STATE OF NEW JERSEY VS. SHATARA S. CARTER (10-05-1501, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2382-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHATARA S. CARTER, a/k/a
FIESTY RUE,
Defendant-Appellant.
_______________________________
Submitted May 15, 2018 – Decided July 12, 2018
Before Judges Reisner, Hoffman, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Accusation No.
10-05-1501.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Shatara S. Carter appeals from an October 28, 2016
order denying her petition for post-conviction relief (PCR). We
affirm.
When defendant was fourteen years old, she was arrested and
charged with first-degree murder in connection with the brutal,
gang-related murders of two victims, Michael Hawkins and his
girlfriend, Mariah Huff. The murders took place on February 22,
2010, in Camden. On February 25, 2010, the police found two bodies
buried in a shallow grave in the back yard of the house where
defendant lived with her family. Defendant quickly confessed that
she personally participated in killing Huff, who was beaten,
strangled, and finally suffocated with a plastic bag over her
head. Defendant told the police that she and her co-defendants
were members of a street gang, while Hawkins belonged to a rival
gang.
The State filed a motion to have defendant tried as an adult,
and a waiver hearing was scheduled for May 26, 2010. Prior to the
scheduled hearing date, defendant's attorney had defendant
examined by a psychologist, Dr. David F. Bogacki. In his May 1,
2010 report, Dr. Bogacki found that defendant had borderline
intelligence and suffered from depression. However, he did not
opine that defendant could be rehabilitated prior to her nineteenth
birthday. Nor can his report be fairly construed to imply such
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an opinion. On the record presented to the PCR court and on this
appeal, there was no evidence that defendant could have avoided
waiver by proceeding with the waiver hearing.
The day before the waiver hearing took place, defendant
reached a plea agreement with the State. Pursuant to the deal,
defendant would consent to have her case prosecuted in adult court,
and the State would downgrade the first-degree murder charge to
aggravated manslaughter and recommend a twenty-year sentence
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In a separate memorandum, defendant agreed that, as a condition
of the plea agreement, she would give truthful testimony against
co-defendants. The memorandum recited that defendant wished to
be sentenced immediately, rather than after the trials of the co-
defendants. The memorandum made clear that, in return for agreeing
that defendant could be sentenced before providing the promised
cooperation, the State retained the right to move to revoke the
plea deal if defendant failed to cooperate.
On May 25, 2010, at a juvenile court hearing attended by
defendant, her family members, and her attorney, defendant agreed
to a voluntary waiver to adult court. See N.J.S.A. 2A:4A-27.
Later that same day, defendant and her attorney appeared in adult
court, where she entered a guilty plea to aggravated manslaughter.
Defendant was sentenced on August 19, 2010, to twenty years in
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prison subject to NERA, per the plea agreement. Defendant appealed
the sentence, contending that it was excessive. We heard the
matter on an Excessive Sentence Oral Argument calendar and affirmed
the sentence. State v. Carter, No. A-2667-10 (App. Div. Dec. 14,
2011).
Thereafter, the State filed a motion to vacate defendant's
plea agreement, claiming that she failed to give truthful testimony
at the trial of one of the co-defendants. By the time defendant
gave the allegedly untruthful testimony, she was seventeen. In
opposing the State's motion, her defense counsel argued that
defendant should have had advice of counsel at the time that she
provided the testimony. At a February 21, 2014 hearing, the motion
judge rejected that argument and granted the State's motion,
finding no published precedent supporting defendant's claim.
Immediately after the judge granted the State's motion, the
parties placed on the record a renegotiated plea agreement to the
original charges. In the agreement, defendant once again agreed
to plead guilty to aggravated manslaughter, and the State agreed
not to charge her with perjury for her allegedly untruthful trial
testimony. The parties also agreed that the potential sentence
would be capped at twenty-five years. At the request of both
sides, the judge then held a sentencing hearing. In her
allocution, defendant stated that she did not believe the
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cooperation agreement required her to testify against her
boyfriend, who was the co-defendant at whose trial she allegedly
gave false testimony. However, defendant indicated that she was
willing to accept the proposed twenty-five year sentence.
The judge rejected the State's sentencing recommendation and
instead sentenced defendant to twenty-two years subject to NERA,
with approximately four years of jail credit. After imposing
sentence, the judge advised defendant that she had forty-five days
in which to file an appeal and asked her if she had discussed her
appellate rights with her attorney. Defendant replied that she
had. However, defendant did not appeal from the February 21, 2014
judgment of conviction.
