State v. Hess

23 A.3d 373, 207 N.J. 123, 2011 N.J. LEXIS 746

• Court: Supreme Court of New Jersey
• Decided: July 21, 2011
• Docket: A-113 September Term 2009
• Status: Published

Opinions

Justice ALBIN

delivered the opinion of the Court.

In a negotiated agreement with the State, defendant Marie Hess pled guilty to aggravated manslaughter for killing her husband James (Jimmy) Hess, a City of Burlington police officer. Under the terms of the agreement, defendant was required to acknowledge that she would receive a thirty-year prison sentence, subject to a parole disqualifier (twenty-five-and-one-half years); to concede that the aggravating factors outweighed the mitigating factors; and to agree that neither she nor her attorney would seek a lesser term of imprisonment. At defendant’s sentencing, despite evidence in his possession suggesting that defendant suffered from Battered Women’s Syndrome when she killed her husband, counsel offered no mitigating evidence in support of a lesser sentence. Nothing in the plea agreement specifically precluded him from presenting such evidence. Moreover, counsel did not object to the plea agreement’s restrictions on his right to argue on his client’s behalf at sentencing; to the State’s introduction of a video of the victim’s life set to popular and religious music; or to an invective-filled victim-impact statement given by a police officer who served with defendant’s husband.

In this appeal from the denial of defendant’s motion for post-conviction relief, we conclude that defendant was denied her constitutional right to the effective assistance of counsel at sentencing. Defense counsel deprived the court of mitigating evidence that was necessary for a meaningful sentencing hearing. That alone so undermined the adversarial process that counsel no longer was serving in the role of an advocate as envisioned in our criminal justice system. Moreover, the constraints embedded in the terms of the plea agreement — drafted by the State and accepted by defense counsel — denied the court of arguments that may have shed light on relevant sentencing factors and how they should be weighed. The terms of that plea agreement were incompatible with our holding in State v. Warren, 115 N.J. 433, 558 A.2d 1312 (1989), and the decision in State v. Briggs, 349 N.J.Super. 496, 793 A.2d 882 (App.Div.2002), and impinged not only on the role of counsel at sentencing, but also on the role of our courts as independent arbiters of justice. Last, defense counsel was constitutionally ineffective for failing to challenge the unduly prejudicial video tribute to the victim scored to popular and religious music.

Defendant has sought only a new sentencing hearing. Because the plea agreement’s restrictions on defense counsel’s right to argue for a lesser sentence are in contravention of this State’s decisional law, those terms are void. The State is free to proceed to a new sentencing hearing or to vacate the plea.

I.

Defendant Marie Hess met her future husband Jimmy when she was seventeen years old. The two were married ten years later in 1992. In 1995, Jimmy became a police officer in the City of Burlington, where they came to live. On the morning of August 19, 1999, the thirty-four-year-old defendant shot Jimmy in the head as he lay sleeping in bed.

After shooting her husband, defendant wrapped the gun in a T-shirt and stored it in a kitchen cabinet, and then went about the ordinary course of her day. She went off to work as a toll collector at the Burlington-Bristol Bridge. After completing her shift at 11:30 a.m., she took her husband’s uniforms to the cleaners. She next picked up a pizza and returned home with it. She then entered her bedroom, where she observed her husband’s head covered in blood, and called the 9-1-1 dispatcher at 12:15 p.m. The police arrived at defendant’s home shortly afterwards.

No one disputes the fact that defendant killed Jimmy. The only issue was, why. Were they “really America’s couple,” as later described by the prosecutor, or was she the psychologically, and sometimes physically, battered woman as she described in her first full statement to the police and in her post-conviction-relief petition?

Defendant gave her first formally recorded statement to detectives of the Burlington County Prosecutor’s Office at 10:35 p.m. on the day she killed her husband.¹

Defendant’s August 19, 1999 Statement

Defendant admitted shooting her husband, accidentally, when it was her purpose only to scare him. She described a history of domestic violence, psychological belittlement, and victimization leading up to the killing. In the months before the shooting, Jimmy became increasingly violent, the constant refrain being that she could “do nothin’ right.” They were having problems related to the house that they were in the process of purchasing. She was blamed for the delay in getting a mortgage, for not keeping papers in order, and for not wanting to make the move. She was blamed for the problems with their telephone service. A month earlier, Jimmy had “put his service weapon to [her] head and told [her] if [she] didn’t straighten up [she] could disappear down in the” Pine Barrens. On an earlier occasion, Jimmy had physically assaulted her, pulling her hair and punching her on the lip, warning her that “he would be willing to lose his job and go back to construction work if [she] called the cops.”

On the evening before the shooting, after completing his shift, Jimmy visited a local bar and, shortly after midnight, returned home heavily intoxicated. He yelled at defendant because his dinner was not ready. He complained that he was not getting his phone messages. He then “took his gun off the table” and pointed it at defendant’s head, and told her to “straighten out” or else.

Defendant stayed on the couch that night, unable to sleep, watching the clock, and fearful that Jimmy might come at her. At 7:00 a.m., defendant left the couch and readied herself for work. She heard Jimmy awake, yelling that the telephone was disconnected, and she responded that she would tend to it after work. She next went to the basement and retrieved a gun. She then went to the bedroom where Jimmy had fallen back asleep. Defendant wanted Jimmy to “roll over and see” the gun pointing at him like she had seen it pointed at her, she wanted to scare him, and she wanted him to be “scared enough to say he was sorry for everything, and that [they] would work everything out.” But the gun “went off accidentally.”

That day, August 19, defendant was arrested and charged with the murder of her husband. The next day, she was admitted to the Forensic Psychiatric Hospital in Trenton “because of suicidal ideations.”

Forensic Psychiatric Hospital

On her admission to the hospital, defendant reported that “her husband was physically abusive towards her and she was afraid of him.” She also stated that “if she did not kill him he would have killed her.” She maintained that “she accidentally shot” her husband and “wanted to kill herself’ as well. In the four months before shooting her husband, defendant “had lost about 28 pounds of weight” and “had difficulty sleeping.” After four days of observation, defendant was released from the hospital and transferred to the Burlington County Jail.

Indictment

On March 23, 2000, the Burlington County grand jury returned an indictment charging defendant with purposely or knowingly causing the death of her husband in violation of N.J.S.A. 2C:11-3(a)(1) and (2).

Defense Investigation

Defendant’s attorney retained a private investigator, Richard Strohm, who, in March and April of 2000, conducted interviews of nine people — friends and co-workers of Marie and Jimmy Hess— who had first-hand information about their marital relationship. Those interviews revealed that Jimmy had abused and threatened his wife and attempted to dominate and control her.

