NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1889-12T2

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, April 24, 2014

v. APPELLATE DIVISION

ALICE O'DONNELL,

Defendant-Appellant. ______________________________

Submitted March 4, 2014 – Decided April 24, 2014

Before Judges Reisner, Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-0617.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant Alice O'Donnell appeals from the trial court's

August 30, 2012, order, after a non-testimonial hearing, denying her petition for post-conviction relief (PCR), and application

to set aside a guilty plea. On March 22, 2006, defendant

pleaded guilty to one count of murder, N.J.S.A. 2C:11-3(a). She

admitted that between the evening of February 21 and the morning

of February 22, 2005, she fed her six-year-old son Phillip an

overdose of medication, and held a pillow over his head until he

was asphyxiated. After the homicide, defendant stabbed herself

multiple times and reportedly ingested rubbing alcohol and

twenty or more ibuprofen pills.

In accord with her plea agreement, the court sentenced

defendant to a term of thirty years, with a thirty-year parole

ineligibility period. We affirmed the conviction; the only

issues on direct appeal pertained to the trial court's pre-trial

order denying defendant's Miranda1 motion to suppress inculpatory

statements, and partially denying her motion to suppress

evidence seized from her home. State v. O'Donnell,

(App. Div. 2009), aff'd o.b.,

, cert.

denied, ___ U.S. ___,

,

(2010).

In this PCR appeal, defendant asserts her attorney was

ineffective by failing to diligently pursue a diminished

capacity defense. She also alleges that counsel unexpectedly

1 Miranda v. Arizona,

,

,

(1966).

2 A-1889-12T2 pressed her to plead guilty shortly before trial, without

adequate explanation, stating it was necessary to avoid a life

sentence. Defendant was forty-four years old when she received

the thirty-year sentence under the plea agreement. Defendant

essentially contends that she would have proceeded to trial but

for trial counsel's ineffective assistance. She seeks to set

aside her guilty plea.

Having reviewed the record in light of applicable legal

principles, we conclude defendant has presented a prima facie

case of ineffective assistance of counsel and resulting

prejudice. We also conclude that the trial court misapplied the

factors governing an application to withdraw a guilty plea. We

therefore reverse and remand for an evidentiary hearing.

I.

We discern the following facts from the record, considering

defendant's contentions "indulgently and . . . in the light most

favorable to [her]." State v. Cummings,

(App. Div.), certif. denied,

(1999). The

record includes the testimony of defendant and several police

officers from the pre-trial hearing on the motion to suppress,

3 A-1889-12T2 defendant's interview with two mental health experts, their

expert reports, and other documentary evidence.2

Defendant had a history of mental illness and psychiatric

hospitalizations. Her family also had a history of mental

illness. She reported that when she was a child, her father

subjected her, and one of her sisters, to violent sexual abuse.

Attempts to report the abuse were rebuffed. The sister later

committed suicide. Defendant has three living siblings: two

other sisters, and a brother who is disabled with schizophrenia.

In the months before the homicide, defendant experienced

various reversals in her life. Her partner of over twenty

years, Phyllis, died in 2004. Along with the emotional loss,

defendant suffered financially thereafter. Phyllis had helped

support defendant and her son Phillip. Neither defendant nor

Phillip had a continuing relationship with Phillip's father, who

had disappeared from their lives.

Sometime after Phyllis's death, defendant was forced to

vacate her apartment. After temporarily residing with her

mother in a senior community, she moved to Highland Park, but

soon faced eviction. In the meantime, defendant believed that

her son had been sexually abused by a priest who had spent time

2 Defendant's custodial statement was not presented to us. However, we rely on the trial court's summary of the statement included in its Miranda decision.

4 A-1889-12T2 with him. She reported the alleged assault to a school guidance

counselor, who referred the matter to the Division of Youth and

Family Services.

Defendant believed that her impending homelessness would

cause her to lose custody of her son, and result in his

continued abuse. At the time of the homicide, she was

prescribed medications for insomnia (Soma), depression (Zoloft),

and anxiety (Klonopin). However, she stated that as a result of

Medicaid issues, she was unable to fill her Zoloft prescription.