More than a year later, on June 19, 2015, defendant filed a
pro se PCR petition, which her assigned PCR counsel supplemented
on March 16, 2016. Defendant asserted that her original trial
attorney rendered ineffective assistance of counsel, by advising
her to enter into a plea agreement calling for her to be tried and
sentenced as an adult. She also argued that the attorney was
ineffective for asking that defendant be sentenced before giving
her cooperating testimony at the co-defendants' trials, because
that course of action resulted in her having no assigned attorney
to represent her at the time she testified in those trials.
However, defendant's petition was not supported by a certification
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explaining what she would or might have done differently if she
had counsel representing her. Defendant did not explain the reason
for the immediate-sentencing provision of the agreement, nor did
she deny that she wanted that provision.
Defendant's petition also contended that the attorney who
represented her at the February 21, 2014 motion, plea and
sentencing hearing was ineffective, in failing to recommend that
she file a direct appeal from the judgment of conviction resulting
from that hearing. However, defendant did not contend that she
asked the attorney to file an appeal on her behalf, although the
record reflects that the judge advised her of her appeal rights
and she confirmed she had discussed the issue with her attorney.
Defendant did not provide a certification addressing the appeal
issue, and hence, there was no legally competent evidence as to
what advice her attorney gave her about whether to appeal.
Defendant's petition further contended that the 2010
cooperation agreement was unenforceable because it was signed by
a minor, and the court should reinstate the original twenty-year
sentence. She also contended that she was entitled to withdraw
her guilty plea altogether under State v. Slater, 198 N.J. 145
(2009), and State v. Munroe, 210 N.J. 429 (2012). Defendant did
not seek to repudiate her admission of guilt, but argued she had
a "colorable claim" that her case should have remained in juvenile
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court. In a supplemental brief, defendant also argued that newly-
enacted amendments to the juvenile waiver statute precluded waiver
to adult court of a minor under the age of fifteen, and the statute
should apply retroactively to her situation. See N.J.S.A. 2A:4A-
26.1.
The PCR judge rejected defendant's arguments in a lengthy
oral opinion on October 28, 2016. The judge concluded that the
amendment to the juvenile waiver statute, N.J.S.A. 2A:4A-26.1, was
not intended to apply retroactively to juveniles who, like
defendant, had already been waived and sentenced years before the
amendment. He also noted the State's argument that the amendment
to section 26.1, prohibiting certain involuntary waivers, did not
apply to voluntary waivers, which remain permitted under N.J.S.A.
2A:4A-27.
The judge reasoned that defendant's ineffective assistance
claims could have been raised on the direct appeal she filed in
2010, or on a direct appeal she could have filed in 2014. However,
the judge also addressed the merits of defendant's claims.
The judge concluded that, based on the seriousness of the
charge she faced, the horrendous details of the murders, and the
weakness of Dr. Bogacki's report, defendant would not have
prevailed at a waiver hearing. Thus, defendant's trial counsel
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was not ineffective in advising her to waive the hearing and enter
into a plea agreement.
The judge found that defendant wanted to be sentenced as soon
as possible, rather than waiting until after the trials of her co-
defendants. He also found that her claim was not supported by any
certification attesting that she would have testified differently
at the co-defendant's trial if she had counsel to advise her. In
fact, he noted later in his opinion, that defendant strategically
obtained the benefit of the twenty-year sentence, without having
to first testify against her boyfriend.
The judge further reasoned that defendant was represented by
counsel on the motion to vacate the plea agreement, and defendant
did not claim that attorney was ineffective. The judge found
nothing ineffective in counsel failing to file an appeal, when
there was no precedent supporting a right of a cooperating witness
to court-appointed counsel during the trials of co-defendants.
The judge found no merit in defendant's argument that she could
not enter into a cooperation agreement because she was a minor.
He noted that she was represented by counsel, and the entire plea
agreement was approved by the court. Finally, the judge rejected
defendant's Slater arguments, noting that she had confessed to
participating in the murder, but nonetheless obtained a very
favorable plea agreement.
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On this appeal, defendant raises the following points of
argument:
POINT I: DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF SHOULD NOT BE BARRED BECAUSE
DEFENDANT COULD NOT HAVE BROUGHT HER CLAIMS
IN A PRIOR PROCEEDING AND THE INTERESTS OF
JUSTICE REQUIRE HER CLAIMS BE HEARD
POINT II: DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL ENTITLING HER TO POST
CONVICTION RELIEF AND AN EVIDENTIARY HEARING.
