NOT FOR PUBLICATION WITHOUT THE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-2742-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAKEYSHA L. PRUITT,
Defendant-Appellant.
________________________________
Submitted September 25, 2018 – Decided October 18, 2018
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Accusation No. 14-06-1806.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robert Carter Pierce, Designated Counsel,
on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Nancy P. Scharff, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an order of the Law Division dated February 3,
2017, which denied her petition for post-conviction relief (PCR). We affirm.
I.
On July 28, 2013, Kafarr Logan Horton called a friend and asked him to
come to his residence in Oaklyn, New Jersey. Horton said he would help his
friend retrieve his car, but he first had to drive a female to Camden. Horton's
friend drove to Horton's residence, and honked his horn to let Horton know he
had arrived. Horton and a female exited the apartment. Horton was covered in
blood from his chest to his shoes, and he said he had been stabbed. Horton had
to lean on the female to walk to the car. They entered the car and drove to a
hospital in Camden. Horton later was taken to a trauma center where he died.
The police investigated the incident, obtained surveillance videos, and
identified defendant as the female who accompanied Horton to the hospital.
Defendant later provided a statement to investigators at the Camden County
Prosecutor's Office. Initially, defendant denied knowing Horton, but later
admitted she was with him on July 28, 2013. Defendant said she met Horton at
a Dunkin' Donuts, and after making other stops, they went to his apartment.
Defendant stated that she and Horton had sexual intercourse twice. She
claimed Horton became rough the second time, and after they finished, Horton
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was lying on the bed talking on his phone. Defendant went to the kitchen, took
a knife, hid it under a towel, and returned to the bedroom. She stabbed Horton
in the chest. Defendant was charged in W-2013-000115-0426 with purposeful
and knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) or (2).
On June 19, 2014, defendant appeared before Judge John T. Kelley,
waived indictment, and pled guilty to first-degree aggravated manslaughter,
contrary to N.J.S.A. 2C:11-4(a). The State agreed to drop the murder charge.
The State also agreed to an open plea, with a maximum term of twenty years of
incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At the plea hearing, defendant admitted that on July 28, 2013, she
accompanied Horton to his apartment where they had "intimate relations" and
got into a dispute. She said she left the bedroom, went to the kitchen, got a
knife, folded it in a towel, and returned to the bedroom where she stabbed Horton
twice in the chest. Defendant admitted she recklessly caused Horton's death
under circumstances manifesting indifference to human life. She also waived
any defense of intoxication, self-defense, or passion/provocation.
Judge Kelley sentenced defendant on July 25, 2014. The judge found
aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will
commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter
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3
defendant and others from violating the law). The judge found mitigating factor
seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no history of prior delinquency or
criminal activity). The judge also found mitigating factor nine, N.J.S.A. 2C:44-
1(b)(9) (character and attitude of defendant indicate she is unlikely to commit
another offense), but gave it little weight. The judge sentenced defendant to
twenty years of incarceration, subject to NERA. The judge filed a judgment of
conviction (JOC), dated July 29, 2014.
Defendant appealed and challenged her sentence, and the court heard the
appeal on its Excessive Sentence Oral Argument calendar. See R. 2:9-11. The
court affirmed defendant's sentence, finding that it was not manifestly excessive,
unduly punitive, or an abuse of discretion. State v. Pruitt, No. A-0830-14 (App.
Div. March 10, 2015).
On May 11, 2016, defendant filed a pro se petition for PCR. The trial
court assigned counsel to represent defendant, and counsel filed an amended
petition. Defendant also filed a certification in support of her petition. Judge
Kelley heard oral argument and placed a decision on the record.
Judge Kelley determined that Rules 3:22-3, 3:22-4, and 3:22-5 barred
defendant's claims regarding her sentence because a PCR petition is not a
substitute for a direct appeal; and the issues presented either were decided in the
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prior appeal, or could have been raised in that proceeding. The judge also
determined that defendant had not presented a prima facie claim of ineffective
assistance of counsel, and an evidentiary hearing was not required. The judge
entered an order dated February 3, 2017, denying PCR.
Defendant appeals and argues:
POINT I
THE PCR COURT ERRED BY NOT MAKING
FINDINGS OF FACT AND CONCLUSIONS OF
LAW CONCERNING [DEFENDANT'S] PRO SE
[PETITION FOR] PCR.