She determined that the solution to her predicament was to send

her son and herself to heaven, where they would join Phyllis.

She reportedly heard a soft voice that said, "'God and Jesus

welcomes you, go to God, they always want you.'" Defendant

claimed to have conferred with her son about her plan and he

consented to it.

The day before the homicide, she informed her sister

Theresa and other family members that they could come to her

apartment to take her furniture. There is no evidence she told

them that she intended to harm herself or her son. Defendant

told them she was about to become homeless.

5 A-1889-12T2 Defendant stated she gave her son a combination of Benadryl

and Klonopin on the evening of February 21, 2005.3 When that

prompted Phillip to vomit, defendant smothered him with a

pillow. Defendant's two sisters arrived at her home the next

morning, and awoke defendant, who was asleep beside her deceased

son. She testified that she told her sisters that she and

Phillip "were going to heaven." Upon their discovery that

Phillip was dead, her sisters summoned the police.

Defendant was generally non-responsive to a police

officer's initial inquiries at the scene regarding what had

happened. She appeared "out of it" to one officer, and

disheveled and disoriented to another. But, she admitted she

gave Benadryl to Phillip, and, regarding what medication she

took, "[s]he began to ramble on naming different medications."4

Defendant was indicted and arraigned in May 2005. The

defense's apparent strategy was to pursue a diminished capacity

defense under N.J.S.A. 2C:4-2. The court ordered the assistant

deputy public defender to seek approval to hire a mental health

expert. However, counsel delayed several months, and then

misrepresented that he had provided materials to the expert

3 The Medical Examiner reported that Phillip died from acute Zoloft and Benadryl poisoning, and "'mechanical asphyxia.'" 4 The police seized various documents and handwritten notes from defendant's home, which are not part of the record before us.

6 A-1889-12T2 several weeks before he actually did. The defense missed the

court's November 11, 2005, deadline for submitting its report.

Defense counsel's delays prompted a State motion to bar an

expert report and any defense based on insanity or diminished

capacity. The defense did not serve the report of its

psychiatric expert, Oscar Sandoval, M.D., until January 24,

2006, the return date of the State's motion. Dr. Sandoval

concluded that defendant's "mental capacity was so impaired that

she was unable to engage in purposeful conduct."

The court denied the State's motion, stating it would cause

undue prejudice to defendant. Yet, the judge stated, "I do not,

however, wish to minimize the importance of the dereliction

here." The judge found defense counsel "failed to pay

reasonable attention" to the matter, and misled the court about

his progress. The court imposed a $250 monetary sanction.

Defense counsel responded he was experiencing financial

difficulties, and would be unable to pay the fine promptly.

The court tentatively scheduled trial for February 27,

predicated on the State serving its expert's report on February

17. However, those deadlines were not met. The State served

the report of its psychological expert, Anthony V. D'Urso,

Psy.D., on March 7, 2006. Before doing so, the State provided

additional discovery to the defense on February 8, 2006. The

7 A-1889-12T2 discovery and Dr. D'Urso's report challenged defendant's

diminished capacity defense, as supported by Dr. Sandoval.

Dr. Sandoval concluded defendant suffered from a severe

Major Depressive Disorder "with mood congruent, psychotic

features," severe Post-Traumatic Stress Disorder, and a

Dependent Personality Disorder. Dr. Sandoval opined that

defendant was responding to voices of command, to alleviate her

son's suffering. He opined defendant was psychotic, but not

psychopathic.

Ms. O'Donnell was verbalizing auditory hallucinations with voices of command. . . .

. . . .

Her psychotic act of filicide occurred impulsively without prior homicidal thoughts or rage, driven by the auditory hallucinations of command; which led her to believe that by killing her child, this was an altruistic act to save her son, Phillip, from the world.

