SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3967-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AARON T. SHEPPARD,

Defendant-Appellant.

______________________________

Argued December 18, 2019 – Decided

Before Judges Haas and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Gloucester County, Accusation No. 03-10-

0811.

Michael James Confusione argued the cause for 

appellant (Hegge & Confusione, LLC, attorneys; 

Thomas Gerard Hand and Michael James Confusione, 

on the briefs).

Dana R. Anton, Senior Assistant Prosecutor, argued the 

cause for respondent (Charles A. Fiore, Gloucester 

County Prosecutor, attorney; Monica A. Bullock, 

Assistant Prosecutor, and Dana R. Anton, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

January 2, 2020
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A-3967-17T1

Appellant filed a pro se supplemental brief.

PER CURIAM

This post-conviction relief (PCR) case returns to us after remand 

proceedings directed by our previous opinion. See State v. Sheppard, No. A2079-09 (App. Div. July 12, 2011), certif. denied, 209 N.J. 97 (2012). On 

remand, the matter was assigned to Judge M. Christine Allen-Jackson, who 

conducted a four-day evidentiary hearing to address the issues identified in our 

decision. Judge Allen-Jackson denied defendant Aaron Sheppard's petition for 

PCR and explained the basis for her rulings in a comprehensive twenty-seven 

page written opinion containing her detailed findings of fact and conclusions of 

law.

Defendant appeals from the March 13, 2018 order memorializing the 

judge's decision, and presents the following arguments in the brief submitted by 

his appellate counsel:

POINT ONE

THE PCR COURT ERRED IN DENYING THE 

PETITION BECAUSE TRIAL COUNSEL WAS 

INEFFECTIVE IN FAILING TO INVESTIGATE 

[DEFENDANT'S] STATE OF MIND WHEN THE 

CRIME WAS COMMITTED, WHEN [DEFENDANT] 

WAS INTERROGATED AND WHEN SHEPPARD 

PLED GUILTY.
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A. Trial Counsel Was Deficient Because He Failed 

To Fully Investigate [Defendant's] State Of Mind 

At The Time [Defendant] Confessed.

B. Trial Counsel Was Deficient Because He Failed 

To Fully Investigate [Defendant's] State Of Mind 

At The Time [Defendant] Pled Guilty.

C. Trial Counsel's Deficient Performance 

Prejudiced [Defendant].

POINT II

[DEFENDANT'S] PLEA SHOULD BE 

WITHDRAWN BECAUSE HE MET THE 

REQUIREMENTS OF STATE V. SLATER, 198 N.J. 

145 (2009).

In addition, defendant raises the following issues in his pro se 

supplemental brief:

Point 1

Defendant's convictions and sentence should be 

vacated on the ground of ineffective assistance of trial 

counsel.

Point 2

Trial judge Honorable Christine Allen-Jackson and 

Defense Attorney Fred Last, Esq. failed to apply the 

"Fruit of the Poisonous Tree Doctrine" while 

considering whether or not defendant knowingly, 

intelligently, and voluntarily waived his Fifth 

Amendment Right: Not To Be Compelled To Be a 

Witness Against Oneself (United States Constitution, 

Article IV).
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Point 3

[Judge] Allen-Jackson['s] denial concerning the Slater

requirements was incorrect for not adhering to the 

legislators [sic] intent when considering the charge of 

felony murder in this cases [sic] applicability, and the 

outcome would have been different if not for the 

ineffectiveness of Fred Last allowing the defendant to 

plea [sic] out to a charge of felony murder without the 

factual basis to support the charge.

Based on our review of the record and the applicable law, we conclude 

that defendant's arguments lack merit. We affirm substantially for the reasons 

set forth in Judge Allen-Jackson's thorough decision.

I.

The parties are fully familiar with the procedural history and factual 

background of this case, which was set forth in detail in our prior opinion. 

