                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1889-12T2



STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                            April 24, 2014

v.                                       APPELLATE DIVISION

ALICE O'DONNELL,

     Defendant-Appellant.
______________________________

         Submitted March 4, 2014 – Decided April 24, 2014

         Before Judges Reisner, Ostrer and Carroll.

         On appeal from the Superior Court of New
         Jersey, Law Division, Middlesex County,
         Indictment No. 05-05-0617.

         Joseph E. Krakora, Public Defender, attorney
         for   appellant  (Philip  Lago,   Designated
         Counsel, on the brief).

         Andrew C. Carey, Acting Middlesex County
         Prosecutor, attorney for respondent (Joie
         Piderit, Special Deputy Attorney General/
         Acting Assistant Prosecutor, of counsel and
         on the brief).

         The opinion of the court was delivered by

OSTRER, J.A.D.

     Defendant Alice O'Donnell appeals from the trial court's

August 30, 2012, order, after a non-testimonial hearing, denying
her petition for post-conviction relief (PCR), and application

to   set   aside    a    guilty       plea.        On   March    22,    2006,          defendant

pleaded guilty to one count of murder, N.J.S.A. 2C:11-3(a).                                   She

admitted that between the evening of February 21 and the morning

of February 22, 2005, she fed her six-year-old son Phillip an

overdose of medication, and held a pillow over his head until he

was asphyxiated.          After the homicide, defendant stabbed herself

multiple    times       and     reportedly         ingested     rubbing          alcohol      and

twenty or more ibuprofen pills.

      In   accord       with    her    plea    agreement,        the    court         sentenced

defendant to a term of thirty years, with a thirty-year parole

ineligibility       period.           We    affirmed    the     conviction;            the   only

issues on direct appeal pertained to the trial court's pre-trial

order denying defendant's Miranda1 motion to suppress inculpatory

statements,       and     partially         denying      her     motion          to     suppress

evidence seized from her home.                     State v. O'Donnell, 408 N.J.

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

denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010).

      In   this    PCR    appeal,          defendant    asserts        her   attorney         was

ineffective       by     failing       to     diligently        pursue       a        diminished

capacity defense.              She also alleges that counsel unexpectedly


1
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                               2                                        A-1889-12T2
pressed      her    to   plead    guilty    shortly   before       trial,   without

adequate explanation, stating it was necessary to avoid a life

sentence.      Defendant was forty-four years old when she received

the thirty-year sentence under the plea agreement.                       Defendant

essentially contends that she would have proceeded to trial but

for trial counsel's ineffective assistance.                  She seeks to set

aside her guilty plea.

       Having reviewed the record in light of applicable legal

principles, we conclude defendant has presented a prima facie

case    of     ineffective       assistance     of    counsel      and   resulting

prejudice.         We also conclude that the trial court misapplied the

factors governing an application to withdraw a guilty plea.                         We

therefore reverse and remand for an evidentiary hearing.

                                           I.

       We discern the following facts from the record, considering

defendant's contentions "indulgently and . . . in the light most

favorable to [her]."             State v. Cummings, 321 N.J. Super. 154,

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

record includes the testimony of defendant and several police

officers from the pre-trial hearing on the motion to suppress,




                                           3                                A-1889-12T2
defendant's      interview       with    two     mental      health   experts,       their

expert reports, and other documentary evidence.2

     Defendant had a history of mental illness and psychiatric

hospitalizations.          Her    family        also   had    a   history    of    mental

illness.        She reported that when she was a child, her father

subjected her, and one of her sisters, to violent sexual abuse.

Attempts to report the abuse were rebuffed.                         The sister later

committed suicide.          Defendant has three living siblings: two

other sisters, and a brother who is disabled with schizophrenia.

     In the months before the homicide, defendant experienced

various    reversals   in     her       life.      Her    partner     of   over    twenty

years, Phyllis, died in 2004.                   Along with the emotional loss,

defendant suffered financially thereafter.                        Phyllis had helped

support defendant and her son Phillip.                       Neither defendant nor

Phillip had a continuing relationship with Phillip's father, who

had disappeared from their lives.

     Sometime      after    Phyllis's       death,       defendant    was    forced      to

vacate    her    apartment.         After       temporarily       residing   with       her

mother in a senior community, she moved to Highland Park, but

soon faced eviction.          In the meantime, defendant believed that

her son had been sexually abused by a priest who had spent time

2
  Defendant's custodial statement was not presented to us.
However, we rely on the trial court's summary of the statement
included in its Miranda decision.



                                            4                                     A-1889-12T2
with him.      She reported the alleged assault to a school guidance

counselor, who referred the matter to the Division of Youth and

Family Services.

