SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4378-18T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KEITH LEWIS,

Defendant-Respondent.

___________________________

Submitted October 10, 2019 – Decided

Before Judges Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Indictment No. 08-12-

0915.

Michael H. Robertson, Somerset County Prosecutor, 

attorney for appellant (Lauren R. Casale, Assistant 

Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for 

respondent (Stefan Van Jura, Assistant Deputy Public 

Defender, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

November 7, 2019
2

A-4378-18T2

By leave granted, the State appeals from the March 8, 2019 Law Division 

order granting defendant's petition for post-conviction relief (PCR) following an 

evidentiary hearing, and the May 6, 2019 order denying its motion for 

reconsideration. We affirm.

We glean the following facts from the record. On December 17, 2008, a 

Somerset County grand jury returned a six-count indictment against defendant 

and a co-defendant. Defendant was charged with first-degree armed robbery, 

N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of an imitation 

firearm, N.J.S.A. 2C:39-4(e) (count two); second-degree eluding, N.J.S.A. 

2C:29-2(b) (count five); and second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(6) (count six). Only the co-defendant was named in counts three and four

of the indictment, and defendant was also charged with numerous motor vehicle 

violations.

The charges stemmed from a robbery at a Radio Shack in North Plainfield

at approximately 7:15 p.m. on November 19, 2008. After two partially masked 

men, one brandishing a gun, entered the store and demanded money from the 

store clerk, the store manager fled through the rear exit door and called the 

police. Following police pursuit of a vehicle occupied by two individuals,

matching the description of the vehicle and the suspects provided by the store 
3

A-4378-18T2

manager, police apprehended defendant and the co-defendant after their vehicle 

crashed. The disabled vehicle, previously operated by defendant, contained 

items reported stolen from the Radio Shack. Additionally, defendant had the 

remnants of a partially torn, purple surgical-type latex glove on his wrist, similar 

to the gloves reportedly worn by the robbers, and a gun was found in the codefendant's possession. The store clerk later identified defendant as one of the 

robbers, but confirmed he did not have the gun, and the store manager later 

identified the crashed vehicle as the vehicle the robbers used to flee the scene.

On the eve of trial, defendant entered a negotiated guilty plea to the

charges. The plea was entered after a Wade1 hearing was conducted, during 

which the trial court denied defendants' motion to exclude the store clerk's outof-court show-up identification, and a Sands2 hearing was conducted, during 

which the court rejected defendant's challenge to the application of the Persistent 

Offenders Accountability Act (Three Strikes Law), N.J.S.A. 2C:43-7.1. 

N.J.S.A. 2C:43-7.1(a) required a person convicted of robbery "who has been 

convicted of two or more [designated] crimes [including robbery] that were 

 

1

 United States v. Wade, 388 U.S. 218 (1967).

2

 State v. Sands, 76 N.J. 127 (1978).
4

A-4378-18T2

committed on prior and separate occasions, regardless of the dates of the 

convictions," to be "sentenced to a term of life imprisonment . . . , with no 

eligibility for parole."

3

Prior to sentencing, however, defendant, who was represented by a

member of the Public Defender's office, filed a pro se motion to withdraw his 

guilty plea, arguing the Slater4factors and ineffective assistance of counsel 

(IAC). Despite defendant's assertion that his attorney's representation was 

ineffective, the trial court permitted defendant to represent himself with the 

attorney serving as standby counsel. On May 11, 2012, after denying the 

motion, the court sentenced defendant on count one in accordance with the plea 

agreement to a term of twenty years' imprisonment, subject to an eighty-five 

percent period of parole ineligibility pursuant to the No Early Release Act 

(NERA), N.J.S.A. 2C:43-7.2.

 

3

 Because defendant had been convicted of robbery in 1981 and 1982, and had 

last been released from confinement for an unrelated prior conviction within ten 

years of 2012, he qualified for sentencing under the Three Strikes Law. See

N.J.S.A. 2C:43-7.1(a) and (c).

