NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1889-12T2
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, April 24, 2014
v. APPELLATE DIVISION
ALICE O'DONNELL,
Defendant-Appellant. ______________________________
Submitted March 4, 2014 – Decided April 24, 2014
Before Judges Reisner, Ostrer and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-0617.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Alice O'Donnell appeals from the trial court's
August 30, 2012, order, after a non-testimonial hearing, denying her petition for post-conviction relief (PCR), and application
to set aside a guilty plea. On March 22, 2006, defendant
pleaded guilty to one count of murder, N.J.S.A. 2C:11-3(a). She
admitted that between the evening of February 21 and the morning
of February 22, 2005, she fed her six-year-old son Phillip an
overdose of medication, and held a pillow over his head until he
was asphyxiated. After the homicide, defendant stabbed herself
multiple times and reportedly ingested rubbing alcohol and
twenty or more ibuprofen pills.
In accord with her plea agreement, the court sentenced
defendant to a term of thirty years, with a thirty-year parole
ineligibility period. We affirmed the conviction; the only
issues on direct appeal pertained to the trial court's pre-trial
order denying defendant's Miranda1 motion to suppress inculpatory
statements, and partially denying her motion to suppress
evidence seized from her home. State v. O'Donnell, 408 N.J.
Super. 177 (App. Div. 2009), aff'd o.b., 203 N.J. 160, cert.
denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010).
In this PCR appeal, defendant asserts her attorney was
ineffective by failing to diligently pursue a diminished
capacity defense. She also alleges that counsel unexpectedly
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2 A-1889-12T2 pressed her to plead guilty shortly before trial, without
adequate explanation, stating it was necessary to avoid a life
sentence. Defendant was forty-four years old when she received
the thirty-year sentence under the plea agreement. Defendant
essentially contends that she would have proceeded to trial but
for trial counsel's ineffective assistance. She seeks to set
aside her guilty plea.
Having reviewed the record in light of applicable legal
principles, we conclude defendant has presented a prima facie
case of ineffective assistance of counsel and resulting
prejudice. We also conclude that the trial court misapplied the
factors governing an application to withdraw a guilty plea. We
therefore reverse and remand for an evidentiary hearing.
I.
We discern the following facts from the record, considering
defendant's contentions "indulgently and . . . in the light most
favorable to [her]." State v. Cummings, 321 N.J. Super. 154,
170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The
record includes the testimony of defendant and several police
officers from the pre-trial hearing on the motion to suppress,
3 A-1889-12T2 defendant's interview with two mental health experts, their
expert reports, and other documentary evidence.2
Defendant had a history of mental illness and psychiatric
hospitalizations. Her family also had a history of mental
illness. She reported that when she was a child, her father
subjected her, and one of her sisters, to violent sexual abuse.
Attempts to report the abuse were rebuffed. The sister later
committed suicide. Defendant has three living siblings: two
other sisters, and a brother who is disabled with schizophrenia.
In the months before the homicide, defendant experienced
various reversals in her life. Her partner of over twenty
years, Phyllis, died in 2004. Along with the emotional loss,
defendant suffered financially thereafter. Phyllis had helped
support defendant and her son Phillip. Neither defendant nor
Phillip had a continuing relationship with Phillip's father, who
had disappeared from their lives.
Sometime after Phyllis's death, defendant was forced to
vacate her apartment. After temporarily residing with her
mother in a senior community, she moved to Highland Park, but
soon faced eviction. In the meantime, defendant believed that
her son had been sexually abused by a priest who had spent time
2 Defendant's custodial statement was not presented to us. However, we rely on the trial court's summary of the statement included in its Miranda decision.
4 A-1889-12T2 with him. She reported the alleged assault to a school guidance
counselor, who referred the matter to the Division of Youth and
Family Services.
Defendant believed that her impending homelessness would
cause her to lose custody of her son, and result in his
continued abuse. At the time of the homicide, she was
prescribed medications for insomnia (Soma), depression (Zoloft),
and anxiety (Klonopin). However, she stated that as a result of
Medicaid issues, she was unable to fill her Zoloft prescription.
She determined that the solution to her predicament was to send
her son and herself to heaven, where they would join Phyllis.
