On certification to the Superior Court, Appellate Division.
For affirmance in part; modification in part; remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.
Pursuant to a negotiated plea agreement, defendant, Mildred Barboza, pleaded guilty to aggravated manslaughter in violation of N.J.S.A. 2C:11-4(a). In turn, the State agreed to dismiss defendant's outstanding murder indictments and to recommend a maximum sentence of fifteen years, reserving the right to seek a maximum parole ineligibility period of seven-and-one-half years.
The trial court accepted the plea, sentenced defendant to the agreed maximum term, and dismissed the outstanding murder indictments. Defendant appealed her conviction and the Appellate Division reversed defendant's conviction, holding that the plea was factually unsupported by the record. It then remanded the case to allow the State either to downgrade the offense charged to conform to the proofs or to reopen the proceedings to present further evidence. We granted certification to determine what remedy should follow after an appellate court finds that a guilty plea has been accepted without an adequate factual basis. 113 N.J. 360 (1988).
During the night of September 9, 1984, and into the early hours of September 10, Ricky Barboza, defendant's four-year-old son, was severely beaten by defendant's boyfriend, Richard Collier, at Collier's home. At 5:00 a.m. on September 10, defendant took her son Ricky to Middlesex General Hospital. Although defendant claimed that the child had fallen down a flight of stairs, the hospital physicians immediately suspected child abuse. Ricky died on September 11 from the injuries inflicted. On September 13 Collier admitted beating the child and defendant acknowledged that she lied to the hospital personnel concerning the source of Ricky's injuries.
On August 28, 1985, defendant pleaded guilty to the aggravated manslaughter of Ricky Barboza. At the plea hearing, the trial court questioned defendant in order to establish a factual basis for the plea. Defendant stated that she had delivered Ricky to Collier's house on September 9 after Collier had requested that Ricky spend the night. Defendant knew that Collier, who had been drinking, intended to discipline Ricky because Ricky had taken a ruler belonging to Collier. She believed that Collier would "slap him or make him stand in the corner for a while." Defendant insisted, however, that she did not suspect that Collier would inflict "severe" discipline. Defendant admitted that Collier had hit Ricky previously and that on one occasion she had even covered up the bruises inflicted by Collier. She also acknowledged that when Collier drank too much, he could become physically abusive, but stated that she did not believe he was drunk on the night in question.
At the plea hearing, the trial court also reviewed an autopsy report submitted by the Public Advocate, which concluded:
The injuries received by the deceased, including the head injury, liver injury and almost all the bruises on the body's surface, were consistent with having been caused during the period when Mildred Barboza was not present in the home. Only one bruise, the one in the mid-back, was shown on microscopic examination to be older, approximately a week old.
Despite reservations about the adequacy of the plea's factual basis, the trial court accepted the plea. The court found that the plea was voluntary and that the defendant understood its terms and implications. On October 18, 1985, the court sentenced defendant to the maximum term permissible under the plea agreement. At the request of the State, pursuant to the plea agreement, the murder indictments pending against defendant were dismissed.
Defendant subsequently appealed her conviction on the grounds that there was an insufficient factual basis in the record to support a conviction for aggravated manslaughter and, in the alternative, that the court improperly applied sentencing guidelines. The Appellate Division reversed the conviction, holding that the plea was factually unsupported by the record. In effect, the court concluded that the facts supporting the plea could not establish that the circumstances described involved a "probability of murder," a requirement of aggravated manslaughter. See State v. Curtis, 195 N.J. Super. 354, 365 (App.Div.1984).
In her petition for certification, defendant argued that she must be allowed to withdraw her guilty plea and plead anew. In a supplemental brief filed subsequently, however, she asserted for the first time that in the interests of justice her plea should be downgraded to the third-degree crime of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The State contends that the Appellate Division's remand procedure is appropriate. The only issue now before us is whether the Appellate Division's remedy of allowing the State either to downgrade the offense charged to conform to the factual basis provided below or to reopen the proceedings to present further evidence is correct. Under the Appellate Division decision if the State were to choose the first option, defendant ...