4

 State v. Slater, 198 N.J. 145, 157-58 (2009) (establishing four factors trial 

judges must "consider and balance . . . in evaluating motions to withdraw a guilty 

plea[,]" namely "(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.").
5

A-4378-18T2

On February 5, 2013, we heard defendant's challenge to his sentence and 

the denial of his motion to withdraw his guilty plea on the Excessive Sentence 

Oral Argument Calendar (SOA). See R. 2:9-11. Rejecting defendant's argument 

that the trial judge erred in denying his plea withdrawal motion, we affirmed the 

convictions and sentence. However, "with the State's consent," we remanded 

the matter to the trial court for the court to correct the Judgment of Conviction

(JOC) by imposing "concurrent terms on counts [two, five and six], for which 

the court [had] neglected to impose sentences." The JOC was subsequently 

amended on February 20 and May 20, 2013, to reflect the imposition of an 

aggregate twenty-year sentence, subject to NERA.

On December 28, 2016, defendant filed a timely pro se PCR petition, 

asserting his trial and appellate attorneys were ineffective in a variety of ways. 

After applying the governing principles,5Judge Anthony F. Picheca, Jr. granted 

in part, and denied in part, defendant's request for an evidentiary hearing6in an 

 

5

 To prevail on an IAC claim, a defendant must satisfy a two-part test. 

Specifically, the defendant must show that his attorney's performance was 

deficient and that the "deficient performance prejudiced the defense." 

Strickland v. Washington, 466 U.S. 668, 687 (1984). See also State v. Fritz, 105 

N.J. 42, 49-53 (1987) (adopting the Strickland two-part test for IAC claims).

6

 "Although no PCR rule requires that evidentiary hearings be held on PCR 

petitions, Rule 3:22-10 recognizes that the PCR court may exercise its discretion
6

A-4378-18T2

August 31, 2018 order. In the accompanying thirty-two page written statement 

of reasons, the judge rejected several of defendant's IAC claims and limited the 

hearing to the following issues: (1) whether trial counsel properly communicated

with defendant, investigated the evidence, and prepared for trial; (2) whether 

trial counsel properly investigated mitigating factors, prepared for and 

represented defendant at sentencing; and (3) whether defendant was denied 

effective assistance of counsel in his pro se plea withdrawal motion.

7

At the ensuing evidentiary hearing, defendant testified his attorney spoke 

to him a total of five times in the three years that he represented him, and that 

 

to conduct evidentiary hearings at which oral testimony is taken." State v. 

Marshall, 148 N.J. 89, 157 (1997). "Post-conviction relief 'courts ordinarily 

should grant evidentiary hearings . . . if a defendant has presented a prima facie 

[case] in support of post-conviction relief.'" Id. at 158 (alteration in original) 

(quoting State v. Preciose, 129 N.J. 451, 462 (1992)). "To establish such a prima 

facie case, the defendant must demonstrate a reasonable likelihood that his or 

her claim will ultimately succeed on the merits." Ibid. "Thus, in determining 

the propriety of an evidentiary hearing, the PCR court should ascertain whether 

the defendant would be entitled to post-conviction relief if the facts were viewed 

'in the light most favorable to defendant.'" Ibid. (quoting Preciose, 129 N.J. at 

462-63). "If that inquiry is answered affirmatively, then the defendant generally 

is entitled to an evidentiary hearing in order to prove the allegations." Ibid.

7

 As to this issue, the judge "believe[d] that based on the lack of clarity in the 

transcripts" regarding "whether [d]efendant actually proceeded pro se or with 

the assistance of trial counsel" and whether he was properly questioned "about 

exercising his right to proceed pro se," defendant "met his burden to warrant an 

evidentiary hearing" on the issue.
7

A-4378-18T2

he sent twenty unanswered letters to him, asserting his innocence and expressing 

his dissatisfaction with the attorney's representation. According to defendant, 

other than the police report, he was never provided any discovery and was never 

shown any electronic discovery. Defendant testified he repeatedly asked his 

attorney to locate several potentially exculpatory witnesses, with whom he had 

spoken at the Radio Shack prior to the robbery, including the store manager, as 

well as supporting sales records, but was never informed of the results. 

Defendant testified he would not have pled guilty and would have insisted on 

going to trial if he had been properly represented.

During his testimony, the investigator assigned to defendant's case only 

recalled obtaining medical records to support a possible intoxication defense 

based on defendant's admission that he had smoked marijuana laced with PCP. 

However, upon receipt of the medical records, no further action was taken. The 

investigator did not recall interviewing any witnesses, trying to locate any 

potential witnesses, going to the scene, or taking any photographs.

Defendant's attorney testified that his custom and practice was to write a 

letter to the defendant indicating the receipt of all discovery, make photocopies 

of the discovery, and send copies to the defendant in jail. Additionally, he would 

ordinarily discuss the case with the client at each status conference and discuss 
8

A-4378-18T2

plea offers. However, there was no letter to defendant indicating the receipt of 

discovery and no written plea offer in the file. Moreover, the only 

communication he specifically recalled having with defendant was regarding the 

plea offer.