    Defendant believed that her impending homelessness would

cause   her    to   lose     custody    of   her     son,    and   result    in    his

continued      abuse.        At   the   time    of    the    homicide,      she    was

prescribed medications for insomnia (Soma), depression (Zoloft),

and anxiety (Klonopin).           However, she stated that as a result of

Medicaid issues, she was unable to fill her Zoloft prescription.

She determined that the solution to her predicament was to send

her son and herself to heaven, where they would join Phyllis.

She reportedly heard a soft voice that said, "'God and Jesus

welcomes you, go to God, they always want you.'"                         Defendant

claimed to have conferred with her son about her plan and he

consented to it.

    The       day   before    the   homicide,        she    informed   her    sister

Theresa and other family members that they could come to her

apartment to take her furniture.               There is no evidence she told

them that she intended to harm herself or her son.                       Defendant

told them she was about to become homeless.




                                         5                                   A-1889-12T2
       Defendant stated she gave her son a combination of Benadryl

and Klonopin on the evening of February 21, 2005.3                            When that

prompted    Phillip     to    vomit,     defendant         smothered        him    with     a

pillow.     Defendant's two sisters arrived at her home the next

morning, and awoke defendant, who was asleep beside her deceased

son.      She testified that she told her sisters that she and

Phillip    "were   going     to   heaven."          Upon    their      discovery         that

Phillip was dead, her sisters summoned the police.

       Defendant     was     generally        non-responsive           to     a      police

officer's    initial    inquiries       at    the    scene      regarding         what    had

happened.      She     appeared      "out     of    it"    to    one    officer,          and

disheveled and disoriented to another.                     But, she admitted she

gave Benadryl to Phillip, and, regarding what medication she

took, "[s]he began to ramble on naming different medications."4

       Defendant was indicted           and arraigned in May 2005.                        The

defense's apparent strategy was to pursue a diminished capacity

defense under N.J.S.A. 2C:4-2.                The court ordered the assistant

deputy public defender to seek approval to hire a mental health

expert.      However,      counsel      delayed     several      months,          and    then

misrepresented     that      he   had   provided      materials        to    the    expert

3
  The Medical Examiner reported that Phillip died from acute
Zoloft and Benadryl poisoning, and "'mechanical asphyxia.'"
4
  The police seized various documents and handwritten notes from
defendant's home, which are not part of the record before us.



                                          6                                        A-1889-12T2
several weeks before he actually did.                         The defense missed the

court's November 11, 2005, deadline for submitting its report.

      Defense counsel's delays prompted a State motion to bar an

expert report and any defense based on insanity or diminished

capacity.         The       defense     did    not     serve        the    report      of    its

psychiatric       expert,      Oscar     Sandoval,         M.D.,     until      January      24,

2006,    the    return      date   of    the       State's    motion.           Dr.    Sandoval

concluded that defendant's "mental capacity was so impaired that

she was unable to engage in purposeful conduct."

      The court denied the State's motion, stating it would cause

undue prejudice to defendant.                 Yet, the judge stated, "I do not,

however,       wish    to   minimize     the       importance        of   the    dereliction

here."         The     judge    found     defense          counsel        "failed      to    pay

reasonable attention" to the matter, and misled the court about

his   progress.         The    court     imposed       a     $250    monetary         sanction.

Defense     counsel          responded        he     was     experiencing             financial

difficulties, and would be unable to pay the fine promptly.

      The      court    tentatively       scheduled          trial    for    February        27,

predicated on the State serving its expert's report on February

17.     However, those deadlines were not met.                            The State served

the   report     of     its    psychological          expert,       Anthony      V.    D'Urso,

Psy.D., on March 7, 2006.                Before doing so, the State provided

additional discovery to the defense on February 8, 2006.                                     The




                                               7                                       A-1889-12T2
discovery    and       Dr.     D'Urso's     report     challenged     defendant's

diminished capacity defense, as supported by Dr. Sandoval.

    Dr.     Sandoval     concluded    defendant        suffered   from   a    severe

Major   Depressive       Disorder     "with     mood     congruent,      psychotic

features,"    severe         Post-Traumatic      Stress     Disorder,         and     a

Dependent    Personality        Disorder.        Dr.    Sandoval     opined      that

defendant was responding to voices of command, to alleviate her

son's suffering.         He opined defendant was psychotic, but not

psychopathic.

            Ms.   O'Donnell  was   verbalizing   auditory
            hallucinations with voices of command. . . .

                   . . . .

                 Her psychotic act of filicide occurred
            impulsively without prior homicidal thoughts
            or    rage,    driven   by   the    auditory
            hallucinations of command; which led her to
            believe that by killing her child, this was
            an altruistic act to save her son, Phillip,
            from the world.

