if it has made an honest mistake in calculating the
sentence recommendation and moves to withdraw the
offer before defendant is sentenced. State v. Veney, 327
N.J. Super. 458 (App. Div. 2000).
Defendants were not permitted to withdraw their
guilty pleas based on the sentencing court’s failure to set
forth the mandatory periods of parole ineligibility when
the prosecutor set forth the State’s recommendation for
parole disqualification in open court, defendants
acknowledged that they heard and understood the
prosecutor’s recommendation, and they signed plea
forms which indicated the minimum and maximum
periods of parole ineligibility. State v. Smith, 306 N.J.
Super. at 381-83.
A defendant may not withdraw a guilty plea when
the court enhances the sentence for his or her failure to
appear at sentencing, in violation of condition of
defendant’s release after entry of plea. State v. Cooper, 295
N.J. Super. (Law Div. 1996).
Defendant was not permitted to withdraw his guilty
plea to felony murder and theft fourteen years after entry
of the plea, based on the fact that he was misinformed
about his eligibility for the death penalty, because the
misinformation did not materially and prejudicially
influence his decision to plead guilty, the evidence
against him was overwhelming, and the State would have
been prejudiced by the fourteen year delay. State v.
McQuaid, 147 N.J. at 486-99.
V. CONDITIONAL PLEAS AND EFFECT OF
GUILTY PLEAS ON APPEAL
Entering a knowing and intelligent unconditional
guilty plea generally precludes defendant from raising
both nonjurisdictional claims, including deprivation of
constitutional rights, which occurred prior to entry of the
plea, and prior events of a nonconstitutional dimension.
State v. Crawley, 149 N.J. at 316; State v. Giordano, 281
N.J. Super. 150 (App. Div. 1995); State v. Rosenberg, 160
N.J. Super. 78 (App. Div.), certif. denied, 78 N.J. 322
(1978).
However, R. 3:5-7(d) provides that the denial of a
motion to suppress physical evidence based on an alleged
unlawful search may be reviewed on appeal despite the
entry of a judgment of conviction following a plea of
guilty. On appeal, reviewing courts must determine
whether the suppression motion was correctly decided
based solely upon the evidence presented at the motion
hearing. See State v. Gibson, 318 N.J. Super. 1 (App. Div.
1999).R. 3:9-3(f) provides that a defendant may enter a
conditional plea of guilty, with the approval of the court
and consent of the prosecuting attorney, while reserving
on the record the right to appeal from the adverse
determination of any specified pretrial motion. See State
v. Morales, 182 N.J. Super. at 507-09. The rule further
provides that if defendant prevails on appeal, he or she
shall be afforded the opportunity to withdraw the guilty
plea.
The right to appeal the denial of a motion to suppress
a confession must be reserved under R. 3:9-3(f), and not
under R. 3:5-7(d). See State v. Smith, 307 N.J. Super. 1
(App. Div.), certif. denied, 153 N.J. 216 (1998). Wiretap
challenges must also be reserved under R. 3:9-3(f). See
State v. Keegan, 188 N.J. Super. at 473-76.A defendant who pleads guilty to an offense retains
the right to raise on appeal the question as to whether
there was in fact a sufficient factual basis for the plea. State
v. Butler, 89 N.J. 220 (1982). Additionally, a defendant
who pleads guilty does not necessarily waive issues
involving sentencing. State v. Vasquez, 129 N.J. at 194-
95; State v. Peters, 129 N.J. 210 (1992); State v. Meyer,
327 N.J. Super. at 55.A bargained sentence may be appealed as excessive by
the defendant. However, the appellate court should
consider every element of the agreement and defer to the
presumed reasonableness of a bargained sentence. Only
in compelling circumstances will appellate modification
be appropriate. State v. Spinks, 66 N.J. 568 (1975); State
v. Sainz, 210 N.J. Super. 17 (App. Div. 1986).Waiver of defendant’s right of appeal may be an
element of a plea bargain. Nevertheless, defendant may
repudiate the agreement and elect to take a timely appeal.
In this situation, the prosecutor may, no later than seven
days prior to the scheduled oral argument or submission
of the appeal, annul the plea agreement, reinstate any
dismissed charges, and restore the parties to their pre-
bargaining positions. R. 3:9-3(d); State v. Gibson, 68
N.J. 499 (1975).A defendant may waive his or her right to merger of
offenses if the waiver is part of the consideration for the
plea agreement. State v. Crawley, 149 N.J. at 312.