STATE OF NEW JERSEY VS. KEITH LEWIS (08-12-0915, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4378-18T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KEITH LEWIS,

Defendant-Respondent.

___________________________

Submitted October 10, 2019 – Decided November 7, 2019

Before Judges Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law

Division, Somerset County, Indictment No. 08-12-

0915.

Michael H. Robertson, Somerset County Prosecutor,

attorney for appellant (Lauren R. Casale, Assistant

Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for

respondent (Stefan Van Jura, Assistant Deputy Public

Defender, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from the March 8, 2019 Law Division

order granting defendant's petition for post-conviction relief (PCR) following an

evidentiary hearing, and the May 6, 2019 order denying its motion for

reconsideration. We affirm.

We glean the following facts from the record. On December 17, 2008, a

Somerset County grand jury returned a six-count indictment against defendant

and a co-defendant. Defendant was charged with first-degree armed robbery,

N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of an imitation

firearm, N.J.S.A. 2C:39-4(e) (count two); second-degree eluding, N.J.S.A.

2C:29-2(b) (count five); and second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(6) (count six). Only the co-defendant was named in counts three and four

of the indictment, and defendant was also charged with numerous motor vehicle

violations.

The charges stemmed from a robbery at a Radio Shack in North Plainfield

at approximately 7:15 p.m. on November 19, 2008. After two partially masked

men, one brandishing a gun, entered the store and demanded money from the

store clerk, the store manager fled through the rear exit door and called the

police. Following police pursuit of a vehicle occupied by two individuals,

matching the description of the vehicle and the suspects provided by the store

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2

manager, police apprehended defendant and the co-defendant after their vehicle

crashed. The disabled vehicle, previously operated by defendant, contained

items reported stolen from the Radio Shack. Additionally, defendant had the

remnants of a partially torn, purple surgical-type latex glove on his wrist, similar

to the gloves reportedly worn by the robbers, and a gun was found in the co-

defendant's possession. The store clerk later identified defendant as one of the

robbers, but confirmed he did not have the gun, and the store manager later

identified the crashed vehicle as the vehicle the robbers used to flee the scene.

On the eve of trial, defendant entered a negotiated guilty plea to the

charges. The plea was entered after a Wade1 hearing was conducted, during

which the trial court denied defendants' motion to exclude the store clerk's out-

of-court show-up identification, and a Sands2 hearing was conducted, during

which the court rejected defendant's challenge to the application of the Persistent

Offenders Accountability Act (Three Strikes Law), N.J.S.A. 2C:43-7.1.

N.J.S.A. 2C:43-7.1(a) required a person convicted of robbery "who has been

convicted of two or more [designated] crimes [including robbery] that were

1

United States v. Wade, 388 U.S. 218 (1967).

2

State v. Sands, 76 N.J. 127 (1978).

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3

committed on prior and separate occasions, regardless of the dates of the

convictions," to be "sentenced to a term of life imprisonment . . . , with no

eligibility for parole."3

Prior to sentencing, however, defendant, who was represented by a

member of the Public Defender's office, filed a pro se motion to withdraw his

guilty plea, arguing the Slater4 factors and ineffective assistance of counsel

(IAC). Despite defendant's assertion that his attorney's representation was

ineffective, the trial court permitted defendant to represent himself with the

attorney serving as standby counsel. On May 11, 2012, after denying the

motion, the court sentenced defendant on count one in accordance with the plea

agreement to a term of twenty years' imprisonment, subject to an eighty-five

percent period of parole ineligibility pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2.

3

Because defendant had been convicted of robbery in 1981 and 1982, and had

last been released from confinement for an unrelated prior conviction within ten

years of 2012, he qualified for sentencing under the Three Strikes Law. See

N.J.S.A. 2C:43-7.1(a) and (c).

4

State v. Slater, 198 N.J. 145, 157-58 (2009) (establishing four factors trial

judges must "consider and balance . . . in evaluating motions to withdraw a guilty

plea[,]" namely "(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.").