    The State's discovery materials included various documents

pertaining    to   a    2003    insurance     fraud    investigation     involving

defendant by the State Division of Criminal Justice (DCJ).                          The

unsworn documents indicated that defendant falsely represented

that she was a licensed Ph.D. psychologist.                 In fact, defendant

never obtained a college degree, although she earned substantial

credits at both Kean and Rutgers Universities.                    A mental health

center in Bayonne hired defendant in March 2002.                       She signed



                                          8                                  A-1889-12T2
health insurance claim forms as a licensed psychologist.                                    A

health insurer discovered her misrepresentation, prompting her

dismissal at the end of May 2002.

    According       to    a    February        9,    2006,    hearsay     report      of    a

Middlesex County investigator, a former billing clerk of the

mental health center stated that Dr. Sandoval worked at the

mental     health   center       at     the        same    time   as   defendant;        the

psychiatrist and defendant knew each other; the psychiatrist met

with patients defendant purportedly treated, and reviewed and

signed     defendant's        billing    statements.              However,     the     same

witness's sworn statement from November 2003 did not mention Dr.

Sandoval, and a DCJ investigator's report in 2003 quoted her as

saying that Dr. Sandoval became involved in the mental health

center only after defendant left.                         Dr. Sandoval asserted the

same in his interview with DCJ investigators in 2003.                                 DCJ's

report referred to a different physician as the psychiatrist to

whom the center referred patients while defendant was on staff.

Defendant admitted that she also was treated at the time by that

physician, not Dr. Sandoval.

    With regard to defendant's diminished capacity, Dr. D'Urso

rejected     Dr.    Sandoval's        opinion        that     defendant      lacked      the

ability    to   form     the    intent        to    commit    murder.        Dr.     D'Urso

concluded that defendant was a pathological liar who suffered




                                              9                                    A-1889-12T2
from    a    lack    of      self-esteem.              He    administered      various

psychological       tests,      and     obtained      what   he     considered    valid

responses.     They indicated "a pattern of chronic psychological

maladjustment         resulting              in      ineffective         interpersonal

relationships."           He        stated     her    profile      suggested   "marked

depression," the suggestion of "delusional, circumstantial and

tangential thinking," "the presence of psychotic thought," and

"somatic delusions and schizoid functioning, including the need

for    psychopharmacological            interventions."             Nonetheless,      he

concluded defendant did not lack the mental state necessary to

commit murder:

                 [S]he was purposeful enough to re-
            administer    Benadryl  and    ultimately   to
            smother   her   son.     Given   a   transient
            psychotic state, it would appear that she
            was capable of committing both homicide and
            suicide. . . .     Ms. O'Donnell was able to
            understand her conduct at the time of the
            offense and able to form intent and as such
            was responsible for her actions.

       Roughly two weeks after Dr. D'Urso's report was served, and

five days before the newly-scheduled trial date of March 27,

2006, defendant pleaded guilty to the indictment, conditioned on

the State's promise to recommend a thirty-year sentence, with a

thirty-year     period         of     parole       ineligibility.         Consistently

responding     to    leading         questions       with    yes    or   no    answers,

defendant affirmed that she wished to plead guilty,                            she was




                                              10                               A-1889-12T2
doing so voluntarily and knowingly, and she was satisfied with

her attorney.      She affirmed to her attorney that she gave her

son an overdose of medicine, and smothered him with a pillow,

with the purpose to cause his death.

    The court alluded to the diminished capacity defense:

           THE COURT:    Do you also understand if I
           accept this plea to the extent that you may
           have had some defense, you'll be waiving
           that defense, whatever defense you might
           have     had,    that     you     acknowledge
           responsibility as you are here and if I
           accept      that      acknowledgement      of
           responsibility. Do you understand that?

           THE DEFENDANT:      Yes, your Honor.

           THE COURT:   Is it your desire to waive any
           defense that you might have and ask me to
           accept the plea today?

           THE DEFENDANT:      Yes.

    The    court   sentenced    defendant        in   accord    with   the    plea

agreement on May 5, 2006.           As noted above, the direct appeal

only addressed suppression issues.

    Defendant filed her pro se PCR petition on September 7,

2011.   She alleged that after learning the United States Supreme

Court   denied   certiorari    in     December    2010,   she    wrote   to    her

assistant deputy public defender to inquire about the next step,

but received no response.       She attributed to her depression the

ensuing delay in the filing of the petition, four months beyond

the five-year period following her judgment of conviction.



                                       11                                A-1889-12T2
      In her pro se petition, and later amended petition prepared

by    counsel,     defendant          asserted       her    trial     attorney       was

ineffective by: (1) failing to confer adequately with her about

the   State's     plea    offer,      and     his    defense    preparations;        (2)

failing   to    pursue    the    diminished         capacity    defense,    including

failing   to     obtain    a    second       psychiatric     evaluation;     and     (3)

generally failing to attend to the case because of personal

problems.      Defendant asserted that defense counsel visited her

the evening before the plea hearing and told her, "'I've got bad

news, you've got to take a plea or you're going to get life.'"

