On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Clifford, Pollock, O'Hern, Garibaldi and Stein, JJ. Concurring in part; dissenting in part -- Justice Handler. The opinion of the Court was delivered by Wilentz, C.J. Handler, Justice, concurring in part and dissenting in part.
[121 NJ Page 484] Under a misapprehension that the death penalty was applicable to juveniles, defendant, Ralph Kiett, pleaded guilty to murder on September 17, 1985, pursuant to a plea bargain that removed the risk of the death penalty. He was seventeen when the crime was committed. After Kiett entered his plea and was sentenced to life imprisonment with thirty-years parole ineligibility, this Court determined that the Legislature never intended
the capital punishment provisions of N.J.S.A. 2C:11-3 to apply to juveniles. State v. Bey, 112 N.J. 45, 95-105, 548 A.2d 846 (1988) (Bey I). The Appellate Division rejected defendant's request to withdraw his plea. We granted certification, 114 N.J. 470, 555 A.2d 598 (1989), limited to the issue of whether a juvenile's plea of guilty to murder, agreed to in order to avoid exposure to an inapplicable death penalty, can be withdrawn.
Nineteen-year-old Elizabeth Ann Coutee disappeared on the night of February 25, 1982. Six days later, her body, nude except for her socks, was found in a marshy area near Westend Avenue in Atlantic City. She had been stabbed twenty-eight times. The evidence that defendant committed the crime was overwhelming.
An Atlantic County grand jury returned two indictments against defendant. The first indictment charged him with knowing or purposeful murder by his own conduct (capital murder), in violation of N.J.S.A. 2C:11-3a(1) or (2); knowing or purposeful murder, in violation of N.J.S.A. 2C:11-3a(1) or (2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d; third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; and two counts of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(4) (use of weapon) and 2C:14-2a(6) (use of force resulting in severe personal injury). The second indictment (arising from his attempted escape) charged him with two counts of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(5)(a), and second-degree escape, in violation of N.J.S.A. 2C:29-5a. Jurisdiction was waived to the Law Division, and Kiett was prosecuted as an adult. N.J.S.A. 2A:4A-26; R. 5:9-5 (now R. 5:22-2). The prosecutor filed notice of aggravating factors under N.J.S.A. 2C:11-3c(2)(e), designating the matter as a capital case. The aggravating factors the prosecutor intended
to prove were N.J.S.A. 2C:11-3c(4)(g), that the murder was committed during the commission of a felony (rape), and 2C:11-3c(4)(c), that the murder involved depravity of mind or an aggravated assault.
Kiett and the prosecutor negotiated a plea bargain. Kiett agreed to plead guilty to knowing and purposeful murder by his own conduct (capital murder) and second-degree escape. In return, the prosecutor agreed, in effect, not to seek the death penalty.*fn1 Rather, he would recommend a sentence of life imprisonment with thirty-years parole ineligibility for the murder charge, plus a consecutive ten-year sentence with five-years parole ineligibility for the escape charge, and dismiss the remaining counts of the indictments (the aggravated sexual assault charges, the weapons charges, and the aggravated assault charges arising from the escape).
Kiett then entered a plea of guilty to capital murder and escape. In accordance with the agreed-upon arrangement, he waived a jury for the penalty phase, allowing the court to determine whether the aggravating factors outweighed the mitigating factors, and ultimately whether he would be sentenced to prison or put to death. The court accepted the guilty plea, scheduled the matter for a penalty proceeding, and requested the defense counsel and the prosecutor to submit information regarding the aggravating and mitigating factors. Pursuant to this arrangement, if the trial court found in the penalty phase that the death penalty was appropriate, then Kiett would retract his guilty plea. Thereafter, assuming no other plea bargain, he would presumably have a trial by jury to determine guilt and, if convicted of the capital crime, a second sentencing proceeding in which the jury would determine whether the penalty would be death.