The State's discovery materials included various documents

pertaining to a 2003 insurance fraud investigation involving

defendant by the State Division of Criminal Justice (DCJ). The

unsworn documents indicated that defendant falsely represented

that she was a licensed Ph.D. psychologist. In fact, defendant

never obtained a college degree, although she earned substantial

credits at both Kean and Rutgers Universities. A mental health

center in Bayonne hired defendant in March 2002. She signed

8 A-1889-12T2 health insurance claim forms as a licensed psychologist. A

health insurer discovered her misrepresentation, prompting her

dismissal at the end of May 2002.

According to a February 9, 2006, hearsay report of a

Middlesex County investigator, a former billing clerk of the

mental health center stated that Dr. Sandoval worked at the

mental health center at the same time as defendant; the

psychiatrist and defendant knew each other; the psychiatrist met

with patients defendant purportedly treated, and reviewed and

signed defendant's billing statements. However, the same

witness's sworn statement from November 2003 did not mention Dr.

Sandoval, and a DCJ investigator's report in 2003 quoted her as

saying that Dr. Sandoval became involved in the mental health

center only after defendant left. Dr. Sandoval asserted the

same in his interview with DCJ investigators in 2003. DCJ's

report referred to a different physician as the psychiatrist to

whom the center referred patients while defendant was on staff.

Defendant admitted that she also was treated at the time by that

physician, not Dr. Sandoval.

With regard to defendant's diminished capacity, Dr. D'Urso

rejected Dr. Sandoval's opinion that defendant lacked the

ability to form the intent to commit murder. Dr. D'Urso

concluded that defendant was a pathological liar who suffered

9 A-1889-12T2 from a lack of self-esteem. He administered various

psychological tests, and obtained what he considered valid

responses. They indicated "a pattern of chronic psychological

maladjustment resulting in ineffective interpersonal

relationships." He stated her profile suggested "marked

depression," the suggestion of "delusional, circumstantial and

tangential thinking," "the presence of psychotic thought," and

"somatic delusions and schizoid functioning, including the need

for psychopharmacological interventions." Nonetheless, he

concluded defendant did not lack the mental state necessary to

commit murder:

[S]he was purposeful enough to re- administer Benadryl and ultimately to smother her son. Given a transient psychotic state, it would appear that she was capable of committing both homicide and suicide. . . . Ms. O'Donnell was able to understand her conduct at the time of the offense and able to form intent and as such was responsible for her actions.

Roughly two weeks after Dr. D'Urso's report was served, and

five days before the newly-scheduled trial date of March 27,

2006, defendant pleaded guilty to the indictment, conditioned on

the State's promise to recommend a thirty-year sentence, with a

thirty-year period of parole ineligibility. Consistently

responding to leading questions with yes or no answers,

defendant affirmed that she wished to plead guilty, she was

10 A-1889-12T2 doing so voluntarily and knowingly, and she was satisfied with

her attorney. She affirmed to her attorney that she gave her

son an overdose of medicine, and smothered him with a pillow,

with the purpose to cause his death.

The court alluded to the diminished capacity defense:

THE COURT: Do you also understand if I accept this plea to the extent that you may have had some defense, you'll be waiving that defense, whatever defense you might have had, that you acknowledge responsibility as you are here and if I accept that acknowledgement of responsibility. Do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: Is it your desire to waive any defense that you might have and ask me to accept the plea today?

THE DEFENDANT: Yes.

The court sentenced defendant in accord with the plea

agreement on May 5, 2006. As noted above, the direct appeal

only addressed suppression issues.

Defendant filed her pro se PCR petition on September 7,

2011. She alleged that after learning the United States Supreme

Court denied certiorari in December 2010, she wrote to her

assistant deputy public defender to inquire about the next step,

but received no response. She attributed to her depression the

ensuing delay in the filing of the petition, four months beyond

the five-year period following her judgment of conviction.

11 A-1889-12T2 In her pro se petition, and later amended petition prepared

by counsel, defendant asserted her trial attorney was

ineffective by: (1) failing to confer adequately with her about

the State's plea offer, and his defense preparations; (2)

failing to pursue the diminished capacity defense, including

failing to obtain a second psychiatric evaluation; and (3)

generally failing to attend to the case because of personal

problems. Defendant asserted that defense counsel visited her

the evening before the plea hearing and told her, "'I've got bad

news, you've got to take a plea or you're going to get life.'"