She alleged that he had previously advised her that she would

prevail on her diminished capacity defense.                         She alleged, "A

second psychiatric evaluation by a Dr. Greenberg was begun but

never completed. . . .            The incomplete psychiatric examination

process     rendered      counsel      unable       to   present    and    support     a

diminished capacity defense at trial."                     She asserted he failed

to obtain her "informed consent" before announcing in court the

next day that she would plead guilty.

      Defendant     argued      she    was    entitled     to   withdraw    her    plea

under State v. Slater, 198 N.J. 145 (2009), and was entitled to

PCR under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.




                                             12                              A-1889-12T2
2052, 80 L. Ed. 2d 674 (1984).5             She also asserted her four-month

delay resulted from excusable neglect.

     The    State     opposed   relief,         filing        a   brief    to    which   it

attached     various       exhibits,       including              the   mental     health

evaluations     and,       apparently,      all         the       discovery     materials

produced in February 2006.             The State relied substantially on

defendant's affirmation at the plea hearing that she wished to

plead guilty, she was generally satisfied with her attorney's

performance, and agreed to waive any defenses.                            The prosecutor

also argued that Dr. Sandoval would have been discredited based

on evidence that he and defendant allegedly were in practice

together,    and     he   approved   her        claim    forms.         The     prosecutor

further contended that if defendant testified, she would also be

discredited     by   the    evidence   of       her     misrepresentation          of    her

credentials.6

     After    oral    argument,      the    court       denied      defendant     relief.

The judge separately found defendant had failed to meet the test

for withdrawing a plea under Slater, and failed to demonstrate a


5
   Defendant did not file a separate,                              free-standing        plea
withdrawal motion under Rule 3:21-1.
6
  Allegations of defendant's prior misrepresentation would appear
to constitute evidence of other crimes or wrongs.        N.J.R.E.
404(b). The State did not address how it would have established
a basis for admissibility. See State v. Cofield, 127 N.J. 328,
338 (1992).



                                           13                                     A-1889-12T2
prima    facie     case    of    ineffective      assistance     of    counsel        under

Strickland.

      Regarding         plea    withdrawal,       the    court   applied      the       four

Slater     factors:       "(1)    whether     the   defendant       has   asserted          a

colorable claim of innocence; (2) the nature and strength of

defendant's reasons for withdrawal; (3) the existence of a plea

bargain;     and    (4)     whether    withdrawal        would   result       in    unfair

prejudice to the State or unfair advantage to the accused."

Supra, 198 N.J. at 157-58.               The court summarized the competing

opinions of Drs. Sandoval and D'Urso and found "this colorable

claim of innocen[c]e . . . seems to be in equipoise."                         The court

found      that    defendant's        reasons      for    withdrawal      —    lack       of

consultation by her attorney and viability of her diminished

capacity defense — were belied by her waiver of defenses at the

plea hearing.           The existence of a plea agreement also weighed

against defendant.             The court held that it was not required to

consider the fourth factor, as the balance of the first three

did not favor defendant.

      The court then applied the first prong of the test under

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

Ed.   2d    at    693     (stating    that    defendant      must     show    counsel's

performance was deficient and he or she made errors so serious

that counsel was not functioning as guaranteed by the Sixth




                                             14                                    A-1889-12T2
Amendment).         The court found that defendant and her attorney

"were   on       notice"    that   the      State    would    question      defendant's

credibility, and challenge Dr. Sandoval's opinion, in part by

alleging a lack of candor and objectivity based on his alleged

business relationship with defendant.                  The court found "there is

no evidence to prove that plea counsel did not review all of

these facts with [defendant]."                    The court was also unpersuaded

that trial counsel failed to apply "professional and/or trial

strategy" in urging defendant "not to go to trial but to enter a

guilty plea."        The court also reviewed defendant's affirmations,

in response to her trial counsel's questioning, that he had

conferred with her earlier that day, reviewed the plea form, and

that she voluntarily and freely wished to plead guilty and waive

her right to a trial.              The court did not expressly reach the

prejudice prong of the Strickland test.                      See Strickland, supra,

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

(defendant must show he or she was prejudiced such that there

existed      a    reasonable       probability        that,    but    for     counsel's

unprofessional errors, the result would have been different).

      The judge did not decide whether defendant's application

was   time-barred,         in   view   of    its    disposition      on   the   merits.

However, the judge opined that "frankly, four months after the

running of the five-year time period with all of the various




                                             15                                 A-1889-12T2
appeals that were part of the record there appears to be a

significant case in favor of the petitioner for this argument of

excusable neglect."

