SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4507-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS DORSETT,

Defendant-Appellant.

_______________________

Argued May 3, 2021 – Decided August 2, 2021

Before Judges Sabatino and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 11-01-

0207.

John P. Pieroni argued the cause for appellant.

Mary R. Juliano, Assistant Prosecutor, argued the cause 

for respondent (Christopher J. Gramiccioni, Monmouth 

County Prosecutor, attorney; Mary R. Juliano, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-4507-18

Defendant Thomas Dorsett appeals from the January 28, 2019 order of the 

Law Division denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing and his application to withdraw his guilty plea to firstdegree murder and first-degree arson for hire. We affirm.

I.

The following facts are derived from the record. In 2010, defendant

conspired with his daughter, codefendant Kathleen Dorsett, to kill her exhusband, with whom she was engaged in a custody dispute involving their young 

daughter. Defendant and Kathleen1 agreed that when the ex-husband transferred 

custody of the child to Kathleen at her home, she would convince him on a 

pretext to go behind the garage, where defendant would be waiting to kill him. 

After the murder, defendant and Kathleen put the victim's body in the trunk of 

a car, which defendant abandoned in a restaurant parking lot. Defendant

conspired with codefendant Anthony Morris to pay him to set fire to the car to 

destroy the victim's body.

Defendant and Kathleen were arrested on murder and other charges. 

Defendant retained private counsel to represent him. Initially, defendant 

1

 Because defendant and two of his codefendants share a last name, we refer to 

them by their first names. No disrespect is intended.
3 A-4507-18

discussed with his counsel the possibility of mounting a passion/provocation 

defense to reduce his murder charge to a manslaughter conviction. 

Passion/provocation manslaughter is a "homicide which would otherwise be 

murder . . . [that] is committed in the heat of passion resulting from a reasonable 

provocation." State v. Mauricio, 117 N.J. 402, 411 (1990) (quoting N.J.S.A. 

2C:11-4(b)(2)). Under this approach, defendant would argue that he fatally 

struck the victim after being provoked by him during an argument and Kathleen 

was not in involved in the death. According to an October 9, 2013 letter from 

defendant's counsel to defendant memorializing their pretrial strategy, the 

defense, if successful, would expose defendant to a shorter potential sentence 

and exonerate Kathleen.

However, Kathleen subsequently conspired from jail with her mother, 

codefendant Lesley Dorsett, to hire a hitman to kill the victim's mother. 

Unbeknownst to Kathleen and Lesley, the hitman was an undercover police 

officer and some of their conversations with him were recorded. After Lesley 

made a cash payment to the officer she too was arrested.

On January 31, 2011, a grand jury indicted defendant, charging him with: 

(1) first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a); 

(2) first-degree murder, N.J.S.A. 2C:11-3(a); (3) three counts of fourth-degree 
4 A-4507-18

tampering with physical evidence, N.J.S.A. 2C:28-6(1); (4) second-degree 

conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2 and 2C:17-1(a)(2); (5) 

first-degree arson for hire, N.J.S.A. 2C:17-1(d); (6) second-degree conspiracy 

to commit desecration of human remains, N.J.S.A. 2C:5-2 and 2C:22-1(a); (7) 

second-degree desecration of human remains, N.J.S.A. 2C:22-1(a); (8) thirddegree witness tampering, N.J.S.A. 2C:28-5(a); (9) third-degree conspiracy to 

commit financial facilitation, N.J.S.A. 2C:5-2 and 2C:21-25(e)(3); and (10) 

third-degree financial facilitation, N.J.S.A. 21:25(e)(3). The financial counts 

relate to bank transactions uncovered during the murder investigation.

The grand jury also indicted Kathleen charging her with the same offenses

lodged against defendant, except for first-degree conspiracy to commit 

aggravated arson, first-degree arson for hire, and third-degree witness 

tampering. She was also charged with first-degree conspiracy to commit murder 

(her former mother-in-law), N.J.S.A. 2C:5-2 and 2C:11-3, and first-degree 

attempted murder (her former mother-in-law), N.J.S.A. 2C:5-1 and 2C:11-3.

