*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW GIBSON, JACKLYN LEE DEFENDANT-APPELLANT.
Argued March 1975 Decided November 1975. also,
See 68 N. J. 532. *2 Dimon, Mr. Edward De- Assistant Public Deputy fender, (Mr. the cause for Stan- argued defendant-appellant Ness, Van ley C. Defender, Public attorney). General, Rosengarien, Attorney
Mr. Deputy Solomon William F. (Mr. argued plaintiff-respondent cause Jersey, attorney). New Hyland. General of Attorney Court was delivered opinion *3 D., P. A. J. Temporarily Assigned. ques- Conford, tion on this from appeal a denial of presented post-convic- is whether, tion relief when a defendant, and knowingly with of an enters advice into a attorney, plea agreement with the State which pursuant he to (a) pleads guilty certain in return charges for sentence concessions on said pleas and dismissal of a (b) more serious and charge; the latter are on conditioned appeal waiving from an armed robbery conviction entered him after against trial, the defendant have may relief, after post-conviction of expiration the time to the armed convic- appeal robbery tion, restoring of right appeal therefrom. Defendant’s contention is that the surrender of was appeal his invalid and and a illegal rise to to such gave post-con- viction relief. as a while,
Our is that matter of holding judicial policy, a will permitted timely defendant be from bring conviction notwithstanding agreement by plea bargain he not an bring time, out appeal, we no for post-conviction find basis relief in the in- mere clusion in under plea agreement, circumstances free from an defendant, upon agree- undue pressure coercion or a conviction. ment 21, 1971 defendant Gibson and co-defendant On October on Grand County Jury indicted the Salem were Bryant violation and while armed in robbery robbery charges A. in S. 2A:151-5. Gibson was also 2A:141-1 and officer, contrary for from day police dicted that escape N. J. S. A. 2A:104-6. On 1972 Gibson January while of county property indicted for malicious destruction J. in violation N. County jail, incarcerated the Salem S. in A. 2A:122-1, at an date he was also and unspecified A. 2A-.143-1. to S. sodomy, dicted for contrary on were tried Bryant and 1971 Gibson December and were convicted charges while armed robbery and robbery was sentenced Defendant charges. both verdict on by jury term of Narrow to by Judge prison on July conviction and to a concurrent robbery on the years 10-12 sentencing armed feature. That for the 2-3 years term of between de- negotiation agreement was preceded encom- counsel, and the fendant, prosecutor, on advice would plead defendant (a) terms: following passing injury property and malicious on the escape be would concurrent but his sentences therefor charges, conviction; (b) robbery on the armed the sentence return for indictment would dismissed. In sodomy would not appeal that he agreed foregoing armed. robbery for armed being conviction unfortunately, pro the transcript Although, the terms of the plea reveals that sentencing ceedings *4 to trial for approval submitted were not agreement Direc Administrative been, have see should court, they as L. J. of the instant the record (1971),1 tive, the inference strongly supports proceedings post-conviction agreements procedure now set for discussions and 1The September 3:9-3, adopted July 17, forth in B. effective opinion. will be to conform with rule amended 1975. The that the court know of the did and in agreement fact ap- it. proved Defendant does not assert contrary. defendant sentencing
In addition to on the for charges armed, noted, and for the court at robbery being time his on the and mali- accepted pleas escape same him and sentenced to con- property charges cious damage each, to 3 terms of for but both prison years secutive 2J^ he with armed concurrent sentences. At sen- robbery the trial court informed defendant that he had the tencing, within 45 appeal any days and sentences the court him would for that appoint attorney should the means he lack therefor. Defendant in- purpose he any dicated understood. No taken from direct was of the convictions. post-conviction of the petition,
At hearing as of the time of the and sen- attorney plea arrangements testified that he had these matters with tencing discussed he defendant and mother and had informed defendant convictions, but robbery had armed He defendant had indicated he did not wish to appeal. also and sodomy defendant on the represented charges, had had reviewed defendant. merits charge 16, 1972,
On September attorney defendant to the wrote complaining made on his “the deal” notwithstanding behalf to drop the out- sodomy charge, the was still charge He end standing. attorney “keep up your requested bargain like get charge you said dropped he.” The would sodomy charge dismissed. subsequently On or about 6, 1973, June se pro filed peti- tion for post-conviction relief pursuant to B. 3:22-l et seq. As grounds for relief, he asserted (1) the unconstitutional use the State of perjured “the testimony; (2) rise pending used charges inflicted”; enhance the punishment there (3) was no evidence of armed robbery; the State evidence; used hearsay and the State out unrelated brought *5 new- Defendant relief a sought through other either charges. a reduction of sentence. by trial Office of the By through amendment of the petition Defender, a due Public defendant asserted denial of process day law in informed him on the that his had attorney his would for a dis- sentencing move prosecutor missal of no was taken on the sodomy if charges appeal conviction on that in- for armed and that robbery “relying formation he of appeal.” failed to exercise The petition. denied the trial hearing, judge
After to appeal; knew of his right court found that defendant length, into at arms’ entered that there was plea bargain counsel; and with of defendant by qualified representation even voluntary, election not to was appeal involved danger influenced desire avoid though by the judg- Defendant appealed in facing sodomy charge. ment to the Division. Appellate his right “was denied that he contention is
Defendant’s illegality The bargain.” by illegal plea to appeal conces prosecution conditioning is the asserted defendant of by the withholding on by the State sions from a conviction. Since his right appeal exercise of State v. Spinks, us in by was reserved the issue stated we certified this 568, 573, (1975), n. in the Ap unheard motion while it was pending our own 67 N. 103 (1975). Division. pellate from timely sentence Spinks, supra, had pursuant a defendant who pleaded guilty brought The was within the range sentence plea agreement. had been no agreement and there defend agreement, not to nevertheless argued ant in such case would be allow sentence incom nature of a plea negotiation (at contractual patible We 574). would 573) encourage appeals (at frivolous contentions, but out the review rejected pointed these court take into should account the terms ing reduction agreement, “including or dismissal of charges” and the fact that “the defendant has freely agreed *6 imposition such as sentence negotiations” the plea N. J. (66 at 573). appraising contentions, side, we set to one
for later treatment herein, whether the court question should as a a matter of sound judicial policy permit timely to be filed a a defendant from conviction either notwithstanding his bargained agreement not to appeal or his acceptance of plea benefits condi- agreement tioned outset, we appealing. As indicated at have reached an affirmative The conclusion on that issue. here crucial however, question, is whether con- the mere currence of the in a parties inclusive of agreement waiver of appeal, however freely at, arrived should be re- as garded per se tainted with illegality, and thus operative to activate post-conviction relief of validation of an by way untaken nunc pro tunc.