    This   appeal   followed.   Defendant   presents   the   following

point and subpoints for our consideration:

           THE LOWER COURT ERRED IN NOT GRANTING
           DEFENDANT'S   REQUEST  FOR   AN   EVIDENTIARY
           HEARING.     THE LOWER COURT ORDER MUST
           THEREFORE BE REVERSED AND THIS MATTER MUST
           BE REMANDED FOR AN EVIDENTIARY HEARING.

           A) Defendant has asserted a colorable claim
           of innocence.

           B) The nature and strength of defendant's
           reasons for withdrawal are powerful.

           C) A plea bargain exists in this case;
           however, the plea offer was not accepted
           knowingly and voluntarily.

           D) Withdrawal of the plea would not result
           in unfair prejudice to the State or unfair
           advantage to the defendant.

                                II.

                                A.

    The trial court correctly viewed defendant's application as

both a motion to withdraw her plea, and a petition for PCR based

on ineffective assistance of counsel.7       The two requests for


7
  We do not reach the issue whether, under Rule 3:22-3, the trial
court should have held the PCR petition in abeyance, or
dismissed it without prejudice, until it considered the plea
withdrawal request.    Neither the parties nor the trial court
                                                      (continued)


                                16                            A-1889-12T2
relief are distinct, and governed by different rules of court.

Compare R. 3:21-1 (motion to withdraw plea), with R. 3:22 (PCR).

They must be considered separately.                  Cf. State v. McDonald, 211

N.J.    4,   15-26,    29-30    (2012)    (separately      analyzing      motion    to

withdraw     guilty    plea    under     Slater,     and   claim   of    ineffective

assistance under Strickland, although finding that ineffective

assistance claim was premature on direct appeal).

       The two requests for relief are governed by different time

constraints.      A motion to withdraw a plea shall be made before

sentencing, but may be made at any time thereafter if the movant

shows a "manifest injustice."                  R. 3:21-1; see also State v.

J.J., 397 N.J. Super. 91, 97 (App. Div. 2007), appeal dismissed,

196 N.J. 459 (2008).            By contrast, a petition for PCR must be

filed    within       five     years   of      the    challenged        judgment    of

conviction, absent excusable neglect where enforcement of the

bar would result in a "fundamental injustice."                 R. 3:22-12(a).




(continued)
addressed that issue, and the interests of justice would not be
served   by   bifurcating  the  proceedings   at  this   point,
particularly given the time that has elapsed since defendant's
conviction.    See Report of Supreme Court Committee on Post-
Conviction Rights of Indigents, 85 N.J.L.J. 557, 568 (1962)
(regarding proposed rule on exclusiveness of post-conviction
application, stating that "[s]ome degree of flexibility in the
jurisdictional handling of particular cases will inevitably
arise" and "priority will be accorded the objective of
substantial justice").



                                          17                                 A-1889-12T2
       The two applications implicate different but overlapping

rights.    The motion to withdraw a plea implicates fundamental

rights to liberty and due process.      See Slater, supra, 198 N.J.

at 158 ("A core concern underlying motions to withdraw guilty

pleas is to correct the injustice of depriving innocent people

of their liberty.").      The right to PCR based on ineffective

assistance is grounded in the constitutional right to counsel.

See State v. Fritz, 105 N.J. 42, 57-58 (1987) (stating that

Strickland   vindicates   the   constitutional   right   to   counsel).

More broadly, however, "a PCR petition is a defendant's last

chance to challenge the 'fairness and reliability of a criminal

verdict in our state system.'"     State v. Nash, 212 N.J. 518, 540

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

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

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

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

162.    However, "[c]onsideration of a plea withdrawal request can

and should begin with proof that before accepting the plea, the

trial court followed the dictates of Rule 3:9-2."         Id. at 155.

The rule requires the court to determine if "there is a factual

basis for the plea and that the plea is made voluntarily, not as

a result of any threats or of any promises or inducements not




                                  18                           A-1889-12T2
disclosed on the record, and with an understanding of the nature

of the charge and the consequences of the plea."                      R. 3:9-2.

    A     petition     for   PCR    based      on   ineffective        assistance       of

counsel is governed by the two-prong Strickland test.                                 In a

challenge    to   a    conviction        arising    from    a       guilty    plea,    the

petitioner    may     satisfy      the    prejudice        prong      by     showing    "a

reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to

trial."     Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370,

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

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

185 L. Ed. 2d 361 (2013).

    To    obtain      an   evidentiary      hearing    on       a    PCR   petition,     a

defendant must establish a prima facie case for relief, material

issues of disputed fact, and show that an evidentiary hearing is

necessary to resolve the claims.               R. 3:22-10(b).          The petitioner

must ultimately establish the right to PCR by a preponderance of

the evidence.      State v. Preciose, 129 N.J. 451, 459 (1992).