She alleged that he had previously advised her that she would

prevail on her diminished capacity defense. She alleged, "A

second psychiatric evaluation by a Dr. Greenberg was begun but

never completed. . . . The incomplete psychiatric examination

process rendered counsel unable to present and support a

diminished capacity defense at trial." She asserted he failed

to obtain her "informed consent" before announcing in court the

next day that she would plead guilty.

Defendant argued she was entitled to withdraw her plea

under State v. Slater,

(2009), and was entitled to

PCR under Strickland v. Washington,

,

A-1889-12T2 2052,

(1984).5 She also asserted her four-month

delay resulted from excusable neglect.

The State opposed relief, filing a brief to which it

attached various exhibits, including the mental health

evaluations and, apparently, all the discovery materials

produced in February 2006. The State relied substantially on

defendant's affirmation at the plea hearing that she wished to

plead guilty, she was generally satisfied with her attorney's

performance, and agreed to waive any defenses. The prosecutor

also argued that Dr. Sandoval would have been discredited based

on evidence that he and defendant allegedly were in practice

together, and he approved her claim forms. The prosecutor

further contended that if defendant testified, she would also be

discredited by the evidence of her misrepresentation of her

credentials.6

After oral argument, the court denied defendant relief.

The judge separately found defendant had failed to meet the test

for withdrawing a plea under Slater, and failed to demonstrate a

5 Defendant did not file a separate, free-standing plea withdrawal motion under Rule 3:21-1. 6 Allegations of defendant's prior misrepresentation would appear to constitute evidence of other crimes or wrongs. N.J.R.E. 404(b). The State did not address how it would have established a basis for admissibility. See State v. Cofield,

(1992).

13 A-1889-12T2 prima facie case of ineffective assistance of counsel under

Strickland.

Regarding plea withdrawal, the court applied the four

Slater factors: "(1) whether the defendant has asserted a

colorable claim of innocence; (2) the nature and strength of

defendant's reasons for withdrawal; (3) the existence of a plea

bargain; and (4) whether withdrawal would result in unfair

prejudice to the State or unfair advantage to the accused."

Supra,

. The court summarized the competing

opinions of Drs. Sandoval and D'Urso and found "this colorable

claim of innocen[c]e . . . seems to be in equipoise." The court

found that defendant's reasons for withdrawal — lack of

consultation by her attorney and viability of her diminished

capacity defense — were belied by her waiver of defenses at the

plea hearing. The existence of a plea agreement also weighed

against defendant. The court held that it was not required to

consider the fourth factor, as the balance of the first three

did not favor defendant.

The court then applied the first prong of the test under

,

,

(stating that defendant must show counsel's

performance was deficient and he or she made errors so serious

that counsel was not functioning as guaranteed by the Sixth

14 A-1889-12T2 Amendment). The court found that defendant and her attorney

"were on notice" that the State would question defendant's

credibility, and challenge Dr. Sandoval's opinion, in part by

alleging a lack of candor and objectivity based on his alleged

business relationship with defendant. The court found "there is

no evidence to prove that plea counsel did not review all of

these facts with [defendant]." The court was also unpersuaded

that trial counsel failed to apply "professional and/or trial

strategy" in urging defendant "not to go to trial but to enter a

guilty plea." The court also reviewed defendant's affirmations,

in response to her trial counsel's questioning, that he had

conferred with her earlier that day, reviewed the plea form, and

that she voluntarily and freely wished to plead guilty and waive

her right to a trial. The court did not expressly reach the

prejudice prong of the Strickland test. See

,

,

(defendant must show he or she was prejudiced such that there

existed a reasonable probability that, but for counsel's

unprofessional errors, the result would have been different).

The judge did not decide whether defendant's application

was time-barred, in view of its disposition on the merits.

However, the judge opined that "frankly, four months after the

running of the five-year time period with all of the various

15 A-1889-12T2 appeals that were part of the record there appears to be a

significant case in favor of the petitioner for this argument of

excusable neglect."

