July 19, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
EDWIN URBINA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Accusation No. 08-03-0979.
Robin Kay Lord argued the cause for appellant (The Law Office of Robin Kay Lord, LLC, attorneys; Ms. Lord and Richard W. Berg, of counsel and on the brief).
Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Hamett, of counsel and on the brief).
Before Judges Lihotz, Ostrer and Kennedy.
Defendant appeals his May 16, 2008 conviction, pursuant to a plea agreement, for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as well as the resulting seventeen-and- one-half year sentence of incarceration, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On April 11, 2011, defendant filed a petition for post-conviction relief (PCR), which he later withdrew without prejudice in order to pursue a direct appeal. By order of December 16, 2011, we granted defendant's motion for leave to file an appeal "as within time" pursuant to Rule 2:4-1(a).
Defendant raises the following arguments on appeal:
SINCE THE FACTUAL BASIS ELICITED FOR DEFENDANT'S GUILTY PLEA INDICATED THAT HE WAS ASSERTING A COMPLETE DEFENSE TO THE CHARGE, THE TRIAL COURT ERRED IN ACCEPTING THE PLEA, AND DEFENDANT'S CONVICTION MUST BE REVERSED.
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards, and we affirm.
We discern the following facts from the record, primarily from the transcripts of the plea and sentencing hearings, as well as the judgment of conviction and the pre-sentence investigation (PSI) report.
On November 27, 2007, on the advice of counsel, defendant, then sixteen years old, surrendered to the Camden Police Department, which had been seeking defendant in connection with the November 24, 2007 shooting of Edwin Torres. On that date, Camden Police found Torres dead on a sidewalk in Camden with "multiple gunshot wounds to his neck and head." Witnesses identified defendant as the shooter. Defendant was charged with an offense that, if committed by an adult, would constitute murder, N.J.S.A. 2C:11-3(a)(1), (2), and he was remanded to a youth correctional facility.
On March 27, 2008, defendant, represented by the same counsel, invoked N.J.S.A. 2A:4A-27 and elected to have the case transferred to the Law Division. The Family Part entered an order effecting the transfer.
Defendant then pled guilty to an accusation charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), in return for a sentence not to exceed seventeen-and-one-half years incarceration subject to NERA. Defendant and his counsel signed the plea form in which defendant acknowledged his understanding of the charge and the plea, his satisfaction with the advice of counsel and the waiver of his trial rights.
At the plea hearing, defendant was sworn and acknowledged that he had "plenty of time" to speak with counsel and his family about "what [he] wanted to do." He added that, having spoken to his lawyer and his family, he had adequate time to think about the plea offer and wanted to accept it "rather than stand trial on a murder charge[.]"
Counsel for defendant represented to the court that he explained to defendant that "by waiving the Grand Jury he would not be indicted for murder" and that "we're proceeding on a less serious charge." Defendant acknowledged his understanding and voluntary agreement to waive indictment. The following colloquy then took place, which we set forth at some length:
THE COURT: [Defense counsel], would you assist in the factual [statement]? I would appreciate that.
[DEFENSE COUNSEL]: Certainly, Judge. Edwin, on November 24th you were in the City of Camden, correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: You came into contact at the time with Edwin Torres. Do you recall that?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And, Edwin, actually there was another young man with him, is that correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And at the time, you and Edwin Torres, would it be fair to say, got into an argument?
THE DEFENDANT: Yes.
[DEFENSE COUNEL]: At some point during that argument did you produce a handgun and fire that at Edwin? Did you shoot the handgun?
THE DEFENDANT: First he smacked me. When I was walking off, I looked behind me. He said I know you and I turn your back behind me. [sic] I looked behind me. H[e] and his cousin w[ere] pulling out their firearms. I went for mine. It was an automatic, so then the gun just went off. When it went off it dropped. When it dropped I picked it up and I just ran.
I ain't mean to kill him, your Honor. I just wanted to have him back up.
THE COURT: You discharged a firearm in his direction, right?
THE DEFENDANT: I shot, like, away from, but it hit and the gun took my hand.
THE COURT: Well, you didn't shoot it in the air and it went in the air and accidentally came down and hit him in the top of the head, right?
THE DEFENDANT: No.
THE COURT: You pointed it in his direction, right?
THE DEFENDANT: Yes.
THE COURT: You discharged it multiple times, right?
THE DEFENDANT: Yes.
THE COURT: You pulled it six times. It wasn't an automatic, right?
THE DEFENDANT: Yes – No. It was an automatic.
THE COURT: You pulled the trigger once and six bullets came out?
THE DEFENDANT: Yes.
THE COURT: That's right?
THE DEFENDANT: Yes.
THE COURT: You knew the pistol was an automatic?
THE DEFENDANT: No.
THE COURT: But you still shot in his direction six times, correct?
THE DEFENDANT: Yes.
THE COURT: And you struck him six times?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Your Honor, for the record, I also have discovery. The postmortem indicates six bullet wounds to the victim, so I would just state that also.
As far as – and I don't disagree at all with Edwin's recitation of the facts. However, as far as the disposition in this matter, in preparation of this matter, there was no handgun found on the victim at the time the police responded. We would have had to argue that someone disposed of it in order to proffer a viable self-defense argument and I took all that into account when we decided on that and, therefore, although [we] certainly . . . contemplated a possible self-defense, based on the lack of a weapon found at the scene and the six bullet wounds, it's my professional opinion that that would not have been a particularly viable defense.
