               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3436-16T3

STATE OF NEW JERSEY,
                                         APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                 May 10, 2019

v.                                           APPELLATE DIVISION


LEWIS HOOPER,

     Defendant-Appellant.
_________________________

           Argued September 26, 2018 - Decided May 10, 2019

           Before Judges Fuentes, Accurso and Moynihan.

           On appeal from Superior Court of New Jersey, Law
           Division, Middlesex County, Indictment No. 13-06-
           0768.

           John W. Douard, Assistant Deputy Public Defender,
           argued the cause for appellant (Joseph E. Krakora,
           Public Defender, attorney; John W. Douard, of
           counsel and on the brief).

           David M. Liston, Assistant Prosecutor, argued the
           cause for respondent (Andrew C. Carey, Middlesex
           County Prosecutor, attorney; David M. Liston, of
           counsel and on the brief).

     The opinion of the court was delivered by

ACCURSO, J.A.D.
       Defendant Lewis Hooper appeals his sentence on a nine-count

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

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

Because we conclude the court must hold an evidentiary hearing on

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

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

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

the Yarbough1 factors after determining to impose an extended-term sentence

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

defendant's motion to withdraw his plea.

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

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

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

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

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

rifled Lombardo's pockets.       After Kamara wrested the marijuana fro m

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

following Kamara out the door, defendant shot Lombardo.



1
    State v. Yarbough, 100 N.J. 627, 643-44 (1985).


                                                                        A-3436-16T3
                                        2
      The bullet struck Lombardo in the head, shattering his skull.       After

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

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

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

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

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

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

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

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

      Defendant was indicted on charges of second-degree conspiracy to

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

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

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

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) and (2) (count four); second-

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

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

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

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

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

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



                                                                       A-3436-16T3
                                       3
        Defendant, twenty-nine years old at the time of these offenses, was

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

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

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

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

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

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

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

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

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

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

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

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

possession of a weapon. Defendant rejected that offer.

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

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

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

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

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

present to the [victim's] family, a counter offer which will mandate the



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                                       4
defendant serving approximately thirty (30) years in a New Jersey State

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

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

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

practice.

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

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

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

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

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

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

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

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

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

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

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



2
  Although styled as affidavits, the documents are not sworn or certified. See
R. 1:4-4. We note, however, and confirmed at oral argument, that the State
does not challenge the accuracy of the statements regarding the substance of
the conversation with the judge in chambers on June 13, 2016.



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                                       5
defendant days earlier advising she intended to argue defendant was not

extended-term eligible. 3

      In response to her unwillingness to recommend defendant agree to be

sentenced to an extended term, counsel avers the prosecutor suggested

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

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

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

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

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

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

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

the State."

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

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

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

3
   Specifically, in that letter counsel advised defendant that although he was
sentenced in 2006 for a conviction in 2005, he was resentenced on that matter,
following a violation of his probation, in 2010. Counsel advised she
"intend[ed] to argue that the resentencing controls and that [he was] not
discretionarily extended term eligible." She further advised defendant that
"[i]f the [j]udge agrees, your sentencing is limited to 10-20 years subject to
NERA on the 1st Degree offenses. Of course the State could argue for
consecutive sentences, however, the law is not on their side as this is one
continuous event and one victim."


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                                       6
[j]udge was almost assuredly going to sentence him to something between ten

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

averred she told defendant

            that an open plea would result in a sentence between
            10 and 30 years, but would ultimately be left to [the
            judge]. We told him that since the current plea offer
            was 30 years, it was highly unlikely that the [j]udge
            would go above that number. We told Mr. Hooper
            that the [j]udge is never bound by plea offers, but
            since we had a conference, [the judge] was aware of
            the sentence that the State was recommending.

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

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

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

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

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

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

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

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

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

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

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

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

years, but if the court granted the State's extended-term motion, it could

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                                       7
sentence defendant to life in prison.       The judge confirmed defendant had

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

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

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

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

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

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

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

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

      Prior to sentencing, the prosecutor filed a brief seeking a seventy-five-

year prison term, including a fifty-five-year extended term for attempted

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

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

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

because defendant was resentenced on his 2006 theft conviction in 2010

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

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

and was thus not extended-term eligible.4


4
    Defense counsel argued at sentencing that "because a [violation of
probation] is not a crime," when the court resentenced defendant on his 2006
                                                                  (continued)

                                                                        A-3436-16T3
                                        8
      The judge also rejected counsel's argument that defendant shot

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

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

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

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

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

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

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

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

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

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

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

no mitigating factors.