Sheppard, (slip op. at 1-8). As noted in that opinion, we 

remand[ed] this matter for the [trial] court to conduct a 

hearing to resolve what, if any investigation trial 

counsel conducted regarding defendant's mental 

capacity when each of the incriminating statements 

were made and at the time he entered a guilty plea. The 

court should determine whether counsel's conduct "was 

within the range of competence demanded of attorneys 

in criminal cases." In the event the court should find 

that counsel's conduct fell below that standard, the 

question remains whether the circumstances precluded 

a voluntary waiver of rights. Finally, the court should 

review defendant's motion to withdraw his guilty plea 
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pursuant to State v. Slater, 198 N.J. 145 (2009) and 

[Rule] 3:21-1.

[Id. at 14.]

II.

We begin by addressing defendant's contention that Judge Allen-Jackson 

erred by determining that defendant's trial counsel was not ineffective for failing 

to file a Miranda1 motion to challenge the admissibility of defendant's 

confession. By way of background, defendant stated he took heroin at 

approximately 4:00 p.m. after the victim was murdered that morning. The police 

apprehended him,2read him his Miranda rights, and attempted to interview him 

around 8:35 p.m. that same evening. The detective believed that defendant was 

under the influence and stopped the interview.

Just after midnight, the detective again attempted to interview defendant. 

After the detective read defendant his Miranda rights, defendant invoked his 

right to an attorney, and the interview was immediately terminated.

1

 Miranda v. Arizona, 384 U.S. 436 (1966).

2

 Defendant's pants were covered with blood splatter. He was also wearing 

bloody shoes, and the police found a shoe print at the murder scene that was 

similar to the distinctive soles of defendant's shoes. Defendant told the police, 

"[t]he evidence is all over me."
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Around 12:40 a.m., defendant asked to speak to the detective, who again 

provided him with Miranda warnings. At that time, defendant admitted he 

entered a tire store early in the morning through a broken window to steal 

property and money. Once inside, he saw the sleeping victim and struck him 

six times with a tool after the victim stirred in his sleep. After killing the victim, 

defendant stole a camcorder and some money, took a bus to Camden, and sold 

the camcorder. Defendant then bought four bags of heroin, two for himself and 

two for a friend, who helped him sell the stolen camcorder.

At the hearing, defendant produced an expert psychologist, Dr. Edward 

Dougherty, who opined that defendant was too intoxicated at midnight, eight 

hours after he had consumed the heroin, to make a voluntary, knowing, and 

intelligent waiver of his Miranda rights. Dr. Dougherty arrived at this opinion 

after listening to the recording made of defendant's statement to the detective, 

taking note of his speech cadence.

In response, the State offered the testimony of Dr. Steven Simring, an 

expert psychiatrist. Dr. Simring opined that defendant's statements to the 

detective were coherent and "completely logical." Perhaps more significantly, 

Dr. Simring noted that defendant last took heroin at 4:00 p.m. in the afternoon 

and did not give his statement to the detective until approximately 12:40 a.m. 
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the next morning. According to Dr. Simring, this time frame was extremely 

important because

heroin, like any other drug, has a half-life and has a 

dose response curve. It's well known that heroin, which 

is converted to morphine, will reach peak levels at 

about 30 minutes to an hour, will then last for 

somewhere between four and six hours. So, that using 

these rough calculations, assuming that [defendant] was 

accurate, that the last usage was at 4:00 p.m., one would 

expect him to still be high at 8:00 p.m. But by midnight, 

eight hours later, he would have been over that four to 

six hour period of time and he would have cleared. So 

that's a normal way of clearing heroin.

