STATE OF NEW JERSEY v. LYNN GIOVANNI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LYNN GIOVANNI,

Defendant-Appellant.

______________________________

November 19, 2014

 

Submitted August 27, 2014 Decided

Before Judges Ostrer and Rothstadt.

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

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Lynn Giovanni appeals from the trial court's September 6, 2011, order, entered after an evidentiary hearing, denying her petition for post-conviction relief (PCR). Defendant seeks PCR from a judgment of conviction for aggravated manslaughter, N.J.S.A. 2C:11-4, entered after a guilty plea, as a lesser included offense of knowing or purposeful murder, N.J.S.A. 2C:11-3a(1), -3a(2). Defendant also challenges her sentence of thirty years, with an eighty-five percent parole bar pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Having considered defendant's arguments in light of the evidence and applicable principles of law, we affirm the denial of PCR, but remand for reconsideration of defendant's application to withdraw her plea.

I.

We discern the following facts from the record, considering the circumstances of the offense; the mental health experts' opinions; the plea negotiations; the plea; and the sentence.

A.

Defendant killed her fourteen-year-old daughter, N.G., by bludgeoning her with a hammer while she slept. The homicide occurred on February 6, 2005. Defendant was forty-five years old at the time. She had financial problems, and suffered from various mental and physical conditions. Her daughter also was allegedly coping with behavioral and adjustment problems.

The previous year, defendant and her daughter had moved in with defendant's mother after defendant was forced to sell her home. Defendant was divorced in 1998 after numerous incidents of alleged domestic violence. After the divorce, defendant received primary residential custody of N.G.

Defendant was treated by a psychologist between 1998 and 2000, and diagnosed with depression and post-traumatic stress disorder. Although she had a lengthy prior work history, by the time of the homicide, she had been unemployed for an extended period of time, and had exhausted unemployment benefits. Defendant complained of numerous physical ailments, but did not qualify for disability income. She received a modest amount of child support from her former husband.

N.G. had been treated for depression. Defendant alleged N.G. had various other behavioral and mental health problems, although others stated that defendant had for some time exaggerated her daughter's problems. Defendant asserted N.G. expressed suicidal ideation.

After the homicide, defendant said she tried to kill herself. She ingested various psychotropic pills prescribed for her and her daughter. After that did not work, she left the house in her car and repeatedly drove into a guardrail. She was found at the scene of the motor vehicle collision. Defendant gave a Mirandized videotaped statement shortly after her arrest.1 Soon after the homicide, she was hospitalized at the Ann Klein Forensic Center (AKFC), and remained there until she was transferred to the Union County Jail in September or October 2005.2

She was indicted on September 26, 2005 and charged with first-degree purposeful and or knowing murder, N.J.S.A. 2C:11-3(a)(1), -3(a)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Her arraignment status conference occurred on October 31, 2005.

B.

Both the State and defense counsel recognized from the beginning that the case involved potential defenses of insanity and diminished capacity. Defendant's attorney was a senior public defender, who had previously handled multiple homicide cases and had experience interposing mental-health-related defenses.

Pre-indictment, defense counsel obtained the expert reports of two mental health experts. After examining defendant in four sessions in July and August 2005 at AKFC, Alan M. Goldstein, Ph.D., opined in a February 2006 report that defendant killed her daughter to spare her "from continued misery and suffering (real or imagined) similar to that which Ms. Giovanni had experienced." He concluded that defendant was suffering from bipolar II disorder, depressed, severe, with psychotic features.

Defendant denied having auditory hallucinations, and told Dr. Goldstein that she did not view her actions as wrong; she was "helping her end the pain and erroneously thinking I'd be with her." Although defendant reportedly told a doctor after her suicide attempt that she planned the killing for over a month, she told Dr. Goldstein that the idea of the homicide suddenly came to her. However, she told her ex-husband a couple of weeks earlier that she wanted to kill herself. Dr. Goldstein opined that although defendant "understood the nature and consequences of her actions," she "was overwhelmed by her emotions such that her judgment and reasoning were substantially impaired and [she] was unable to appreciate the wrongfulness of [her] actions."