This appeal followed. Defendant presents the following

point and subpoints for our consideration:

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

A) Defendant has asserted a colorable claim of innocence.

B) The nature and strength of defendant's reasons for withdrawal are powerful.

C) A plea bargain exists in this case; however, the plea offer was not accepted knowingly and voluntarily.

D) Withdrawal of the plea would not result in unfair prejudice to the State or unfair advantage to the defendant.

II.

A.

The trial court correctly viewed defendant's application as

both a motion to withdraw her plea, and a petition for PCR based

on ineffective assistance of counsel.7 The two requests for

7 We do not reach the issue whether, under Rule 3:22-3, the trial court should have held the PCR petition in abeyance, or dismissed it without prejudice, until it considered the plea withdrawal request. Neither the parties nor the trial court (continued)

16 A-1889-12T2 relief are distinct, and governed by different rules of court.

Compare R. 3:21-1 (motion to withdraw plea), with R. 3:22 (PCR).

They must be considered separately. Cf. State v. McDonald,

(2012) (separately analyzing motion to

withdraw guilty plea under Slater, and claim of ineffective

assistance under Strickland, although finding that ineffective

assistance claim was premature on direct appeal).

The two requests for relief are governed by different time

constraints. A motion to withdraw a plea shall be made before

sentencing, but may be made at any time thereafter if the movant

shows a "manifest injustice." R. 3:21-1; see also State v.

J.J.,

(App. Div. 2007), appeal dismissed,

(2008). By contrast, a petition for PCR must be

filed within five years of the challenged judgment of

conviction, absent excusable neglect where enforcement of the

bar would result in a "fundamental injustice." R. 3:22-12(a).

(continued) addressed that issue, and the interests of justice would not be served by bifurcating the proceedings at this point, particularly given the time that has elapsed since defendant's conviction. See Report of Supreme Court Committee on Post- Conviction Rights of Indigents,

, 568 (1962) (regarding proposed rule on exclusiveness of post-conviction application, stating that "[s]ome degree of flexibility in the jurisdictional handling of particular cases will inevitably arise" and "priority will be accorded the objective of substantial justice").

17 A-1889-12T2 The two applications implicate different but overlapping

rights. The motion to withdraw a plea implicates fundamental

rights to liberty and due process. See

("A core concern underlying motions to withdraw guilty

pleas is to correct the injustice of depriving innocent people

of their liberty."). The right to PCR based on ineffective

assistance is grounded in the constitutional right to counsel.

See State v. Fritz,

(1987) (stating that

Strickland vindicates the constitutional right to counsel).

More broadly, however, "a PCR petition is a defendant's last

chance to challenge the 'fairness and reliability of a criminal

verdict in our state system.'" State v. Nash,

(2013) (quoting State v. Feaster,

(2005)).

As we have noted, the motion to withdraw a plea is governed

by the four-factor test in

No one factor is

dispositive, nor must a movant satisfy all four.

. However, "[c]onsideration of a plea withdrawal request can

and should begin with proof that before accepting the plea, the

trial court followed the dictates of Rule 3:9-2."

.

The rule requires the court to determine if "there is a factual

basis for the plea and that the plea is made voluntarily, not as

a result of any threats or of any promises or inducements not

18 A-1889-12T2 disclosed on the record, and with an understanding of the nature

of the charge and the consequences of the plea." R. 3:9-2.

A petition for PCR based on ineffective assistance of

counsel is governed by the two-prong Strickland test. In a

challenge to a conviction arising from a guilty plea, the

petitioner may satisfy the prejudice prong by showing "a

reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to

trial." Hill v. Lockhart,

,

,

(1985); see also State v. Gaitan,

(2012), cert. denied, ___ U.S. ___,

,

(2013).

To obtain an evidentiary hearing on a PCR petition, a

defendant must establish a prima facie case for relief, material

issues of disputed fact, and show that an evidentiary hearing is

necessary to resolve the claims. R. 3:22-10(b). The petitioner

must ultimately establish the right to PCR by a preponderance of

the evidence. State v. Preciose,

(1992).

