NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3436-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEWIS HOOPER,

Defendant-Appellant.

_________________________

Argued September 26, 2018 - Decided May 10, 2019

Before Judges Fuentes, Accurso and Moynihan.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 13-06-

0768.

John W. Douard, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; John W. Douard, of 

counsel and on the brief).

David M. Liston, Assistant Prosecutor, argued the 

cause for respondent (Andrew C. Carey, Middlesex 

County Prosecutor, attorney; David M. Liston, of 

counsel and on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

APPROVED FOR PUBLICATION

May 10, 2019

APPELLATE DIVISION
A-3436-16T3 2

Defendant Lewis Hooper appeals his sentence on a nine-count 

indictment and the trial court's denial of his motion to withdraw his open plea 

after sentencing based, in part, on a claim of ineffective assistance of counsel. 

Because we conclude the court must hold an evidentiary hearing on 

defendant's claim of ineffective assistance of counsel in connection with his 

plea, we reverse the order denying his motion and remand for that hearing. 

We also vacate defendant's sentence on account of the court's failure to address 

the Yarbough1factors after determining to impose an extended-term sentence 

and remand for resentencing, if necessary, following the hearing on 

defendant's motion to withdraw his plea.

In January 2013, defendant and two confederates, Chinikka Lockhart and 

Mohamed Kamara, agreed to arm themselves with a gun and go to the home of 

Mario Lombardo, Jr. to steal his marijuana. After Lombardo answered the 

door to Lockhart, defendant and Kamara stepped inside while Lockhart slipped 

back onto the porch. Defendant pointed the gun at Lombardo while Kamara 

rifled Lombardo's pockets. After Kamara wrested the marijuana from 

Lombardo, Lombardo fell backward as Kamara turned to flee. Before 

following Kamara out the door, defendant shot Lombardo. 

 

1

 State v. Yarbough, 100 N.J. 627, 643-44 (1985).
A-3436-16T3 3

The bullet struck Lombardo in the head, shattering his skull. After 

several surgeries and a year in the hospital, Lombardo, twenty-two years old at 

the time of the shooting, remains grievously injured. He is paralyzed on one 

side and cannot speak. Defendant claimed he shot Lombardo after seeing him 

reach toward his waistband, presumably for a gun. The State claimed 

defendant shot Lombardo to prevent him from identifying his assailants. Both 

the robbery and the shooting were captured, at least partially, on security 

cameras mounted in Lombardo's porch and front hall. Defendant can be seen 

firing the shot that struck Lombardo, but Lombardo is not visible in the frame. 

Defendant was indicted on charges of second-degree conspiracy to 

commit armed robbery and robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 

(count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); firstdegree robbery, N.J.S.A. 2C:15-1 (count three); first-degree attempted murder,

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) and (2) (count four); seconddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count five); 

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 

2C:39-4(a)(1) (count six); fourth-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(2) (count seven); third-degree hindering apprehension or prosecution of 

oneself, N.J.S.A. 2C:29-3(b)(4) (count eight); and third-degree hindering 

apprehension or prosecution of another, N.J.S.A. 2C:29-3(a)(7) (count nine). 
A-3436-16T3 4

Defendant, twenty-nine years old at the time of these offenses, was 

extended-term eligible. He had been convicted of third-degree theft committed 

in 2005, when he was twenty-one years old, and sentenced to probation in 

2006. In 2009, he violated probation by committing a drug offense. He 

pleaded guilty to the violation of probation and to third-degree possession of 

CDS and was sentenced in March 2010 to five years in State prison with a 

two-and-a-half-year parole ineligibility term. Because both crimes were 

committed within ten years of the offenses for which defendant was being 

sentenced in 2016, he qualified for extended-term sentencing as a persistent 

offender. See N.J.S.A. 2C:44-3(a).

Near the time of defendant's arraignment, the State offered to 

recommend a sentence of fifty years in exchange for defendant pleading guilty 

to conspiracy, armed robbery, robbery, attempted murder and unlawful 

possession of a weapon. Defendant rejected that offer.

That is where negotiations stood for nearly three years. On May 11, 

2016, however, the first assistant prosecutor wrote to defendant's counsel 

confirming their "recent conference" at which defendant "presented the State 

with a counter offer of twenty (20) years in a New Jersey State Prison." The 

letter confirmed the State's rejection of that offer but stated the writer "will 

present to the [victim's] family, a counter offer which will mandate the 
A-3436-16T3 5

defendant serving approximately thirty (30) years in a New Jersey State 

Prison." What happened next is detailed in two "affidavits"2 presented by 

defense counsel, the first assistant deputy public defender and her second 

chair, then an assistant deputy public defender, now a lawyer in private 

practice. 