In preparation for the penalty proceeding, the court reviewed a report submitted by the defense and the presentence report. Defense counsel, at the penalty proceeding, indicated that its report "summariz[ed] the material that would have been presented by the defense at the penalty phase of the trial in this matter. . . ." (emphasis supplied). The prosecutor had not received a copy of this defense report before sentencing but stated nevertheless that he did not find this to be an "impediment for sentencing" and even suggested that the court sentence defendant "in accordance with" the report. The record is unclear about whether the prosecutor submitted a report on the aggravating factors. Aggravating factors were never described, much less proved, in the penalty proceeding, and on defense counsel's prompting that the court specifically enumerate the aggravating and mitigating factors for the record, the prosecutor responded that the aggravating factors "[a]re in the record." Neither the prosecutor nor the defense counsel made summations. Indeed, the entire proceeding was quite brief, the transcript being only twelve pages long.*fn2
At the conclusion of the penalty hearing, the court found:
It is reasonable to conclude that the two aggravating factors do not, beyond a reasonable doubt, outweigh the mitigating factors of which there is evidence. Inasmuch as the defendant was a juvenile at the time of the offense, his age may be deemed a mitigating factor. [ N.J.S.A. 2C:11-3c(5)(c).] His borderline mental retardation and substance abuse problems may be considered as having, to a significant degree, impaired his capacity to conform his conduct to the capacity of the law. [ N.J.S.A. 2C:11-3c(5)(d).] The early childhood emotional and physical trauma experienced by him may have [sic] deemed to interfere with his character development so as to adversely impact upon his ability to live as a law-abiding citizen. [ N.J.S.A. 2C:11-3c(5)(h).]
The court sentenced Kiett to life in prison, thirty-years parole ineligibility, for murder. The court indicated that the "reasons for the sentence in the case are that the sentence is imposed in
accordance with the plea agreement and after careful consideration of all the material available to the court, it is concluded that the recommended sentence is in the interest of justice and it is in accordance with the law as to the . . . charge of murder."
The court . . . shall not accept such plea [of guilty] without first . . . determining . . . that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea. (Emphasis supplied.)
The court must be satisfied that the defendant understands the consequences of his or her guilty plea. "The right of the defendant to be informed of the consequences of his plea, however, extends only to those consequences that are 'direct,' or 'penal,' but not to those that are 'collateral.'" State v. Howard, 110 N.J. 113, 122, 539 A.2d 1203 (1988). That a defendant may be deported or lose a job as a result of the guilty plea has been held to be merely a collateral consequence. See State v. Chung, 210 N.J. Super. 427, 510 A.2d 72 (App.Div.1986); State v. Heitzman, 209 N.J. Super. 617, 508 A.2d 1161 (App.Div.1986), aff'd o.b., 107 N.J. 603, 527 A.2d 439 (1987). That a defendant was mistaken, however, about being subject to imposition of a period of parole ineligibility, or about the impact on parole arising from a sentence to the adult diagnostic and treatment center, has been deemed a direct or penal consequence, allowing for retraction of a guilty plea. See State v. Howard, supra, 110 N.J. 113, 539 A.2d 1203; State v. Kovack, 91 N.J. 476, 453 A.2d 521 (1982). In addition, "where the responsible arms of the judicial and law enforcement establishment, together with defendant's own counsel, have misinformed [the defendant] as to a material element of a plea negotiation, which the defendant has relied thereon in entering his plea, . . . it would be manifestly unjust to hold defendant to his plea." State v. Nichols, 71 N.J. 358, 361, 365 A.2d 467 (1976) (citation omitted).
The potential penalties, especially the potential imposition of a death sentence, for the crimes for which defendant is charged are clearly penal consequences about which a defendant must be fully informed. If a defendant is misinformed about his or her eligibility for the death sentence, and if that misunderstanding is material to the plea, he or she cannot be deemed to have entered a guilty plea with a full understanding of the penal consequences.*fn3 In other words, a defendant who entered a guilty plea to avoid imposition of the death penalty, but who cannot be put to death as a matter of law, labors under the kind of mistake that entitles him or her to withdraw the plea. R. 3:21-1.
Kiett was a juvenile at the time the crime was committed. As this Court subsequently determined, the death penalty never applied to juveniles. State v. Bey, supra, 112 N.J. at 98, 548 A.2d 846 (Bey I). Although the 1982 Act reinstating the death penalty (N.J.S.A. 2C:11-3) was silent regarding its applicability to juveniles tried as adults,*fn4 "[i]t is clear to us that the Legislature never had intended to subject juvenile offenders to capital punishment. . . ." Bey I, supra, 112 N.J. at 98, 548 A.2d 846. The Act was amended in 1986 expressly to prohibit the execution of juveniles tried as adults. L. 1985, c. 478 (codified at N.J.S.A. 2C:11-3g).
