NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4507-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS DORSETT,
Defendant-Appellant. _______________________
Argued May 3, 2021 – Decided August 2, 2021
Before Judges Sabatino and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-01- 0207.
John P. Pieroni argued the cause for appellant.
Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Mary R. Juliano, of counsel and on the brief).
PER CURIAM Defendant Thomas Dorsett appeals from the January 28, 2019 order of the
Law Division denying his petition for post-conviction relief (PCR) without an
evidentiary hearing and his application to withdraw his guilty plea to first-
degree murder and first-degree arson for hire. We affirm.
I.
The following facts are derived from the record. In 2010, defendant
conspired with his daughter, codefendant Kathleen Dorsett, to kill her ex-
husband, with whom she was engaged in a custody dispute involving their young
daughter. Defendant and Kathleen 1 agreed that when the ex-husband transferred
custody of the child to Kathleen at her home, she would convince him on a
pretext to go behind the garage, where defendant would be waiting to kill him.
After the murder, defendant and Kathleen put the victim's body in the trunk of
a car, which defendant abandoned in a restaurant parking lot. Defendant
conspired with codefendant Anthony Morris to pay him to set fire to the car to
destroy the victim's body.
Defendant and Kathleen were arrested on murder and other charges.
Defendant retained private counsel to represent him. Initially, defendant
1 Because defendant and two of his codefendants share a last name, we refer to them by their first names. No disrespect is intended.
2 A-4507-18 discussed with his counsel the possibility of mounting a passion/provocation
defense to reduce his murder charge to a manslaughter conviction.
Passion/provocation manslaughter is a "homicide which would otherwise be
murder . . . [that] is committed in the heat of passion resulting from a reasonable
provocation." State v. Mauricio, 117 N.J. 402, 411 (1990) (quoting N.J.S.A.
2C:11-4(b)(2)). Under this approach, defendant would argue that he fatally
struck the victim after being provoked by him during an argument and Kathleen
was not in involved in the death. According to an October 9, 2013 letter from
defendant's counsel to defendant memorializing their pretrial strategy, the
defense, if successful, would expose defendant to a shorter potential sentence
and exonerate Kathleen.
However, Kathleen subsequently conspired from jail with her mother,
codefendant Lesley Dorsett, to hire a hitman to kill the victim's mother.
Unbeknownst to Kathleen and Lesley, the hitman was an undercover police
officer and some of their conversations with him were recorded. After Lesley
made a cash payment to the officer she too was arrested.
On January 31, 2011, a grand jury indicted defendant, charging him with:
(1) first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a);
(2) first-degree murder, N.J.S.A. 2C:11-3(a); (3) three counts of fourth-degree
3 A-4507-18 tampering with physical evidence, N.J.S.A. 2C:28-6(1); (4) second-degree
conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2 and 2C:17-1(a)(2); (5)
first-degree arson for hire, N.J.S.A. 2C:17-1(d); (6) second-degree conspiracy
to commit desecration of human remains, N.J.S.A. 2C:5-2 and 2C:22-1(a); (7)
second-degree desecration of human remains, N.J.S.A. 2C:22-1(a); (8) third-
degree witness tampering, N.J.S.A. 2C:28-5(a); (9) third-degree conspiracy to
commit financial facilitation, N.J.S.A. 2C:5-2 and 2C:21-25(e)(3); and (10)
third-degree financial facilitation, N.J.S.A. 21:25(e)(3). The financial counts
relate to bank transactions uncovered during the murder investigation.
The grand jury also indicted Kathleen charging her with the same offenses
lodged against defendant, except for first-degree conspiracy to commit
aggravated arson, first-degree arson for hire, and third-degree witness
tampering. She was also charged with first-degree conspiracy to commit murder
(her former mother-in-law), N.J.S.A. 2C:5-2 and 2C:11-3, and first-degree
attempted murder (her former mother-in-law), N.J.S.A. 2C:5-1 and 2C:11-3.
