STATE OF NEW JERSEY v. DENNIS HITCHENS

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0143-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS HITCHENS,

Defendant-Appellant.

_______________________________

May 30, 2013

 

Submitted February 5, 2013 Decided

 

Before Judges Ostrer and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1678.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dennis Hitchens appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We reverse and remand to the Law Division with instructions that defendant's judgment of conviction shall be vacated and defendant shall be afforded the option of (1) withdrawing his guilty plea; (2) moving for a hearing on whether his "cooperation" was of substantial benefit to the State; or (3) renegotiating the plea agreement.

As we explain later in this opinion, the relief required by our ruling is necessitated by the fatally vague "cooperation" agreement extended to and accepted by defendant both before and at his retraxit plea of guilty. The verbal agreement violates not only the principles announced by the Supreme Court in State v. Gerns, 145 N.J. 216 (1996), but also the explicit requirements of the Brimage1 Guidelines. See Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12.2 Because of our conclusion, it is unnecessary for us to decide the merits of defendant's other arguments on appeal. To place the issue in perspective, we recite the background of this appeal at some length.

I.

In 2007, the Camden County Grand Jury returned Indictment 07-05-1678 charging defendant with third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS, heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); and third-degree possession of CDS, heroin, with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). In addition, defendant was charged in Accusation 07-09-3060 with third-degree possession of CDS, heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1). The charges in the indictment and the accusation arose from incidents alleged to have occurred on different dates.

On September 20, 2007, defendant, while represented by counsel, signed a plea form agreeing to enter a plea of guilty to count three of the indictment and the single charge set forth in the accusation in return for a concurrent sentence on each charge of five years' imprisonment subject to twenty-two months of parole ineligibility.3 In addition, the remaining charges in the indictment and another pending criminal complaint would be dismissed and defendant would be released on his own recognizance, pending sentence.

Further, the plea form specified that "defendant can mitigate his sentence should he perform [f]actor 12 [sic] satisfactory[ily] to the prosecutor."4 Other than this statement, the plea form was silent as to the nature and extent of the cooperation expected from defendant, what would constitute "satisfactory" cooperation, and the extent of the "mitigation" of sentence defendant could expect for satisfactory cooperation. No other writing was provided to defendant or his attorney respecting this issue.

On the day he executed the plea form, defendant appeared in court to place his plea upon the record. The prosecutor then placed on the record the two charges and the proposed sentences on each. He then added, "[i]n addition, Your Honor, the [S]tate has agreed to an ROR bail pending sentencing. There's some - - -mitigating factor 12, Your Honor, that the [S]tate is considering. It'll be - -[.]" At this point, the judge interrupted to inquire about fees, penalties and assessments, as well as defendant's loss of driving privileges. The prosecutor never completed his statement concerning mitigation of sentence. Defense counsel, nonetheless stated, in pertinent part:

Judge, with respect to the plea itself, I just want it to be clear on the record that I have advised Mr. Hitchens that if no factor 12 were to be performed, or . . . if any factor 12 that is performed . . . is not satisfactory to the [S]tate, then he comes back for sentencing, assuming that the [c]ourt were to go along with the plea agreement, his sentence for both these matters would be the five years, 22 months without parole. However, if he were to perform factor 12 and that factor 12 was what the [S]tate was considering when they spoke with me and I discussed it with Mr. Hitchens, in other words, it was satisfactory to them, then it could result in his, or at least in the prosecutor recommending a lower sentence than what is contemplated at this point. He does understand that, and again, I have discussed it with him in detail.

 

I only indicate that on the record because I've had problems with these types of matters before, Judge, and I just wanted to make sure that it is crystal clear.

 

Defendant thereafter was sworn and stated he understood the plea agreement, acknowledged his voluntary agreement to change his plea, and provided a factual basis for the charges. The judge never asked defendant about "factor 12" and it was not mentioned again. The judge accepted the plea and set a date for sentencing.

Despite the agreement to release defendant on his own recognizance pending sentencing, defendant was not actually released from custody until sometime in November. Defendant's sentencing date was scheduled for December 18, 2007, and, when he failed to appear on that date, a bench warrant was issued for his arrest. Defendant was thereafter arrested and brought before the court on February 15, 2008, for sentencing.

