STATEOF NEW JERSEY v. SHAHEEM FIELDS a/k/a LIL MOET

NOT FOR PUBLICATION WITHOUT THE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-5554-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SHAHEEM FIELDS,
a/k/a LIL MOET,

     Defendant-Appellant.
_________________________________

              Submitted September 27, 2017 – Decided February 23, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              10-07-0729.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Lee March Grayson, Designated
              Counsel, on the brief).

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Christopher W. Hsieh,
              Chief Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM

        Defendant Shaheem Fields appeals the denial of his petition

for post-conviction relief (PCR).            In light of State v. Jones, 
446 N.J. Super. 28 (App. Div.), certif. denied, 
228 N.J. 72 (2016),

we reverse and remand for the PCR court to determine the sole

issue of whether defendant asked his trial counsel to file a direct

appeal from his guilty plea and if so, to permit the filing of an

appeal in forty-five days consistent with State v. Perkins, 
449 N.J. Super. 309, 312-13 (App. Div. 2017).                  We affirm the denial

of defendant's PCR on all other issues.

                                    I

     Defendant had an on-going dispute with Javon Kemp.                  In the

early morning hours of March 10, 2006, defendant saw Kemp on the

street    and   approached   him.       At    the   plea    hearing,   defendant

acknowledged shooting Kemp five times with a .45 caliber handgun

and that the fatal shot struck Kemp in the back.                       Defendant

admitted that when he fired the shots, he knew Kemp was unarmed

and was not attacking or trying to hurt him.                 He agreed that his

actions in shooting Kemp "manifested extreme indifference" to

whether his victim would live or die.               Defendant also was aware,

because of the nature of a prior conviction, that he was not to

possess any weapons.

     In    March   2011,     defendant       pled   guilty     to   first-degree

aggravated manslaughter, 
N.J.S.A. 2C:11-4(a), amended from first-

degree murder, 
N.J.S.A. 2C:11-3(a)(1) and (2) (count one), and

second-degree certain persons not to have weapons, 
N.J.S.A. 2C:39-

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7(b) (count four).     In return, the State agreed to dismiss second-

degree possession of a weapon for an unlawful purpose, 
N.J.S.A.

2C:39-4(a) (count two), and second-degree unlawful possession of

a weapon, 
N.J.S.A. 2C:39-5(b) (count three).        In April 2011, the

trial court sentenced defendant consistent with the plea agreement

to serve twenty-two years in prison, subject to the No Early

Release Act, 
N.J.S.A. 2C:43-7.2, on count one and a concurrent

eight-year prison sentence with five years of parole ineligibility

on count four.      Defendant did not file a direct appeal.

       In 2015, defendant filed a pro se PCR petition, alleging

ineffective assistance of counsel, and requested an evidentiary

hearing.      PCR    counsel   was    appointed.   In   his   supporting

certification, defendant alleged his counsel should have requested

a Miranda1 hearing because he was under "mental duress" when

interrogated by the police.          He claimed his attorney failed to

investigate his claim of self-defense and pressured him into

pleading guilty, using "[his] limited mental capacity against

[him]."    He claimed he was illiterate when he pled guilty.            He

denied making a phone call from jail where he said he did not mean

to kill the victim.     Defendant said he asked his attorney to file

an appeal but that none was filed.



1
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                      3                          A-5554-15T1
     On April 21, 2016, defendant's PCR petition was denied.                       In

rejecting    defendant's   claims,     the     PCR    court    found   that      when

defendant pled guilty, "he indicated that he could read, write and

understand the English language . . . [,] had gone over the plea

forms with his attorney, . . . [and] heard and understood the

terms of the plea agreement . . . ."                     Defendant admitted to

pleading guilty freely and voluntarily.                  Defendant claimed his

attorney did not investigate his claim of self-defense, but the

court found he did not assert what facts an investigation would

have revealed.    Defendant did not produce "any certifications from

any witnesses exculpating him."             In fact, defendant admitted at

the plea hearing that when he fired the fatal shot, he knew Kemp

was unarmed and not attacking him.

     With respect to his claim of being pressured because of a

lack of mental capacity, the court found the 2006 study team

evaluation     defendant     relied     upon       had    classified       him     as

"emotionally    disturbed"    but     did    not     prove    that   he    had    any

diminished capacity when he committed the offenses.                       The court

agreed with the State that defendant pled guilty "knowingly,

willfully and with full understanding of the consequences of his

guilty pleas and of his rights that he was waiving when he . . .

pled guilty."



                                       4                                    A-5554-15T1
       The PCR court rejected defendant's claim that his attorney

should have requested a Miranda hearing regarding the phone call

defendant allegedly made from jail where he admitted to the

shooting death.        The court determined that Miranda did not apply

because   the   call    did    not   involve    a   custodial   interrogation.

Defendant provided no proof he made any statement to the police

that   could    have    been   suppressed      based   on   Miranda.     Because

defendant   did   not    point   to   any   issues     that   would    have   been

successful on appeal, the PCR court rejected defendant's claim

that his counsel was ineffective by not filing a direct appeal.

       Defendant appeals the April 21, 2016 order that denied the

PCR petition, presenting the following issues:

            POINT I

            THE PCR COURT ERRED IN DENYING THE DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY
            ADDRESS HIS CONTENTIONS THAT DEFENSE COUNSEL
            IN THE TRIAL COURT WAS INEFFECTIVE.

