STATE OF NEW JERSEY VS. KATHLEEN M. DORSETT (11-01-0207, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0311-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KATHLEEN M. DORSETT,
Defendant-Appellant.
_________________________________________
Submitted April 24, 2018 – Decided June 7, 2018
Before Judges Yannotti and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
11-01-0207.
Joseph E. Krakora, Public Defender, attorney
for appellant (Gilbert G. Miller, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Kathleen M. Dorsett appeals from an order entered
by the Law Division on July 19, 2016, which denied her petition
for post-conviction relief (PCR) and her motion to withdraw her
plea. We affirm.
I.
Defendant, her father Thomas Dorsett (T. Dorsett), her mother
Lesley Dorsett (L. Dorsett), and Anthony Morris (Morris) were
charged with various offenses under Monmouth County Indictment No.
11-01-0207:
count one: first-degree conspiracy to murder
Stephen Moore (Moore), N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:11-3 (defendant and T. Dorsett);
count two: first-degree murder of Moore,
N.J.S.A. 2C:11-3 (defendant and T. Dorsett);
count three: fourth-degree tampering with
physical evidence, N.J.S.A. 2C:28-6(1)
(defendant, T. Dorsett, and L. Dorsett);
count four and five: fourth-degree tampering
with physical evidence, N.J.S.A. 2C:28-6(1)
(defendant, T. Dorsett, and Morris);
count six: second-degree conspiracy to commit
aggravated arson, N.J.S.A. 2C:5-2, N.J.S.A.
2C:17-1(a)(2) (T. Dorsett and Morris);
count seven: first-degree arson for hire,
N.J.S.A. 2C:17-1(d) (T. Dorsett and Morris);
count eight: second-degree conspiracy to
desecrate human remains, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:22-1(a) (defendant, T. Dorsett,
and Morris);
count nine: second-degree desecration of human
remains, N.J.S.A. 2C:22-1(a) (defendant, T.
Dorsett, and Morris);
2 A-0311-16T3
count ten: third-degree tampering with a
witness or informant, N.J.S.A. 2C:28-5(a) (T.
Dorsett);
count eleven: third-degree conspiracy to
commit financial facilitation of criminal
activity, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-
25(e)(3) (defendant, T. Dorsett, and L.
Dorsett);
count twelve: third-degree financial
facilitation of criminal activity, N.J.S.A.
2C:21-25(e)(3) (defendant, T. Dorsett, and L.
Dorsett);
count thirteen: first-degree conspiracy to
murder [E.M.], N.J.S.A. 2C:5-2 and N.J.S.A.
2C:11-3 (defendant and L. Dorsett);
count fourteen: first-degree attempted murder
of [E.M.], N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-
3 (defendant and L. Dorsett).1
On May 9, 2013, defendant pled guilty to counts two (murder),
eight (conspiracy to desecrate human remains), and fourteen
(attempted murder). The State agreed to recommend a sentence of
thirty years of incarceration, with thirty years of parole
ineligibility, on count two; a consecutive term of eight years on
count eight; and a consecutive term of twenty years on count
fourteen, with an eighty-five percent parole bar pursuant to the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also
agreed to dismiss the remaining charges.
1
In this opinion, we use initials to identify certain individuals,
in order to protect their identities.
3 A-0311-16T3
At the plea hearing, defendant testified that she was guilty
of these offenses and was pleading guilty of her own free will.
She stated that no one had forced or threatened her, that her
attorney had explained the charges and plea forms to her and
answered all of her questions, and that she understood the charges
and was satisfied with counsel's representation. She also
testified that before accepting the plea offer, she had reviewed
the discovery with her attorney and discussed the possible defenses
and the likelihood of conviction, and that those discussions led
her to accept the plea offer.
The judge reviewed defendant's sentencing exposure on the
charges and the State plea offer. Defendant said she understood
both. She denied that any promises or representations had been
made to get her to plead guilty, and she testified that she wanted
the court to accept the plea as described. The judge explained
that defendant did not have to plead guilty and she was entitled
to a trial in which the State would have to prove each and every
element of the charged offenses beyond a reasonable doubt.
Defendant testified that she understood but still wished to plead
guilty.
Defendant then read the following prepared statement into the
record to establish the factual basis for her plea:
4 A-0311-16T3
On August 16, 2010, at approximately 7:30
a.m., [Moore] came to my residence . . . for
a scheduled drop-off of our infant daughter.