A-4378-18T2

4

On February 5, 2013, we heard defendant's challenge to his sentence and

the denial of his motion to withdraw his guilty plea on the Excessive Sentence

Oral Argument Calendar (SOA). See R. 2:9-11. Rejecting defendant's argument

that the trial judge erred in denying his plea withdrawal motion, we affirmed the

convictions and sentence. However, "with the State's consent," we remanded

the matter to the trial court for the court to correct the Judgment of Conviction

(JOC) by imposing "concurrent terms on counts [two, five and six], for which

the court [had] neglected to impose sentences." The JOC was subsequently

amended on February 20 and May 20, 2013, to reflect the imposition of an

aggregate twenty-year sentence, subject to NERA.

On December 28, 2016, defendant filed a timely pro se PCR petition,

asserting his trial and appellate attorneys were ineffective in a variety of ways.

After applying the governing principles, 5 Judge Anthony F. Picheca, Jr. granted

in part, and denied in part, defendant's request for an evidentiary hearing 6 in an

5

To prevail on an IAC claim, a defendant must satisfy a two-part test.

Specifically, the defendant must show that his attorney's performance was

deficient and that the "deficient performance prejudiced the defense."

Strickland v. Washington, 466 U.S. 668, 687 (1984). See also State v. Fritz, 105

N.J. 42, 49-53 (1987) (adopting the Strickland two-part test for IAC claims).

6

"Although no PCR rule requires that evidentiary hearings be held on PCR

petitions, Rule 3:22-10 recognizes that the PCR court may exercise its discretion

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5

August 31, 2018 order. In the accompanying thirty-two page written statement

of reasons, the judge rejected several of defendant's IAC claims and limited the

hearing to the following issues: (1) whether trial counsel properly communicated

with defendant, investigated the evidence, and prepared for trial; (2) whether

trial counsel properly investigated mitigating factors, prepared for and

represented defendant at sentencing; and (3) whether defendant was denied

effective assistance of counsel in his pro se plea withdrawal motion.7

At the ensuing evidentiary hearing, defendant testified his attorney spoke

to him a total of five times in the three years that he represented him, and that

to conduct evidentiary hearings at which oral testimony is taken." State v.

Marshall, 148 N.J. 89, 157 (1997). "Post-conviction relief 'courts ordinarily

should grant evidentiary hearings . . . if a defendant has presented a prima facie

[case] in support of post-conviction relief.'" Id. at 158 (alteration in original)

(quoting State v. Preciose, 129 N.J. 451, 462 (1992)). "To establish such a prima

facie case, the defendant must demonstrate a reasonable likelihood that his or

her claim will ultimately succeed on the merits." Ibid. "Thus, in determining

the propriety of an evidentiary hearing, the PCR court should ascertain whether

the defendant would be entitled to post-conviction relief if the facts were viewed

'in the light most favorable to defendant.'" Ibid. (quoting Preciose, 129 N.J. at

462-63). "If that inquiry is answered affirmatively, then the defendant generally

is entitled to an evidentiary hearing in order to prove the allegations." Ibid.

7

As to this issue, the judge "believe[d] that based on the lack of clarity in the

transcripts" regarding "whether [d]efendant actually proceeded pro se or with

the assistance of trial counsel" and whether he was properly questioned "about

exercising his right to proceed pro se," defendant "met his burden to warrant an

evidentiary hearing" on the issue.

A-4378-18T2

6

he sent twenty unanswered letters to him, asserting his innocence and expressing

his dissatisfaction with the attorney's representation. According to defendant,

other than the police report, he was never provided any discovery and was never

shown any electronic discovery. Defendant testified he repeatedly asked his

attorney to locate several potentially exculpatory witnesses, with whom he had

spoken at the Radio Shack prior to the robbery, including the store manager, as

well as supporting sales records, but was never informed of the results.

Defendant testified he would not have pled guilty and would have insisted on

going to trial if he had been properly represented.

During his testimony, the investigator assigned to defendant's case only

recalled obtaining medical records to support a possible intoxication defense

based on defendant's admission that he had smoked marijuana laced with PCP.

However, upon receipt of the medical records, no further action was taken. The

investigator did not recall interviewing any witnesses, trying to locate any

potential witnesses, going to the scene, or taking any photographs.

