State v. Gibson

• Decision Date: 06 November 1975
• Citation: 348 A.2d 769,68 N.J. 499
• Parties: STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JACKLYN LEE GIBSON, DEFENDANT-APPELLANT.
• Court: New Jersey Supreme Court

68 N.J. 499

348 A.2d 769

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JACKLYN LEE GIBSON, DEFENDANT-APPELLANT.

The Supreme Court of New Jersey.

Argued March 17, 1975.

Decided November 6, 1975.

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Mr. Edward J. Dimon, Assistant Deputy Public Defender, argued the cause for defendant-appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

Mr. Solomon Rosengarten, Deputy Attorney General, argued the cause for plaintiff-respondent (Mr. William F. Hyland. Attorney General of New Jersey, attorney).

The opinion of the Court was delivered by CONFORD, P.J.A.D., Temporarily Assigned.

The question presented on this appeal from a denial of post-conviction relief is whether, when a defendant, knowingly and with advice of an attorney, enters into a plea agreement with the State pursuant to which (a) he pleads guilty to certain charges in return for sentence concessions on said pleas and the dismissal of a more serious charge; and (b) the latter are conditioned on defendant's waiving appeal from an armed robbery conviction entered against him after trial, the defendant may have post-conviction relief, after expiration of the time to appeal the armed robbery conviction, restoring the right of appeal therefrom. Defendant's contention is that the surrender of his right of appeal was invalid and illegal and gave rise to a right to such post-conviction relief.

Our holding is that while, as a matter of judicial policy, a defendant will be permitted to bring a timely appeal from a conviction notwithstanding his agreement by plea bargain not to appeal, he may not bring an appeal out of time, as we find no basis for post-conviction relief in the mere inclusion in a plea agreement, under circumstances free from coercion or undue pressure upon the defendant, of an agreement not to appeal a conviction.

On October 21, 1971 defendant Gibson and co-defendant Bryant were indicted by the Salem County Grand Jury on charges of robbery and robbery while armed in violation of N.J.S.A. 2A:141-1 and 2A:151-5. Gibson was also indicted that day for escape from a police officer, contrary to N.J.S.A. 2A:104-6. On January 27, 1972 Gibson was indicted for malicious destruction of county property while incarcerated in the Salem County jail, in violation of N.J.S.A. 2A:122-1, and at an unspecified date he was also indicted for sodomy, contrary to N.J.S.A. 2A:143-1.

In December 1971 Gibson and Bryant were tried on the robbery and robbery while armed charges and were convicted by jury verdict on both charges. Defendant was sentenced on July 21, 1972 by Judge Narrow to a prison term of 10-12 years on the robbery conviction and to a concurrent term of 2-3 years for the armed feature. That sentencing was preceded by the negotiation of an agreement between defendant, on advice of counsel, and the prosecutor, encompassing the following terms: (a) defendant would plead guilty on the escape and malicious injury to property charges, but his sentences therefor would be concurrent with the sentence on the armed robbery conviction; and (b) the sodomy indictment would be dismissed. In return for the foregoing defendant agreed that he would not appeal from the conviction for armed robbery and for being armed.

Although, unfortunately, the transcript of the proceedings on sentencing reveals that the terms of the plea agreement were not submitted for approval to the trial court, as they should have been, see Administrative Directive, 94 N.J.L.J. 1 (1971),¹ the record of the instant post-conviction proceedings strongly supports the inference that the court did know of the agreement and in fact approved it. Defendant does not assert the contrary.

In addition to sentencing defendant on the charges for robbery and for being armed, as noted, the court at the same time accepted his guilty pleas on the escape and malicious property damage charges and sentenced him to consecutive prison terms of 2 1/2 to 3 years for each, but both to be concurrent with the armed robbery sentences. At sentencing, the trial court informed defendant that he had the right to appeal any of the sentences within 45 days and that the court would appoint an attorney for him for that purpose should he lack the means therefor. Defendant indicated he understood. No direct appeal was taken from any of the convictions.

At the hearing of the post-conviction petition, defendant's attorney as of the time of the plea arrangements and sentencing testified that he had discussed these matters with defendant and his mother and had informed defendant he had a right to appeal the armed robbery convictions, but that defendant had indicated he did not wish to appeal. He had also represented defendant on the sodomy charges, and had reviewed the merits of that charge with defendant.