Herbert Wickward was Jimmy Hess’s long-time good friend. They hunted and fished together, and their families socialized with each other. Wickward remembered that on a fishing trip when defendant forgot the bait, or on a hunting trip when she forgot the shells, Jimmy called her “a stupid bitch and just belittled her. And he didn’t care who was around.” On a trip to the Poconos, when defendant spilled some grease one morning while cooking, Jimmy “threw up his fist and pushed her back to the table” and verbally berated her for fifteen minutes. On such an occasion, when Jimmy was in a rage, with his face “beet” red, he would listen to no one.

Wickward witnessed Jimmy “raise his hands and get in [defendant’s] face, and say, shut up you bitch I’ll kill you.” Several times, Wickward heard Jimmy “threaten to kill [defendant], and ... threaten to kill himself.” Wickward knew that Jimmy drank to excess almost every night, including the night before his death. Although he never observed Jimmy physically assault defendant, on one occasion he saw defendant “with black eyes and abrasions on her face,” which defendant explained was caused when “she ran into a door.”

Some of the couple’s friends noted that defendant would wear sunglasses, even during evening hours, suggesting that she was hiding bruises. Some of Jimmy’s friends spoke of his penchant to drink to excess, and more so towards the end of his life. Some noted that defendant lost considerable weight in the months before she killed her husband.

Friends of the couple described Jimmy as “controlling,” as treating defendant like a “slave.” According to Margaret Fanelle, a neighbor, if Jimmy “told [defendant] to jump she would say how [high].” Defendant carried a portable telephone, even when in the yard or out hanging clothes on a line, because Jimmy “check[ed] on her all the time.” Fanelle believed that defendant was afraid of her husband; you could see it “by just looking at her and talking to her.” Another neighbor, Andrea Goodman, recalled that Jimmy insulted his wife and made her cry, telling her that “she shouldn’t think, and he thinks more in one day than she thinks in a week.”

Marylyn Reppert, a mutual friend of the couple, remembered that a month before Jimmy’s death she took a whale-boat trip with the Hesses. Reppert noticed that the long beaded braid that defendant always wore in her hair was missing. When Reppert asked what had happened, defendant “looked at Jimmy and then she said I cut it off.” Out of her husband’s presence, defendant explained that “Jimmy yanked it out of her head.” Defendant told Reppert that the night before the shooting Jimmy “came home drunk and was very mad. And he put a gun to her head and told her that he could shoot her and get rid of her body where nobody would ever find it.”

The bartender at the Woodshed Bar frequented by Jimmy recalled that Jimmy “lost his temper many times” and even threatened one of her friends, saying “he was going to bury her in the Pines and nothing could happen to him because he was a cop.”

Also provided in discovery to defendant’s attorney was a statement from Lieutenant Timothy Richardson of the Burlington Police Department, who recounted a fishing trip in Canada a year before Jimmy’s death. One evening Jimmy had been drinking “heavily” and became “very violent” and had to be subdued. Indeed, as a result of that episode, Lieutenant Richardson refused to go on the next annual fishing trip if Jimmy was to be part of the excursion.

Defendant’s February 26, 2001 Statement

More than a year and a half after giving her first taped statement, defendant gave a second one at the Burlington County Prosecutor’s Office. Defendant’s attorney accompanied her to the office, but inexplicably left her alone when the formal interrogation session began. Defense counsel gave permission to a Burlington County Prosecutor’s detective and the executive assistant prosecutor to question defendant in his absence.

In this statement, defendant offered a different motivation for the shooting and, with prompting from her interlocutors, downplayed the level of abuse in her relationship with Jimmy. At the outset of the interview, defendant described a Valentine’s Day incident when Jimmy became enraged at her at a bar, ripping out the braids from her hair and smashing her “head a couple [of] times against the passenger side window of [a] truck.” The interviewer then asked her whether this was “a one-time event,” to which she responded, “Yes.” Then, through a series of leading questions, the interviewer got defendant to recant her prior description of Jimmy as a violent person:

Detective: In prior statements you have painted a picture of JIMMY as being a violent person. Okay, that’s not an accurate description of JIMMY, is it?

Defendant: No. He would get loud and sometimes make occasional threats but generally he would walk away.

Detective: Okay. As a matter of fact, he has on numerous occasions by your own statements, walked out of the house or walked away from you rather than to either continue an argument or become physical in any way. Is that correct?

Defendant: Yeah, that’s correct.

Through more leading questions, defendant described how the family finances — for which Jimmy held her responsible — had snowballed out of control. Although Jimmy had expected to purchase his dream home in Chatsworth, defendant was not enamored with the idea. Defendant believed that the couple would not qualify for a mortgage for a new home because they were not making timely payments on their existing mortgage. She also believed that she would be blamed for the failure to obtain a mortgage. She did not submit an application for a mortgage because she knew it would be rejected. Instead, she engaged in an elaborate cover-up. She generated a fake mortgage-approval letter so Jimmy would think that they had been approved for the mortgage. She knew that her scheme to keep Jimmy in the dark about the seriousness of their financial problems was about to end.

When Jimmy came home for dinner at 12:30 a.m. on August 19, the two argued about their malfunctioning telephone and the impending move to a new home. He made it clear that he would purchase the house with or without her, and also told her that he suspected that she was attempting to undermine the securing of a mortgage. Defendant admitted that she was emotionally hurt and angry that the new house meant more to Jimmy than his relationship with her, and that he would seek help from his family rather than rely on her.

That evening she lay on the couch thinking that Jimmy would soon learn about her mortgage-application ruse. She did not “want him to find out that [she] had messed up.” She was angry with herself because she could not control the finances and angry about their fights in which he called her “stupid.” She did not come clean with Jimmy about the state of their finances because “it would bring on an argument and name eallin[g]” about how she could not “handle things right.” There on the couch she decided to kill Jimmy.

In the morning, she retrieved and loaded a gun, wrapped it in a T-shirt to avoid leaving fingerprints, entered Jimmy’s bedroom, cocked the hammer of the gun, aimed the gun towards his head correcting for her double vision, and fired once. She then went to work as though it were a normal day. Even when she called 9-1-1 that afternoon, she somehow hoped that she would not be caught.

Plea Agreement

The State and defendant entered into a plea agreement, the terms of which were set forth in an April 5, 2001 letter from the executive assistant prosecutor to defense counsel. The letter makes clear that the agreement was prompted by defendant’s “cooperation” — her statement given two weeks earlier. The “cooperation” sought was for defendant to “convey the truth as to the circumstances which led to her taking the life of her husband, and provide a truthful factual recitation of the manner in which she carried out the homicide.”