Those lawyers aver that they attended a pre-trial conference on June 13, 

2016, where they discussed their plea negotiations with the prosecutor in the 

chambers of the trial judge. They contend "[t]he State's final offer was a 

thirty-year sentence subject to an eighty-five percent parole disqualifier under 

the No Early Release Act—a sentence that would have required Mr. Hooper to 

consent to be sentenced as a persistent offender, in other words, [to] a 

discretionary extended term." Counsel claim they responded by advising that 

defendant "was interested in a plea but not 30 years." The first assistant 

deputy public defender further claims she told the prosecutor she "would never 

advise [her] client to accept a plea that called for a discretionary extended 

term, particularly given his minimal prior record." Indeed, she had written to 

 

2

 Although styled as affidavits, the documents are not sworn or certified. See

R. 1:4-4. We note, however, and confirmed at oral argument, that the State 

does not challenge the accuracy of the statements regarding the substance of 

the conversation with the judge in chambers on June 13, 2016.
A-3436-16T3 6

defendant days earlier advising she intended to argue defendant was not 

extended-term eligible.3 

In response to her unwillingness to recommend defendant agree to be 

sentenced to an extended term, counsel avers the prosecutor suggested 

defendant could enter a guilty plea to multiple counts of the indictment with 

consecutive sentences. The defense lawyers claim the judge interjected "that 

he did not see it as a 'consecutive case,'" characterizing it "as a 'robbery gone 

bad,'" and "that this case would not result in consecutive sentences given the 

facts and circumstances." Counsel claim that following that conference, they 

"were confident that [the judge] would not run the counts consecutively, 

should Mr. Hooper choose to plead without a sentencing recommendation from 

the State." 

Accordingly, they met with their client three days later and "advised him 

that if the [j]udge finds that he meets the statutory criteria as a persistent 

offender, he could receive as much as the State's thirty year offer, but that the 

 

3

 Specifically, in that letter counsel advised defendant that although he was 

sentenced in 2006 for a conviction in 2005, he was resentenced on that matter, 

following a violation of his probation, in 2010. Counsel advised she 

"intend[ed] to argue that the resentencing controls and that [he was] not 

discretionarily extended term eligible." She further advised defendant that 

"[i]f the [j]udge agrees, your sentencing is limited to 10-20 years subject to 

NERA on the 1st Degree offenses. Of course the State could argue for 

consecutive sentences, however, the law is not on their side as this is one 

continuous event and one victim." 
A-3436-16T3 7

[j]udge was almost assuredly going to sentence him to something between ten 

and thirty years in State prison." The first assistant deputy public defender 

averred she told defendant 

that an open plea would result in a sentence between 

10 and 30 years, but would ultimately be left to [the 

judge]. We told him that since the current plea offer 

was 30 years, it was highly unlikely that the [j]udge 

would go above that number. We told Mr. Hooper 

that the [j]udge is never bound by plea offers, but 

since we had a conference, [the judge] was aware of 

the sentence that the State was recommending. 

Based on the advice of his counsel, defendant pleaded guilty the next day to all 

the counts in the indictment with no recommendation from the State. In the 

course of providing a factual basis for his plea, defendant agreed with his 

counsel that when the "robbery was concluded, there was some sort of struggle 

at the end of it." Defendant further agreed that he "perceived" the victim to be 

"reaching for something," which defendant thought "may have been a weapon" 

and thus shot him with the intent of killing him before the victim "kill[ed] 

[him] first." Defendant indicated he understood "the law of self-defense would 

not be available to [him] at trial" because, not only was he in the victim's 

home, he was "obviously, the initial aggressor." 

The judge engaged defendant in a thorough plea colloquy, in which he 

advised defendant his maximum sentencing exposure was sixty-one-and-a-half 

years, but if the court granted the State's extended-term motion, it could 
A-3436-16T3 8

sentence defendant to life in prison. The judge confirmed defendant had 

spoken with his counsel "about that possibility" and that counsel had answered 

all of his "questions about that possibility." The judge also took pains to 

ensure defendant understood what pleading "open" entailed, emphasizing "[s]o 

there's no expectation of you getting a 10 or a 15 or a 10 or a 30. It's — right 

now, it's completely open." Defendant agreed with the judge that defense 

counsel answered all his "what if" questions and had given him "their best 

prediction of what may or may not happen in this case, based on their many 

years of experience" and that he was satisfied with their work on his behalf.

Prior to sentencing, the prosecutor filed a brief seeking a seventy-fiveyear prison term, including a fifty-five-year extended term for attempted 

murder and a consecutive twenty-year term for armed robbery, and supplied 

the court with the video of the robbery and shooting. The judge granted the 

State's motion for an extended term, rejecting defense counsel's argument that 

because defendant was resentenced on his 2006 theft conviction in 2010 

following his violation of probation, on the same day he was sentenced on his 

conviction for possession of CDS, he effectively had only one prior conviction 

and was thus not extended-term eligible.4 

 

4

 Defense counsel argued at sentencing that "because a [violation of 

probation] is not a crime," when the court resentenced defendant on his 2006 

(continued)
A-3436-16T3 9

The judge also rejected counsel's argument that defendant shot 

Lombardo because defendant thought Lombardo was going for a gun, or that 

the court was bound to accept "[defendant's] version of the facts." Stating he 

"reviewed the videotape a number of times," the judge ruled he was entitled to 

judge defendant's credibility "like any other witness," and did "not [accept] 

Mr. Hooper's belated proffer that this was — self-defense." He thus rejected 

defendant's contention that mitigating factor four, substantial grounds tending 

to excuse or justify defendant's conduct, though failing to establish a defense, 

N.J.S.A. 2C:44-1(b)(4), was present and found aggravating factors three, the 

risk defendant would commit another offense; six, the extent of defendant's 

prior criminal record and the seriousness of the offenses of which he has been 

convicted; and nine, the need to deter, N.J.S.A. 2C:44-1(a)(3), (6) and (9), and 

no mitigating factors.

