appeal. In that appeal, defendant argued that the sentencing

judge erred by finding aggravating factor three.       Judge Kelley noted that

defendant could have argued that the judge erred by failing to find mitigating

factors four and eight.

      In addition, Judge Kelley determined that mitigating factor four did not

apply. The judge noted that defendant had submitted five medical records. Two

of those records had little or no comment on any mental health issue. The three

remaining records appeared to be from a psychologist or psychiatrist, and

indicated that defendant suffered from anxiety and depression two years before

she stabbed Horton.

      The judge found that there was insufficient evidence to link defendant's

mental health problems and the offense. In addition, the judge noted that drug

dependency is not justification for an offense and is not considered a mitigating




found mitigating factor nine but gave it little weight. The JOC does not mention
that finding.
                                                                         A-2742-16T1
                                       8
factor for sentencing purposes. See State v. Ghertler, 114 N.J. 383, 390 (1989);

State v. Towey, 244 N.J. Super. 582, 595 (App. Div. 1990).

      The judge also found that defendant's untreated mental health problems

and substance abuse did not support a finding of mitigating factor eight. The

judge noted that defendant had already received the benefit of a downgraded

charge from purposeful, knowing murder to aggravated manslaughter, which

substantially reduced her sentencing exposure. The judge found that it would

be inappropriate to give defendant an additional benefit by finding mitigating

factor eight.

      The judge also determined that there was no basis to find mitigating factor

twelve. The judge pointed out that defendant initially denied any involvement

in Horton's stabbing and only confessed after she was confronted with the

surveillance tape showing her at the hospital with Horton. Defendant did not

assist law enforcement officers resolve other crimes. The judge therefore found

that mitigating factor twelve did not apply.

      The record supports Judge Kelley's findings of fact and his conclusion that

defendant failed to present a prima facie case of ineffective assistance of

counsel. The record supports the judge's conclusion that counsel did not err by

failing to argue mitigating factors four, eight, and twelve at sentencing. The


                                                                         A-2742-16T1
                                        9
record also supports the judge's finding that defendant had not shown the result

would have been different if counsel had argued for the additional mitigating

factors. Moreover, despite defendant's claim to the contrary, defense counsel

did argue mitigating factor nine.

                                        III.

      Defendant further argues that the matter should be remanded to the PCR

court because the judge did not address the claims asserted in her pro se petition.

Defendant argues that she was denied the effective assistance of counsel at the

plea stage of the proceedings.

      Where, as here, the defendant alleges she was denied the effective

assistance of counsel with regard to a guilty plea, defendant must establish that

counsel's performance "was not 'within the range of competence demanded of

attorneys in criminal cases[.]'" State v. DiFrisco, 137 N.J. 434, 457 (1994)

(quoting Tollett v. Henderson, 411 U.S. 258, 266 (1973)). The defendant also

must show "there is a reasonable probability that, but for counsel's errors, [the

defendant] would not have [pleaded] guilty and would have insisted on going to

trial." Ibid. (first alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52,

59 (1985)); see also State v. Nuñez-Valdéz, 200 N.J. 129, 142 (2009) (quoting

DiFrisco, 137 N.J. at 457).


                                                                            A-2742-16T1
                                        10
      Defendant claims she did not enter her guilty plea knowingly and

intelligently because her attorney allegedly "fail[ed] to advise her of available

defenses, such as PTSD, self-defense, diminished capacity[,] and battered

woman's syndrome." She claims her attorney did not "explain the elements that

constitute the crime of aggravated manslaughter[,] and that the State ha[d] the

burden of proving all of the elements beyond a reasonable doubt." She asserts

her attorney should have obtained a psychiatric evaluation, which would have

revealed she was suffering from PTSD and other mental disorders.

      Here, Judge Kelley noted in his order denying PCR that he had considered

defendant's pro se arguments. In his decision, Judge Kelley specifically noted

the standard that applies to claims of ineffective assistance of counsel regarding

a plea. The judge stated that defendant claimed her attorney did not properly

investigate the case but failed to present an affidavit or certification setting forth

the facts such an investigation would have revealed. The judge also pointed out

there was insufficient evidence to support defendant's claim that her mental

health disorders contributed to the commission of the offense.

      Furthermore, the transcript of the plea hearing provides no support for

defendant's claim that her attorney failed to provide her with sufficient advice

when she entered her plea. The court asked defendant whether she had an


                                                                              A-2742-16T1
                                         11
opportunity to review the case with her attorney, and she said, "Yes." The court

asked defendant whether her lawyer had answered all of her questions about the

charges.   She replied, "Yes."     Defendant also acknowledged counsel had

provided her with all of the discovery materials. Defendant acknowledged that

by pleading guilty, she was giving up certain rights, including the right to a jury

trial and the right to have the State prove she was guilty beyond a reasonable

doubt.

      In addition, defendant told the court she understood the charge of

aggravated manslaughter. She said she was satisfied with the legal advice

provided by her attorney, and she was pleading guilty voluntarily. Defendant

was asked if she was waiving a defense based on intoxication, self-defense, or

passion/provocation. She replied, "Yes." She also said she had discussed these

defenses with her attorney and she understood them.

      We therefore reject defendant's contention that the PCR court failed to

address the claims asserted in her pro se petition. The record supports the PCR

court's determination that defendant had not presented a prima facie case of

ineffective assistance of counsel with regard to her plea.




                                                                           A-2742-16T1
                                       12
                                        IV.

      Defendant also argues that she was denied the effective assistance of PCR

counsel. She argues PCR counsel was deficient in failing to order a psychiatric

evaluation and present those findings to the PCR court. She also contends PCR

counsel erred by failing to provide sufficient support to her contention that she

was denied the effective assistance of counsel at the plea stage of the

proceedings. We decline to address these arguments because defendant raises

them for the first time on appeal. See State v. Robinson, 200 N.J. 1, 20 (2009)

(citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). If defendant

wishes to pursue a claim that she was denied the effective assistance of PCR

counsel, she must first do so in the trial court.

      Affirmed, but remanded to the trial court to enter a corrected JOC stating

that the court found mitigating factor nine, but gave this factor little weight.




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                                        13