Under the terms of the agreement, defendant would plead guilty to aggravated manslaughter; acknowledge that she would receive a thirty-year state-prison sentence with a twenty-five-and-one-half-year parole disqualifier; concede “that the aggravating factors under N.J.S.A. 2C:44-la so preponderate over the mitigating factors set forth in N.J.S.A. 2C:44-lb as to make the maximum term of 30 years appropriate”; agree that neither she nor her attorney would “affirmatively seek a lesser term of imprisonment from the Court”; and “agree not to appeal her judgment of conviction.”

In return, the State agreed that it would dismiss the murder charge, thus “reducing by 4 1/2 years the mandatory minimum for murder, i.e. thirty years without parole, as the benefit [defendant] derives for her cooperation.” The prosecutor disclaimed any intention to bind the court to the negotiated sentence, noting that the “principles enunciated in State v. Warren, 115 N.J. 433, 558 A.2d 1312 (1989),” would not allow such a restriction on the court’s sentencing discretion. However, the prosecutor “believe[d] it permissible to bind [defendant] to this agreement.”

On April 16, 2001, the plea agreement was placed on the record in open court. During the plea colloquy, defendant admitted to intentionally shooting and killing her husband, explaining through a series of leading questions that she had been hiding the family’s financial difficulties from her husband and that the shooting was the culmination of “tensions” that had been rising at home.

Sentencing

At sentencing on June 22, 2001, without objection from defense counsel, Burlington Township Police Detective Michael Simmons gave a “victim-impact” statement in which he declared that defendant carried out an “execution,” “an act of pure uncontrollable hate,” a “cold blooded murder” and “cowardly act,” and that Jimmy was also part of a larger fraternal family, a police “brotherhood.” Jimmy’s sister then addressed the court.

Next, without a defense objection, the prosecutor played a professionally produced seventeen-minute video. The video consists of a montage of approximately sixty still photographs of Jimmy’s life from childhood to adulthood, including a photograph of his tombstone. It also consists of four separate home-video clips of Jimmy: his graduation from the police academy, coaching a baseball game, and appearing on fishing trips. The video includes a television segment that covered Jimmy’s funeral. Three poems are displayed over some of the photographs and video clips. The entire video is accompanied by a medley of music: a song by the Beatles, “Here Comes the Sun”; a holiday song, “I’ll be Home for Christmas”; two country songs, “I’m from the Country” and “Live, Laugh, Love”; one religious hymn, “Here I Am Lord”; and military-like cadences.

The prosecutor in remarks covering twelve transcript pages described how the State viewed the killing “as a murder case.” He stated that “to all who knew [defendant and Jimmy] they were really America’s couple.” He detailed what he believed were the financial motives behind the killing and the deliberate and calculated manner in which defendant shot her husband. He emphasized the aggravating sentencing factors and suggested that defendant’s character “virtually wipes out any of the mitigating factors.”

In response to that tour-de-force presentation, defense counsel stated that his hands were “somewhat tied” by the plea agreement. Defense counsel never mentioned any of the evidence that he developed from his client or from other witnesses that defendant was a physically and psychologically battered woman, who had been threatened and had feared for her life. He mentioned nothing redeeming about her character or her otherwise blameless life. His remarks comprised little more than one transcript page. He did not argue against an aggravating factor or in favor of a mitigating factor. He conceded that he could not, “pursuant to the plea agreement, ask the court to sentence [defendant] to less than” thirty years. Nevertheless, he asked the court to “make an independent evaluation of the defendant” and of “the aggravating and mitigating factors,” and to consider whether a thirty-year sentence was appropriate for a thirty-four-year-old woman.

The court found support for aggravating factor number two, “the gravity and seriousness of harm inflicted on the victim,” N.J.S.A. 2C:44-l(a)(2), because “Mr. Hess was asleep and ... just didn’t know what was coining,” and for aggravating factor number nine, the need to deter, N.J.S.A. 2C:44-l(a)(9). The court also found support for mitigating factor number seven, because defendant had no prior criminal record, N.J.S.A 2C:44 — 1(b)(7), and mitigating factor number twelve, because of defendant’s willingness to cooperate with law enforcement authorities, N.J.S.A. 2C:44-l(b)(12). The court noted defense counsel’s agreement that the aggravating factors outweighed the mitigating factors, and expressed its determination that they were “at least in balance if not for the fact that the aggravating factors really do outweigh the mitigating factors.” The court referenced defense counsel’s agreement not to argue for a sentence of less than thirty years.

The court ultimately concluded that “while [it was] authorized to sentence less than the plea agreement, this is the kind of a case where [defendant] certainly could have been sentenced to more had she gone to trial on the charge as originally brought and been found guilty.” On the judgment of conviction, the court wrote: “This was a negotiated plea agreement between the Prosecutor and the defendant. It appears fair and in the interests of justice, the Court is imposing the recommended sentence.” The court sentenced defendant to a thirty-year state-prison sentence subject to a twenty-five-and-one-half-year parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Finally, the court advised defendant of her right to appeal, but added that, if she did, the State could move to -withdraw the plea offer under the terms of the plea agreement and move to reinstate the original murder charge.

II.

Post Conviction Relief Application

Defendant did not pursue a direct appeal. In September 2005, defendant filed a pro se petition for post-conviction relief (PCR) and an amended petition was later filed by counsel. Defendant essentially claimed that she was denied her constitutional right to the effective assistance of counsel at sentencing. At the PCR hearing, PCR counsel argued that the sentencing represented “a total breakdown of the adversarial proceedings” inasmuch as “[tjrial counsel failed to act as an advocate” as a result of a plea agreement that was against public policy and unconstitutional. Trial counsel failed to argue mitigating factors, or to bring to the attention of the sentencing court the statements suggesting defendant was a battered woman, even though nothing in the plea agreement precluded him from doing so. Trial counsel failed to object to Detective Simmons’s speaking as a victim-impact witness or to the introduction of the video. PCR counsel contended that the “[pjrosecutor went to great lengths to resolve this case in a way that protected the victim’s image at the expense of the defendant and ... justice.”

PCR counsel attached to the petition the witness statements obtained by the defense investigator in 2000 that supported defendant’s claim that she had been beaten, threatened, and continuously verbally belittled by her husband. PCR counsel also introduced the sixteen-page report of Dr. Dawn Hughes, a clinical psychologist who evaluated defendant on September 15, 2006 and who reviewed the case file, including defense investigative reports. Defendant reported to Dr. Hughes that, since 2001, she had been receiving individual and group counseling in prison from a domestic-violence agency. Defendant described an abusive relationship with her husband dating back to the late 1980s.

Jimmy would throw objects at her when angry and monitor her behavior. Jimmy first hit her across the head with the back of his hand after she forgot to pick up his uniforms from the cleaners. He apologized, but she did not make that mistake again. Six months before the shooting, defendant attempted to leave her husband. Jimmy caught her in the act as he was driving by in his police cruiser. Jimmy jumped out of his vehicle, pushed her into the house and beat her on the legs with his nightstick. She described incidents of physical abuse — his pulling hair out of her head, hitting her in the face causing black eyes, and slamming her head against a window — and psychological abuse, such as threats to kill her. Her description of the August 19, 1999 shooting was similar to the one she first gave to the police: she intended to scare Jimmy, and the gun went off accidentally.