Finally, the grand jury indicted Lesley, charging her with first-degree 

conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3, first-degree 

attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, third-degree conspiracy to 
5 A-4507-18

commit financial facilitation, N.J.S.A. 2C:5-2 and 2C:21-25(e)(3); and thirddegree financial facilitation, N.J.S.A. 21:25(e)(3).2

Morris was indicted and charged with fourth-degree tampering with 

physical evidence, second-degree conspiracy to commit aggravated arson, firstdegree arson for hire, and second-degree conspiracy to commit desecration of 

human remains.

After a series of pretrial rulings, Morris entered a guilty plea to seconddegree conspiracy to commit desecration of human remains in exchange for his 

truthful testimony against the Dorsetts. The court ordered severance of 

defendants, so that defendant, Kathleen, and Lesley would be tried individually 

on all of the charges in the indictments against them.

The State offered all three defendants plea agreements. Each plea offer 

was contingent on the guilty pleas of the other two defendants. The offers 

required defendant to plead guilty to the murder of his former son-in-law and 

the subsequent arson for hire and Kathleen to plead guilty to the murder of her 

former husband, the attempted murder of the victim's mother, and a conspiracy 

charge. The State would recommend significant terms of incarceration for both. 

2

 Lesley was also charged with one count of fourth-degree tampering with 

physical evidence, N.J.S.A. 2C:28-6(1), which the court dismissed.
6 A-4507-18

In exchange, Lesley would plead guilty to conspiracy to commit murder and the 

State would recommend a relatively short term of imprisonment, giving her the 

chance to regain her freedom for a meaningful period after prison.

After Kathleen and Lesley's attempt to hire a hitman, defendant's counsel 

advised him that a passion/provocation defense, if successful, would not protect 

Kathleen and Lesley from exposure to significant prison terms. As counsel 

explained in his post-plea letter to defendant:

[I]f the entire case was limited to [the victim's] death 

the situation would have been significantly different. 

However, as you know, after Katie3 convinced Lesley 

to pay [the undercover officer] to eliminate [the 

victim's mother] the situation drastically changed. The 

defenses we had hoped to advance on your behalf which 

would have simultaneously exonerated Katie were no 

longer feasible. The conspiracy case against Lesley and 

Katie, considering the proofs and surrounding 

circumstances was very strong. Any leverage we had 

to negotiate a more favorable plea or to defend the 

original charges stemming from [the victim's] death 

were essentially eliminated. You did the right thing by 

your wife. She will get out and have a life.

On May 9, 2013, the three Dorsetts entered guilty pleas. Defendant 

pleaded guilty to first-degree murder and first-degree arson for hire. Kathleen 

pleaded guilty to first-degree murder, second-degree conspiracy to commit 

3

 Defendant's counsel referred to Kathleen as Katie.
7 A-4507-18

desecration of human remains, and first-degree attempted murder. Lesley 

pleaded guilty to first-degree conspiracy to commit murder.

At his plea allocution, defendant told the court he was pleased with the 

advice he received from his counsel, including advice regarding possible 

defenses. In addition, defendant admitted to intentionally murdering his former 

son-in-law in the following exchange with his counsel:

[COUNSEL]: And Katie was again telling you 

concerns she had and which was causing you to be 

angry towards [the victim]; was it not?

[DEFENDANT]: Yes.

[COUNSEL]: And that anger was developing over 

time?

[DEFENDANT]: Over time.

[COUNSEL]: And increasing over time. Correct?

[DEFENDANT]: Yes.

[COUNSEL]: In fact . . . you were really growing a 

deep disdain or anger towards [the victim]; were you 

not?

[DEFENDANT]: Yes.