At that time, defendant stated he "couldn't come" to court on the December sentencing date, and that he had called counsel to advise him of his difficulty. Defense counsel never addressed the issue, but merely told the judge that "[he] went over the [appeal] rights [form with defendant which] he refused to sign and [defendant] indicated he wanted to address the court." The judge then asked the prosecutor and defense counsel a series of questions pertaining to the sentence, following which defendant stated he "would like to take back the plea[,]" and added, "I have not received what I was supposed to receive, and to the plea agreement - - [.]" The judge interrupted defendant at this point and instructed him to "file whatever you want to file . . . in writing" and he rescheduled the matter to a date in April. Defendant at this time stated, "my attorney is incompetent[,]" but was again cut off by the judge and remanded without bail.

On April 11, 2008, defendant was brought before the court in the presence of the prosecutor and defense counsel. However, other than placing his appearance on the record and thanking the court at the end of the hearing, defense counsel said nothing. We set forth at some length much of what occurred at the hearing:

THE COURT: Sir, I'll hear you.

THE DEFENDANT: I don't know how this procedure works, so, if you can --

THE COURT: Well, sir, this is for you to show me why I should permit you to allow -- to take back your guilty plea and go to trial, sir.

THE DEFENDANT: Okay. I made a deal with the prosecution.

THE COURT: Sir, your attorney and you made the deal and the prosecutor. Yeah.

THE DEFENDANT: No, I made a deal with the State troopers, as well. I did do work for the State troopers. With this here deal, I was promised that if I had applied with State troopers that they would -- that my charge would go away. I was --

THE COURT: Sir, who -- who told you that, sir? The prosecutor didn't tell you that, sir.

THE DEFENDANT: The State troopers did.

THE COURT: The State troopers have no ability to negotiate with you for it, sir.

THE DEFENDANT: But that's the promise they had made which I had did - -

THE COURT: Yeah, but sir, it doesn't -- sir, they can't make that kind of promise. It's not up to them. It's up to the attorney general and it's up to the prosecutor's office, sir.

THE DEFENDANT: Okay. Also, with the prosecutor. They said if I make the - - if I do cooperate that also my time will be - - or my charges will be dismissed. And once I did --

THE COURT: Who said that, sir?

THE DEFENDANT: The State troop -- the prosecutor did, as well.

THE COURT: Which prosecutor, sir?

THE DEFENDANT: The one that's sitting up here today.

THE COURT: He said that, sir?

THE DEFENDANT: Yes, as part --

THE COURT: Okay. We'll let him testify, too, sir. Okay.

THE DEFENDANT: As well as Mr. Nieves. He had signed both papers, too. If I do not comply with it, with the State troopers --

THE COURT: You signed papers to that effect, sir?

THE DEFENDANT: Yes. He wrote it on his paper.

THE COURT: Prosecutor. You're talking about the plea papers.

THE DEFENDANT: Yes.

THE COURT: Oh. Okay. Let me find your plea papers. You pled guilty on September 20, 2007. Sir, what it says on here is you were given your own -- you were released on your own recognizance pending sentencing. It says, the defendant can mitigate his sentence should he perform factor 12 satisfactory to the prosecutor. That's what it says on here, sir.

THE DEFENDANT: Okay.

THE COURT: Okay? And --

THE DEFENDANT: I did complete factor 12.

THE COURT: What did you do, sir?

THE DEFENDANT: I gave information to Officer Quinn. Got some drugs off the street and got some guns off the street. I asked -- I asked my attorney to come and visit me the day I was arrested because I got some -- I called Officer -- Officer Norton to call Officer Quinn and I had got some negative response from him. So, I wanted [defense counsel] to come and visit me at the county jail for it to get situated, and I asked for Officer Quinn to be here as well as Officer Norton to be here as well on February 15, 2008 to verify that I did do as complied.

THE COURT: Sir, I don't have anything from anyone, sir.

THE DEFENDANT: Okay. Well, my witness --

THE COURT: Prosecutor, did you -- did he comply to your knowledge?