Defendant's attorney testified that his custom and practice was to write a

letter to the defendant indicating the receipt of all discovery, make photocopies

of the discovery, and send copies to the defendant in jail. Additionally, he would

ordinarily discuss the case with the client at each status conference and discuss

A-4378-18T2

7

plea offers. However, there was no letter to defendant indicating the receipt of

discovery and no written plea offer in the file. Moreover, the only

communication he specifically recalled having with defendant was regarding the

plea offer.

Defendant's attorney acknowledged his office's capability to conduct

investigations, but confirmed he did not request any. During his representation

of defendant, he did not interview any witnesses, visit the scene, or file any

affirmative defenses. However, he negotiated for a twenty-year prison term,

subject to NERA, which the State rejected,8 joined in the co-defendant's Wade

motion, which the judge denied, and unsuccessfully argued against the

application of the Three Strikes Law at the Sands hearing.

He testified that in preparation for sentencing, ordinarily, he would send

a presentence report to the client in jail, and discuss the report at the sentencing

hearing. However, in defendant's case, he could not recall whether he argued

any mitigating factors from the presentence report at sentencing. He also

testified that when a client communicates his dissatisfaction with the attorney's

8

Under the terms of the plea agreement defendant ultimately accepted, the

State's sentencing recommendation was an aggregate twenty-five year term of

imprisonment, subject to NERA. The aggregate twenty-year prison term subject

to NERA ultimately imposed resulted from a sentencing decision by the court.

A-4378-18T2

8

representation, ordinarily, a "pool form" would be filled out to determine

whether a pool attorney would take over the representation. However, a pool

form was not completed in defendant's case.

Following the hearing, in a March 8, 2019 order, Judge Picheca granted

defendant's PCR petition, vacated his guilty plea, and set the matter down for

trial. In his accompanying written statement of reasons, the judge concluded

defendant "met his burden [of proving] ineffective-assistance-of-counsel under

Strickland and Fritz" in connection with "trial counsel's deficient performance

prior to [defendant] entering the guilty plea." The judge also determined that

counsel's deficient performance "prejudiced" defendant. 9

First, addressing defendant's argument that his attorney failed to prepare

and investigate the case in preparation for trial, the judge stated:

[T]he [c]ourt has reviewed the numerous letters sent by

[defendant] to [his attorney] indicating his

dissatisfaction with counsel's representations. No

response was documented in [the attorney's] file. This

is consistent with [defendant's] testimony that he only

spoke with his attorney five times over the course of the

three years of his representation. Communicating with

9

On the other hand, the judge rejected defendant's IAC claim in connection

with trial counsel's purported failure to prepare and investigate mitigating

evidence for defendant's sentencing. The judge explained defendant did "not

argue what mitigating factors could have been found, who would have spoken

on his behalf, or how finding mitigating factors would have changed the results

of sentencing" in order "to establish the prejudice prong of Strickland[.]"

A-4378-18T2

9

one's client is the most basic task of defense counsel

and failing to do so renders an attorney's performance

less than that which is required by the Sixth

Amendment. [Defendant] also requested . . . his

attorney to locate potential exculpatory witnesses,

including [the store manager], and there was no

evidence that this attempt ever occurred. [The

investigator] testified that he did not recall interviewing

any witnesses, nor try[ing] to locate any potential

witnesses. Three years is ample time to engage in

attempts to locate potential exculpatory witnesses.

Conducting an investigation into potentially

exculpatory witnesses is also a basic task of defense

counsel and the failure to do so renders counsel's

performance less than the counsel as guaranteed by the

Constitution. The [c]ourt briefly notes that trial counsel

did obtain medical records of [defendant] after he gave

information potentially supporting an intoxication

defense. However, this does not negate the fact that

trial counsel failed to communicate with his client,

failed to review the evidence with his client, and failed

to attempt to locate exculpatory witnesses. Therefore,

an adequate investigation was not undertaken in this

case.

In evaluating the credibility of the witnesses' testimony, the judge

explained:

Although [defendant's attorney] testified as to his

general custom and practice, there is no evidence

indicating that those general procedures took place in

this case. There was no letter indicating that

[defendant] was sent a copy of discovery, and

[defendant] asserts that he never received discovery.

