Submitted November 13, 2017
appeal from Superior Court of New Jersey, Law Division,
Atlantic County, Indictment No. 10-09-2272.
E. Krakora, Public Defender, attorney for appellant (Karen A.
Lodeserto, Designated Counsel, on the brief).
G. Tyner, Atlantic County Prosecutor, attorney for respondent
(John J. Santoliquido, Assistant Prosecutor, of counsel and
on the brief).
Judges Sabatino, Ostrer and Whipple.
Anwar H. Belton appeals from a September 14, 2016 order
denying, without an evidentiary hearing, his petition for
post-conviction relief (PCR). Defendant collaterally
challenges his conviction, after a plea, of first-degree
reverse. We conclude that defendant, in the course of his
plea allocution, suggested a defense of others that was
inconsistent with guilt; his waiver of that defense was not
knowingly made; therefore, he did not present a sufficient
factual basis of guilt. In reaching this conclusion, we apply
the principles set forth in State v. Urbina, 221
N.J. 509 (2015), although that case involved a claim of
self-defense, rather than the defense of others, suggested in
the course of a guilty plea. In view of defendant's
contemporaneous claim of innocence, the failure to elicit a
sufficient factual basis was of constitutional dimension and
warrants PCR. See State v. D.D.M., 140 N.J. 83, 95
(1995); State v. Mitchell, 126 N.J. 565, 577-78
was indicted and charged, along with a woman named Erika
Pugh, also known as "Sparkles, " with murder, theft
from the victim, and endangering an injured victim. Pugh was
also charged with prostitution. Defendant was offered an
agreement to plead to an amended charge of first-degree
aggravated manslaughter, in return for a recommended
twelve-year prison term subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2, and dismissal of the remaining charges.
allocution, defendant contended that he was roused from his
sleep in an Atlantic City motel by frantic requests for help
by Pugh and another woman. Both women were involved in an
altercation with a man. When the man began biting down on
Pugh's hand, refusing to let go, defendant said he put
the man in a headlock to get him to release Pugh's hand.
The man relented only after he began "snoring." The
man died soon thereafter.
plea colloquy, defense counsel first established that Pugh
woke defendant, who admitted he had only met Pugh that night.
We quote the colloquy at length:
[DEFENSE COUNSEL:] Okay. So she [Pugh] came knocking on your
door sometime in the middle of the night, correct?
[DEFENSE COUNSEL:] And Miss Pugh was actually not dressed at
the time that she came knocking on your door.
[DEFENDANT:] Yes, Your Honor. I mean -
[DEFENSE COUNSEL:] That's okay. . . . And she indicated
to you something about somebody took my money, come help me,
somebody took my money; is that correct?
[DEFENDANT:] No, she didn't say that yet. She just came
[DEFENSE COUNSEL:] Help, okay. So you went outside and tell
the judge primarily in your own words what happened after you
went outside, and if there's some questions that I'll
have to ask you, I'll ask you.
[DEFENDANT:] When I came to the door and I seen Miss Pugh,
she was in the nude and she was screaming help, help, help!
And I came to the door, first I was looking at her, then I
looked down the hallway because there was some more noise
coming, well not the hallway but down the corridor of the top
floor. And I seen the girl, the young lady that I did come
down with, Candy, and the victim. And he was like, he was a
little, he had his shirt off, he was a little hysterical.
So I just went over there and told him to calm down and be
quiet, to go back in and find out what was going on. And when
we got on the inside, she's saying he took her money.
He's saying they robbed him. Then he got real agitated
and I told him relax, I didn't come for that. Then
Sparkle[s] is screaming, beat him up, get my money. And I
says to her shut up, because I didn't even know her.
And in the process of that Candy says, is there some more
money around here? And she wants to touch the guy, and when
she touches the guy, he gets real belligerent and starts
assaulting her. And I tried to stop it and me and him got
into an altercation.
then described his effort to defend Pugh, as the victim bit
[DEFENDANT:] [cont'd] And in between that altercation
Sparkles got in, intervened, and he starts biting Sparkles,
and when he's biting Sparkles, I'm trying to get him
off of Sparkles, he's biting and she's screaming and
doing whatever she can to get him off of her. And by the time
I get ready to let go was when I heard like, I heard him
[DEFENSE COUNSEL:] Okay. Now prior to you, when you say let
go, you actually had your arm, or your had his head in a
[DEFENSE COUNSEL:] Okay. And during that time period when you
had [the victim's] head in a headlock, you held him for a
period of time until he let her go.
[DEFENDANT:] Let go of her hand.
[DEFENSE COUNSEL:] Okay.
[DEFENDANT:] I let go of him when he let go of her hand.
counsel then attempted to elicit defendant's admission
that he acted with indifference to human life. Defendant
insisted that he was "trying to stop [the victim] from
[DEFENSE COUNSEL:] . . . What I'm asking you is, when the
gentleman was down on the ground and he wasn't
responding, you, Sparkle[s] and Candy left the room.
[DEFENSE COUNSEL:] Okay. And would you agree that by leaving
the room and not offering him any aid, that you actually,
that action ...