The opinion of the court was delivered by
The sole question presented by this appeal is whether a defendant charged with a series of heinous crimes, facing a maximum sentence greatly exceeding life imprisonment, should be entitled to vacate his plea bargain because
I
A nine count indictment was presented against defendant Raymond George Taylor by a Camden County Grand Jury on August 17, 1976. The complaint arose out of an incident on August 6, 1976 in which defendant allegedly shot and killed James Liberati and Carlos Brandon in a dispute over the price of drugs he was seeking to acquire from them. The indictment contained two separate counts, charging defendant with the unlawful, premeditated and felonious murder of Liberati and Brandon, a violation of N. J. S. A. 2A:113-1 or N. J. S. A. 2A.:11Z-%
At a retraxit hearing held on October 14, 1976 defendant informed the trial court that he wished to enter into a plea bargain with the State, under which he would retract his plea lof not guilty and enter a plea of non vult to the two murder counts and guilty to the weapon accusation; in return, there would be a dismissal of all other charges and a recommendation by the State of a total sentence of not more than fifty nor less than forty years for the two murders, and a concurrent five to seven year sentence for the weapon charge.
The record reveals that the trial judge made studious efforts to comply with the safeguards of B. 3:9-2 before accepting defendant’s pleas. The court considered signed statements by the defendant explicitly reciting the counts of the indictment and accusation, their corresponding potential penalties and the terms of the plea agreement, as well as defendant’s intent to abide thereby. Taylor acknowledged both orally and in writing that he had agreed to the plea bargain on his own free will and that he understood the ramifications of his decision. The trial judge ascertained that defendant had discussed his alternatives thoroughly for several hours with his counsel and his father. The court satisfied itself of the factual basis underlying the pleas. Taylor’s own confession acknowledging that he “shot two guys over a drug transaction when one of them came at me” was considered together with three statements by witnesses for the State corroborating defendant’s role in the drug-related homicides. These statements included an eyewitness account indicating that Taylor had shot the victims in cold blood without any immediate physical provocation and suggested that the murders may have been premeditated.
Since defendant’s version, if credible, may have afforded an excuse of self-defense, the trial judge made certain that
Before sentencing, the defendant wrote a letter to the trial court and made a motion seeking to retract his pleas of non vuU and guilty. His counsel valiantly asserted that Taylor’s actions were conscientiously motivated but indicated that he himself had reservations about the wisdom of the motion. Taylor argued that he had not fully understood the doctrine of self-defense and now wanted to raise this excuse, that he had been under valium medication at the time of the previous retraxit hearing and that he had entered the plea because of “threats” from the prosecutor. The trial judge was not impressed. The motion to retract was rejected and sentence was entered in accordance with the original plea bargain, an aggregate State prison term of forty to fifty years for the murder counts inclusive of a five to seven year concurrent term on the separate weapon accusation; all other charges were dismissed.
An appeal was taken in which defendant, for the first time, argued that he should be permitted to withdraw his guilty plea because he had been misinformed by both the court and his own counsel when he entered the plea bargain as to the
Counsel on both sides referred to the possibility of merger in their colloquies with the trial judge. As the Appellate Division found, however, there was no persuasive evidence showing that “defendant himself had the slightest notion of' what 'merger’ meant.” Moreover, the trial judge had, at the initial retraxit hearing, meticulously underscored at great length that defendant, in the absence of a plea bargain, could be consecutively sentenced for each of the nine indictment counts and thus faced a potential maximum of two life terms plus seventy-seven years on the indictment and an additional seven year term on the unrelated accusation. Under these circumstances, it is appropriate to proceed on the assumption that Taylor was not told of the possible merger of the robbery and armed robbery charges with the murder charges. Such a merger would have reduced Taylor’s theoretical penal risk by fifty years, two lives plus thirty-four years instead of two lives plus eighty-four years.