Thus, Dr. Simring testified that defendant was able to understand his 

Miranda rights and to execute a knowing, voluntary, and intelligent waiver of 

those rights when he was questioned for the third time at 12:40 a.m. Dr. Simring 

stated that his opinion was further corroborated by the details defendant included 

in his statement. Among many other things, defendant was able to recount how 

he knew the victim; remember that he discarded the dimes he found in the cash 

register, while taking only the quarters; and accurately describe the layout of the 

tire store. After listening to the interview tape herself, Judge Allen-Jackson 

concluded that Dr. Simring's opinion and testimony was much more credible 

than that offered by the defense expert.
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The judge also considered the testimony of one of defendant's trial 

attorneys, Fred Last, Esq., a public defender with over thirty-five years of 

experience.3 Last explained that the State approached him with a plea offer 

before it submitted the case to a grand jury for indictment. In return for pleading 

guilty to first-degree felony murder, the State agreed to recommend that the trial 

court sentence defendant to an aggregate sentence of thirty-five years, subject 

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Thus, rather than 

facing the possibility of the death penalty or a life sentence, defendant would be 

eligible for parole in thirty years.

Last testified that in his long experience, once the State proceeded to an 

indictment, and the case began to "go[] down the capital murder track, it [would 

be] much more difficult to get a better plea offer." Thus, Last counseled 

defendant to strongly consider the State's plea offer.

In rendering this advice, Last considered whether to allow the State to 

indict defendant for capital murder, and then file a Miranda motion to attempt 

to suppress defendant's confession. However, Last explained that such a motion 

would have "only a slim chance of success" because defendant appeared to be 

very coherent during the statement he gave to the detective over eight hours after 

3

 During that period, Last handled several capital murder cases.
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consuming heroin or any other illicit substance. In this regard, Last reviewed 

the recording of defendant's confession and of the two attempted interviews that 

preceded it. According to Last, "[w]hen [defendant] started talking to them, 

when he asked to come back, and made most of the incriminating parts of his 

statement, it was as if somebody had flipped a switch and he was sober, at least 

in sound."

In addition, Last believed that the State did not need the confession to 

convict defendant of felony murder because the DNA evidence from defendant's 

bloody clothing and shoes would have been sufficient to prove its case beyond 

a reasonable doubt.4 Thus, Last's strategy was to attempt to negotiate the best 

plea agreement he could on behalf of his client in a case where defendant would 

otherwise face the death penalty.

After considering this evidence, Judge Allen-Jackson concluded that 

Last's "recommendation to [d]efendant to take the plea was the product of sound 

trial strategy based on his professional evaluation of the case and negotiations 

with the State." Thus, the judge held that defense counsel was not ineffective 

4

 Defendant's fingerprint was found on the stolen camcorder. Defendant also 

told Last that he may have accidentally recorded himself on the camcorder while

he was taking it to Camden and "sooner or later someone's [going to] play what's 

on that cassette they recovered."
10 A-3967-17T1

because he pursued the plea rather than a suppression motion that was unlikely 

to succeed and, in the final analysis, would not have significantly weakened the 

overwhelming physical evidence of guilt amassed by the State.

We discern no basis for disturbing the judge's reasoned analysis. When 

petitioning for PCR, the defendant must establish, by a preponderance of the 

credible evidence, that he or she is entitled to the requested relief. State v. Nash, 

212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain 

that burden, the defendant must allege and articulate specific facts that "provide 

the court with an adequate basis on which to rest its decision." State v. Mitchell, 

126 N.J. 565, 579 (1992).

To establish a prima facie claim of ineffective assistance of counsel, the 

defendant is obligated to show not only the particular manner in which counsel's 

performance was deficient, but also that the deficiency prejudiced his right to a 

fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 

105 N.J. 42, 58 (1987). Under the first prong of this test, the defendant must 

demonstrate that "counsel made errors so serious that counsel was not 

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." 

Strickland, 466 U.S. at 687. Under the second prong, the defendant must show 

"that counsel's errors were so serious as to deprive the defendant of a fair trial, 
11 A-3967-17T1

a trial whose result is reliable." Ibid. That is, "there is a reasonable probability 

that, but for counsel's unprofessional errors, the result of the proceeding would 

have been different." Id. at 694.

There is a strong presumption that counsel "rendered adequate assistance 

and made all significant decisions in the exercise of reasonable professional 

judgment." Id. at 690. Because prejudice is not presumed, Fritz, 105 N.J. at 52, 

a defendant must demonstrate with "reasonable probability" that the result 

would have been different had he received proper advice from his trial attorney. 