Regarding a plea withdrawal motion, the burden of proof

varies depending on when the motion is filed.

The same factors are to be used for motions filed either before or after sentencing, but the timing of the motion will trigger different burdens of proof for the movant: pre-sentence motions to withdraw a plea are governed by the "interest of justice"

19 A-1889-12T2 standard in Rule 3:9-3(e), while post- sentence motions are subject to the "manifest injustice" standard in Rule 3:21- 1. As a result, the weighing and balancing process will differ depending on when a motion is filed . . . .

[Slater, supra,

.]

"Following sentencing, if a defendant seeks to withdraw a guilty

plea the court weighs more heavily the State's interest in

finality and applies a more stringent standard." State v.

Norman,

(App. Div. 2009) (citing State

v. McQuaid,

(1997)). Thus, the longer a

defendant delays in seeking to withdraw a plea, the greater

burden he or she will bear in establishing "manifest injustice,"

because the prejudice to the State under prong four will

generally increase. Moreover, a defendant's reasons for delay

may also weigh against relief under factor two.

We recognize that the two tests may overlap. For example,

compelling evidence of a person's innocence that was available

but neglected by an attorney may weigh heavily in applying

factor one of the Slater test, as well as determining whether an

attorney's ineffectiveness was prejudicial under Strickland. A

defendant may rely on discovery of his or her attorney's

misinformation about the consequences of a plea to satisfy the

reasons for seeking to withdraw a plea under Slater factor two.

Those same facts may satisfy prong one of Strickland.

20 A-1889-12T2 However, a court must nonetheless view the applications

separately, and must avoid conflating the two. One can imagine

scenarios in which a defendant could prevail on one application,

but not the other. For example, a defendant may mislead his or

her attorney in accepting responsibility for a crime, in order

to plead guilty and to avoid threatened reprisals by another

criminal. Cf. State v. Simon,

(1999)

(affirming trial court's decision considering, but discrediting

defendant's claim, on motion to withdraw plea, that he falsely

admitted guilt because of threats to his family). While such a

defendant might have no viable claim for PCR based on

ineffective assistance, he or she conceivably could have a

viable plea withdrawal motion, based on a colorable claim of

innocence and compelling reasons for seeking withdrawal.

On the other hand, a defendant may fail on a motion to

withdraw a plea under Slater, because he or she lacks a

colorable claim of innocence (factor one), and the State would

suffer prejudice (factor four) as a result of delay and witness

unavailability. Yet, the same defendant may still have a

successful claim under Strickland, because (1) the defendant may

establish prejudice without necessarily establishing likely

acquittal; and (2) prejudice to the State is not a consideration

under Strickland. In the PCR context, to obtain relief from a

21 A-1889-12T2 conviction following a plea, "a petitioner must convince the

court that a decision to reject the plea bargain would have been

rational under the circumstances." Padilla v. Kentucky,

, ___,

,

(2010). "[A] rational decision not to plead guilty does not

focus solely on whether a defendant would have been found guilty

at trial . . . ." United States v. Orocio,

(3d Cir. 2011), overruled on other grounds by Chaidez v. United

States, ___ U.S. ___,

,

(2013).

In a case involving immigration consequences of a plea,

"[p]reserving the client's right to remain in the United States

may be more important to the client than any potential jail

sentence."

,

,

(internal quotation marks and citations

omitted).

In State v. Nuñez-Valdéz,

(2009), the Court

affirmed PCR where counsel misinformed the defendant about the

immigration consequences of conviction. The defendant would not

have pleaded guilty had he been properly informed. Although the

defendant claimed he falsely admitted his guilt,

,

"[d]efendant conceded that his change of heart had nothing to do

with any assertion of innocence."

. Neither the

22 A-1889-12T2 trial court nor the Supreme Court relied on evidence of

innocence as a factor in granting relief.