Approximately [thirty] minutes prior to
[Moore's] arrival he texted me that he was on
his way.
When he arrived, I told [Moore] to get
his tools in the backyard of the driveway.
After [Moore] was convinced to retrieve his
tools, I took my daughter into my house,
knowing all the time my father [T. Dorsett]
was back there waiting to kill him.
As I was changing [my daughter's] diaper,
I heard screaming coming from the driveway.
By the time I secured my child and ran outside,
[Moore] was in the driveway, lying in the
driveway.
I sat down next to him in order to shield
him from view of my next-door neighbor,
[J.C.], who was yelling out her window, asking
me what was wrong. I repeated several times
to [J.C.] that everything was all right, and
that she should shut her window. . . .
After my conversation with [J.C.]
concluded, I assisted my father with lifting
[Moore's] body into the trunk of my ex-mother-
in-law's vehicle. My father drove off with the
car. And shortly thereafter he telephoned me
to meet him at [a restaurant] in Long Branch.
I met him there and then followed him to
another location in Long Branch where the
vehicle with [Moore's] dead body in it was
abandoned. I then drove my father home.
After we arrived at my residence, we
cleaned up the area where [Moore] was killed,
and my father drove away with the cleaned-up
items. . . . I know now that he disposed of
everything in the dumpster at [the
restaurant].
5 A-0311-16T3
The judge questioned defendant to confirm that she had stated
that she went into the backyard "knowing that [her] father was
there waiting to kill him." Defendant responded, "yes" when the
judge asked her if "this [was] something [she] knew was going to
happen, and it was [her] job to get him into the backyard."
Defendant then continued reading her prepared statement:
During late December 2010, and early January
2011, I had numerous conversations with
[A.A.], an inmate at [the county jail]. In my
conversations, I discussed with [A.A.] her
assistance in finding someone to kill my ex-
mother-in-law, [E.M.]. I wanted my [ex]-
mother-in-law killed so she could not have
anything to say about my plea negotiations
involving [Moore].
[A.A.] told me she could find someone to kill
[E.M.] for me. And then I contacted my mother
[L. Dorsett] via the phone from the jail and
told her to meet the hit man and give him
$1,000 as a deposit, and a picture and address
for [E.M.] for the purpose of having her
killed. I later learned that the hit man was
an undercover police officer.
In response to the assistant prosecutor's questions,
defendant admitted she wrote a letter to her mother instructing
her how to kill E.M. She told her mother she wanted the death to
look "natural" and related to "some type of diabetic issue."
On May 9, 2013, T. Dorsett pled guilty to counts two (murder)
and seven (arson for hire). On that same day, L. Dorsett pled
guilty to count thirteen (conspiracy to commit murder).
6 A-0311-16T3
On August 8, 2013, the court sentenced defendant in accordance
with her plea. The court imposed an aggregate prison term of fifty-
eight years, with a forty-seven-year period of parole
ineligibility. T. Dorsett was sentenced to an aggregate term of
forty-five years in jail, with a thirty-year parole bar, and L.
Dorsett was sentenced to a seven-year prison term, with an eighty-
five-percent period of parole ineligibility, pursuant to NERA.
Defendant appealed from the final judgment of conviction and
challenged her sentence. The appeal was heard on our excessive
sentence oral argument calendar. R. 2:9-11. We entered an order
affirming the sentence. State v. Dorsett, No. A-2224-13 (App. Div.
April 7, 2014).
Thereafter, defendant filed a pro se petition for PCR. She
withdrew her petition, and the court entered an order dismissing
the petition without prejudice. Later, defendant filed a pro se
PCR petition dated June 12, 2015, in which she alleged she did not
receive the effective assistance of trial or appellate counsel.
She also sought to withdraw her guilty plea. Defendant sought an
evidentiary hearing.
Defendant alleged her trial attorney misled her when advising
her whether to accept the State's plea offer by stating that her
mother would be sentenced to twenty years in jail unless defendant
pleaded guilty. Defendant claimed her attorney "continually
7 A-0311-16T3
vacillated" between advising her to accept or reject the plea
offer, leaving her "with no clear guidance about her best course
of action."