MR. SPENCE: Your honor, the basis for which the deal was made initially was due at the date of arrest. He did provide some information to Trooper Quinn. Trooper Quinn reached out to me and suggested that he would like to do factor 12 with this defendant, which is why he was given an O/R bail. As you are aware, that is not our policy to O/R bail people on drug cases.

He was O/R bailed. At the date of initial sentencing, he was a bench warrant. I call --

THE COURT: That's December 18, 2007, he didn't come in as a bench warrant.

MR. SPENCE: Correct.

THE COURT: It took until January 23rd for the bench warrant to be executed.

MR. SPENCE: Right. I spoke with Trooper Quinn before the initial sentencing date to find out what, if anything, he had done. My response from Trooper Quinn was nothing. That he had heard nothing from him. When he was eventually picked up later on, I again reached out to Trooper Quinn to find out if anything had been done in the interim, and again, his response was nothing. Then he never heard from this gentleman, that he -- as far as he was concerned, he was in the wind and he had no idea where he was or what he was up to, but he knows that he did not cooperate with him.

THE COURT: Okay. Mr. Hitchens, is there anything else you want to tell me, sir?

THE DEFENDANT: Sorry, Your Honor, but --

THE COURT: Yeah.

THE DEFENDANT: -- I did do as I was told to do. I did give -- I gave him --

THE COURT: After you were let out, sir?

THE DEFENDANT: I gave him information about a house on Chadon (phonetic) Street, which they got drugs and guns from. I gave him information about a Dugle Smoke Whet (phonetic). He has guns in an alleyway, he got that. I gave him information about Morton Street. He got that.

THE COURT: Well, when was -- was this after you were let out or before, sir?

THE DEFENDANT: It was after I was let out. And he got all of that. I called him on his cell phone and he wrote everything down on a piece of paper.

THE COURT: Prosecutor, can we have the person here?

MR. SPENCE: Your Honor, I can subpoena Trooper Quinn to be here.

 

The hearing was then adjourned.

On April 15, 2008, a hearing was held at which New Jersey State Trooper Quinn testified. He stated he had been present on August 23, 2007, when defendant was arrested and told defendant "he could work off his charges if he was willing to help[] us out with situations such as shootings, homicides, I mean narcotics are secondary." He added that defendant on that day gave information on a location "where drugs and a possible weapon could have been." The police went to that location the next day and discovered narcotics, but no weapons, and Quinn told defendant, "he needed to get in touch with me going forward."

Quinn recalled "speaking with the prosecutors at the time" in order "to arrange something with his bail contingent upon him working with the [S]tate [P]olice . . . ." We quote the remainder of Quinn's direct testimony:

A He called on a few occasions, but one of the stipulations was immediately contacting me upon his release from jail. To my recollection he did not contact me right away and he contacted me one time about somebody who had a weapon on Mount Ephraim Avenue. We weren't working at the time and I believe I informed him something along the lines that he still needed to get in contact with me and that was the last, I believe, contact we had when he was out of jail.

Q Okay, and you were advised by the prosecutor's office that he had been O.R. bailed --

A That's correct.

Q -- on September 20th, is that correct?

A That's correct.

Q Okay, and did you have any contact with him to the best of your knowledge in the month of October?

A Not directly. To the best of my knowledge he did try to contact me from the jail several times through the -- making collect calls. He did have my cell phone number. My phone doesn't accept collect calls as well as he did contact Officer Norton several times in the Camden County Jail and [to] have him call me.

Q And Officer Norton is who in the jail exactly?

A I believe he's -- I want to say Internal Affairs, but he's actually one of the investigators for Camden County Department of Corrections.

Q And did you have any contact with the defendant in November of 2007?

A To my knowledge I don't believe so. The dates are -- again, like I said, I don't believe I had any contact with him directly. I think he might have been incarcerated.

Q How about December of 2007?

A Not directly.

Q And did he provide any cooperation that was useful to any investigation from the period of September 20[,] 2007 up until this day?

A Nothing other than that initial -- that initial operation we conducted when he was in the Bellmawr barracks. Everything else could have happened through Camden Police, but nothing happened through the state police.

At this point both defendant and his attorney were permitted by the judge to cross-examine Quinn.