The judge merged for sentencing purposes defendant's convictions for 

conspiracy, robbery, armed robbery and possession of a handgun for an 

unlawful purpose and imposed an extended twenty-five-year prison term "on 

those counts," subject to the periods of parole ineligibility and supervision 

 

(continued)

theft conviction in 2010, "the conviction date for the theft from a person is 

now March 26th, 2010." Defense counsel explained his "position [was] that 

the March 26th, 2010 [judgment of conviction] supplants that 2006 conviction 

here," thereby leaving defendant with only the 2010 conviction on his record. 
A-3436-16T3 10

required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Concluding 

defendant shot the victim "purely gratuitous[ly]" after the robbery was 

completed, the judge declined to merge defendant's convictions for attempted 

murder and armed robbery, and further found that Yarbough, most notably its 

injunction against "free crimes," supported a consecutive sentence of a twentyyear NERA term on defendant's conviction for attempted murder. Yarbough, 

100 N.J. at 643. The judge imposed a second consecutive extended term of 

twelve years for unlawful possession of a weapon, with six years of parole 

ineligibility under the Graves Act, N.J.S.A. 2C:39-4(a), a concurrent four-year 

extended term for resisting arrest and consecutive seven-year extended terms 

on defendant's convictions for hindering apprehension or prosecution of 

himself and another to be served concurrent to one another, for an aggregate 

sentence of sixty-four years in State prison, forty-four of which were to be 

served without eligibility for parole. 

The judge explained the factor driving the sentence was that the offenses 

were committed while defendant was on parole. Addressing the aggravating 

factors, the judge found "it's not a question of if [defendant] will commit 

another crime, it's when he would commit another crime." Stating he had "no 

expectation and no hope" the sentence imposed would deter defendant, the 

judge expressed his expectation
A-3436-16T3 11

that the sentence I will impose — and I know the word 

will get out to the community; the media is not here 

because the media has priorities that are not always 

correct, and they don't always report on stuff that goes 

on in the courthouse. But I know that the number I 

impose today will go out. And by this evening, people 

in New Brunswick will know what number it is, and 

they're going to go, damn. Damn. Because that's the 

reaction I want from the sentence that I give: Damn, 

that's serious.

And maybe, just maybe, some other 

knucklehead out in New Brunswick, or anywhere else 

in this county, will think twice about doing what this 

defendant did. So the [c]ourt is putting extraordinary 

emphasis on deterring others from violating the law.

Five days after the initial sentencing, and before the judgment of 

conviction was entered, the judge corrected and restated the sentence by 

reducing the twelve-year extended term for unlawful possession of a weapon 

to an ordinary maximum term of ten years with five years of parole 

ineligibility, reducing the four-year extended term for resisting arrest to an 

ordinary term of eighteen months and reducing the two seven-year extended 

terms for hindering prosecution to ordinary maximum terms of five years each, 

thus bringing the sentence into line with N.J.S.A. 2C:44-5(a)(2), which 

"expressly and unequivocally states that no more than one extended term 

sentence may be imposed in a single sentencing proceeding." State v. 

Robinson, 217 N.J. 594, 605 (2014). 
A-3436-16T3 12

The judge also clarified the three counts for resisting and hindering 

would run concurrent to one another but consecutive to the merged counts, as 

well as to the successive consecutive terms issued on the counts for attempted 

murder and unlawful possession of a handgun and imposed appropriate fines 

and penalties not imposed when the judge pronounced the sentence. The 

amended sentence thereby reduced defendant's aggregate sentence to sixty 

years, leaving the parole ineligibility term of forty-four years unchanged. The 

judge filed an amended judgment of conviction the following week to specify 

the sole extended term was imposed on merged count two, defendant's 

conviction for armed robbery. See State v. Thomas, 195 N.J. 431, 437 (2008) 

(underscoring the need to explain imposing an extended term on a particular 

count).

Defendant filed a prompt motion to withdraw his plea, supported by the 

"affidavits" of his counsel described above and his own certification. 

Defendant described the "several communications" with his counsel that 

prompted his decision to plead to the indictment, including the June 3, 2016 

letter in which counsel "predicted that based on their interpretation of the law 

[his] sentence for all charges would be between 10 and 20 years NERA." He 

also described his meeting with his lawyers on June 16, 2016, in which they 

urged him to plead to the indictment without a recommendation from the State. 
A-3436-16T3 13

Defendant claimed he did not recall counsel advising him at that meeting 

"that the State would recommend that a custodial term not exceed 30 years 

with 85% parole ineligibility," but did remember "them telling [him] that 

under no circumstances would the [c]ourt sentence [him] to greater than 30 

years." He averred counsel "further advised that based on conversations with 

the [c]ourt in chambers[,] the [c]ourt was likely to sentence [him] to a sentence 

significantly less than 30 years if [he] pled to the Indictment." Defendant 

claimed he relied on his counsel's "legal knowledge to believe that [he] was 

not extended term eligible nor facing consecutive sentencing for the separate 

charges on the Indictment" when he waived his right to trial and entered an 

open plea to the indictment. 