The further question is whether such misinformation is sufficient to vitiate an otherwise valid plea. As an initial matter we must decide upon the proper standard of review of defendant’s latest claim. Under our rules, a more
Although defendant did not specifically allude to merger in making his motion to retract the pleas of non vult and guilty, he did indicate that prosecutorial “threats” about length of sentence in part induced his pleas. Since our decision in State v. Nichols, supra, was rendered on October 28, 1976, just one day prior to the date of the motion to retract and sentence, it would be unreasonable to penalize defendant for not having specifically raised the merger argument at that moment. Accordingly, we will treat defendant’s present attack on the allegedly inadequate information he received as having been timely raised before sentence. Under the applicable standard, B. 3:9-3(e), we must decide whether the “interests of justice” would be disserved by enforcing the plea arrangement.
II
Plea bargaining has become firmly institutionalized in this State as a legitimate, respectable and pragmatic tool
The cornerstone of the plea bargain system is the “mutuality of advantage” it affords to both defendant and the State. Bordenkircher v. Hayes, supra, 434 U. S. at 363, 98 S. Ct. at 668, 54 L. Ed. 2d at 611; Brady v. United States, 397 U. S. 742, 752, 90 S. Ct. 1463, 1471, 25 L. Ed. 2d 747, 758 (1970); State v. Corbitt, 74 N. J. 379, 394 (1977), aff’d 439 U. S. 212, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978). The system enables a defendant to reduce his penal exposure and avoid the stress of trial while assuring the State that the wrongdoer will be punished and that scarce and vital judicial and prosecutorial resources will be conserved through a speedy resolution of the controversy. See Brady v. United States, supra; cf. State v. Marzolf, supra, 79 N. J. at 182-183.
Since a defendant who pleads guilty or non vult waives his constitutional rights to avoid self-incrimination,
In this case had the State proceeded to try the homicide charges on the basis of felony-murder, the armed robbery charges would likely have merged into the murder convictions. See State v. Nichols, supra, 71 N. J. at 360; State v. Hubbard, 123 N. J. Super. 345, 352 (App. Div.), certif. den. 63 N. J. 325 (1973); cf. State v. Currie, 41 N. J. 531, 537 (1964); State v. Mowser, 92 N. J. L. 474, 481-484 (E. & A. 1919). The State points out, however, that unlike Nichols, where felony-murder was the only basis for the murder charge, here the prosecutor might have attempted to
The State magnifies the difficulties entailed in deciding how a defendant is to be advised of sentencing possibilities for plea bargain purposes. The merger question in this context need not be settled with the sureness and finality of a trial. It is sufficient that, as long as a merger appears to be a possible eventuality, a defendant be apprised of this possibility and its sentencing consequences. It is noteworthy that the revised written plea statement form LR-28 which a defendant must sign prior to the entry of a plea has recently been amended to direct the court to “consider questions of merger in ascertaining the aggregate maximum sentence which could be imposed.” 101 N. J. L. J. 286 (Mar. 23, 1978). Where, as here, there exists a reasonable likelihood of merger, a trial court should in all fairness to the defendant inform him of that contingency.
It does not follow that the defendant, not so informed, should be entitled to vacate his plea. A guilty plea is not to be set aside whenever the trial court procedures are less than perfect. Although a per se ruling permitting plea retraction has sometimes been utilized upon the breach of an established procedural safeguard, see, e. g., Kelsey v. United States, 484 F. 2d 1198, 1200 ,(3 Cir. 1973); cf. McCarthy v. United States, supra, 394 U. S. at 463-464, 89 S. Ct. at 1170, 22 L. Ed. 2d at 424, a number of courts have ruled that whether a defendant should be permitted to vacate his plea ought to be decided on a case-by-ease basis, depending upon whether the defendant can be said to have been prejudiced by the omission. See, e. g., Bachner v. United States, 517 F. 2d 589, 599 (7 Cir. 1975) (Stevens, J., concurring); United States v. Woodall, 438 F. 2d 1317, 1329 (5 Cir. 1970), cert. den. 403
In this case the merger of offenses in the event of a full trial was not a (foregone conclusion. It cannot be said therefore that the information conveyed to the defendant by the trial judge was actually false or misleading. The most that can be said is that the theoretical duration of sentence was somewhat exaggerated by the failure to mention merger. We do not think, however, that on the facts presented the potential sentence was so overstated as to render the plea unfair. It is important to recognize that plea bargains are, of necessity, often made with some uncertainty. Frequently a defendant will not know exactly how strong a case will be presented against him, or what evidence the State holds will be admissible. Moreover, he cannot know the sentence ultimately to be imposed since that will depend upon the completion of a presentence investigation report, R. 3:21-2, and defendant’s participation in a sentencing hearing. State v. Kunz, 55 N. J. 128 (1969). If a defendant does not “correctly assess every relevant factor entering into his decision”, this will not automatically render his plea involuntary or unintelligent. Brady v. United States, supra, 397 U. S. at 756-7757, 90 S. Ct. at 1473, 25 L. Ed. 2d at 761; see McMann v. Richardson, 397 U. S. 759, 769-771, 90 S. Ct. 1441, 1448-1449, 25 L. Ed. 2d 763, 772-773 (1970). What is crucial is that the plea bargain has been fairly reached and that defendant’s reasonable expectations drawn from the terms of the bargain have been fulfilled. State v. Marzolf, supra, 79 N. J. at 183; State v. Thomas, supra.