      The judge merged for sentencing purposes defendant's convictions for

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

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

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

(continued)
theft conviction in 2010, "the conviction date for the theft from a person is
now March 26th, 2010." Defense counsel explained his "position [was] that
the March 26th, 2010 [judgment of conviction] supplants that 2006 conviction
here," thereby leaving defendant with only the 2010 conviction on his record.


                                                                        A-3436-16T3
                                       9
required by the No Early Release Act, N.J.S.A. 2C:43-7.2.          Concluding

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

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

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

injunction against "free crimes," supported a consecutive sentence of a twenty-

year NERA term on defendant's conviction for attempted murder. Yarbough,

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

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

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

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

on defendant's convictions for hindering apprehension or prosecution of

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

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

served without eligibility for parole.

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

were committed while defendant was on parole. Addressing the aggravating

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

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

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

judge expressed his expectation



                                                                       A-3436-16T3
                                         10
            that the sentence I will impose — and I know the word
            will get out to the community; the media is not here
            because the media has priorities that are not always
            correct, and they don't always report on stuff that goes
            on in the courthouse. But I know that the number I
            impose today will go out. And by this evening, people
            in New Brunswick will know what number it is, and
            they're going to go, damn. Damn. Because that's the
            reaction I want from the sentence that I give: Damn,
            that's serious.

                   And maybe, just maybe, some other
            knucklehead out in New Brunswick, or anywhere else
            in this county, will think twice about doing what this
            defendant did. So the [c]ourt is putting extraordinary
            emphasis on deterring others from violating the law.

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

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

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

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

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

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

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

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

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

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

Robinson, 217 N.J. 594, 605 (2014).




                                                                       A-3436-16T3
                                      11
      The judge also clarified the three counts for resisting and hindering

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

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

murder and unlawful possession of a handgun and imposed appropriate fines

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

amended sentence thereby reduced defendant's aggregate sentence to sixty

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

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

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

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

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

count).

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

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

Defendant described the "several communications" with his counsel that

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

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

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

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

urged him to plead to the indictment without a recommendation from the State .



                                                                        A-3436-16T3
                                      12
      Defendant claimed he did not recall counsel advising him at that meeting

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

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

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

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

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

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

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

not extended term eligible nor facing consecutive sentencing for the separate

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

open plea to the indictment.

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

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

representation defendant received from the Public Defender in connection with

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

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

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

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


5
  Plea counsel relied for that proposition on our opinion in State v. Sainz, 210
N.J. Super. 17, 26 (App. Div. 1986), holding that "[w]hen the conviction is the
                                                                     (continued)

                                                                         A-3436-16T3
                                       13
counsel "improperly relied, apparently, on conversations that took place in

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

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

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

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

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

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

their legal theory until defendant's sentencing date. 6

      Designated counsel further asserted plea counsel never explained to

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

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

(continued)
result of a plea, the judge may not make findings regarding the offense and the
defendant's role therein that are inconsistent with the factual basis that the
defendant has given or has acknowledged," apparently not realizing the
Supreme Court disagreed with us on that point. See State v. Sainz, 107 N.J.
283, 292 (1987). The Sainz Court made clear that "[w]hen a trial court
imposes a sentence based on defendant's guilty plea, the defendant's
admissions or factual version need not be the sole source of information for the
court's sentencing decision," but it may instead "look to other evidence in the
record when making such determinations," so long as "the court not sentence
defendant for a crime that is not fairly embraced by the guilty plea." Id. at
293.
6
  We note plea counsel should also undoubtedly have made resort to Rule 3:9-
3(c) and secured the judge's agreement to memorialize on the record his
conditional indication about the sentence before counseling defendant in
reliance on the judge's remarks in chambers.


                                                                       A-3436-16T3
                                        14
which was if you accept the 30 years, that's what you're going to get, you can't

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

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

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

      Designated counsel pointed out that had defendant entered a negotiated

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

subsequently determined it could not impose, defendant would have been

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

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

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

court sentencing him to a term twice as long.

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

only pleaded guilty based on patently erroneous legal advice, designated

counsel argued defendant should be permitted an immediate evidentiary

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

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

plea counsel were present in court and prepared to testify.

      The court declined to entertain defendant's allegations of ineffective

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

such claims "premature." The judge rejected any suggestion that counsel's



                                                                        A-3436-16T3
                                       15
impression of a conversation in chambers somehow converted the open plea to

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

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

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

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

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

willing to recommend was inadequate, notwithstanding that defendant had

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

sentencing court.

      Applying the Slater7 factors, the judge concluded defendant had not

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

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

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

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

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

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

fruit" and were not sufficient to justify relief.

