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State v. Gibson

Decided: November 6, 1975.


For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. For reversal -- Justice Pashman. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned. Schreiber, J. (concurring). Pashman, J. (dissenting). Schreiber, J., concurring in the result.


The question presented on this appeal from a denial of post-conviction relief is whether, when a defendant, knowingly and with advice of an attorney, enters into a plea agreement with the State pursuant to which (a) he pleads guilty to certain charges in return for sentence concessions on said pleas and the dismissal of a more serious charge; and (b) the latter are conditioned on defendant's waiving appeal from an armed robbery conviction entered against him after trial, the defendant may have post-conviction relief, after expiration of the time to appeal the armed robbery conviction, restoring the right of appeal therefrom. Defendant's contention is that the surrender of his right of appeal was invalid and illegal and gave rise to a right to such post-conviction relief.

Our holding is that while, as a matter of judicial policy, a defendant will be permitted to bring a timely appeal from a conviction notwithstanding his agreement by plea bargain not to appeal, he may not bring an appeal out of time, as we find no basis for post-conviction relief in the mere inclusion in a plea agreement, under circumstances free from

coercion or undue pressure upon the defendant, of an agreement not to appeal a conviction.

On October 21, 1971 defendant Gibson and co-defendant Bryant were indicted by the Salem County Grand Jury on charges of robbery and robbery while armed in violation of N.J.S.A. 2A:141-1 and 2A:151-5. Gibson was also indicted that day for escape from a police officer, contrary to N.J.S.A. 2A:104-6. On January 27, 1972 Gibson was indicted for malicious destruction of county property while incarcerated in the Salem County jail, in violation of N.J.S.A. 2A:122-1, and at an unspecified date he was also indicted for sodomy, contrary to N.J.S.A. 2A:143-1.

In December 1971 Gibson and Bryant were tried on the robbery and robbery while armed charges and were convicted by jury verdict on both charges. Defendant was sentenced on July 21, 1972 by Judge Narrow to a prison term of 10-12 years on the robbery conviction and to a concurrent term of 2-3 years for the armed feature. That sentencing was preceded by the negotiation of an agreement between defendant, on advice of counsel, and the prosecutor, encompassing the following terms: (a) defendant would plead guilty on the escape and malicious injury to property charges, but his sentences therefor would be concurrent with the sentence on the armed robbery conviction; and (b) the sodomy indictment would be dismissed. In return for the foregoing defendant agreed that he would not appeal from the conviction for armed robbery and for being armed.

Although, unfortunately, the transcript of the proceedings on sentencing reveals that the terms of the plea agreement were not submitted for approval to the trial court, as they should have been, see Administrative Directive, 94 N.J.L.J. 1 (1971),*fn1 the record of the instant post-conviction proceedings strongly supports the inference

that the court did know of the agreement and in fact approved it. Defendant does not assert the contrary.

In addition to sentencing defendant on the charges for robbery and for being armed, as noted, the court at the same time accepted his guilty pleas on the escape and malicious property damage charges and sentenced him to consecutive prison terms of 2 I/2 to 3 years for each, but both to be concurrent with the armed robbery sentences. At sentencing, the trial court informed defendant that he had the right to appeal any of the sentences within 45 days and that the court would appoint an attorney for him for that purpose should he lack the means therefor. Defendant indicated he understood. No direct appeal was taken from any of the convictions.

At the hearing of the post-conviction petition, defendant's attorney as of the time of the plea arrangements and sentencing testified that he had discussed these matters with defendant and his mother and had informed defendant he had a right to appeal the armed robbery convictions, but that defendant had indicated he did not wish to appeal. He had also represented defendant on the sodomy charges, and had reviewed the merits of that charge with defendant.

On September 16, 1972, defendant wrote to the attorney complaining that notwithstanding "the deal" made on his behalf to drop the sodomy charge, the charge was still outstanding. He requested the attorney to "keep up your end of the bargain and get the charge dropped like you said it would be." The sodomy charge was subsequently dismissed.

On or about June 6, 1973, defendant filed a pro se petition for post-conviction relief pursuant to R. 3:22-1 et seq. As grounds for relief, he asserted (1) the unconstitutional use by the State of perjured testimony; (2) "the use of pending charges used to enhance the punishment inflicted"; and (3) there was no evidence of armed robbery; the State used hearsay evidence; and the State brought out unrelated

other charges. Defendant sought relief either through a new trial or by a reduction of sentence.

