NOT FOR PUBLICATION WITHOUT THE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-1155-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHANIQUA A. PIERRE, a/k/a SHEEK,
Defendant-Appellant.
____________________________________________
Submitted October 10, 2017 – Decided November 15, 2017
Before Judges Messano and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
11-02-0440.
Joseph E. Krakora, Public Defender, attorney
for appellant (Durrell Wachtler Ciccia,
Designated Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Shaniqua A. Pierre pled guilty to first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a). During her colloquy
with the judge, defendant denied taking any drugs or alcohol that
might have affected her ability to think clearly that day,
evidenced an understanding of her rights and the terms of the plea
bargain and indicated she was knowingly and voluntarily pleading
guilty.
Defendant filed a pro se request to withdraw her plea prior
to sentencing, claiming she suffered from bi-polar disorder and
had not taken her medications for some period prior to pleading
guilty. Noting that she had some contact with the jail regarding
defendant's "psychiatric issue[s]," defense counsel requested an
adjournment to review defendant's complete medical records. The
judge denied the adjournment, considered the factors enunciated
in State v. Slater, 198 N.J. 145, 158-62 (2009), denied defendant's
motion to withdraw her guilty plea and sentenced her in accordance
with the plea bargain to twenty-five years' imprisonment, subject
to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Our colleagues heard defendant's appeal of her sentence on
the Excessive Sentence Oral Argument calendar. They remanded the
matter to the trial court to permit defendant to "renew her motion
to withdraw her guilty plea . . . with supporting medical records
and any other appropriate amplified proofs." State v. Shaniqua
A. Pierre, order remanding matter to trial court, No. A-2225-11
(App. Div. Nov. 13, 2012).
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On remand, the judge conducted a hearing, at which Dr. Edward
J. Dougherty, a forensic psychologist, and defendant testified.
Based on his review of defendant's medical records and clinical
interview, Dr. Dougherty concluded defendant suffered from bipolar
disorder and schizoaffective disorder. Dr. Dougherty opined that
defendant would have exhibited observable symptoms of her illness
had she not been taking her medication at the time she pled guilty.
Defendant testified that although she was given the medication at
the jail, she "cheek[ed] it," i.e., kept it in her mouth without
swallowing and sold it instead.
The judge did not believe defendant's testimony. He found
that although she claimed to have stopped taking her medication,
defendant exhibited no decompensating symptoms during the plea
allocution, which had been video recorded. He again denied
defendant's motion to withdraw her guilty plea and reaffirmed his
findings of aggravating and mitigating sentencing factors in
support of the sentence imposed.
Defendant did not file a direct appeal, but, instead, filed
a pro se petition for post-conviction relief (PCR). She alleged
trial counsel provided ineffective assistance (IAC) by failing to
psychiatrically evaluate defendant and assert a diminished
capacity defense. Defendant claimed that she would not have pled
guilty had counsel performed adequately.
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PCR counsel was appointed and filed an extensive brief in
support of the petition raising other arguments, including trial
counsel's failure to file a direct appeal following the remand
hearing and trial counsel's concession during the remand hearing
that defendant did not assert a "colorable claim of innocence."
See Slater, supra, 198 N.J. at 158-59.1 The PCR judge, who was
not the trial judge, granted defendant an evidentiary hearing.
Defendant testified and called Dr. Kenneth Weiss, a forensic
psychiatrist, and trial counsel as additional witnesses.
Defendant again stated that she never took her medications and
sold them inside the jail instead. After her motion to withdraw
was denied following remand, she advised her attorney she wanted
to appeal. Dr. Weiss concluded that at the time of her guilty
plea, defendant's "mental state was impaired to the point that
. . . the waiver of rights and the guilty plea, were neither
knowing, intelligent nor voluntary."
Trial counsel testified that the State's evidence against
defendant was very strong, and she urged defendant to accept the
plea bargain. She never sought defendant's medical records until
1
Apparently, the petition was supported by a certification from
trial counsel that is not in the appellate record. However, in
her oral decision granting defendant an evidentiary hearing, the
PCR judge referenced some of the certification's contents.
4 A-1155-15T3
defendant filed her pro se motion to withdraw her guilty plea.
Counsel thought that was a terrible idea and so advised defendant.
Counsel believed defendant had no "colorable claim of
innocence" and acknowledged conceding that point during the remand
hearing, arguing instead on remand that defendant's guilty plea
was not voluntarily given. Counsel did not recall Dr. Daugherty's
testimony, but she claimed our remand order required defendant "do
something" by way of further medical proof or withdraw the
application. Defendant refused to withdraw her motion to retract
her guilty plea. In the end, counsel was not "excited about
bringing [Dr. Daugherty] before the court." Lastly, counsel
acknowledged that she did not file a direct appeal following the
remand, but stated defendant never asked her to do so.
In a thorough oral opinion, the PCR judge found defendant and
Dr. Weiss were not credible witnesses. The judge also found trial
counsel was credible. Based upon her review of defendant's guilty
plea, the judge concluded defendant voluntarily and knowingly pled
guilty. The judge conducted her own analysis of the Slater factors
and rejected any claim that defendant should be permitted to
withdraw her guilty plea or that trial counsel's performance was
deficient.
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Before us, defendant raises a single point:
THE LOWER COURT ERRED IN DENYING DEFENDANT'S
REQUEST TO WITHDRAW HER PLEA BARGAIN
Having considered the argument, we affirm.
Although defendant continues to assert an IAC claim, she
fails to explain exactly how trial counsel was deficient. Rather,
defendant's complete legal argument is as follows:
It was an abuse of discretion for the lower
court to discard the opinion of the medical
expert. Dr. Weiss opined that, to a
reasonable degree of psychiatric certainty,
[defendant] was not acting in a knowing and
voluntary manner at the time of her plea and
should have been able to retract her plea.
Based on the doctor's opinion, the lower court
should have withdrawn the plea and granted
[defendant] a jury trial.
There are several reasons why this argument lacks sufficient merit
to warrant extensive discussion. R. 2:11-3(e)(2).
Defendant's challenge to the denial of her motion to withdraw
her guilty plea following the remand hearing was never raised on
direct appeal, even though it could have been. It is, therefore,
barred by Rule 3:22-4 (generally barring PCR relief on a "ground
. . . not previously asserted" unless the claim "could not have
been raised in any prior proceeding" or "enforcement of the
bar . . . would result in [a] fundamental injustice").
Defendant would be entitled to relief from this procedural
bar if trial counsel provided ineffective assistance by not filing
6 A-1155-15T3
an appeal when requested. See State v. Perkins, 449 N.J. Super.
309, 311 (App. Div. 2017) ("[T]rial counsel's failure to file a
direct appeal when requested by the defendant is presumed
prejudicial and constitutes ineffective assistance of counsel"
permitting a defendant to file a direct appeal out of time). Here,
however, the PCR judge found as a fact defendant never asked trial
counsel to file an appeal after the denial of her motion to
withdraw her guilty plea following remand.
Most importantly, even if, for example, we considered Dr.
Weiss's report as newly discovered evidence making the argument
cognizable at this point, the PCR judge carefully detailed the
reasons why she rejected Dr. Weiss's opinion. "We defer to the
findings of the PCR court in weighing witness testimony when those
findings are supported by sufficient credible evidence in the
record." State v. Nash, 212 N.J. 518, 553 (2013). That was the
case here.
Affirmed.
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