POINT II
THE PCR COURT ERRED BY NOT ORDERING
THE RESENTENCING OF [DEFENDANT],
BECAUSE SHE WAS DEPRIVED OF [THE]
EFFECTIVE ASSISTANCE OF COUNSEL AT THE
SENTENCING STAGE OF THE CRIMINAL
PROCEEDING.
POINT III
THE PCR COURT ERRED BY DENYING
[DEFENDANT] AN EVIDENTIARY HEARING.
POINT IV
THE PCR COURT ERRED IN DENYING
[DEFENDANT] PCR UPON PROCEDURAL
GROUNDS PURSUANT TO [RULES] 3:22-3, 3:22-4
AND 3:22-5.
POINT V
[DEFENDANT] WAS DEPRIVED [OF] EFFECTIVE
ASSISTANCE OF PCR COUNSEL. (Not Raised
Below).
A-2742-16T1
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II.
As noted, on appeal, defendant argues that the PCR court erred by finding
that she failed to present a prima facie case of ineffective assistance of counsel
and denying her request for an evidentiary hearing. She also contends the PCR
court erred by finding that her claims were barred by Rules 3:22-3, 3:22-4, and
3:22-5.
The PCR court should conduct an evidentiary hearing if the defendant
presents a prima facie case in support of PCR, 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)). "To
establish a prima facie case, defendant must demonstrate a reasonable likelihood
that his or her claim, viewing the facts alleged in the light most favorable to the
defendant, will ultimately succeed on the merits." R. 3:22-10(b).
A claim of ineffective assistance of counsel is reviewed under the two-
part test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), and
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under
Strickland, the defendant must show that counsel's performance was deficient
and, if so, that there was a "reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694.
Here, defendant argues she was denied the effective assistance of counsel
at sentencing. She asserts she stabbed Horton without warning. She states that
instead of fleeing, she attempted to render treatment and accompanied Horton
to the hospital, where she purportedly apologized to him. Defendant argues that
"[t]he red flags for mental disease or defect were readily apparent" and "defense
counsel was required to investigate [her] mental health by ordering a psychiatric
evaluation."
Defendant asserts that if her attorney had taken that course, counsel would
have had psychiatric evidence that she was suffering from Post-Traumatic Stress
Disorder (PTSD), depression, and other mental disorders, which were not being
treated at the time of the incident. She claims this would have supported
findings by the sentencing judge of mitigating factors four, N.J.S.A. 2C:44-
1(b)(4) (substantial grounds tending to excuse or justify defendant's conduct);
and eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct the result of
circumstances unlikely to recur). 1
1
Defendant also claims the evidence would have supported a finding of
mitigating factor nine; however, as noted previously, at sentencing, the judge
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Judge Kelley found, however, that defendant's attempt to re-argue the
aggravating and mitigating factors is barred by Rule 3:22-3 because a PCR
petition is not a substitute for a direct appeal. The judge also found that the
claim was barred by Rules 3:22-4 and 3:22-5 because defendant challenged her
sentence on direct appeal. In that appeal, defendant argued that the sentencing
judge erred by finding aggravating factor three. Judge Kelley noted that
defendant could have argued that the judge erred by failing to find mitigating
factors four and eight.
In addition, Judge Kelley determined that mitigating factor four did not
apply. The judge noted that defendant had submitted five medical records. Two
of those records had little or no comment on any mental health issue. The three
remaining records appeared to be from a psychologist or psychiatrist, and
indicated that defendant suffered from anxiety and depression two years before
she stabbed Horton.
The judge found that there was insufficient evidence to link defendant's
mental health problems and the offense. In addition, the judge noted that drug
dependency is not justification for an offense and is not considered a mitigating
found mitigating factor nine but gave it little weight. The JOC does not mention
that finding.
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factor for sentencing purposes. See State v. Ghertler, 114 N.J. 383, 390 (1989);
State v. Towey, 244 N.J. Super. 582, 595 (App. Div. 1990).
The judge also found that defendant's untreated mental health problems
and substance abuse did not support a finding of mitigating factor eight. The
judge noted that defendant had already received the benefit of a downgraded
charge from purposeful, knowing murder to aggravated manslaughter, which
substantially reduced her sentencing exposure. The judge found that it would
be inappropriate to give defendant an additional benefit by finding mitigating
factor eight.
The judge also determined that there was no basis to find mitigating factor
twelve. The judge pointed out that defendant initially denied any involvement
in Horton's stabbing and only confessed after she was confronted with the
surveillance tape showing her at the hospital with Horton. Defendant did not
assist law enforcement officers resolve other crimes. The judge therefore found
that mitigating factor twelve did not apply.
