defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.” Those
constitutional rights include the privilege against
compulsory self-incrimination, the right to trial by jury,
the right to confront one’s accusers, and the right to a
speedy trial. State v. Crawley, 149 N.J. at 316
(defendants can waive right to merger in plea
agreements). Waiver of such rights necessitates that the
knowing and voluntary nature of the plea be
demonstrated in the record so that it can be reviewed on
appeal. State v. Simon, 161 N.J. 416, 442-43 (1999). See
State v. Davis, 116 N.J. 341, 368-69 (1989) (while the
factual basis requirement might be waivable where a
defendant pleads guilty to a lesser included offense to
avoid the death penalty, a factual basis for a capital
conviction cannot be sufficient when defendant’s
statements contradict the required intent of knowing and
purposeful murder).
The United States Supreme Court has recognized an
exception to the general waiver rule where the
defendant’s claimed right is “the right not to be haled
into court at all upon felony charges.” United States v.
Broce, 488 U.S. 563, 574-75 , 109 S.Ct. 757, 102
L.Ed.2d 927 (1989); Menna v. New York, 423 U.S. 61,
62-63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975);
Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098,
40 L.Ed.2d 628 (1974); State v. Barnes, 84 N.J. 362,
368-69 (1980); State v. Truglia, 97 N.J. 513, 523
(1984); State v. Garoniak, 164 N.J. Super. 344 (1978),
certif. denied, 79 N.J. 481 (1979). (See also, DOUBLE
JEOPARDY, this Digest). Broce held that collateral
attack is barred when the indictment and the existing
record on its face do not demonstrate a constitutional
violation. The Blackledge exception should not be read
too broadly, for example, to encompass the claim that the
court lacks jurisdiction when preceded by a juvenile
waiver hearing defective under the Kent-Gault rule. See
State v. Lueder, 74 N.J. 62, 80-82 (1977).
Where the issue involves the sentence imposed
subsequent to the entry of the plea, the waiver principle
does not apply. State v. Vasquez, 129 N.J. 189, 193-95
(1992); State v. Szemple, supra, at 329; State v. Gonzalez,
253 N.J. Super. 300, 303-04 (App. Div. 1992); State v.
Carey, 230 N.J. Super. 402, 404 n. 1 (App. Div. 1989).
There are three additional exceptions to the waiver
rule: (1) by virtue of R.. 3:5-7(d), which permits an
appeal from denial of motion to suppress; (2) from denial
of entry into pretrial intervention pursuant to R. 3:28(g),
and (3) when the defendant enters a conditional plea
with the consent of the court and approval of the
prosecutor pursuant to R. 3:9-3(f). See State v. Smith,
supra, 307 N.J. Super. at 8; State v. Giordano, 281 N.J.
Super. 150, 154-55 (App. Div. 1995) (R. 3:9-3(f) not
applicable to municipal court)); State v. Robinson, 224
N.J. Super. 495, 499 (App. Div. 1988).While the Court in State v. Gibson, 68 N.J. 499
(1975), held that mere inclusion in a plea bargain of an
agreement not to appeal a conviction would not support
post conviction relief in the absence of any coercion or
undue pressure, it held as a matter of judicial policy that
notwithstanding such agreement A timely appeal will be
permitted. Nevertheless, a defendant who has obtained
sentence or charge concessions in consideration of an
appeal-waiver is subject to revocation of the plea at the
State’s option, immediately upon filing of the appeal. In
Gibson there was no showing of coercion and no proper
basis for granting post conviction relief on an application
untimely filed ten months after the imposition of
sentence. In State v. Sainz, 107 N.J. 283, 294 (1987),
the Court disagreed with the Appellate Division’s
suggestion that it was either necessary or wise for the State
to encourage defendants to waive their rights of appeal as
part of a negotiated plea agreement, stating that waiver
should rarely be needed, given the presumption of
reasonableness that attaches to criminal sentences
imposed on plea bargain defendants.In State v. Johnson, 230 N.J. Super. 583 (App. Div.
1989), the question was the time within which the State
must move to annul the plea agreement if the defendant
waived appeal as part of a plea agreement but then filed
an appeal. The Appellate Division concluded that a
motion must be made in a reasonable time, noting Justice
Schreiber’s concurrence in Gibson, and held that a
motion filed after defendant’s appeal has been argued and
decided comes too late. However, the motion need not
be filed immediately upon the filing of the appeal, since
the State is entitled to the opportunity to know the basis
for the appeal and some time to evaluate defendant’s
arguments. As a result of Gibson, R. 3:9-3(d) was
adopted to require that defendant be advised of his right
to take an appeal and the prosecutor’s option to annul the
agreement, and the rule was amended after Johnson to
provide that the State must exercise its right to annul no
later than seven days prior to the date scheduled for oral
argument or submission without argument.