            A. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE
            DID NOT DISCUSS THE CASE WITH THE DEFENDANT
            OR   CONDUCT   AN   INVESTIGATION  REGARDING
            DEFENSES, SUCH AS SELF-PROTECTION.

            B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE
            ALLEGEDLY EXPLOITED THE DEFENDANT'S LIMITED
            MENTAL CAPACITY TO FORCE HIM INTO ACCEPTING
            THE PLEA BARGAIN.

            C. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE
            DID NOT FILE MOTIONS TO SUPPRESS STATEMENTS
            MADE DURING A CUSTODIAL INTERROGATION AND,

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            LATER, DURING A RECORDED PHONE CONVERSATION
            IN THE COUNTY JAIL.

            D. THE PCR COURT ERRED BY NOT GRANTING THE
            DEFENDANT AN EVIDENTIARY HEARING.

     We reverse and remand for the PCR court to determine whether

defendant asked his trial counsel to file a direct appeal and if

so, to allow forty-five days for that appeal. We are not persuaded

by any of defendant's other arguments.

                                       II

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 
466 U.S. 668 (1984), and adopted by

our Supreme Court in State v. Fritz, l
05 N.J. 42 (l987).                  In order

to prevail on an ineffective assistance of counsel claim, defendant

must meet a two-prong test by establishing that: (l) counsel's

performance was deficient and he or she made errors that were so

egregious    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 to a fair trial such that there exists "a

reasonable probability that, but for counsel's unprofessional

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

Strickland, 
466 U.S.  at 694.



                                         6                                 A-5554-15T1
     In the plea bargain context, "a defendant must prove 'that

there is a reasonable probability that, but for counsel's errors,

[he or she] would not have pled guilty and would have insisted on

going to trial.'"     State v. Gaitan, 
209 N.J. 339, 351 (2012)

(alteration in original) (quoting State v. Nunez-Valdez, 
200 N.J.
 129, 139 (2009)), and that "a decision to reject the plea bargain

would have been rational under the circumstances."     Padilla v.

Kentucky, 
559 U.S. 356, 372 (2010).   We agree with the PCR court

that, except for the question of whether counsel was asked to file

a direct appeal, defendant's claims did not meet the standards

under Strickland and Fritz.

     "[W]hen a petitioner claims his trial attorney inadequately

investigated his case, he must assert facts an investigation would

have revealed, supported by affidavits or certifications based

upon the personal knowledge of the affiant or the person making

the certification."    State v. Porter, 
216 N.J. 343, 353 (2013)

(alteration in original) (quoting State v. Cummings, 
321 N.J.

Super. 154, 170 (App. Div. 1999)).

     Defendant contends his attorney did not investigate his claim

of self-defense.    He alleged the victim threatened him and often

was armed.   We agree with the PCR court that defendant did not

meet the required standard to obtain relief in light of his



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admissions during the plea when he fatally shot Kemp, he knew the

victim was not armed and was not attacking him.

     Defendant alleged that counsel should have investigated his

phone call from the jail where he acknowledged shooting Kemp.                We

agree with the PCR court, however, that because defendant did not

allege his phone call from the jail was part of a custodial

interrogation,     Miranda    would     not   apply.   In   fact,   defendant

presented no evidence he gave any custodial statements that could

be the subject of a suppression motion.

     We agree with the PCR court that defendant submitted no

evidence he was pressured to plead guilty or that he did not

understand   the    plea     or   the   recommended    sentence.      In   the

transcript, defendant agreed that he understood all the terms of

the plea and was pleading guilty freely and voluntarily.             We agree

with the PCR court that the 2006 educational plan did not show

evidence of diminished capacity.

      We are constrained to reverse and remand to the PCR court,

however, on the direct appeal issue.           In State v. Jones, 
446 N.J.

Super. 28, 30 (App. Div.), certif. denied, 
228 N.J. 72 (2016)

(relying on Roe v. Flores-Ortega, 
528 U.S. 470, 484 (2000)), we

reversed the denial of a PCR petition, holding that prejudice is

presumed where defendant's undisputed sworn statement asserted

that he directed his attorney to file an appeal, but no appeal was

                                        8                             A-5554-15T1
filed.    In State v. Perkins, 
449 N.J. Super. 309, 312-13 (App.

Div. 2017), we held "where a PCR judge finds that an appeal was

sought by defendant and not filed due to counsel's ineffective

assistance, the judge has the authority to afford defendant a

forty-five day period to file an appeal."          Jones and Perkins both

were decided after defendant's PCR was denied.

       Here, defendant's November 2015 certification alleged that

no appeal was filed even though he asked his trial counsel to file

one.   His initial pro se petition did not include that allegation.

The PCR court rejected defendant's direct appeal claim because he

did not find that defendant articulated any issues for direct

appeal.   However, the case law cited requires us to remand to the

PCR judge to determine whether defendant asked for a direct appeal

that then was not filed.         If so, the PCR court should enter an

order, allowing defendant to file an appeal within forty-five days

of the order.

       Affirmed   in   part;   reversed   and   remanded   for   proceedings

consistent with this opinion only on the issue of the direct

appeal.    We do not retain jurisdiction.




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