THE COURT: You understand what your lawyer just said?
THE DEFENDANT: Yes.
THE COURT: And you agree with that assessment?
THE DEFENDANT: Yes.
[PROSECUTOR]: If I may, Judge, there is an eyewitness and the eyewitness account does not include the victim having a handgun
The facts as the State understood them are different from the defense version.
We ask that the plea paperwork be amended to show a waiver of self-defense as part of the plea.
THE COURT: You understand what [the prosecutor] said?
THE DEFENDANT: Yes.
THE COURT: You agree with that as well?
THE DEFENDANT: Yeah.
THE COURT: You reviewed everything with your lawyer and you reached this conclusion that this was the best thing to do under the circumstances, right?
THE DEFENDANT: Yes.
THE COURT: There's no doubt that you, in fact, discharged a firearm in the direction of Mr. Torres and caused his death, correct?
THE DEFENDANT: Yes.
THE COURT: All right. And you do know that, again, by pleading guilty today, you've waived any potential utilization of self-defense, correct?
THE DEFENDANT: Yes.
THE COURT: You also understand when you weighed everything out that, as [defense counsel] said and as I alluded to, had the matter gone to the Grand Jury you could have been, in fact, indicted for a first degree murder carrying a life sentence, 85 percent without parole, which is essentially 62-and-a-half years without parole?
You understand that?
THE DEFENDANT: Yes.
THE COURT: So, you weighed all that when you reached this decision with your family's assistance and [defense counsel's] assistance, correct?
THE DEFENDANT: Yes. Defendant initialed the plea form where the phrase "waive self-defense" was written.
Defendant was sentenced on May 16, 2008, in accordance with the plea agreement. During the course of the sentencing hearing, the following exchange occurred between the judge and defendant:
THE COURT: I mean, it's somewhat distressing when you did what you did as if you were killing a bug of some kind where you don't even think about it, you step on the ant and you end its life and not give it a second thought.
That's what seemed to happen here . . . .
THE DEFENDANT: I had a witness. Ain't happen like that. I ain't stand over him and shot him two times in the face.
THE COURT: Well, let me ask you this. How many times did that weapon discharge in his direction?
THE DEFENDANT: Ten times.
THE COURT: How many?
THE DEFENDANT: Ten.
THE COURT: I mean, what do you think happens when you shoot at somebody ten times? You think they are going to live? You think there is a likelihood of survival in that situation?
THE DEFENDANT: No.
The judge thereafter considered defendant's juvenile record, and finding aggravating factors under N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense), and N.J.S.A. 2C:44-1(a)(9) (need to deter), and no mitigating factors, sentenced defendant to seventeen-and-one-half years incarceration subject to NERA, with appropriate fines and penalties.
Almost three years later, on April 11, 2011, defendant filed a pro se petition for PCR. Therein, defendant alleged that after he began serving his sentence, he "learned that [he] had been misled and misrepresented by" defense counsel. He stated he had advised counsel that Torres was "armed, and had threatened to kill me and when I fired at Torres, it was an instantaneous reaction in self-defense." Defendant also alleged that counsel told him he would try to get the charge reduced to "reckless manslaughter, if [he] did not have a strong enough self-defense after his investigation." Defendant added that defense counsel did not interview an alleged eyewitness and did not conduct an adequate investigation of the incident prior to the plea.
Defendant thereafter hired present counsel and the PCR petition was withdrawn without prejudice. This appeal followed.
We first address defendant's challenge to his conviction and, thereafter, his challenge to the sentence. In challenging his conviction, defendant argues that during the plea hearing, the factual recital for his plea to aggravated manslaughter was "tantamount to a contemporaneous claim of innocence based on [a] plainly colorable defense" of self-defense. He adds that the factual basis was, therefore, inadequate to support the plea of guilt, and the judge erred in accepting the plea and, later, in entering a judgment of conviction.
At the outset, we are not considering on this appeal defendant's claim of ineffective assistance of counsel. The petition for PCR asserting that claim was dismissed without prejudice in the Law Division. Further, we are not considering a claim that the Law Division improperly denied defendant's motion to withdraw his plea. No motion to withdraw the plea was made in the Law Division. Rather, we are only asked to consider defendant's challenge to the factual basis for his plea. Although a challenge to the adequacy of the factual basis could be raised by motion to withdraw a plea, see Rule 3:21-1, alternatively, defendant may raise that issue through a direct appeal. State v. Butler, 89 N.J. 220, 224 (1982); State v. Mitchell, 374 N.J.Super. 172, 175 (App. Div. 2005).
R. 3:9-2 provides, in pertinent part, that the court shall not accept a plea of guilty to an offense
without first questioning the defendant personally, under oath or by affirmation, and determining . . . that there is a factual basis for the plea and that the plea is made voluntarily . . . with an understanding of the nature of the charge and the consequences of the plea.