Kenneth J. Weiss, M.D., prepared a report in April 2006, after examining defendant on March 29, 2006 at the county jail. He opined that defendant suffered from "significant residual depression, though she is no longer psychotic." He stated she continued to pose a danger to herself. Although he found "a reasonable amount of evidence that [N.G.] had a mood disturbance," he was uncertain whether the child was "frankly suicidal," or whether defendant had "projected her own death wish onto the child." Dr. Weiss stated that defendant had become psychotic in her major depressive episode. He opined that defendant "was laboring under a defect of reason, from a disease of the mind (major depressive episode, severe, with psychotic features), such that she did not know what she was doing was wrong. This would be consistent with the requirements of N.J.S.A. 2C:4-1." Her depression was so severe that defendant could not separate reality from fantasy, and she believed what she was doing was right because it would end her daughter's perceived suffering and wish to end her life.

When defendant was discharged from AKFC, her diagnosis was bipolar I disorder, most recent episode mixed with psychotic features. She was still receiving antipsychotic and mood stabilizing medication.

Pursuant to State v. Whitlow, 45 N.J. 3, 24-25 (1965), the State exercised its right to subject defendant to examination by a State psychiatric expert, Antonio A. Abad, M.D. Dr. Abad examined defendant on August 7 and 15, 2006, and on September 22, 2006. Dr. Weiss observed.

Shortly after the August sessions, and again after the September session, the State provided the defense with video-recordings of the examinations, although defense counsel later testified that he did not recall viewing them. Although Dr. Abad did not complete his written assessment until November 30, 2006, the defense understood that Dr. Abad would not support an insanity or diminished capacity defense. Dr. Weiss reportedly told defense counsel that the interviews "went very badly."

Dr. Abad wrote in November 2006 that it was his opinion that defendant "willfully and consciously" struck N.G. "with the intention of killing her." He stated, "No mental defect appeared to be involved . . . . The defendant's description of her state of mind prior, during and after the incident, in the absence of any evidence of psychosis or other cognitive deficits, in my professional opinion, reflects a conscious and deliberate decision process." Dr. Abad opined that even if defendant believed N.G.'s life to be not worth living, defendant was capable of understanding her actions were wrong.

Dr. Abad stated that defendant's "subjective report . . . was consistent with a diagnosis of Major Depression, recurrent, without psychotic features, during the four weeks prior to February 6, 2005." Based on defendant's history, the doctor concluded that defendant suffered from "Major Depression, recurrent, with onset during late adolescence, with multiple relapses, with a current persistent episode of major depression." He also stated her examination was consistent with a diagnosis of post-traumatic stress disorder. She continued to be treated with Zoloft, Abilify, and Trazodone.

However, Dr. Abad specifically rejected the notion that defendant "snapped" before she killed N.G. Defendant stated she was preoccupied with the idea of her own suicide for three days prior to the homicide, and what would happen to N.G. if defendant took her own life. Dr. Abad credited defendant's prior statements made shortly after homicide that she had prior thoughts of killing N.G. Dr. Abad rejected defendant's statements to the contrary. "Even though she denied to this writer any thoughts of hurting [N.G.] prior to the day of the instant offense, she acknowledged previously that she had been thinking on that plan prior to the alleged 'snapping.'" He added, "Consequently, it appears that even though the defendant might have struggled initially against, and later on in favor, of the idea of killing her daughter, the defendant appears to have considered in length her actions." Her actions were "consistent with premeditation."

C.

In the PCR hearing, many facts pertaining to the plea negotiations were disputed. In particular, defendant claims that defense counsel conveyed to her a plea offer with a twenty-year term, but when she asked for time to think about it, counsel did not advise her that the offer could be withdrawn at any time. When she was ready to accept the offer, it had already been withdrawn. Defense counsel and the prosecutor both denied that the State ever extended a twenty-year offer.

According to the assistant prosecutor, the State extended its first formal written plea offer to the defense in January 2006. The State offered a thirty-year sentence, with a thirty-year parole bar, upon a plea to first-degree murder. Apparently, plea discussions continued in the following months.

Defense counsel specifically denied that the State ever expressed a willingness to enter into a plea agreement with a twenty-year term, although he understood that defendant wanted such an agreement. In June 2006, faced with the prospect of the State's examination of defendant, defense counsel wrote to the State that defendant was willing to accept a twenty-four-year sentence. In the letter, which was admitted into evidence, defense counsel acknowledged that he had previously proposed a plea calling for a twenty-year term of incarceration, but the State rejected it. Counsel testified that he understood the various terms discussed to refer to the length of time defendant would need to serve before parole eligibility, and not the actual sentence. Counsel wrote that the State had suggested that a twenty-seven-year term "would be possible."