Defendant further alleged that as a result of her trial
attorney's actions, her plea was obtained by fraud,
misrepresentation, and possibly coercion, thereby rendering the
plea unknowing and involuntary. She also alleged her trial attorney
was ineffective because he failed to seek a change of venue, and
that appellate counsel was ineffective because counsel failed to
raise on direct appeal a claim regarding the trial court's decision
to consolidate various counts in the indictment involving her co-
defendants.
The court appointed PCR counsel for defendant. Defendant's
PCR counsel filed a memorandum of law in support of the petition,
and a certification by defendant, dated May 12, 2016. In her
certification, defendant asserted that her trial attorney
"demanded" that she plead guilty knowing that she had a "fragile
state of mind."
She claimed her attorney told her she could not win the case,
and a trial could put her mother in jail for the rest of her life.
She also asserted that she "fell into a deep depression" after her
attorney told her that no matter what course she took, her child
would be taken from her "forever." She alleged she felt "powerless,
8 A-0311-16T3
helpless and eager to end everything" and that knowing this, her
attorney "coerced [her]" to accept the plea offer.
T. Dorsett provided a certification, dated April 2, 2016. He
asserted that on August 11, 2010, Moore came to the rear of his
daughter's home to drop off his granddaughter. T. Dorsett stated
that he got into an argument with Moore, and accused him of
sexually abusing his granddaughter. They began to fight and Moore
"fell on a pile of metal junk" and he landed on top of him.
T. Dorsett said Moore hit his head. T. Dorsett claimed he
"panicked and tried to cover-up the results of the fight." He also
said defendant "was not involved in the fight" and he did not
discuss with her that he was going to injure or kill Moore. He
stated that he did not believe defendant was culpable in Moore's
death.
The PCR judge heard oral argument on July 19, 2016, and placed
a lengthy decision on the record. The judge rejected defendant's
claim that she did not provide an adequate factual basis for her
plea because she did not hold the weapon or strike Moore. The
judge explained that defendant pled guilty to murder as an
accomplice. The judge found that based on the statement defendant
provided at the plea hearing, it was fair to infer that her
purpose, which she shared with her father, was to cause Moore's
death.
9 A-0311-16T3
The judge also considered whether defendant should be allowed
to withdraw her plea. The judge addressed the factors enumerated
in State v. Slater, 198 N.J. 145, 154-55 (2009). The judge
determined that defendant had not asserted a colorable claim of
innocence. The judge found defendant's statement that she did not
kill Moore did not absolve her of accomplice liability for the
murder.
Moreover, the judge found that T. Dorsett's certification was
not credible, since it was inconsistent with the statements
defendant made at her plea hearing and her statements during her
presentence interview. T. Dorsett's statements in the
certification also were inconsistent with statements he made at
his own plea hearing, where he said he instigated the argument
with Moore and struck him in the head with a cable with the purpose
and intent of causing his death.
The PCR judge also found that defendant's claim that she was
pressured or coerced to enter a guilty plea was belied by her
sworn testimony at the plea hearing. The judge found that the fact
that her attorney advised her of the potential consequences of
proceeding to trial, including the consequences to members of her
family, did not render the plea involuntary.
The judge also noted that the plea was entered pursuant to a
plea agreement, which weighed against allowing defendant to
10 A-0311-16T3
withdraw the plea. In addition, the judge found that defendant
would receive an unfair advantage if permitted to withdraw her
plea because her mother was scheduled to complete her sentence in
December 2016, and would have received the benefit from defendant's
plea bargain. The State also would be prejudiced because Morris,
who set the car containing Moore's body on fire, had completed his
sentence and no longer had an incentive to cooperate in the
prosecution of defendant.
In addition, the judge rejected defendant's claims of
ineffective assistance of counsel. The judge found that
defendant's claim that her attorney erred by allowing her to enter
the plea without an adequate factual basis was barred because it
could have been raised on appeal. Even so, the judge considered
the claim on its merits and determined that it lacked merit.
The judge found that neither trial nor appellate counsel
rendered ineffective assistance. The judge determined that
defendant's assertions that her attorney pushed her to accept the
plea were inconsistent and entitled to little weight. The judge
stated that defendant had not raised sufficient credible facts to
support her claim that counsel failed to provide her with clear
advice and guidance.