Finally, the grand jury indicted Lesley, charging her with first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3, first-degree
attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, third-degree conspiracy to
4 A-4507-18 commit financial facilitation, N.J.S.A. 2C:5-2 and 2C:21-25(e)(3); and third-
degree financial facilitation, N.J.S.A. 21:25(e)(3). 2
Morris was indicted and charged with fourth-degree tampering with
physical evidence, second-degree conspiracy to commit aggravated arson, first-
degree arson for hire, and second-degree conspiracy to commit desecration of
human remains.
After a series of pretrial rulings, Morris entered a guilty plea to second-
degree conspiracy to commit desecration of human remains in exchange for his
truthful testimony against the Dorsetts. The court ordered severance of
defendants, so that defendant, Kathleen, and Lesley would be tried individually
on all of the charges in the indictments against them.
The State offered all three defendants plea agreements. Each plea offer
was contingent on the guilty pleas of the other two defendants. The offers
required defendant to plead guilty to the murder of his former son-in-law and
the subsequent arson for hire and Kathleen to plead guilty to the murder of her
former husband, the attempted murder of the victim's mother, and a conspiracy
charge. The State would recommend significant terms of incarceration for both.
2 Lesley was also charged with one count of fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1), which the court dismissed.
5 A-4507-18 In exchange, Lesley would plead guilty to conspiracy to commit murder and the
State would recommend a relatively short term of imprisonment, giving her the
chance to regain her freedom for a meaningful period after prison.
After Kathleen and Lesley's attempt to hire a hitman, defendant's counsel
advised him that a passion/provocation defense, if successful, would not protect
Kathleen and Lesley from exposure to significant prison terms. As counsel
explained in his post-plea letter to defendant:
[I]f the entire case was limited to [the victim's] death the situation would have been significantly different. However, as you know, after Katie 3 convinced Lesley to pay [the undercover officer] to eliminate [the victim's mother] the situation drastically changed. The defenses we had hoped to advance on your behalf which would have simultaneously exonerated Katie were no longer feasible. The conspiracy case against Lesley and Katie, considering the proofs and surrounding circumstances was very strong. Any leverage we had to negotiate a more favorable plea or to defend the original charges stemming from [the victim's] death were essentially eliminated. You did the right thing by your wife. She will get out and have a life.
On May 9, 2013, the three Dorsetts entered guilty pleas. Defendant
pleaded guilty to first-degree murder and first-degree arson for hire. Kathleen
pleaded guilty to first-degree murder, second-degree conspiracy to commit
3 Defendant's counsel referred to Kathleen as Katie.
6 A-4507-18 desecration of human remains, and first-degree attempted murder. Lesley
pleaded guilty to first-degree conspiracy to commit murder.
At his plea allocution, defendant told the court he was pleased with the
advice he received from his counsel, including advice regarding possible
defenses. In addition, defendant admitted to intentionally murdering his former
son-in-law in the following exchange with his counsel:
[COUNSEL]: And Katie was again telling you concerns she had and which was causing you to be angry towards [the victim]; was it not?
[DEFENDANT]: Yes.
[COUNSEL]: And that anger was developing over time?
[DEFENDANT]: Over time.
[COUNSEL]: And increasing over time. Correct?
[COUNSEL]: In fact . . . you were really growing a deep disdain or anger towards [the victim]; were you not?
[COUNSEL]: And then in July of 2010 . . . you learned that somebody had filed and you believed it was [the victim] . . . a DYFS complaint against you. Right?
7 A-4507-18 [COUNSEL]: And he alleged that you were engaging in improper conduct and contact with [your granddaughter]. Right?
[COUNSEL]: That, in fact infuriated you, didn't it?
[COUNSEL]: Humiliated you. And DYFS investigated. Is that right?
[COUNSEL]: And you felt victimized?
....
[COUNSEL]: So that only heightened your anger and your disdain towards [the victim]; did it not?
[COUNSEL]: In fact, you wanted him out of your life and out of your family's life?
[COUNSEL]: And you considered ways of getting him out of your life, including planting drugs on him and reporting him to the police. Right?
8 A-4507-18 [DEFENDANT]: Yes.
[COUNSEL]: And in fact even killing him?