Dr. Hughes concluded that “the evidence revealed that [defendant’s] report of domestic violence in her relationship with her husband, James Hess, is consistent with a pattern of moderate-to-severe intimate partner abuse, including physical and psychological abuse” and consistent with what is commonly referred to as Battered Women’s Syndrome.

The State submitted a certification from defendant’s trial attorney in which he averred that he discussed with defendant the terms and conditions of the plea agreement and the potential aggravating and mitigating circumstances based on the available evidence, and that he considered the offer “fair.” Nowhere in the certification does defendant’s trial counsel explain why he did not present at sentencing the mitigating evidence compiled during his investigation that corroborated a portrait of defendant as a battered woman or why he did not object to Detective Simmons’s “victim-impact” statement or to the introduction of the video.

Based on her trial attorney’s alleged professional deficiencies at sentencing, defendant requested a new sentencing hearing.

The PCR court denied defendant an evidentiary hearing and rejected her application for relief. The court noted that “there was little, if any, argument with regard to mitigating factors” at sentencing. Nevertheless, the PCR court believed the finding of any mitigating factors by the sentencing court was discretionary, not obligatory, and that an objection to the sentence — -the failure to find mitigating factors — should have been raised on direct appeal. With regard to the introduction of Detective Simmons’s statement, the court acknowledged that it was “a far stretch” to consider “Simmons as a family member and as a victim.” The court also expressed some concerns about the video, in particular “the television tape of the funeral and the end which was the picture of the headstone.” But the court observed that defense counsel raised no objection to either Simmons’s statement or the video. The PCR court concluded that defendant’s claims challenging the excessiveness of her sentence were procedurally barred because they could have been raised on direct appeal, see R. 3:22-4, and that defendant had not established that “her sixth amendment rights, or any other rights, were violated by her willingness to enter into this [plea] agreement.”

III.

A.

Appellate Division

In an unpublished opinion, the Appellate Division affirmed. The panel primarily relied on the procedural bar of Rule 3:22-4 that prohibits a defendant from raising issues in PCR proceedings that could have been raised in a prior proceeding. The panel mistakenly believed that defendant, at the PCR hearing, did not present “expert testimony that she suffered from post-traumatic stress disorder related to spousal abuse by” her husband or “specify exactly what mitigating evidence [trial counsel] should have presented at sentencing.” As noted earlier, that information is part of the PCR record.

The panel considered defendant’s challenge as nothing more than an excessive-sentence claim improperly raised for the first time in a post-conviction-relief proceeding. The panel perceived defendant as merely relitigating “her sentence in terms of the alleged improper consideration of the aggravating and mitigating factors.” The panel found that defendant received the sentence she voluntarily and knowingly bargained for in her plea agreement. The panel determined that reliance on State v. Briggs, 349 N.J.Super. 496, 793 A.2d 882 (App.Div.2002), was misplaced. In Briggs, the Appellate Division reversed the sentence because of a restriction in a plea agreement that precluded defense counsel from arguing for a sentence less than the one stipulated to in the agreement. (Citing Briggs, supra, 349 N.J.Super. at 498, 793 A.2d 882). In Briggs, the challenge to the sentence was raised on direct appeal, a critical distinction to the panel in this case. (Citing id. at 499, 793 A.2d 882). In addition, according to the panel, unlike Briggs, the record “clearly indicated the crime was a purposeful murder.”

The panel discerned no basis to “second-guess” the sentencing court’s discretionary decision to admit the victim-impact evidence, the video tape and Detective Simmons’s in-court statement. It also was not persuaded that defendant’s counsel was constitutionally ineffective and, even if he were, that defendant suffered any prejudice as a result. (Citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987)).

B.

Certification

We granted defendant’s petition for certification, State v. Hess, 203 N.J. 95, 999 A.2d 464 (2010), in which she claimed (1) that she was generally denied the effective assistance of counsel at sentencing, (2) that “the restrictive plea agreement deprived her of her right to counsel at sentencing,” (3) that “[t]he admission of the victim impact statement of Detective Simmons and the videotape of the deceased was grossly prejudicial,” and (4) that she was improperly denied an evidentiary hearing.² We also granted the motions of the New Jersey Crime Victims’ Law Center and the Attorney General to participate as amici curiae.

IV.

Defendant asserts that she was denied her constitutional right to the effective assistance of counsel at sentencing because her attorney failed to bring to the court’s attention information at his disposal that would have shown that she was a physically and psychologically battered woman, with a frayed mental state, when she killed her husband. That is, her attorney — despite evidence in his file — made no attempt to rebut the State’s portrayal of her as a ruthless, cold-blooded, plotting assassin who murdered her police-officer husband from fear that he would learn of their poor finances and credit, their inability to obtain a bank loan for a new home, and her desire not to make the move. Although no provision of the plea agreement explicitly forbade her attorney from presenting mitigating evidence at sentencing or from objecting to prejudicial victim-impact evidence, he may have wrongly perceived that the agreement barred him from doing so. Defendant separately maintains that the restrictive plea agreement — the same type of agreement condemned in Briggs — deprived her of the assistance of counsel.

In response, the State argues that defendant’s PCR ineffective-assistance claim is merely recasting an excessive-sentence challenge that should have been raised on direct appeal and therefore is procedurally barred by Rule 3:22-4. Moreover, the State contends that State v. Briggs is distinguishable from the present case, and, in any event, should not apply retroactively because it established a “new” rule of law.

We first look to our post-conviction-relief jurisprudence to see whether defendant was procedurally barred from raising the challenge that she was deprived of the effective assistance of counsel at sentencing.

“Post-conviction relief is a defendant’s last opportunity to raise a constitutional challenge to the fairness and reliability of a” state criminal proceeding. See State v. Feaster, 184 N.J. 235, 249, 877 A.2d 229 (2005) (citation omitted). A PCR hearing “is not a pro forma exercise, but a meaningful procedure to” root out mistakes that cause an unjust result either in a verdict or sentence. See ibid.