The judge further found that counsel did not mislead
defendant in explaining her mother's sentencing exposure, and
11 A-0311-16T3
counsel's advice that defendant could not win at trial was not
unreasonable in view of the strong evidence of defendant's guilt.
Trial counsel also was not ineffective for failing to file a change
in venue because defendant presented no evidence that she was
prejudiced by pretrial publicity.
In addition, the judge found there was no merit to defendant's
claim that her appellate counsel was ineffective for failure to
challenge the court's decision to consolidate various counts in
the indictment pertaining to her co-defendants. The judge
concluded that because defendant had not presented a prima facie
case of ineffective assistance of trial or appellate counsel, she
was not entitled to an evidentiary hearing. The judge entered an
order denying PCR. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE COURT BELOW ERRED IN DENYING DEFENDANT'S
POST-CONVICTION RELIEF PETITION WITHOUT
GRANTING HER AN EVIDENTIARY HEARING.
A. Representation by trial counsel
B. Representation by appellate counsel
POINT II
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S
APPLICATION TO WITHDRAW HER GUILTY PLEAS.
12 A-0311-16T3
II.
Defendant argues that the PCR court erred by denying her
application for an evidentiary hearing on her PCR petition. She
contends she presented a prima facie case of ineffective assistance
of trial and appellate counsel. We disagree.
A defendant is entitled to an evidentiary hearing on a PCR
petition if the defendant presents a prima facie case in support
of PCR, the court determines 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)).
The Sixth Amendment to the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution guarantee
criminal defendants the right to the effective assistance of
counsel. State v. O'Neil, 219 N.J. 598, 610 (2014) (citing
Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Fritz,
105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective
assistance of counsel, the defendant must meet the two-part test
established by Strickland, 466 U.S. at 686, and adopted by our
Supreme Court in Fritz, 105 N.J. at 58.
Under Strickland, a defendant first must show that his or her
attorney made errors "so serious that counsel was not functioning
13 A-0311-16T3
as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687. Counsel's performance is deficient
if it "[falls] below an objective standard of reasonableness." Id.
at 688.
A defendant also must show that counsel's "deficient
performance prejudiced the defense." Id. at 687. The defendant
must establish that "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. A "reasonable probability"
is a "probability sufficient to undermine confidence in the
outcome" of the proceeding. Ibid.The right to the effective assistance of counsel extends to
legal assistance related to the entry of a guilty plea. State v.
Gaitan, 209 N.J. 339, 350-51 (2012). To set aside a guilty plea
based on ineffective assistance of counsel, the defendant must
"show that (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. Nunez-Valdez, 200 N.J. 129,
139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)
(citations omitted) (second alteration in original)).
14 A-0311-16T3
Here, defendant argues that her attorney was deficient
because he allegedly exerted "enormous pressure" upon her to accept
the State's plea offer. She claims her attorney knew she was in a
"very fragile emotional state" due to the impending loss of her
daughter and the prospect that her mother would languish and die
in prison. Defendant asserts her attorney told her that there was
no chance she would be found not guilty of the charged offenses,
and that her failure to accept the plea offer would result in her
mother being tried and incarcerated for the remainder of her life.
Defendant further asserts she had a viable defense to the
murder charge. She states that she did not inflict the fatal blow
to Moore. She states she was not involved in the altercation that
led to his death, and she was not present when the fatal blows
were inflicted. She asserts her father did not implicate her in
his plea colloquy. In addition, defendant's father provided a
sworn statement in which he asserted that defendant was not
involved in his fight with Moore.
Defendant claims that under the State's theory, at most, she
was guilty as an accomplice. She asserts the State had to prove
beyond a reasonable doubt that in directing Moore to go to the
backyard on the day in question, it was her purpose that her father
would kill Moore or inflict serious bodily injury, which caused
his death. Defendant claims that despite these evidentiary
15 A-0311-16T3
hurdles, her attorney demanded that she admit to facts that did
not exist.
We are not persuaded by these arguments. The record supports
the PCR court's finding that defendant did not present sufficient
credible evidence to show that she was coerced to enter the plea
agreement. As noted, at the plea hearing, defendant stated under
oath that she had not been pressured to plead guilty. She stated
that she understood the nature and consequences of the plea and
was pleading guilty voluntarily. She also stated she was satisfied
with the advice her attorney had provided.
