STATE OF NEW JERSEY v. SHAKIRA REED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAKIRA REED,

Defendant-Appellant.

______________________________________________

November 6, 2013

Submitted October 21, 2013 - Decided

Before Judges Kennedy and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-05-00574.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shakira Reed appeals from the October 18, 2011 order of the Law Division denying her petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

At the time of this incident, defendant and her boyfriend, Darryll1 Brown, lived together in a one-room apartment on Jefferson Street in Passaic. Just after midnight on December 31, 2008, Brown and defendant argued over where they were going to spend New Year's Eve. During the argument, defendant picked up a cooking knife from a table and stabbed Brown in his upper right thigh near his groin.

Someone in the building called 911, but hung up. When the police responded to the abandoned call, they questioned other residents in the building. One woman pointed to the room where defendant and Brown resided and told the police they were fighting in there. As the police approached the room, the door swung open and defendant came through, but stopped abruptly when she saw the police. Through the open door, the police could see Brown on his hands and knees in a large pool of blood.

Defendant retreated into the room and attempted to slam the door closed but the police forced their way in. Defendant was told by the police to leave the room but she refused and had to be physically removed and detained in the hallway. Defendant repeatedly told police Brown had stabbed himself.

The knife struck Brown's femoral artery and caused massive blood loss. Emergency services were called and, while they were treating Brown, he went into cardiac arrest. He was pronounced dead at the scene shortly thereafter.

Defendant was indicted and charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).

Pursuant to a plea agreement, defendant was permitted to plead guilty to an amended charge of aggravated manslaughter with a maximum sentence of twenty years. In accord with the agreement, defendant was sentenced to a term of imprisonment of twenty years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant's appeal was heard on an Excessive Sentence Oral Argument calendar. See R. 2:9-11. We determined that the issues on appeal related solely to the sentence imposed, which was not manifestly excessive or unduly punitive. Defendant's conviction was affirmed.

Defendant submitted a pro se petition for PCR. After counsel was appointed to represent her, an amended PCR petition was submitted claiming defendant had been denied effective assistance of counsel at both the trial and appellate levels. Defendant argued that her trial counsel did not investigate her history as a victim of domestic violence; her appellate counsel did not meet with her to discuss her appeal; and her guilty plea was not supported by a sufficient factual basis.

On October 18, 2011, Judge Marilyn Clark heard argument on the petition and denied it without a hearing. On appeal defendant raises the following point:

THE PCR COURT ERRED IN MAKING FACTUAL FINDINGS WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING.

We reject this argument and affirm the denial of defendant's PCR petition primarily for the reasons contained in the thorough, thirty page oral decision of Judge Clark. We add only the following brief comments.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment is well established. It was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The two-pronged Strickland/Fritz test requires defendant to establish: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced defendant's rights such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

Defendant claims her plea counsel failed to sufficiently advise her regarding her guilty plea. A review of the record reveals that defendant's counsel met with her at least nine times before she entered her plea. He detailed his plea negotiations and how he argued for a shorter sentence:

It was very -- the -- the negotiations over the plea were very unusual. I -- I talked to Shakira and I proposed to the State 16 years as a -- as a result in this case and it seemed like a very reasonable result from all sides and we were prepared to enter a plea to that and some of Mr. Brown's family members agreed to the 16, but some other family members in Texas thought it was too low and ultimately the State settled on an offer of 20 years instead of the 16. I myself, was -- was upset at that, but Shakira never was.

Plea counsel also discussed potential defenses with defendant, including self-defense. He even expressed disappointment that he had spent a considerable amount of time preparing the case for trial, only to have defendant decide to plead guilty:

In my own analysis of the case I still thought that she should resolve the case that way, but I went to see her in the jail to -- to talk to her about what I thought she should do, and I did that, I -- I came to the jail with jury instructions for this offense and [lesser included offenses] and charts that I had on what I thought were the good and bad facts and what I would argue in the case and I guess I wasted all my time, I went to the jail to talk to her about that and she said -- Shakira said I just want to take the plea, I just want to take the 20 years, I understand that -- I understand why his family feels that way and I just want to -- want to accept this. I was like, wait a minute, Shakira, let me at least make sure you understand, you know, why you're making this decision. And we -- you know, I forced her to sit down with me and -- at least make sure it was a knowing decision on her part. But, she understood. She didn't complain about it.

Even though plea counsel failed in his attempts to negotiate a sixteen-year sentence, he still argued for that term during defendant's sentencing. Contrary to defendant's claims, she was well-informed of her options and decided to plead guilty after extensive discussions with her attorney. These facts are clear from the record and no evidentiary hearing was required.

"To establish . . . a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Ibid. (citations omitted). As we have observed:

[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that [s]he was denied the effective assistance of counsel. [S]he must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims [her] trial attorney inadequately investigated [her] case, [s]he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or he person making the certification.

[State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing R. 1:6-6), certif. denied, 162 N.J. 199 (1999).]

Judge Clark addressed defendant's claim that plea counsel failed to pursue a defense that she was a battered woman:

Let me ask you this. If she were evaluated for battered women syndrome -- and I'm not saying there hasn't been a lot of unfortunate aspects in her life; and I'm not saying there hasn't been. And I talked about that at length on the sentencing proceeding.

But the Battered Women Syndrome would be evaluated also in the context of "no employment history," four children being raised by other people because she did not take care of them, a drug history, and an aggravated arson conviction, as well as three disorderly persons convictions and numerous other arrests that resulted in dismissals.

So this is not someone who came to the table here with no prior record or no drug history. I mean, there's a lot of other things that [defense counsel] had to contend with. Didn't he?

Plea counsel informed Judge Clark he had spent the summer preparing the case for trial to the point of obtaining charts and completing proposed jury instructions. The decision to plead guilty was made solely by defendant and she has presented no evidence to support her claim that plea counsel's performance was in any way deficient. Defendant has failed to establish the first prong of the Strickland/Fritz test.

Defendant's remaining arguments lack sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

1 Throughout the record, Mr. Brown's first name is spelled Darryll, Daryll and Darryl. In the absence of an official document, we adopt the spelling used by the victim's sister in her victim-impact statement.