A court should not approach a defendant’s attack upon a plea bargain with a set attitude of skepticism. Nevertheless, a defendant attacking a guilty plea has little to lose and his contentions should be assessed with great care and realism. See Blackledge v. Allison, supra, 431 U. S. at 71-72, 97 S. Ct. at 1628, 52 L. Ed. 2d at 145. In some situations it will be inconceivable that the omitted information would have been a material factor on which defendant relied in making his initial plea decision. Cf. Brady v. United States, supra, 397 U. S. at 815-816, 90 S. Ct. at 1483, 25 L. Ed. 2d at 803-803 (Brennan, J., concurring, sub nom. Parker v. North Carolina); State v. Phillips, 133 N. J. Super. 515, 519 (App. Div. 1975); State v. Smith, supra, 109 N. J. Super. at 12. A defendant should not be entitled to withdraw his plea as a matter of whimsy or merely because he changed his mind. State v. Huntley, 129 N. J, Super. 13, 18 (App. Div.), certif, den. 66 N. J. 312
Applying these principles to the case before us, we find Taylor’s situation to -be readily distinguishable from that of the defendant in State v. Nichols, supra. In Nichols, it was obvious that the misrepresentation as to merger was material and that the defendant relied thereon. There, the primary benefit conferred upon the defendant under the plea bargain was the prosecutor’s recommendation that he be sentenced concurrently for the armed robbery and murder charges. Concurrence of sentences, however, was not really an advantage, since had the matter proceeded to trial, those convictions would clear-ly have merged. Under such circumstances, the defendant’s plea bargain could hardly have been characterized as -intelligent.
In ■ contrast, in this case, defendant did receive a substantial benefit. The prosecutor abandoned the possibility of pursuing more extensive sentences and recommended instead that the two possible consecutive life sentences for the murders, as well as the sentence máximums relating to all of the other charges, be reduced to two consecutive twenty to twenty-five year terms for the murders with an included concurrent term on the weapon accusation; further, he agreed that al-1 other charges be dropped. Moreover, there was no material misrepresentation. While the staggering sentences the defendant faced were undoubtedly a factor motivating his initial pleas of non vult and guilty, the marginal differences in the length of sentences in the event of a merger-
Accordingly, the decision of the Appellate Division is reversed and the order of the trial judge denying defendant’s motion to vacate his pleas of non vult and guilty is reinstated.
For reversal — Chief Justice Hughes and Justices Mountain, Pashman, Clieeeord, Schkeibee and Handler — 6.
For affirmance — Hone.
Notes
The indictment on its face charged that the murders had occurred “unlawfully, feloniously and with malice aforethought.” Although the short-form indictment cited only to N. J. 8. A. 2A:113-1, which encompasses felony-murder, without citing N. J. 8. A. 2A: 113-2, which covers all other forms of murder, it is clear that both statutory provisions were included within the ambit of the indictment. See State v. Mayberry, 52 N. J. 413, 432 (1968), cert. den. 393 U. S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).