                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4461-15T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LYNN M. GIOVANNI,

     Defendant-Appellant.
_____________________________

                   Submitted May 14, 2018 – Decided May 13, 2019

                   Before Judges Ostrer and Whipple.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 05-09-1032.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alison S. Perrone, Designated Counsel, on
                   the brief).

                   Michael A. Monahan, Acting Union County
                   Prosecutor, attorney for respondent (Meredith L. Balo,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

                   Appellant filed a pro se supplemental brief.
      The opinion of the court was delivered by

OSTRER, J.A.D.

      This case returns to us after a remand for reconsideration of defendant's

application to withdraw her plea to the aggravated manslaughter of her daughter.

We assume the reader's familiarity with the facts and legal discussion in our

prior opinion. State v. Giovanni (Giovanni I), No. A-1877-11 (App. Div. Nov.

19, 2014). After an evidentiary hearing at which only defendant's trial counsel

testified, the trial judge denied defendant's motion, concluding withdrawal was

not necessary to correct a "manifest injustice." See R. 3:21-1.1 We affirm, as

we discern no abuse of discretion or error of law in the trial court's cogent and

comprehensive opinion.

      The trial judge reconsidered the four factors set forth in State v. Slater,

198 N.J. 145, 157-58 (2009) (stating that a court must "consider and balance . . .

(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"). Consistent with our remand, the


1
  At a previous evidentiary hearing on defendant's petition for post-conviction
relief, defendant and her attorney both testified, as well as an assistant
prosecutor. See Giovanni I, slip op. at 9-13.
                                                                          A-4461-15T1
                                        2
court acknowledged that defendant presented a "colorable claim of innocence"

based on her experts' opinions which "formed the basis for possible insanity and

diminished capacity defenses." However, the court found that defendant had

not presented "fair and just reasons to withdraw the plea," and that factor

"weigh[ed] strongly against the defendant."        The court concluded that

defendant's mental illness did not interfere with her ability to enter a knowing

and voluntary plea. Also, the court found that defendant was aware of the nature

of the mental-health-related defenses that she waived by pleading,

notwithstanding that the court did not engage in a detailed colloquy about them

in the plea hearing. The court gave some weight to the existence of a plea

agreement, which tilted against defendant. The court also found that the State

would suffer some degree of prejudice, as a result of the fading memories or

death of witnesses. The court concluded, "On balance, the Slater factors lean

heavily in favor of denying defendant's application to withdraw her plea."

      On appeal, defendant contends:

            THE ORDER DENYING DEFENDANT'S MOTION
            TO WITHDRAW HER GUILTY PLEA SHOULD BE
            REVERSED BECAUSE THE CRITERIA SET FORTH
            IN [SLATER] MILITATE IN FAVOR OF HER
            MOTION TO WITHDRAW HER PLEA.




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                                       3
Defendant revisits each of the four factors, focusing on the court's analysis of

factor two.2 However, it is not our role to decide for ourselves whether, were

we sitting in the trial court, we would have granted defendant's motion after

considering and balancing the relevant factors. Rather, we review the trial

court's determination for an abuse of discretion that renders its decision clearly

erroneous. State v. Lipa, 219 N.J. 323, 332 (2014). We apply that deferential

standard "because the trial court is making qualitative assessments about the

nature of a defendant's reasons for moving to withdraw his [or her] plea and the

strength of his [or her] case and because the court is sometimes making

credibility determinations about witness testimony." State v. Tate, 220 N.J. 393,

404 (2015). With that standard in mind, we discern no basis to disturb the trial

court's well-reasoned conclusions, which were based in significant part on the

trial court's credibility determinations after two testimonial hearings.

      As directed, see Giovanni I, slip op. at 32, the trial court considered "the

degree to which defendant's decision to plead was a result of her mental state."

The court acknowledged that defendant was depressed and under stress.

However, her demeanor at the plea hearing, over which the judge presided, did



2
  Defendant also filed a pro se brief, without point headings, which echoed her
counseled brief and roamed over numerous areas outside the scope of the appeal.
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                                        4
not reflect a lack of understanding or autonomy. The court noted that the timing

of defendant's decision to plead – coming on the heels of a trying and

unfavorable evaluation by the State's expert – reflected that she was able to

reason and "to discern the impact of the examination." Notably, defendant

presented no expert evidence to support a claim that her mental status was

responsible for her decision to plead guilty, and a reason for permitting her to

withdraw her plea. The court concluded, "There is no proof, much less expert

psychological and/or psychiatric proof, that her depression, or any other mental

health condition, influenced her decision to plead guilty. To the contrary, the

proofs show they did not."

      Defendant has presented no basis to disturb that conclusion. Indeed,

defendant essentially concedes, both in her counseled and pro se briefs, that her

decision to plead guilty was based on her attorney's allegedly erroneous and

misleading advice. She was told that her insanity defense was unlikely to

succeed; and if it did, she would likely remain in custody, albeit in a hospital,

as long as she would if convicted.