    Regarding a plea withdrawal motion, the burden of proof

varies depending on when the motion is filed.

            The same factors are to be used for motions
            filed either before or after sentencing, but
            the timing of the motion will trigger
            different burdens of proof for the movant:
            pre-sentence motions to withdraw a plea are
            governed   by  the  "interest   of  justice"



                                          19                                    A-1889-12T2
             standard in Rule 3:9-3(e), while post-
             sentence   motions   are  subject  to   the
             "manifest injustice" standard in Rule 3:21-
             1. As a result, the weighing and balancing
             process will differ depending on when a
             motion is filed . . . .

             [Slater, supra, 198 N.J. at 158.]

"Following sentencing, if a defendant seeks to withdraw a guilty

plea   the    court    weighs      more    heavily       the    State's      interest     in

finality     and    applies    a    more   stringent           standard."         State    v.

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

v. McQuaid, 147 N.J. 464, 485-87 (1997)).                         Thus, the longer a

defendant delays in seeking to withdraw a plea,                              the greater

burden he or she will bear in establishing "manifest injustice,"

because      the   prejudice       to   the     State     under     prong     four     will

generally increase.           Moreover, a defendant's reasons for delay

may also weigh against relief under factor two.

       We recognize that the two tests may overlap.                         For example,

compelling evidence of a person's innocence that was available

but    neglected    by   an    attorney       may   weigh       heavily      in   applying

factor one of the Slater test, as well as determining whether an

attorney's ineffectiveness was prejudicial under Strickland.                                A

defendant     may     rely    on   discovery        of    his     or   her    attorney's

misinformation about the consequences of a plea to satisfy the

reasons for seeking to withdraw a plea under Slater factor two.

Those same facts may satisfy prong one of Strickland.



                                           20                                      A-1889-12T2
    However,       a    court    must     nonetheless      view      the     applications

separately, and must avoid conflating the two.                            One can imagine

scenarios in which a defendant could prevail on one application,

but not the other.          For example, a defendant may mislead his or

her attorney in accepting responsibility for a crime, in order

to plead guilty and to avoid threatened reprisals by another

criminal.        Cf.    State    v.    Simon,    161    N.J.    416,       444-46    (1999)

(affirming trial court's decision considering, but discrediting

defendant's claim, on motion to withdraw plea, that he falsely

admitted guilt because of threats to his family).                           While such a

defendant       might    have     no     viable       claim    for        PCR     based    on

ineffective      assistance,       he     or    she    conceivably         could    have     a

viable plea withdrawal motion, based on a colorable claim of

innocence and compelling reasons for seeking withdrawal.

    On the other hand, a defendant may fail on a motion to

withdraw    a    plea    under        Slater,    because       he    or     she    lacks     a

colorable claim of innocence (factor one), and the State would

suffer prejudice (factor four) as a result of delay and witness

unavailability.          Yet,     the     same    defendant         may    still    have     a

successful claim under Strickland, because (1) the defendant may

establish       prejudice       without     necessarily        establishing           likely

acquittal; and (2) prejudice to the State is not a consideration

under Strickland.         In the PCR context, to obtain relief from a




                                           21                                       A-1889-12T2
conviction following a plea, "a petitioner must convince the

court that a decision to reject the plea bargain would have been

rational under the circumstances."          Padilla v. Kentucky, 559

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

(2010).     "[A] rational decision not to plead guilty does not

focus solely on whether a defendant would have been found guilty

at trial . . . ."        United States v. Orocio, 645 F.3d 630, 643

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

States, ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).

In   a    case    involving   immigration   consequences   of   a   plea,

"[p]reserving the client's right to remain in the United States

may be more important to the client than any potential jail

sentence."       Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1483,

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

omitted).

     In State v. Nuñez-Valdéz, 200 N.J. 129 (2009), the Court

affirmed PCR where counsel misinformed the defendant about the

immigration consequences of conviction.        The defendant would not

have pleaded guilty had he been properly informed.         Although the

defendant claimed he falsely admitted his guilt, id. at 133,

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

with any assertion of innocence."           Id. at 149.    Neither the




                                    22                          A-1889-12T2
trial    court      nor     the    Supreme        Court    relied     on     evidence     of

innocence as a factor in granting relief.

    Finally, we apply different standards of review to orders

on plea withdrawal motions, and PCR petitions.                         While issues of

law are subject to our de novo review, Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we apply an

abuse of discretion standard to decisions on plea withdrawal

motions.         "Thus, the trial court's denial of defendant's request

to withdraw his guilty plea will be reversed on appeal only if

there was an abuse of discretion which renders the lower court's

decision clearly erroneous."               See Simon, supra, 161 N.J. at 444

(citing State v. Smullen, 118 N.J. 408, 416 (1990)).                           "A denial

of a motion to vacate a plea is 'clearly erroneous' if the

evidence presented on the motion, considered in light of the

controlling legal standards, warrants a grant of that relief."