She reportedly heard a soft voice that said, "'God and Jesus
welcomes you, go to God, they always want you.'" Defendant
claimed to have conferred with her son about her plan and he
consented to it.
The day before the homicide, she informed her sister
Theresa and other family members that they could come to her
apartment to take her furniture. There is no evidence she told
them that she intended to harm herself or her son. Defendant
told them she was about to become homeless.
5 A-1889-12T2 Defendant stated she gave her son a combination of Benadryl
and Klonopin on the evening of February 21, 2005.3 When that
prompted Phillip to vomit, defendant smothered him with a
pillow. Defendant's two sisters arrived at her home the next
morning, and awoke defendant, who was asleep beside her deceased
son. She testified that she told her sisters that she and
Phillip "were going to heaven." Upon their discovery that
Phillip was dead, her sisters summoned the police.
Defendant was generally non-responsive to a police
officer's initial inquiries at the scene regarding what had
happened. She appeared "out of it" to one officer, and
disheveled and disoriented to another. But, she admitted she
gave Benadryl to Phillip, and, regarding what medication she
took, "[s]he began to ramble on naming different medications."4
Defendant was indicted and arraigned in May 2005. The
defense's apparent strategy was to pursue a diminished capacity
defense under N.J.S.A. 2C:4-2. The court ordered the assistant
deputy public defender to seek approval to hire a mental health
expert. However, counsel delayed several months, and then
misrepresented that he had provided materials to the expert
3 The Medical Examiner reported that Phillip died from acute Zoloft and Benadryl poisoning, and "'mechanical asphyxia.'" 4 The police seized various documents and handwritten notes from defendant's home, which are not part of the record before us.
6 A-1889-12T2 several weeks before he actually did. The defense missed the
court's November 11, 2005, deadline for submitting its report.
Defense counsel's delays prompted a State motion to bar an
expert report and any defense based on insanity or diminished
capacity. The defense did not serve the report of its
psychiatric expert, Oscar Sandoval, M.D., until January 24,
2006, the return date of the State's motion. Dr. Sandoval
concluded that defendant's "mental capacity was so impaired that
she was unable to engage in purposeful conduct."
The court denied the State's motion, stating it would cause
undue prejudice to defendant. Yet, the judge stated, "I do not,
however, wish to minimize the importance of the dereliction
here." The judge found defense counsel "failed to pay
reasonable attention" to the matter, and misled the court about
his progress. The court imposed a $250 monetary sanction.
Defense counsel responded he was experiencing financial
difficulties, and would be unable to pay the fine promptly.
The court tentatively scheduled trial for February 27,
predicated on the State serving its expert's report on February
17. However, those deadlines were not met. The State served
the report of its psychological expert, Anthony V. D'Urso,
Psy.D., on March 7, 2006. Before doing so, the State provided
additional discovery to the defense on February 8, 2006. The
7 A-1889-12T2 discovery and Dr. D'Urso's report challenged defendant's
diminished capacity defense, as supported by Dr. Sandoval.
Dr. Sandoval concluded defendant suffered from a severe
Major Depressive Disorder "with mood congruent, psychotic
features," severe Post-Traumatic Stress Disorder, and a
Dependent Personality Disorder. Dr. Sandoval opined that
defendant was responding to voices of command, to alleviate her
son's suffering. He opined defendant was psychotic, but not
psychopathic.
Ms. O'Donnell was verbalizing auditory hallucinations with voices of command. . . .
. . . .
Her psychotic act of filicide occurred impulsively without prior homicidal thoughts or rage, driven by the auditory hallucinations of command; which led her to believe that by killing her child, this was an altruistic act to save her son, Phillip, from the world.
The State's discovery materials included various documents
pertaining to a 2003 insurance fraud investigation involving
defendant by the State Division of Criminal Justice (DCJ). The
unsworn documents indicated that defendant falsely represented
that she was a licensed Ph.D. psychologist. In fact, defendant
never obtained a college degree, although she earned substantial
credits at both Kean and Rutgers Universities. A mental health
center in Bayonne hired defendant in March 2002. She signed
8 A-1889-12T2 health insurance claim forms as a licensed psychologist. A
health insurer discovered her misrepresentation, prompting her
dismissal at the end of May 2002.