(A) Counsel was ineffective for
advising defendant to voluntarily
waive her rehabilitation hearing
and have her matter heard in adult
court.
(B) Counsel was ineffective for
allowing the defendant to be
sentenced before fulfilling the
obligations of her plea agreement
thereby leaving her unrepresented
during a critical stage of the
proceedings.
POINT III: DEFENDANT IS ENTITLED TO WITHDRAW
HER PLEA BECAUSE THE NATURE AND STRENGTH OF
HER CLAIM OUTWEIGH THE STATE'S INTEREST IN
PRESERVING THE PLEA.
POINT IV: DEFENDANT'S WAIVER TO ADULT COURT
IS INVALIDATED BY THE RETROACTIVE APPLICATION
OF N.J.S.A. 2A:4A-26.1 BECAUSE SHE MADE THE
WAIVER AT A TIME WHEN SHE WAS UNDER THE AGE
OF FIFTEEN.
Except to the extent discussed below, defendant's arguments
were correctly addressed by the PCR judge and are without
sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
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We agree with defendant that her ineffective assistance of
counsel arguments could not have been raised on direct appeal.
See State v. Hess, 207 N.J. 123, 145 (2011). However, they are
also uniformly without merit as PCR arguments. Most significantly,
defendant confessed, in graphic detail, to her personal
participation in a particularly brutal and senseless murder. The
defense psychological report was inadequate to demonstrate that
she could be rehabilitated before age nineteen. Defendant faced
almost certain waiver to adult court, where she would be tried for
first-degree murder. Defendant has not established that there was
any additional evidence that her attorney could have presented
that would have been more persuasive than Dr. Bogacki's report.
See State v. Jack, 144 N.J. 240, 254-55 (1996). As a result, she
has not presented a prima facie case that her trial attorney was
ineffective in advising her to enter into the plea agreement.
Ibid.
We also find no evidence that the attorney was ineffective
in obtaining for defendant an agreement she wanted, allowing her
to be sentenced in advance of her cooperation in testifying against
co-defendants. That was a very favorable aspect of the deal,
because she got the benefit of her bargain before providing the
State with the promised cooperation. Defendant also did not
provide any certification, or other legally competent evidence
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explaining how that provision of the cooperation agreement came
about or denying that it represented her wishes. Bald assertions
are insufficient to support a PCR petition or to justify holding
an evidentiary hearing. See State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999).
Defendant did not provide any legally competent evidence, or
even a representation, that she asked her attorney to file an
appeal from the February 21, 2014 judgment of conviction. Nor did
she certify that the attorney either failed to consult with her
about filing an appeal or that he advised her against filing an
appeal. As a result, she is not entitled to PCR with respect to
her attorney's alleged "failure" to file an appeal. See Roe v.
Flores-Ortega, 528 U.S. 470, 477-80 (2000); State v. Jones, 446
N.J. Super. 28, 33-35 (App. Div. 2016). Defendant is also barred
by Rule 3:22-4 from raising, on PCR, issues that she could have
raised on that appeal. On a direct appeal, defendant could have
raised the claim that, because she was unrepresented during her
testimony about the co-defendant, the trial court should not have
set aside her original plea deal based on her violation of the
cooperation agreement. Hence, she cannot raise the issue in a PCR
petition. See R. 3:22-4.
Lastly, we need not address the retroactive application of
N.J.S.A. 2A:4A-26.1, prohibiting involuntary waivers of minors
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under the age of fifteen. Because defendant voluntarily agreed
to the waiver, her reliance on State in the Interest of J.F., 446
N.J. Super. 39, 55 (App. Div. 2016), is misplaced. J.F. held that
N.J.S.A. 2A:4A-26.1(c)(1) would be applied retroactively in that
case. However, when the Legislature enacted N.J.S.A. 2A:4A-26.1,
it left untouched the provisions of N.J.S.A. 2A:4A-27, which
permits voluntary waivers by minors age fourteen and older, and
voluntary waivers by minors under fourteen who are charged with
murder. We conclude that N.J.S.A. 2A:4A-27 applies here. Even if
we were so inclined, we could not rewrite that section of the
statute to provide defendant relief. See O'Connell v. State, 171
N.J. 484, 488 (2002).
When she was fourteen, defendant committed a horrendous and
brutal crime, resulting in the death of an innocent victim. Under
the terms of her sentence, defendant will be eligible for parole
when she is in her early thirties. Hopefully, by that time, she
will have achieved sufficient life skills, maturity and insight
to enable her to live a law-abiding life after release from prison.
Affirmed.
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