7
   State v. Slater, 198 N.J. 145 (2009). The four Slater factors are: "(1)
whether the defendant has asserted a colorable claim of innocence; (2) the
nature and strength of defendant's reasons for withdrawal; (3) the existence of
a plea bargain; and (4) whether withdrawal would result in unfai r prejudice to
the State or unfair advantage to the accused." Id. at 157-58.


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                                         16
      We removed defendant's appeal from the limited sentencing calendar

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

the following issues for our consideration:

            POINT I

            THE MOTION JUDGE ERRED IN DENYING MR.
            HOOPER'S MOTION TO WITHDRAW HIS PLEA
            WHERE HE RELIED ON HIS ATTORNEYS'
            MISLEADING LEGAL ADVICE, RESULTING IN A
            GUILTY PLEA THAT WAS NOT KNOWINGLY
            AND INTELLIGENTLY ENTERED, PURSUANT
            TO STATE V. KOVACK AND R. 3:9-2.
            MOREOVER, CONTRARY TO THE JUDGE'S
            FINDING, THE WEIGHT OF THE SLATER
            FACTORS SUPPORT A PLEA WITHDRAWAL.
            THEREFORE, MR. HOOPER'S GUILTY PLEA
            CANNOT STAND. U.S. CONST. AMENDS. V, VI,
            AND XIV; N.J. CONST. ART. I, ¶¶ 1, 10.

                  A.    Because There Was No "Meeting Of The
                        Minds" About The Possible Consequences
                        Of An Open Plea, Mr. Hooper Did Not
                        Enter Into A Valid Plea Bargain.

                  B.    The Judge Failed To Properly Analyze
                        The Slater Factors.

                  C.    Conclusion.

            POINT II

            THE JUDGE ABUSED HIS DISCRETION IN
            IMPOSING   BOTH   AN   EXTENDED-TERM
            SENTENCE AND THREE CONSECUTIVE TERMS,
            FOR AN AGGREGATE PRISON TERM OF SIXTY
            YEARS, FOR OFFENSES THAT OCCURRED IN
            THE COURSE OF COMMITTING A SINGLE

                                                                     A-3436-16T3
                                       17
            ROBBERY, RESULTING IN A SENTENCE FAR IN
            EXCESS OF THE ORIGINAL PLEA OFFER OF A
            THIRTY-YEAR PRISON TERM.

      There is no rule that claims of ineffective assistance must await a post-

conviction relief proceeding or cannot be raised on direct appeal. 8 See State v.

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

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

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

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

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

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

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

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

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

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

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

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

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


8
  Indeed, the Supreme Court requires that claims of ineffective assistance of
counsel in termination of parental rights cases be raised on direct appeal. See
R. 2:10-6; R. 5:12-7; N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J.
301, 311 (2007).


                                                                         A-3436-16T3
                                       18
conviction relief to raise an ineffective assistance claim when the trial record

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

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

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

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

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

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

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

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

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

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

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

Slater and a claim of ineffective assistance of counsel under Strickland.9 As

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

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

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

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

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

after sentencing and not in a PCR proceeding.

9
    Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).


                                                                         A-3436-16T3
                                       19
       Moreover, applying a de novo standard of review to the denial of

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

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

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

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

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

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

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

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

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

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

counsel's constitutionally ineffective performance affected the outcome of the

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

relief, a defendant "must convince the court that a decision to reject the plea

bargain would have been rational under the circumstances."              Padilla v.

Kentucky, 559 U.S. 356, 372 (2010).

       Applying that standard here, we are satisfied defendant established a

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

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

facie claim of ineffective assistance of counsel requires a defendant to



                                                                          A-3436-16T3
                                        20
demonstrate a reasonable likelihood of success under Strickland). Defendant

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

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

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

defendant entered an "open plea,"10 which exposed him to a NERA term over

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

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

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

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

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

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

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

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

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

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

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

evidentiary hearing on his claim.



10
   An "open plea" is one not including "a recommendation from the State, nor
a prior indication from the court, regarding sentence." State v. Kates, 426 N.J.
Super. 32, 42 n.4 (App. Div. 2012), aff’d, 216 N.J. 393 (2014).


                                                                        A-3436-16T3
                                       21
      The State, however, argues it never actually extended the offer

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

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

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

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

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

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

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

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

                  Please allow this letter to confirm our recent
            conference regarding the [State v. Hooper] matter.
            During that conference, you presented the State with a
            counter offer of twenty (20) years in a New Jersey
            State Prison. That counter offer was respectfully
            rejected. Thereafter, the undersigned has had further
            discussions with the family of the victim in this
            matter.     Based upon those discussions, the
            undersigned will present to the family, a counter offer
            which will mandate the defendant serving
            approximately thirty (30) years in a New Jersey State
            Prison.