Defendant's attorney acknowledged his office's capability to conduct 

investigations, but confirmed he did not request any. During his representation 

of defendant, he did not interview any witnesses, visit the scene, or file any 

affirmative defenses. However, he negotiated for a twenty-year prison term, 

subject to NERA, which the State rejected,

8

joined in the co-defendant's Wade

motion, which the judge denied, and unsuccessfully argued against the 

application of the Three Strikes Law at the Sands hearing.

He testified that in preparation for sentencing, ordinarily, he would send

a presentence report to the client in jail, and discuss the report at the sentencing 

hearing. However, in defendant's case, he could not recall whether he argued

any mitigating factors from the presentence report at sentencing. He also 

testified that when a client communicates his dissatisfaction with the attorney's 

 

8

 Under the terms of the plea agreement defendant ultimately accepted, the 

State's sentencing recommendation was an aggregate twenty-five year term of 

imprisonment, subject to NERA. The aggregate twenty-year prison term subject 

to NERA ultimately imposed resulted from a sentencing decision by the court.
9

A-4378-18T2

representation, ordinarily, a "pool form" would be filled out to determine 

whether a pool attorney would take over the representation. However, a pool 

form was not completed in defendant's case.

Following the hearing, in a March 8, 2019 order, Judge Picheca granted

defendant's PCR petition, vacated his guilty plea, and set the matter down for 

trial. In his accompanying written statement of reasons, the judge concluded

defendant "met his burden [of proving] ineffective-assistance-of-counsel under 

Strickland and Fritz" in connection with "trial counsel's deficient performance 

prior to [defendant] entering the guilty plea." The judge also determined that 

counsel's deficient performance "prejudiced" defendant.9

First, addressing defendant's argument that his attorney failed to prepare 

and investigate the case in preparation for trial, the judge stated:

[T]he [c]ourt has reviewed the numerous letters sent by 

[defendant] to [his attorney] indicating his 

dissatisfaction with counsel's representations. No 

response was documented in [the attorney's] file. This 

is consistent with [defendant's] testimony that he only 

spoke with his attorney five times over the course of the 

three years of his representation. Communicating with 

 

9

 On the other hand, the judge rejected defendant's IAC claim in connection 

with trial counsel's purported failure to prepare and investigate mitigating 

evidence for defendant's sentencing. The judge explained defendant did "not 

argue what mitigating factors could have been found, who would have spoken 

on his behalf, or how finding mitigating factors would have changed the results 

of sentencing" in order "to establish the prejudice prong of Strickland[.]"
10 A-4378-18T2

one's client is the most basic task of defense counsel 

and failing to do so renders an attorney's performance 

less than that which is required by the Sixth 

Amendment. [Defendant] also requested . . . his 

attorney to locate potential exculpatory witnesses, 

including [the store manager], and there was no 

evidence that this attempt ever occurred. [The 

investigator] testified that he did not recall interviewing 

any witnesses, nor try[ing] to locate any potential 

witnesses. Three years is ample time to engage in 

attempts to locate potential exculpatory witnesses. 

Conducting an investigation into potentially 

exculpatory witnesses is also a basic task of defense 

counsel and the failure to do so renders counsel's 

performance less than the counsel as guaranteed by the 

Constitution. The [c]ourt briefly notes that trial counsel 

did obtain medical records of [defendant] after he gave 

information potentially supporting an intoxication 

defense. However, this does not negate the fact that 

trial counsel failed to communicate with his client, 

failed to review the evidence with his client, and failed 

to attempt to locate exculpatory witnesses. Therefore, 

an adequate investigation was not undertaken in this 

case.

In evaluating the credibility of the witnesses' testimony, the judge 

explained:

Although [defendant's attorney] testified as to his 

general custom and practice, there is no evidence 

indicating that those general procedures took place in 

this case. There was no letter indicating that 

[defendant] was sent a copy of discovery, and 

[defendant] asserts that he never received discovery. 

[His attorney] submits that he does not remember many 

facts of this case and was unable to confirm whether

discovery was sent and to what extent he prepared for 
11 A-4378-18T2

this case. Therefore, there is no evidence indicating 

that [defendant's] claims are incorrect and no evidence 

to indicate that trial counsel conducted any 

investigation into this case other than retrieving 

medical records. Even though trial counsel joined the 

Wade motion filed by codefendant's counsel, and 

argued a Sands issue, this does not evidence that any 

investigation took place.