B. 3:22-2 relief for permits “(a) post-conviction Sub- stantial denial in the conviction of defendant’s proceedings under rights the Constitution of the United or the States Constitution or laws the State of New Jersey.” Ordinarily for such petition relief be may filed within five years or judgment sentence under attack. B. 3:22-12. We assume the present petition filed under (a) none of the other of B. provisions 3 :22-2 appears even debatably perti- issue, then, nent. The is whether a non-coercive agreement in the nature of a plea agreement becomes “substantial denial” aof defendant’s constitutional or other rights by reason of the inclusion therein of a stipulation against ap- peal by defendant, though he is fully represented by counsel in arriving Our agreement. determination on narrow question is the negative.
The general acceptability plea negotiation, “plea as it has been bargaining” commonly denominated, under careful judicial supervision against unreasonable hazard
506 interests of proper State, either the accused or the has been in our repeatedly recognized recent decisions. State Thomas, Taylor, v. 49 N. J. 440, 455 v. 61 State (1967); Jones, 321 314, v. 524 (1972); (1975). practicality, utility constitutionality of plea nego- have also been recognized tiations by the United States Su- York, preme v. Court. See Santobello New 257, U. S. 495, S. Ct. L. 2d 427 Brady Ed. v. (1971); United States, 397 U. 752-753, 1463, S. S. Ct. L. Ed. 2d 747 (1970). fairly minority what characterized as
There is
of a
inclusion
waiver of
viewpoint
coercive
exercise of
inherently
against
agreement
Butler,
43 Mich.
appeal. People
App.
Ramos,
N. W.
325 (Ct.
1972); People
2d
30 A. D.
App.
*7
N.
292
Y.
938
848,
2d
S. 2d
Worcester v.
(1968); cf.
R.,
I.C.
370 F.
718
713,
2d
Cir.
(1
1966)
(disapproving
a
offer
a
judge’s
to
to
he
suspend sentence if
Williams,
to
Contra:
agrees
appeal).
v.
36 N. Y.
People
N. Y.
829,
904,
2d
331 N.
S. 2d
E. 2d
(Ct. App.
People
32 A.
1975);
967,
D. 2d
303 N. Y.
Irizarry,
S.
856,
2d 332
aff’d mem. 27 N. Y.
(1969),
2d
N. Y. S.
2d
50? was therefore “constitutionally impermissible”. 204 W. 2d at 330.
An on opposite substantially pattern view same fact case, taken federal in the La Vallee was district court supra, on where issue was for hateas application raised New corpus after in the denial relief to the defendant York state The court that the record before courts. asserted it indicated the court took had taken which the plea be Supp. assured that it 291 F. pains voluntary.
384. It ap- were plea generally observed agreements Mini- by the American Bar Association on proved Project Ilid., mum Justice, Standards for Guilty, Criminal Pleas of and it stated that: concessions on charge “Conditioning waiver of the on the the sentence one guilty plea is method of en- making plea agreement forcible Id. at fed- 385. another The court quoted [sic].” eral decision similar circumstances to (unreported) effect that while a court could not properly bargain defendant, a de- “put on an “where price” appeal, yet fendant makes his own terms understands them thereby an end to trial and the brings outstand- separate indictment ing him, he against should not be permitted later reevaluate his position, status where the particularly ante quo cannot restored.” Itid. Vallee, La the Court of pointed affirming Appeals that it
out
was not
acceptance
was conditioned
waiver of the
but
the dis-
only
missal of the other
defend-
indictment. The
outstanding
ant’s assent to the
was considered to be
volun-
“entirely
*8
and “not
tary”
the result of unconstitutional compulsion”.
The current approach question the is reflected recent Appeals New York Court its Williams, defendant, There who supra. decision in People murder, on made was under indictment two counts had motion to he admissions had made pretrial suppress After denial of the motion and trial police. before for a parties defendant to sub- negotiated guilty by stituted counts of in lieu of the murder manslaughter charges. The prosecutor condition that defend- imposed ant waive appeal from denial of the motion to suppress. justification thereof trial prosecutor explained court that if after year or more that an could take the decision the motion were reversed his witnesses would then be unavailable time, for trial at that any thus prejudicing People. The court sustained the waiver of appeal, finding arrangement have been thoroughly discussed counsel family and the interrogation by the trial court on the and waiver to have been ex- N. E. emplary. 2d at 685.
While most perhaps ex- plea agreements do not contain press waivers of appeal many or conditions against appeal, do, them and the practice has been some defended experts in the field. In the Standards to Criminal Relating Appeals, 2.2(c) (Approved Draft § American 1971) Bar Association Project Justice, on Standards for Criminal it is provided: prior tried, “Where a case judgment, has been to final defense prospects counsel should review the One alternative be considered is whether is in his client’s interests to seek mitigation grade in the severity of the offense or in the of the sen- exchange forego appeal.”
