In State v. Eisenman, 153 N.J. 462 (1998), it was
determined that defendant’s factual basis was adequate
but barely sufficient. In State v. Pena, 301 N.J. Super. at
162-63, it was determined that defendant did not give a
sufficient factual basis to sustain his guilty plea. A
conviction based on a guilty plea without a sufficient
factual basis will not necessarily make the sentence illegal
for purposes of the post-conviction relief time limitation
pursuant to R. 3:22-12. State v. D.D.M., 140 N.J. at 95;
State v. Mitchell, 126 N.J. 565 (1992).
- Exception to the requirement that defendant
must give an adequate factual basis
R. 3:9-2 provides that “when a defendant is charged
with a crime punishable by death, no factual basis shall be
required from defendant before entry of a plea of guilty to
a capital offense or to a lesser included offense, provided
the court is satisfied from the proofs presented that there
is a factual basis for the plea.” (Emphasis added). See State
v. Simon, 161 N.J. 416 (1999). The purpose of the rule
is to avoid forcing a defendant who is exposed to the death
penalty to state anything that might support any
aggravating factors within the death penalty statute. Id.
When a defendant pleads guilty to a crime punishable by
death, the factual basis must establish the attendant
circumstances necessary to sustain the death penalty.
State v. Davis, 116 N.J. 341 (1989).
B. Voluntariness and Understanding the Consequences
of the Plea
A guilty plea must be knowing, voluntary, and
intelligent, defendant must have a full understanding of
the consequences of the plea, and defendant must have
either properly waived the right to counsel or must have
received reasonably competent legal advice prior to
entering the plea. R. 3:9-2; McMann v. Richardson, 397
U.S. 759 (1970); State v. Simon, 161 N.J. at 443; State
v. Kiett, 121 N.J. 483 (1990); State v. Samuels, 253 N.J.
Super. 335 (Law Div. 1991). In determining whether
defendant’s plea is voluntary and whether defendant
fully understands the consequences of the plea, the court
may, but does not have to, question not only defendant
but also any others with information relevant to the
decision. State v. Belton, 48 N.J. at 437-40. Defendant
has the right to not be misinformed about any material
elements of the plea negotiation, but misinformation
that is not material to defendant’s decision to plead guilty
does not render the plea involuntary. State v. McQuaid,
147 N.J. 464 (1997).
A validly entered plea will not be vacated merely
because defendant did not understand collateral
consequences of the conviction. Thus, even though the
accused was not advised that his guilty plea might subject
him to deportation, he was not entitled to withdraw the
plea. State v. Chung, 210 N.J. Super. 427 (App. Div.
1986); State v. Reid, 148 N.J. Super. 263 (App. Div.),
certif. denied, 75 N.J. 520 (1977); But see, State v. Vieira,
334 N.J. Super.681, 688 (Law Div. 2000). However,
when defense counsel misinforms, rather than fails to
inform, defendant of the deportation consequences of the
plea, defendant may have grounds for relief. State v.
Garcia, 320 N.J. Super. 332 (App. Div. 1999).When considering a motion to withdraw a guilty
plea, the material mistake alleged must relate to the penal
consequences of the plea, rather than to a collateral
consequence, such as loss of public employment. State v.
Riggins, 191 N.J. Super. 352 (Law Div. 1983). Penal
consequences include potential sentence exposure and
any possible periods of parole ineligibility, State v.
Kovack, 91 N.J. 476 (1982), any periods of mandatory
parole ineligibility, State v. Bailey, 226 N.J. Super. 559
(App. Div. 1988), and fines, State v. Alford, 191 N.J.
Super. 537 (App. Div. 1983).In State v. Heitzman, 107 N.J. 603 (1987), the
Supreme Court of New Jersey held that a trial judge is not
obliged to advise a defendant of the possibility of loss of
public employment as a prerequisite to accepting a guilty
plea. Thus, the Court affirmed the Appellate Division
decision which held that “defendant need be informed
only of the penal consequences of his plea and not the
collateral consequences, such as loss of public or private
employment, effect on immigration status, voting rights,
possible auto license suspension, possible dishonorable
discharge from the military, or anything else.” State v.
Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986);
see also State v. Reid, 148 N.J. Super. at 266-67; State v.
Riggins, 191 N.J. Super. at 355-58. Although the Court
in Heitzman clearly holds that the trial judge need only
advise a defendant of the penal consequences of a guilty
plea, relief for failure to advise of other matters may still
be available to defendant under R. 3:21-1 to correct a
manifest injustice. See State v. Taylor, 80 N.J. 363
(1979).A defendant’s misunderstanding of jail time credits
may effect his or her understanding of maximum
exposure, and a guilty plea premised on such a
misunderstanding might not rise to the level of
“voluntary and intelligent.” State v. Mastapeter, 290 N.J.