Carton, Allcorn and Morgan. The opinion of the court was delivered by Morgan, J.A.D. Allcorn, J.A.D. (dissenting).
Defendant was indicted, along with co-defendants Lawrence Pierce and William DeShields, Jr. for an armed robbery (N.J.S.A. 2A:141-1 and 2A:151-5) which occurred on November 15, 1971, and a first degree murder (N.J.S.A. 2A:113-1 and 2) which occurred during the course of the robbery. Defendant's plea of guilty to the armed robbery charge and non vult to the murder count were entered pursuant to an agreement between defendant and the State in which the State offered to recommend concurrent sentences on all charges in exchange for defendant's pleas of guilty and non vult. The promised recommendation was made, honored by the trial judge and defendant was sentenced to concurrent terms of 10 to 12 years for robbery, 2 to 3 years for being armed in the commission of the robbery, and life imprisonment on the murder charge.
On direct appeal, the Appellate Division, in an unreported opinion, held that the non vult plea was to a felony murder and the lesser included offenses of robbery and armed robbery merged therein. Accordingly, the conviction for murder was affirmed. The armed robbery conviction was vacated subject, however, to leave given defendant
to apply to the trial court for a withdrawal of the non vult plea to the murder count of the indictment and the entry of a not guilty plea thereto. In the event defendant's application was successful, then the entire plea bargain would be set aside and what was said concerning merger of the robbery and armed robbery offenses would not apply. In such an event (success in having the entire plea bargain set aside), defendant would be permitted to withdraw his non vult plea to the murder charge and to plead again to all counts of the indictment, including those relating to robbery and armed robbery.
Pursuant to the leave afforded him, defendant did apply to the trial judge for leave to withdraw his plea of non vult to murder. He contended that all participants to the plea, judge, prosecutor and counsel, had been unaware that the armed robbery conviction would merge in the murder conviction and that, consequently, defendant could not be sentenced, as he feared, to consecutive terms of life imprisonment and a custodial term for the armed robbery charge. The maximum term which could have been imposed was life imprisonment, and had defendant been made aware of this circumstance, he would not have pleaded non vult , since he had nothing to gain by entry of the plea. The instructions of the Appellate Division, in the event defendant made an application for withdrawal of his non vult plea, were for the trial judge to conduct a hearing to determine (1) whether the plea to murder, in conjunction with the pleas to robbery and armed robbery, was entered pursuant to a meaningful bargain with a full appreciation by defendant of the legal consequences, and (2) whether the State would be prejudiced by permitting a withdrawal of the plea to murder.
In accordance with these instructions a testimonial hearing on defendant's application was held during which defendant and the attorney who represented him at the plea and at the negotiations preceding the plea both testified that the primary inducement to plead was defendant's concern
as to a custodial term for the armed robbery conviction consecutive to a life term for murder. It was that concern which motivated the bargain for concurrent sentences in exchange for the plea.*fn1 At the conclusion of the hearing the trial judge found it unnecessary to make a finding concerning whether the plea to murder was entered pursuant to a "meaningful bargain with a full appreciation by the defendant of the legal consequences" because he concluded that the State would be prejudiced by permitting a withdrawal of the plea to murder. Accordingly, the motion to withdraw the plea was denied and defendant appeals.
In its opinion on the direct appeal the Appellate Division entertained "no doubt as to his (defendant's) guilt of all of the charges." A review of the factual basis for the plea defendant now seeks to have vacated persuades us to agree with that conclusion. Defendant admitted to the trial judge in connection with his plea that he was at the scene of the robbery on November 15, 1971 with Lawrence Pierce and William DeShields. "We were there to commit robbery." They had come from Salem and defendant had first become aware that Pierce had a gun after they had already arrived at the scene and about five minutes before the robbery occurred. "As we entered the store, like I stood by the door and, you know, Pierce asked him to, he wanted to buy some cold cuts, and as he was getting the cold cuts and on his way back to the counter, Pierce went around the counter * * *. And he said: This is a stickup, you know. And Mr. Andras, his back was to Pierce. And as he turned around, he (Pierce) fired." Defendant was standing by the door as a lookout, about 10 or 15 feet from where Andras
was shot. After being shot, Andras "like he staggered to the left and he fell. And I ran over to him and looked at him. And I asked Pierce why he did it. He didn't have to do that, I told him come on, let's go." They left after taking money from the register which was later divided among the three of them. Much of the same material was repeated by defendant immediately before the sentence was imposed. Even on this appeal from the denial of his application to withdraw his non vult plea to murder, defendant does not assert his innocence.
The Appellate Division further entertained "no doubt" but that the pleas were "voluntary, intelligently and understandingly made; that defendant fully understood their consequences including the life imprisonment sentence that the court would probably impose; and that he knowingly waived his right to jury trial and was satisfied with this counsel's preparation and representation." Here, again, a review of the plea and colloquy preceding imposition of sentence provides irrefutable ...