The assistant prosecutor testified that in July 2006, she obtained internal approval to extend a revised offer that would result in a thirty-year sentence, with an eighty-five-percent parole bar. The form stated, "30/85 . . . 25.5 years or whatever family can live with." However, the record does not include a contemporaneous letter from the prosecutor to defense counsel, extending that offer.

Defense counsel testified that sometime after defendant's last session with Dr. Abad on September 22, 2006, he got a call to meet defendant. Counsel testified that defendant told him that she wanted to work out a plea agreement, she was under stress, and "had no desire to proceed anymore." Defense counsel stated that until then, he was "fully engaged in trial preparation." He told her he believed he had a basis to challenge the admissibility of statements under Miranda. He asserted that "my advice to her was to really not accept any plea offers. . . . In light of Ms. Giovanni's age and those numbers, my advice to her, basically those high numbers really . . . amounted to a life sentence in my view. I told her that."

Although he discouraged defendant from entering a plea with a thirty-year term, counsel also stated that he explained to defendant the challenges of her mental health-related defenses.

I told her . . . the great difficulty in proving insanity . . . that we would have to prove to a jury that when she caused the child's death, that she didn't know what she was doing or that she did not know what she was doing was wrong. I advised her it would be difficult to prove that she didn't know what she was doing was wrong in light of the fact that she attempted suicide moments after the incident occurred, which would go to consciousness of her conduct.

I advised her that it is often that diminished capacity is even more difficult to prove because we would have to establish that she was unable to formulate purpose or knowing. In other words, that at the time that the incident occurred that she did not know what she was doing and I told her about the difficulty of those challenges.

Defendant presented a substantially different version of the plea negotiations and trial preparation. In her testimony in the PCR hearing, she conceded numerous times that she did not recall details of her conversations with defense counsel, particularly while she was at AKFC. She attributed the lack of memory to her state of mind at the time. In particular, she did not recall her mental health examinations in AKFC, although Dr. Goldstein saw her there on four separate occasions. She did not recall discussing the insanity or diminished capacity defense while at AKFC, or later. She remembered learning that the reports from Dr. Goldstein and Dr. Weiss were favorable, but she asserted that defense counsel was discouraging about the prospects of success.

However, defendant testified that she distinctly recalled a meeting with defense counsel, after she was transferred to the county jail, in which counsel presented the offer of a plea bargain with a twenty-year sentence. She asked if she could have time to think about it, and defense counsel indicated that she could. She alleged that when he next visited, about a week or two later, "[T]he first thing I said to him was . . . I decided to take the 20 years and he said, oh, there's no 20 years. He says it's 30." She said the plea offer was a thirty-year sentence, with an eighty-five percent disqualifier.

Defendant denied receiving copies of the correspondence discussed above, and claimed to be unaware of prior offers such as the State's offer of a thirty-year term, with a thirty-year period of parole ineligibility. She denied that defense counsel reviewed discovery with her. She also could not recall being advised of her appeal rights after sentencing. When confronted with her statements at her plea hearing that she had reviewed discovery in her case, she was satisfied with counsel's performance, and she understood her appeal rights, defendant stated that her answers were not "really true," and her "mind was not where it needed to be to defend myself at that point in time."

Defendant denied that counsel discouraged her from pleading. She professed ignorance of his plans to pursue a Miranda motion. She stated she decided to plead guilty because defense counsel "said that 30 years was it, . . . he did not think I was going to get any better than a 30-year sentence."

D.

On October 3, 2006, defendant entered her plea. As we discuss below, the parties dispute the nature of the charge to which defendant pleaded, and whether a sufficient factual basis was provided.

According to the terms of the plea form, and the clear import of the plea hearing, defendant had agreed to plead guilty to first-degree murder. She was promised a lesser term of thirty years, with an eighty-five-percent parole bar, as would be appropriate for first-degree aggravated manslaughter. The plea form listed first-degree murder as the "charge[] to which you are pleading guilty," and included the statutory maximum of "30 - Life." However, paragraph thirteen, which "[s]pecif[ies] any sentence the prosecutor has agreed to recommend," stated, "sent[ence] to aggravated manslaughter 30 years 85% w/o parole." Paragraph seven, pertaining to mandatory periods of parole, stated that the minimum mandatory period of parole ineligibility would be 25.5 years. A supplemental plea form for NERA offenses expressly described the plea to be to "murder to be sentenced to Agg Mansl."