The factual basis for a guilty plea "must obviously include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime." State v. Sainz, 107 N.J. 283, 293 (1987). Because "a guilty plea is the final relinquishment of the most cherished right - to be presumed innocent of a crime until a jury of one's peers has determined guilt beyond a reasonable doubt[, ]" State v. Smullen, 118 N.J. 408, 414 (1990), "a judge must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" State v. Taccetta, 200 N.J. 183, 196 (2009) (quoting State v. Slater, 198 N.J. 145, 155 (2009) (citation omitted)). Therefore, "'[e]ven if a defendant wished to plead guilty to a crime he or she did not commit, he or she may not do so. No court may accept such a plea.'" Ibid. (quoting Smullen, supra, 118 N.J. at 415)
The fact that a plea results from a negotiated plea agreement does not "obviate the need to establish a sufficient factual basis for the plea." Butler, supra, 89 N.J. at 224; State v. Taylor, 80 N.J. 353, 362 (1979). While we are "very sensitive to the requirement that there be an adequate factual basis for a plea of criminal guilt[, ]" Smullen, supra, 118 N.J. at 414, nonetheless a trial court need not
follow a prescribed or artificial ritual. To the contrary, because different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, a factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.
[State ex rel. T.M., 166 N.J. 319, 327 (2001) (citations omitted).]
However, not every alleged deficiency in a factual basis provided by a defendant during a plea colloquy requires reversal. See State v. D.D.M., 140 N.J. 83, 95 (1995); State v. Pena, 301 N.J.Super. 158, 163 (App. Div.), certif. Denied, 151 N.J. 565 (1997). In State v. Mitchell, 126 N.J. 562, 577-78 (2009), the Supreme Court stated:
As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own. See McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 425-26 (1969); State v. Barboza, 115 N.J. 415, 421 & n. 1, (1989).
In D.D.M., supra, 140 N.J. at 95, the defendant challenged his sentence as illegal, arguing that the trial court accepted his guilty plea without a factual basis. Citing Mitchell, supra, 126 N.J. at 577-78, the Supreme Court held that the failure of the trial court to elicit a complete factual basis was not sufficient to invalidate the defendant's conviction and to render his sentence illegal because: (1) the defendant did not express a contemporaneous claim of innocence at the plea hearing; and (2) the record clearly indicated the defendant's satisfaction with counsel, his acknowledgement of his prior record for similar offenses, and his understanding of the crime and the significance of his guilty plea. D.D.M., supra, 140 N.J. at 95-96.
Appellate challenges to a conviction based upon the assertion that defendant's factual basis was inadequate because he or she raised a contemporaneous claim of innocence are most often brought in the context of an appeal from the denial of a motion to withdraw a plea, see, e.g., Slater, supra, 198 N.J. 45, or an appeal from the denial of a PCR petition, see, e.g., D.D.M., supra, 140 N.J. 83. The case before us arises in neither context; nonetheless, consideration of cases which examine the adequacy of the factual basis of a plea is instructive, despite the differing context of such cases.
In Pena, supra, the defendant was charged with possession of narcotics with intent to distribute after having been arrested at Newark Airport with cocaine in the suitcase he carried. 301 N.J.Super. at 160. The defendant professed his innocence to the judge prior to entering his guilty plea, claiming he was deceived about the contents of the bag. Id . at 163. And, while actually providing his factual basis, the defendant claimed he did not know narcotics were in the bag until after the police opened it. Ibid. Noting that "[d]efendant maintained his innocence throughout the case, " ibid., we reversed the defendant's conviction because his guilty plea lacked an adequate factual basis. Id . at 164.
Similarly, in State v. Pineiro, 385 N.J.Super. 129, 142 (App. Div. 2006), we reversed the defendant's conviction for absconding from parole, N.J.S.A. 2C:29-5b, based upon the inadequate factual basis of his guilty plea. Like the defendant in Pena, whose factual assertions negated an essential element of the crime - his knowing possession of cocaine - the defendant in Pineiro denied that he was "hiding" from the parole authorities, an essential element of the crime of absconding. Id . at 141.
Reversal was compelled in Pena and Pineiro, because, in each case, the plea allocutions negated essential elements of the crime, and thereby raised issues of constitutional dimension. Hence, each defendant may not have "underst[oo]d enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." Mitchell, supra, 126 N.J. at 577. The application of this principle is not restricted to circumstances in which a defendant denies an essential element of the offense; it applies, as well, where a defendant raises a "plausible showing of a valid defense against the charges." State v. Simon, 161 N.J. 416, 444 (1999).
In State v. Munroe, 210 N.J. 429 (2012), the Supreme Court held that the trial court mistakenly exercised its discretion in denying the defendant's motion to withdraw his plea to aggravated manslaughter. During the plea colloquy, the defendant admitted shooting the victim at close range. Id . at 435. However, prior to sentencing, the defendant moved to withdraw the plea and stated that the victim had attacked him with a knife in circumstances where he had no ability to retreat and he perceived his life to be in danger. Id . at 436-39.