The record supports Judge Kelley's findings of fact and his conclusion that
defendant failed to present a prima facie case of ineffective assistance of
counsel. The record supports the judge's conclusion that counsel did not err by
failing to argue mitigating factors four, eight, and twelve at sentencing. The
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record also supports the judge's finding that defendant had not shown the result
would have been different if counsel had argued for the additional mitigating
factors. Moreover, despite defendant's claim to the contrary, defense counsel
did argue mitigating factor nine.
III.
Defendant further argues that the matter should be remanded to the PCR
court because the judge did not address the claims asserted in her pro se petition.
Defendant argues that she was denied the effective assistance of counsel at the
plea stage of the proceedings.
Where, as here, the defendant alleges she was denied the effective
assistance of counsel with regard to a guilty plea, defendant must establish that
counsel's performance "was not 'within the range of competence demanded of
attorneys in criminal cases[.]'" State v. DiFrisco, 137 N.J. 434, 457 (1994)
(quoting Tollett v. Henderson, 411 U.S. 258, 266 (1973)). The defendant also
must show "there is a reasonable probability that, but for counsel's errors, [the
defendant] would not have [pleaded] guilty and would have insisted on going to
trial." Ibid. (first alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52,
59 (1985)); see also State v. Nuñez-Valdéz, 200 N.J. 129, 142 (2009) (quoting
DiFrisco, 137 N.J. at 457).
A-2742-16T1
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Defendant claims she did not enter her guilty plea knowingly and
intelligently because her attorney allegedly "fail[ed] to advise her of available
defenses, such as PTSD, self-defense, diminished capacity[,] and battered
woman's syndrome." She claims her attorney did not "explain the elements that
constitute the crime of aggravated manslaughter[,] and that the State ha[d] the
burden of proving all of the elements beyond a reasonable doubt." She asserts
her attorney should have obtained a psychiatric evaluation, which would have
revealed she was suffering from PTSD and other mental disorders.
Here, Judge Kelley noted in his order denying PCR that he had considered
defendant's pro se arguments. In his decision, Judge Kelley specifically noted
the standard that applies to claims of ineffective assistance of counsel regarding
a plea. The judge stated that defendant claimed her attorney did not properly
investigate the case but failed to present an affidavit or certification setting forth
the facts such an investigation would have revealed. The judge also pointed out
there was insufficient evidence to support defendant's claim that her mental
health disorders contributed to the commission of the offense.
Furthermore, the transcript of the plea hearing provides no support for
defendant's claim that her attorney failed to provide her with sufficient advice
when she entered her plea. The court asked defendant whether she had an
A-2742-16T1
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opportunity to review the case with her attorney, and she said, "Yes." The court
asked defendant whether her lawyer had answered all of her questions about the
charges. She replied, "Yes." Defendant also acknowledged counsel had
provided her with all of the discovery materials. Defendant acknowledged that
by pleading guilty, she was giving up certain rights, including the right to a jury
trial and the right to have the State prove she was guilty beyond a reasonable
doubt.
In addition, defendant told the court she understood the charge of
aggravated manslaughter. She said she was satisfied with the legal advice
provided by her attorney, and she was pleading guilty voluntarily. Defendant
was asked if she was waiving a defense based on intoxication, self-defense, or
passion/provocation. She replied, "Yes." She also said she had discussed these
defenses with her attorney and she understood them.
We therefore reject defendant's contention that the PCR court failed to
address the claims asserted in her pro se petition. The record supports the PCR
court's determination that defendant had not presented a prima facie case of
ineffective assistance of counsel with regard to her plea.
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IV.
Defendant also argues that she was denied the effective assistance of PCR
counsel. She argues PCR counsel was deficient in failing to order a psychiatric
evaluation and present those findings to the PCR court. She also contends PCR
counsel erred by failing to provide sufficient support to her contention that she
was denied the effective assistance of counsel at the plea stage of the
proceedings. We decline to address these arguments because defendant raises
them for the first time on appeal. See State v. Robinson, 200 N.J. 1, 20 (2009)
(citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). If defendant
wishes to pursue a claim that she was denied the effective assistance of PCR
counsel, she must first do so in the trial court.
Affirmed, but remanded to the trial court to enter a corrected JOC stating
that the court found mitigating factor nine, but gave this factor little weight.
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