During the plea colloquy, the court did not expressly confirm the charge to which defendant agreed to plead guilty. But, in addressing that defendant would be treated as convicted of aggravated manslaughter "for purposes of sentencing," the court implicitly reinforced the written agreement that defendant would plead guilty to murder, but be sentenced as if she committed aggravated manslaughter

THE COURT: If you plead guilty, the sentence recommended will be a sentence akin to an aggravated manslaughter. This will be treated as an aggravated manslaughter for purposes of sentencing, and you'd face 30 years in State prison. You'd be ineligible for parole for 85 percent of that term under the No Early Release Act. Now according to the tables, that amount of parole ineligibility is equal to 25 years, six months and two days.

Virtually every response defendant gave during the plea hearing was a short yes or no. She denied she was under the influence of any medication or had a mental problem that would affect her ability to understand the plea proceedings.3 However, in the PCR hearing, defendant testified that she was not in the "right state of mind" when she pleaded, or when she was sentenced.

The court elicited defendant's confirmation that in pleading, she gave up her right to present her "own defenses." However, the court did not expressly address defendant's potential insanity or diminished capacity defense.

Defense counsel confirmed that defendant intended to plead guilty to murder.

[DEFENSE COUNSEL]: Ms. Giovanni, you understand that you are pleading guilty to knowingly causing the death of [N.G.]. Do you understand that?

A Yes.

Q Are you guilty of that charge?

A Yes.

Defense counsel then attempted to secure a factual basis.

Q On February 6, 2005, were you in the Town of Roselle Park?

A Yes.

Q And on that day, did you hit [N.G.] with a hammer on -- at the back of her head?

A Yes.

Q And you hit her a number of times?

A Yes.

Q And you know that by doing that, that you caused her death?

A Yes.

Q There came a time when you left that room?

A Yes.

Q Was she breathing when you left the room?

A (no verbal response).

THE COURT: I'm sorry ma'am, was that a yes or a no?

THE DEFENDANT: No.

The prosecutor then cross-examined

Q And you realized by hitting your daughter on the head with a hammer while she was sleeping, that it was practically certain that you would cause her death?

A Yes.

Q And you've had an opportunity to review the autopsy report in this case?

A Yes.

Q And you know in fact that it was your actions that did in fact cause her death?

A Yes.

The court accepted the plea as voluntary, knowing, and factually supported.

E.

Defendant claims that she was advised she could not speak at sentencing. She also complains that her attorney failed to advocate effectively for a lower sentence.

At the sentencing hearing on December 1, 2006, the court and counsel also recharacterized the plea itself, as an admission of guilt to aggravated manslaughter. Without formally offering an amendment, the assistant prosecutor agreed that the charge to which defendant pleaded was aggravated manslaughter. At the PCR hearing, the prosecutor testified that she had discussions although she did not state with whom regarding whether defendant's plea to murder, to be treated as aggravated manslaughter for sentencing purposes, was a legal plea.

At sentencing, the following colloquy occurred

THE COURT: This is in the matter of State v. Lynn Giovanni, Indictment 05-9-1032. The charge is first degree aggravated manslaughter, as I understand. Is that correct?

[DEFENSE COUNSEL]: Correct, your Honor.

THE COURT: [Counsel], have you had an opportunity to review the extensive Presentence Report with Ms. Giovanni?

[DEFENSE COUNSEL]: Yes, Judge, I have received the Adult Presentence Report.4 I reviewed it with Ms. Giovanni. There is one need for correction and that is on Page 1, Count One should be changed to read aggravated manslaughter but with that correction there are no other needs for corrections, deletions or changes.

THE COURT: [Prosecutor], do you agree that the charge is aggravated manslaughter and not the murder charge set forth in the Presentence Report?

[PROSECUTOR]: Yes, your Honor, I do.

THE COURT: I think that the factual basis covered the aggravated manslaughter charge although it was initially perhaps presumed it would be a murder charge. Do you agree, [counsel], that Ms. Giovanni did give a factual basis to that offense?

[DEFENSE COUNSEL]: Yes, Judge.