A PCR petition is not a substitute for raising a claim on direct appeal, see State v. Echols, 199 N.J. 344, 357, 972 A.2d 1091 (2009), and generally an alleged excessive sentence — that is, a sentence within the range permitted by a verdict or a plea — is not cognizable on PCR, see State v. Clark, 65 N.J. 426, 436-37, 323 A.2d 470 (1974). Although ordinarily the failure to raise an issue on direct appeal will bar relief on PCR, there are exceptions to that rule. For example, a defendant may assert a PCR claim when “the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding,” R. 3:22-4(a)(1), and when “enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice,” R. 3:22~4(a)(2). “Ineffeetive-assistance-ofcounsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.” State v. Preciose, 129 N.J. 451, 460, 609 A.2d 1280 (1992) (citation omitted). Indeed, we routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims “involve allegations and evidence that lie outside the trial record.” Ibid. (citing State v. Dixon, 125 N.J. 223, 262, 593 A.2d 266 (1991); State v. Walker, 80 N.J. 187, 194, 403 A.2d 1 (1979) (other citations omitted)).

PCR is a proper vehicle for defendant’s ineffective-assistance-of-counsel claim because much of the mitigating evidence that supports her argument that she was a battered woman was not presented to the sentencing court by her counsel. Therefore, an ineffective-assistance-of-counsel claim was not evident from the record and could not have been raised on direct appeal. We next turn to the standards governing ineffective assistance of counsel.

The Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution both guarantee the accused the right to the “effective” assistance of counsel in a criminal proceeding.³ Strickland, supra, 466 U.S. at 685-86, 104 S.Ct. at 2063, 80 L.Ed.2d at 692; Fritz, supra, 105 N.J. at 58, 519 A.2d 336. The proper functioning of the adversarial process depends on effective assistance of counsel; without such assistance other fundamental rights, including the right to a fair proceeding, likely will be rendered meaningless. See Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694; see also Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170 (1932) (“[A defendant] lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step of the proceedings against him.”).

An ineffective-assistance-of-counsel claim is generally judged by the Sixth Amendment standards enunciated in Strickland, supra — standards also adopted by this Court in construing Article I, Paragraph 10 of the New Jersey Constitution. Fritz, supra, 105 N.J. at 58, 519 A.2d 336; see also State v. Allah, 170 N.J. 269, 282-84, 787 A.2d 887 (2002). To establish such a claim, a defendant must satisfy a two-pronged test. First, he must show that counsel’s performance “fell below an objective standard of reasonableness,” such that he “was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, he must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; accord State v. Loftin, 191 N.J. 172, 197-98, 922 A.2d 1210 (2007).

To meet prong one, a defendant must overcome a “strong presumption” that counsel exercised “reasonable professional judgment” and “sound trial strategy” in fulfilling his responsibilities. Strickland, supra, 466 U.S. at 689-90, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95 (quotation and citations omitted). “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Id. at 688-89, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Nevertheless, if a defendant demonstrates that counsel’s performance fell “outside the wide range of professionally competent assistance,” then he has established that his counsel was constitutionally deficient. Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

Even by this highly deferential standard, which requires us to avoid viewing counsel’s performance through the “distorting effects of hindsight,” id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694, the record is clear that defendant’s attorney at sentencing was not functioning as the “counsel” required under both our Federal and State Constitutions.

C.

The restrictive plea agreement entered into between defendant and the State required defendant to concede that the aggravating sentencing factors outweighed the mitigating factors and prohibited defendant from “affirmatively” seeking a term of less than thirty years subject to NERA. On the other hand, the plea agreement did not bind the court to give any particular sentence, and the prosecutor disclaimed any intention to impinge on the court’s exercise of its discretion. Nothing in the plea agreement denied defense counsel the opportunity to provide the court with the mitigation evidence known to him through his investigator’s work. The plea agreement did not preclude counsel from arguing that his client was a physically and psychologically battered woman to explain her motivations. At sentencing, defense counsel urged the court “to make an independent evaluation of the defendant” and of “the aggravating and mitigating factors” in setting his client’s sentence, yet withheld from the court the very information it needed to do so.

Defense counsel had nine witness statements corroborating his chent’s account of physical and mental abuse at the hands of her husband as well as his threats against her life. The statements available to defense counsel painted a picture of Jimmy Hess as a “controlling” husband who treated his wife like a “slave” and as a man with a hair-trigger, explosive temper. The statements buttressed defendant’s account about the incident in which her husband ripped hair out of her head and about her blackened eyes from her husband’s abuse. Defense counsel knew about his client’s claim — in her first statement to investigators at the prosecutor’s office — that her husband had put a gun to her head the night before she shot him. Defense counsel knew or should have known that immediately after his Ghent’s arrest she spent four days under observation at the Forensic Psychiatric Hospital, where she maintained that “if she did not kill [her husband] he would have killed her.” Counsel did not relate that information to the court, nor did he inform the court that his client had lost twenty-eight pounds before the shooting — information confirmed by independent sources and a sure sign of the emotional distress suffered by defendant in the months leading to the shooting.⁴

Those statements, along with defendant’s accounts, described “a pattern of moderate-to-severe intimate partner abuse” known as Battered Women’s Syndrome, according to Dr. Dawn Hughes, whose expert report was submitted at the PCR hearing. Defense counsel provided no such report to the sentencing judge, nor did he offer the seemingly obvious argument, based on the information available to him, that his client was a battered woman.

Battered Women’s Syndrome is recognized as “a collection of common behavioral and psychological characteristics exhibited in women who repeatedly are physically and emotionally abused over a prolonged length of time by the dominant male figure in their lives.” State v. B.H., 183 N.J. 171, 182, 870 A.2d 273 (2005) (citation omitted). Evidence of the syndrome is admissible, typically in self-defense cases, to “explain[ ] conduct exhibited by battered women toward their abusers.” Id. at 183, 870 A.2d 273. The syndrome helps our understanding of “why a woman remains in an abusive relationship” and why an “abused woman may become conditioned into believing that she is powerless to escape from the abuse.” Ibid, (citations omitted).

Evidence of Battered Women’s Syndrome certainly was admissible at sentencing and, at least, would have permitted an argument in support of mitigating factor number four: “There were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense.” N.J.S.A 2C:44-l(b)(4). In addition, defense counsel did not present four other mitigating factors for which there was evidential support: “The defendant acted under a strong provocation,” N.J.S.A 2C:44-l(b)(3); “The victim of the defendant’s conduct induced or facilitated its commission,” N.J.S.A. 2C:44-l(b)(5); “The defendant’s conduct was the result of circumstances unlikely to recur,” N.J.S.A. 2C:44-l(b)(8); and “The character and attitude of the defendant indicate that [she] is unlikely to commit another offense,” N.J.S.A. 2C:44-1(b)(9).

Defense counsel’s failure to bring relevant information in his file to the attention of the trial court so that the court could independently identify and weigh mitigating factors cannot be ascribed to strategy or reasonable professional judgment, particularly given that the plea agreement on its face did not prohibit defense counsel from conveying such information.