[COUNSEL]: And then in July of 2010 . . . you 

learned that somebody had filed and you believed it was 

[the victim] . . . a DYFS complaint against you. Right?

[DEFENDANT]: Yes.
8 A-4507-18

[COUNSEL]: And he alleged that you were 

engaging in improper conduct and contact with [your 

granddaughter]. Right?

[DEFENDANT]: Yes.

[COUNSEL]: That, in fact infuriated you, didn't it?

[DEFENDANT]: Yes.

[COUNSEL]: Humiliated you. And DYFS 

investigated. Is that right?

[DEFENDANT]: Yes.

[COUNSEL]: And you felt victimized?

[DEFENDANT]: Yes.

. . . .

[COUNSEL]: So that only heightened your anger 

and your disdain towards [the victim]; did it not?

[DEFENDANT]: Yes.

. . . .

[COUNSEL]: In fact, you wanted him out of your 

life and out of your family's life?

[DEFENDANT]: Yes.

. . . .

[COUNSEL]: And you considered ways of getting 

him out of your life, including planting drugs on him 

and reporting him to the police. Right?
9 A-4507-18

[DEFENDANT]: Yes.

[COUNSEL]: And in fact even killing him?

[DEFENDANT]: Yes.

. . . .

[COUNSEL]: On August 16th, you were at Katie's 

in the morning. Right?

[DEFENDANT]: Yes.

[COUNSEL]: And that was one of [the victim's], if 

not his first overnight with [your granddaughter], it was 

early on after he was granted overnight visitation. 

Right?

[DEFENDANT]: Yes.

[COUNSEL]: And you really didn't want him to 

have that because you didn't think it was in the best 

interest of your granddaughter. Right?

[DEFENDANT]: Right.

[COUNSEL]: An on that day you were on the curb 

when [your granddaughter] was being dropped off. 

Right?

[DEFENDANT]: Yes.

. . . .

[COUNSEL]: And [the victim] went to the back 

area with you or where you were. Correct?

[DEFENDANT]: Yes.
10 A-4507-18

[COUNSEL]: And that was under the guise of 

getting tools?

[DEFENDANT]: Yes.

[COUNSEL]: That were, that he supposedly had 

left at her house. Right?

[DEFENDANT]: Yes.

[COUNSEL]: And you instigated an argument with 

him; did you not?

[DEFENDANT]: Yes.

[COUNSEL]: And at one point during that 

argument you picked up an item off the ground, I think 

you said a cable, and you struck him in the head? 

Correct?

[DEFENDANT]: Yes.

[COUNSEL]: You did that, you knew what you 

were doing. Right?

[DEFENDANT]: Yes.

[COUNSEL]: Okay. You were angry, you were 

upset, you were somewhat irate, but you knew what you 

were doing. Correct?

[DEFENDANT]: Yes.

[COUNSEL]: And when you struck him in the head 

with the cable, why did you do it? What were you 

trying to do?

[DEFENDANT]: To kill him.
11 A-4507-18

[COUNSEL]: And then when he fell, his head 

struck a four-by-four . . . . Right?

[DEFENDANT]: Yes.

. . . .

[COUNSEL]: And eventually as a result of either 

being struck in the head or striking his head when he 

fell, he did die. Correct?

[DEFENDANT]: Yes.

[COUNSEL]: There's no question in your mind that 

when you, despite your state of mind, being angry and 

this growing anger, when you picked up that cable and 

you struck him in the head with it, it was your purpose 

and your intention to kill him. Correct?

[DEFENDANT]: Yes.

. . . .

[COUNSEL]: I've explained to you, have I not, 

passion provocation/manslaughter, the difference 

between that, the elements of those and murder?

[DEFENDANT]: Yes.

[COUNSEL]: And do you understand that, and 

we've discussed, have we not, the possible defense of 

passion provocation to [the victim's] death?

[DEFENDANT]: Yes.