On September 16, 1972, defendant wrote to the attorney complaining that notwithstanding "the deal" made on his behalf to drop the sodomy charge, the charge was still outstanding. He requested the attorney to "keep up your end of the bargain and get the charge dropped like you said it would be." The sodomy charge was subsequently dismissed.

On or about June 6, 1973, defendant filed a pro se petition for post-conviction relief pursuant to R. 3:22-1 et seq. As grounds for relief, he asserted (1) the unconstitutional use by the State of perjured testimony; (2) "the use of pending charges used to enhance the punishment inflicted"; and (3) there was no evidence of armed robbery; the State used hearsay evidence; and the State brought out unrelated other charges. Defendant sought relief either through a new trial or by a reduction of sentence.

By amendment of the petition through the Office of the Public Defender, defendant asserted a denial of due process of law in that his attorney had informed him on the day of his sentencing that the prosecutor would move for a dismissal of the sodomy charges if no appeal was taken on the conviction for armed robbery and that "relying on that information he failed to exercise his right of appeal."

After hearing, the trial judge denied the petition. The court found that defendant knew of his right to appeal; that there was a plea bargain entered into at arms' length, with representation of defendant by qualified counsel; and that defendant's election not to appeal was voluntary, even though influenced by a desire to avoid the danger involved in facing a sodomy charge. Defendant appealed the judgment to the Appellate Division.

Defendant's contention is that he "was denied his right to appeal by an illegal plea bargain." The illegality asserted is the conditioning of plea and prosecution concessions by the State on the withholding by defendant of the exercise of his right of appeal from a conviction. Since the issue stated was reserved by us in State v. Spinks, 66 N.J. 568, 573, n. 2 (1975), we certified this appeal on our own motion while it was pending unheard in the Appellate Division. 67 N.J. 103 (1975).

In Spinks, supra, a timely appeal from sentence was brought by a defendant who had pleaded guilty pursuant to a plea agreement. The sentence was within the range of the agreement, and there had been no agreement by defendant not to appeal. The State nevertheless argued that to allow appeal from sentence in such case would be incompatible with the contractual nature of a plea negotiation (at 573) and would encourage frivolous appeals (at 574). We rejected these contentions, but pointed out that the reviewing court should take into account the terms of the plea agreement, "including the reduction or dismissal of charges" and the fact that "the defendant has freely agreed to the imposition of such sentence as part of the plea negotiations" (66 N.J. at 573).

In appraising defendant's contentions, we set to one side, for later treatment herein, the question whether the court should as a matter of sound judicial policy permit a timely appeal to be filed by a defendant from a conviction notwithstanding either his bargained for agreement not to appeal or his acceptance of plea agreement benefits conditioned on his not appealing. As indicated at the outset, we have reached an affirmative conclusion on that issue. The here crucial question, however, is whether the mere concurrence of the parties in a plea agreement inclusive of a waiver of appeal, however freely arrived at, should be regarded as per se tainted with illegality, and thus operative to activate post-conviction relief by way of validation of an untaken appeal nunc pro tunc.

R. 3:22-2 permits post-conviction relief for "(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." Ordinarily a petition for such relief may be filed within five years of the judgment or sentence under attack. R. 3:22-12. We assume the present petition is filed under (a) as none of the other provisions of R. 3:22-2 appears even debatably pertinent. The issue, then, is whether a non-coercive agreement in the nature of a plea agreement becomes a "substantial denial" of a defendant's constitutional or other rights by reason of the inclusion therein of a stipulation against appeal by the defendant, though he is fully represented by counsel in arriving at the agreement. Our determination on that narrow question is in the negative.

The general acceptability of plea negotiation, or "plea bargaining" as it has commonly been denominated, under careful judicial supervision against unreasonable hazard of the proper interests of either the accused or the State, has been repeatedly recognized in our recent decisions. State v. Taylor, 49 N.J. 440, 455 (1967); State v. Thomas, 61 N.J. 314, 321 (1972); State v. Jones, 66 N.J. 524 (1975). The practicality, utility and constitutionality of plea negotiations have also been recognized by the United States Supreme Court. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30...