SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5693-18

STATE OF NEW JERSEY,

Plaintiff-Respondent, 

v.

MICHAEL WEST,1

Defendant-Appellant.

_______________________

Submitted February 24, 2021 – Decided May 26, 2021

Before Judges Ostrer and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 11-08-1488 

and Accusation No. 11-10-0828.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Damen J. Thiel, Designated Counsel, on the 

brief).

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Caroline C. Galda, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief). 

1

 Referenced in the record also as Michael J. West and Michael John West.

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM 

Defendant Michael West appeals from a May 31, 2019 order denying his 

petition for post-conviction relief (PCR), and a September 9, 2019 order denying 

his motion to withdraw his guilty plea. We reverse and remand to permit the 

trial court to conduct an evidentiary hearing on defendant's PCR application and 

to assess his motion to withdraw his guilty plea, consistent with State v. Slater, 

198 N.J. 145 (2009). 

In December 2010, defendant gained access to his housemate's banking 

information and opened a PayPal account in the housemate's name. Thereafter, 

defendant attempted to transfer $8000 from his victim's bank account to the fake 

PayPal account he created. Defendant successfully stole $4000 from his victim. 

Two months later, defendant falsely reported to the police that someone 

named Nick Erickson stole his debit card and used it to withdraw funds from his 

account. He later admitted no such person existed. Defendant also intercepted 

a letter from the Hudson County Prosecutor's Office which was addressed to his 

housemate. Defendant responded to the letter, pretending to be his housemate, 

and stated he did not wish to pursue charges against defendant for stealing 

$4000.
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As a result of his actions, defendant was charged under separate 

indictments with third-degree theft by deception, N.J.S.A. 2C:20-4, and fourthdegree false reporting to incriminate another, N.J.S.A. 2C:28-4(a); he also was 

charged by way of accusation with third-degree witness tampering, N.J.S.A. 

2C:28-5(a). He agreed to plead guilty to these offenses in exchange for the 

State's offer to dismiss his remaining charges and recommend he serve an 

aggregate sentence of 364 days in jail and pay $4000 in restitution. 

During his plea colloquy, defendant provided a factual basis for his guilty 

pleas. He also acknowledged he was voluntarily giving up the right to a trial, 

that no one had coerced or threatened him to plead guilty, and he had sufficient 

time to "go over the facts of [his] case, police reports and statements with [his] 

attorney." Additionally, defendant testified he had enough time to go over the 

plea form with his attorney and was satisfied with her representation. 

At his sentencing on December 16, 2011, trial counsel informed the court 

defendant was recently diagnosed with bipolar disease and received disability 

payments because of his condition. She contended that although defendant was 

before the court on three separate cases, his criminal activity was confined to a 

limited period of time and stemmed from his "deep depression." She asked the 

court to consider these facts "in mitigation," noting defendant was undergoing 
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psychiatric treatment. Further, she asked the judge to impose a straight 

probationary sentence, rather than jail time, notwithstanding the plea agreement. 

The State requested that the judge follow the plea agreement. Further, it 

disputed defendant was recently diagnosed as bipolar, noting his presentence 

investigation report reflected he received this diagnosis several years earlier. 

Additionally, the State asserted defendant had received psychiatric treatment for 

the past three years. The court sided with defense counsel, imposed a five-year 

probationary sentence and directed defendant to pay restitution to his victim. 

Defendant filed a timely PCR petition on July 6, 2016, challenging only 

his witness tampering and false reporting convictions. When the PCR court 

heard argument on the petition on May 3, 2019, PCR counsel contended plea 

counsel was ineffective because she failed to provide defendant with discovery 

about defendant's offenses, pressured him to plead guilty, and presumably did 

not seek his admission into the pre-trial intervention (PTI) program. With 

respect to the latter argument, defendant's PCR counsel acknowledged plea 

counsel's files were destroyed during Superstorm Sandy, but after confirming 

the prosecutor could not find a filed PTI application for defendant, PCR counsel 

was "working from the assumption that it hadn't been done." Further, PCR 
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counsel claimed defendant "would have been an excellent candidate for PTI" 

because his offenses were "all related to the same incident." 

Defendant also spoke during the May 3 hearing. He contended his mental 

health issues prevented him from entering into a voluntary plea agreement in 

2011. Additionally, he argued the recording from his plea hearing would prove 

he was "under coercion" and "wasn't of sound mind." Defendant also claimed 

conflicts of interest existed in his case because his "mother and grandmother 

worked for the courthouse and [his] grandmother was personal friends with the 

trial court administrator before being replaced in 2014." 