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

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

recommended thirty-year sentence was realistically available to defendant




                                                                       A-3436-16T3
                                      22
before he entered his open plea. 11         It will also provide defendant an

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11
    We are not convinced the State's actual extension of a thirty-year offer is a
critical factor here in light of the statements by defense counsel that they
understood a thirty-year NERA term to be the State's final offer and based
their advice to defendant on that understanding. If, however, that offer was
not realistically available, the court must consider the fact in assessing whether
defendant was prejudiced by his counsel's advice. See Strickland, 466 U.S. at
687.


                                                                         A-3436-16T3
                                       23
sentence in State v. DiFrisco, 137 N.J. 434, 455 (1994). The statements, at

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

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

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

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

for extended-term sentencing and exposure to consecutive terms.

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

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

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

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

was willing to recommend.       The court must thereafter determine whether

defendant was misinformed in entering his plea.

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

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

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

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

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

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

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

"[t]he two applications implicate different but overlapping rights." 435 N.J.



                                                                         A-3436-16T3
                                       24
Super. at 369.   A defendant's motion to withdraw a guilty plea implicates

fundamental rights to liberty as well as due process. See Slater, 198 N.J. at

158 ("A core concern underlying motions to withdraw guilty pleas is to correct

the injustice of depriving innocent people of their liberty.").     A claim of

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

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

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

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

results.").

      Ineffective assistance claims and motions to withdraw a plea are also

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

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

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

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

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

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

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

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

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

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



                                                                        A-3436-16T3
                                      25
defer to a trial court's factual assessment of the claims where an evidentiary

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

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

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

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

at 415.

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

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

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

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

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

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

colorable claim of innocence to establish ineffective assistance under

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

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

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

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

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

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

for PCR in order to have his ineffective assistance claim heard, instead of



                                                                         A-3436-16T3
                                       26
hearing it along with defendant's Slater motion. See Allah, 170 N.J. at 285.

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

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

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

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

of the claim. Ibid.

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

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

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

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

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

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

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

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

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

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

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

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

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

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



                                                                         A-3436-16T3
                                       27
petition is not "a substitute for appeal from conviction or for motion incident

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

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

impediment to the trial court judge considering defendant's ineffective

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

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

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

motion for new trial prior to sentencing).

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

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

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

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

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

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

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

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

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

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

attorneys who are representing defendants in criminal cases in their courts."




                                                                       A-3436-16T3
                                       28
McMann v. Richardson, 397 U.S. 759, 771 (1970). When such matters can be

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

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

to evidentiary hearings on ineffective assistance claims on plea-withdrawal

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

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

ineffective assistance of counsel requiring an evidentiary hearing.            See

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

Public Defender to immediately appoint new counsel, who proffered the

affidavits of plea counsel cataloging the erroneous advice they provided

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

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

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

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

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

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

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

motion and not defer it to a PCR proceeding.

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

allegedly made in chambers about the sentence. Although we agree with the



                                                                         A-3436-16T3
                                       29
judge that no published case imposed an obligation on him to permit defendant

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

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

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

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

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

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

policy considerations which favor the finality of judicial procedures against

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

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

circumstances showing that it was made truthfully, voluntarily and

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

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

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

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

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

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

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

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

invoked and the court is not "invited in," as it was not here, a defense attorney



                                                                        A-3436-16T3
                                       30
cannot responsibly counsel a client in reliance on a judge's comments about a

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

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

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

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

potential sentence whether in chambers or on the record.

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

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

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

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

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

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

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

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

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

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

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

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

expect the government to "turn square corners." F.M.C. Stores Co. v. Borough




                                                                       A-3436-16T3
                                      31
of Morris Plains, 100 N.J. 418, 426 (1985). We should accept nothing less in

ourselves.

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

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

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

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

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

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

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

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

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

an appropriate sentence was greatly altered by evidence beyond the facts

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

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

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

withdraw his plea.




12
   The State at sentencing argued defendant shot the victim while he lay on his
back on the floor. Defense counsel argued the physical evidence, most notably
a bullet fragment lodged in the foyer wall, supported defendant's claim that the
victim was standing when defendant shot him.


                                                                       A-3436-16T3
                                        32
      That brings us to defendant's sentence. Although we agree defendant

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

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

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

court initially imposed four extended terms in sentencing defendant, an

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

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

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

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

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

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

handgun and the two counts of hindering.

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

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

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

each offense should not be used again to justify imposing those senten ces

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

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

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

as to serve as a warning for others was consistent with a "focus on the fairness



                                                                        A-3436-16T3
                                      33
of the overall sentence."    Id. at 121.    Accordingly, we vacate defendant's

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

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

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

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

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

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

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

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

plea.

        Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




                                                                        A-3436-16T3
                                       34