[COUNSEL]: On August 16th, you were at Katie's in the morning. Right?
[COUNSEL]: And that was one of [the victim's], if not his first overnight with [your granddaughter], it was early on after he was granted overnight visitation. Right?
[COUNSEL]: And you really didn't want him to have that because you didn't think it was in the best interest of your granddaughter. Right?
[DEFENDANT]: Right.
[COUNSEL]: An on that day you were on the curb when [your granddaughter] was being dropped off. Right?
[COUNSEL]: And [the victim] went to the back area with you or where you were. Correct?
9 A-4507-18 [COUNSEL]: And that was under the guise of getting tools?
[COUNSEL]: That were, that he supposedly had left at her house. Right?
[COUNSEL]: And you instigated an argument with him; did you not?
[COUNSEL]: And at one point during that argument you picked up an item off the ground, I think you said a cable, and you struck him in the head? Correct?
[COUNSEL]: You did that, you knew what you were doing. Right?
[COUNSEL]: Okay. You were angry, you were upset, you were somewhat irate, but you knew what you were doing. Correct?
[COUNSEL]: And when you struck him in the head with the cable, why did you do it? What were you trying to do?
[DEFENDANT]: To kill him.
10 A-4507-18 [COUNSEL]: And then when he fell, his head struck a four-by-four . . . . Right?
[COUNSEL]: And eventually as a result of either being struck in the head or striking his head when he fell, he did die. Correct?
[COUNSEL]: There's no question in your mind that when you, despite your state of mind, being angry and this growing anger, when you picked up that cable and you struck him in the head with it, it was your purpose and your intention to kill him. Correct?
[COUNSEL]: I've explained to you, have I not, passion provocation/manslaughter, the difference between that, the elements of those and murder?
[COUNSEL]: And do you understand that, and we've discussed, have we not, the possible defense of passion provocation to [the victim's] death?
11 A-4507-18 [COUNSEL]: And are you satisfied with my advice?
[COUNSEL]: Right? And you have – there's no question in your mind that you are guilty of the murder that you just described of [the victim] on that morning, August 16th?
The factual basis Kathleen gave for her guilty plea underscored the
intentional nature of defendant's murder of his former son-in-law:
On August 16, 2010, [the victim] came to my residence . . . for a scheduled drop-off of our infant daughter. Approximately [thirty] minutes prior to [the victim's] arrival he texted me that he was on his way.
When he arrived, I told [the victim] to get his tools in the backyard of the driveway. After [the victim] was convinced to retrieve his tools, I took my daughter into my house, knowing all the time my father was back there waiting to kill him.
The judge confirmed with Kathleen that she sent the victim into the backyard
"knowing that [her] father was there waiting to kill him." And, when the judge
asked her if "this [was] something [she] knew was going to happen, and it was
[her] job to get him into the backyard," Kathleen responded, "[y]es."
The court sentenced the three Dorsetts on the same day. The court
sentenced defendant to an aggregate forty-five years of imprisonment, with a
12 A-4507-18 thirty-year period of parole ineligibility. Kathleen received an aggregate fifty-
eight years of imprisonment with a forty-seven-year period of parole
ineligibility. The court sentenced Lesley to a seven-year term of incarceration
with an eighty-five-percent period of parole ineligibility.
Defendant and Kathleen filed appeals of their sentences, which were heard
on our excessive sentence calendar. We affirmed both sentences. State v.
Dorsett, No. A-3186-13 (June 4, 2014); State v. Dorsett, No. A-2224-13 (Apr.
7, 2014). Lesley maxed out of her sentence on December 16, 2016.
On September 22, 2015, Kathleen filed a PCR petition and an application
to withdraw her guilty plea in the Law Division. She alleged that her attorney
coerced her into pleading guilty by telling her that she would lose her daughter
forever, that "a trial could put my mother in jail for the rest of her life" and that
"a plea was the only possible route to save her mother." In support of her claim
that she falsely admitted to conspiring with defendant to kill her former husband,
Kathleen submitted a certification signed by defendant stating that on the day of
the murder he and the victim were fighting when the victim "fell on a pile of
metal junk" and "hit his head." Defendant's certification further stated that
Kathleen was "not involved in the fight" and had no knowledge defendant was
"going to injure or kill her ex-husband."
