STATE OF NEW JERSEY v. JEROME A. TURNER, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME A. TURNER, JR.,

Defendant-Appellant.

____________________________________

October 29, 2015

Submitted October 5, 2015 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13-06-1572.

Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys for appellant (Terrance L. Turnbach, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jerome Turner, Jr., appeals from his judgment of conviction, arguing the factual basis for his plea to second-degree aggravated assault was not only inadequate to support the elements of that offense, but also his testimony during the plea proceeding raised the issue of self-defense. Having considered the transcript of defendant's plea, we find merit in his arguments. Accordingly, we vacate defendant's guilty plea, reinstate his indictment as to the dismissed counts, and remand this matter to the trial court.

Defendant was charged in a 2013 Ocean County indictment with six offenses: first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (Count Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Five); and third-degree witness tampering, N.J.S.A. 2C:28-5(a) (Count Six). He pled guilty to Count Two.

During defendant's plea proceeding, the prosecutor informed the court defendant had agreed to plead guilty to Count Two and the State had agreed to "an open-ended plea where the defendant will argue for five years [subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2]." The prosecutor also confirmed the remaining counts in the indictment would be dismissed. The court questioned defendant at the plea hearing to ensure he understood the agreement and he was pleading guilty voluntarily. After doing so, the court asked for a factual basis for the plea. This colloquy ensued

[Defense Counsel:] [O]n or about March 9th, 2012, while in the vicinity of Lakewood, Ocean County, you and [the victim] came together?

[Defendant:] Yes.

[Defense Counsel:] And could you explain to the [c]ourt the circumstances of you and [the victim] being together that day?

[Defendant:] Yes. Yes. While we were in the car that day we got into an argument, in which case she pulled out a box cutter. I fought with her. I grabbed her arm and she sustained several cuts, in which case I understand my actions were reckless and indifferent to her safety. And I'm extremely remorseful and sorry for everything that occurred that day.

THE COURT: Where was she cut?

[Defendant:] On the neck and on the neck, I believe, yes.

THE COURT: All right.

The prosecutor then questioned defendant

[Prosecutor:] [D]uring the struggle with the box cutter, . . . you had an opportunity to look at the medical reports, you know that she had a cut on her neck by her throat?

[Defendant:] Um-hmm.

[Prosecutor:] And that was substantial, that was several inches long?

[Defendant:] Yes.

[Prosecutor:] And she also had some cuts to her hands and her arms, too, from the struggle?

[Defendant:] Yes.

[Prosecutor:] Okay. And you realize by struggling with her knowing she had a box cutter that that was reckless on your part?

[Defendant:] Yes.

[Prosecutor:] And that her injuries were serious?

[Defendant:] Yes.

[Prosecutor:] Thank you.

[Defense Counsel:] Judge, we'll stipulate to the pictures and to the medical records which show a significant injury. We've gone over those and we will stipulate to those.

Following that colloquy, the court found "there [was] a factual basis for the [c]ourt to accept the plea as offered." The court subsequently sentenced defendant to serve a five-year custodial term subject to NERA. The court also imposed appropriate fines and penalties. Defendant appealed.

Defendant raises the following points on appeal

AS REQUIRED BY R. 3:9-2, THE DEFENDANT DID NOT PROVIDE AN ADEQUATE FACTUAL BASIS TO SUPPORT A FINDING OF GUILT AS TO A SECOND[-] DEGREE AGGRAVATED ASSAULT; AND AS SUCH, THE DEFENDANT RESPECTFULLY REQUESTS THAT HIS PLEA AND SENTENCE BE VACATED, AND THE MATTER RETURNED TO THE TRIAL COURT FOR EITHER PLEA OR TRIAL, PRE[-]PLEA POSTURE.

A. The record of [defendant's] purported factual basis in support of the plea contains confusion as to whether the injuries sustained by [the victim] are serious or significant, and as such, the plea must be vacated.

B. The record of [defendant's] purported factual basis in support of the plea does not contain an admission that [defendant] committed an aggravated assault recklessly under circumstances manifesting an extreme indifference to the value of human life.