tence decision to The commentary to the section notes: light sharply rising appeals “In number of from criminal judgments, any procedure might upon ap reduce the load pellate diminishing rights courts without of defendants or un dermining processes worthy the courts of serious thoughtful examination. See United States ex rel. v. La Amuso Vallee, Supp. (E. 1968).” 291 F. D. N. Y. The Uniform Rules of Criminal Procedure (Approved in Rule 1974), 444(d), that a provide, bars negotiated plea *9 nonjurisdictional based defect in tlie upon any to an order a except denying motion proceedings pretrial if which, evidence or motion suppress any pretrial granted, of stated would be the case. the dispositive Notwithstanding Rule 443 a to exceptions, (a) (4) permits plea agreement specify the defendant will not seek review appellate an order motion.2 denying pretrial Butler, the by rationale unpersuaded areWe quite a defendant return concessions to tendering supra, necessarily not conviction is for his agreement and therefore “chilling” deprivation an unconstitutional universally the We find the analogy of appeal. his right con charge sentence and propriety exchanging accepted com be most guilty plea defendant’s cessions defendant, moti undoubtedly In that situation pelling. State, tendered the by favorable treatment vated the by con and to be by jury to be tried surrenders his right Yet, him. if the record shows against witnesses fronted his full understanding pleaded the defendant has counsel, and with liabilities, with the advice rights Alabama, 395 U. S. Boykin out see compulsion, he will not heard 1709, 23 L. Ed. 2d be (1969), Ct. S. “moti- that his because involuntary to complain plea was explains: 2The comment the section absolute, 444(d) “If set out in Hule were the sense plea agreement process, it be surrendered in the could never might discourage plea negotiations. every then be to the result case, notwithstanding prosecutor defend- would know that plea really might “over,” is as the ant’s the case grounds sufficiency on unrelated still several procedures receiving plea. circumstances, used in such Under likely is that defendants could obtain concessions ex- they obtained, (for presently, example) are tent now where pretrial suppress denied, a defendant’s motion to one of ele- bargaining equation probability ments in the of the trial judge being may gain upheld is, That the defendant prosecutor concessions because knows that as a con- ruling longer sequence judge’s challenged.” can no vated by desire to accept the certainty or of a lesser probability rather penalty than face a wider range of possibilities extending acquittal conviction *10 a higher penalty authorized by law for the crime States, v. charged.” Brady United 397 742, 751, U. S. 1463, 1470, Ct. S. L. Ed. 2d (1970). State v. Cf. Heutsch, Herman, 34 N. (1961); State 73 (1966). by
If the tender the State of con- sentence and charge cessions in for a return of se plea per does not chill exercise of his his right guilt contest a trial than rather so plead as to render the guilty, plea arrangement unconstitutional fail we to see involuntary, the force of the “chill” when argument the defendant waives a his conviction for similar concessions. consistent with entirely These views are that principle all prosecutor fortiori, in of phases dealing (a plea or not with the de- court) may oppressively coercively deal a fendant, for waiver whether or for negotiating a If the on review trial court guilty. agree- ment arrangements satisfied are free from an may and should refuse approval. such element it And an a coercively assertion defendant was dealt with by that he a exacting State waiver of oppressively by will, established, if warrant an application post-convic- tion relief. But defendant has made no allegations such here, and the record would it if belie asserted. whether a has prosecutor overreached in considering a defendant his useful rights surrender
inducing
in the
“a
may
principle
be found
sen-
analogous guide
increased
because
defend-
[by
not be
tence
court]
or insisted
against
charge
upon
ant defended
Poteet,
J. 493,
61 N.
(1972). On
appeal.”
hand,
would
unfair
other
to the
grossly
many
“[i]t
without
to their
regard
if all had to be sentenced
acknowl-
or their
aid to the State in
with
guilt
coping
edgement
crime,
because a
merely
of favorable
prospect
treatment
could induce someone to abandon Ms defense or his appeal.”
DeStasio,
State v.
49 N. J. 247, 260, cert. den. 389 U. S.
88 S. Ct.
We share the there is tive public to be served in whether policy fostering appeals, civil or criminal, such that the waiver appeal by se is per interest. It has been against public said, to the contrary, settlement of litigation *11 “[t]he Co., ranks in our high Jannarone v. W. T. public policy.” 65 N. J. 472, 476 Super. certif. den. 35 N. J. (App. Div.), That (1961). view well properly applies to criminal as as civil in era of litigation, particularly this proliferation of criminal appeals, provided always the administration of such a fair, settlement is free from oppressiveness, and sensi tive to the interests of both the accused and the State. issue of the an binding appeal- effect of
Although timely waiver in relation to direct as appeals, distinguished from raised on applications, not rec post-conviction ord, desirable, we deem it while our attention drawn to formulate to and announce our con general problem, a clusions thereon in the interests of comprehensive disposi tion of whole we have found question. Notwithstanding in public no of impairment policy incorporation of ap or conditions in an otherwise peal-waivers against appeal uncoerced and voluntary we think salu plea agreement, to defendant file an tary permit appeal from convic if he timely, tion does so an notwithstanding unexception- course, to. Of a defendant who has ob-
able not agreement tained in consideration charge sentence concessions at revocation, subject would be to their appeal-waiver State, of the immediately upon filing option Rhein, State v. Super. appeal. (App. reinstatement of a dis- charge Div. The 1971). consequent or the resentencing missed as plea agreement, in thereto, not, would of a defendant sentenced pursuant Id. at double circumstances, jeopardy. constitute such 119-121. de consequences adverse light appeal, not to agreement a rescission
fendant has who us that defendant outlined, it seems just trial, remains after been convicted but has guilty, pleaded conviction review of the appellate of securing desirous allowed his be time, should therefor files from that significantly a defendant differs such situation cannot disavow The latter guilty. who has pleaded of one v. Her of situations. State in limited types except his plea never man, hand, a who has other On the supra. should, jus view the interests as we his guilt admitted considerations, deemed not be policy tice and appropriate of direct waived irrevocably have within the an appeal unless he file fails conviction therefor law. time provided (cid:127) allow a defendant to disregard that to argued It bemay in a fairly arrived appeal, an agreement bargaining discourage plea gen- would be to negotiation, must think the appeal in mind not, having We eral. R. (a). conviction. 2:4-1 days within brought one the case will be rare will recognize Prosecutors *12 concessions who has received as a defendant in which not to col- appeal for an agreement charges sentences or to forfeit those benefits willing will be lateral conviction reversal, of best, securing uncertain the, prospects at outcome eases, in most as to the uncertainty, with the equal is, moreover, of a It the State will likely retrial. if once-dismissed try charges be prejudiced required when will revealed the existence of such be exigency within 45 of the consummation of days plea agreement, and less than that in many instances.