Finally, we apply different standards of review to orders

on plea withdrawal motions, and PCR petitions. While issues of

law are subject to our de novo review, Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan,

(1995), we apply an

abuse of discretion standard to decisions on plea withdrawal

motions. "Thus, the trial court's denial of defendant's request

to withdraw his guilty plea will be reversed on appeal only if

there was an abuse of discretion which renders the lower court's

decision clearly erroneous." See

(citing State v. Smullen,

(1990)). "A denial

of a motion to vacate a plea is 'clearly erroneous' if the

evidence presented on the motion, considered in light of the

controlling legal standards, warrants a grant of that relief."

State v. Mustaro,

(App. Div. 2009)

(citing

). Our Supreme Court has

found a mistaken exercise of discretion in denying a motion to

withdraw a plea where the court exercised a "clear error of

judgment." State v. Munroe,

(2012) (internal

quotation marks and citation omitted).

If a court has conducted an evidentiary hearing on a

petition for PCR, we necessarily defer to the trial court's

23 A-1889-12T2 factual findings.

. Moreover,

"Rule 3:22-10 recognizes judicial discretion to conduct such

hearings."

. However, where

the court does not hold an evidentiary hearing, we may exercise

de novo review over the factual inferences the trial court has

drawn from the documentary record. State v. Harris,

(2004), cert. denied,

,

,

(2005). Thus, it is within our

authority "to conduct a de novo review of both the factual

findings and legal conclusions of the PCR court." Id. at 421.

B.

Applying these principles, we are persuaded that the trial

court misapplied the Slater factors in denying defendant's

application to withdraw her plea.

Turning to the first Slater factor, the court set too high

a threshold for establishing a "colorable claim of innocence."

. The court found that this

factor was neutral because defendant's diminished capacity

defense — supported by Dr. Sandoval's opinion — was challenged

by the State's expert, Dr. D'Urso and other evidence. However,

in applying this factor, a court should not decide the

likelihood of the defense prevailing.

(holding that the court misapplied Slater factor one).

24 A-1889-12T2 "Rather, the issue is whether defendant raised a colorable claim

of innocence that should rightly have been decided by a jury."

A court must consider whether "defendant 'presented

specific, potentially plausible facts' of his innocence."

at 446-47 (quoting

).

By this standard, defendant's diminished capacity defense

was a colorable claim of innocence. The court did not expressly

consider that once defendant raised the question of her mental

disease or defect, it was the State's burden to disprove her

diminished capacity beyond a reasonable doubt. State v. Rivera,

(2011); State v. Moore,

(1991); Model Jury Charge (Criminal), "Evidence of Mental

Disease or Defect" (2006).8 It is notable that although Dr.

D'Urso opined that defendant likely had the necessary mental

state, he also confirmed that defendant suffered from several

serious mental health conditions.

The court also gave undue weight to the State's claim that

Dr. Sandoval had a conflict of interest based on his alleged

relationship with defendant. The claim was grounded in an

unsworn 2006 investigative report stating the billing clerk

8 By contrast, a defendant bears the burden of proving insanity by a preponderance of the evidence. State v. Singleton,

(2012); N.J.S.A. 2C:4-1.

25 A-1889-12T2 asserted such a relationship. However, that same clerk in 2003

told DCJ investigators no such relationship existed.

The PCR court also erred in rejecting, out of hand, the

"nature and strength of defendant's reasons for withdrawal."

. The court relied solely on

defendant's affirmations at the plea hearing, which it held

belied her claim she was ill-informed about her defenses and

pressured to plead guilty. The court also discounted

defendant's claim of inadequate consultation by counsel.

We recognize that a defendant's representations "at plea

hearings concerning the voluntariness of the decision to plead

. . . constitute a 'formidable barrier' which defendant must

overcome before he will be allowed to withdraw his plea."

. However, at defendant's plea

hearing, the court fell short of conducting the searching

inquiry required to assure that a defendant has knowingly and

voluntarily waived a claim as significant as diminished

capacity. Our Supreme Court recently held in State v. Handy,

(2013), that before a trial court accepts a

waiver of the insanity defense, the court must conduct a

"thorough and searching inquiry of an otherwise competent

defendant concerning his or her understanding of the nature of

the right being waived and the implications that flow from that

26 A-1889-12T2 choice." We presume no less is required here. Yet, the court

failed even to identify the diminished capacity defense by name,

let alone describe the nature of the defense, its significance,

and inform defendant that the State would bear the burden to

disprove diminished capacity.