13 A-4507-18 The trial court denied Kathleen's PCR petition and application to
withdraw her guilty plea. We affirmed the trial court's decision. State v.
Dorsett, No. A-0311-16 (June 7, 2018). The Supreme Court denied certification.
State v. Dorsett, 236 N.J. 233 (2018).
On November 15, 2017, defendant filed a PCR petition and application to
withdraw his guilty plea in the Law Division. He alleged his trial counsel was
ineffective for not adequately advising him as to the passion/provocation
defense and that his guilty plea was not knowingly and voluntarily made.
Defendant argued that had he not received incorrect advice from his trial
counsel, he would have pursued the passion/provocation defense instead of
pleading guilty. He also argued that it would be a manifest injustice to deny his
motion to withdraw his guilty plea because of the incorrect advice.
In his reply brief, defendant argued, for the first time, that trial counsel
urged him to abandon a passion/provocation defense due to a "conflict of
interest" because defendant could not pay his counsel's fee. According to
defendant, his counsel was intent on pursuing a passion/provocation defense but
suddenly changed his advice and told him the defense was not viable after his
request to be released as counsel was denied to avoid expending time at trial for
which he was unlikely to be paid. Defendant produced no evidence that a motion
14 A-4507-18 to be released as counsel was made or a transcript of the court's decision if such
a motion was made.
The State opposed defendant's petition, arguing that he failed to make a
prima facie showing of ineffective assistance of counsel because his attorney
advised defendant to follow a sound strategy to spare Lesley from a lengthy
sentence. In addition, the State argued that defendant failed to establish grounds
for withdrawal of his guilty plea.
On January 28, 2019, the trial court issued an oral opinion denying
defendant's PCR petition without an evidentiary hearing, as well as his
application to withdraw his guilty plea. With respect to the PCR petition, the
court concluded defendant did not make a prima facie showing that his trial
counsel's performance was ineffective. To the contrary, the court found trial
counsel gave advice consistent with a valid trial strategy designed to prevent
Lesley from receiving a lengthy prison sentence, noting that defendant's concern
for his wife "permeates the entire trial" transcript. The court found defendant
was not likely to have rejected a plea offer that allowed Lesley to avoid a long
prison term even if counsel had advised him to mount a passion/provocation
defense because Lesley would have to face trial, and likely conviction, if
15 A-4507-18 defendant did not plead guilty. Thus, the court concluded that an evidentiary
hearing was not warranted and defendant was not entitled to PCR.
With respect to defendant's application to withdraw his guilty plea, the
court found that his claim of a colorable passion/provocation defense was not
supported by the record. The court found that defendant's admission at his plea
hearing that he instigated a confrontation with the victim after having him lured
to the back of the garage to kill him stood in contradistinction to the elements
of the defense. In addition, the court found defendant's claimed defense is
contradicted by the admissions Kathleen made at her plea hearing that she and
defendant conspired to murder the victim and that defendant was waiting to kill
him behind the garage. The court also found no compelling reason to allow
withdrawal of the plea and concluded the State would be at a significant
disadvantage if defendant were permitted to do so because Lesley had already
completed her lenient sentence, the benefit defendant sought by making a plea.
The court found that because defendant raised his trial counsel's alleged
conflict of interest after the State filed its initial brief, the State did not have an
adequate opportunity to address that claim. The court, therefore, did not address
that claim without prejudice to defendant raising it at a later date. A January
28, 2019 order memorializes the trial court's decision.
16 A-4507-18 This appeal followed. Defendant makes the following arguments.
POINT I
THE TRIAL COURT (JUDGE 2) ERRED IN FINDING THAT TRIAL COUNSEL HAD NOT PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE TRIAL COURT (JUDGE 2) ERRED IN CONCLUDING THAT THE DEFENDANT HAD NOT MADE A PRIMA FACIE SHOWING FOR AN EVIDENTIARY HEARING.