Regarding defendant's assertion plea counsel did not provide him with 

discovery prior to his plea, the PCR judge found defendant now had such 

discovery, yet failed to show how receiving the discovery sooner would have 

changed the outcome of the case. Specifically, the judge noted defendant did 

not demonstrate how it was "exculpatory in nature or in any way would have 

clouded the strength of the State's case." 

Regarding defendant's contention that plea counsel was ineffective for 

failing to seek his entry into the PTI program, the PCR judge found defendant 

"failed to establish a reasonable probability that even if the . . . application was 

made, . . . he would have gone into PTI." The judge then reserved decision on 
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defendant's PCR application so he could listen to a recording of defendant's 2011 

plea because defendant contended the recording would show he was not fit in 

2011 to enter his guilty pleas. 

When the parties returned to court on May 31, 2019, the judge informed 

the parties he listened to the recording from the plea hearing and found "there 

was nothing amiss whatsoever in it." The judge added that defendant "in no way 

. . . seem[ed] impaired" and he "had a back and forth between [himself] . . . and 

[his] counsel." With that, the judge denied defendant's PCR petition. 

In August 2019, defendant moved to withdraw his guilty plea. On 

September 9, 2019, without conducting oral argument, the same judge who 

denied defendant's PCR petition denied his motion to withdraw his guilty plea, 

finding "the issues raised by the defendant in this Motion to Withdraw . . . are 

the same as the issues addressed and denied in his [PCR] petition." 

On appeal, defendant raises the following arguments:

POINT I

THE PCR COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR [PCR] BECAUSE 

DEFENDANT WAS DENIED EFFECTIVE 

ASSISTANCE OF COUNSEL AND DEFENDANT'S 

PLEA WAS NOT KNOWINGLY AND 

VOLUNTARILY EXECUTED.
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A. Defense Counsel Rendered Ineffective 

Assistance During Defendant's Initial 

Representation and Plea Hearing.

B. Defendant's Petition Should be Granted Because 

His Plea Was Not Executed Knowingly and 

Voluntarily.

POINT II

THIS COURT SHOULD REVERSE THE PCR 

COURT BECAUSE IT FAILED TO PROPERLY 

ANALYZE THE ELEMENTS OF A [PCR] 

PETITION, WAS FACTUALLY MISTAKEN IN ITS 

DECISION, AND FAILED TO GRANT AN 

EVIDENTIARY HEARING.

POINT III

THIS COURT SHOULD REVERSE THE MOTION 

COURT BECAUSE IT FAILED TO PROPERLY 

ANALYZE THE ELEMENTS OF DEFENDANT'S 

MOTION TO WITHDRAW HIS PLEA AND 

DEFENDANT'S MOTION WAS MERITORIOUS.

Regarding Points I and II, we initially observe that when petitioning 

for PCR, a defendant must establish, by a preponderance of the credible 

evidence, that he or she is entitled to the requested relief. State v. Preciose, 129 

N.J. 451, 459 (1992). The defendant must allege and articulate specific facts 

that "provide the court with an adequate basis on which to rest its decision." 

State v. Mitchell, 126 N.J. 565, 579 (1992). To establish a prima facie claim of 

ineffective assistance of counsel, a defendant is obliged to show not only the 
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particular manner in which counsel's performance was deficient, but also that 

the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 

U.S. 668, 687 (1984). In demonstrating that counsel's performance was 

deficient under the first Strickland prong, a defendant must overcome "a strong 

presumption that counsel's conduct falls within the wide range of reasonable 

professional assistance." State v. Fritz, 105 N.J. 42, 52 (1987)

(quoting Strickland, 466 U.S. at 689). Further, because prejudice is not 

presumed, ibid., a defendant must demonstrate "how specific errors of counsel 

undermined the reliability" of the proceeding, United States v. Cronic, 466 U.S. 

648, 659 n.26 (1984).

Both the United States Supreme Court and the New Jersey Supreme Court 

have extended the Strickland test to challenges of guilty pleas based on 

ineffective assistance of counsel during the plea-bargaining process. Lafler v. 

Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye, 566 U.S. 134, 140

(2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). Therefore, "[t]o 

establish Strickland prejudice, a defendant must 'show that there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different' . . . . [and] [i]n the context of pleas, a 

defendant must show the outcome of the plea process would have been different 
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with competent advice." Lafler, 566 U.S. at 163 (quoting Strickland, 466 U.S. 

at 694). Moreover, "a petitioner must convince the court that a decision to reject 

the plea bargain would have been rational under the circumstances." Padilla v. 

Kentucky, 559 U.S. 356, 372 (2010).

