cdTOCtest

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).