POINT III
THE TRIAL COURT (JUDGE 2) ERRONEOUSLY USED THE MORE ONEROUS STANDARD OF MANIFEST INJUSTICE INSTEAD OF THE LESSER STANDARD OF ABUSE OF DISCRETION IN DENYING THE APPLICATION BY THE DEFENDANT TO WITHDRAW HIS GUILTY PLEA. (Not Raised Below)
POINT IV
THE TRIAL COURT (JUDGE 2) ERRED BY NOT GRANTING THE REQUESTED STAY TO ALLOW THE DEFENDANT TO OBTAIN THE PRE-TRIAL TRANSCRIPT IN WHICH TRIAL COUNSEL HAD TO DEFEND AGAINST BEING REMOVED AS COUNSEL FOR THE DEFENDANT DUE TO A CONFLICT OF INTEREST RELATIVE TO LEGAL FEE ISSUES INVOLVING COUNSEL FOR THE CO- DEFENDANTS.
17 A-4507-18 POINT V
THE TRIAL COURT (JUDGE 2) ERRONEOUSLY IGNORED THE ADMISSION BY THE PROSECUTION THAT THE DEFENDANT "HAD NOTHING TO DO WITH" THE CONSPIRACY TO COMMIT MURDER AND ATTEMPTED MURDER CHARGES LEVELED AGAINST TWO (2) CO- DEFENDANTS, FURTHER SUPPORTING INEFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL.
POINT VI
THE TRIAL COURT (JUDGE 2) ERRED IN FINDING THAT THERE WAS NO COLORABLE CLAIM OF INNOCENCE, SLATER FACTOR 1, TO ALLOW THE DEFENDANT TO WITHDRAW HIS GUILTY PLEAS.
II.
Under Rule 3:22-2(a), a defendant is entitled to post-conviction relief if
there was a "[s]ubstantial denial in the conviction proceedings of defendant's
rights under the Constitution of the United States or the Constitution or laws of
the State of New Jersey[.]" "A petitioner must establish the right to such relief
by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451,
459 (1992). "To sustain that burden, specific facts" which "would provide the
court with an adequate basis on which to rest its decision" must be articulated.
State v. Mitchell, 126 N.J. 565, 579 (1992).
18 A-4507-18 The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance
of counsel, the defendant must meet the two-part test established by Strickland
and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.
Under Strickland, a defendant first must show that his attorney made
errors "so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's
performance is deficient if it "[falls] below an objective standard of
reasonableness." Id. at 688.
A defendant also must show that counsel's "deficient performance
prejudiced the defense[,]" id. at 687, because "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different[,]" id. at 694; accord State v. Nunez-Valdez, 200 N.J. 129,
139 (2009). "A reasonable probability is a probability sufficient to undermine
confidence in the outcome" of the trial. Strickland, 466 U.S. at 694.
19 A-4507-18 "[A] court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as a result of
the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997).
"If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be
followed." Strickland, 466 U.S. at 697. The right to the effective assistance of
counsel extends to legal assistance related to the entry of a guilty plea. State v.
Gaitan, 209 N.J. 339, 350-51 (2012).
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013) (citing Marshall, 148 N.J. at 157-58). A hearing is
required only when: (1) a defendant establishes a prima facie case in support of
PCR; (2) the court determines that there are disputed issues of material fact that
cannot be resolved by review of the existing record; and (3) the court determines
that an evidentiary hearing is required to resolve the claims asserted. State v.
Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "A prima facie case is
established when a defendant demonstrates 'a reasonable likelihood that his or
her claim, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
20 A-4507-18 Having carefully reviewed the record in light of these legal principles, we
affirm the January 28, 2019 order for the reasons stated in the trial court's oral
opinion. We add the following brief comments.
As the trial court noted, defendant's argument conflates the alleged
strength of his passion/provocation defense with the validity of the legal strategy
to accept the State's plea offer to ensure that Lesley had a chance to spend time
out of prison after serving her sentence. Initially, defendant's trial counsel
advised him that he had a chance to establish a passion-provocation defense. If
successful, this defense would shorten defendant's sentence and exonerate
Kathleen of the murder of her ex-husband. The downside of pursuing the
defense at that time was that if it was unsuccessful defendant would likely
receive a longer sentence than might be offered by the State in plea negotiations.