[His attorney] submits that he does not remember many

facts of this case and was unable to confirm whether

discovery was sent and to what extent he prepared for

A-4378-18T2

10

this case. Therefore, there is no evidence indicating

that [defendant's] claims are incorrect and no evidence

to indicate that trial counsel conducted any

investigation into this case other than retrieving

medical records. Even though trial counsel joined the

Wade motion filed by codefendant's counsel, and

argued a Sands issue, this does not evidence that any

investigation took place.

The judge concluded:

This [c]ourt is primarily concerned with counsel's lack

of communication with his client and his failures to

attempt to locate potential witnesses. The State is

correct in its assertion that decisions made after a

thorough investigation are presumed to be strategic,

however, a thorough investigation did not occur in this

case. Therefore, this [c]ourt will not presume that trial

counsel's decisions were strategic. The [c]ourt finds

that trial counsel's actions, specifically his failure to

communicate with [defendant] and to review discovery

with [defendant], as well as his failure to attempt to

locate potential witnesses, falls below the basic

proficiency as afforded by the Sixth Amendment.

[Defendant] has met his burden under the performance

prong of Strickland on this ground.

See State v. Porter, 216 N.J. 343, 352 (2013) ("An ineffective assistance of

counsel claim may occur when counsel fails to conduct an adequate pre-trial

investigation."). See also State v. Chew, 179 N.J. 186, 217 (2004) ("'[C]ounsel

has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary[,]'" and "'[a] failure to do so

A-4378-18T2

11

will render the lawyer's performance deficient.'" (first quoting Strickland, 466

U.S. at 691, then quoting State v. Savage, 120 N.J. 594, 618 (1990))).

Turning to the prejudice prong of Strickland, the judge explained:

[Defendant] pled guilty on the day trial was set to

commence. [Defendant] testified that he felt pressured

to plead guilty, in part based upon counsel's deficient

investigation. Trial counsel was unprepared to try his

case and [defendant] faced a potential sentence of life

imprisonment. Because trial counsel was unprepared

on the day trial was set to begin, [defendant] pled

guilty. If counsel had properly prepared, [defendant]

would have insisted on proceeding with the trial. [10]

The [c]ourt finds that [defendant] was prejudiced by

trial counsel's deficient performance.

See Preciose, 129 N.J. at 464 (finding "plausible and less speculative than other

types of counsel errors" defendant's assertions "that the patently-inadequate

preparation of both attorneys and the substitute attorney's incorrect advice

regarding his possible sentence, combined with the last-minute substitution of

attorneys, pressured him into pleading guilty.").

10

To establish a prima facie case of IAC to set aside a guilty plea, the second

Strickland prong is modified to require "'a reasonable probability that, but for

counsel's errors, [the defendant] would not have pled guilty and would have

insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 142 (2009)

(alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

See also Hill v. Lockhart, 474 U.S. 52, 59 (1985). In other words, the defendant

must show that not pleading guilty would have been "rational under the

circumstances." State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014)

(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).

A-4378-18T2

12

The judge also determined that defendant "was completely denied

counsel" in connection with his pro se plea withdrawal motion, and therefore

"prejudice [was] presumed." Thus, according to the judge, defendant "clearly

establishe[d] [both] the performance" and "the prejudice prong of the Strickland

test." In that regard, the judge noted defendant was not afforded a hearing under

Faretta v. California, 422 U.S. 806 (1975), which allows a defendant to exercise

his constitutional right to "self-representation," only when the defendant is

"made aware of the dangers and disadvantages of self-representation" and

"'knowingly and intelligently'" elects to "manage[] his own defense" with "eyes

open." Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)).

The judge explained:

[Defendant] testified that he did not wish to proceed pro

se, however, he was arguing an ineffective-assistance-

of-counsel claim that inevitably created a conflict of

interest between himself and trial counsel. For that

reason, trial counsel correctly recused himself from

arguing the motion and [defendant] was required to

proceed pro se. No Faretta hearing was conducted and

[defendant] was not questioned on either his ability or

his desire to proceed without counsel. At oral

argument, [defendant] repeatedly asserted that he did

not wish to proceed pro se, but he was ultimately

required to do so. [Defendant] should have been

questioned on this and afforded the opportunity to be

assigned new counsel to argue the motion. A form to

request a pool attorney was never filled out for

[defendant], thus, he was never afforded the

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opportunity to seek alternative representation. Under

the Strickland ineffective-assistance-of-counsel

analysis, [defendant] was completely denied the right

to counsel which clearly establishes the performance

prong of the Strickland test. Prejudice may be

presumed in such a situation, therefore establishing the

prejudice prong of the Strickland test.