Nevertheless, defense counsel may have believed himself handcuffed by the restrictive plea agreement. At sentencing, after simply stating that his hands were “somewhat tied” by the agreement, defense counsel offered no rebuttal to the prosecutor’s forceful presentation, no mitigation evidence, and no explanation for why his client would resort to killing her husband. Of course, the restrictions in the plea agreement, forbidding defense counsel from arguing for a sentence less than thirty years or that the mitigating factors outweighed the aggravating factors, may have left him with the sense that any effort would be futile. Although defense counsel reminded the court of its independent responsibility to determine the appropriate sentence, the court’s sentence— ■with little elaboration — merely echoed the terms of the agreement. Indeed, that is clearly revealed in the final words on the judgment of conviction: “This was a negotiated plea agreement between the Prosecutor and the defendant. It appears fair and in the interests of justice, the Court is imposing the recommended sentence.”

Significantly, the Burlington County Prosecutor, who appeared before this Court at oral argument, candidly admitted that the restrictive plea agreement in Hess was a one-time event for his office — it had never been used before or after that ease. Thus, Marie Hess, the killer of a police officer, fell into a universe of one. In response to the question, “What’s the purpose of muzzling the defense attorney?”, the Prosecutor responded, “To ensure that [the thirty-year sentence] in fact would be the sentence that was imposed.”⁵ Less than a year after defendant’s sentence, the Appellate Division in State v. Briggs, supra, expressly prohibited the type of gag provision in the plea agreement that muzzled defendant’s attorney at sentencing.

We now turn to the propriety of the plea agreement employed and assess whether it denied defendant the effective assistance of counsel.

D.

Our jurisprudence makes clear that the State cannot insist on a term in a plea agreement that would vitiate the court’s ability to exereise discretion in sentencing. “[A] criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice.” State v. Warren, 115 N.J. 433, 447, 558 A.2d 1312 (1989) (citation omitted). That discretion cannot “be encumbered” by giving the prosecutor a stranglehold over the sentencing determination. Id. at 447-48, 558 A.2d 1312.

In State v. Warren, we specifically disapproved of the plea-bargaining practice that enabled a prosecutor to withdraw a negotiated guilty plea if the trial court imposed a sentence more lenient than the one recommended by the prosecutor in the plea agreement. Id. at 442, 449, 558 A.2d 1312. Our rejection of this practice was premised on several grounds. We found that “the negotiated-sentence practice constitutes an impermissible constraint on the sentencing discretion of trial courts” under New Jersey’s Code of Criminal Justice and Court Rules. Id. at 446, 558 A.2d 1312. The negotiated-sentence practice undermined the trial courts’ independent responsibility to identify and weigh the aggravating and mitigating factors in fixing a just sentence. Id. at 447-50, 558 A.2d 1312. We also believed that the important goal of sentencing uniformity would be subverted by permitting the prosecutor “to impinge in this way on the court’s independent discretion.” Id. at 449, 558 A.2d 1312.

Significantly, in this case, the Prosecutor’s statement at oral argument made clear that the purpose of the gag provision in the plea agreement was to do an end run around Warren. The Prosecutor explained that the intent of the gag provision was to minimize the possibility that the sentencing court would “undercut” the sentencing provisions of the plea agreement.

In State v. Briggs, 349 N.J.Super. 496, 501, 793 A.2d 882 (App.Div.2002), the Appellate Division extended the core principles of Warren and precluded the type of restrictive plea agreement found in the case before us. The defendant in Briggs, who had been indicted for murder, pled guilty to aggravated manslaughter pursuant to a negotiated plea agreement that “provided that ‘defense counsel agrees not to request a sentence of less than twenty years.’ ” Id. at 498, 793 A.2d 882. The defendant received an eighteen-year prison term subject to NERA. Ibid. The panel held “that the restriction in the plea form deprived defendant of effective assistance of counsel during a critical stage of the criminal proceeding.” Ibid.

To support its holding that the restriction on defense attorney’s advocacy constitutionally infringed on the right to counsel, the panel cited to Herring v. New York, 422 U.S. 853, 857, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593, 598 (1975), which struck down a state law prohibiting defense counsel from giving a summation in a bench trial, and State v. Fusco, 93 N.J. 578, 586-87, 461 A.2d 1169 (1983), which struck down a court order prohibiting counsel and client from discussing, during an overnight recess, testimony the client had given during trial. Id. at 500-01, 461 A.2d 1169.

Briggs noted that “the ability of counsel to provide a meaningful argument at sentencing, even in a case that appears ‘open and shut,’ is no less important than the opportunity to give a summation in a nonjury case.” Id. at 501, 793 A.2d 882. It is at the critical stage of sentencing that counsel can make “a vigorous argument regarding mitigating and other circumstances, hoping to personalize defendant in order to justify the least severe sentence under the Criminal Code.” Ibid. The Briggs panel believed that “there can be no doubt that a defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement.” Ibid. The panel reversed and remanded for a new sentencing because it was unable to say “with confidence that the restriction upon defense counsel did not affect her ability to present a cogent and meaningful argument at sentencing.” Id. at 503, 793 A.2d 882.

The intersection between Warren and Briggs is apparent. A plea agreement that prevents a defense attorney from presenting or arguing mitigating evidence to the sentencing court deprives the court of the information it needs to faithfully carry out its unfettered obligation to identify and weigh the appropriate sentencing factors. The unhindered adversarial process at sentencing allows the court to be fully informed about all the evidence and factors that will lead to a just sentence. A lopsided presentation by the State, and the virtual gagging of defense counsel, does not accomplish that goal.

As the State points out, Briggs was decided on direct appeal and the present case comes to us on an application for post-conviction relief. Nevertheless, the principles set forth in Briggs were not new or a break with precedent, and indeed those principles flowed directly from Warren and decisional law affirming the right to effective counsel at sentencing. See, e.g., McConnell v. Rhay, 393 U.S. 2, 4, 89 S.Ct. 32, 34, 21 L.Ed.2d 2, 4 (1968) (“The right to counsel at sentencing must, therefore, be treated like the right to counsel at other stages of adjudication.”). The manner in which defense counsel seemingly interpreted the restrictive plea agreement in this case clearly was antithetical even to the right of allocution at sentencing. Rule 3:21-4(b) allows the defendant “to present any information in mitigation of punishment.” Yet mitigation evidence was withheld from the sentencing court.

Neither the State nor amici Attorney General challenge the underlying legitimacy of Briggs. We affirm the principles set forth in Briggs. Our jurisprudence does not permit restrictions on the right of counsel to argue for a lesser sentence, or to argue against an aggravating factor or for a mitigating factor, or how the factors should be balanced, as this would deprive defendants of the needed advocacy of their attorneys and deny our courts the needed insight to administer justice. Briggs is consistent with and a natural extension of Warren.