The Public Defender's Office appointed outside counsel who briefed and 

argued the motion on defendant's behalf. Designated counsel contended the 

representation defendant received from the Public Defender in connection with 

his plea was "grossly deficient." He argued plea counsel erroneously believed, 

and argued to the court, that the court was confined to defendant's version of 

the facts in imposing sentence and could not consider other information, such 

as the video, which contradicted his story.5 Counsel also contended plea 

 

5

 Plea counsel relied for that proposition on our opinion in State v. Sainz, 210 

N.J. Super. 17, 26 (App. Div. 1986), holding that "[w]hen the conviction is the 

(continued)
A-3436-16T3 14

counsel "improperly relied, apparently, on conversations that took place in 

chambers which led them to believe that [defendant] was not going to get a 

consecutive sentence" and erroneously concluded "that somehow [defendant] 

was not eligible even to be considered as extended term eligible, when . . . he 

clearly was." Counsel argued plea counsel should have, at the very least, made 

a motion to have the court decide whether defendant was extended-term 

eligible before counseling him to enter an "open" plea and not waited to test 

their legal theory until defendant's sentencing date.6 

Designated counsel further asserted plea counsel never explained to 

defendant that he could accept the State's thirty-year offer and argue for less 

time. Instead, he claimed "[t]he direct opposite was conveyed to [defendant], 

 

(continued)

result of a plea, the judge may not make findings regarding the offense and the 

defendant's role therein that are inconsistent with the factual basis that the 

defendant has given or has acknowledged," apparently not realizing the 

Supreme Court disagreed with us on that point. See State v. Sainz, 107 N.J. 

283, 292 (1987). The Sainz Court made clear that "[w]hen a trial court 

imposes a sentence based on defendant's guilty plea, the defendant's 

admissions or factual version need not be the sole source of information for the 

court's sentencing decision," but it may instead "look to other evidence in the 

record when making such determinations," so long as "the court not sentence 

defendant for a crime that is not fairly embraced by the guilty plea." Id. at 

293. 

6

 We note plea counsel should also undoubtedly have made resort to Rule 3:9-

3(c) and secured the judge's agreement to memorialize on the record his 

conditional indication about the sentence before counseling defendant in 

reliance on the judge's remarks in chambers.
A-3436-16T3 15

which was if you accept the 30 years, that's what you're going to get, you can't 

do better." Plea counsel thus erroneously advised defendant he had no realistic 

exposure to a sentence longer than the thirty years the State was offering, but 

"[t]he only way you can do better is to plead open" to the entire indictment. 

Designated counsel pointed out that had defendant entered a negotiated 

plea in exchange for a recommended thirty-year sentence the court 

subsequently determined it could not impose, defendant would have been 

permitted to withdraw his plea. He argued the same result should apply here 

where defendant, based on bad advice, rejected a thirty-year sentence the court 

obviously thought inadequate, resulting in defendant pleading "open" and the 

court sentencing him to a term twice as long. 

Contending defendant did not "validly give up his right to a trial" but 

only pleaded guilty based on patently erroneous legal advice, designated 

counsel argued defendant should be permitted an immediate evidentiary 

hearing on his application to withdraw his plea based on his counsel's 

ineffective assistance. Counsel advised the court he was ready to proceed as 

plea counsel were present in court and prepared to testify. 

The court declined to entertain defendant's allegations of ineffective 

assistance or "treat[] this as a [motion] for post-conviction relief," declaring 

such claims "premature." The judge rejected any suggestion that counsel's 
A-3436-16T3 16

impression of a conversation in chambers somehow converted the open plea to 

a conditional one, stating "there was no representation by the [c]ourt in any 

way, shape, or form, in any setting, in chambers or in court, as to what the 

sentence would be. . . . Conversation is not a representation." The judge also 

rejected counsel's suggestion that the court should have permitted defendant to 

withdraw his plea upon concluding the thirty-year sentence the State was 

willing to recommend was inadequate, notwithstanding that defendant had 

rejected the State's offer, stating no case imposed such a responsibility on a 

sentencing court. 

Applying the Slater7factors, the judge concluded defendant had not 

asserted a colorable claim of innocence, the existence of the open plea 

"militate[d] against him" and prejudice to the State was "not an overwhelming 

issue, so it [did] not drive." The judge stated the focus was on Slater's second 

factor, defendant's reasons for withdrawing his plea. The judge characterized 

those reasons as defendant's lawyers' "predictions as to what the law may be, 

not affirmative misstatements of the law," which predictions "did not bear 

fruit" and were not sufficient to justify relief. 

 

7

 State v. Slater, 198 N.J. 145 (2009). The four Slater factors are: "(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." Id. at 157-58.
A-3436-16T3 17

We removed defendant's appeal from the limited sentencing calendar 

under Rule 2:9-11 to a plenary calendar at defendant's request. He now raises 

the following issues for our consideration:

POINT I 

THE MOTION JUDGE ERRED IN DENYING MR. 

HOOPER'S MOTION TO WITHDRAW HIS PLEA 

WHERE HE RELIED ON HIS ATTORNEYS' 

MISLEADING LEGAL ADVICE, RESULTING IN A 

GUILTY PLEA THAT WAS NOT KNOWINGLY 

AND INTELLIGENTLY ENTERED, PURSUANT 

TO STATE V. KOVACK AND R. 3:9-2. 

MOREOVER, CONTRARY TO THE JUDGE'S 

FINDING, THE WEIGHT OF THE SLATER

FACTORS SUPPORT A PLEA WITHDRAWAL. 

THEREFORE, MR. HOOPER'S GUILTY PLEA 

CANNOT STAND. U.S. CONST. AMENDS. V, VI, 

AND XIV; N.J. CONST. ART. I, ¶¶ 1, 10.

A. Because There Was No "Meeting Of The 

Minds" About The Possible Consequences 

Of An Open Plea, Mr. Hooper Did Not 

Enter Into A Valid Plea Bargain.

B. The Judge Failed To Properly Analyze 

The Slater Factors.