State   v.       Mustaro,    411    N.J.   Super.         91,   99   (App.    Div.   2009)

(citing Slater, supra, 198 N.J. at 164).                        Our Supreme Court has

found a mistaken exercise of discretion in denying a motion to

withdraw a plea where the court exercised a "clear error of

judgment."         State v. Munroe, 210 N.J. 429, 448 (2012) (internal

quotation marks and citation omitted).

    If       a    court     has    conducted      an   evidentiary         hearing   on   a

petition for PCR, we necessarily defer to the trial court's




                                             23                                  A-1889-12T2
factual findings.            Nash, supra, 212 N.J. at 540.                          Moreover,

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

hearings."       Preciose, supra, 129 N.J. at 462.                             However, where

the court does not hold an evidentiary hearing, we may exercise

de novo review over the factual inferences the trial court has

drawn from the documentary record.                       State v. Harris, 181 N.J.

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

2973,    162    L.    Ed.    2d    898      (2005).       Thus,      it    is     within     our

authority      "to   conduct       a   de    novo     review    of    both       the    factual

findings and legal conclusions of the PCR court."                              Id. at 421.

                                                B.

     Applying these principles, we are persuaded that the trial

court    misapplied         the    Slater       factors    in     denying         defendant's

application to withdraw her plea.

     Turning to the first Slater factor, the court set too high

a threshold for establishing a "colorable claim of innocence."

Slater, supra, 198 N.J. at 158.                        The court found that this

factor    was    neutral          because       defendant's       diminished           capacity

defense — supported by Dr. Sandoval's opinion — was challenged

by the State's expert, Dr. D'Urso and other evidence.                                  However,

in   applying        this    factor,        a    court    should          not     decide     the

likelihood of the defense prevailing.                      Munroe, supra, 210 N.J.

at 446 (holding that the court misapplied Slater factor one).




                                                24                                     A-1889-12T2
"Rather, the issue is whether defendant raised a colorable claim

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

Ibid.     A   court     must   consider    whether      "defendant    'presented

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

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

    By this standard, defendant's diminished capacity defense

was a colorable claim of innocence.             The court did not expressly

consider that once defendant raised the question of her mental

disease or defect, it was the State's burden to disprove her

diminished capacity beyond a reasonable doubt.                  State v. Rivera,

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

(1991);   Model    Jury    Charge     (Criminal),       "Evidence     of      Mental

Disease or Defect" (2006).8           It is notable that although Dr.

D'Urso opined that defendant likely had the necessary mental

state, he also confirmed that defendant suffered from several

serious mental health conditions.

    The court also gave undue weight to the State's claim that

Dr. Sandoval had a conflict of interest based on his alleged

relationship     with    defendant.       The   claim     was    grounded     in   an

unsworn   2006    investigative     report      stating    the    billing      clerk



8
  By contrast, a defendant bears the burden of proving insanity
by a preponderance of the evidence.    State v. Singleton, 211
N.J. 157, 174 (2012); N.J.S.A. 2C:4-1.



                                      25                                    A-1889-12T2
asserted such a relationship.                   However, that same clerk in 2003

told DCJ investigators no such relationship existed.

    The PCR court also erred in rejecting, out of hand, the

"nature    and    strength         of    defendant's         reasons      for       withdrawal."

Slater, supra, 198 N.J. at 159.                        The court relied solely on

defendant's      affirmations            at    the    plea       hearing,      which       it   held

belied her claim she was ill-informed about her defenses and

pressured      to      plead       guilty.            The        court    also        discounted

defendant's claim of inadequate consultation by counsel.

    We recognize that a defendant's representations "at plea

hearings concerning the voluntariness of the decision to plead

. . .    constitute      a     'formidable           barrier'         which    defendant        must

overcome    before      he     will       be    allowed          to   withdraw       his    plea."

Simon, supra, 161 N.J. at 444.                        However, at defendant's plea

hearing,    the      court     fell       short       of    conducting         the     searching

inquiry required to assure that a defendant has knowingly and

voluntarily       waived       a        claim    as        significant         as     diminished

capacity.        Our Supreme Court recently held in State v. Handy,

215 N.J. 334, 362 (2013), that before a trial court accepts a

waiver    of     the   insanity          defense,          the    court       must    conduct       a

"thorough      and     searching          inquiry      of        an    otherwise       competent

defendant concerning his or her understanding of the nature of

the right being waived and the implications that flow from that




                                                26                                         A-1889-12T2
choice."      We presume no less is required here.                        Yet, the court

failed even to identify the diminished capacity defense by name,

let alone describe the nature of the defense, its significance,

and inform defendant that the State would bear the burden to

disprove diminished capacity.