First, Quinn testified in response to defense counsel's questions that he had been vaguely aware defendant remained incarcerated after his retraxit plea and conceded defendant "did make several attempts to contact" him. He also conceded he did not even take a telephone call from defendant on one occasion because he was off-duty at the time.

Thereafter, the judge permitted defendant to try to ask the trooper questions, many of which were incoherent. Quinn stated, however, that no arrests or raids were made "directly" as a consequence of information supplied by defendant. Defendant also testified and was questioned by the judge. Defendant told the judge, "I did what I can do for as much as I could keep in contact with [the trooper]" and he identified a couple of instances in which he gave specific information to the trooper.

Defense counsel offered no other evidence at the hearing and did not seek to question the prosecutor respecting the cooperation agreement. No documents or writings of any nature were offered by either the prosecutor or defendant.

Following defendant's testimony, the judge asked counsel if they were "ready to proceed with sentencing." Defense counsel replied, "I believe so, sir" and when defendant began to protest the judge stated, "Sir, I'm going to give you credit for factor 12."5 The prosecutor asked for sentence "in accordance with the plea agreement" and defense counsel asked for a "flat sentence" based upon defendant's cooperation.

The judge thereafter stated, in pertinent part:

The [c]ourt had the opportunity to hear from the trooper in this matter. The [c]ourt observed his demeanor, determined his credibility. The [c]ourt finds Trooper Quinn to be a truthful witness. It's his testimony that prior to the day of the plea on the day of the defendant's original arrest the defendant was spoken to and agreed to give information as a matter of factor 12 to cooperate with the police.

He gave him information with regard to an alleged area with a handgun and narcotics. On the day of that arrest the police indicated that they went to the location, narcotics were found, no handgun. The officer indicated that after the defendant's after the date of September 20th he did receive calls on his cell phone from the defendant. However, there was no communication between them. He does not recall there being any other information given from this defendant that was of value to the police.

 

In this matter I've also heard from the defendant, Dennis Hitchens. In this matter, while the defendant has convictions which could affect his credibility, I do find him to be somewhat credible in that I find that he attempted to contact the officer and attempted to give him information. However, there's no proof before this Court that any information was given that was beneficial to the state police.

 

Accordingly, while I find that the defendant attempted to give information, it was not of any value to the police. However, I will give him some benefit additional benefit of factor 12.

The judge then sentenced defendant to five years' incarceration on each charge, subject to twenty months of parole ineligibility, to run concurrently, rather than the twenty-two months of parole ineligibility that was set forth in the plea agreement.

Subsequently, defendant moved pro se for reconsideration of his sentence and, later, for a change of custody. On the motion for reconsideration, defense counsel never entered an appearance on the record and the judge heard only from defendant. The judge denied the motion, finding that the issue of defendant's cooperation had been "completely litigated" at the time of sentencing.

Defendant, thereafter, filed a pro se motion to dismiss the indictment and a motion to withdraw his plea, which were denied, and after a procedural issue was resolved pertaining to an appeal filed by the Office of the Public Defender, defendant filed a PCR petition based on ineffective assistance of counsel. In his pro se petition, defendant asserted that his counsel was ineffective, among other reasons, because he failed to provide assistance with respect to defendant's motion to withdraw his plea and "refused to help or participate" in defendant's other motions.

Defendant was assigned counsel to represent him on the PCR petition and counsel prepared a supplemental brief which argued that defendant's counsel was ineffective because he did not "negotiate greater specificity or protections for his client into the [plea] agreement." PCR counsel also alleged that defendant's counsel failed to perform any investigation or present any evidence in support of the terms of the plea agreement, as understood by defendant, or the extent of defendant's cooperation.

The judge denied the application without convening an evidentiary hearing. The judge opined, in pertinent part:

With regard to his claims that Trooper Quinn lied, or he provided assistance, that was dealt with before this [c]ourt at a hearing. The [c]ourt made findings of fact, conclusion of law on the record. I found the officer's testimony to be credible. I found the defendant not to be a credible witness other than the fact that he attempted on a couple of occasions to assist, but it was not fruitful in any way.

 

. . . .