Putting aside defense counsel’s failure to object to the restrictions in the plea agreement at the time of sentencing, perhaps out of fear that the downgrade to aggravated manslaughter would be jeopardized, the failure to present and argue the mitigating evidence can only be explained as attorney dereliction. In the end, the restrictive plea agreement helped to fuel the breakdown of the adversarial process in this case. The net effect of counsel’s abdication of his role as an advocate was that the sentencing court was deprived of information and arguments that might well have led it to impose a lesser term.⁶ The sentencing court heard the prosecution’s impassioned account, and from the defense a deafening silence.

We find that the failure to present mitigating evidence or argue for mitigating factors was ineffective assistance of counsel — even within the confines of the plea agreement. Defendant’s attorney was not functioning as the “counsel” guaranteed by either our Federal or State Constitution. See Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-94; Fritz, supra, 105 N.J. at 58, 519 A.2d 336. Based on both the evidence and argument withheld from the sentencing court, “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; accord Loftin, supra, 191 N.J. at 197-98, 922 A.2d 1210; Briggs, supra, 349 N.J.Super. at 503, 793 A.2d 882 (“[W]e cannot say with confidence that the restriction upon defense counsel did not affect her ability to present a cogent and meaningful argument at sentencing”).

We need not pass on the retroactive application of Briggs. At a new sentencing hearing sometime in the future, the principles of Briggs will apply. For the reasons already expressed, the restrictions in the plea agreement are void. The striking of the terms of the plea agreement places in doubt whether there was a meeting of the minds between the parties. Therefore, the plea agreement itself is void unless the State wishes to adhere to it without the offending provisions.⁷ The plea may be vacated at the option of the State.⁸ Should that occur, the parties are free to negotiate a new plea agreement, or the State can proceed to trial. If there is a guilty plea or a conviction after trial, at the new sentencing hearing defendant will have the opportunity to introduce mitigation evidence and argue that the mitigating factors outweigh the aggravating factors and argue for a lesser sentence.

We still must address whether defense counsel was constitutionally ineffective in failing to object to the victim-impact evidence, in particular the video tribute to the life of Officer James Hess and the in-court statement of Detective Simmons. The admissibility of that video is vigorously challenged by defendant.

V.

Crime victims are accorded the right to be heard before and at the time of the sentencing of a defendant. See N.J.S.A. 52:4B-34 to -38 (Crime Victim’s Bill of Rights); N.J.S.A. 2C:44-6(b)(3); see also State v. Blackmon, 202 N.J. 283, 298-99, 997 A.2d 194 (2010) (detailing history of victims’ rights in criminal proceedings). In an aggravated-manslaughter case, such as this one, a family member may provide a statement to be included in the presentence report describing “the effect of the crime upon the victim’s family.” N.J.S.A 2C:44-6(b)(3). The family of the victim also has the right “[t]o make, prior to sentencing, an in-person statement directly to the sentencing court concerning the impact of the crime.” N.J.SA 52:4B-36(n). That right is conferred to “the nearest relative of the victim of a criminal homicide.” N.J.S.A 52:4B-37. Additionally, “[i]n any homicide prosecution the victim’s survivor may display directly to the sentencing court at the time of this statement a photograph of the victim taken before the homicide.” N.J.SA 52:4B-36(n).

At sentencing, no one questions that a family member can make a statement about a homicide victim or present photographs or even a video showing the victim as he or she lived in the time before his or her death. The issue is whether there are any limits to the type of video that can be displayed at sentencing.

Our jurisprudence concerning victim-impact statements has developed in the context of capital eases in which juries, not judges, were required to decide whether to return a death sentence. See, e.g., State v. Koskovich, 168 N.J. 448, 501, 776 A.2d 144 (2001) (refusing to establish “per se prohibition against the inclusion of poetry” but expressing “concern about the emotional nature of poetry and similar forms of expression”); State v. Muhammad, 145 N.J. 23, 48, 55, 678 A.2d 164 (1996) (noting that victim-impact statements “should be limited to statements designed to show the impact of the crime on the victim’s family and to statements that demonstrate that the victim was not a faceless stranger,” but “should be factual, not emotional, and should be free of inflammatory comments or references”).

Undoubtedly, concerns over prejudicial victim-impact statements, including photographs and videos, are less pronounced when a judge rather than a jury is imposing sentence. See Blackmon, supra, 202 N.J. at 303, 997 A.2d 194. Nevertheless, judges, no less than jurors, are susceptible to the wide range of human emotions that may be affected by irrelevant and unduly prejudicial materials. We are fully aware that judges, who are the gatekeepers of what is admissible at sentencing, will have viewed materials that they may deem non-probative or unduly prejudicial. We have faith that our judges have the ability to put aside that which is ruled inadmissible. However, both the bar and bench should know the general contours of what falls within the realm of an appropriate video of a victim’s life for sentencing purposes.

Other jurisdictions that have addressed the issue, albeit in the capital context, provide some direction to us. Courts have found victim-impact videos permissible when they are short in duration and when they do not include any sort of “special effects” such as narration or evocative music. See, e.g., People v. Brady, 50 Cal.4th 547, 113 Cal.Rptr.3d 458, 236 P.3d 312, 337-38 (2010) (approving four-minute victim-impact video that depicted “a rather ordinary event” in victim’s life and that “was not enhanced by narration, background music, or visual techniques designed to generate emotion”), cert., denied, — U.S.—, 131 S.Ct. 2874, 179 L.Ed.2d 1191 (2011); People v. Dykes, 46 Cal.4th 731, 95 Cal. Rptr.3d 78, 209 P.3d 1, 48 (2009) (finding eight-minute video depicting victim shortly before his death admissible because it did not constitute “memorial” or “tribute”), cert. denied, — U.S. —, 130 S.Ct. 1088, 175 L.Ed.2d 909 (2010).

Alternatively, courts have expressed disfavor for victim-impact videos that are too lengthy, depict childhood pictures of adult victims, or are accompanied by evocative music. See, e.g., United States v. Sampson, 335 F.Supp.2d 166, 192 (D.Mass.2004) (discussing preclusion of victim-impact video thirty minutes in length featuring pictures “from birth to college ... set to poignant music”), aff'd, 486 F.3d 13 (1st Cir.2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008); Salazar v. State, 118 R.W.3d 880, 882-85 (Tex.Ct.App.2003) (vacating sentence rendered due to seventeen-minute victim-impact video containing 140 still photographs that spanned entirety of victim’s life, including childhood, and was set to songs such as “River” by Enya and “My Heart Will Go On” by Celine Dion); see also People v. Prince, 40 Cal.4th 1179, 57 Cal.Rptr.3d 543, 156 P.3d 1015, 1093 (2007) (expressing concern over videos that “last[] beyond a few moments,” that “emphasize[] the childhood of an adult victim, or [that are] accompanied by stirring music”), cert. denied, 552 U.S. 1106, 128 S.Ct. 887, 169 L.Ed.2d 742 (2008).⁹

The professionally produced seventeen-minute video entitled “A Tribute to Officer James Hess” played at sentencing in this case includes features that have been specifically disapproved by courts in other jurisdictions: childhood photographs and music likely to appeal solely to emotion and engender undue prejudice. The video displays approximately sixty still photographs and four home-video clips of the victim in various activities and phases of his life. The video includes photographs of the victim’s childhood and his tombstone and a television segment covering his funeral. Three poems scroll over the photographs and video clips. The video is scored to popular, holiday, country, religious, and military music. The State provided the victim-impact video in advance to both the trial court and defense counsel. This practice should be followed in the future because it permits a vetting of the video before it is played in court.