According to a February 9, 2006, hearsay report of a
Middlesex County investigator, a former billing clerk of the
mental health center stated that Dr. Sandoval worked at the
mental health center at the same time as defendant; the
psychiatrist and defendant knew each other; the psychiatrist met
with patients defendant purportedly treated, and reviewed and
signed defendant's billing statements. However, the same
witness's sworn statement from November 2003 did not mention Dr.
Sandoval, and a DCJ investigator's report in 2003 quoted her as
saying that Dr. Sandoval became involved in the mental health
center only after defendant left. Dr. Sandoval asserted the
same in his interview with DCJ investigators in 2003. DCJ's
report referred to a different physician as the psychiatrist to
whom the center referred patients while defendant was on staff.
Defendant admitted that she also was treated at the time by that
physician, not Dr. Sandoval.
With regard to defendant's diminished capacity, Dr. D'Urso
rejected Dr. Sandoval's opinion that defendant lacked the
ability to form the intent to commit murder. Dr. D'Urso
concluded that defendant was a pathological liar who suffered
9 A-1889-12T2 from a lack of self-esteem. He administered various
psychological tests, and obtained what he considered valid
responses. They indicated "a pattern of chronic psychological
maladjustment resulting in ineffective interpersonal
relationships." He stated her profile suggested "marked
depression," the suggestion of "delusional, circumstantial and
tangential thinking," "the presence of psychotic thought," and
"somatic delusions and schizoid functioning, including the need
for psychopharmacological interventions." Nonetheless, he
concluded defendant did not lack the mental state necessary to
commit murder:
[S]he was purposeful enough to re- administer Benadryl and ultimately to smother her son. Given a transient psychotic state, it would appear that she was capable of committing both homicide and suicide. . . . Ms. O'Donnell was able to understand her conduct at the time of the offense and able to form intent and as such was responsible for her actions.
Roughly two weeks after Dr. D'Urso's report was served, and
five days before the newly-scheduled trial date of March 27,
2006, defendant pleaded guilty to the indictment, conditioned on
the State's promise to recommend a thirty-year sentence, with a
thirty-year period of parole ineligibility. Consistently
responding to leading questions with yes or no answers,
defendant affirmed that she wished to plead guilty, she was
10 A-1889-12T2 doing so voluntarily and knowingly, and she was satisfied with
her attorney. She affirmed to her attorney that she gave her
son an overdose of medicine, and smothered him with a pillow,
with the purpose to cause his death.
The court alluded to the diminished capacity defense:
THE COURT: Do you also understand if I accept this plea to the extent that you may have had some defense, you'll be waiving that defense, whatever defense you might have had, that you acknowledge responsibility as you are here and if I accept that acknowledgement of responsibility. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Is it your desire to waive any defense that you might have and ask me to accept the plea today?
THE DEFENDANT: Yes.
The court sentenced defendant in accord with the plea
agreement on May 5, 2006. As noted above, the direct appeal
only addressed suppression issues.
Defendant filed her pro se PCR petition on September 7,
2011. She alleged that after learning the United States Supreme
Court denied certiorari in December 2010, she wrote to her
assistant deputy public defender to inquire about the next step,
but received no response. She attributed to her depression the
ensuing delay in the filing of the petition, four months beyond
the five-year period following her judgment of conviction.
11 A-1889-12T2 In her pro se petition, and later amended petition prepared
by counsel, defendant asserted her trial attorney was
ineffective by: (1) failing to confer adequately with her about
the State's plea offer, and his defense preparations; (2)
failing to pursue the diminished capacity defense, including
failing to obtain a second psychiatric evaluation; and (3)
generally failing to attend to the case because of personal
problems. Defendant asserted that defense counsel visited her
the evening before the plea hearing and told her, "'I've got bad
news, you've got to take a plea or you're going to get life.'"
She alleged that he had previously advised her that she would
prevail on her diminished capacity defense. She alleged, "A
second psychiatric evaluation by a Dr. Greenberg was begun but
never completed. . . . The incomplete psychiatric examination
process rendered counsel unable to present and support a
diminished capacity defense at trial." She asserted he failed
to obtain her "informed consent" before announcing in court the
next day that she would plead guilty.