C. Conclusion.

POINT II

THE JUDGE ABUSED HIS DISCRETION IN 

IMPOSING BOTH AN EXTENDED-TERM 

SENTENCE AND THREE CONSECUTIVE TERMS, 

FOR AN AGGREGATE PRISON TERM OF SIXTY 

YEARS, FOR OFFENSES THAT OCCURRED IN 

THE COURSE OF COMMITTING A SINGLE 
A-3436-16T3 18

ROBBERY, RESULTING IN A SENTENCE FAR IN 

EXCESS OF THE ORIGINAL PLEA OFFER OF A 

THIRTY-YEAR PRISON TERM.

There is no rule that claims of ineffective assistance must await a postconviction relief proceeding or cannot be raised on direct appeal.8

 See State v. 

Preciose, 129 N.J. 451, 459-61 (1992). Criminal defendants are often not 

aware they possess a meritorious claim of ineffective assistance until well after 

trial and appeal, Kimmelman v. Morrison, 477 U.S. 365, 378 (1986), and our 

Supreme Court has termed such claims "particularly suited for post-conviction 

review because they often cannot reasonably be raised in a prior proceeding," 

Preciose, 129 N.J. at 460. We commonly do not hear ineffective assistance 

claims on direct appeal because the claims ordinarily "involve allegations and 

evidence that lie outside the trial record." State v. Castagna, 187 N.J. 293, 313 

(2006) (quoting Preciose, 129 N.J. at 460). The Court, however, has been 

clear an appellate court may consider claims of ineffective assistance on direct 

appeal "when the trial itself provides an adequately developed record upon 

which to evaluate [a] defendant's claims." Ibid.; see State v. Allah, 170 N.J. 

269, 285 (2002) (noting a defendant should not be required to wait until post-

 

8

 Indeed, the Supreme Court requires that claims of ineffective assistance of 

counsel in termination of parental rights cases be raised on direct appeal. See

R. 2:10-6; R. 5:12-7; N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 

301, 311 (2007).
A-3436-16T3 19

conviction relief to raise an ineffective assistance claim when the trial record 

discloses the facts essential to the claim); see also Pressler & Verniero, 

Current N.J. Court Rules, cmt. 1.1 on R. 3:22-2 (2019) (If "the issue of 

ineffectiveness can be determined on the trial record alone, it is appropriately 

raised and disposed of either on a new trial motion or on direct appeal.").

Here, as the end of the first sentencing transcript makes plain, defendant 

became aware of his ineffective assistance claim immediately upon the court's 

pronouncement of sentence. Further, he presented his affidavit and the 

statements of his plea counsel detailing their erroneous advice to him on the 

motion to withdraw his plea. As was apparent from the motion papers, and 

underscored by designated counsel at argument, defendant's post-sentence 

application to the trial court was both a motion to withdraw his plea under 

Slater and a claim of ineffective assistance of counsel under Strickland.

9

 As 

we have previously made clear, "[t]he two requests for relief are distinct" and 

"must be considered separately." State v. O'Donnell, 435 N.J. Super. 351, 368 

(App. Div. 2014). Thus, under these circumstances, the trial court erred when 

it refused to consider defendant's claim of ineffective assistance of counsel 

merely because it was raised in conjunction with a motion to withdraw his plea 

after sentencing and not in a PCR proceeding. 

 

9

 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
A-3436-16T3 20

Moreover, applying a de novo standard of review to the denial of 

defendant's ineffective assistance claim, as we are bound to do here as the trial 

court found it not cognizable, see State v. Harris, 181 N.J. 391, 415 (2004) 

(noting a reviewing court owes no deference to a trial court's legal 

conclusions), we cannot conclude the error was an insignificant one. To 

succeed on a claim of ineffective assistance, a defendant must establish, first, 

that "counsel's representation fell below an objective standard of 

reasonableness" and, second, that "there is a reasonable probability that, but 

for counsel's unprofessional errors, the result of the proceeding would have 

been different." Strickland, 466 U.S. at 687-88. When a defendant's 

conviction rests on a guilty plea, the focus of the prejudice prong is "whether 

counsel's constitutionally ineffective performance affected the outcome of the 

plea process." Hill v. Lockhart, 474 U.S. 52, 59 (1985). In order to obtain 

relief, a defendant "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). 

Applying that standard here, we are satisfied defendant established a 

prima facie case of ineffective assistance of counsel entitling him to an 

evidentiary hearing. See Preciose, 129 N.J. at 462-63 (explaining a prima 

facie claim of ineffective assistance of counsel requires a defendant to 
A-3436-16T3 21

demonstrate a reasonable likelihood of success under Strickland). Defendant 

rejected what his lawyers represented was a plea offer from the State that 

would have resulted in a thirty-year NERA term because his lawyers thought 

thirty years excessive. Four days later, on advice of those same lawyers, 

defendant entered an "open plea,"

10 which exposed him to a NERA term over 

twice that long and to a possible extended term of life in prison. 

Defendant, backed by the statements of his plea counsel, contends he 

made that decision, patently irrational on its face, based on their incompetent

legal advice that he was not extended-term eligible and that consecutive terms 

were not appropriate on the facts, a view the judge endorsed in remarks he 

made to counsel in chambers. Defendant claims he entered his plea with the 

understanding he would likely be sentenced to a term of between ten to twenty 

years, but that his exposure was capped at thirty years, subject to NERA. 

Viewed in the light most favorable to defendant, see State v. Jones, 219 N.J. 

298, 311 (2014), these facts established a prima facie showing of ineffective 

assistance of his counsel in connection with his open plea, entitling him to an 

evidentiary hearing on his claim.

 

10

 An "open plea" is one not including "a recommendation from the State, nor 

a prior indication from the court, regarding sentence." State v. Kates, 426 N.J. 