Strickland, 466 U.S. at 694.

Moreover, the acts or omissions of counsel of which a defendant 

complains must amount to more than mere tactical strategy. Id. at 689. As the 

Supreme Court observed in Strickland, 

[a] fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of 

counsel's challenged conduct, and to evaluate the 

conduct from counsel's perspective at the time. 

Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption 

that counsel's conduct falls within the wide range of 

reasonable professional assistance; that is, the 

defendant must overcome the presumption that, under 

the circumstances, the challenged action "might be 

considered sound trial strategy."
12 A-3967-17T1

[Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955)).]

Where, as here, the judge conducts an evidentiary hearing, we must 

uphold the judge's factual findings, "so long as those findings are supported by 

sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 

(2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we 

defer to a trial judge's findings that are "substantially influenced by [the trial 

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the 

case, which a reviewing court cannot enjoy." Ibid. (alteration in original) 

(quoting Robinson, 200 N.J. at 15).

Applying these principles, there is ample evidence in the record to support 

Judge Allen-Jackson's conclusion that Last made a well-calculated, tactical 

decision not to risk losing an advantageous plea offer by filing a Miranda motion 

that would likely be unsuccessful. In employing this strategy, Last tapped into 

his decades of experience, and determined that a motion judge would find that 

defendant was sober by the time he made his confession over eight hours after 

he had ingested heroin or any other intoxicating substance. This was 

corroborated by the minute details defendant was able to recall about the murder 

and all the events leading up to it, together with his later efforts to sell the 

camcorder. Defendant knew he had the right to counsel and, indeed, invoked 
13 A-3967-17T1

that right around midnight, before deciding to voluntarily waive it forty minutes 

later.

In ruling that defense counsel was not ineffective, Judge Allen-Jackson 

also properly determined that Last's decision was amply supported by Dr. 

Simring's expert testimony. "[W]e rely on the trial court's acceptance of the 

credibility of the expert's testimony and the court's fact-findings thereon, [and 

note] that the trial court is better positioned to evaluate the witness' credibility, 

qualifications, and the weight to be accorded [the] testimony." In re 

Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc. 

v. Epstein, 115 N.J. 599, 607 (1989)).

In addition, even if defense counsel should have foregone the plea offer 

that eliminated the possibility of defendant receiving the death penalty or a life 

sentence in favor of pursuing a Miranda motion, defendant still failed to meet 

the second prong of Strickland. This is so because, even if the confession was 

suppressed, the State still had very strong physical evidence connecting 

defendant to the crime. Thus, defendant did not demonstrate with reasonable 

probability that the end result of this proceeding would have been different. 

Strickland, 466 U.S. at 694.
14 A-3967-17T1

Therefore, we reject defendant's contention that defense counsel provided 

ineffective assistance by pursuing a plea agreement rather than filing a Miranda

motion.

III.

Defendant next argues that Judge Allen-Jackson erred by ruling his 

attorney was not ineffective due to his alleged failure to adequately investigate 

his state of mind at the time he pled guilty. We disagree.

While defendant was in jail awaiting the consummation of his plea 

agreement, he was prescribed Seroquel, a psychotropic drug that also had the 

effect of making the patient sleepy. Defendant told Dr. Dougherty, and testified 

at the hearing, that he was so sleepy and dizzy from taking this drug that he was 

unable to voluntarily waive his right to a trial by pleading guilty to felony 

murder in order to avoid the death penalty or a life sentence. He asserted that 

Last should have investigated the effect this drug would have on him and, if Last 

had done so, he would have prevented defendant from proceeding with the plea.

However, Last testified he was very familiar with this drug and its effects 

because a number of his clients were prescribed it. Thus, even though Last 

readily conceded he was not an expert in this area, he did not see a need to 
15 A-3967-17T1

conduct a "formal investigation" into the behaviors demonstrated by patients 

who take Seroquel.