Defendant argued she was entitled to withdraw her plea
under State v. Slater, 198 N.J. 145 (2009), and was entitled to
PCR under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
12 A-1889-12T2 2052, 80 L. Ed. 2d 674 (1984).5 She also asserted her four-month
delay resulted from excusable neglect.
The State opposed relief, filing a brief to which it
attached various exhibits, including the mental health
evaluations and, apparently, all the discovery materials
produced in February 2006. The State relied substantially on
defendant's affirmation at the plea hearing that she wished to
plead guilty, she was generally satisfied with her attorney's
performance, and agreed to waive any defenses. The prosecutor
also argued that Dr. Sandoval would have been discredited based
on evidence that he and defendant allegedly were in practice
together, and he approved her claim forms. The prosecutor
further contended that if defendant testified, she would also be
discredited by the evidence of her misrepresentation of her
credentials.6
After oral argument, the court denied defendant relief.
The judge separately found defendant had failed to meet the test
for withdrawing a plea under Slater, and failed to demonstrate a
5 Defendant did not file a separate, free-standing plea withdrawal motion under Rule 3:21-1. 6 Allegations of defendant's prior misrepresentation would appear to constitute evidence of other crimes or wrongs. N.J.R.E. 404(b). The State did not address how it would have established a basis for admissibility. See State v. Cofield, 127 N.J. 328, 338 (1992).
13 A-1889-12T2 prima facie case of ineffective assistance of counsel under
Strickland.
Regarding plea withdrawal, the court applied the four
Slater factors: "(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."
Supra, 198 N.J. at 157-58. The court summarized the competing
opinions of Drs. Sandoval and D'Urso and found "this colorable
claim of innocen[c]e . . . seems to be in equipoise." The court
found that defendant's reasons for withdrawal — lack of
consultation by her attorney and viability of her diminished
capacity defense — were belied by her waiver of defenses at the
plea hearing. The existence of a plea agreement also weighed
against defendant. The court held that it was not required to
consider the fourth factor, as the balance of the first three
did not favor defendant.
The court then applied the first prong of the test under
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.
Ed. 2d at 693 (stating that defendant must show counsel's
performance was deficient and he or she made errors so serious
that counsel was not functioning as guaranteed by the Sixth
14 A-1889-12T2 Amendment). The court found that defendant and her attorney
"were on notice" that the State would question defendant's
credibility, and challenge Dr. Sandoval's opinion, in part by
alleging a lack of candor and objectivity based on his alleged
business relationship with defendant. The court found "there is
no evidence to prove that plea counsel did not review all of
these facts with [defendant]." The court was also unpersuaded
that trial counsel failed to apply "professional and/or trial
strategy" in urging defendant "not to go to trial but to enter a
guilty plea." The court also reviewed defendant's affirmations,
in response to her trial counsel's questioning, that he had
conferred with her earlier that day, reviewed the plea form, and
that she voluntarily and freely wished to plead guilty and waive
her right to a trial. The court did not expressly reach the
prejudice prong of the Strickland test. See Strickland, supra,
466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698
(defendant must show he or she was prejudiced such that there
existed a reasonable probability that, but for counsel's
unprofessional errors, the result would have been different).
The judge did not decide whether defendant's application
was time-barred, in view of its disposition on the merits.
However, the judge opined that "frankly, four months after the
running of the five-year time period with all of the various
15 A-1889-12T2 appeals that were part of the record there appears to be a
significant case in favor of the petitioner for this argument of
excusable neglect."
This appeal followed. Defendant presents the following
point and subpoints for our consideration:
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.
A) Defendant has asserted a colorable claim of innocence.
B) The nature and strength of defendant's reasons for withdrawal are powerful.
C) A plea bargain exists in this case; however, the plea offer was not accepted knowingly and voluntarily.
D) Withdrawal of the plea would not result in unfair prejudice to the State or unfair advantage to the defendant.
II.
A.
The trial court correctly viewed defendant's application as
both a motion to withdraw her plea, and a petition for PCR based
on ineffective assistance of counsel.7 The two requests for
7 We do not reach the issue whether, under Rule 3:22-3, the trial court should have held the PCR petition in abeyance, or dismissed it without prejudice, until it considered the plea withdrawal request. Neither the parties nor the trial court (continued)
16 A-1889-12T2 relief are distinct, and governed by different rules of court.
Compare R. 3:21-1 (motion to withdraw plea), with R. 3:22 (PCR).