After noting that the "defendant presented to the trial court a colorable claim of innocence" and that "[n]othing in the plea colloquy contradicted defendant's later assertion that he was acting in self-defense[, ]" id. at 445, the Court explained that,
[a] jury could potentially find that defendant was justified in using deadly force, even though he was armed with a gun, provided defendant was not the initial aggressor and he "reasonably believe[d] that [deadly] force [was] necessary to protect himself against death or serious bodily harm." See N.J.S.A. 2C:3-4(b)(2). Moreover, imperfect self-defense is applicable if the jury determines that defendant acted with an honest but unreasonable belief in the need to use deadly force. State v. Bowens, 108 N.J. 622, 628 (1987). In such circumstances, a jury could return a verdict of reckless manslaughter. Generally, "if any evidence raising the issue of self-defense is adduced, either in the State's or the defendant's case, then the jury must be instructed" on self-defense. State v. Kelly, 97 N.J. 178, 200 (1984). Indeed, once self-defense is raised in a case, the State must prove beyond a reasonable doubt that defendant was not justified in using deadly force. Ibid.
The issue is not whether in the mind of the trial court "the likelihood of [defendant] winning on a self-defense was next to nothing." Rather, the issue is whether defendant raised a colorable claim of innocence that should rightly have been decided by a jury. As in Slater, defendant "presented specific, potentially plausible facts" of his innocence. See Slater, supra, 198 N.J. At 162-63.
[Id. at 446-47]
Significantly, for the purposes of this case, the Court also instructed trial courts to take an appropriate amount of time in eliciting the underpinnings of a guilty plea because "in the long run, that approach may prove more beneficial and less time consuming because it is better to know then whether the defendant has a potentially valid defense and whether he is willing to waive it and enter a guilty plea." Id . at 445.
Guided by these principles, we determine that while defendant in the case before us testified to facts during the plea colloquy that raised the possibility of self-defense, that testimony, when considered in light of all the surrounding circumstances, Sainz, supra, 107 N.J. at 293, does not constitute a contemporaneous claim of innocence requiring us to vacate the plea.
Initially, we note that defendant testified he fired multiple shots from a handgun in the direction of the victim, and struck the victim six times. Defendant stated he did not intend to kill the victim, but "just wanted to have him back up." He acknowledged that the victim died as a consequence of the gunshot wounds. That testimony provides a sufficient factual basis to support a plea to aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1). See State v. Curtis, 195 N.J.Super. 354, 364 (App. Div.), certif. denied, 99 N.J. 212 (1984).
Moreover, defendant never claimed he did not fire the shots at the victim, and his statement that he saw the victim and another person "pulling out their firearms[, ]" prompting defendant to pull his own weapon and fire at the victim "to have him back up[, ]" is not the same as an assertion of innocence. Rather, the statement is simply suggestive of the possibility of invoking self-defense. Nonetheless, such a statement would at the very least have required us to remand the matter to the trial court to more fully explore whether defendant was raising a potential self-defense claim or was waiving the defense, if the judge here had not taken that step already. See Munroe, supra, 210 N.J. at 445.
Here, after defendant testified about reacting to the victim's alleged "pulling out" a firearm, defense counsel advised the court that he and defendant had considered raising a self-defense claim, but counsel thought that it was not a "particularly viable defense" under the circumstances. This is because no weapon was found on the victim and the State had an eyewitness who did not state the victim had a weapon. Defendant told the court that he understood what counsel said and agreed with counsel's assessment. Defendant also explicitly agreed to waive self-defense and conceded he did so after consulting with counsel and his family. He then signed the amended plea form where it stated, "waive self-defense."
Our Criminal Code details a variety of potential justifications, excuses, and defenses, and it is typically up to the accused himself, aided by the effective assistance of counsel, to decide which, if any, of those arguments to put forth before the trier of fact. State v Handy, 421 N.J.Super. 559, 582 (App. Div. 2011), certif. granted, 209 N.J. 99 (2012). "[A]n affirmative defense should not be imposed on an unwilling defendant." State v. R.T., 205 N.J. 493, 510-11 (2011) (Long, J., concurring). A defendant has the right to evaluate all the evidence, including evidence available to the State, which might undercut an affirmative defense, including self-defense. That right should not be compromised by a rigid rule precluding waiver of a self-defense claim simply because such claim, if successful, would result in an acquittal. Consequently, affirmative defenses may be waived if the waiver is knowing, intelligent and voluntary. State v. Cecil, 260 N.J.Super. 475, 489 (App. Div. 1992), certif. denied, 133 N.J. 431 (1993) (detecting no error where the trial court allowed a defendant with a history of bizarre behavior to forego an insanity defense, where the defendant "was able to make a knowing, intelligent, and voluntary waiver of his right to assert the defense"); State v. Marut, 361 N.J.Super. 431, 445 (App. Div. 2003) (concerning defendant's capacity to make a knowing, intelligent, and voluntary waiver of the insanity defense). Indeed, the Court's instruction in Munroe, supra, that trial courts should fully explore the factual basis for a plea to ascertain whether a defendant "has a potentially valid defense and whether he is willing to waive it and enter a guilty plea[, ]" 210 N.J. at 445, was precisely the course chosen by the trial judge here.
On this record, we cannot conclude that defendant did not intelligently, knowingly and voluntarily waive self-defense. Defendant acknowledged discussing the case with counsel and his family and having sufficient time to consider entering a plea. Moreover, the issue of self-defense was explored on the record before the judge, and defendant acknowledged that he agreed to waive the defense and concurred with the judgment of his counsel that the defense may not have succeeded. Defendant stated that after weighing all the facts and the charges then pending against him, he wanted to waive self-defense and accept the plea offer.