       As for factor two, defendant's claim that her trial counsel

did not adequately confer with her, and share the risks and

benefits      of   pleading,      was    more      than    a   bald     assertion.          Cf.

Cummings, supra, 321 N.J. Super. at 170.                       Defendant's assertions

were        supported       by     counsel's           prior        derelictions            and

misrepresentations,          which      the    court      found    when    it    sanctioned

trial counsel.           The PCR court minimized counsel's past behavior,

stating      it    pertained      only    to    the    production         of    the    expert

report.       However, counsel's behavior at the very least lent

plausibility        to    defendant's         claim    that       her   attorney,        after

representing that she had a viable defense, did not adequately

confer with her, failed to exercise diligence in obtaining a

promised second expert report, and then suddenly and urgently

advised her to switch course and plead guilty.

       We    conclude      that   an     evidentiary       hearing      is     required      to

fairly      assess       defendant's      asserted        reasons       for     seeking      to

withdraw her plea, and her allegations regarding trial counsel.

Upon completion of such a hearing, and in view of our comments




                                              27                                      A-1889-12T2
regarding the "colorable claim of innocence" prong, the trial

court shall reconsider the application to withdraw defendant's

plea.    In doing so, the court should also analyze prong four.

                                        C.

    Considering defendant's request for PCR, we agree with the

trial    court's    initial     view   that    defendant's       petition   is    not

time-barred by Rule 3:22-12.            She established excusable neglect

under the circumstances, particularly since she filed only a few

months    past     the    deadline.     Defendant      has     also    established

"fundamental injustice," as required by Rule 3:22-12(a)(1), as

she made "some showing that an error or violation played a role

in the determination of guilt."               Nash, supra, 212 N.J. at 547

(internal quotation marks and citation omitted).

    Turning        to    the   Strickland     test,   we   are    persuaded      that

defendant    established        a   prima     facie    claim      of   ineffective

assistance of counsel.           Defendant has presented more than bald

or conclusory allegations that her attorney's performance fell

"outside the wide range of professionally competent assistance."

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

Ed. 2d at 695.           As we have discussed, defendant presented a

plausible     claim,       supported     by     the    court's         finding     of

misrepresentation and dereliction of professional duty, that her

attorney failed to confer with her or obtain a second expert




                                        28                                  A-1889-12T2
opinion    as     promised,      and    urged     her   to    plead    guilty        without

adequate explanation despite months of preparation for trial.

      Defendant's claim of diminished capacity was supported by

an   expert     opinion,        and    indirectly       supported      by        defendant's

history of mental illness.                 Certainly, a jury may have been

persuaded to reject Dr. Sandoval's opinion, or that of another

defense expert.       Acquittal was far from certain.                      Yet, it is not

self-evident       that    pleading      guilty    was    a    reasonable          strategy,

particularly       since    the       agreement    called      for    a     plea     to   the

indictment,        and      a     sentence         resulting          in         defendant's

incarceration until age seventy-four.                        Upon a hearing, trial

counsel may well provide a basis for concluding that his advice

to   defendant       was    the        result     of    "reasonable          professional

judgment."        Strickland, supra, 466 U.S. at 689, 104 S. Ct. at

2065, 80 L. Ed. 2d at 694-95.                     However, on this record, and

extending       defendant         all     favorable          inferences,           she    has

established a prima facie case regarding prong one.

      As    for    the     prejudice       prong,       defendant          has     presented

sufficient evidence to show "a reasonable probability that, but

for counsel's errors, [s]he would not have pleaded guilty and

would have insisted on going to trial."                       Hill, supra, 474 U.S.

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

go to trial is plausible, because she had a plausible defense




                                           29                                       A-1889-12T2
that she could present through her expert's and perhaps her own

testimony.

      Her   readiness   to   go   to   trial   is    also    supported     by   the

nature of the plea offer.          This is not a case where the plea

offer was so attractive that it would defy logic or reason that

a defendant would risk a trial.             See Mustaro, supra, 411 N.J.

Super.   at   106-07.    Defendant       pleaded     to    the    indictment    and

accepted a sentence that could result in her spending the rest

of her life in prison.        We conclude defendant has made a prima

facie showing that going to trial would have been "rational

under the circumstances."         Padilla, supra, 559 U.S. at ___, 130

S. Ct. at 1485, 176 L. Ed. 2d at 297.                Defendant's claim that

she   would   have   insisted     upon   going      to    trial    had   she    been

effectively counseled cannot be rejected absent an evidentiary

hearing.

      In sum, we reverse and remand for the court to conduct an

evidentiary hearing and to reconsider defendant's application

for relief under Slater and Strickland.

      Reversed and remanded.       We do not retain jurisdiction.




                                       30                                 A-1889-12T2