Defense counsel acknowledged the terms of the plea agreement, but presented "matters in mitigation." He argued that factor seven applied, see N.J.S.A. 2C:44-1(b)(7), because she had no criminal record. He also argued at some length that defendant's mental status should be considered a mitigating factor. Counsel cited factor four, see N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"). He reviewed her bipolar disorder diagnosis at AKFC, and her symptoms of paranoid thinking, delusional beliefs, mania, depression, and suicidal ideation. He asked the court to "sentence [defendant] in accordance with the plea agreement."

Defense counsel did not request a specific sentence below that authorized in the plea agreement. He stated at the PCR hearing that he did not believe such a request had any prospect of success under the circumstances.

Defendant did not address the court. Defense counsel stated, "She's asked me to speak on her behalf." He expressed her sorrow, grief, and remorse. Defendant asserted at the PCR hearing that she did not speak because her counsel told her that the court would not allow her to do so. Defense counsel denied telling his client that she could not speak, although he did discourage her from discussing the alleged abuse by her ex-husband.

The court confirmed during the sentencing hearing that it was defendant's decision not to address the court. The judge asked, "Is it my understanding that [defendant] does not want to address the [c]ourt?" Defense counsel replied, "That is correct," without objection from defendant. When confronted at the PCR hearing with her silence at that point in the sentencing hearing, defendant stated, "At that point I just figured it was just technicalities and I just went with it."

No one else spoke on defendant's behalf. In support of her PCR petition, defendant provided several character letters written in support of defendant in advance of sentencing. Defense counsel did not refer to them, and the court did not acknowledge that they were received. Defendant asserted at the PCR hearing that defense counsel told her that the court would not hear from character witnesses. The court heard at length from N.G.'s father and other family members, as well as the prosecutor.

The court acknowledged that defendant suffered from "bipolar disorder mixed with psychotic features and that [she] experienced psychiatric and personal problems over a prolonged period of time." The court found those facts posed a risk of re-offending, aggravated factor three, N.J.S.A. 2C:44-1(a)(3), as opposed to a mitigating factor. The court found aggravating factor nine, need to deter. N.J.S.A. 2C:44-1(a)(9). The court found mitigating factor seven, but rejected factor four stating, "From the factual basis given by the defendant, she clearly knew what she was doing and admitted entertaining homicidal thoughts for some period of time."5

The court confirmed that defendant had received notice of her right to appeal. Defendant did not file a direct appeal.

II.

In her August 2009 pro se petition, defendant asserted that her trial attorney was ineffective in four respects. First, he failed to advise her that an alleged plea offer of a twenty-year sentence, which she claimed she would have accepted, might be withdrawn without notice, which she claimed it was. Second, he did not adequately pursue the insanity and diminished capacity defenses, which offered her a reasonable prospect of acquittal "if she had gone to trial." Third, he failed to argue for a sentence less than the maximum allowed under the plea agreement, and to present mitigating factors. Finally, he misinformed her that she could not speak at her sentencing hearing. As for relief, defendant requested "Much lower sentence/no parole (or probation?)."

In a June 2010 supplemental brief to the trial court, defendant presented the following points in support of PCR

Point I- The Guilty Plea Must Be Vacated Because The Factual Basis Did Not Constitute Aggravated Manslaughter; The "Agreed" Sentence Violated Briggs; There Was A Denial Of Effective Assistance Of Counsel And Due Process Of Law.

Point II Ms. Giovanni Is Entitled To A Vacation Of Her Guilty Plea Because It Was Not Knowing And Voluntary; She Did Not Agree To The Maximum Sentence For Aggravated Manslaughter And She Was Unaware That She Had A Viable Defense Of Insanity; There Was A Denial Of Effective Assistance Of Counsel, Due Process Of Law, And The Right To Trial By Jury.

Point III Defense Counsel Provided Ineffective Assistance Of Counsel In Failing To Advise Ms. Giovanni That There Was A Time Limit To Accept A Plea Offer; As A Result, Ms. Giovanni Lost The Opportunity To Accept A More Favorable Offer; The Court Must Conduct An Evidentiary Hearing On This Issue Pursuant To Allegro.

Point IV Ms. Giovanni Was Denied Effective Assistance Of Counsel And Due Process Of Law In The Sentencing Process; Defense Counsel Failed To Deal Adequately With The Mitigating And Aggravating Factors; Counsel Erred In Advising Ms. Giovanni That She Could Not Exercise Her Right To Allocution.