We think in of a salutary, thorough the interests aby fully defendant of understanding his he be rights, that apprised by thereof of judge the time approval of a court plea agreement a waiver of involving appeal and when sentence is ex He should then pronounced. be plicitly informed that agreement his notwithstanding conviction timely he may nevertheless file a so, but that if appeal, he does then, at the option of prosecutor, agreement will he inoperative become and be may resenteneed on all and convictions involved pleas in the agreement any dismissed charges pursuant thereto reinstated. to the case of the
We return defendant here before us. there was disregard, of Although perhaps unwitting, of Directive, requirements the Administrative cited above, that the terms of the be reviewed plea agreement court, record no open is, already noted, there as contention by defendant there was or any oppression coercion in the of negotiation this between the agreement defendant, counsel, Moreover, attended and the State. he was fully apprised There having been no violation of public policy of defendant’s rights in his voluntary decision not to robbery armed convictions, associated there was no basis for proper the grant post-conviction relief on an application filed ten after months imposition sentences on such con victions.
Judgment affirmed. (concurring). Certification was granted
Schreiber, consider efficacy case defendant’s express waiver plea bargain. State *13 514 568, 573 2 That is not (1975).
v. 66 N. J. n. Spinks, the facts of case. The agreement raised under issue not include provision reached did parties which the Rather, as a of the bargain. part from the plea to appeal jury understood that trial conviction agreement, would indictment sodomy armed stand and the robbery Under these circumstances the defendant’s dismissed. be to be verdict should deemed acceptance jury robbery. the same as a to armed category guilty plea is found whether pleads guilty follows one A conviction XXVII; Blackstone, c. Commentaries 4 jury. Examiners, L. J. 130 N. Schireson v. Medical State Bd. of 45 Super. & A. v. (E. 1943); Compton, State agreeing Div. voluntarily knowingly (App. 1953). By verdict, Gibson jury that he would not from the now conceded the verdict. Even he does propriety defendant, with the innocence. Where proclaim his conse advice and of counsel adequate explanation verdict, chooses voluntarily quences accepting jury so, to do as to his position guilt substantially same if had he The factual pleaded guilty. support has been established guilt by the and the result has jury, been knowingly and willingly accepted the defendant. The situation to a equates guilty plea. a defendant,
It settled that where is well having pleaded withdraw that plea, seeks to “it be with- guilty, may not drawn to leave except pursuant granted the exercise Deutsch, discretion.” State v. the court’s 34 N. J. He must (1961). demonstrate manifest injustice. State v. Deutsch, State v. supra; Humphreys, 89 N. J. Super. 322 Div. This is (App. 1965). particularly true where the guilty aof State v. bargain. Huntley, Div. Super. (App. 1974), certif. den. 66 N. J. 312 Fisher, State 132 N. J. (1974); Super. 313 Div. (App. Herman, 1975); N. J. 73, 79 (1966). burden of proof rests burden, defendant. That which here,1 met, is equally was not and the trial court applicable did not abuse its discretion in refusing permit the de- fendant on his renege agreement not *14 jury guilty. verdict it may be noted that passing defendant does not nullify
desire to the entire He bargain. does not seek to reverse dismissal of the sodomy charge or to rescind his pleas and malicious escape damage indictments. isHe using post-conviction relief aas method procedure him to enable of appeal out time. majority
The has properly concluded that plea bargain which a waiver of encompasses is se appeal per illegal. Plea bargaining, which has become a and re “legitimate adjunct spectable administration the criminal laws” Thomas, N. J. 314, includes (1972)], [State surrender fundamental such as rights entitlements a jury trial and self privilege against Boykin incrimination. Alabama, 238, 395 U. S. 89 S. 2d Ct. 23 L. Ed. 274, 279 (1969); State v. Raymond, J. Super. 222, Div. (App. 1971); Bishop, “Waivers Pleas Guilty,” 60 F. R. D. 513 (1973). Certainly, the right of is appeal not more sacrosanct. is There no valid constitutional reason which justifies elimination of the waiver of appeal of a plea bargain. Brown v. Haynes, F. Supp. (W. D. Mo. 1974).
Despite defendant’s agreement not to from con- victions entered in accordance with a or from plea bargain convictions announced by jury, the majority, although that sound agreeing judicial policy warrants the validity provisions, provides nevertheless that a defendant may such majority dissenting opinions agree 1Both and the de petition grounded 3:22(a). fendant’s relief was R. Under must, that Rule in the absence of constitutional bases here, rights as is case “[slubstantial establish a denial” of his injustice under the laws.of State. It follows that is a manifest necessary ingredient granted. before relief be within 45 2:4-1 after days file notice of (a)] [B. in accordance the under- has been imposed sentence so, If he then has the prosecutor option does standing. new rule agreement.2 pre- rescind the plea bargain justice is on “the appropriate based interests sumably majority which finds justifies considerations” policy never admitted his guilt. who has for a defendant its absence delineation Conspicuous by any precisely considerations con- justice or policy what those interests has admitted of, sist where the defendant particularly guilt. such
Societal interests call for the agree- enforcement As ments after sanction been Justice has obtained. judicial court State v. recently Mountain wrote for unanimous Thomas, supra, purpose, plea bargaining must to fulfill its intended If disappoint fairly results must not on both sides
conducted *15 321], expectations [61 either. N. J. at reasonable and en- has knowingly voluntarily as the defendant So long con- and the have been terms plea agreement tered into court, call considerations policy and approved sidered a defend- would not permit majority The for enforcement. a which does not provisions plea bargain ant to abrogate Yet, waiver provision. as of its terms one include — an in- a trial jury of the to surrender not the n — to the defendant as the as vital every plea gredient No sound reason exists a right appeal? waiver of which contain a plea bargains accorded treatment singular provision. no appeal after receipt after and court,
This careful consideration recently from bar and has public, promul- comments rules No governing bargains. suggestion general gated contrary recently policy option 2The revoke is to the announced Spinks, prohibited supra, which the State withdraw in State v. plea bargain ing modified of a which is from the terms that the should to violate term of permitted defendant be. made interested No by any person. bargain has where unfairness to been any demonstrated Directive, 94 N. J. L. of the Administrative guidelines now in the Rules have (1971), incorporated 3:9-3) (R. been followed. willy To the defendant to abro permit nilly gate lawful coneededly provision agreement during a 45 day after period sentence smacks of him letting “play Herman, fast and with loose our courts.” State v. supra, N. J. at 79. asserts that it majority likely is not the State
will if This be dismissed required try charges. prejudiced assertion does not reality. Justice Proctor square Herman, supra, difficulty out pointed one practical which prosecution must face: * n * assemble its It is a difficult task at best for the State to date; specified prepare witnesses and its case for a trial on just compel repeat procedure fair is neither nor the State first is terminated the same defendant when the trial freely understandingly. guilty plea given [47 defendant’s own 78-79] within which to file the notice'of
Eurther, day period in more than a 45 of trial. day delay will result which the agreement, has rescinded prosecutor After after notice has will reasonable time presumably will rescheduled. Attor filed, the matter have to be been in with the will have to be available and the case fit neys of two or months delays calendar. Trial more trial court’s decrease, occur. Conviction rates likely presumably will in increase, who are freed as the time the number indictment and trial widen. Banfield between See tervals *16 Anderson, County & “Continuance the Cook Criminal ; 259, 35 U. CM. L. Rev. 300 Barker v. Courts,” (1968) 514, 521, 2182, 407 92 33 L. Ed. 2d Wingo, U. S. S. Ct. appeal may beyond days. 3The time for be extended R. 2 :4 —4. The rule (1972). the adopted by majority not only serves no useful but function can defeat justice un- justifiable delay.