Moreover, the judge found defendant's attorney had given
defendant reasonable advice regarding her mother's sentencing
exposure and the consequences that her guilty plea would have on
her family. Defense counsel also reasonably advised defendant that
she would probably be found guilty if she rejected the plea and
proceeded to trial. The judge noted that there was substantial
evidence to support defendant's guilt. The record supports that
finding.
Furthermore, the judge correctly found that there was no
merit to defendant's claim that she had a strong defense to the
murder charge. "[T]o be guilty as an accomplice to murder, the
defendant must intend for the principal to engage in the killing,
and the defendant must act with purpose or knowledge in promoting
16 A-0311-16T3
or facilitating the killing." State v. Norman, 151 N.J. 5, 32
(1997).
As the judge determined, defendant's purpose can be
established by her "acknowledgement of the underlying facts."
State v. Gregory, 220 N.J. 413, 419 (2015). At the plea hearing,
defendant testified that she knew her father was planning to murder
Moore when she convinced him to go to the backyard to retrieve his
tools. Defendant stated she knew her father was waiting there to
kill Moore and it was her job to get Moore to go to the backyard.
The judge correctly determined that defendant intended for
her father to murder Moore, even if she did not specifically state
that it was her purpose that Moore be killed when she sent him to
the backyard, where her father was waiting. The record supports
the judge's determination that defendant had the effective
assistance of counsel with regard to her plea.
Defendant also argues that she was denied the effective
assistance of appellate counsel. She contends there was no sound
reason why her attorney did not argue on appeal that she failed
to provide an adequate factual basis for her plea. She claims the
factual basis for her plea was "egregiously ineffective" and caused
her "actual prejudice." Again, we disagree.
As the PCR court found, defendant provided an adequate factual
basis for her plea. Thus, appellate counsel was not deficient in
17 A-0311-16T3
failing to raise that issue on appeal. Moreover, the result on the
appeal would not have been different if the issue had been raised.
Therefore, we conclude defendant failed to present a prima
facie case of ineffective assistance of counsel on the part of her
trial or appellate attorneys. Accordingly, defendant was not
entitled to an evidentiary hearing on her petition.
III.
Defendant argues that the PCR court erred by refusing to
permit her to withdraw her plea.
Where, as here, defendant has filed a motion for the
withdrawal of her plea after sentencing, she must show that
withdrawal is required "to correct a manifest injustice." R. 3:21-
1. "[A] plea may only be set aside in the exercise of the court's
discretion." Slater, 198 N.J. at 156 (citations omitted).
In Slater, the Court identified four factors that the trial
courts should consider when evaluating a motion to withdraw a
guilty plea. Slater, 198 N.J. at 150. Those factors are: "(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." Ibid. The court must consider and balance all
18 A-0311-16T3
factors. Id. at 162. "No factor is mandatory; if one is missing,
that does not automatically disqualify or dictate relief." Ibid.On appeal, defendant contends that she did not provide an
adequate factual basis for the plea, and that she has asserted a
colorable claim of innocence. She further argues she has compelling
reasons to withdraw her plea because she was denied the effective
assistance of counsel with regard to the plea. In addition, she
contends the State would not be prejudiced and she would not have
any advantage if permitted to withdraw the plea.
Here, the record fully supports the PCR court's denial of
defendant's motion. Defendant failed to show that withdrawal of
the plea is required "to correct a manifest injustice." R. 3:21-
1; Slater, 198 N.J. at 156. As we have explained, defendant
provided an adequate factual basis for her plea and,
notwithstanding her arguments to the contrary, she did not present
a colorable claim of innocence. She failed to "present specific,
credible facts" in support of her claim of innocence. Id. at 158(citations omitted).
The judge also found defendant did not present sound reasons
to withdraw her plea. In addition, the judge determined that
defendant had entered her plea as a result of a plea agreement,
and the State would be prejudiced if defendant were allowed to
19 A-0311-16T3
withdraw her plea. Defendant had already realized the benefit of
her plea.
The judge pointed out that defendant entered her plea in part
to protect her mother from a lengthy prison term, and defendant's
mother would have served her full sentence by December 16, 2016.
Furthermore, Morris had agreed to cooperate in the prosecution,
and he had served his seven-year sentence. The judge found that
Morris no longer had any incentive to cooperate in the prosecution.
The record supports these findings.
Affirmed.
20 A-0311-16T3