Super. 32, 42 n.4 (App. Div. 2012), aff’d, 216 N.J. 393 (2014).
A-3436-16T3 22

The State, however, argues it never actually extended the offer 

recommending a thirty-year NERA term because defense counsel made clear it 

would not be accepted. The State acknowledges it sent a letter to defendant's 

counsel about presenting a thirty-year term to the victim's family, but asserts 

"the letter was intended to tell defense counsel that if defendant made a 

counteroffer of thirty years, the prosecutor would discuss the offer with the 

victim's family." The State contends that as defendant never counteroffered, 

"a thirty-year sentence . . . was thus never approved by the State as a term of 

any proposed plea arrangement." The letter states in pertinent part:

Please allow this letter to confirm our recent 

conference regarding the [State v. Hooper] matter. 

During that conference, you presented the State with a 

counter offer of twenty (20) years in a New Jersey

State Prison. That counter offer was respectfully 

rejected. Thereafter, the undersigned has had further 

discussions with the family of the victim in this 

matter. Based upon those discussions, the 

undersigned will present to the family, a counter offer 

which will mandate the defendant serving 

approximately thirty (30) years in a New Jersey State 

Prison. 

An evidentiary hearing will permit the court to consider the testimony of 

all counsel to resolve that dispute of fact and determine whether a 

recommended thirty-year sentence was realistically available to defendant 
A-3436-16T3 23

before he entered his open plea.11 It will also provide defendant an 

opportunity to explain why the plea colloquy was not inconsistent with the 

advice his counsel provided him that an open plea was his only opportunity to 

get a lesser sentence than what the State was offering. See State v. Kovack, 91 

N.J. 476, 482-84 (1982). 

An evidentiary hearing may also inform the court's consideration of 

Slater factor two, the nature and strength of defendant's reasons for wishing to 

withdraw his plea. Although we see the case as primarily one of ineffective 

assistance, as designated counsel obviously did at argument on the motion, 

defendant also made a Slater motion, requiring the court to consider each 

separately under O'Donnell, 435 N.J. Super. at 368. 

In that context, we are not convinced plea counsel's statements to 

defendant about whether he was eligible for extended-term sentencing and his 

exposure to consecutive sentences, if credible, constituted a "prediction" based 

on counsel's "experience and instinct," which will not support withdrawal of a 

guilty plea, as was counsel's prediction about the likelihood of a death 

 

11 We are not convinced the State's actual extension of a thirty-year offer is a 

critical factor here in light of the statements by defense counsel that they 

understood a thirty-year NERA term to be the State's final offer and based

their advice to defendant on that understanding. If, however, that offer was 

not realistically available, the court must consider the fact in assessing whether 

defendant was prejudiced by his counsel's advice. See Strickland, 466 U.S. at 

687.
A-3436-16T3 24

sentence in State v. DiFrisco, 137 N.J. 434, 455 (1994). The statements, at 

least as they appear in the certification by defendant and the statements of his 

counsel, may well be closer to the misinformation about eligibility for a death 

sentence provided to the defendant in State v. Kiett, 121 N.J. 483, 489 (1990); 

that is, statements based on concrete legal facts about defendant's eligibility 

for extended-term sentencing and exposure to consecutive terms. 

On remand, the court must take testimony and consider the actual advice 

plea counsel gave defendant to induce him to reject a recommended thirty-year 

prison term and instead plead to the indictment, thereby exposing him to a life 

term, so that he might secure a more favorable sentence than the one the State 

was willing to recommend. The court must thereafter determine whether 

defendant was misinformed in entering his plea. 

The trial court held that defendant's claim of ineffective assistance could 

be adequately addressed within the Slater framework. The State argues on 

appeal that the difference between "a motion for an evidentiary hearing [on an 

ineffective assistance of counsel claim] and a motion to withdraw a guilty plea 

is a distinction without a difference" because the ultimate relief defendant 

sought, to withdraw his guilty plea, is the same regardless of how he styled his 

motion. Both positions are legally incorrect. As we explained in O'Donnell, 

"[t]he two applications implicate different but overlapping rights." 435 N.J. 
A-3436-16T3 25

Super. at 369. A defendant's motion to withdraw a guilty plea implicates 

fundamental rights to liberty as well as due process. See Slater, 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."). A claim of 

ineffective assistance, in contrast, is grounded in the Sixth Amendment right to 

counsel. See Strickland, 466 U.S. at 685 ("The Sixth Amendment recognizes 

the right to the assistance of counsel because it envisions counsel's playing a 

role that is critical to the ability of the adversarial system to produce just 

results.").

Ineffective assistance claims and motions to withdraw a plea are also 

governed by different tests and reviewed under different standards. A trial 

court decides a plea withdrawal motion guided by the four-factor test in Slater. 

State v. McDonald, 211 N.J. 4, 16 (2012). Here, because defendant made his 

motion after sentencing, he must show his conviction was "manifestly unjust."

Slater, 198 N.J. at 156 (citing R. 3:21-1). We will thus reverse the denial of a 

motion to withdraw a guilty plea "only if there was an abuse of discretion 

which renders the lower court's decision clearly erroneous." State v. Simon, 

161 N.J. 416, 444 (1999). By contrast, ineffective assistance of counsel claims 

are decided under the familiar two-prong Strickland standard, adopted by our 

Supreme Court in State v. Fritz, 105 N.J. 42, 60-61 (1987). Although we 
A-3436-16T3 26

defer to a trial court's factual assessment of the claims where an evidentiary 

hearing was conducted, State v. Nash, 212 N.J. 518, 540 (2013), in the absence 

of an evidentiary hearing, a reviewing court may exercise de novo review of 

"the factual inferences drawn from the documentary record." Harris, 181 N.J. 

at 421. The trial court's legal conclusions are not entitled to any deference. Id.

at 415.

