On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-2-0122-I.
Before Judges Havey, Braithwaite and Coburn.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant entered a guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4c, pursuant to a negotiated plea agreement which called for a twenty-year custodial term, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2a. The plea form signed by defendant provided that "defense counsel agrees not to request a sentence of less than twenty years." The trial court imposed a custodial term of eighteen years and found that NERA applied. We hold that the restriction in the plea form deprived defendant of effective assistance of counsel during a critical stage of the criminal proceeding. We therefore reverse and remand for resentencing.
The record presented to us reveals that defendant and her ex-husband, Gary Robinson, had an argument in the couple's bedroom after having been out together on New Year's Eve. Both had been drinking all night and were intoxicated. During the argument, there was some pushing and shoving, and Robinson stated that he was leaving. Defendant then left the bedroom, retrieved a knife from the kitchen, and stabbed Robinson once in the chest, piercing his heart.
Defendant immediately called 911, and after the police arrived, she was arrested. Robinson died shortly after arriving at the hospital. In her statement to the police, taken several hours after her arrest, defendant stated:
I was just trying to threaten him, you know . . . . Then I went into the room . . . and I stabbed him, I didn't know I stabbed him . . . . [Robinson then] said baby you stabbed me, and then I called 911, and I didn't mean to stab him . . . . I can't believe I did it.
Defendant was examined on behalf of the defense by Dawn M. Hughes, Ph.D., Daniel Greenwald, M.D., and a probation officer. All three agreed that defendant never intended to kill Robinson, that she has been abused since early childhood, and that for the past twenty-years she was the victim of Robinson's physical and mental abuse. The doctors' evaluations detail the defendant's emotional state and mental health background, and both give a complete description of the defendant's family background, her attempted suicides, early sexual abuse by a step-brother, and her stormy relationship with Robinson. Both doctors' agree that defendant is an alcoholic who suffers from several significant mental illnesses.
Under Middlesex County Indictment No. 99-02-0122-I defendant was charged with purposeful and knowing murder, N.J.S.A. 2C:11- 3a(1) and -3a(2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. As noted, defendant entered a guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4c, a lesser-included offense to purposeful murder. The plea also called for the dismissal of the weapons charge, a twenty-year custodial term and application of the eighty-five percent mandatory minimum term under NERA. It is unclear how or why the restriction in the plea form that prohibited defendant from requesting a sentence of less than twenty years was included.
At sentencing, defense counsel acknowledged that she was restricted from arguing for a sentence of any term less than the amount called for under the plea agreement. However, she asked the court to find applicable ten of the twelve mitigating factors under N.J.S.A. 2C:44-1b. In doing so, counsel focused on the psychological and psychiatric reports prepared on behalf of defendant and submitted to the trial court. The reports indicated that defendant did not intend to inflict serious harm upon the victim and that she suffered from post-traumatic stress disorder related to spousal abuse by the victim.
In sentencing defendant to an eighteen-year custodial term with an eighty-five percent period of parole ineligibility under NERA, the trial court found two aggravating factors: (1) the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1); and (2) the need for deterring defendant and others, N.J.S.A. 2C:44-1a(9). It found four mitigating factors: (1) defendant has no history of prior delinquency or criminal activity, N.J.S.A. 2C:44-1b(7); (2) defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); (3) the character and attitude of the defendant indicate that she is unlikely to commit another offense, N.J.S.A. 2C:44-1b(9); and (4) defendant is particularly likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1b(10).
There is no question that "a trial is unfair if the accused is denied counsel at a critical stage of his trial." United States v. Cronic, 466 U.S. 648, 659, 104, S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984). The assistance of counsel "has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution . . . ." Herring v. New York, 422 U.S. 853, 857, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593, 598 (1975). In Herring, for example, the United States Supreme Court struck down a state law which prohibited defense counsel from summing up in a non-jury trial, reasoning that the statute deprived defendants of effective advocacy. It imposed a per se rule against such a restriction even though some cases "may appear to the trial judge to be simple—open and shut—at the close of the evidence." Id. at 863, 95 S.Ct. at 2556, 45 L.Ed.2d at 601; see also State v. Fusco, 93 N.J. 578, 586-87 (1983) (holding that an order prohibiting a defendant from discussing his testimony with counsel during an overnight recess violated defendant's right ...