cdTOCtest

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GUILTY PLEAS ANDGUILTY PLEAS ANDGUILTY PLEAS ANDGUILTY PLEAS ANDGUILTY PLEAS AND
PLEA BARGAININGPLEA BARGAININGPLEA BARGAININGPLEA BARGAININGPLEA BARGAINING

R.. 3:9-2 provides that a defendant may plead only
guilty or not guilty to an offense.


I. PREREQUISITE TO ENTRY OF GUILTY


PLEA


A. Factual Basis



  1. R. 3:9-2 requires that prior to the acceptance of a
    guilty plea, the court must personally address defendant
    and determine that there is a factual basis for the plea.
    While due process does not require rejection of a guilty
    plea accompanied by a protestation of innocence, North
    Carolina v. Alford, 400 U.S. 25 (1970), our courts will
    not accept such a plea. State v. Reali, 26 N.J. 222 (1958);
    State v. Pena, 301 N.J. Super. 158 (App. Div. 1997); State
    v. Sands, 138 N.J. Super. 103 (App. Div. 1975), aff’d
    o.g. 76 N.J. 127 (1978). To accept a guilty plea to a non-
    capital offense, the court must be convinced that
    defendant, based on his or her own words and in light of
    the surrounding circumstances, has committed the
    crime. In re T.M., 166 N.J. 319 (2001); State v. Henries,
    306 N.J. Super. 512 (App. Div. 1997). A court cannot
    accept a guilty plea to a crime which defendant did not
    commit even if defendant nevertheless wants to plead
    guilty to it. R. 3:9-2; State v. Smullen, 118 N.J. 408
    (1990). The factual basis should contain every element
    of the crime to which defendant is pleading guilty. State
    v. Pena, 301 N.J. Super. at 162. However, if defendant’s
    guilt is apparent upon the record, an appellate court may
    treat the failure to elicit a factual basis as harmless error.
    State v. Fisher, 132 N.J. Super. 313 (App. Div.), certif.
    denied, 68 N.J. 144 (1975); see also State v. D.D.M., 140
    N.J. 83 (1995).


Despite the general finality of unconditional guilty
pleas, defendants may challenge the validity of the plea
on appeal by asserting that there was an insufficient
factual basis. State v. Butler, 89 N.J. 220 (1982); State v.
Kadonsky, 288 N.J. Super. 41 (App. Div.), certif. denied,
144 N.J. 589 (1996). A lack of an adequate factual basis
may also be raised in a petition for post-conviction relief.
State v. Owczarski, 236 N.J. Super. 52 (Law Div. 1989).
When it is determined on appeal that a plea lacked a
sufficient factual basis, the conviction must be vacated
and both defendant and the State must be returned to
their pre-plea positions. State v. Barboza, 115 N.J. 415
(1989); State v. Pena, 301 N.J. Super. at 164. During the
taking of the factual basis, inquiry may be made of


defendant and others, R. 3:9-2; State v. Belton, 48 N.J.
432 (1967), but the court is not required to call witnesses
sua sponte. State v. Nolan, 205 N.J. Super. 1 (App. Div.
1985).

In State v. Lightner, 99 N.J. 313 (1985), our Supreme
Court held that if, on appeal, any charge to which a
defendant has pled guilty is vacated because an adequate
factual basis had not been established, the State cannot
claim that their reasonable expectations under the plea
bargain have been defeated, and thus seek to reinstate the
charges dismissed pursuant to the plea bargain.

In State v. Nolan, 205 N.J. Super. at 5, defendant
challenged the factual basis of his plea to uttering
terroristic threats, claiming that the trial judge erred in
accepting the plea without taking the victim’s testimony
that he subjectively perceived himself to be immediately
endangered. The trial judge correctly exercised his
discretion in accepting defendant’s statement which
fully established all of the statutory elements.

In State v. Humphrey, 209 N.J. Super. 152 (App. Div.
1986), the court held that the transcript of a defendant’s
plea of guilty to a prior charge of receiving stolen goods,
entered in municipal court, could be used to establish
defendant’s guilty knowledge for purposes of pleading
guilty to a subsequent charge of receiving stolen goods.
See N.J.S.A. 2C:20-7b(2), which provides that the guilty
knowledge requisite to the proof of receiving may be
found where the person on trial “[h]as received stolen
property in another transaction within the year
proceeding the transaction charged....”

In addition to defendant’s admissions of guilt and
factual version of the crime, a trial court may look to other
evidence in the record to establish a factual basis for a
guilty plea. State v. Sainz, 107 N.J. 283 (1987).

When accepting a guilty plea to an offense that
involves restitution at sentencing, the court must make
sure that an adequate factual basis has been established
for both the plea and the restitution order. State v.
Kennedy, 152 N.J. 413 (1998). A factual basis must be
elicited on charges to be dismissed if restitution is to be
based on those charges. State v. Krueger, 241 N.J. Super.
244 (App. Div. 1990). Prosecutors who plea bargain
crimes that may form a basis for tier classification under
Megan’s Law should ensure that sufficient factual bases
for sex offenses that are dismissed pursuant to the plea
bargain are established. In re C.A., 146 N.J. 71 (1996).
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