With to respect appellate review, a must differentiation be made an between agreement not to from jury appeal verdict which is one element aof an plea bargain and agree- ment not to appeal the the former bargain. the defendant the accepting jury verdict and waiving trial and pretrial errors. He It acknowledges guilt. comparable to his other guilty plea or pleas made at time plea bargain is submitted to the court for ap- proval.4
Hitherto the review scope appellate plea bargain, even in the absence of not any has agreement appeal, to been limited to whether ascertaining made plea was voluntarily full of its understanding consequences States, [Brady United U. S. 90 S. Ct. L. Ed. 2d 747 to (1970)], if determining plea bargain Jones, 66 N. kept J. 524 and to (1975)], [State certain making was not sentence excessive [State v. Spinks, supra]. As matter of I policy would continue to -grant defendant for relief based reasons, on those irrespective express agreement appeal from a plea bargain. be rescinded at
Permitting plea agreement after the files a notice option prosecutor contrary parties’ express understanding, even the defendant has though voluntarily knowingly admitted his does not serve the interests of the de- guilt, only upon by 4It be noted that one of the eases relied an dissent involved waiver of a conviction after trial. Revenue, (1 Worcester v. Commissioner Internal F. 2d 1966). filing returns, After for Cir. conviction income tax false place probation the trial court offered if the defendant he appeal, and, did, did not if be an would receive 18 month sen- agreed clearly tence. The defendant This was in- voluntary, agreement bargained coercive the court. *17 fendant or of the and contrary State to the sound admin- istration of justice.
I concur in the of affirmance. judgment ashman, P posed J. The principal question (dissenting). a criminal by may this is whether the appeal require a nego defendant as to waive part appeal tiated plea agreement. Because this was specifically issue in reserved State v. 66 N. Spinks, J. 568 we certi (1975)1, fied instant on our it was appeal own motion while unheard in pending Division Appellate to consider B. important 67 N. question. 2:12-1. J. (1975). that while judicial policy concludes
Today majority that a defendant who has agreed considerations require must be negotiations conviction as 45-day to do before the permitted expiration period so not be for direct appeal, agreement bringing for post-con- out of means of challenged petition time viction relief. Ante 501. at The Court has also concluded that it would be unwise us to characterize an agreement under illegal any circumstances because such “pronouncement” would tend to bar- discourage plea to an gains extent inconsistent with sound judicial policy. Ante 511. I at with approach and because disagree I am convinced that the inclusion of a waiver of appeal pro- vision is an impermissible element of plea with negotiations defendants, criminal I would and reverse Gibson to permit of time. out 21, 1971, On October Jacklyn Gibson Ernest were indicted Bryant the Salem Grand County Jury charges robbery and robbery while armed in vio lation of N. J. S. A. 2A:141-1 S. A. A 2A:151-5. indictment separate dated day same also Gibson charged Spinks, supra 1 See State v. n. 2. Bryant, State v.
2See (1975), 68 today. also decided custody with the lawful of a officer escaping police N. J. S. A violation of A. 2A:104-6. third indictment was returned January against defendant on charg ing him malicious destruction of county property *18 A. while he N. J. 2A:122-1 was incarcerated S. violation Gibson also indicted Finally, Jail. was County in the Salem A. S. contrary provisions for to the sodomy 2A :143—1.3 on a jury robbery convicted of charges
Gibson was the not disclose 16, 1971. the record does December Although conviction, but date, prior some after his the exact time with into attorney plea negotiations entered his sentencing, indictments still pend- the office the prosecutor’s concerning counsel, the to Gibson’s trial ing against him. According in sodomy exchange to dismiss the prosecutor charge agreed for the and destruction pleas escape guilty if also not to promised Gibson property charges on the charges.4 conviction robbery term 1972,
On was sentenced to July Gibson in convic- robbery 10 to 12 the State Prison on the years robbery term on tion and a concurrent 2-3 the armed year also On day, sentencing judge conviction. the same malicious Gibson’s on the accepted escape pleas him to con- destruction of and sentenced property charges terms of to 3 in the State Prison on the years secutive latter concmientlj two to run with sentence charges
3The record does disclose the date indictment. last despite (1971), 4I note that our in 94 N. J. L. directive J. plea bargains placed open court, all record must procedure not followed in was the instant case. See also Thomas, result, (1972). 61 N. As Gibson’s trial coun post-conviction hearing was called as a witness at his sel relief testify agreement. about the terms for imposed robbery conviction. The sodomy charge dismissed.5 subsequently 8, 1973,
On June Gibson filed a pro se petition post- conviction relief. The no petition recited that direct appeal had been taken from the neverthe- robbery but, conviction less, alleged evidence was insufficient to sustain conviction and that the State had used “pending charges * * * to enhance the punishment inflicted.” On October 25, 1973, the public defender amended the petition alleging that Gibson had not exercised his appeal on the robbery conviction in reliance on the bargain prosecutor’s office.