Regarding Point III, it is well established that different rights are 

implicated by a PCR petition based on ineffective assistance of counsel and an 

application to withdraw a guilty plea. State v. O'Donnell, 435 N.J. Super. 351, 

368 (App. Div. 2014). In fact, a motion to withdraw a guilty plea must be 

separately considered under the standard enunciated in Slater. As the Slater

Court instructed:

trial judges are to consider and balance four factors in 

evaluating motions to withdraw a guilty plea: (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.

[Slater, 198 N.J. at 157-58.]

The Slater Court further held:

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" standard in Rule 3:9-3(e), 
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while post-sentence motions are subject to the 

"manifest injustice" standard in Rule 3:21-1.

[Id. at 158.]

Guided by these distinct principles, we turn to defendant's arguments that the 

PCR judge erred when analyzing his ineffective assistance of counsel claims. 

As a general proposition, we defer to a PCR court's factual findings "when 

supported by adequate, substantial and credible evidence." State v. Harris, 181 

N.J. 391, 415 (2004) (quoting Toll Bros, Inc. v. Twp. of W. Windsor, 173 N.J. 

502, 549 (2002)). However, when the trial court does not hold an evidentiary 

hearing, 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. Similarly, 

we review de novo the PCR court's legal conclusions. State v. Nash, 212 N.J. 

518, 540-41 (2013) (citing Harris, 181 N.J. at 415-16). 

We also review a judge's decision to deny a PCR petition without 

an evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. 

Super. 387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 

(1997)). A hearing is required only when: (1) a defendant establishes a prima 

facie case in support of PCR; (2) the court determines that there are disputed 

issues of material fact that cannot be resolved by review of the existing record; 

and (3) the court determines that an evidentiary hearing is required to resolve 
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the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-

10(b)).

"[T]o establish a prima facie claim, a petitioner must do more than make 

bald assertions that he was denied the effective assistance of counsel." Id. at 

355 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). 

A PCR petition must be "accompanied by an affidavit or certification by 

defendant, or by others, setting forth with particularity," State v. Jones, 219 N.J. 

298, 312 (2014), "facts sufficient to demonstrate counsel's alleged substandard 

performance," Porter, 216 N.J. at 355 (quoting Cummings, 321 N.J. Super. at 

170); see also R. 3:22-10(c).

Having carefully reviewed the record in light of the applicable law, we are 

satisfied the PCR court properly concluded defendant failed to demonstrate how 

discovery he belatedly received would have changed his decision about pleading 

guilty to the challenged offenses. Likewise, we are persuaded defendant 

produced insufficient evidence to support his arguments that purported conflicts 

of interest impacted his decision to plead guilty, he was coerced into pleading 

guilty and when he entered his guilty pleas, he was not competent to do so. 

On the other hand, we conclude the PCR court mistakenly exercised its 

discretion when it denied defendant an evidentiary hearing on his claim that his 
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plea counsel was ineffective for failing to suggest he apply for PTI. We 

understand plea counsel's file was destroyed in Superstorm Sandy so that PCR 

counsel was only "working from the assumption that" plea counsel's 

performance was deficient in this respect. However, the prosecutor also was 

unable to find a PTI application from defendant regarding this matter. Because 

defendant's crimes were not of a violent nature and it is uncontroverted he 

suffered from certain mental health issues at the time of his sentencing, it would 

have been appropriate for the PCR court to conduct an evidentiary hearing to 

flesh out whether plea counsel suggested defendant apply to the PTI program 

and if not, why not. Additionally, the State should have been heard regarding 

whether it would have been receptive to admitting defendant into the PTI 

program. 

Accordingly, we remand this matter for an evidentiary hearing to address 

these issues. At the remand hearing, consistent with Frye and Strickland, 

defendant must ultimately show not only that plea counsel was ineffective by 

failing to advise defendant to apply to PTI, but that, had counsel provided this 

advice, there is a reasonable probability defendant would have applied, the 

Criminal Division Manager would have recommended his enrollment, the 
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prosecutor would have accepted the recommendation, and the court would have 

admitted him to PTI. See R. 3:28-3 to -5. 

Finally, regarding the denial of defendant's motion to withdraw his guilty 

pleas, we are convinced the judge erred by failing to consider defendant's 

application in conjunction with the principles enunciated in Slater. We are 

mindful the evidentiary hearing we envision for defendant's PCR claims also 

may inform the court's assessment of the Slater factors. Nevertheless, because 

defendant did not file his motion to withdraw until several years after his 

sentencing, he will be entitled to relief on this motion only if he demonstrates to 

the trial court that his convictions are "manifestly unjust." Slater, 198 N.J. at 

156 (citing R. 3:21-1). 

To the extent we have not addressed defendant's remaining arguments, 

they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

Reversed and remanded. We do not retain jurisdiction.