Point V Ms. Giovanni Has Demonstrated Her Right To Withdraw The Guilty Plea By A Preponderance Of The Evidence; At A Minimum, She Has Made A Case For An Evidentiary Hearing To Resolve The Issues Of Ineffective Assistance Of Counsel And Denial Of Due Process Of Law; Her Failure To Appeal Does Not Bar The Claims.

Point VI Compliance with State v. Webster.

In Point II, she expressly requested to withdraw her plea under State v. Slater, 198 N.J. 145 (2009).

The court applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel: a petitioner must show that: (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance; and (2) that counsel's performance created a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 689, 695, 104 S. Ct. 2052, 2064, 2065, 2068, 80 L. Ed. 2d 674, 693, 694, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).

The court rejected defendant's argument that her allocution did not provide a factual basis for aggravated manslaughter. Defendant argued that she admitted that she knowingly caused her daughter's death, which was consistent with a plea to murder, not aggravated manslaughter.

The court held that defendant misconstrued her allocution. Although the allocution conceivably satisfied the elements of murder, it also satisfied the elements of aggravated manslaughter. "The only thing [defendant] admitted knowing was that by hitting her daughter in the head, she caused her death." That admission, the court held, satisfied the causation element of aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1). The recklessness element under N.J.S.A. 2C:2-2(3) was established by defendant's admissions that she struck her daughter repeatedly with a hammer, which constituted a "gross deviation from the standard of conduct a reasonable person would observe." N.J.S.A. 2C:2-2(3). Defendant established "circumstances manifesting extreme indifference to human life," N.J.S.A. 2C:11-4(a)(1), by admitting that she realized her actions made it practically certain that she would cause N.G.'s death.6

Based on his assessment of the witnesses' credibility at the PCR hearing, the court was unpersuaded by defendant's claim about the alleged offer of a twenty-year term; and that defense counsel told her the court did not permit her to speak. The court noted defendant's poor recollection of the facts, which he found to be "more selective memory than a true failure to recollect." The court found that defense counsel advised her against pleading guilty, while advising her of the weaknesses of her defense. The court reviewed at length Dr. Abad's report and opinions. Although defense counsel did not request a specific term under thirty years, the court held that defense counsel presented arguments in mitigation, which the court construed as a request for a lesser sentence. The court held that counsel was not ineffective under the first Strickland prong.

Defendant also failed to meet the second prejudice prong, "because her sentence would not have been less than 30 years even if trial counsel had formally asked for a lesser sentence." The court also held that the alleged failure to submit the character letters did not support PCR. "Assuming they were available to trial counsel at sentencing, their submission would have had no impact on the sentence. Thus petitioner has failed to meet Strickland's second prong.

Turning to defendant's argument that she should be entitled to withdraw her plea, the court noted that a "manifest injustice" must be demonstrated to withdraw a plea after sentencing under Rule 3:21-1. The court found that defendant's plea was knowing and voluntary, and was supported by a factual basis under Rule 3:9-2. The court then found that defendant had failed to meet any of the four Slaterfactors: "(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." Slater, supra, 198 N.J. at 157-58.

The court held there was no colorable claim of innocence because "she never contested the fact that she committed the homicide of her daughter [and] petitioner waived her claim of an insanity defense when she pled guilty." The court noted that defendant pleaded "after the State's expert did great damage" to defendant's insanity defense. As for the second prong, the court referred to its other findings, apparently intending to incorporate those that defendant understood the nature of the plea and was not misinformed by her attorney. The court found that the existence of a plea agreement disfavored withdrawal, and that passage of time would result in unfair prejudice to the State.

Defendant presents the following points

POINT ONE

DEFENDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER MUST BE REVERSED BECAUSE HER FACTUAL BASIS FOR HER GUILTY PLEA DID NOT ESTABLISH THE ELEMENTS OF AGGRAVATED MANSLAUGHTER.

POINT TWO

THE ORDER DENYING POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA AND SENTENCING.

Defendant filed a pro se supplemental brief, which amplified Point Two of the initial brief. Included in the brief were various unsworn assertions of fact in support of her claim that her counsel misinformed her about plea negotiations and the strength of her mental-health-related defenses. Further, defendant stated that she was insane when she killed N.G., and did not plan the crime.

