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NOT FOR PUBLICATION WITHOUT THE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

4 A-2382-16T4
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

5 A-2382-16T4
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

7 A-2382-16T4
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).

9 A-2382-16T4
 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

10 A-2382-16T4
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

11 A-2382-16T4
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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