They must be considered separately. Cf. State v. McDonald, 211
N.J. 4, 15-26, 29-30 (2012) (separately analyzing motion to
withdraw guilty plea under Slater, and claim of ineffective
assistance under Strickland, although finding that ineffective
assistance claim was premature on direct appeal).
The two requests for relief are governed by different time
constraints. A motion to withdraw a plea shall be made before
sentencing, but may be made at any time thereafter if the movant
shows a "manifest injustice." R. 3:21-1; see also State v.
J.J., 397 N.J. Super. 91, 97 (App. Div. 2007), appeal dismissed,
196 N.J. 459 (2008). By contrast, a petition for PCR must be
filed within five years of the challenged judgment of
conviction, absent excusable neglect where enforcement of the
bar would result in a "fundamental injustice." R. 3:22-12(a).
(continued) addressed that issue, and the interests of justice would not be served by bifurcating the proceedings at this point, particularly given the time that has elapsed since defendant's conviction. See Report of Supreme Court Committee on Post- Conviction Rights of Indigents, 85 N.J.L.J. 557, 568 (1962) (regarding proposed rule on exclusiveness of post-conviction application, stating that "[s]ome degree of flexibility in the jurisdictional handling of particular cases will inevitably arise" and "priority will be accorded the objective of substantial justice").
17 A-1889-12T2 The two applications implicate different but overlapping
rights. The motion to withdraw a plea implicates fundamental
rights to liberty and due process. See Slater, supra, 198 N.J.
at 158 ("A core concern underlying motions to withdraw guilty
pleas is to correct the injustice of depriving innocent people
of their liberty."). The right to PCR based on ineffective
assistance is grounded in the constitutional right to counsel.
See State v. Fritz, 105 N.J. 42, 57-58 (1987) (stating that
Strickland vindicates the constitutional right to counsel).
More broadly, however, "a PCR petition is a defendant's last
chance to challenge the 'fairness and reliability of a criminal
verdict in our state system.'" State v. Nash, 212 N.J. 518, 540
(2013) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)).
As we have noted, the motion to withdraw a plea is governed
by the four-factor test in Slater, supra. No one factor is
dispositive, nor must a movant satisfy all four. 198 N.J. at
162. However, "[c]onsideration of a plea withdrawal request can
and should begin with proof that before accepting the plea, the
trial court followed the dictates of Rule 3:9-2." Id. at 155.
The rule requires the court to determine if "there is a factual
basis for the plea and that the plea is made voluntarily, not as
a result of any threats or of any promises or inducements not
18 A-1889-12T2 disclosed on the record, and with an understanding of the nature
of the charge and the consequences of the plea." R. 3:9-2.
A petition for PCR based on ineffective assistance of
counsel is governed by the two-prong Strickland test. In a
challenge to a conviction arising from a guilty plea, the
petitioner may satisfy the prejudice prong by showing "a
reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to
trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370,
88 L. Ed. 2d 203, 210 (1985); see also State v. Gaitan, 209 N.J.
339, 351 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454,
185 L. Ed. 2d 361 (2013).
To obtain an evidentiary hearing on a PCR petition, a
defendant must establish a prima facie case for relief, material
issues of disputed fact, and show that an evidentiary hearing is
necessary to resolve the claims. R. 3:22-10(b). The petitioner
must ultimately establish the right to PCR by a preponderance of
the evidence. State v. Preciose, 129 N.J. 451, 459 (1992).
Regarding a plea withdrawal motion, the burden of proof
varies depending on when the motion is filed.
The same factors are to be used for motions filed either before or after sentencing, but the timing of the motion will trigger different burdens of proof for the movant: pre-sentence motions to withdraw a plea are governed by the "interest of justice"
19 A-1889-12T2 standard in Rule 3:9-3(e), while post- sentence motions are subject to the "manifest injustice" standard in Rule 3:21- 1. As a result, the weighing and balancing process will differ depending on when a motion is filed . . . .
[Slater, supra, 198 N.J. at 158.]