The judge concluded:

This [c]ourt is primarily concerned with counsel's lack 

of communication with his client and his failures to 

attempt to locate potential witnesses. The State is 

correct in its assertion that decisions made after a 

thorough investigation are presumed to be strategic, 

however, a thorough investigation did not occur in this 

case. Therefore, this [c]ourt will not presume that trial

counsel's decisions were strategic. The [c]ourt finds 

that trial counsel's actions, specifically his failure to 

communicate with [defendant] and to review discovery 

with [defendant], as well as his failure to attempt to 

locate potential witnesses, falls below the basic 

proficiency as afforded by the Sixth Amendment. 

[Defendant] has met his burden under the performance 

prong of Strickland on this ground.

See State v. Porter, 216 N.J. 343, 352 (2013) ("An ineffective assistance of 

counsel claim may occur when counsel fails to conduct an adequate pre-trial 

investigation."). See also State v. Chew, 179 N.J. 186, 217 (2004) ("'[C]ounsel 

has a duty to make reasonable investigations or to make a reasonable decision 

that makes particular investigations unnecessary[,]'" and "'[a] failure to do so 
12 A-4378-18T2

will render the lawyer's performance deficient.'" (first quoting Strickland, 466 

U.S. at 691, then quoting State v. Savage, 120 N.J. 594, 618 (1990))).

Turning to the prejudice prong of Strickland, the judge explained:

[Defendant] pled guilty on the day trial was set to 

commence. [Defendant] testified that he felt pressured 

to plead guilty, in part based upon counsel's deficient 

investigation. Trial counsel was unprepared to try his 

case and [defendant] faced a potential sentence of life 

imprisonment. Because trial counsel was unprepared 

on the day trial was set to begin, [defendant] pled 

guilty. If counsel had properly prepared, [defendant]

would have insisted on proceeding with the trial.[10]

The [c]ourt finds that [defendant] was prejudiced by 

trial counsel's deficient performance.

See Preciose, 129 N.J. at 464 (finding "plausible and less speculative than other 

types of counsel errors" defendant's assertions "that the patently-inadequate 

preparation of both attorneys and the substitute attorney's incorrect advice 

regarding his possible sentence, combined with the last-minute substitution of 

attorneys, pressured him into pleading guilty.").

 

10

 To establish a prima facie case of IAC to set aside a guilty plea, the second 

Strickland prong is modified to require "'a reasonable probability that, but for 

counsel's errors, [the defendant] would not have pled guilty and would have 

insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 142 (2009) 

(alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). 

See also Hill v. Lockhart, 474 U.S. 52, 59 (1985). In other words, the defendant 

must show that not pleading guilty would have been "rational under the 

circumstances." State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) 

(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
13 A-4378-18T2

The judge also determined that defendant "was completely denied 

counsel" in connection with his pro se plea withdrawal motion, and therefore 

"prejudice [was] presumed." Thus, according to the judge, defendant "clearly 

establishe[d] [both] the performance" and "the prejudice prong of the Strickland

test." In that regard, the judge noted defendant was not afforded a hearing under 

Faretta v. California, 422 U.S. 806 (1975), which allows a defendant to exercise 

his constitutional right to "self-representation," only when the defendant is 

"made aware of the dangers and disadvantages of self-representation" and 

"'knowingly and intelligently'" elects to "manage[] his own defense" with "eyes 

open." Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)).

The judge explained:

[Defendant] testified that he did not wish to proceed pro

se, however, he was arguing an ineffective-assistanceof-counsel claim that inevitably created a conflict of 

interest between himself and trial counsel. For that 

reason, trial counsel correctly recused himself from 

arguing the motion and [defendant] was required to 

proceed pro se. No Faretta hearing was conducted and

[defendant] was not questioned on either his ability or 

his desire to proceed without counsel. At oral 

argument, [defendant] repeatedly asserted that he did 

not wish to proceed pro se, but he was ultimately 

required to do so. [Defendant] should have been 

questioned on this and afforded the opportunity to be 

assigned new counsel to argue the motion. A form to 

request a pool attorney was never filled out for 

[defendant], thus, he was never afforded the 
14 A-4378-18T2

opportunity to seek alternative representation. Under 

the Strickland ineffective-assistance-of-counsel 

analysis, [defendant] was completely denied the right 

to counsel which clearly establishes the performance 

prong of the Strickland test. Prejudice may be 

presumed in such a situation, therefore establishing the 

prejudice prong of the Strickland test.