However, once Kathleen and Lesley were charged with the attempted
murder of the victim's mother, defendant's pursuit of the passion/provocation
defense no longer had a potential benefit for either Kathleen or Lesley, who had
been placed in jeopardy of a significant prison sentence because of their attempt
to hire a hitman. If the defense was successful, defendant's sentence exposure
would be diminished, but Kathleen would not be protected from the threat of a
21 A-4507-18 lengthy sentence because she was charged with attempted murder of the victim's
mother, as well as the murder of her former husband.
In addition, and perhaps more importantly, Lesley also faced a lengthy
prison sentence on charges for which the incriminating evidence was substantial.
The only way defendant could protect his wife from the threat of decades in
prison was to plead guilty so she could accept the State's favorable offer to her,
which was contingent on defendant's guilty plea. If he went to trial and pursued
the passion/provocation defense Lesley would be forced to face trial on the
serious charges she faced, regardless of the strength of defendant's defense.
Given defendant's stated intent to protect his family, the trial court's conclusion
that he would not have gone to trial whatever his counsel's advice might have
been is supported by the record.
III.
Withdrawal of a guilty plea after sentencing is warranted only "to correct
a manifest injustice." R. 3:21-1. "[A] plea may only be set aside in the exercise
of the court's discretion." State v. Slater, 198 N.J. 145, 156 (2009). The court
considers four factors to determine if withdrawal of a guilty plea is warranted:
"(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
22 A-4507-18 plea bargain; and (4) whether withdrawal would result in unfair prejudice to the
State or unfair advantage to the accused." Id. at 157-58. "No factor is
mandatory; if one is missing, that does not automatically disqualify or dictate
relief." Id. at 162.
"[T]he 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." State v. Simon, 161 N.J.
416, 444 (1999); State v. O'Donnell, 435 N.J. Super. 351, 372 (App. Div. 2014).
There is ample support in the record for the trial court's denial of
defendant's application to withdraw his guilty plea. Passion/provocation
manslaughter has four elements: (1) the provocation must be adequate; (2) the
defendant must not have had time to cool off between the provocation and the
slaying; (3) the provocation must have actually impassioned the defendant; and
(4) the defendant must not have actually cooled down before the slaying. State
v. Carrero, 229 N.J. 118, 129 (2017). "The first two elements are assessed
objectively, while the third and fourth are 'more subjective because they relate
to the defendant's actual response.'" Ibid. (quoting State v. Robinson, 136 N.J.
475, 490 (1994)).
23 A-4507-18 We agree with the trial court's conclusion that defendant did not establish
that he had a colorable passion/provocation defense. When giving the factual
basis for his plea, defendant admitted instigating a confrontation with the victim
for whom he had a growing disdain. In addition, defendant admitted to having
contemplated various methods of ridding himself of the victim, including killing
him, and to having him lured to the back of the garage on the day of the murder
so he could kill him. At sentencing, the court described the murder as "well
thought-out and premeditated," which is incompatible with a passion/
provocation defense. See State v. Chew, 179 N.J 186, 212 (2004) (holding that
passion/provocation defense is undermined by evidence of premeditation).
The record also supports the trial court's conclusion that permitting
defendant to withdraw his guilty plea after he gained the indirect benefit of
Lesley's shorter sentence and release from prison would not be warranted. He
and Lesley received the benefit of the plea bargain to which they both agreed.
Additionally, it has been more than a decade since the murder, which likely has
put the State at a disadvantage with respect to the availability of evidence were
defendant's plea to be withdrawn. In particular, Morris, who has already been
sentenced, would no longer have an incentive to cooperate in defendant's
prosecution.
24 A-4507-18 We have carefully considered defendant's remaining arguments, including
his allegation of a conflict relating to his inability to pay his attorney's fees, and
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
25 A-4507-18