"Following sentencing, if a defendant seeks to withdraw a guilty
plea the court weighs more heavily the State's interest in
finality and applies a more stringent standard." State v.
Norman, 405 N.J. Super. 149, 160 (App. Div. 2009) (citing State
v. McQuaid, 147 N.J. 464, 485-87 (1997)). Thus, the longer a
defendant delays in seeking to withdraw a plea, the greater
burden he or she will bear in establishing "manifest injustice,"
because the prejudice to the State under prong four will
generally increase. Moreover, a defendant's reasons for delay
may also weigh against relief under factor two.
We recognize that the two tests may overlap. For example,
compelling evidence of a person's innocence that was available
but neglected by an attorney may weigh heavily in applying
factor one of the Slater test, as well as determining whether an
attorney's ineffectiveness was prejudicial under Strickland. A
defendant may rely on discovery of his or her attorney's
misinformation about the consequences of a plea to satisfy the
reasons for seeking to withdraw a plea under Slater factor two.
Those same facts may satisfy prong one of Strickland.
20 A-1889-12T2 However, a court must nonetheless view the applications
separately, and must avoid conflating the two. One can imagine
scenarios in which a defendant could prevail on one application,
but not the other. For example, a defendant may mislead his or
her attorney in accepting responsibility for a crime, in order
to plead guilty and to avoid threatened reprisals by another
criminal. Cf. State v. Simon, 161 N.J. 416, 444-46 (1999)
(affirming trial court's decision considering, but discrediting
defendant's claim, on motion to withdraw plea, that he falsely
admitted guilt because of threats to his family). While such a
defendant might have no viable claim for PCR based on
ineffective assistance, he or she conceivably could have a
viable plea withdrawal motion, based on a colorable claim of
innocence and compelling reasons for seeking withdrawal.
On the other hand, a defendant may fail on a motion to
withdraw a plea under Slater, because he or she lacks a
colorable claim of innocence (factor one), and the State would
suffer prejudice (factor four) as a result of delay and witness
unavailability. Yet, the same defendant may still have a
successful claim under Strickland, because (1) the defendant may
establish prejudice without necessarily establishing likely
acquittal; and (2) prejudice to the State is not a consideration
under Strickland. In the PCR context, to obtain relief from a
21 A-1889-12T2 conviction following a plea, "a petitioner must convince the
court that a decision to reject the plea bargain would have been
rational under the circumstances." Padilla v. Kentucky, 559
U.S. ___, ___, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297
(2010). "[A] rational decision not to plead guilty does not
focus solely on whether a defendant would have been found guilty
at trial . . . ." United States v. Orocio, 645 F.3d 630, 643
(3d Cir. 2011), overruled on other grounds by Chaidez v. United
States, ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).
In a case involving immigration consequences of a plea,
"[p]reserving the client's right to remain in the United States
may be more important to the client than any potential jail
sentence." Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1483,
176 L. Ed. 2d at 295 (internal quotation marks and citations
omitted).
In State v. Nuñez-Valdéz, 200 N.J. 129 (2009), the Court
affirmed PCR where counsel misinformed the defendant about the
immigration consequences of conviction. The defendant would not
have pleaded guilty had he been properly informed. Although the
defendant claimed he falsely admitted his guilt, id. at 133,
"[d]efendant conceded that his change of heart had nothing to do
with any assertion of innocence." Id. at 149. Neither the
22 A-1889-12T2 trial court nor the Supreme Court relied on evidence of
innocence as a factor in granting relief.
Finally, we apply different standards of review to orders
on plea withdrawal motions, and PCR petitions. While issues of
law are subject to our de novo review, Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we apply an
abuse of discretion standard to decisions on plea withdrawal
motions. "Thus, the trial court's denial of defendant's request
to withdraw his guilty plea will be reversed on appeal only if
there was an abuse of discretion which renders the lower court's
decision clearly erroneous." See Simon, supra, 161 N.J. at 444
(citing State v. Smullen, 118 N.J. 408, 416 (1990)). "A denial
of a motion to vacate a plea is 'clearly erroneous' if the
evidence presented on the motion, considered in light of the
controlling legal standards, warrants a grant of that relief."