She asserted that she was not of sound mind when she pleaded and was sentenced. However, she was indefinite in describing the impact of counsel's alleged ineffectiveness. "I may have either gone to Trial to prove Insanity, or vied for the minimum 10 years if they were to give me Aggravated Manslaughter, certainly not 30!" She also argued that the trial court erred in sentencing by not treating her mental illness as a mitigating factor, and instead treating it as a risk of reoffending.

III.

We affirm the denial of PCR substantially for the reasons set forth in the trial court's comprehensive written opinion. We defer to the trial court's factual findings based on the evidence presented and its credibility determinations. See State v. Feaster, 184 N.J. 235, 277-78 (2005). We also discern no legal error pertaining to the court's application of the standards governing PCR. SeeManalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995) (stating that the trial court's legal conclusions are not entitled to deference).

We find no reasonable basis to dispute that at the plea hearing on October 3, 2006, defendant, the court, and counsel, contemplated a plea to murder. The plea form, and the subsequent proceedings confirmed that. Moreover, defendant presented a sufficient factual basis for a murder conviction. The plea agreement called for defendant to be sentenced as if she committed aggravated manslaughter. However, as the assistant prosecutor later testified at the PCR hearing, doubts arose as to the legality of the plea agreement.

Those doubts were well-founded. The plea agreement as originally fashioned essentially called for defendant to receive a downgraded sentence, albeit for a crime that also fell into the first-degree range. Although there is statutory authority to sentence an offender to a term appropriate to a crime one degree lower, N.J.S.A.2C:44-1(f)(2), there is apparently no statutory authority for sentencing a person convicted of murder to a sentence appropriate to aggravated manslaughter.

However, the principles applicable to downgraded sentences are relevant here. In State v. Moore, 377 N.J. Super.445 (App. Div.), certif. denied, 185 N.J.267 (2005), the defendant entered a plea to a second-degree crime, but the judge imposed a downgraded sentence within the third-degree range pursuant to a plea agreement. Id.at 447-48. The court did not make the findings, prerequisite to a downgrade, that it was "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands" the lesser sentencing range. Id.at 450 (quoting N.J.S.A.2C:44-1(f)(2)); see alsoState v. Megargel, 143 N.J.484, 496-502 (1996) (discussing standard for imposing downgraded sentence). Rather, in Moore, the trial judge expressly found the aggravating factors outweighed the mitigating factors, but imposed the downgraded sentence because it conformed to the plea agreement. Moore, supra, 377 N.J. Super.at 451. We held that the sentence was illegal, because it violated N.J.S.A.2C:44-1(f)(2). Ibid. Consistent with Moore, there is reason to question the legality of a sentence for murder in the range of a sentence for aggravated manslaughter.

To avoid the perceived problem, the State and defendant had a choice withdraw the plea agreement entirely, or the court enter a conviction for the lesser crime, and sentence in accordance with the plea bargain. SeeState v. Dishon, 222 N.J. Super.58, 60, 63 (App. Div. 1987) (stating that where defendant provided insufficient factual basis for attempted murder, which was a second-degree crime at the time, the State was authorized to amend the charge to second-degree aggravated assault, and the court was authorized to enter a conviction for that amended charge, and sentence appropriately within the plea bargain and governing statute), certif. denied, 110 N.J.508 (1988).7 Although it would have been preferable for the State to formally amend defendant's charge to aggravated manslaughter, and for the court to expressly secure defendant's consent, the informal proceedings achieved the same result. The prosecutor and defense counsel agreed that the charge to which defendant pleaded would be deemed aggravated manslaughter.

In any event, defendant's challenge to the sufficiency of her plea should have been raised on direct appeal, and did not give rise to a basis for PCR. SeeState v. Mitchell, 126 N.J.565, 577-78 (1992) (noting that the challenge to the factual basis of a defendant's plea was not of "constitutional dimension," did not give rise to an illegal sentence, and was barred by Rule3:22-4, because it could have been raised on direct appeal). Nor could defendant prevail on a claim that counsel was ineffective by failing to secure a formal amendment to the charge. Defendant was not prejudiced, as she secured the sentence contemplated. We are unpersuaded by defendant's argument that if it had been clarified at the outset that defendant was pleading to aggravated manslaughter, defense counsel would have made a more diligent, and ultimately successful attempt to secure a lesser sentence than called for in the plea agreement.