 

In this matter the [c]ourt sentenced Mr. Hitchens in a conformity with the intended terms of the plea agreement. The [c]ourt mitigated his sentence for the attempts to cooperate. It is very difficult for this [c]ourt to fathom how this defendant misunderstood what constitutes cooperation sufficient to result in mitigation of his sentence and how much a reduction could be expected in consideration of his efforts. His attorney provided the defendant on the record with clear and unambiguous language as to what is required to satisfy the terms.

 

Factor 12 hinges on several things, all of which by mere presumption constitutes cooperation with the police. First, as stated by [defense counsel] on the record to the defendant, the negotiated plea agreement allowed the [S]tate to determine the quantity of his cooperation.

 

Second, the cooperation presumptively requires more than one act of attempt. The defendant at the time of his arrest did provide the trooper with a location of CDS, however, he failed to remain in constant contact with the trooper, specifically after he was released from custody for that specific purpose.

 

Now, in this matter, he the defendant, while he's asking to be permitted to withdraw his plea, there's no basis for that. . . .

Also, the defendant's reasonable expectations should be afforded deference. The defendant's brief states it's fundamentally clear that Hitchens's expectations or at the time he decided to enter the plea he expected the cooperation would result in mitigation of the sentence. That is precisely the effect . . . of his minimal cooperation was. The [c]ourt in spite of that reduced his sentence by two months. The defendant did not cooperate with the police in any way after he was released.

 

The [c]ourt determined that Officer
Quinn's testimony was credible. The defendant failed to prove in any way that he made any valid effort to assist the police after he was released. The [c]ourt meticulously carried out the plea agreement.

 

For that reason, I find there is no basis in any way for his motion in this matter. It was already dealt with. Pursuant to [State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)], the [c]ourt has given him an opportunity to re-examine it, however, nothing more has been presented that was here before on the record.

 

Again, to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate the reasonable likelihood of succeeding under the tests set forth in [Strickland v. Washington, 466 U.S. 68, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As adopted in New Jersey by [State v. Fritz, 105 N.J. 42 (1987)], this test requires the [c]ourt to address several factors. One, whether the counsel performance was deficient and whether there exists reasonable probability that but for any unprofessional errors, the result of the proceeding would have been different.

In this matter, I find that [defense counsel] did not give him any bad advice. He specifically told him what the plea agreement was and explained to him that it's up to him to provide factor 12. He did not do that. There was nothing in any way deficient in [defense counsel's] representation. Although the defendant has a right not to be misinformed as to a material element of the plea agreement, it can hardly be said that an immaterial plea or misunderstanding constitutes gross error on the part of an attorney or had any significant effect on the outcome in this matter.

 

. . . .

 

The defendant fails to assert any specific occurrences of [defense counsel's] alleged misconduct. His affidavit merely cites relevant case law without specific applications to his representation. For example, it is [defense counsel's] responsibility to represent the defendant to the best of his ability. This is page two of his brief. This type of allegation lacks any real point of contention and is presumptively unfounded. The fact that [defense counsel] successfully negotiated a concurrent sentence far below the prescribed maximum was proof of this zealous representation.

 

. . . [T]he Court finds he has not met the first prong of Strickland. . . .

 

This appeal followed.

II.

On appeal, defendant argues:

POINT I. DEFENDANT WAS DENIED HIS FEDERALAND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS DUE TO HIS TRIAL COUNSEL'S FAILURE TO PROVIDE ADEQUATE ADVICE AND INFORMATION DURING THE PLEA BARGAINING PROCESS.

POINT II. DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS DUE TO HIS TRIAL COUNSEL'S FAILURE TO EFFECTIVELY ASSIST DEFENDANT DURING DEFENDANT'S MOTION TO WITHDRAW HIS PLEA.

POINT III. DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS DUE TO HIS TRIAL COUNSEL'S FAILURE TO ENSURE DEFENDANT WAS SENTENCED ACCORDING TO DEFENDANT'S REASONABLE EXPECTATIONS OF THE PLEA AGREEMENT.

As we noted earlier, we conclude that the verbal "cooperation" agreement extended to and accepted by defendant both before and at the time he entered his retraxit plea of guilty violated the principles of State v. Gerns, supra, and the explicit requirements of the Brimage Guidelines 2. Because the remedy for this violation affords defendant complete relief, there is no need to address or determine the remainder of the issues defendant raises on appeal.