State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009)
(citing Slater, supra, 198 N.J. at 164). Our Supreme Court has
found a mistaken exercise of discretion in denying a motion to
withdraw a plea where the court exercised a "clear error of
judgment." State v. Munroe, 210 N.J. 429, 448 (2012) (internal
quotation marks and citation omitted).
If a court has conducted an evidentiary hearing on a
petition for PCR, we necessarily defer to the trial court's
23 A-1889-12T2 factual findings. Nash, supra, 212 N.J. at 540. Moreover,
"Rule 3:22-10 recognizes judicial discretion to conduct such
hearings." Preciose, supra, 129 N.J. at 462. However, where
the court does not hold an evidentiary hearing, we may exercise
de novo review over the factual inferences the trial court has
drawn from the documentary record. State v. Harris, 181 N.J.
391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct.
2973, 162 L. Ed. 2d 898 (2005). Thus, it is within our
authority "to conduct a de novo review of both the factual
findings and legal conclusions of the PCR court." Id. at 421.
B.
Applying these principles, we are persuaded that the trial
court misapplied the Slater factors in denying defendant's
application to withdraw her plea.
Turning to the first Slater factor, the court set too high
a threshold for establishing a "colorable claim of innocence."
Slater, supra, 198 N.J. at 158. The court found that this
factor was neutral because defendant's diminished capacity
defense — supported by Dr. Sandoval's opinion — was challenged
by the State's expert, Dr. D'Urso and other evidence. However,
in applying this factor, a court should not decide the
likelihood of the defense prevailing. Munroe, supra, 210 N.J.
at 446 (holding that the court misapplied Slater factor one).
24 A-1889-12T2 "Rather, the issue is whether defendant raised a colorable claim
of innocence that should rightly have been decided by a jury."
Ibid. A court must consider whether "defendant 'presented
specific, potentially plausible facts' of his innocence." Id.
at 446-47 (quoting Slater, supra, 198 N.J. at 162-63).
By this standard, defendant's diminished capacity defense
was a colorable claim of innocence. The court did not expressly
consider that once defendant raised the question of her mental
disease or defect, it was the State's burden to disprove her
diminished capacity beyond a reasonable doubt. State v. Rivera,
205 N.J. 472, 487 (2011); State v. Moore, 122 N.J. 420, 431
(1991); Model Jury Charge (Criminal), "Evidence of Mental
Disease or Defect" (2006).8 It is notable that although Dr.
D'Urso opined that defendant likely had the necessary mental
state, he also confirmed that defendant suffered from several
serious mental health conditions.
The court also gave undue weight to the State's claim that
Dr. Sandoval had a conflict of interest based on his alleged
relationship with defendant. The claim was grounded in an
unsworn 2006 investigative report stating the billing clerk
8 By contrast, a defendant bears the burden of proving insanity by a preponderance of the evidence. State v. Singleton, 211 N.J. 157, 174 (2012); N.J.S.A. 2C:4-1.
25 A-1889-12T2 asserted such a relationship. However, that same clerk in 2003
told DCJ investigators no such relationship existed.
The PCR court also erred in rejecting, out of hand, the
"nature and strength of defendant's reasons for withdrawal."
Slater, supra, 198 N.J. at 159. The court relied solely on
defendant's affirmations at the plea hearing, which it held
belied her claim she was ill-informed about her defenses and
pressured to plead guilty. The court also discounted
defendant's claim of inadequate consultation by counsel.
We recognize that a defendant's representations "at plea
hearings concerning the voluntariness of the decision to plead
. . . constitute a 'formidable barrier' which defendant must
overcome before he will be allowed to withdraw his plea."
Simon, supra, 161 N.J. at 444. However, at defendant's plea
hearing, the court fell short of conducting the searching
inquiry required to assure that a defendant has knowingly and
voluntarily waived a claim as significant as diminished
capacity. Our Supreme Court recently held in State v. Handy,
215 N.J. 334, 362 (2013), that before a trial court accepts a
waiver of the insanity defense, the court must conduct a
"thorough and searching inquiry of an otherwise competent
defendant concerning his or her understanding of the nature of
the right being waived and the implications that flow from that
26 A-1889-12T2 choice." We presume no less is required here. Yet, the court
failed even to identify the diminished capacity defense by name,
let alone describe the nature of the defense, its significance,
and inform defendant that the State would bear the burden to
disprove diminished capacity.