      With regard to the second factor, we also noted that the trial court, in

accepting defendant's guilty plea, did not engage in a "thorough and searching

inquiry" with defendant specifically directed to her waiver of the insanity and


                                                                         A-4461-15T1
                                       5
diminished capacity defenses. Giovanni I, slip op. at 32-33 (citing State v.

O'Donnell, 435 N.J. Super. 351, 374-75 (App. Div. 2014)). We noted that the

Supreme Court recently held in State v. Handy, 215 N.J. 334, 362 (2013), that

such an in depth inquiry was required before accepting a defendant's waiver of

an insanity defense. Giovanni I, slip op. at 33.

      The trial court questioned whether the requirement of a colloquy should

apply to defendant's plea hearing, which was conducted before O'Donnell was

decided. The trial court highlighted that defendant did not raise facts suggesting

the defense in the plea hearing itself. The trial court contrasted this case with

State v. Urbina, 221 N.J. 509 (2015), where the defendant, in his allocution,

presented facts suggesting a self-defense defense. The Supreme Court held that

the trial court was obliged to engage in a thorough and searching inquiry into

the defendant's understanding of the right being waived, noting that the

defendant was not permitted to waive the defense while simultaneously asserting

he acted in self-defense. Id. at 528-29. However, we need not resolve this

retroactivity issue.

      In the analogous context of the waiver of the right to counsel, the Supreme

Court held that the failure to engage in a required pre-waiver colloquy with the

defendant may be excused, if the evidence demonstrated that the defendant


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                                        6
nonetheless understood the consequences of his or her waiver. State v. Crisafi,

128 N.J. 499, 512-13 (1992). Crisafi addressed the general requirement of an

extensive on-the-record warning to ensure that the defendant understands the

consequences of waiving counsel and proceeding pro se.            Id. at 511-12.

Nonetheless, the absence of such a colloquy is not necessarily fatal to an

effective waiver.      "[T]he ultimate focus must be on the defendant's actual

understanding of the waiver of counsel. In the exceptional case, if the record

indicates that the defendant actually understood the risks of proceeding pro se,

a waiver may" occur in the absence of a searching inquiry.         Id. at 512-13

(citations omitted).

      Here, notwithstanding the absence of a pre-plea colloquy regarding waiver

of the insanity and diminished capacity defenses, the trial court found that

defendant was well aware of the defenses she was waiving. In reaching that

conclusion, the court carefully evaluated the testimony of defense counsel and

defendant. The trial court acknowledged that defense counsel admitted he did

not discuss with defendant, on the day of the plea, the consequences of waiving

her mental-health-related defenses. Yet, defense counsel testified, credibly in

the trial court's view, that he believed his client knew what those defenses were,




                                                                          A-4461-15T1
                                        7
based on prior discussions. Notably, defendant disclosed her awareness of the

insanity defense in her evaluation with the State's expert.

       The trial court also dismissed defendant's contention that she was misled

into pleading guilty by her counsel's unduly pessimistic view of the practical

consequences of a not-guilty-by-reason-of-insanity (NGRI) verdict. The trial

court found that counsel's predictions as to the outcome of periodic review

hearings under State v. Krol, 68 N.J. 236 (1975), were inconsequential.

"[N]otwithstanding counsel's advice on Krol commitment, defendant told [the

State's expert] that she was hopeful of being found not guilty by reason of

insanity." The trial court found that defendant waived the defense because she

concluded it would not succeed, not because it would make no difference if it

did.

       Furthermore, as this court recently observed, a defense counsel's

"'prediction' based on counsel's 'experience and instinct,' . . . will not support

withdrawal of a guilty plea." State v. Hooper, ___ N.J. Super. ___, ___ (App.

Div. 2019) (slip op. at 23) (quoting State v. DiFrisco, 137 N.J. 434, 455 (1994)).

Defense counsel at most provided his prediction of the consequences of an NGRI

verdict.




                                                                          A-4461-15T1
                                        8
      Finally, we discern no merit to defendant's challenge to the court's

consideration of the third and fourth Slater factors. As for the presence of a plea

agreement, the trial court did not assign it undue weight.               Nonetheless,

negotiated pleas are entitled to a high degree of finality. State v. Means, 191

N.J. 610, 619 (2007). Regarding the fourth factor, the court did not abuse its

discretion in concluding that the State would suffer prejudice in its ability to try

the case. In particular, the court noted that the State's expert had died. Although

his evaluation of defendant was videotaped, and another expert could prepare an

opinion based thereon, the court concluded that defendant would benefit from

the delay. That conclusion was supported by the record.

      In sum, exercising our deferential standard of review, we discern no abuse

of discretion that rendered the trial court's order clearly erroneous.

      Affirmed.




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                                         9