Last testified that in his discussions with defendant leading up to the entry 

of the plea,5 he did not observe "any signs of unusually slow mentation or 

drowsiness, dop[i]ness or any of those features" that would have led him to 

postpone the plea hearing. There was also no evidence of a lack of 

understanding or disoriented thinking on defendant's part during the plea 

proceedings. Last testified that if he had thought defendant was impaired, he 

would not have proceeded to put through the plea. However, defendant showed 

no signs of impairment.

Last's view of his interactions with defendant was corroborated by Dr. 

Simring, who testified that Seroquel would not have adversely affected 

defendant's ability to understand the plea proceedings. Judge Allen-Jackson 

again found that Dr. Simring's expert testimony on this subject was more 

credible than that of defendant's expert, and we again defer to her determination 

on this point.

The judge concluded there was

insufficient evidence in the record to conclude that . . . 

defendant was impaired at the time of the plea. He was 

5

 Last met with defendant approximately six times prior to the plea hearing.
16 A-3967-17T1

responsive to questions; he further indicated that he 

went over the plea form with his attorney, who assisted 

in circling his answers to the questions on the plea 

form. There is no evidence of disoriented thinking, lack 

of understanding[,] nor [any] evidence of off[-]base 

answers at the time of the plea.

Thus, the judge concluded that "[t]he effects of the Seroquel did not 

interfere with [defendant's] ability to make a knowing, intelligent and voluntary 

plea." Because there is sufficient credible evidence in the record to support this 

determination, we perceive no basis for disturbing it. Defense counsel was 

aware that Seroquel could make a patient sleepy and, accordingly, Last knew to 

observe defendant during their discussions for any sign of this side effect. 

Detecting none, Last was not required to conduct a further investigation into 

defendant's condition before consummating the plea. And, in any event, the 

credible expert testimony at the hearing demonstrated that Seroquel would not 

have prevented defendant from making a knowing plea, as evidenced by his 

straight-forward answers to all questions posed to him at that proceeding. 

Because defendant thus failed to establish either prong of the Strickland test, we 

affirm Judge Allen-Jackson's conclusions on this point.

IV.

Finally, defendant argues that the judge erred by denying his motion to 

withdraw his plea under Slater. Again, we disagree.
17 A-3967-17T1

Slater requires a court to weigh the following factors in considering a 

motion to withdraw a plea: "(1) whether the defendant has asserted a colorable 

claim of innocence; (2) the nature and strength of defendant's reasons for 

withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal 

would result in unfair prejudice to the State or unfair advantage to the accused." 

Id. at 158-59. A motion to withdraw a guilty plea is committed to the judge's 

sound discretion. Slater, 198 N.J. at 156. We will only overturn a judge's 

decision if there was an abuse of discretion causing the decision to be clearly 

erroneous. Ibid.

Judge Allen-Jackson found that defendant did not "assert a colorable 

claim of innocence." In addition to confessing to murdering the victim during 

the course of a burglary, defendant was covered in the victim's blood and had 

left a distinctive footprint with his bloody shoe.

Defendant's reasons for attempting to withdraw his plea were also weak. 

Defendant claimed he would not have pled guilty if he was not under the 

influence of Seroquel. As discussed above, however, defendant failed to 

establish that this prescribed medication affected his ability to understand the 

terms of the plea offer and to voluntarily accept them.
18 A-3967-17T1

Turning to the third Slater factor, the judge noted that defendant pled 

guilty and avoided the death penalty or a life sentence. Finally, the judge found 

that the offense occurred in 2003, over fourteen years before her decision on 

defendant's motion to withdraw his plea. In that time, she noted that 

"[m]emories fade, and witnesses retire and move away and become unavailable, 

which would be an unfair disadvantage to the State in proving its case."

Under these circumstances, where defendant failed to satisfy any of the 

Slater factors, we conclude that the judge properly denied defendant's motion to 

withdraw his guilty plea.6

Affirmed.

6

 The arguments raised in defendant's pro se supplemental brief largely parrot 

the points raised by his appellate counsel. Defendant's supplemental contentions 

are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).