As for factor two, defendant's claim that her trial counsel
did not adequately confer with her, and share the risks and
benefits of pleading, was more than a bald assertion. Cf.
Cummings, supra, 321 N.J. Super. at 170. Defendant's assertions
were supported by counsel's prior derelictions and
misrepresentations, which the court found when it sanctioned
trial counsel. The PCR court minimized counsel's past behavior,
stating it pertained only to the production of the expert
report. However, counsel's behavior at the very least lent
plausibility to defendant's claim that her attorney, after
representing that she had a viable defense, did not adequately
confer with her, failed to exercise diligence in obtaining a
promised second expert report, and then suddenly and urgently
advised her to switch course and plead guilty.
We conclude that an evidentiary hearing is required to
fairly assess defendant's asserted reasons for seeking to
withdraw her plea, and her allegations regarding trial counsel.
Upon completion of such a hearing, and in view of our comments
27 A-1889-12T2 regarding the "colorable claim of innocence" prong, the trial
court shall reconsider the application to withdraw defendant's
plea. In doing so, the court should also analyze prong four.
C.
Considering defendant's request for PCR, we agree with the
trial court's initial view that defendant's petition is not
time-barred by Rule 3:22-12. She established excusable neglect
under the circumstances, particularly since she filed only a few
months past the deadline. Defendant has also established
"fundamental injustice," as required by Rule 3:22-12(a)(1), as
she made "some showing that an error or violation played a role
in the determination of guilt." Nash, supra, 212 N.J. at 547
(internal quotation marks and citation omitted).
Turning to the Strickland test, we are persuaded that
defendant established a prima facie claim of ineffective
assistance of counsel. Defendant has presented more than bald
or conclusory allegations that her attorney's performance fell
"outside the wide range of professionally competent assistance."
Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L.
Ed. 2d at 695. As we have discussed, defendant presented a
plausible claim, supported by the court's finding of
misrepresentation and dereliction of professional duty, that her
attorney failed to confer with her or obtain a second expert
28 A-1889-12T2 opinion as promised, and urged her to plead guilty without
adequate explanation despite months of preparation for trial.
Defendant's claim of diminished capacity was supported by
an expert opinion, and indirectly supported by defendant's
history of mental illness. Certainly, a jury may have been
persuaded to reject Dr. Sandoval's opinion, or that of another
defense expert. Acquittal was far from certain. Yet, it is not
self-evident that pleading guilty was a reasonable strategy,
particularly since the agreement called for a plea to the
indictment, and a sentence resulting in defendant's
incarceration until age seventy-four. Upon a hearing, trial
counsel may well provide a basis for concluding that his advice
to defendant was the result of "reasonable professional
judgment." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at
2065, 80 L. Ed. 2d at 694-95. However, on this record, and
extending defendant all favorable inferences, she has
established a prima facie case regarding prong one.
As for the prejudice prong, defendant has presented
sufficient evidence to show "a reasonable probability that, but
for counsel's errors, [s]he would not have pleaded guilty and
would have insisted on going to trial." Hill, supra, 474 U.S.
at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Her readiness to
go to trial is plausible, because she had a plausible defense
29 A-1889-12T2 that she could present through her expert's and perhaps her own
testimony.
Her readiness to go to trial is also supported by the
nature of the plea offer. This is not a case where the plea
offer was so attractive that it would defy logic or reason that
a defendant would risk a trial. See Mustaro, supra, 411 N.J.
Super. at 106-07. Defendant pleaded to the indictment and
accepted a sentence that could result in her spending the rest
of her life in prison. We conclude defendant has made a prima
facie showing that going to trial would have been "rational
under the circumstances." Padilla, supra, 559 U.S. at ___, 130
S. Ct. at 1485, 176 L. Ed. 2d at 297. Defendant's claim that
she would have insisted upon going to trial had she been
effectively counseled cannot be rejected absent an evidentiary
hearing.
In sum, we reverse and remand for the court to conduct an
evidentiary hearing and to reconsider defendant's application
for relief under Slater and Strickland.
Reversed and remanded. We do not retain jurisdiction.
30 A-1889-12T2