As we noted in O'Donnell, a defendant may be able to prevail on one of 

these claims but not the other. 435 N.J. Super. at 370-71. Here, defendant's 

lack of any colorable claim of innocence and the "manifestly unjust" standard 

triggered by the timing of his motion could overshadow the misinformation he 

received from his lawyers as a reason for withdrawing his plea, making 

success on a Slater motion difficult. Because defendant need not assert a 

colorable claim of innocence to establish ineffective assistance under 

Strickland, but only that a decision to have rejected a realistically available 

thirty-year recommended sentence in favor of an open plea "would have been 

rational under the circumstances," Padilla, 559 U.S. at 372, defendant's 

likelihood of success on his ineffective assistance claim is much higher. 

Most important here, there was no good reason on the record before it

for the trial court to have insisted defendant file an appeal and then a petition 

for PCR in order to have his ineffective assistance claim heard, instead of 
A-3436-16T3 27

hearing it along with defendant's Slater motion. See Allah, 170 N.J. at 285. 

We acknowledge that situations such as the one we confront in this case, 

where the record on the post-trial motion contains all the facts necessary to 

establish a prima facie case of ineffective assistance of counsel, are rare. But 

when circumstances permit, a defendant is entitled to the court's prompt review 

of the claim. Ibid. 

To be clear, we do not hold the trial court judge erred by refusing to 

consider defendant's ineffective assistance of counsel claim as a PCR 

application or that the judge should have heard a PCR claim along with 

defendant's Slater motion. Ineffective assistance of counsel is not a synonym 

for a PCR claim. Although ineffective assistance of counsel claims are most 

often heard in a PCR proceeding, see Preciose, 129 N.J. at 460, conflating the 

two is not helpful to understanding either. An ineffective assistance of counsel 

claim is simply one variety of the several claims a defendant may assert 

alleging "[s]ubstantial denial in the conviction proceedings of defendant's 

rights under the Constitution of the United States or the Constitution or laws of 

the State of New Jersey," one of the four grounds for relief cognizable in a 

PCR proceeding. R. 3:22-2; see State v. Goodwin, 173 N.J. 583, 593 (2002). 

Defendant could not file a PCR petition with his Slater motion in this 

case because the court rules do not permit it. See R. 3:22-3 (noting a PCR 
A-3436-16T3 28

petition is not "a substitute for appeal from conviction or for motion incident 

to the proceedings in the trial court, and may not be filed while such appellate 

review or motion is pending." (emphasis added)). But there was no 

impediment to the trial court judge considering defendant's ineffective 

assistance claim on defendant's post-sentence motion to withdraw his plea. Cf.

State v. Johnson, 365 N.J. Super. 27, 30-31, 34 (App. Div. 2003) (reviewing 

evidentiary hearing on ineffective assistance of counsel claim on defendant's 

motion for new trial prior to sentencing). 

A defendant simply cannot be forced to wait to bring an ineffective 

assistance claim in a PCR proceeding down the road when there is already "an 

adequately developed record upon which to evaluate defendant's claims." 

Castagna, 187 N.J. at 313. Hearing the claim while the matter remains 

pending in the trial court promotes judicial economy and avoids the waste of 

time and resources. Above all, it allows the court to expeditiously address a 

potential miscarriage of justice. As the United States Supreme Court has 

admonished, "if the right to counsel guaranteed by the Constitution is to serve 

its purpose, defendants cannot be left to the mercies of incompetent counsel, 

and . . . judges should strive to maintain proper standards of performance by 

attorneys who are representing defendants in criminal cases in their courts." 
A-3436-16T3 29

McMann v. Richardson, 397 U.S. 759, 771 (1970). When such matters can be 

addressed while the case remains pending in the trial court, they should be.

We add here that we do not expect this opinion to open "the floodgates" 

to evidentiary hearings on ineffective assistance claims on plea-withdrawal 

motions. We anticipate it will continue to be rare for defendants making such 

motions to muster the proofs necessary to establish a prima facie case of 

ineffective assistance of counsel requiring an evidentiary hearing. See

Preciose, 129 N.J. at 462-63. Here, for example, that showing required the 

Public Defender to immediately appoint new counsel, who proffered the 

affidavits of plea counsel cataloging the erroneous advice they provided 

defendant. We do not often see prima facie claims of ineffective assistance of 

counsel on plea-withdrawal motions precisely because of the difficulties in 

establishing the necessary proofs at this stage of the proceedings. See

McDonald, 211 N.J. at 29-30. This opinion should not change that. It holds 

only that when the record in the trial court contains the facts necessary to

evaluate a defendant's claim that his counsel's ineffective assistance resulted in 

his guilty plea, the court must consider the claim on the plea-withdrawal 

motion and not defer it to a PCR proceeding.