Finally, we are satisfied from our review of the record that defendant understood the charge he was pleading to, as well as the penal consequences of the plea, and he voluntarily entered into the plea, waived self-defense, and provided a sufficient factual basis for the trial judge's acceptance of the plea.
Our dissenting colleague suggests that "there appears little doubt that defendant asserted a claim of self-defense, and, consequently, a claim of innocence." Post at (dissenting slip op. at 6). Given the record before us, we disagree. As we noted earlier, defendant stated that he saw the victim and another person "pulling out their firearms[, ]" and he then pulled out his own weapon and fired toward the victim. Defendant never stated the victim threatened his life or even tried to point the weapon at him. Defendant never asserted he believed he had to fire to prevent his own death or serious injury.
At best, as we have explained, defendant's statements suggested the possibility that he may have had a viable self-defense claim. That is not the same as presenting a "colorable claim of innocence." See Munroe, supra, 210 N.J. at 446. We, of course, understand that defendant "need not have echoed the language of the Criminal Code" to raise a colorable claim of self-defense, post at__ (dissenting slip op. at 6). Any suggestion that we would require such a rote expression from a defendant misreads our opinion. We hold simply that, in the circumstances presented here, defendant's plea statement did not negate an essential element of the crime, and did not amount to a contemporaneous claim of innocence. Defendant's statements never amounted to "protestations that he acted with justification[, ]" as our colleague states in his dissent. Id . at__ (dissenting slip op. at 7). Had defendant said more during his plea statement or at his sentencing, our opinion might have been different. However, he did not, and, given the limited issue on appeal, it is inappropriate to infer facts defendant himself did not raise at the time of his plea.
Further, our colleague questions whether a court may accept a waiver of a "substantiated claim of self-defense", post at (dissenting slip op. at 1), and explains that, in such a circumstance, "waiver results in a guilty plea despite a claim of innocence." Id . at 8. However, again, in our view, defendant never presented a substantiated claim of self-defense.
Finally, the dissent states that an "insufficient effort" was made at the time of the plea to explain to defendant the nature of self-defense and the "significance" of his waiver of that defense. Post at __ (dissenting slip op. at 14). We disagree and, again, given the limited nature of defendant's appeal, cannot conclude on the record before us that defendant misunderstood the concept of self-defense or the "significance" of his waiver of that defense.
Defendant contends his sentence was excessive and that the judge failed to consider such mitigating factors as defendant's youth under N.J.S.A. 2C:44-1(b)(13); provocation, N.J.S.A. 2C:44-1(b)(3); and substantial grounds which tended to excuse or justify defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4). Defendant argues he is entitled to a remand for re-sentencing. We disagree.
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).
It is clear that the judge did consider defendant's youth at the time of sentencing. He remarked at the time that the plea agreement was "favorable" and "takes into consideration [defendant's] age [and] his immaturity . . . ." Defendant's juvenile record included simple assault, eluding police, various drug offenses and violations of probation. The record suggests an escalating series of criminal acts over time and a diminishing prospect of rehabilitation.
We find no error in the judge's rejection of the various additional mitigating factors proposed by defendant. The PSI contains nothing to support defendant's statement that he was struck by the victim. As to aggravating factors, there was clearly no error in finding the applicability of factors (3) and (9). The sentence imposed pursuant to the plea bargain was not manifestly excessive or unduly punitive. O'Donnell, supra, 117 N.J. at 219-20; State v. Roth, 95 N.J. 334, 342 (1984).
OSTRER, J.S.C., dissenting.
This appeal raises two important issues. First, may a court accept a guilty plea from a defendant who asserts facts that imply self-defense, but who then waives that defense? Second, if such a waiver is permissible, how must the court assure that such a waiver is knowing and voluntary, and the plea is factually supported?
As to the first issue, accepting a guilty plea despite a defendant's assertion he was defending himself runs afoul of our Court's disapproval of so-called Alford-pleas,  wherein a defendant pleads guilty while professing his or her innocence. See State v. Taccetta, 200 N.J. 183, 195 (2009) (stating that our state jurisprudence rejects "[t]he notion that a defendant can enter a plea of guilty, while maintaining his innocence, " and distinguishing the standard in Alford, supra). Consequently, I believe it was error for the court to accept defendant's plea, notwithstanding the purported waiver of his previously articulated self-defense claim.
Second, even if a court may accept a waiver of a substantiated claim of self-defense — thereby allowing a defendant to plead guilty despite his claim of innocence — a trial court must engage in a searching inquiry, and find a strong factual basis for conviction. That, the trial judge did not do. Nor did the trial judge engage in a sufficient colloquy with defendant to confirm his waiver was knowing and voluntary. For these reasons, I respectfully dissent.
Our courts are not permitted to accept a plea from a defendant who asserts his innocence. See Taccetta, supra, 200 N.J. at 195; see also State v. Smullen, 118 N.J. 408, 415 (1990) ("Even if a defendant wished to plead guilty to a crime he or she did not commit, he or she may not do so."); State v. Reali, 26 N.J. 222, 224 (1958) ("When at the time of pleading the court is expressly informed by the attorney for the accused that he claims to be innocent, a plea of guilty should be refused.").