IV.

Finally, in the interests of justice, we address the trial court's Slateranalysis, notwithstanding that defendant did not address the issue on appeal. As noted, in her supplemental papers in support of her petition, she expressly sought leave to withdraw her plea.

As we have recently reviewed in some detail, an application to withdraw a plea under Rule 3:21-1 is distinct from a petition for PCR under Rule 3:22, and is governed by different standards. See State v. O'Donnell, 435 N.J. Super. 351, 368-73 (App. Div. 2014) (reviewing distinctions between motion to withdraw plea, and petition for PCR). The trial court correctly viewed the two as distinct. However, we are constrained to find that the trial court misapplied the Slater factors, and a remand is necessary.

The court applied an unduly stringent view of Slater factor one. Although defendant admitted she killed her daughter, defendant's two expert opinions created a colorable albeit disputed claim of innocence based on insanity and diminished capacity. See id. at 373-74; see also State v. Munroe, 210 N.J. 429, 442 (2012) (stating, with respect to a colorable claim of innocence, "the motion judge need not be convinced that it is a winning argument because, in the end, legitimate factual disputes must be resolved by the jury").

With regard to factor two, it is evident from the record that defendant asserted that her decision to enter the plea was a product not only of her counsel's alleged ineffectiveness, but also her mental illness at the time. We affirm the trial court's rejection of the ineffectiveness claim. However, on remand the court should consider the degree to which defendant's decision to plead was a result of her mental state. It is noteworthy that even Dr. Abad opined, after he completed an evaluation less than two weeks before the plea, that defendant was still suffering from mental illness. The trial court also did not directly address defendant's waiver of the insanity and diminished capacity defense. See O'Donnell, supra, 435 N.J. Super. at 374-75 (stating that when a defendant waives an insanity or diminished capacity defense, a court must engage in a "'thorough and searching inquiry . . . concerning [the defendant's] understanding of the nature of the right being waived and the implications that flow from that choice'") (quoting State v. Handy, 215 N.J. 334, 362 (2013)). Although her competence to plead under N.J.S.A. 2C:4-4 is not questioned, her mental illness may still be considered as a possible "reason for withdrawal" under factor two.

It is also unclear whether the State would be unduly prejudiced in its ability to try the case if defendant were permitted to withdraw her plea. The court should consider whether the State would be prejudiced by the unavailability of essential witnesses, particularly if the proofs at trial are expected to focus on defendant's state of mind at the time of the homicide, and the competing experts' opinions. See Slater, supra, 198 N.J. at 161-62.

We therefore remand for reconsideration of defendant's plea withdrawal application.

Affirmed as to the denial of PCR; remanded for reconsideration of the application to withdraw the plea. We do not retain jurisdiction.

1 Defendant apparently gave videotaped statements on February 6 and 7, 2005, while at Overlook Hospital. She also had conversations with a State Police trooper, and with an emergency medical services worker, on February 6, 2005. Although these are not in the record, a description of the second Overlook interview states that defendant admitted that "she had been contemplating her daughter's killing prior to the day of the instant offense."

2 The record is unclear. AKFC apparently prepared a discharge summary dated October 25, 2005. However, a witness testified that defendant was transferred in September.

3 However, as late as defendant's interviews with Dr. Abad in September 2006, defendant apparently was regularly taking Zoloft, Abilify, and Trazodone.

4 The presentence report is not included in the record before us.

5 As noted above, defendant did not, at her plea hearing, "admit[] entertaining homicidal thoughts for some period of time." Perhaps, the court was relying on statements referenced in Dr. Abad's November 30, 2006, report, if it had been provided to the court in advance of sentencing.

6 The court also rejected defendant's argument that the plea agreement barred her counsel from seeking a sentence lower than that authorized in the plea agreement, in violation of State v. Briggs, 349 N.J. Super 496 (App. Div. 2002). Defendant does not challenge this on appeal.

7 We do not view State v. Barboza, 115 N.J. 415 (1989) as compelling a different result. The Court held in that case that "if an appellate court . . . determines that a plea has been accepted without an adequate factual basis" the plea and sentence must be vacated, and the court may not, absent the defendant's consent, downgrade the conviction to a lesser-included offense for which the factual basis sufficed. Id. at 419-20. Here, there was a sufficient factual basis for defendant's murder plea, as well as for aggravated manslaughter.