By amendment of the petition through the Office of the Public Defender, defendant asserted a denial of due process of law in that his attorney had informed him on the day of his sentencing that the prosecutor would move for a dismissal of the sodomy charges if no appeal was taken on the conviction for armed robbery and that "relying on that information he failed to exercise his right of appeal."

After hearing, the trial judge denied the petition. The court found that defendant knew of his right to appeal; that there was a plea bargain entered into at arms' length, with representation of defendant by qualified counsel; and that defendant's election not to appeal was voluntary, even though influenced by a desire to avoid the danger involved in facing a sodomy charge. Defendant appealed the judgment to the Appellate Division.

Defendant's contention is that he "was denied his right to appeal by an illegal plea bargain." The illegality asserted is the conditioning of plea and prosecution concessions by the State on the withholding by defendant of the exercise of his right of appeal from a conviction. Since the issue stated was reserved by us in State v. Spinks, 66 N.J. 568, 573, n. 2 (1975), we certified this appeal on our own motion while it was pending unheard in the Appellate Division. 67 N.J. 103 (1975).

In Spinks, supra, a timely appeal from sentence was brought by a defendant who had pleaded guilty pursuant to a plea agreement. The sentence was within the range of the agreement, and there had been no agreement by defendant not to appeal. The State nevertheless argued that to allow appeal from sentence in such case would be incompatible with the contractual nature of a plea negotiation (at 573) and would encourage frivolous appeals (at 574). We rejected these contentions, but pointed out that the reviewing court should take into account the terms of the plea

agreement, "including the reduction or dismissal of charges" and the fact that "the defendant has freely agreed to the imposition of such sentence as part of the plea negotiations" (66 N.J. at 573).

In appraising defendant's contentions, we set to one side, for later treatment herein, the question whether the court should as a matter of sound judicial policy permit a timely appeal to be filed by a defendant from a conviction notwithstanding either his bargained for agreement not to appeal or his acceptance of plea agreement benefits conditioned on his not appealing. As indicated at the outset, we have reached an affirmative conclusion on that issue. The here crucial question, however, is whether the mere concurrence of the parties in a plea agreement inclusive of a waiver of appeal, however freely arrived at, should be regarded as per se tainted with illegality, and thus operative to activate post-conviction relief by way of validation of an untaken appeal nunc pro tunc.

R. 3:22-2 permits post-conviction relief for "(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." Ordinarily a petition for such relief may be filed within five years of the judgment or sentence under attack. R. 3:22-12. We assume the present petition is filed under (a) as none of the other provisions of R. 3:22-2 appears even debatably pertinent. The issue, then, is whether a non-coercive agreement in the nature of a plea agreement becomes a "substantial denial" of a defendant's constitutional or other rights by reason of the inclusion therein of a stipulation against appeal by the defendant, though he is fully represented by counsel in arriving at the agreement. Our determination on that narrow question is in the negative.

The general acceptability of plea negotiation, or "plea bargaining" as it has commonly been denominated, under careful judicial supervision against unreasonable hazard of

the proper interests of either the accused or the State, has been repeatedly recognized in our recent decisions. State v. Taylor, 49 N.J. 440, 455 (1967); State v. Thomas, 61 N.J. 314, 321 (1972); State v. Jones, 66 N.J. 524 (1975). The practicality, utility and constitutionality of plea negotiations have also been recognized by the United States Supreme Court. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); Brady v. United States, 397 U.S. 742, 752-753, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).

There is what may be fairly characterized as a minority viewpoint that inclusion of a waiver of appeal in a plea agreement is inherently coercive against exercise of the right of appeal. People v. Butler, 43 Mich. App. 270, 204 N.W. 2d 325 (Ct. App. 1972); People v. Ramos, 30 A.D. 2d 848, 292 N.Y.S. 2d 938 (1968); cf. Worcester v. C.I.R., 370 F.2d 713, 718 (1 Cir. 1966) (disapproving a judge's offer to a defendant to suspend sentence if he agrees not to appeal). Contra: People v. Williams, 36 N.Y. 2d 829, 370 N.Y.S. 2d 904, 331 N.E. 2d 684 (Ct. App. 1975); People v. Irizarry, 32 A.D. 2d 967, 303 N.Y.S. 2d 332 (1969), aff'd mem. 27 N.Y. 2d 856, 317 N.Y.S. 2d 15, 265 N.E. 2d 540 (Ct. App. 1970); State v. Gutierrez, 20 Ariz. App. 337, 512 P. 2d 869 (Ct. App. 1973); U.S. ex rel. Amuso v. La Vallee, 291 F. Supp. 383 (E.D.N.Y. 1968), aff'd 427 F.2d 328 (2 Cir. 1970); Brown v. Haynes, 385 F. Supp. 285, 291 (W.D. Mo. 1974).