On November 30, 1973, the was heard petition same who judge had tried and sentenced Gibson. The relief sought by defendant was leave to out of time.
support of the application Gibson offered testimony who attorney represented him at the After robbery trial. hearing evidence that the plea did a waiver bargain include *19 of of Gibson’s right appeal and that he did on the rely agreement in failing to appeal the robbery conviction, trial court “accept that testimony its entirety [ed] such was bargain made.” court, however, The denied the requested relief, stating: why granted I don’t see he should be asks for the relief he at present time. He had that relief time. He at knew he (cid:127) —(cid:127) appeal voluntarily could have taken an he chose do to so. up bargain. preju- The State has lived to its The State would attempt, stage proceedings, diced to at this late in the seek to
try sodomy lapse him on the indictment because of the of time. might plea bargained The State not have for the sentences imposed escape damage him prop- on on the and were malicious erty charge; I and don’t believe that under circumstances deprived any defendant has been of his constitutional or other legal rights. bargain length A full arm’s with advice sentencing, by 5At the time Gibson was informed the court days. he had a the sentences within 45 See 3:21-4(f). R. — — pro- qualified representative legal representative of a service by public your office, denying vided him and I’m defender’s motion for relief out time. was Gibson’s reflecting An denial of petition order' on 19, 1973, court December by the trial signed on 1974 a notice from the denial January 16, of appeal with the Division. We certified the Appellate filed 19, 1975. February
I seeks that defendant recognized it must be outset, theAt means bargain of the plea the propriety challenge direct rather than relief for petition post-conviction limited,6 and it relief are for such appeal. grounds as a sub be used relief clear that post-conviction Trantino, 60 3:22-3; v. R. State stitute for direct Smith, 67, 43 N. J. State N. J. 176, (1972); Ct. L. Ed. 731, 379 U. S. S. cert. den. (1964), Poteet, also See State 2d (1965).
495 (1972). view, however, my application properly for ap- R. Our rules provide under
cognizable 3:22-2(a). from, others, final among judgments as of peals courts. trial and the county Court divisions Superior provides: 6R. 3 :22-2 upon petition post-conviction cognizable A relief is if based any grounds: following (a) proceedings defend- Substantial denial conviction rights ant’s under the Constitution the United States Jersey; Constitution or laws of the of New (b) jurisdiction impose judgment Lack of court *20 upon conviction; rendered (c) Imposition of sentence of or in ac- in excess otherwise not by cordance with the sentence authorized law. (d) Any ground available heretofore basis for collateral corpus any upon a attack conviction habeas other common- statutory remedy. law or
523 R. also R. 2:2-3(a). S'ee 2:3-2. Moreover in Midler v. Heinowitz, 123, Court, 10 N. J. 129 this in an (1952), Brennan, Justice it clear opinion by judicial made that our system “contemplates one as of court appeal right If general appellate jurisdiction.” which plea bargain by not to exercise im promised his right him a properly denied guaranteed the laws of this right State, then he has his substantial denial of alleged rights under our law within the of R. meaning 3:22-2(a).7
Because I view Gibson’s un- claims properly cognizable R. der I to an examination of merits :22-2(a), proceed of his application.
II Both the United States Court and this Court Supreme have is a useful tool in the recognized plea bargaining York, justice. administration of criminal Santobello v. New 257, 260, 404 U. S. 427 (1971); S. Ct. 30 L. Ed. 2d Thomas, State v. J. 314, Taylor, N. (1972); State 49 N. J. also ABA (1967). Project See on Stan dards for Justice, Criminal to Pleas Relating Standards Guilty, 1.8 our Draft (Approved 1968). Despite general § approval practice between the plea negotiation pragmatic entertaining 7There also more reason for petition. challenged bargain declining Gibson relied on prosecute timely appeal. respect, analogy In this an can be made Allen, to the situation before the court in State v. J. Su per. (Law 1968), alleged Div. where defendant con his viction should be set aside because he had not been advised his appeal. concluding the matter should be considered merits, on the the court said: respect propriety With hearing to the of the court this matter application post-conviction relief, an argues the State * * * subject this matter is the However, matter of an this, in cases such as where a defendant claims did he not know filing and the time for has ex- pired, position State’s would forever bar the defendant obtaining judicial Super, 316; [99 relief. citations omitted] *21 defendants, and criminal we
prosecutor have held that the struck parties entirely ultimate the free bargain In Justice judicial scrutiny. Spinks, supra, State Sullivan, Court, rejected for the writing argument of plea result review of as sentences appellate imposed nature with the contractual bargains incompatible and said: plea negotiation pursu imposed appellate of a review sentence We conclude incompatible plea proper bargain with and is ant negotiations.
concept ease A in a criminal has defendant conviction, including judgment from the final omitted)] (footnote J. at [66 sentence. which we identified in view, considerations my The ap in the instant case. applicable are Spinks equally aof to review terms have obligation courts pellate sub where, here, as forecloses agreement bargain The notes that majority of the defendant.8 stantial rights renders com entered freely voluntarily a guilty plea guarantees unnecessary. constitutional pliance many Ante fundamental principle, 510. Recognition however, to the real responsive problem confronting is not e., i. us, terms of are im negotiated plea what agreement a matter of permissible as Decisions such judicial policy. Div. Raymond, Super. 113 N. 222 (App. which 1971) and cases cited therein deal with a guilty plea as a waiver of constitutional address prior rights do not the latter consideration are thus of little relevance resolving present appeal. supra, Project, Ap Relating ABA Standards Criminal 8See
peals, (Approved 1968) : 1.3 Draft § (a) any A should defendant have the seek review judgment him, including: final adverse (iii) upon plea nolo con- a conviction based tendere. case, In the present argues agreement not to robbery conviction was and should illegal vacated, returning to their parties status. original State, hand, on the other volun- emphasizes Gibson tarily entered into the and thus should not be agreement *22 permitted on it. renege Although the question precise a novel one before the been Court, problem this con- has in sidered other jurisdictions with results. varying Butler, In v. People 43 Mich. N. W. App. 270, 204 2d 325 1972), defendant App. a reduced (Ct. pleaded guilty to in charge for the exchange to dis- prosecutor’s agreement miss two other charges at outstanding defendant against the expiration of the appeal period. Emphasizing ju- dicial sensitivity an rights of accused entering in guilty plea, the court characterized the right such conviction as one of “substantial value.” 204 W. N.