Our State jurisprudence on this issue is grounded in our rejection of false statements, and the necessity that the defendant admit his or her guilt. "Court-sanctioned perjury is not a permissible basis for the entry of a plea in this State." Taccetta, supra, 200 N.J. at 195-96. "In New Jersey, except in capital cases, the trial court must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" State v. Barboza, 115 N.J. 415, 422 (1989) (quoting State v. Stefanelli, 78 N.J. 418, 439 (1979) (Schreiber, J., concurring)); see also State, Dep't of Law & Pub. Safety, Div. of Gaming Enforcement v. Gonzalez, 273 N.J.Super. 239, 246 (App. Div. 1994) ("New Jersey . . . does not permit the entry of . . . an Alford plea."), aff'd, 142 N.J. 618 (1995).
The Alford Court acknowledged that states like New Jersey disallowed guilty pleas that were coupled with claims of innocence. Supra, 400 U.S. at 33-34, 91 S.Ct. at 165, 27 L.Ed.2d at 169 (citing Reali, supra, among other state decisions). The Supreme Court held that states may continue to "bar their courts from accepting guilty pleas from any defendants who assert their innocence[, ]" although the constitution did not compel them to do so. Id . at 38 n.11, 91 S.Ct. at 168 n.11, 27 L.Ed.2d at 172 n.11.
A claim of self-defense should compel rejection of a plea because the plea is coupled with a claim of innocence. Self-defense is a complete defense. State v. Rodriguez, 195 N.J. 165, 172 (2008) (stating "a valid self-defense is inconsistent with an act of recklessness toward one's aggressor" and is a complete defense to reckless manslaughter); State v. Hines, 303 N.J.Super. 311, 323 (App. Div. 1997) (acknowledging that "self- defense is a complete defense not only to murder but also to manslaughter" (citation omitted)).
The State bears the burden to disprove beyond a reasonable doubt that a defendant acted in self-defense if any evidence is presented raising the issue. State v. Perry, 124 N.J. 128, 194 (1991); State v. Kelly, 97 N.J. 178, 200 (1984). Thus, disproof of self-defense, when raised, is an element of the State's case. Kelly, supra, 97 N.J. at 200 ("Rather, if any evidence raising the issue of self-defense is adduced, . . . the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts; acquittal is required if there remains a reasonable doubt whether the defendant acted in self-defense.").
In short, a self-defense claim is equivalent to an assertion of innocence. See State v. Munroe, 210 N.J. 429, 445 (2012) (holding defendant presented "a colorable claim of innocence" in his assertion of self-defense). Consequently, a defendant who wishes to plead guilty while asserting he acted in self-defense seeks to plead guilty "while maintaining his innocence, " which our Court has disallowed.
As it relates to the policy underlying our State's plea jurisprudence, there is no practical distinction between pleading guilty despite a claim of innocence based on a general denial,  and pleading guilty despite a claim of innocence based on self-defense. In both cases, the defendant accepts conviction despite asserting facts that negate elements of the offense, and support innocence.
Other courts have suggested Alford's principles apply when a defendant asserts facts that constitute self-defense during a plea colloquy. See State v. Guilbeau, 71 So.3d 1010, 1020 (La. Ct. App. 2011) (remanding to trial court to permit State to establish factual basis existed for defendant's guilty plea in light of defendant's assertion of self-defense); State v. Creamer, 161 S.W.3d 420, 423 n.2 (Mo.Ct.App. 2005) ("An Alford plea was made necessary as Creamer could not admit guilt as he was apparently unwilling to relinquish his claim that the assault was made in self-defense.").
Similarly, some jurisdictions have held Alford is implicated when the defendant, during a plea, makes statements that negate intent. See People v. Hill, 946 N.E.2d 169, 171 (N.Y. 2011) (holding that defendant's statements during plea, which negated intent element of manslaughter, resulted in Alford plea, and thus required proof that the plea was voluntary and the record included strong evidence of actual guilt); 5 Wayne R. LaFave, Criminal Procedure § 21.4(f), at 846 n.207 (3d ed. 2007) (citing cases in which defendant made factual assertions that negated intent, thereby "bring[ing] the case within Alford").
Applying these principles, there appears little doubt that defendant asserted a claim of self-defense, and, consequently, a claim of innocence. Defendant need not have echoed the language of the Criminal Code and asserted he reasonably believed his life was threatened. See N.J.S.A. 2C:3-4(b)(2). He asserted the victim physically assaulted him, and then called out to defendant as he began to walk away. When defendant stopped and turned to face the victim, he saw the victim and his companion "pulling out their firearms." Defendant then reached for his. His automatic gun discharged, sending six bullets into the victim, killing him. Defendant said "he shot, like, away from" the victim, "but it hit and the gun took my hand." He asserted he only wanted the victim to back away, apparently not intending to shoot, and suggested the gun discharged accidentally.
The majority recognizes that defendant at the very least suggested self-defense. Ante at __ (slip op. at 17). Had defendant said nothing more, the majority agrees that accepting defendant's plea would have been problematic. Id . at (slip. op. at 17-18). But, my colleagues conclude that defendant effectively waived self-defense; consequently the trial court was authorized to accept the plea despite defendant's protestations that he acted with justification. Id . at __ (slip. op. at 18-20).
