State v. Riggins

• Decision Date: 25 July 1983
• Parties: STATE of New Jersey, Plaintiff, v. Mary Ann RIGGINS, Defendant.
• Court: New Jersey Superior Court

Page 352

191 N.J.Super. 352

466 A.2d 981

STATE of New Jersey, Plaintiff, v. Mary Ann RIGGINS, Defendant.

Superior Court of New Jersey, Law Division,

Hudson County.

Decided July 25, 1983.

Richard F. Denes, Asst. Prosecutor, for plaintiff (Harold J. Ruvoldt, Jr., Prosecutor of Hudson County, attorney).

Alexander W. Booth, Jr., Jersey City, for defendant (Brownstein, Gold, Booth & Barry, Jersey City, attorneys).

BILDER, J.S.C.

This is a motion to vacate sentence and retract a guilty plea on the ground that defendant did not understand that loss of her public employment would be one of the consequences of her plea. Indeed, defendant asserts she was advised by her then attorney that no such forfeiture would result. The State contends that the forfeiture of position is a collateral consequence and therefore does not justify vacation of the plea and sentence.

Although it has been held that a lack of understanding as to the collateral consequences of deportation do not justify the withdrawal of a plea, State v. Reid, 148 N.J.Super. 263, 266, 372 A.2d 626 (App.Div.1977), certif. den. 75 N.J. 520, 384 A.2d 500 (1977), the questions as to forfeiture of public office and as to the effect of wrong advice from counsel concerning forfeiture are novel.

On March 25, 1983 defendant pled guilty to unemployment fraud--freely acknowledging that during a period of about six months in 1979 and 1980 she applied for and obtained unemployment checks, although she was employed by the Jersey City Medical Center. In giving a factual basis for her plea, she explained that she was able to defraud the State by asserting her status as a terminated employee of CETA while failing to disclose her new employment--a deception that resulted in the receipt of moneys to which she knew she was not entitled. As part of the plea bargain, the State agreed to recommend a noncustodial sentence with a condition that restitution be made.

At the time of the plea, defendant was employed by the Hudson County Board of Freeholders as a secretary. Following a sentence of one year probation, restitution, a $250 fine and $25 to the Violent Crimes Compensation Board, the Hudson County Prosecutor filed a notice of motion to require defendant to forfeit her public office as provided by N.J.S.A. 2C:51-2. Defendant has now brought this motion to vacate the sentence and withdraw her plea on the ground she did not know the plea would result in such forfeiture. She further asserts that the question of forfeiture had been discussed with her then attorney who advised her there would not be such forfeiture. It is undenied that the question of forfeiture was not discussed in the questioning or colloquy when the plea was taken. Nowhere in her papers or argument does defendant deny her guilt.

Before accepting a plea, a judge must be satisfied that there is a factual basis for the plea and that the plea is made voluntarily and intelligently with an "understanding of the nature of the charge and the consequences of the plea." R. 3:9-2. See State v. Taylor, 80 N.J. 353, 362, 403 A.2d 889 (1979). After a plea has been accepted, a defendant's "claim to be relieved of its consequences must be weighed against the strong interests of the State in its finality." Ibid. After a defendant has been sentenced, a more stringent standard applies. Id. at 360, 403 A.2d 889. A motion to withdraw a plea of guilty after sentencing is granted only to correct a manifest injustice. R. 3:21-1.

In State v. Rodriguez, 179 N.J.Super. 129, 430 A.2d 957 (App.Div.1981), the court set forth the factors relevant to a determination of whether a defendant should be permitted to withdraw a guilty plea after sentence:

... materiality of the mistake or omission and resulting prejudice to defendant, guilt of defendant and manner of entry of the plea. See State v. Taylor, above, 80 N.J. at 363-364 ; State v. Deutsch, 34 N.J. 190, 201 (1961). Where the plea was entered pursuant to a plea arrangement, defendant's burden "of presenting a plausible basis for his request to withdraw his guilty plea is heavier." State v. Huntley, 129 N.J.Super. 13, 18 (App.Div.1974), certif. den. 66 N.J. 312 (1974). Also persuasive is whether a defendant who attacks his sentence subsequent to a plea arrangement protested at the time of sentencing that the sentence violated his expectations. State v. Jackson, 138 N.J.Super. 431, 434 (App.Div.1976). [179 N.J.Super. at 135-136, 430 A.2d 957]

In balancing these considerations "the touchstone is basic fairness to the defendant." State v. Taylor, supra, 80 N.J. at 364, 403 A.2d 889.

To be material a mistake must relate to the penal consequences of a plea. A mistake as to a collateral consequence, while it may have a significant effect upon a defendant, is not material. See State v. Reid, 148 N.J.Super. 263, 266, 372 A.2d 626 (App.Div.1977), certif. den. 75 N.J. 520, 384 A.2d 500 (1977) in which the court reversed the action of the trial court in permitting a withdrawal of a plea when the defendant misunderstood that his plea would make him subject to deportation.

Defendant freely and openly admitted his guilt at the time of the entry of his plea in 1974. At the hearing on his petition for post-conviction relief defendant did not deny his guilt. The only reason advanced to justify vacation of the plea was defendant's lack of an understanding of the collateral consequences insofar as his immigration status was concerned. Such a reason is not adequate since it does not relate to the penal consequences of the plea. [148 N.J.Super. at 266, 372 A.2d 626]

Similar results have been reached in other jurisdictions when courts have refused to permit withdrawal based on a lack of understanding concerning adverse consequences of important collateral legal significance. Waddy v. Davis, 445 F.2d 1 (5th Cir.1971) (disenfranchisement); Wright v. United States, 624 F.2d 557, 561 (5th Cir.1980) (enhanced punishment of subsequent conviction); Moore v. Hinton, 513 F.2d 781 (5th Cir.1975) (suspension of auto license); Redwine v. Zuckert, 115 U.S.App.D.C. 130, 317 F.2d 336 (1963) (possibility of dishonorable discharge). See Fruchtman v. Kenton, 531 F.2d 946 (9th Cir.1976).

In United States v. Crowley, 529 F.2d 1066 (3d Cir.1976) cert. den. 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976), the court considered substantially the same question as here. A defendant sought to withdraw his plea on the ground that he did not understand he would lose his job as a city fireman. In affirming a denial of leave to withdraw the guilty plea, the court held that the job forfeiture was a collateral consequence that did not allow the privilege of plea withdrawal.

Here also, defendant's loss of employment is a collateral consequence and her lack of understanding as to this adverse effect does not justify withdrawal of the plea. That it is collateral in nature is underscored by its inclusion with loss of voting rights and the right to serve on juries in the chapter of Title 2C dealing with loss of rights incident to a conviction. N.J.S.A. 2C:51-2, 3. Indeed, the provisions for job forfeiture apply not only to convictions under the laws of this state but also under the laws of another state or the United States. N.J.S.A. 2C:51-2(a)(1). Such a provision for forfeiture based upon a foreign conviction necessarily negates any question about the non-penal nature...