At the request of the Supreme Court, in 1992 the
Attorney General promulgated Plea Agreement Guide-
lines for the exercise of prosecutorial discretion in waiving
mandatory sentences to promote uniformity throughout
the State. See State v. Vasquez, 129 N.J. at 195-96; State
v. Lagares, 127 N.J. 20 (1992). The guidelines allowed
individual prosecutors to enact stricter standards, which
caused significant differences between counties. It was
eventually determined that the guidelines allowed
individual counties too much discretion, and new
guidelines were ordered. State v. Brimage, 153 N.J. 1
(1998). The new guidelines allow some flexibility
among the counties, but local differences must be
justified and must fall within uniform statewide
guidelines. When a defendant challenges the
prosecutor’s application of the Attorney General’s
Guidelines, he or she must show by clear and convincing
evidence that the prosecutor’s decision amounts to a gross
and patent abuse of discretion. State v. Coulter, 326 N.J.
Super. 584 (App. Div. 1999).
IV. WITHDRAWAL OF GUILTY PLEAS
If at the time of sentencing the court determines that
the interests of justice would not be served by the plea
agreement, defendant may withdraw the plea. R. 3:9-
3(e). A motion to withdraw a guilty plea shall be made
before sentencing, but the court may permit it to be made
thereafter to correct a manifest injustice. R. 3:21-1; see
also State v. Fischer, 38 N.J. 40 (1962). Once the plea has
been entered it can only be withdrawn by leave of court,
and that determination is addressed to the court’s
discretion. State v. Deutsch, 34 N.J. 190 (1961).
With respect to a motion to withdraw before
sentencing, courts should exercise their discretion
liberally to allow withdrawal of the plea. State v. Smullen,
118 N.J. at 415-16; State v. Deutsch, 34 N.J. at 198-99.
Nevertheless, a whimsical change of mind or a mere
belated assertion of innocence will not suffice. Rather,
defendant must present some plausible basis for the
request, as well as his or her good faith in asserting a
defense on the merits. This burden is heavier when the
plea is entered pursuant to an agreement. State v.
Smullen, 118 N.J. at 416-17; State v. Gonzalez, 254 N.J.
Super. 300 (App. Div. 1992); State v. Rodriguez, 179 N.J.
Super. 129 (App. Div. 1981); State v. Huntley, 129 N.J.
Super. 13 (App. Div.), certif. denied, 66 N.J. 312 (1974).
If misinformation materially influences defendant’s
decision to plead guilty and causes defendant to suffer
prejudice, or if defendant is not afforded his or her
reasonable expectations generated by the plea, he or she
should be permitted to withdraw the plea. State v.
McQuaid, 147 N.J. at 486-91; State v. D.S., 289 N.J.
Super. at 423-24. Innocence or guilt is a relevant factor
for the court to consider in determining whether
withdrawal of the plea will be permitted. State v. Johnson,
131 N.J. Super. 252 (App. Div. 1974); State v. Phillips,
133 N.J. Super. 515 (App. Div. 1975). Also, the
materiality of the mistake or omission and the resulting
prejudice to defendant are pertinent factors when
determining whether defendant should be permitted to
withdraw a plea of guilty. State v. Rodriquez, 179 N.J.
Super. at 135-36.When the application to withdraw the plea is first
made after defendant has been sentenced, the court will
not interfere absent a strict showing of manifest injustice
which requires a vacation of the conviction. State v.
Deutsch, 34 N.J. at 198. Although it is defendant who
usually seeks to withdraw a guilty plea, under certain
circumstances the State may move to withdraw the plea.
See State v. Smith, 306 N.J. Super. at 383 (plea agreement
conditioned on absence of prior convictions and State
discovered prior conviction after the plea was entered);
State v. Ismail, 292 N.J. Super. 590 (App. Div. 1996)
(defendant made false post-plea statement to police and
intended to lie at codefendant’s trial). Evidence of a
withdrawn guilty plea is inadmissible at trial. State v.
Boone, 66 N.J. 38 (1974).In State v. Chapee, 211 N.J. Super. 321 (App. Div.),
certif. denied, 107 N.J. 45 (1986), a plea agreement was
proposed by the State wherein defendant would be
exposed to a maximum of only two years’ incarceration.
Defendant, however, hesitated to accept this offer and,
consequently, the State rescinded it--before it was put on
the record and before defendant accepted or rejected it.
Subsequently, defendant was sentenced to a custodial
term of seven years. Id. at 324-25. On appeal, defendant
argued that the State wrongfully withdrew from the plea
bargaining agreement. Upon affirming defendant’s
conviction and sentence below, the court held that the
trial court was not obliged to enforce this particular plea
agreement in light of the fact that defendant’s plea of
guilty had not been entered on the record before the State
withdrew its offer and since defendant had not been
prejudiced in asserting any defense by the State’s change
in position. Id. at 331-32.The State may not withdraw a plea offer after
defendant has accepted it, pled guilty, and begun serving
the sentence, or when the State makes a mistake in
calculating the sentence recommendation pursuant to
Brimage and the Attorney General’s Guidelines.
However, the State may be able to withdraw its plea offer