The judge also rejected the State's contention "that this issue was

previously adjudicated on appeal" and therefore "procedurally barred[,]" noting

"[t]he Appellate Division specifically limited its affirmance to 'defendant 's

motion to withdraw his guilty plea under [Slater].'" Further, according to the

judge, "[a]lthough [defendant] indicated in [his plea withdrawal] motion his

dissatisfaction with trial counsel," defendant "had not, at that time, filed a

motion for post-conviction relief based on ineffective-assistance and the trial

court specifically stated that it would not adjudicate that issue."

Thereafter, the State moved for reconsideration, which was denied by

Judge Picheca in a May 6, 2019 order. In the accompanying written decision,

quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the judge

explained that "[r]econsideration should be utilized" only where "the [c]ourt has

expressed its decision based upon a palpably incorrect or irrational basi s," or

"did not consider, or failed to appreciate the significance of probative,

competent evidence[,]" neither of which applied here. Focusing on counsel's

A-4378-18T2

14

performance prior to defendant pleading guilty, the judge reiterated that "trial

counsel's performance fell below the basic proficiency as required by the Sixth

Amendment because he failed to adequately investigate th[e] case or prepare for

trial." The judge expressly rejected the State's renewed contention that

defendant failed to establish prejudice resulting from his attorney's deficient

performance, reasoning that the "[c]ourt found [defendant's] assertion" "that had

counsel adequately investigated and prepared, he would have insisted on going

to trial" "to be credible in light of all of the relevant evidence."

To support its contention that reconsideration was warranted because the

judge applied the incorrect legal standard to satisfy the prejudice requirement,

the State relied on Hill, 474 U.S. at 59, where the Court explained

where the alleged error of counsel is a failure to

investigate or discover potentially exculpatory

evidence, the determination whether the error

"prejudiced" the defendant by causing him to plead

guilty rather than go to trial will depend on the

likelihood that discovery of the evidence would have

led counsel to change his recommendation as to the

plea. This assessment, in turn, will depend in large part

on a prediction whether the evidence likely would have

changed the outcome of a trial.

[Ibid.]

In rejecting the State's reliance on Hill, the judge reasoned:

A-4378-18T2

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[T]his test assumes that there is guesswork involved

with determining whether a defendant would have

exercised his right to proceed to trial under a particular

set of circumstances. . . . Here, . . . the [c]ourt found

that [defendant] would have proceeded to trial if

counsel was prepared and investigated [the case]. . . .

....

[Defendant] asserted that had trial counsel

adequately prepared, investigated, and called certain

witnesses to testify so that [defendant] could present the

defense that he did not form the requisite mental state

to carry out the robbery, he would have proceeded to

trial. . . . [Defendant] argues that had trial counsel been

prepared to examine [the store manager] and [the store

clerk] at trial, they would have produced testimony that

indicated [defendant] was present in the [Radio Shack]

prior to the robbery and that his actions were

inconsistent with one about to commit a robbery.

[Defendant] repeatedly asserted that he arrived at the

[Radio Shack] with the intent to commit a shoplifting,

and was unaware that the codefendant was planning an

armed robbery. . . . [Defendant] argues that his earlier

presence in the [Radio Shack] would have explained

why [the store clerk] identified [defendant] in the show-

up identification procedure. . . . The State did have

evidence against [defendant], including that he was

found in the vehicle with the codefendant, [the store

clerk] identified him in a show-up identification

procedure, and the co-defendant was found with a

handgun. . . . Despite the evidence against him,

[defendant] firmly asserted his innocence and desired

to proceed to trial with the above-described defense.

Only when he realized that trial counsel was unprepared

to present that defense did he decide to plead guilty.

