NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

ALICE O'DONNELL,

Defendant-Appellant.

______________________________

Submitted March 4, 2014 – Decided 

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 

APPROVED FOR PUBLICATION

April 24, 2014

APPELLATE DIVISION

April 24, 2014
2 A-1889-12T2

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, 408 N.J. 

Super. 177 (App. Div. 2009), aff'd o.b., 203 N.J. 160, cert. 

denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (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, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966).
3 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, 321 N.J. Super. 154, 

170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The 

record includes the testimony of defendant and several police 

officers from the pre-trial hearing on the motion to suppress, 
4 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.
5 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. 
6 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.
7 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 
8 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 
9 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 
10 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 readminister 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 
11 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.
12 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, 198 N.J. 145 (2009), and was entitled to 

PCR under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
13 A-1889-12T2

2052, 80 L. Ed. 2d 674 (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, 127 N.J. 328, 

338 (1992).
14 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, 198 N.J. at 157-58. 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 

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. 

Ed. 2d at 693 (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 
15 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 Strickland, supra,

466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 

(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 
16 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)
17 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, 211 

N.J. 4, 15-26, 29-30 (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., 397 N.J. Super. 91, 97 (App. Div. 2007), appeal dismissed, 

196 N.J. 459 (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 PostConviction Rights of Indigents, 85 N.J.L.J. 557, 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").
18 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 Slater, supra, 198 N.J.

at 158 ("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, 105 N.J. 42, 57-58 (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, 212 N.J. 518, 540 

(2013) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). 

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

by the four-factor test in Slater, supra. No one factor is 

dispositive, nor must a movant satisfy all four. 198 N.J. at 

162. 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." Id. at 155. 

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
19 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, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 

88 L. Ed. 2d 203, 210 (1985); see also State v. Gaitan, 209 N.J.

339, 351 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 

185 L. Ed. 2d 361 (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, 129 N.J. 451, 459 (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" 
20 A-1889-12T2

standard in Rule 3:9-3(e), while postsentence 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, 198 N.J. at 158.]

"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, 405 N.J. Super. 149, 160 (App. Div. 2009) (citing State 

v. McQuaid, 147 N.J. 464, 485-87 (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. 
21 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, 161 N.J. 416, 444-46 (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 
22 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, 559 

U.S. ___, ___, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 

(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, 645 F.3d 630, 643 

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

States, ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (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." Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1483, 

176 L. Ed. 2d at 295 (internal quotation marks and citations 

omitted). 

In State v. Nuñez-Valdéz, 200 N.J. 129 (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, id. at 133, 

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

with any assertion of innocence." Id. at 149. Neither the 
23 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, 140 N.J. 366, 378 (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 Simon, supra, 161 N.J. at 444

(citing State v. Smullen, 118 N.J. 408, 416 (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, 411 N.J. Super. 91, 99 (App. Div. 2009) 

(citing Slater, supra, 198 N.J. at 164). 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, 210 N.J. 429, 448 (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 
24 A-1889-12T2

factual findings. Nash, supra, 212 N.J. at 540. Moreover, 

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

hearings." Preciose, supra, 129 N.J. at 462. 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, 181 N.J.

391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct.

2973, 162 L. Ed. 2d 898 (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." 

Slater, supra, 198 N.J. at 158. 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. Munroe, supra, 210 N.J.

at 446 (holding that the court misapplied Slater factor one). 
25 A-1889-12T2

"Rather, the issue is whether defendant raised a colorable claim 

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

Ibid. A court must consider whether "defendant 'presented 

specific, potentially plausible facts' of his innocence." Id.

at 446-47 (quoting Slater, supra, 198 N.J. at 162-63).

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, 

205 N.J. 472, 487 (2011); State v. Moore, 122 N.J. 420, 431 

(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, 211 

N.J. 157, 174 (2012); N.J.S.A. 2C:4-1. 
26 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." 

Slater, supra, 198 N.J. at 159. 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." 

Simon, supra, 161 N.J. at 444. 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, 

215 N.J. 334, 362 (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 
27 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.

Cummings, supra, 321 N.J. Super. at 170. 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 
28 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." Nash, supra, 212 N.J. at 547 

(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." 

Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. 

Ed. 2d at 695. 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 
29 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." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 

2065, 80 L. Ed. 2d at 694-95. 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." Hill, supra, 474 U.S.

at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Her readiness to 

go to trial is plausible, because she had a plausible defense 
30 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 Mustaro, supra, 411 N.J. 

Super. at 106-07. 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." Padilla, supra, 559 U.S. at ___, 130 

S. Ct. at 1485, 176 L. Ed. 2d at 297. 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.