In People v. Butler, supra, a defendant charged with armed robbery and assault with intent to commit murder was permitted to plead guilty to a reduced assault charge with a stipulation that after expiration of the period for appeal the armed robbery charge would be dismissed. On appeal of the conviction on the plea the court set aside the plea, holding that the effect of the arrangement was to produce "a chilling effect on the right to appeal" and that it

was therefore "constitutionally impermissible". 204 N.W. 2d at 330.

An opposite view on substantially the same fact pattern was taken by the federal district court in the La Vallee case, supra, where the issue was raised on application for habeas corpus after denial of relief to the defendant in the New York state courts. The court asserted that the record before it indicated that the court which took the plea had taken pains to be assured that it was voluntary. 291 F. Supp. at 384. It observed that plea agreements generally were approved by the American Bar Association Project on Minimum Standards for Criminal Justice, Pleas of Guilty, Ibid., and it stated that: "Conditioning charge concessions on a waiver of the right to appeal from the sentence on the guilty plea is one method of making a plea agreement enforcible [sic]." Id. at 385. The court quoted another federal decision (unreported) in similar circumstances to the effect that while a court could not properly bargain with a defendant, or "put a price" on an appeal, yet "where a defendant makes his own terms and understands them and thereby brings an end to his trial and the separate outstanding indictment against him, he should not be permitted to later reevaluate his position, particularly where the status quo ante cannot be restored." Ibid.

In affirming in La Vallee, the Court of Appeals pointed out that it was not the acceptance of the plea of guilty that was conditioned on waiver of the appeal but only the dismissal of the other outstanding indictment. The defendant's assent to the plea was considered to be "entirely voluntary" and "not the result of unconstitutional compulsion". 427 F.2d at 329.

The current approach to the question under discussion by the New York Court of Appeals is reflected by its recent decision in People v. Williams, supra. There defendant, who was under indictment on two counts of murder, had made a pretrial motion to suppress admissions he had made to

the police. After denial of the motion and before trial the parties negotiated for a plea of guilty by defendant to substituted counts of manslaughter in lieu of the murder charges. The prosecutor imposed the condition that defendant waive appeal from denial of the motion to suppress. In justification thereof the prosecutor explained to the trial court that if after the year or more that an appeal could take the decision on the motion were reversed his witnesses would then be unavailable for any trial at that time, thus prejudicing the People. The court sustained the waiver of appeal, finding the arrangement to have been thoroughly discussed with counsel and family and the interrogation by the trial court on the plea and waiver to have been exemplary. 331 N.E. 2d at 685.

While perhaps most plea agreements do not contain express waivers of appeal or conditions against appeal, many of them do, and the practice has been defended by some experts in the field. In the Standards Relating to Criminal Appeals, ยง 2.2(c) (Approved Draft 1971) of the American Bar Association Project on Standards for Criminal Justice, it is provided:

"Where a case has been tried, prior to final judgment, defense counsel should review the prospects of appeal. One alternative to be considered is whether it is in his client's interests to seek mitigation in the grade of the offense or in the severity of the sentence in exchange for a decision to forego appeal."

The commentary to the section notes:

"In light of the sharply rising number of appeals from criminal judgments, any procedure that might reduce the load upon the appellate courts without diminishing the rights of defendants or undermining the processes of the courts is worthy of serious and thoughtful examination. See United States ex rel. Amuso v. La Vallee, 291 F. Supp. 383 (E.D.N.Y. 1968)."

The Uniform Rules of Criminal Procedure (Approved 1974), provide, in Rule 444(d), that a negotiated plea bars

an appeal based upon any nonjurisdictional defect in the proceedings except an order denying a pretrial motion to suppress evidence or any pretrial motion which, if granted, would be dispositive of the case. Notwithstanding the stated exceptions, Rule 443(a)(4) permits a plea agreement to specify that the defendant will not seek appellate review of an order denying a pretrial motion.*fn2

We are quite unpersuaded by the rationale of Butler, supra, that tendering concessions to a defendant in return for his agreement not to appeal a conviction is necessarily an unconstitutional "chilling" and therefore deprivation of his right of appeal. We find the analogy of the universally accepted propriety of exchanging sentence and charge concessions for a defendant's guilty plea to be most compelling. In that situation a defendant, undoubtedly motivated by the favorable treatment tendered by the State, surrenders his right to be tried by a jury and to be confronted by witnesses against him. Yet, if the record shows the defendant has pleaded with full understanding of his rights and liabilities, with the advice of counsel, ...

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