The judge also rejected the State's contention "that this issue was 

previously adjudicated on appeal" and therefore "procedurally barred[,]" noting 

"[t]he Appellate Division specifically limited its affirmance to 'defendant's 

motion to withdraw his guilty plea under [Slater].'" Further, according to the 

judge, "[a]lthough [defendant] indicated in [his plea withdrawal] motion his 

dissatisfaction with trial counsel," defendant "had not, at that time, filed a 

motion for post-conviction relief based on ineffective-assistance and the trial 

court specifically stated that it would not adjudicate that issue."

Thereafter, the State moved for reconsideration, which was denied by 

Judge Picheca in a May 6, 2019 order. In the accompanying written decision,

quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the judge 

explained that "[r]econsideration should be utilized" only where "the [c]ourt has 

expressed its decision based upon a palpably incorrect or irrational basis," or 

"did not consider, or failed to appreciate the significance of probative, 

competent evidence[,]" neither of which applied here. Focusing on counsel's 
15 A-4378-18T2

performance prior to defendant pleading guilty, the judge reiterated that "trial 

counsel's performance fell below the basic proficiency as required by the Sixth 

Amendment because he failed to adequately investigate th[e] case or prepare for 

trial." The judge expressly rejected the State's renewed contention that 

defendant failed to establish prejudice resulting from his attorney's deficient 

performance, reasoning that the "[c]ourt found [defendant's] assertion" "that had 

counsel adequately investigated and prepared, he would have insisted on going 

to trial" "to be credible in light of all of the relevant evidence."

To support its contention that reconsideration was warranted because the 

judge applied the incorrect legal standard to satisfy the prejudice requirement, 

the State relied on Hill, 474 U.S. at 59, where the Court explained

where the alleged error of counsel is a failure to 

investigate or discover potentially exculpatory 

evidence, the determination whether the error 

"prejudiced" the defendant by causing him to plead 

guilty rather than go to trial will depend on the 

likelihood that discovery of the evidence would have 

led counsel to change his recommendation as to the 

plea. This assessment, in turn, will depend in large part 

on a prediction whether the evidence likely would have 

changed the outcome of a trial.

[Ibid.]

In rejecting the State's reliance on Hill, the judge reasoned:
16 A-4378-18T2

[T]his test assumes that there is guesswork involved 

with determining whether a defendant would have 

exercised his right to proceed to trial under a particular 

set of circumstances. . . . Here, . . . the [c]ourt found 

that [defendant] would have proceeded to trial if 

counsel was prepared and investigated [the case]. . . .

. . . .

[Defendant] asserted that had trial counsel 

adequately prepared, investigated, and called certain 

witnesses to testify so that [defendant] could present the 

defense that he did not form the requisite mental state 

to carry out the robbery, he would have proceeded to 

trial. . . . [Defendant] argues that had trial counsel been 

prepared to examine [the store manager] and [the store 

clerk] at trial, they would have produced testimony that 

indicated [defendant] was present in the [Radio Shack]

prior to the robbery and that his actions were 

inconsistent with one about to commit a robbery. 

[Defendant] repeatedly asserted that he arrived at the 

[Radio Shack] with the intent to commit a shoplifting, 

and was unaware that the codefendant was planning an 

armed robbery. . . . [Defendant] argues that his earlier 

presence in the [Radio Shack] would have explained 

why [the store clerk] identified [defendant] in the showup identification procedure. . . . The State did have 

evidence against [defendant], including that he was 

found in the vehicle with the codefendant, [the store 

clerk] identified him in a show-up identification 

procedure, and the co-defendant was found with a 

handgun. . . . Despite the evidence against him, 

[defendant] firmly asserted his innocence and desired 

to proceed to trial with the above-described defense. 