In Bey I, this Court examined the applicability of the death penalty to a juvenile and determined that even if the Legislature had not amended the Act expressly to preclude the execution of juveniles, a juvenile would not be subject to its capital provisions. Bey I, supra, 112 N.J. at 98-101, 548 A.2d 846. We further found that "the Legislature intended the amendment to operate retroactively and apply to [Bey's] case; the legislative history . . . speaks unmistakably of an intent to preclude the execution of any juvenile offenders under the 1982 Act." Id. at 101-02, 548 A.2d 846 (citations omitted). To erase any lingering doubt, we also noted that "notions of fundamental fairness, invoked by this Court in State v. Biegenwald, supra, 106 N.J. 13, 65-67, 524 A.2d 130, to order the retroactive application of a burden-of-proof amendment to section c, would likewise demand retroactive application of the juvenile-offender exemption in this case." Bey I, supra, 112 N.J. at 104, 548 A.2d 846. Therefore, because as a matter of law Kiett could not have been put to death, his plea of guilty, if it was entered to avoid the death penalty, was not made with a full understanding of its penal consequences.
Defendant must show that his mistaken belief about penal consequences was a material factor in the decision to plead guilty. State v. Howard, supra, 110 N.J. at 123, 539 A.2d 1203; State v. Taylor, 80 N.J. 353, 365, 403 A.2d 889 (1979). The necessary link establishing that Kiett's misapprehension led to his guilty plea is clear from the nature of the plea proceeding. Kiett pleaded guilty to capital murder and waived the jury for the penalty phase. Under the plea agreement, if the court, after balancing the aggravating and mitigating factors, imposed the death sentence, Kiett could withdraw his plea and proceed to trial. If, on the other hand, the court did not impose a death sentence, Kiett would be sentenced to life with thirty-years parole ineligibility for the murder and five more years of parole ineligibility for the escape. The result of the bargain was that the death penalty would not be imposed, at least not in the proceedings directly following the plea. The
following colloquy illustrates that the court, prosecutor, and defense counsel were all aware that Kiett's primary motive in entering the guilty plea was to avoid imposition of the death penalty:
Mr. Rosenberg [defense counsel]: Ralph would like to enter a plea of guilty to Count Two . . . which charges him with murder, that being a capital offense where the State is seeking the death penalty. . . . He understands that there was a possibility that the jury could find him guilty and then, in the penalty phase, impose the death penalty. . . . He understands that in return for his plea of guilty [the State] is no longer seeking the death penalty. . . .
The Court: Do you understand that you're pleading guilty to charges, which as to murder committed by your own hand, the maximum penalty for that would be the death penalty. . . . Do you understand that?
Mr. Garafola [prosecutor]: The State, by virtue of its agreement to date, does not seek to withdraw any of the aggravating factors, but is simply providing a vehicle through which the court could conduct the balancing test that the jury is constrained to do should the case, of course, go to trial and a jury finds him guilty of murder by his own conduct. Actually, the procedure that is envisioned, Your Honor, is that which was conducted by the court in [ State v. Wright, 196 N.J. Super. 516, 483 A.2d 436 (Law Div.1984)]. I would also advise the court that in considering the balance of the aggravating and mitigating factors, the State recognizes that there is not an insubstantial possibility that a jury, upon finding Mr. Kiett guilty of murder by his own conduct, would impose life imprisonment rather than a death sentence. The primary consideration, primary mitigating factor, Your Honor, being the . . . defendant's age.
Avoiding the death penalty was a material factor in Kiett's decision to plead guilty. Because he entered his guilty plea relying on misinformation about his eligibility for execution, he may withdraw the plea.*fn5
The Appellate Division found that under the standard of manifest injustice, Rule 3:21-1, the burden on defendant, given his plea agreement, was too heavy to be overcome by a showing of misunderstanding of the penal consequences. The Appellate Division correctly noted that the evidence of Kiett's guilt was overwhelming, and that avoiding the ...