. . . .
12 A-4507-18

[COUNSEL]: And are you satisfied with my 

advice?

[DEFENDANT]: Yes.

[COUNSEL]: Right? And you have – there's no 

question in your mind that you are guilty of the murder 

that you just described of [the victim] on that morning, 

August 16th?

[DEFENDANT]: Yes.

The factual basis Kathleen gave for her guilty plea underscored the 

intentional nature of defendant's murder of his former son-in-law:

On August 16, 2010, [the victim] came to my residence 

. . . for a scheduled drop-off of our infant daughter. 

Approximately [thirty] minutes prior to [the victim's] 

arrival he texted me that he was on his way.

When he arrived, I told [the victim] to get his tools in 

the backyard of the driveway. After [the victim] was 

convinced to retrieve his tools, I took my daughter into 

my house, knowing all the time my father was back 

there waiting to kill him.

The judge confirmed with Kathleen that she sent the victim into the backyard 

"knowing that [her] father was there waiting to kill him." And, when the judge 

asked her if "this [was] something [she] knew was going to happen, and it was 

[her] job to get him into the backyard," Kathleen responded, "[y]es."

The court sentenced the three Dorsetts on the same day. The court 

sentenced defendant to an aggregate forty-five years of imprisonment, with a 
13 A-4507-18

thirty-year period of parole ineligibility. Kathleen received an aggregate fiftyeight years of imprisonment with a forty-seven-year period of parole 

ineligibility. The court sentenced Lesley to a seven-year term of incarceration 

with an eighty-five-percent period of parole ineligibility.

Defendant and Kathleen filed appeals of their sentences, which were heard 

on our excessive sentence calendar. We affirmed both sentences. State v. 

Dorsett, No. A-3186-13 (June 4, 2014); State v. Dorsett, No. A-2224-13 (Apr. 

7, 2014). Lesley maxed out of her sentence on December 16, 2016.

On September 22, 2015, Kathleen filed a PCR petition and an application 

to withdraw her guilty plea in the Law Division. She alleged that her attorney 

coerced her into pleading guilty by telling her that she would lose her daughter 

forever, that "a trial could put my mother in jail for the rest of her life" and that 

"a plea was the only possible route to save her mother." In support of her claim 

that she falsely admitted to conspiring with defendant to kill her former husband, 

Kathleen submitted a certification signed by defendant stating that on the day of 

the murder he and the victim were fighting when the victim "fell on a pile of 

metal junk" and "hit his head." Defendant's certification further stated that 

Kathleen was "not involved in the fight" and had no knowledge defendant was 

"going to injure or kill her ex-husband."
14 A-4507-18

The trial court denied Kathleen's PCR petition and application to 

withdraw her guilty plea. We affirmed the trial court's decision. State v. 

Dorsett, No. A-0311-16 (June 7, 2018). The Supreme Court denied certification. 

State v. Dorsett, 236 N.J. 233 (2018).

On November 15, 2017, defendant filed a PCR petition and application to 

withdraw his guilty plea in the Law Division. He alleged his trial counsel was 

ineffective for not adequately advising him as to the passion/provocation

defense and that his guilty plea was not knowingly and voluntarily made. 

Defendant argued that had he not received incorrect advice from his trial 

counsel, he would have pursued the passion/provocation defense instead of 

pleading guilty. He also argued that it would be a manifest injustice to deny his 

motion to withdraw his guilty plea because of the incorrect advice.

In his reply brief, defendant argued, for the first time, that trial counsel 

urged him to abandon a passion/provocation defense due to a "conflict of 

interest" because defendant could not pay his counsel's fee. According to 

defendant, his counsel was intent on pursuing a passion/provocation defense but 

suddenly changed his advice and told him the defense was not viable after his 

request to be released as counsel was denied to avoid expending time at trial for 

which he was unlikely to be paid. Defendant produced no evidence that a motion 
15 A-4507-18

to be released as counsel was made or a transcript of the court's decision if such 

a motion was made.