Only when he realized that trial counsel was unprepared 

to present that defense did he decide to plead guilty.
17 A-4378-18T2

On appeal, the State reiterates its argument that the judge's "analysis [of 

the prejudice prong] was wrong as a matter of law" because defendant failed to 

meet "his burden to prove he was prejudiced by his counsel's actions or 

inactions." The State asserts "[d]efendant cannot hope to meet the burden to 

show that for[e]going a plea limiting his exposure to . . . twenty years . . . rather 

than exposing himself to a mandatory life term without parole by going to trial 

would have been the rational decision" given the "[overwhelming] evidence of 

his guilt." Further, according to the State, "no showing [was] made at the PCR 

hearing that any evidence existed which would have come from any sort of 

investigation" sufficient to "undermine[]" or "compromise[] the State's crushing 

evidence" in order to make "the trial option . . . the rational choice." Thus, again 

relying on Hill, the State contends the judge "wrongly focused exclusively on 

defendant's supposed insistence on going to trial, without taking into account 

any consideration that no new evidence was produced on PCR that would have 

had any impact on the State's overwhelming evidence."11

 

11

 As to Judge Picheca's decision "that the trial court failed to safeguard 

defendant's right to unfettered counsel" at defendant's plea withdrawal motion, 

the State urges the proper "remedy is not a new trial" but "to conduct a new 

Slater hearing . . . with unfettered counsel" in accordance with State v. Hayes, 

205 N.J. 522 (2011). In denying the reconsideration motion, Judge Picheca 

agreed that the State's proposed remedy would have been appropriate had that 
18 A-4378-18T2

"In reviewing a PCR court's factual findings based on live testimony, an 

appellate court applies a deferential standard[.]" State v. Pierre, 223 N.J. 560, 

576 (2015). Thus, we "will uphold the PCR court's findings that are supported 

by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 

(2013) (citing State v. Harris, 181 N.J. 391, 415 (2004)). A "PCR court's 

interpretation of the law[,]" however, is afforded no deference, and is "reviewed 

de novo." Id. at 540-41 (citing Harris, 181 N.J. at 415-16). "[F]or mixed 

questions of law and fact," we "give deference . . . to the supported factual 

findings of the trial court, but review de novo the lower court's application of 

any legal rules to such factual findings." Harris, 181 N.J. at 416 (citing 

Marshall, 148 N.J. at 185).

On a motion for reconsideration, "[r]econsideration itself is 'a matter 

within the sound discretion of the [c]ourt, to be exercised in the interest of 

justice.'" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010)

(quoting D'Atria, 242 N.J. Super. at 401). "Reconsideration is not to be granted 

lightly and the grounds for reconsideration are generally limited[,]" to 

 

been the sole basis for the court's determination. However, as the judge pointed 

out "not only did [the judge] find that [defendant] was denied the right to counsel 

at the motion to withdraw his guilty plea, but also that he was denied the right 

to effective assistance of counsel during the investigatory phase of the case."
19 A-4378-18T2

"correct[ing] a court's error or oversight." State v. Puryear, 441 N.J. Super. 280, 

294 (App. Div. 2015). We review the denial of a motion for reconsideration for 

an abuse of discretion, Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 

1996), which "arises when a decision is 'made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible 

basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting 

Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260, 

1265 (7th Cir. 1985)).

Applying these standards, we conclude Judge Picheca's factual findings 

are supported by sufficient credible evidence in the record, and his application 

of the law governing PCR proceedings is sound. Thus, we affirm substantially 

for the reasons expressed in the judge's three thoughtful and thorough written 

decisions. We add only that in order to establish the Strickland prejudice prong

to set aside a guilty plea, "'a [defendant] must convince the court that a decision 

to reject the plea bargain'" and "insist on going to trial" would have been 

"rational under the circumstances." State v. Maldon, 422 N.J. Super. 475, 486 

(App. Div. 2011) (quoting Padilla, 559 U.S. at 372). That determination should 

be "based on evidence, not speculation[,]" and "may hinge in large part on 
20 A-4378-18T2

defendant's credibility and that of any other witnesses he presents at the 

evidentiary hearing." Id. at 486-87.

Here, the judge was so convinced based on his credibility assessments, to 

which we apply a deferential standard of review. As the judge noted in denying 

the reconsideration motion,

this [c]ourt found [defendant's] testimony that he would 

have insisted on proceeding to trial to be credible. 

[Defendant] consistently asserted his innocence as 

evidenced by the substance of his letters, testimony 

from both trial counsel and [defendant] at the 

evidentiary hearing, and his repeated insistence on 

going to trial. Trial was set to begin, and on the day of 

trial, only after realizing how unprepared trial counsel 

was, did [defendant] decide to plead guilty. He soon 

afterwards filed the motion to withdraw his guilty plea.

Affirmed.