We begin by briefly reviewing the principles governing claims of ineffective assistance of counsel in negotiating plea bargains. We also review standards governing plea agreements that include a promise of mitigation of sentence if a defendant agrees to cooperate with law enforcement authorities. We then turn to the application of those principles to the case before us.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in Fritz, supra, 105 N.J. at 58.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

To justify withdrawing a guilty plea premised on ineffective assistance of counsel, a defendant must satisfy a modified Strickland standard.

When a guilty plea is part of the equation, . . . a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases" and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

[State v. Nu ez-Vald z, 200 N.J.129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]

Moreover, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

Here, defendant contends, as he did at the PCR hearing, that his plea was not truly voluntary because the plea agreement was vague and he was misinformed by counsel about the extent of the cooperation he was required to provide and the extent of the mitigation being offered. Our Supreme Court has emphasized the importance of defendants fully understanding the consequences of their pleas. State v. Gaitan, 209 N.J. 339, 361-62 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); State v. Bellamy, 178 N.J. 127, 142 (2003).

Indeed, a court may not accept a guilty plea unless it is made "voluntarily, knowingly and intelligently." State v. Howard, 110 N.J. 113, 122 (1989). "Clarity as to the direct and penal consequences of a defendant's guilty plea promotes the binding resolution of charges because it serves to ensure that a defendant's 'expectations [are] reasonably grounded in the terms of the plea bargain.'" State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. Marzolf, 79 N.J. 167, 183 (1979)).

A "[d]efendant has the right to receive correct legal advice from his attorney in matters material to him in deciding to accept or reject the State's plea offer." State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012). Moreover, we have observed that "a guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid. Even misinformation about a collateral consequence may vitiate a guilty plea if the consequence is a material element of the plea." State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) (citations omitted). See also State v. Och, 371 N.J. Super. 274, 285-86 (App. Div.) (defendant misinformed of the consequences of pleading, which included forfeiture of public office), certif. denied, 182 N.J. 150 (2004); State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999) (defendant misinformed of deportation consequences).

"Notions of fairness apply to each party in the [plea] bargaining process." State v. Warren, 115 N.J. 433, 443 (1989). A defendant has the right "to have his or her 'reasonable expectations' fulfilled." Bellamy, supra, 178 N.J. at 134 (quoting Howard, supra, 110 N.J. at 122). Misinformation or misunderstanding pertaining to the nature, extent, or direct consequences of the plea or sentence have been held sufficient grounds to withdraw a plea. See, e.g., State v. Nichols, 71 N.J. 358, 361 (1976); see also Johnson, supra, 182 N.J. at 241; State v. Kiett, 121 N.J. 483, 499 (1990); Howard, supra, 110 N.J. at 118.

Plea agreements that allow a prosecutor to waive mandatory, minimum sentences for certain offenses under N.J.S.A. 2C:35-126 must meet uniform guidelines governing their application in order to avoid constitutional infirmity under the separation of powers doctrine. N.J. Const. art. III, 1; State v. Vasquez, 129 N.J. 189, 195-97 (1992). The guidelines adopted by the Attorney General were reviewed by the Court in Brimage, supra, and the Court held that disparity in such agreements from county to county failed to meet the goal of uniformity and threatened the balance between prosecutorial and judicial discretion required by Vasquez. Id. at 22-23.

In Gerns, the Court held that a plea agreement, in which defendant agreed to cooperate with law enforcement in return for an unspecified sentence shorter than four years with three years of parole ineligibility on a charge under N.J.S.A. 2C:35-7, was fatally vague. The Court stated:

When a plea agreement is susceptible to a reasonable misunderstanding with respect to the meaning of a material term of the agreement, the appropriate remedy is to extend to defendant one of several options. Based on the sparse record before us, we afford defendant the option on remand to (1) withdraw his guilty pleas; (2) move for a hearing on whether his "cooperation" was of substantial benefit to the State; or (3) renegotiate the plea agreement. See State v. Kovack,[] 91 N.J. [476], 485 [(1982)]. If defendant elects to have a hearing on whether he satisfied the cooperation agreement, the prosecutor at the conclusion of the hearing must state the reasons for his or her waiver decision.