In support of the principle that a defendant may waive a defense for which there is factual support, notwithstanding our plea jurisprudence described in Taccetta, Smullen, and Reali, the majority notes that a defendant may waive other affirmative defenses, in particular, the defense of not guilty by reason of insanity. Ante at (slip op. at 18-19). If a defendant may waive that defense, consistent with our plea jurisprudence, then a defendant should be able to waive a claim of self-defense.
There is a difference. A defendant bears the burden to prove insanity by a preponderance of the evidence. State v. Singleton, 211 N.J. 157, 174 (2012); N.J.S.A. 2C:4-1. The same burden allocation applies to a statutory entrapment defense. State v. Rockholt, 96 N.J. 570, 581-83 (1984). But, as noted, the State bears the burden to disprove beyond a reasonable doubt that a defendant acted in self-defense, if any evidence is presented raising the issue. State v. Perry, 124 N.J. 128, 194 (1991); Kelly, supra, 97 N.J. at 200. Thus, waiver of self-defense would constitute waiver of an essential, but missing, element of the offense. The waiver, therefore, results in a guilty plea despite a claim of innocence.
The insanity defense cases cited — Handy, supra, Cecil, supra, and Marut, supra — are also distinguishable because none of them involved a waiver of a defense to enable a defendant to plead guilty. Rather, the defendants in all three cases maintained their innocence and sought acquittal on other grounds at trial. Handy, supra, 421 N.J.Super. at 564; Marut, supra, 361 N.J.Super. at 436; Cecil, supra, 260 N.J.Super. at 477. The defendants' rejection of an insanity defense was consistent with their pursuit of acquittal at trial. By contrast, defendant's statement that he acted in self-defense was inconsistent with his guilty plea to the manslaughter charge.
The majority also relies on Justice Long's concurrence in State v. R.T., 205 N.J. 493, 510-11 (2011), for the proposition that this court should not impose an affirmative defense on an "unwilling defendant." Ante at (slip op. at 18). In R.T., supra, the trial judge read a voluntary intoxication jury instruction over defense counsel's objection. 205 N.J. at 493. However, like the three insanity defense cases, R.T. involved a defendant who sought acquittal; not a defendant who chose to waive a defense while pleading guilty.
To support the principle that a defendant may waive a self-defense claim after asserting supporting facts, the majority also cites a statement in Munroe, supra. Ante at __ (slip op. at 19). The defendant in that case admitted he shot the victim to death without asserting facts to support self-defense. Before sentencing, he moved to withdraw his plea, and, for the first time, stated he acted in self-defense because he allegedly saw the victim draw a knife. The trial court denied the motion. The Court ultimately held that was error, applying the standards for withdrawal of a plea summarized in State v. Slater, 198 N.J. 145, 157-58 (2009) and Munroe, supra, 210 N.J. at 445-48.
The Court suggested that had the trial court elicited a more expansive description from the defendant of the circumstances of the offense during the plea hearing, the defendant may have articulated his defense, and the court could have addressed it and avoided the post-plea motion. The Court thus suggested that a defendant who raises the defense could then waive it. "Yet, in the long run, that approach may prove more beneficial and less time consuming because it is better to know then whether the defendant has a potentially valid defense and whether he is willing to waive it and enter a guilty plea." Id . at 445 (emphasis added). The Court's statement that a defendant can waive a "potentially valid defense, " upon which the majority relies, evidently refers to a defense of self-defense.
The Court's statement that a defendant may waive such a defense is dictum, as the defendant in Munroe did not waive that defense; he asserted it. It is unclear whether the Court, in its isolated statement in Munroe, intended to resolve the issue presented here: whether it would run afoul of the Court's rejection of Alford pleas to accept a guilty plea upon the defendant's waiver of a claim of self-defense.
I recognize we are bound to respect considered dictum of our Court. Lehigh Valley R.R. Co. v. Chapman, 35 N.J. 177, 187 (holding that Supreme Court dictum is "entitled to great weight"), cert. denied, 368 U.S. 928, 82 S.Ct. 364, 7 L.Ed.2d 192 (1961); State v. Breitweiser, 373 N.J.Super. 271, 283 (App. Div. 2004) (stating the Appellate Division "consider[s] [itself] bound by carefully considered dictum from the Supreme Court"), certif. denied, 182 N.J. 628 (2005). However, even assuming waiver of an asserted self-defense claim is permitted in order to secure acceptance of a guilty plea, that does not end the analysis. There still must be a sufficient factual basis for rejecting the self-defense claim and accepting the plea; and the defendant must also have voluntarily and knowingly waived the defense. I turn to those issues next.
Both federal and state rules require a factual basis for a plea. See Fed. R. Crim. Proc. 11; R. 3:9-2. A factual basis is constitutionally mandated if a defendant "accompanies the plea with a claim of innocence." Barboza, supra, 115 N.J. at 421 n.1. Even absent a constitutional mandate, "New Jersey's court Rules . . . require guilty pleas to be factually supported." Ibid. As discussed above, New Jersey requires that the factual basis come from the defendant's lips. Id . at 422.