The State opposed defendant's petition, arguing that he failed to make a 

prima facie showing of ineffective assistance of counsel because his attorney 

advised defendant to follow a sound strategy to spare Lesley from a lengthy 

sentence. In addition, the State argued that defendant failed to establish grounds 

for withdrawal of his guilty plea.

On January 28, 2019, the trial court issued an oral opinion denying 

defendant's PCR petition without an evidentiary hearing, as well as his 

application to withdraw his guilty plea. With respect to the PCR petition, the 

court concluded defendant did not make a prima facie showing that his trial 

counsel's performance was ineffective. To the contrary, the court found trial 

counsel gave advice consistent with a valid trial strategy designed to prevent 

Lesley from receiving a lengthy prison sentence, noting that defendant's concern 

for his wife "permeates the entire trial" transcript. The court found defendant 

was not likely to have rejected a plea offer that allowed Lesley to avoid a long 

prison term even if counsel had advised him to mount a passion/provocation 

defense because Lesley would have to face trial, and likely conviction, if 
16 A-4507-18

defendant did not plead guilty. Thus, the court concluded that an evidentiary 

hearing was not warranted and defendant was not entitled to PCR.

With respect to defendant's application to withdraw his guilty plea, the 

court found that his claim of a colorable passion/provocation defense was not 

supported by the record. The court found that defendant's admission at his plea 

hearing that he instigated a confrontation with the victim after having him lured 

to the back of the garage to kill him stood in contradistinction to the elements 

of the defense. In addition, the court found defendant's claimed defense is 

contradicted by the admissions Kathleen made at her plea hearing that she and 

defendant conspired to murder the victim and that defendant was waiting to kill 

him behind the garage. The court also found no compelling reason to allow 

withdrawal of the plea and concluded the State would be at a significant 

disadvantage if defendant were permitted to do so because Lesley had already 

completed her lenient sentence, the benefit defendant sought by making a plea.

The court found that because defendant raised his trial counsel's alleged 

conflict of interest after the State filed its initial brief, the State did not have an 

adequate opportunity to address that claim. The court, therefore, did not address 

that claim without prejudice to defendant raising it at a later date. A January 

28, 2019 order memorializes the trial court's decision.
17 A-4507-18

This appeal followed. Defendant makes the following arguments.

POINT I

THE TRIAL COURT (JUDGE 2) ERRED IN 

FINDING THAT TRIAL COUNSEL HAD NOT 

PROVIDED INEFFECTIVE ASSISTANCE OF 

COUNSEL.

POINT II

THE TRIAL COURT (JUDGE 2) ERRED IN 

CONCLUDING THAT THE DEFENDANT HAD 

NOT MADE A PRIMA FACIE SHOWING FOR AN 

EVIDENTIARY HEARING.

POINT III

THE TRIAL COURT (JUDGE 2) ERRONEOUSLY 

USED THE MORE ONEROUS STANDARD OF 

MANIFEST INJUSTICE INSTEAD OF THE LESSER 

STANDARD OF ABUSE OF DISCRETION IN 

DENYING THE APPLICATION BY THE 

DEFENDANT TO WITHDRAW HIS GUILTY PLEA. 

(Not Raised Below)

POINT IV

THE TRIAL COURT (JUDGE 2) ERRED BY NOT 

GRANTING THE REQUESTED STAY TO ALLOW 

THE DEFENDANT TO OBTAIN THE PRE-TRIAL 

TRANSCRIPT IN WHICH TRIAL COUNSEL HAD 

TO DEFEND AGAINST BEING REMOVED AS 

COUNSEL FOR THE DEFENDANT DUE TO A 

CONFLICT OF INTEREST RELATIVE TO LEGAL 

FEE ISSUES INVOLVING COUNSEL FOR THE CODEFENDANTS.
18 A-4507-18

POINT V

THE TRIAL COURT (JUDGE 2) ERRONEOUSLY 

IGNORED THE ADMISSION BY THE 

PROSECUTION THAT THE DEFENDANT "HAD 

NOTHING TO DO WITH" THE CONSPIRACY TO 

COMMIT MURDER AND ATTEMPTED MURDER 

CHARGES LEVELED AGAINST TWO (2) CODEFENDANTS, FURTHER SUPPORTING 

INEFFECTIVE ASSISTANCE OF COUNSEL BY 

TRIAL COUNSEL.