As for factor two, defendant's claim that her trial counsel

did not adequately confer with her, and share the risks and

benefits of pleading, was more than a bald assertion. Cf.

. Defendant's assertions

were supported by counsel's prior derelictions and

misrepresentations, which the court found when it sanctioned

trial counsel. The PCR court minimized counsel's past behavior,

stating it pertained only to the production of the expert

report. However, counsel's behavior at the very least lent

plausibility to defendant's claim that her attorney, after

representing that she had a viable defense, did not adequately

confer with her, failed to exercise diligence in obtaining a

promised second expert report, and then suddenly and urgently

advised her to switch course and plead guilty.

We conclude that an evidentiary hearing is required to

fairly assess defendant's asserted reasons for seeking to

withdraw her plea, and her allegations regarding trial counsel.

Upon completion of such a hearing, and in view of our comments

27 A-1889-12T2 regarding the "colorable claim of innocence" prong, the trial

court shall reconsider the application to withdraw defendant's

plea. In doing so, the court should also analyze prong four.

C.

Considering defendant's request for PCR, we agree with the

trial court's initial view that defendant's petition is not

time-barred by Rule 3:22-12. She established excusable neglect

under the circumstances, particularly since she filed only a few

months past the deadline. Defendant has also established

"fundamental injustice," as required by Rule 3:22-12(a)(1), as

she made "some showing that an error or violation played a role

in the determination of guilt."

(internal quotation marks and citation omitted).

Turning to the Strickland test, we are persuaded that

defendant established a prima facie claim of ineffective

assistance of counsel. Defendant has presented more than bald

or conclusory allegations that her attorney's performance fell

"outside the wide range of professionally competent assistance."

,

,

. As we have discussed, defendant presented a

plausible claim, supported by the court's finding of

misrepresentation and dereliction of professional duty, that her

attorney failed to confer with her or obtain a second expert

28 A-1889-12T2 opinion as promised, and urged her to plead guilty without

adequate explanation despite months of preparation for trial.

Defendant's claim of diminished capacity was supported by

an expert opinion, and indirectly supported by defendant's

history of mental illness. Certainly, a jury may have been

persuaded to reject Dr. Sandoval's opinion, or that of another

defense expert. Acquittal was far from certain. Yet, it is not

self-evident that pleading guilty was a reasonable strategy,

particularly since the agreement called for a plea to the

indictment, and a sentence resulting in defendant's

incarceration until age seventy-four. Upon a hearing, trial

counsel may well provide a basis for concluding that his advice

to defendant was the result of "reasonable professional

judgment."

,

,

. However, on this record, and

extending defendant all favorable inferences, she has

established a prima facie case regarding prong one.

As for the prejudice prong, defendant has presented

sufficient evidence to show "a reasonable probability that, but

for counsel's errors, [s]he would not have pleaded guilty and

would have insisted on going to trial."

,

,

. Her readiness to

go to trial is plausible, because she had a plausible defense

29 A-1889-12T2 that she could present through her expert's and perhaps her own

testimony.

Her readiness to go to trial is also supported by the

nature of the plea offer. This is not a case where the plea

offer was so attractive that it would defy logic or reason that

a defendant would risk a trial. See

. Defendant pleaded to the indictment and

accepted a sentence that could result in her spending the rest

of her life in prison. We conclude defendant has made a prima

facie showing that going to trial would have been "rational

under the circumstances."

,

,

. Defendant's claim that

she would have insisted upon going to trial had she been

effectively counseled cannot be rejected absent an evidentiary

hearing.

In sum, we reverse and remand for the court to conduct an

evidentiary hearing and to reconsider defendant's application

for relief under Slater and Strickland.

Reversed and remanded. We do not retain jurisdiction.

30 A-1889-12T2