2d at 330. Einding it impermissible state to induce a defendant to waive his right of of a part plea agreement, the court said: bartering permitted, prosecution If such were to be would in- insulate, many cases, accepted
deed be guilty pleas able in in developed painstak- contravention of standards which been have with ing rights. care to plea afford defendants their basic To that state agreements accepted practice State, then, are now in this to state imposed there are no limits to the conditions 330], [204 thereon. N. W. 2d at prevent To effect” that “chilling would practice have on are who those deterred from the court appealing, concluded that must be plea convictions vacated whenever are they based on an by defendant agreement to waive his N. 204 W. at 2d 331. See also People Ledrow, 53 Mich. N. W. 220 App. 511, (Ct. 2d App. 1974).
A New York court has also appellate concluded insulate a permitted state should not be conviction from Ramos, In review in this context. People appellate A. D. Y. S. 2d 938 1968), de N. Div. (App. 2d of murder the second charge fendant pleaded to avoid death sentence. As degree possible based robbery the state that a indictment bargain, stipulated after sen days incident would be dismissed on the same was taken. accepting that no In provided tencing, him the court informed specifically defendant’s plea, “ conviction, or cof he to disturb the attempt should stand, will not also of the course promise will attorney to dismiss the robbery charge district ” Y. S. 2d stand.’ (emphasis original)-. been denied concluding defendant had wrongfully appeal, court observed: imposed that defendant conditions so net effect pun accepting of either whatever “choice” was confronted out, severe, excessive, might how mete no matter court ishment judgment conviction, appealing unjust, in which from the or thereto, pursuant plea, to the conditions attached would case the presumptively permitted would not be stand thereby degree, *23 required murder first ex trial for in the to stand receiving possibility posing the death sentence if to the himself circumstances, not have been reason the could Under convicted. ably contemplated “option” ap exercise his to defendant would that virtually peal. effect, practical the court insulated the convic In imposed against appellate sentence thereon review. The tion and the a denial defendant’s court’s actions were tantamount appeal. [292 939-40]. N. Y. S. 2d at Ramos, con court vacated the however, judgment case for in order for resentencing and remanded the viction 292 N. Y. S. 2d at 940.9 perfect the defendant People Irizarry, 967, App. Div. 2d N. Y. 9But 32 303 S. 2d see 856, (App. 1969), mem. N. Y. 2d N. Y. aff’d 317 S. 332 27 Div. (1970), distinguished 15, E. the court 2d 265 N. 2d 540 where Irizarry express provision Ramos on basis in there was no that guilty plea appeal: in the of an for event vacation merely stipulated that an [I] t was additional indictment would until time from not be dismissed the conviction expired. appellant’s guilty plea [303 based on had N. Y. S. 2d at 333].
527 An situation was tbe in before Pirst Circuit analogous Revenue, Worcester v. Commissioner Internal F. 1966), 2d 713 Cir. series of (1 involving consolidated decisions of the Tax review Court. The Tax petitions in Court found deficiencies tax returns for Worcester’s 1947-52 upheld imposition penalties of fraud fraud, interest. however, On the issue of the Tax Court no made for findings years, three instead col relying lateral virtue of estoppel by Worcester’s criminal prior con viction for filing false returns. willfully On appeal, court Tax concluded Court’s reliance on collateral estoppel misplaced since in District Court criminal case imposed suspended sentence upon Worcester in for his exchange agreement not to conviction. F. 2d at 718-19.10 More in Clark v. recently, Universal Builders, Inc., 324, 501 F. 2d 1974), Cir. cert. (7 den. 1070, 657, S. 95 S. Ct. 42 L. Ed. 419 U. 2d 666 (1974), expressed the Seventh Circuit similar sentiments in conclud it was for the error trial court to ing dismiss defend subject ant’s counterclaim to automatic in the reinstatement appealed verdict plaintiffs event court’s directed People Williams, 829, 684, 2d also E. See Y. 331 N. 2d (1975), Appeals 2d N. Y. S. which the New York Court of recently bargain involving sustained waiver pretrial suppression the denial of a motion. Pearce, North Carolina v. 395 U. S. 89 S. Ct. 10Cf. (1969), 23 L. 2d Ed. in which the court concluded that neither equal protection jeopardy provision nor clause double imposes the federal constitution an absolute bar to a more severe upon appeal, sentence reconviction after an but process law, then, requires against Due vindictiveness having successfully attacked his first conviction must play no the sentence he receives after a new And trial. may unconstitutionally fear since the of such vindictiveness deter *24 right appeal a collaterally defendant’s exercise of the or attack conviction, process requires his first due also defendant be apprehension retaliatory freed of of such a on motivation part sentencing judge. [395 U. S. at S. 89 Ct. at 23 Ed. 2d 669] L. at 528 Worcester, agreed court
for defendants. Citing supra, arrangement “highly plaintiffs improper into their attempt waiving coercing plaintiffs * * 501 at 341. F. 2d illustrate should serve to foregoing Although attempts of some courts to prevent on the part commitment view to the away appellate process, access to bargain Brown v. Indeed in universally accepted. no means is by D. F. 285 Mo. District 1974), Haynes, Supp. (W. on the a writ habeas corpus refused to grant Court had been coerced petitioner among things, other ground, for robbery conviction into waiving an expectation outstanding trial in the jury following Brown, however, would dropped. deciding charge of peti nature knowing voluntary court focused more not to without appeal, analyzing tioner’s decision whether should be per the State question fundamental include a waiver its appeal provision mitted to in F. at 292-93. I have examined Supp. negotiations. Brown, supra, my judgment and in persuasive. is ex Therefore, I also Amuso reject it. See United States rel. LaVallee, v. 291 F. D. N. Y. Supp. (E. 1968), aff’d Gutierrez, per curiam F. Cir. (2 1970); 2d Ariz. 512 P. App. 337, (Ct. 1973); 2d App. People Irizarry, supra. that the American Bar Associa- the fact also appreciate I that one defense counsel’s duties with has suggested tion criminal consider the un- appeals possibility regard including a decision to forego der some circumstances ABA on Stan- negotiations. Project Justice, Standards to Criminal Relating for Criminal dards Draft Appeals, 2.2(c) (Approved 1970) provides: § tried, prior judgment, (e) has been to final Where case de- prospects should fense counsel review the One alterna- considered whether it is in tive to be his client’s interests to seek grade severity mitigation in the of the offense sen- exchange forego appeal. tence for a decision *25 section, however, to this commentary adds important the waiver In to stressing limitations to addition suggestion. of both of the accused importance rights context, of the courts this also processes commentary this of emphasizes type negotiation permitting is of abuse: potential source are, obviously, dangers overreaching sys- There of and abuse in a permits negotiations. Reports tem that such have been heard of judges probation defendants,