We agree with defendant that the plea agreement should have indicated more precisely the sentence the prosecutor would recommend to the court if defendant's cooperation was determined by the prosecutor or the prosecutor's designee to be of substantial value to the State. When a defendant is offered leniency based on cooperation provided to law enforcement prior to execution of the plea agreement, the prosecutor can and must state precisely the sentence recommendation. The problem arises in cases in which the plea agreement contemplates a waiver decision at the time of sentencing based on the extent and quality of a defendant's cooperation between the date of the plea agreement and a few days prior to the sentencing hearing . . . .

We recognize the need, on the one hand, for the prosecutor to have some flexibility in sentencing recommendations based on the substantiality and quality of defendant's cooperation, and on the other hand, the defendant's need to know at the time of his or her plea the outer limits of the prosecutor's conditional waiver decision. In an effort to balance those competing interests, we direct that the plea agreement must contain a range on the prosecutor's conditional recommendation. The actual recommendation at sentencing may not require a defendant to serve a longer minimum term than that specified in the plea or post-verdict agreement. Alternatively, the plea or post-verdict agreement may specify the precise sentence if defendant provides cooperation to the satisfaction of the prosecutor or the prosecutor's designee.

[Gerns, supra, 145 N.J. at 229-31 (citations omitted).]

The Attorney General issued specific guidelines implementing Gerns. The Brimage Guidelines 2 provide, in pertinent part:

SECTION 13 DOWNWARD DEPARTURE FOR SUBSTANTIAL COOPERATION

13.1 GENERAL AUTHORITY TO ENTER INTO A COOPERATION AGREEMENT

Notwithstanding any other provision of the Guidelines, a prosecutor in the exercise of reasoned discretion is authorized to tender a plea offer for a sentence below that otherwise determined pursuant to the applicable Table of Authorized Plea Offers and the provision of these Guidelines in exchange for the defendant's substantial cooperation in assisting the prosecutor or another law enforcement agency in the identification, investigation, apprehension or prosecution of collaborators, co-conspirators, suppliers, and superiors in a drug trafficking scheme, or other person involved in any form of criminal activity, or leading to the seizure or forfeiture of property used in furtherance of or derived from criminal activity . . . .

When a Downward Departure for Substantial Cooperation is made, the prosecutor may reduce the term of parole ineligibility otherwise prescribed by these Guidelines to any extent, and may offer, as appropriate a county jail or non-custodial sentence . . . .

The nature, extent, and significance of cooperation and assistance can involve a broad spectrum of conduct that must be evaluated by the prosecutor on a case-by-case basis. Latitude is therefore afforded to reduce a plea offer based upon variable relevant factors. To ensure uniformity and to permit meaningful judicial review, the prosecutor must, however, state the reasons for application of a Downward Departure under this section. The prosecutor may elect to provide the reasons for the Downward Departure to the defendant and the court in camera or in writing under seal for the safety of the defendant or to avoid disclosure of an ongoing or potential investigation.

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13.2 Approval and Documentation of Cooperation Agreements

All Downward Departures authorized pursuant to this Section must be approved by a supervisor who is authorized in writing by the county prosecutor or Director of the Division of Criminal Justice to approve such departures . . . .

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. . . [A]ll plea agreements that are offered in exchange for a defendant's promise to provide future or ongoing cooperation must set forth the reasonable expectations and obligations of both the defendant and the State in sufficient detail so that those expectations and agreed-upon responsibilities are clearly understood and can be reviewed upon request by the Division of Criminal Justice and enforced by a court, if necessary.

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. . . When a defendant is offered a reduction in a mandatory minimum sentence (i.e., a downward departure) based on substantial cooperation that was provided to law enforcement prior to execution of the plea agreement, the prosecutor can and must state precisely the sentence recommendation . . . .

The Court in Gerns recognized that prosecutors need to retain flexibility in sentencing recommendations based on the substantiality and quality of the defendant's cooperation. The need to preserve prosecutorial discretion, however, must be weighed against a defendant's need to know at the time of his or her plea the outer limits of a prosecutor's conditional waiver decision . . . .

