SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1061-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

KEYSHON SOWELL,

Defendant-Appellant.

_______________________

Submitted September 13, 2018 – Decided

Before Judges Koblitz and Currier. 

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 07-11-

0986.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Rasheedah Terry, Designated Counsel, on 

the brief).

Michael A. Monahan, Acting Union County

Prosecutor, attorney for respondent (Michelle J. Ghali, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

September 25, 2018
2

A-1061-16T2

Defendant Keyshon Sowell appeals from the July 7, 2016 denial of his 

petition for post-conviction relief (PCR) without an evidentiary hearing. 

Defendant pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1, 

of a twelve-year-old child, Z.D.,1and an adult, Shakeena Dean. He admitted 

participating in an armed home-invasion robbery with three co-defendants in 

July 2007. The four men had knives and a child was struck in the head and 

injured when the door was kicked open. Defendant received two concurrent 

sentences of sixteen years in prison, with eighty-five percent parole ineligibility 

under the No Early Release Act, N.J.S.A. 2C:43-7.2. The remaining counts in 

the indictment and an additional indictment were dismissed. We affirmed on 

appeal, State v. Sowell, No. A-3568-09 (App. Div. Oct. 8, 2013) (slip op. at 26), 

and the Supreme Court denied certification, State v. Sowell, 217 N.J. 587 

(2014).

In our prior opinion we reviewed the facts and issues raised on direct 

appeal, affirming both the convictions and sentence. On direct appeal defendant 

raised several issues including, as Point III:

DEFENDANT'S PLEA TO COUNT FIVE WAS 

ACCEPTED WITHOUT ADEQUATE FACTUAL 

BASIS AND THE ENTIRE GUILTY PLEA MUST BE 

VACATED BY THIS COURT. (Not Raised Below.)

 

1 The child is identified by initials in the indictment. 
3

A-1061-16T2

In discussing that issue, we wrote:

We agree that in order to establish the elements of 

robbery of Z.D., defendant needed to admit he 

committed a theft against Z.D. It would not suffice to 

admit to theft only from [Dean],[2]the victim in count 

two, to which defendant also pleaded. See State v. 

Sewell, 127 N.J. 133, 137-38 (1992) (stating that one 

robbery was committed, not three, where defendant 

committed one theft, but inflicted physical harm on 

three persons). "[E]ach robbery is a separate crime, 

which entails a discrete theft from a single victim 

together with accompanying injury or force." Id. at 137. 

See also State v. Lawson, 217 N.J. Super. 47, 51, (App. 

Div. 1987) ("N.J.S.A. 2C:15-1(a) should not be 

extended by implication to sustain two robbery 

convictions for assaults upon two victims in immediate 

flight after a theft or attempted theft from a third 

victim.").

In pleading to robbery of Z.D., defendant did not 

explicitly state that he committed a theft against her. 

However, he did so indirectly, by incorporating by 

reference his actions pertaining to [Dean]. Defendant 

admitted that "[his] conduct that [he] described for 

Count 2 involved that conduct regarding all people that 

were there." Defendant argues that the referenced 

conduct pertained only to the threats of force. However, 

there is no basis in the record to interpret "conduct" so 

restrictively. With respect to count two, defendant 

affirmatively answered the judge's leading questions, 

asking him whether he was "involved with or 

threatened bodily injury to [Dean] or put her in fear 

with any kind of a weapon or indicate[d] a deadly 

weapon"; whether he "stole stuff from her"; and 

 

2

 We correct the name of the adult victim; all other modifications are in the original.
4

A-1061-16T2

whether he possessed and displayed a weapon to put her 

in fear. The phrase "conduct . . . described for Count 2" 

incorporated by reference all those actions, including 

theft.

[Sowell, slip op. at 24-26.]

As Point IV on direct appeal, defendant argued:

THE TRIAL COURT IMPROPERLY BALANCED 

THE AGGRAVATING AND MITIGATING 

CIRCUMSTANCES RESULTING IN THE 

IMPOSITION OF A MANIFESTLY EXCESSIVE 

SENTENCE.

We determined:

Finally, defendant's challenge to his sentence lacks 

sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2). Suffice it to say that we find 

no error in the court's exercise of its sentencing 

authority. We are satisfied that the judge's findings 

regarding aggravating and mitigating factors were 

based upon competent and credible evidence in the 

record, that the judge correctly applied the sentencing 

guidelines set forth in the Code of Criminal Justice, and 

that the sentence imposed is not manifestly excessive 

or unduly punitive and does not constitute a mistaken 

exercise of discretion.

[Sowell, slip op. at 26.] 

On PCR appeal, defendant argues:

POINT I: THE PCR COURT'S ORDER THAT 

DENIED DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF MUST BE REVERSED OR 

THE MATTER REMANDED BECAUSE 
5

A-1061-16T2

DEFENDANT DID NOT HAVE A FULL 

UNDERSTANDING OF THE LAW AS IT RELATED 

TO THE FACTS OF THE CASE WHEN HE PLED 

GUILTY TO COUNT FIVE AND THEREFORE 

DEFENDANT'S ENTIRE GUILTY PLEA MUST BE 

VACATED.

A. DEFENDANT DID NOT ENTER INTO A 

KNOWINGLY [sic] GUILTY PLEA BECAUSE HE 

PLED GUILTY TO COUNT FIVE WITHOUT A 

FULL UNDERSTANDING OF THE NATURE OF 

THE CHARGES AS IT RELATED TO THE FACTS 

OF THE CASE.

B. FOR THE REASONS SET FORTH IN I(A), THE 

COURT SHOULD PERMIT DEFENDANT TO 

RETRACT HIS GUILTY PLEA.

