Submitted: March 4, 2014.
Approved for Publication April 24, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-0617.
Joseph E. Krakora, Public Defender, attorney for appellant ( Philip Lago, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent ( Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges REISNER, OSTRER and CARROLL. The opinion of the court was delivered by OSTRER, J.A.D.
[435 N.J.Super. 358] OSTRER, J.A.D.
Defendant Alice O'Donnell appeals from the trial court's August 30, 2012, order, after a non-testimonial hearing, denying her petition for post-conviction relief (PCR), and application to set aside a guilty plea. On March 22, 2006, defendant pleaded guilty to one count of murder, N.J.S.A. 2C:11-3(a). She admitted that between the evening of February 21 and the morning of February 22, 2005, she fed her six-year-old son Phillip an overdose of [435 N.J.Super. 359] medication, and held a pillow over his head until he was asphyxiated. After the homicide, defendant stabbed herself multiple times and reportedly ingested rubbing alcohol and twenty or more ibuprofen pills.
In accord with her plea agreement, the court sentenced defendant to a term of thirty years, with a thirty-year parole ineligibility period. We affirmed the conviction; the only issues on direct appeal pertained to the trial court's pre-trial order denying defendant's Miranda  motion to suppress inculpatory statements, and partially denying her motion to suppress evidence seized from her home. State v. O'Donnell, 408 N.J.Super. 177, 974 A.2d 420 (App.Div.2009), aff'd o.b., 203 N.J. 160, 1 A.3d 604, cert. denied,
__ U.S. __, 131 S.Ct. 803, 178 L.Ed.2d 537 (2010).
In this PCR appeal, defendant asserts her attorney was ineffective by failing to
diligently pursue a diminished capacity defense. She also alleges that counsel unexpectedly pressed her to plead guilty shortly before trial, without adequate explanation, stating it was necessary to avoid a life sentence. Defendant was forty-four years old when she received the thirty-year sentence under the plea agreement. Defendant essentially contends that she would have proceeded to trial but for trial counsel's ineffective assistance. She seeks to set aside her guilty plea.
Having reviewed the record in light of applicable legal principles, we conclude defendant has presented a prima facie case of ineffective assistance of counsel and resulting prejudice. We also conclude that the trial court misapplied the factors governing an application to withdraw a guilty plea. We therefore reverse and remand for an evidentiary hearing.
We discern the following facts from the record, considering defendant's contentions " indulgently and . . . in the light most [435 N.J.Super. 360] favorable to [her]." State v. Cummings, 321 N.J.Super. 154, 170, 728 A.2d 307 (App.Div.), certif. denied, 162 N.J. 199, 743 A.2d 852 (1999). The record includes the testimony of defendant and several police officers from the pre-trial hearing on the motion to suppress, defendant's interview with two mental health experts, their expert reports, and other documentary evidence.
Defendant had a history of mental illness and psychiatric hospitalizations. Her family also had a history of mental illness. She reported that when she was a child, her father subjected her, and one of her sisters, to violent sexual abuse. Attempts to report the abuse were rebuffed. The sister later committed suicide. Defendant has three living siblings: two other sisters, and a brother who is disabled with schizophrenia.
In the months before the homicide, defendant experienced various reversals in her life. Her partner of over twenty years, Phyllis, died in 2004. Along with the emotional loss, defendant suffered financially thereafter. Phyllis had helped support defendant and her son Phillip. Neither defendant nor Phillip had a continuing relationship with Phillip's father, who had disappeared from their lives.
Sometime after Phyllis's death, defendant was forced to vacate her apartment. After temporarily residing with her mother in a senior community, she moved to Highland Park, but soon faced eviction. In the meantime, defendant believed that her son had been sexually abused by a priest who had spent time with him. She reported the alleged assault to a school guidance counselor, who referred the matter to the Division of Youth and Family Services.
Defendant believed that her impending homelessness would cause her to lose custody of her son, and result in his continued abuse. At the time of the homicide, she was prescribed medications for insomnia (Soma), depression (Zoloft), and anxiety [435 N.J.Super. 361] (Klonopin). However, she stated that as a result of Medicaid issues, she was unable to fill her Zoloft prescription. She determined that the solution to her predicament was to send her son and herself to heaven, where they would join Phyllis. She reportedly heard a soft voice that said, " 'God and Jesus welcomes you, go to God, they always want you.'" Defendant claimed to have conferred with her son about her plan and he consented to it.
The day before the homicide, she informed her sister Theresa and other family members that they could come to her apartment to take her furniture. There is no evidence she told them that she intended to harm herself or her son. Defendant told them she was about to become homeless.
Defendant stated she gave her son a combination of Benadryl and Klonopin on the evening of February 21, 2005. When that prompted Phillip to vomit, defendant smothered him with a pillow. Defendant's two sisters arrived at her home the next morning, and awoke defendant, who was asleep beside her deceased son. She testified that she told her sisters that she and Phillip " were going to heaven." Upon their discovery that Phillip was dead, her sisters summoned the police.
Defendant was generally non-responsive to a police officer's initial inquiries at the scene regarding what had happened. She appeared " out of it" to one officer, and disheveled and disoriented to another. But, she admitted she gave Benadryl to Phillip, and, regarding what medication she took, " [s]he began to ramble on naming different medications." 
Defendant was indicted and arraigned in May 2005. The defense's apparent strategy was to pursue a diminished capacity defense under N.J.S.A. 2C:4-2. The court ordered the assistant [435 N.J.Super. 362] deputy public defender to seek approval to hire a mental health expert. However, counsel delayed several months, and then misrepresented that he had provided materials to the expert several weeks before he actually did. The defense missed the court's November 11, 2005, deadline for submitting its report.
Defense counsel's delays prompted a State motion to bar an expert report and any defense based on insanity or diminished capacity. The defense did not serve the report of its psychiatric expert, Oscar Sandoval, M.D., until January 24, 2006, the return date of the State's motion. Dr. Sandoval concluded that defendant's " mental capacity was so impaired that she was unable to engage in purposeful conduct."
The court denied the State's motion, stating it would cause undue prejudice to defendant. Yet, the judge stated, " I do not, however, wish to minimize the importance of the dereliction here." The judge found defense counsel " failed to pay reasonable attention" to the matter, and misled the court about his progress. The court imposed a $250 monetary sanction. Defense counsel responded he was experiencing financial difficulties, and would be unable to pay the fine promptly.
The court tentatively scheduled trial for February 27, predicated on the State serving its expert's report on February 17. However, those deadlines were not met. The State served the report of its psychological expert, Anthony V. D'Urso, Psy.D., on March 7, 2006. Before doing so, the State provided additional discovery to the defense on February 8, 2006. The discovery and Dr. ...