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On appeal, the State reiterates its argument that the judge's "analysis [of

the prejudice prong] was wrong as a matter of law" because defendant failed to

meet "his burden to prove he was prejudiced by his counsel's actions or

inactions." The State asserts "[d]efendant cannot hope to meet the burden to

show that for[e]going a plea limiting his exposure to . . . twenty years . . . rather

than exposing himself to a mandatory life term without parole by going to trial

would have been the rational decision" given the "[overwhelming] evidence of

his guilt." Further, according to the State, "no showing [was] made at the PCR

hearing that any evidence existed which would have come from any sort of

investigation" sufficient to "undermine[]" or "compromise[] the State's crushing

evidence" in order to make "the trial option . . . the rational choice." Thus, again

relying on Hill, the State contends the judge "wrongly focused exclusively on

defendant's supposed insistence on going to trial, without taking into account

any consideration that no new evidence was produced on PCR that would have

had any impact on the State's overwhelming evidence." 11

11

As to Judge Picheca's decision "that the trial court failed to safeguard

defendant's right to unfettered counsel" at defendant's plea withdrawal motion,

the State urges the proper "remedy is not a new trial" but "to conduct a new

Slater hearing . . . with unfettered counsel" in accordance with State v. Hayes,

205 N.J. 522 (2011). In denying the reconsideration motion, Judge Picheca

agreed that the State's proposed remedy would have been appropriate had that

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17

"In reviewing a PCR court's factual findings based on live testimony, an

appellate court applies a deferential standard[.]" State v. Pierre, 223 N.J. 560,

576 (2015). Thus, we "will uphold the PCR court's findings that are supported

by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540

(2013) (citing State v. Harris, 181 N.J. 391, 415 (2004)). A "PCR court's

interpretation of the law[,]" however, is afforded no deference, and is "reviewed

de novo." Id. at 540-41 (citing Harris, 181 N.J. at 415-16). "[F]or mixed

questions of law and fact," we "give deference . . . to the supported factual

findings of the trial court, but review de novo the lower court's application of

any legal rules to such factual findings." Harris, 181 N.J. at 416 (citing

Marshall, 148 N.J. at 185).

On a motion for reconsideration, "[r]econsideration itself is 'a matter

within the sound discretion of the [c]ourt, to be exercised in the interest of

justice.'" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010)

(quoting D'Atria, 242 N.J. Super. at 401). "Reconsideration is not to be granted

lightly and the grounds for reconsideration are generally limited[,]" to

been the sole basis for the court's determination. However, as the judge pointed

out "not only did [the judge] find that [defendant] was denied the right to counsel

at the motion to withdraw his guilty plea, but also that he was denied the right

to effective assistance of counsel during the investigatory phase of the case."

A-4378-18T2

18

"correct[ing] a court's error or oversight." State v. Puryear, 441 N.J. Super. 280,

294 (App. Div. 2015). We review the denial of a motion for reconsideration for

an abuse of discretion, Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div.

1996), which "arises when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting

Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260,

1265 (7th Cir. 1985)).

Applying these standards, we conclude Judge Picheca's factual findings

are supported by sufficient credible evidence in the record, and his application

of the law governing PCR proceedings is sound. Thus, we affirm substantially

for the reasons expressed in the judge's three thoughtful and thorough written

decisions. We add only that in order to establish the Strickland prejudice prong

to set aside a guilty plea, "'a [defendant] must convince the court that a decision

to reject the plea bargain'" and "insist on going to trial" would have been

"rational under the circumstances." State v. Maldon, 422 N.J. Super. 475, 486

(App. Div. 2011) (quoting Padilla, 559 U.S. at 372). That determination should

be "based on evidence, not speculation[,]" and "may hinge in large part on

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19

defendant's credibility and that of any other witnesses he presents at the

evidentiary hearing." Id. at 486-87.

Here, the judge was so convinced based on his credibility assessments, to

which we apply a deferential standard of review. As the judge noted in denying

the reconsideration motion,

this [c]ourt found [defendant's] testimony that he would

have insisted on proceeding to trial to be credible.

[Defendant] consistently asserted his innocence as

evidenced by the substance of his letters, testimony

from both trial counsel and [defendant] at the

evidentiary hearing, and his repeated insistence on

going to trial. Trial was set to begin, and on the day of

trial, only after realizing how unprepared trial counsel

was, did [defendant] decide to plead guilty. He soon

afterwards filed the motion to withdraw his guilty plea.

Affirmed.

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