trial who refuse some where other- warranted, they agree appeal. forego Proj- wise unless [ABA will ect, supra 52] at plea bargaining, just also add like other I would forms where be parties of of bar- negotiation equal clearly of power, capable producing unconscion- gaining abuses, To such prevent able results. review appellate must available. be
Although commentary suggests that the safe- principal abuse is open such of the guard against reporting basis taken, I action believe that more any realistic and straight- tois approach forward exclude such their negotiations in I believe that total entirety. preclusion is necessary to vindicate the rights criminal only defendants and abuses, preserve but to prevent integrity the judicial as well. process
It impermissible allow criminal defendants to waive their of a right negotiated plea agreement. conclusion, I reaching the trial accept find- court’s the instant ing bargain voluntarily entered into defendant. The right appeal implicates many values which transcend the immediate interests of the in- parties; deed, appellate supervision trial courts operation appellate as a process device for fashioning new law are the very judicial heart our Rec- system. of these values ognition me that persuades would unwise for the convictions, insulate they whether from derive the trial process pleas of guilty, appel- with criminal defend through plea negotiations
late review on the right court has no put price ants. The free. of that must be Defendant’s exercise Butler, In Worcester v. Commissioner People supra; Revenue, in ternal I have concluded that supra. Since *26 stant contained an and plea impermissible element bargain was thus from its I no occasion illegal inception, have resort to the eases with the standards the dealing governing Deutsch, withdrawal of a e. v. guilty g., State plea, Pomelti, State v. 12 N. J. 446 State (1961); (1953); Johnson, v. 1974); 131 N. J. Div. State Super. (App. 129 N. J. Div. certif. Huntley, 1974), Super. (App. den. 66 N. J. 312 (1974). at arrived I bargain would vacate the
Accordingly, plea is when a However, plea in the instant case. bargained-for the of set “the free emerge aside defendant should collaterally bargain.” dismissed of his charges only but Rhein, 1971). Div. Super. (App. Thus, I would withdraw give defendant opportunity the of pleas escape the and malicious destruction of in- sodomy but property charges, would reinstate the dictment. would not waiver distinguish appeal agree- I
Although from those guilty pleas ments convic- involving following I even tions, believe that to the latter respect category the plea negotiations, majority’s “timely” insistence upon I at is unrealistic. the time of sentenc- challenges suggest thereafter, the is not fore- ing, shortly question mind is most of the defendant. Presumably, belief, least, of the at time defendant’s result such a course is his interest. initial flush of satis- inevitably faction becomes overshadowed the all-too- real an over-hasty decision.' It is consequences only upon reevaluation factors that the defendant reflection and of many likely to conclude that he desires to take To that this decision must be made within require the time limits for a direct permitted decisive appeal places emphasis upon in which a defendant post-sentence period is probably most satisfied with the of what well be mul- disposition him, tiple, complex all charges against involving significant legal implications. In my judgment, timely requirement insisted upon by will, in majority practice, frustrate all but a very small number of to this challenges type negotiation. the time restrictions transcend
My personal objections which the would on majority impose I more directed to what appeal, perceive are properly with the majority’s overall dalliance of appeal. case, pass we are asked to judgment impo- instant sition one of the most severe sanctions at the disposal — society incarceration. The decision to impose penalty is not one which can nor lightly, be considered acceded Moreover, readily. it represents the sort situation which real only remedy. To further subject vagaries plea bargaining process permit *27 of a only reconsideration waiver within arbitrarily an con- least, time for period, tracted me at crosses into im- realm of coercion and permissible unconscionability.
It is a basically wrong upon insist waiver of a funda mental of a un plea bargain; it is conscionable to refuse to review propriety of such a waiver. The State should deal and or co oppressively ercively awith defendant. Such conduct should an warrant for application relief. A post-conviction prosecutor who in upon sists waiver of has overreached and system permits plea abused If negotiations. the Court’s its opinion particular represents notions of protecting crim inal defendants’ rights, it is in which theory I cannot con cur.
I appreciate the problems the State confronting when it is prosecute indictments required since long dismissed. Evi- lost, dence move, witnesses memories dim. Accordingly, I would require an repudiate alleged agree- time. ma- a reasonable Unlike the within ment not to rule however, governing I believe that rigid do not jority, formulated. What is rea- should, be can, or period this time involved circumstances many will with the vary sonable number of crimes others, and severity case, each among While the and the reasons seeking charged decided a case- must be of reasonableness finding ultimate involved delay I am that the basis, satisfied by-case not unreasonable. case was instant I would reverse.
Sohreiber, in the result. J., concurring Hughes, Moun- Justices For Justice affirmance —Chief Sullivan, Con- tain, Judge Clifford Schreiber ford. —6. Pashman —1. reversal—Justice
For PLAINTIFF-RESPONDENT, JERSEY, OF NEW STATE BRYANT, DEFENDANT-APPELLANT. ERNEST Argued March November 1975. 1975 Decided