We turn now to consider counsel's reliance on comments the trial judge 

allegedly made in chambers about the sentence. Although we agree with the 
A-3436-16T3 30

judge that no published case imposed an obligation on him to permit defendant 

to withdraw his plea after the court determined it could not sentence him to the 

thirty-year recommended term defendant rejected in favor of an open plea, we 

are nevertheless concerned about the fairness of what occurred here. Rule

3:21-1 permits a court to allow a defendant to withdraw his guilty plea after 

sentencing in order to correct a "manifest injustice." The Supreme Court has 

made clear "[t]hat discretionary determination necessitates a weighing of 'the 

policy considerations which favor the finality of judicial procedures against 

those which dictate that no man be deprived of his liberty except upon 

conviction after a fair trial or after the entry of a plea of guilty under 

circumstances showing that it was made truthfully, voluntarily and 

understandably.'" State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. 

McQuaid, 147 N.J. 464, 487 (1997)). 

We are mindful, as the trial judge stated on the record during colloquy 

on the motion, that an off-the-record "[c]onversation is not a representation." 

Nevertheless, the statements a judge makes about a potential sentence, whether 

on the record or in chambers, matter. Rule 3:9-3(c) is designed to permit a 

judge, on consent of the parties, to indicate to counsel the maximum sentence 

the judge would impose in the event of a guilty plea. When the Rule is not 

invoked and the court is not "invited in," as it was not here, a defense attorney 
A-3436-16T3 31

cannot responsibly counsel a client in reliance on a judge's comments about a 

potential sentence. Because defendant was not entitled to rely on the judge's 

comments about a potential sentence, he could not hope to enforce a 

conditional sentence based on the judge's remarks. The Rule should not, 

however, relieve a judge of the obligation to speak carefully about any

potential sentence whether in chambers or on the record. 

Thus, although defendant cannot compel the court to take any action

based on its remarks about the sentence outside the confines of Rule 3:9-3(c), 

the judge should, nevertheless, consider whether counsel's reliance on those 

remarks, whether reasonable or not, caused them to seriously misadvise their 

client. If so, the judge should also consider whether fundamental fairness 

requires defendant be permitted to withdraw his plea under Rule 3:21-1. See

State v. Ancrum, 449 N.J. Super. 526, 540 (App. Div.), certif. denied, 231 N.J. 

222 (2017) (vacating guilty plea on the basis of fundamental fairness where the 

defendant detrimentally relied on the trial court's mistaken interpretation of 

sentencing law in entering his plea). We do not predict the outcome of that 

inquiry. A judge's ability to probe and test the parties' positions is often an 

essential aid to a negotiated resolution of a case. We note only that judges 

expect the government to "turn square corners." F.M.C. Stores Co. v. Borough 
A-3436-16T3 32

of Morris Plains, 100 N.J. 418, 426 (1985). We should accept nothing less in 

ourselves. 

We conclude our discussion on this point with a final observation. The 

alleged remarks by the judge that the case did not appear one to justify 

consecutive sentences, on which defendant's lawyers claim they relied to 

counsel defendant to reject a recommended thirty-year sentence and instead 

enter an open plea to the indictment, were made before the court viewed the 

video of the robbery and shooting in preparation for entering sentence. 

Viewing the video after the plea, which the judge said he watched "a number 

of times," apparently caused him to change his mind about whether this was 

indeed a "robbery gone bad." If that was the case, and the judge's view about 

an appropriate sentence was greatly altered by evidence beyond the facts 

described in defendant's allocution, defendant would be entitled to challenge 

the reliability of that evidence.12 See State v. Hupka, 203 N.J. 222, 241 

(2010). He may thus do so on remand in the event he is not permitted to 

withdraw his plea.

 

12

 The State at sentencing argued defendant shot the victim while he lay on his 

back on the floor. Defense counsel argued the physical evidence, most notably 

a bullet fragment lodged in the foyer wall, supported defendant's claim that the 

victim was standing when defendant shot him.
A-3436-16T3 33

That brings us to defendant's sentence. Although we agree defendant 

was extended-term eligible, we also note he was twenty-nine years old at the 

time of these offenses and only minimally qualified based on his two prior 

third-degree convictions for theft from a person and drug possession. The 

court initially imposed four extended terms in sentencing defendant, an 

obvious violation of N.J.S.A. 2C:44-5(a)(2). See State v. Pennington, 154 N.J.

344, 360-61 (1998). Although the court corrected that illegality, imposing the 

extended term only on the armed robbery count, it never adequately explained 

why a sentence beyond the ordinary term for armed robbery was necessary in 

light of defendant's minimal prior record or its reasons for imposing 

consecutive, maximum terms for attempted murder, unlawful possession of a 

handgun and the two counts of hindering. 

Further, reviewing the transcript, we are not confident the court adhered 

to the Supreme Court's admonition in State v. Miller, 108 N.J. 112, 122 

(1987), that "factors relied on to sentence a defendant to the maximum term for 

each offense should not be used again to justify imposing those sentences 

consecutively." In sentencing defendant to an extended term on a first-degree 

crime and multiple maximum consecutive terms, the court failed to explain 

how its expressed desire to make defendant's sentence an extreme example so 

as to serve as a warning for others was consistent with a "focus on the fairness 
A-3436-16T3 34

of the overall sentence." Id. at 121. Accordingly, we vacate defendant's 

sentence and remand for resentencing, if necessary, consistent with the general 

policies of the Code and judicial sentencing guidelines. See State v. Ghertler, 

114 N.J. 383, 390-91 (1989); Yarbough, 100 N.J. at 643-44. 

In sum, we reverse the denial of defendant's motion to withdraw his plea 

and his claim of ineffective assistance of counsel in connection with the plea 

and remand for an evidentiary hearing in which the court must take testimony 

and consider both claims. We also vacate defendant's sentence and remand for 

resentencing in the event defendant is not permitted to withdraw his guilty 

plea. 

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.