On certification to the Superior Court, Appellate Division.
For reversal, vacation and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
The defendant, Kirk Warren, seeks to set aside a guilty plea to criminal charges that were the basis for the imposition of custodial sentences. These sentences conformed to the terms recommended by the county prosecutor at the time the plea agreement was made and entered by the sentencing court. The defendant claims that the plea arrangement, as viewed by the trial court, entitled the prosecutor to withdraw from the plea bargain and compel defendant to go to trial if the sentence imposed by the court did not conform to the prosecutor's recommended sentence. This, according to the defendant, constituted an improper limitation on the trial court's sentencing discretion. The appeal thus presents the issue of the validity of a plea agreement that includes as a material term the right of the prosecutor to withdraw from the plea and insist on a trial if the sentence imposed by the court is more lenient than that negotiated by the parties or recommended by the prosecutor.
A state grand jury returned an indictment that charged the defendant Kirk Warren and six co-defendants with conspiracy to commit theft by deception in the second degree, contrary to the provisions of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4, and with multiple counts of theft by deception in the third degree, contrary to the provisions of N.J.S.A. 2C:20-4 and N.J.S.A. 2C:2-6. Defendant entered a retraxit plea of guilty to the conspiracy charge. The defendant also waived his right to have an additional charge presented to a grand jury, and entered an original guilty plea to an accusation charging one count of conspiracy to commit theft by deception in the second degree. In exchange for the guilty pleas, the State agreed not to prosecute the defendant on any pending investigations and to recommend to the sentencing court a sentence of nine years with a four-and-one-half-year minimum parole ineligibility period.
The State also recommended that the sentences on each charge run concurrently.
The facts supporting the indictment and guilty pleas, according to the record, show that defendant was engaged in two conspiracies. The first took place between the approximate dates of January 1, 1983 and June 30, 1984, and involved defendant and his co-defendants using a dormant corporation to create the impression that they had been successfully doing business in the marketing of a particular food product for a number of years. To accomplish this purpose, they used fictitious references and falsely represented that they had been exclusively selected to market this new line of food products. The record with respect to the second conspiracy indicates that between September 1, 1981 and July 31, 1984, defendant and co-defendants placed advertisements in newspapers throughout the country in an effort to sell distributorships to another dormant corporation, and also used fictitious references. Under both conspiracies, defendant and co-defendants secured money deposits that were diverted to their own uses.
The trial court sentenced defendant to two concurrent nine-year terms and a four-and-one-half-year period of parole ineligibility. The aggregate term conformed to the sentence that was recommended as part of the plea bargain. The defendant filed an appeal with the Appellate Division challenging only the excessiveness of the sentence. Following oral argument without briefs, during which only a slight reference was made with respect to the validity of the underlying plea, the Appellate Division issued an order affirming the sentence imposed below. This Court granted defendant's petition for certification, 109 N.J. 500 (1987), in which defendant seeks to vacate his sentence by having the plea invalidated.
The initial inquiry in this case is factual: whether the plea bargain encompassed an agreement that would enable the
prosecutor to withdraw from the guilty plea if the court imposed a sentence more lenient than that to which the parties agreed, and whether such an understanding was shared by the trial court when it accepted the plea and later sentenced the defendant. If the record demonstrates that there was such a plea arrangement, the ultimate issue is whether a plea encompassing such an understanding is valid.
The practice of plea bargaining that enables a prosecutor to withdraw from the guilty plea if the sentence imposed is more lenient than that recommended by the prosecutor and contemplated by the plea agreement is referred to as a "negotiated sentence." A negotiated sentence is one that the parties, the State and the defendant, understand must be imposed by the sentencing court in order to fulfill the plea bargain and, if it is not, the party whose sentencing expectations have been disappointed, either the State or the defendant, would have the right to withdraw from the plea arrangement and insist on a trial. Such a negotiated sentence would constitute a material term of the plea bargain.
A defendant, however, has always enjoyed the right to withdraw from a guilty plea if an ensuing sentence is more severe than that recommended by the prosecutor. See R. 3:9-3(e). The critical aspect of the negotiated-sentence practice is that it gives the prosecutor a reciprocal right to rescind the plea bargain if the sentence imposed is more lenient than that negotiated. The sentencing court in this case thus characterized the practice as follows:
that if the Court intends to sentence [the defendant] to [a] less[er] [sentence] than the negotiated plea agreement it must give the State the opportunity to withdraw from the agreement because it can't require the State to then dismiss counts that it was committed to dismiss in return for the acceptance of the sentence that is less than the negotiated sentence.
There are strong indications that the guilty plea and resultant sentence in this case were influenced by the negotiated-sentence practice. When the plea was taken, it was explained that the defendant would be exposed to sentences that in the aggregate
would not exceed nine years with a four-and-one-half-year period of parole ineligibility. At defendant's sentencing, the trial court made several references to the terms of the plea arrangement. The court acknowledged that it was limited in having to sentence the defendant to a concurrent sentence, which had been agreed to or "negotiated" by the parties.*fn1 The court also observed that without the plea agreement, it would have sentenced defendant to consecutive terms, but because of the plea agreement, it felt constrained to impose a concurrent sentence.*fn2
These expressions on the part of the sentencing court are also consistent with the State's argument presented at the defendant's motion for reconsideration of his sentence, namely, that the negotiated sentence was part of the plea agreement and it was so understood by the court when it imposed sentence.*fn3 The court reinforced this understanding of the plea agreement when it explained its view of the negotiated-sentence practice and its impact on the sentence imposed. It acknowledged that while the court "always has the discretion to impose . . . a proper sentence . . . if the court intends to sentence to
less than the negotiated plea agreement it must give the State the opportunity to withdraw ...