Under Alford, supra, the factual basis may come from another source if the defendant protests his innocence. However, in that circumstance, "the record must reveal a strong factual basis for a finding of guilty." United States v. Avery, 15 F.3d 816, 818 (9th Cir. 1993) (emphasis added), cert. denied, 511 U.S. 1148, 128 L.Ed.2d 899, 114 S.Ct. 2179 (1994); see also Alford, supra, 400 U.S. at 37-38, 91 S.Ct. at 167, 27 L.Ed.2d at 171 (noting "overwhelming evidence" against Alford and finding no constitutional error in accepting plea "[i]n view of the strong factual basis for the plea demonstrated by the State"); Taccetta, supra, 200 N.J. at 195 n.8 (referring to requisite "strong factual basis" for Alford plea); LaFave, supra, § 21.4(f), at 846 (observing that the factual basis required under Alford "must be significantly more certain than will suffice in other circumstances"). The court must engage in a "searching inquiry." Avery, supra, 15 F.3d at 818.
In Alford, supra, the factual basis for accepting the defendant's plea, notwithstanding his claim of innocence, was established through "the sworn testimony of a police officer who summarized the State's case" as well as two other witnesses. 400 U.S. at 28, 91 S.Ct. at 162, 27 L.Ed.2d at 166. If our courts may accept a guilty plea based on a waiver of self-defense, then, as under Alford, we should demand a "strong factual basis" for rejecting the self-defense claim and accepting the plea.
Also, if an express self-defense claim may be waived to enable a court to accept a guilty plea, the waiver must also be knowing and voluntary. Alford, supra, 400 U.S. at 38 n.10, 91 S.Ct. at 167 n.10, 27 L.Ed.2d at 171 n.10 (holding that "pleas coupled with claims of innocence should not be accepted . . . until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence" (citations omitted)). In Alford, supra, defendant acknowledged that his attorney had informed him of the difference between first- and second-degree murder before he pleaded to the latter. 400 U.S. at 28-29, 91 S.Ct. at 163, 27 L.Ed.2d at 166.
Applying these principles, the State's showing fell short. The State did not offer any cognizable evidence — let alone a "strong factual basis" — disproving defendant's claim of self-defense. Rather, the prosecutor simply described in conclusory terms that the account of a single eyewitness — apparently the victim's girlfriend — "does not include the victim having a handgun." Defense counsel did not "disagree at all with [defendant's] recitation of the facts, " although counsel reported police found no handgun "on the victim, " and he stated defendant would have had to argue that "someone disposed of it in order to proffer a viable self-defense argument[.]"
Nor did the court attempt to elicit from defendant himself an adequate factual basis for disproving self-defense. The judge verified defendant shot in the victim's direction six times, and "didn't shoot it in the air" so that it "accidentally came down and hit him in the top of the head." However, these facts merely confirm defendant shot the victim. The court did not probe for facts that might have undermined defendant's claim of self-defense. For example, the court did not attempt to elicit, contrary to defendant's initial statement, that he did not actually have a reasonable belief the victim had a firearm, N.J.S.A. 2C:3-4(a), or that defendant was the aggressor, see State v. Moore, 158 N.J. 292, 312 (1999) (stating that a "[d]efendant cannot claim self-defense when he was the aggressor").
There is also a significant question whether defendant waived self-defense knowingly and voluntarily. There was an insufficient effort to explain to defendant on the record the nature of the defense, and the significance of his waiver. Defendant may have understood his attorney's statements to mean defendant would bear the burden to prove he acted in self-defense. Specifically, he could have understood his counsel's statement to mean defendant was required to prove the victim and his cohort possessed weapons. There is no explicit statement advising defendant that the State would bear the burden to disprove he acted in self-defense.
Nor did the court on the record explain to defendant that essential to the defense is an objectively reasonable and honest belief, not necessarily an accurate one, that force was necessary. N.J.S.A. 2C:3-4(a). Even if defendant had been mistaken in concluding the victim possessed a gun, that would not necessarily negate the defense, if the victim's movements prompted a reasonable belief that protective force was justified. See Rodriguez, supra, 195 N.J. at 172 ("'Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though this belief was later proven mistaken.'" (quoting Kelly, supra, 97 N.J. at 198)); see also Model Jury Charge (Criminal), "Justification – Self Defense In Self Protection (N.J.S.A. 2C:3-4)" (June 13, 2011) ("[T]he law requires only a reasonable, not necessarily a correct, judgment.").
Defendant was also under seventeen years old. He had a ninth grade education. Although the State asserts that he had numerous contacts with the juvenile justice system, that does not prove he understood what counsel meant when he stated that self-defense was not "viable, " nor that he understood the significance of the impromptu plea form amendment that waived self-defense. The record reflects no consultation between defendant and counsel regarding the amendment to the plea form. Rather, it appears the prosecutor responded to defendant's allocution by requesting that the plea form be amended to provide for the waiver; the words, "waive self-defense" were inserted in the bottom margin of a page; and defendant signed "Edwin" next to the attorneys' initials.
If our courts shall have the discretion to accept a waiver of a self-defense claim, notwithstanding a defendant's assertions supporting the defense, then they should engage in a more searching inquiry than the court did here, to assure there was a strong factual basis to disprove the defense. The trial court must also engage in a thorough colloquy to ascertain that the waiver is knowing and voluntary.
In sum, I would reverse the conviction and remand for further proceedings. Therefore, I respectfully dissent.