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Accordingly, where a Downward Departure for Substantial Cooperation is based upon a defendant's anticipated future cooperation or assistance, the plea agreement must specify the range of sentences (minimum and maximum contemplated by the plea agreement based upon the extent and quality of the defendant's cooperation.

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The written memorialization of the terms of the cooperation agreement should nonetheless be kept on file to allow for review upon request by the Division of Criminal Justice, or to enable the terms of the agreement to be enforced by a court where necessary. The requirement that the cooperation agreement be in writing and be kept on file will also help to ensure that the State complies with any discovery obligations that may arise from the use of the cooperating defendant as a witness in the prosecution of another defendant . . . .

We turn now to the application of these principles to the case before us.

Initially, defendant received no writing setting forth the nature and substance of the proffered cooperation agreement. In addition, there is nothing in the record defining the extent of the "cooperation" defendant was expected to provide. Most importantly, defendant was never provided with a specific range of sentences he could expect based upon the extent and quality of his cooperation. These deficiencies clearly run afoul of the explicit mandate of both Gerns and the Brimage Guideline 2.

The record reveals defendant understood that his successful cooperation would result in the dismissal of the charges against him, an understanding implicitly supported by the testimony of States Trooper Quinn that defendant "could work off his charges if he was willing to help us . . . ." While our conclusion is not tied to the veracity of defendant's belief, nonetheless the failure of the prosecutor to have complied with the requirements of Gerns and the Brimage Guidelines 2 invites the very uncertainty we confront here.

Moreover, we have no confidence in the completeness of the record developed at the hearing on April 15, 2008, respecting the nature and extent of defendant's cooperation. Defense counsel presented no evidence and, except for a desultory cross-examination of Quinn, abdicated his responsibilities as an advocate and allowed his client to pursue relief unaided by counsel. Cf. State v. Barlow, 419 N.J. Super. 527, 535 (App. Div. 2011) (defendant was "deprived of his constitutional right to counsel when his attorney declined to pursue a motion on his behalf to withdraw his guilty plea"). Indeed, a full exploration of the issue would have required testimony from both the prosecutor and defense counsel, in addition, no doubt, to others.

Finally, we determine that there is a reasonable probability that defendant would not have pled guilty and would have sought to go to trial, had the plea agreement not incorporated his understanding about the nature and extent of the cooperation he was expected to provide and the disposition he expected if he cooperated successfully. Defendant moved to withdraw his plea prior to sentencing when he learned that the prosecutor's understanding of the plea agreement dramatically differed from his own understanding.

Because of the nature and extent of the procedural and substantive deficiencies manifest in this record, we adopt the remedies mandated by the Court in Gerns. Defendant's conviction is reversed and we remand this matter to the Law Division to vacate the conviction and afford defendant the option of: (1) withdrawing his guilty plea; (2) moving for a hearing on the terms of the plea agreement and whether his "cooperation" was of substantial benefit to the State; or (3) renegotiating the plea agreement.7

Reversed and remanded. We do not retain jurisdiction.

 

1 State v. Brimage, 153 N.J. 1 (1998).

2 For offenses committed after September 15, 2004, the Attorney General promulgated revised guidelines, which we shall refer to as Brimage Guidelines 2.

3 Because the proposed sentence was below the mandatory minimum term of parole ineligibility prescribed by N.J.S.A. 2C:35-7, see N.J.S.A. 2C:35-12, it was subject to the Brimage Guideline 2.

4 The reference to "[f]actor 12" is meant to identify N.J.S.A. 2C:44-1(b)(12), a mitigating circumstance a court may consider at sentencing: "The willingness of defendant to cooperate with law enforcement authorities."

5 Neither the judge nor defense counsel addressed defendant's original request to withdraw his plea.

6 An offense under N.J.S.A. 2C:35-7 is subject to the provisions of N.J.S.A. 2C:35-12.

7 We note that defendant is no longer confined and that over five years have passed since the entry of the judgment of conviction. Consequently, after the conviction is vacated, we do not preclude any other disposition more favorable to defendant under the circumstances.