State v. Kiett

• Decision Date: 14 November 1990
• Citation: 121 N.J. 483,582 A.2d 630
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ralph KIETT, Jr., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 483

121 N.J. 483

582 A.2d 630

STATE of New Jersey, Plaintiff-Respondent, v. Ralph KIETT, Jr., Defendant-Appellant.

Supreme Court of New Jersey.

Argued Sept. 12, 1989.

Decided Nov. 14, 1990.

Lowell Espey, Designated Counsel, argued the cause, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; Lowell Espey and William E. Norris, former Designated Counsel, on the briefs).

Lisa Sarnoff Gochman, Deputy Atty. Gen., argued the cause, for plaintiff-respondent (Peter N. Perretti, Jr., Atty. Gen., attorney).

The opinion of the Court was delivered by

WILENTZ, C.J.

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a juvenile's plea of guilty to murder, agreed to in order to avoid exposure to an inapplicable death penalty, can be withdrawn.

I.

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. ¹ 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. ²

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."

II.

Rule 3:9-2 states:

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. ³ 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...