POINT VI

THE TRIAL COURT (JUDGE 2) ERRED IN 

FINDING THAT THERE WAS NO COLORABLE 

CLAIM OF INNOCENCE, SLATER FACTOR 1, TO 

ALLOW THE DEFENDANT TO WITHDRAW HIS 

GUILTY PLEAS.

II.

Under Rule 3:22-2(a), a defendant is entitled to post-conviction relief if 

there was a "[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[.]" "A petitioner must establish the right to such relief 

by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 

459 (1992). "To sustain that burden, specific facts" which "would provide the 

court with an adequate basis on which to rest its decision" must be articulated. 

State v. Mitchell, 126 N.J. 565, 579 (1992).
19 A-4507-18

The Sixth Amendment to the United States Constitution and Article I, 

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the 

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610 

(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. 

Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance 

of counsel, the defendant must meet the two-part test established by Strickland

and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.

Under Strickland, a defendant first must show that his attorney made 

errors "so serious that counsel was not functioning as the 'counsel' guaranteed 

the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's 

performance is deficient if it "[falls] below an objective standard of 

reasonableness." Id. at 688.

A defendant also must show that counsel's "deficient performance 

prejudiced the defense[,]" id. at 687, because "there is a reasonable probability 

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

have been different[,]" id. at 694; accord State v. Nunez-Valdez, 200 N.J. 129, 

139 (2009). "A reasonable probability is a probability sufficient to undermine 

confidence in the outcome" of the trial. Strickland, 466 U.S. at 694.
20 A-4507-18

"[A] court need not determine whether counsel's performance was 

deficient before examining the prejudice suffered by the defendant as a result of 

the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997). 

"If it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice, which we expect will often be so, that course should be 

followed." Strickland, 466 U.S. at 697. The right to the effective assistance of 

counsel extends to legal assistance related to the entry of a guilty plea. State v. 

Gaitan, 209 N.J. 339, 350-51 (2012).

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

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

387, 401 (App. Div. 2013) (citing Marshall, 148 N.J. at 157-58). A hearing is 

required only when: (1) a defendant establishes a prima facie case in support of 

PCR; (2) the court determines that there are disputed issues of material fact that 

cannot be resolved by review of the existing record; and (3) the court determines 

that an evidentiary hearing is required to resolve the claims asserted. State v. 

Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "A prima facie case is 

established when a defendant demonstrates 'a reasonable likelihood that his or 

her claim, viewing the facts alleged in the light most favorable to the defendant, 

will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
21 A-4507-18

Having carefully reviewed the record in light of these legal principles, we 

affirm the January 28, 2019 order for the reasons stated in the trial court's oral 

opinion. We add the following brief comments.

As the trial court noted, defendant's argument conflates the alleged 

strength of his passion/provocation defense with the validity of the legal strategy 

to accept the State's plea offer to ensure that Lesley had a chance to spend time 

out of prison after serving her sentence. Initially, defendant's trial counsel 

advised him that he had a chance to establish a passion-provocation defense. If 

successful, this defense would shorten defendant's sentence and exonerate 

Kathleen of the murder of her ex-husband. The downside of pursuing the 

defense at that time was that if it was unsuccessful defendant would likely 

receive a longer sentence than might be offered by the State in plea negotiations.