In this case, defense counsel should have objected to the video, and his failure to do so cannot be considered strategic or reasonable. The music and the photographs of the victim’s childhood and of his tombstone, and the television segment about his funeral do not project anything meaningful about the victim’s life as it related to his family and others at the time of his death. They should have been redacted from the video because they contain little to no probative value, but instead have the great capacity to unduly arouse or inflame emotions. Although we do not believe that the introduction of the video, alone, had the capacity to alter the outcome of the sentence, on remand the video should accord with the prescriptions in this opinion.

We cannot set forth an exhaustive catalogue of what is and is not permissible in a video, other than to say how this video exceeded permissible bounds. We in no way intend to limit the right of family members to present photographs and videos within a reasonable period before the death of the victim, or to express themselves in the ways they see fit. For example, we do not suggest that a family member could not read a poem in court.

Clearly, the victim’s sister had a right to speak to the court at sentencing. Family members have the right to describe the depths of their loss without a filter on their thoughts. But there are limits. An overly lengthy video, baby photographs of an adult victim, and a video scored to religious and pop music do not advance any legitimate objective even against the broad contours of the Victims’ Bill of Rights. Ultimately, the trial court must be guided by the relevant aggravating and mitigating factors in determining the appropriate sentence.

Furthermore, although Detective Simmons does not meet the statutory definition of family member under the Victim’s Bill of Rights, the court has discretion whether to allow others to speak at sentence. See Blackmon, supra, 202 N.J. at 299, 997 A.2d 194. Detective Simmons, it appears, made the same statement in open court that he provided earlier in a letter to the sentencing judge. No objection was made to his addressing the court. Because the court had already read Detective Simmons’s letter, its oral presentation would not likely have changed the outcome. On remand, the sentencing court should consider anew the propriety of Detective Simmons’s making a statement in open court if he is offered the opportunity to do so.

VI.

For the reasons expressed, we reverse the Appellate Division, which affirmed the denial of defendant’s petition for post-conviction relief. We conclude that defendant was denied her constitutional right to the effective assistance of counsel. Article I, Paragraph 10 of the New Jersey Constitution, see Fritz, supra, 105 N.J. at 58, 519 A.2d 336, and our state-court decisional law provide an independent state ground for our decision, see Warren, supra, 115 N.J. at 446-49, 558 A.2d 1312; Briggs, supra, 349 N.J.Super. at 500-03, 793 A.2d 882.

Because the plea agreement’s restrictions on defense counsel’s right to argue for a lesser sentence are void, those terms must be stricken from the agreement. Defendant has sought only a new sentencing hearing. But in the absence of the original plea agreement’s terms, there may be no meeting of the minds between the State and defendant. Therefore, the State is free to proceed to a new sentencing hearing without the offending provisions or to vacate the plea. This case is remanded for proceedings consistent with this opinion.

1 In reciting the evidence of record, we do not make credibility findings. We do not intend to disparage the victim or excuse defendant's conduct. We merely lay out the evidence available to defense counsel at the time of sentencing.

2 We did not grant certification on defendant’s claim that the attorney/client privilege was breached as a result of the admission of defense counsel’s certification at the PCR hearing or on her claim that her husband's police-department personnel file should have been provided as part of discovery in the PCR proceeding. See Hess, supra, 203 N.J. at 95, 999 A.2d 464.

3 The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const, amend. VI. In almost identical language, our State Constitution provides the same. See N.J. Const, art. I, II10.

4 Defense counsel left his client alone with investigators and the executive assistance prosecutor when she gave her second statement to the prosecutor's office — a statement that PCR counsel claimed was intended to protect the image of the victim-police officer. But even that statement, which downplayed the level of abuse earlier described by defendant, recounted how her husband had smashed her head against a car window and ripped the braids from her head. That statement also made clear that defendant feared her husband's wrath once he learned about the poor state of the family's finances and her feigning the mortgage-application process for a new home.

5 The following colloquy occurred at oral argument:

The Court: Are you afraid that if the defense attorney argues the appropriate mitigating factors the judge will not somehow give the appropriate sentence?

Prosecutor: There's always a concern, Justice, in a plea agreement that the court may undercut the agreement and that occurs very rarely but it does occur.

6 The trial court never referred to or rejected that portion of the presentence report — taken from defendant's first statement to the police — in which defendant detailed incidents of abuse and violence committed by her husband. The State and defendant entered no factual stipulations concerning the relationship between defendant and her husband.

7 Defendant only seeks a new sentencing hearing.

8 We note that both the PCR court and the Appellate Division were laboring under certain misimpressions regarding either the law or the facts. The PCR court mistakenly believed that the finding of a mitigating factor is solely a matter of discretion for the trial court. However, in State v. Dalziel, 182 N.J. 494, 504-05, 867 A.2d 1167 (2005), we held that if a sentencing court finds that a mitigating factor is supported by evidence in the record, then that factor “must be part of [its] deliberative process.” See State v. Blackmon, 202 N.J. 283, 297, 997 A.2d 194 (2010) (noting that “mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record”). Moreover, one of the reasons given by the Appellate Division for affirming the PCR court's denial of relief was defendant's failure to present expert testimony in support of her Battered Women's Syndrome claim. But defendant, in fact, presented the sixteen-page report of Dr. Hughes that concluded that defendant was a battered woman.

9 The Texas Court of Criminal Appeals expressed its view of the "enormous” prejudicial effect of the adult victim's life videotape in Salazar: “|T]he implicit suggestion is that [the defendant] murdered this angelic infant; he killed this laughing, light-hearted child; he snuffed out the life of a first-grade soccer player and of the young boy hugging his blond puppy dog. The danger of unconsciously misleading the jury [was] high.” Salazar, supra, 118 S.W.3d at 884 (latter alteration in original) (quoting Salazar v. State, 90 S.W.3d 330, 337 (Tex.Crim. App.2002) (remanding Salazar to court of appeals for harmless-error analysis)).