C. THE PLEA MUST BE VACATED IN IT [sic] 

ENTIRETY. 

POINT II: THE PCR COURT'S ORDER THAT 

DENIED DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF MUST BE REVERSED OR 

THE MATTER REMANDED BECAUSE 

DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL IN THE 

PROCEEDINGS BELOW. 

A. PLEA COUNSEL MISLED DEFENDANT 

INTO PLEADING GUILTY TO COUNT FIVE.

B. DEFENSE COUNSEL FAILED TO

INVESTIGATE AND DEVELOP A DEFENSE.

C. APPELLATE COUNSEL PROVIDED 

INEFFECTIVE ASSISTANCE TO THE EXTENT 
6

A-1061-16T2

COUNSEL FAILED TO RAISE THE CLAIMS SET 

FORTH ABOVE IN THE PROCEEDINGS BELOW. 

POINT III: THE PCR COURT ABUSED ITS 

DISCRETION WHEN IT APPLIED THE 

PROCEDURAL BAR CONTAINED IN R. 3:22-5 TO 

DEFENDANT'S CLAIMS. 

POINT IV: THE PCR COURT ABUSED ITS 

DISCRETION WHEN IT DENIED DEFENDANT'S 

REQUEST FOR AN EVIDENTIARY HEARING. 

Defendant argues in this appeal that his plea counsel was ineffective by 

allowing him to plead guilty to the robbery of the child, Z.D., when he did not 

understand the charge nor was he factually guilty of stealing anything of value 

from the child. Contrary to his representation before the PCR court, he seeks 

to withdraw his plea of guilty, claiming he has satisfied the factors set forth in 

State v. Slater, 198 N.J. 145, 157-58 (2009). He also argues that appellate 

counsel was ineffective in not raising this issue on direct appeal. At the PCR 

hearing defendant told the judge on the record that he did not wish to withdraw 

his guilty plea. We affirm.

The record is clear that the plea judge asked defendant if he was aware 

that he was pleading guilty to two robberies, and defendant read and then signed 

a plea form stating he was pleading guilty to two counts of first-degree robbery. 

Defendant was indicted in separate counts with robbing nine individuals: the 
7

A-1061-16T2

three women and their six children who were in the home at the time of the home 

invasion. He was also charged in nine separate counts with first-degree 

kidnapping, N.J.S.A. 2C:13-1(b), as well as other charges. Thus, his attorney 

negotiated a favorable plea agreement for him.

To demonstrate ineffective assistance of plea counsel, defendant must 

demonstrate that: (1) counsel's performance was deficient, and (2) the deficient 

performance actually prejudiced the client's defense. Strickland v. Washington, 

466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Where the 

defendant seeks to vacate a guilty plea, the defendant must show "(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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) 

(alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). 

"In Morrison, we found that 'in applying the Strickland standard to assess a claim 

of ineffective assistance of appellate counsel, [the] defendant must show not 

only that his attorney's representation fell below an objective standard, but also 

that he was prejudiced, i.e., but for counsel's unprofessional errors, the 

result would have been different.'" State v. Gaither, 396 N.J. Super. 508, 513 
8

A-1061-16T2

(App. Div. 2007) (quoting State v. Morrison, 215 N.J. Super. 540, 546 (App. 

Div. 1987)).

Here, although the PCR court discussed and denied a request to withdraw 

defendant's guilty plea, defendant clarified before the PCR judge that in fact he 

did not wish to withdraw his guilty plea. We therefore do not consider his 

appellate request to withdraw his guilty plea. We generally will not address an 

issue on appeal that the parties did not pursue at the trial court level unless the 

issue involves "the jurisdiction of the trial court" or "matters of great public 

interest." Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (declining to consider 

a Foreclosure Rescue Fraud Prevention Act claim raised for the first time on 

appeal) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). 

Defendant's claim that his plea counsel failed to investigate the facts sufficiently 

was also not argued before the PCR court. 

The issue urged before the PCR court was ineffective assistance of 

sentencing counsel, which the PCR court properly found to be unfounded. On 

appeal, defendant does not specify what mitigating factors his counsel failed to 

argue at sentencing. His attorney argued for a reduced sentence of fourteen 

years in prison, stressing defendant's family obligations and employment 

history. We found the sentence imposed to be appropriate on direct appeal.
9

A-1061-16T2

If an issue has previously been raised and adjudicated, "[a] prior 

adjudication upon the merits . . . is conclusive whether made in the proceedings 

resulting in the conviction . . . or in any appeal taken from such proceedings." 

R. 3:22-5. In determining whether this procedural bar applies, the challenged 

claim should be compared with the prior claim to determine if the two "are either 

identical or 'substantially equivalent.'" State v. Marshall, 173 N.J. 343, 351 

(2002). Defendant's claim of ineffective assistance of sentencing counsel under 

these facts is substantially equivalent to his prior excessive sentence claim, and 

is therefore procedurally barred. Ibid. 

Trial courts should grant evidentiary hearings if the defendant has 

presented a prima facie case of ineffective assistance of counsel. State v. 

Preciose, 129 N.J. 451, 462 (1992). "A defendant shall be entitled to an 

evidentiary hearing only upon the establishment of a prima facie case in support 

of post-conviction relief . . . ." R. 3:22-10(b). Defendant failed to make out a 

prima facie case of ineffective assistance of counsel requiring an evidentiary 

hearing. His other arguments before us are without sufficient merit to require 

further discussion in a written opinion. R. 2:11-3(e)(2). 

Affirmed.