However, once Kathleen and Lesley were charged with the attempted 

murder of the victim's mother, defendant's pursuit of the passion/provocation 

defense no longer had a potential benefit for either Kathleen or Lesley, who had

been placed in jeopardy of a significant prison sentence because of their attempt 

to hire a hitman. If the defense was successful, defendant's sentence exposure 

would be diminished, but Kathleen would not be protected from the threat of a 
22 A-4507-18

lengthy sentence because she was charged with attempted murder of the victim's 

mother, as well as the murder of her former husband.

In addition, and perhaps more importantly, Lesley also faced a lengthy 

prison sentence on charges for which the incriminating evidence was substantial. 

The only way defendant could protect his wife from the threat of decades in 

prison was to plead guilty so she could accept the State's favorable offer to her, 

which was contingent on defendant's guilty plea. If he went to trial and pursued 

the passion/provocation defense Lesley would be forced to face trial on the 

serious charges she faced, regardless of the strength of defendant's defense. 

Given defendant's stated intent to protect his family, the trial court's conclusion 

that he would not have gone to trial whatever his counsel's advice might have 

been is supported by the record.

III.

Withdrawal of a guilty plea after sentencing is warranted only "to correct 

a manifest injustice." R. 3:21-1. "[A] plea may only be set aside in the exercise 

of the court's discretion." State v. Slater, 198 N.J. 145, 156 (2009). The court 

considers four factors to determine if withdrawal of a guilty plea is warranted: 

"(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 
23 A-4507-18

plea bargain; and (4) whether withdrawal would result in unfair prejudice to the 

State or unfair advantage to the accused." Id. at 157-58. "No factor is 

mandatory; if one is missing, that does not automatically disqualify or dictate 

relief." Id. at 162.

"[T]he 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." State v. Simon, 161 N.J. 

416, 444 (1999); State v. O'Donnell, 435 N.J. Super. 351, 372 (App. Div. 2014).

There is ample support in the record for the trial court's denial of 

defendant's application to withdraw his guilty plea. Passion/provocation 

manslaughter has four elements: (1) the provocation must be adequate; (2) the 

defendant must not have had time to cool off between the provocation and the 

slaying; (3) the provocation must have actually impassioned the defendant; and 

(4) the defendant must not have actually cooled down before the slaying. State 

v. Carrero, 229 N.J. 118, 129 (2017). "The first two elements are assessed 

objectively, while the third and fourth are 'more subjective because they relate 

to the defendant's actual response.'" Ibid. (quoting State v. Robinson, 136 N.J. 

475, 490 (1994)).
24 A-4507-18

We agree with the trial court's conclusion that defendant did not establish 

that he had a colorable passion/provocation defense. When giving the factual 

basis for his plea, defendant admitted instigating a confrontation with the victim 

for whom he had a growing disdain. In addition, defendant admitted to having 

contemplated various methods of ridding himself of the victim, including killing 

him, and to having him lured to the back of the garage on the day of the murder 

so he could kill him. At sentencing, the court described the murder as "well 

thought-out and premeditated," which is incompatible with a passion/

provocation defense. See State v. Chew, 179 N.J 186, 212 (2004) (holding that 

passion/provocation defense is undermined by evidence of premeditation).

The record also supports the trial court's conclusion that permitting 

defendant to withdraw his guilty plea after he gained the indirect benefit of 

Lesley's shorter sentence and release from prison would not be warranted. He 

and Lesley received the benefit of the plea bargain to which they both agreed. 

Additionally, it has been more than a decade since the murder, which likely has 

put the State at a disadvantage with respect to the availability of evidence were 

defendant's plea to be withdrawn. In particular, Morris, who has already been 

sentenced, would no longer have an incentive to cooperate in defendant's 

prosecution.
25 A-4507-18

We have carefully considered defendant's remaining arguments, including 

his allegation of a conflict relating to his inability to pay his attorney's fees, and 

conclude they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2).

Affirmed.