C. The factual basis presented on the record should not have been accepted as the [defendant] had a self-defense claim per N.J.S.A. 2C:3-4.

When a defendant challenges the factual basis for a guilty plea, our review is de novo. State v. Tate, 220 N.J. 393, 403-04 (2015). That is so because "[a]n appellate court is in the same position as the trial court in assessing whether the factual admissions during a plea colloquy satisfy the essential elements of an offense." Id. at 404.

Trial courts may not accept a guilty plea unless there is a factual basis supporting it. R. 3:9-2. "Indeed, 'it is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a given offense in substantial detail.'" State v. Perez, 220 N.J. 423, 432 (2015) (quoting State v. Campfield, 213 N.J. 218, 236 (2013)). Trial courts "must be satisfied from the lips of the defendant . . . that he committed every element of the crime charged[.]" Id. at 432-33 (citations and internal quotation marks omitted).

Requiring a factual basis for a plea serves several salient purposes. As our Supreme Court explained, "the factual basis enables a judge to 'ascertain the plea's voluntariness . . . [b]ecause a guilty plea is an admission of all the elements of a formal criminal charge [and] cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.'" State v. Urbina, 221 N.J. 509, 526 (2015) (quoting McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1170-71, 22 L. Ed. 2d 418, 425 (1969)). Additionally, "the requirement of a factual basis helps 'to protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'" Id. at 527-28 (quoting State v. Barboza, 115 N.J. 415, 421 (1989)). For all those reasons, "if a factual basis has not been given to support a guilty plea, the analysis ends and the plea must be vacated." Tate, supra, 220 N.J. at 404.

If a defense is raised during the plea colloquy, a court may not ignore it. See Urbina, supra, 221 N.J. at 528 ("[I]f a suggestion of self-defense is raised in the plea colloquy, then the trial court must inquire whether the defendant is factually asserting self-defense.").

[If] the defendant does not factually contend that he acted in self-defense, a defendant may waive a claim of self-defense. As such, before allowing a defendant to waive a claim of self-defense, we require "a thorough and searching inquiry" into "his or her understanding of the nature of the right being waived and the implications that flow from that choice."

[Ibid. (quoting State v. Handy, 215 N.J. 334, 362 (2013)).]

In the case before us, defendant pled guilty to second-degree aggravated assault, which is committed when one "under circumstances manifesting extreme indifference to the value of human life recklessly causes [serious bodily] injury" to another. N.J.S.A. 2C:12-1(b)(1). Relevant to his plea, however, and subject to exceptions not applicable here, "the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). Defendant's factual basis for his plea did not include all of the elements of N.J.S.A. 2C:12-1(b)(1) but raised a potential claim of justifiable force.

Defendant's first argument concerning the serious nature of the victim's injury is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In contrast, his other two arguments have merit.

First, as defendant correctly points out, he was never questioned about whether his conduct, even if reckless, manifested extreme indifference to the value of human life under the circumstances. There is a distinction between recklessness generally, and recklessness under circumstances manifesting an extreme indifference to the value of human life. The latter includes a "heightened element[,]" namely, "a probability of serious bodily injury as opposed to a possibility of such injury." See State v. Pigueiras, 344 N.J. Super. 297, 316 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002). No one explained that difference to defendant during the plea hearing.

Defendant's factual basis concerning recklessness included two admissions by him: first, defendant said the victim displayed a box cutter, he grabbed her arm and she sustained several cuts, "in which case [he] underst[ood] [his] actions were reckless and indifferent to her safety"; second, defendant answered "yes" to the prosecutor's question, "[a]nd you realize by struggling with her knowing she had a box cutter that that was reckless on your part?" Neither response provided an adequate factual basis for the element of acting recklessly under circumstances manifesting an extreme indifferen[ce] to the value of human life.

Defendant's "indifference to her safety" was not an admission that he acted under circumstances in which a probability of serious bodily injury existed, as opposed to a possibility of such injury. And defendant's admission to the prosecutor's conclusory assertion that "struggling with her knowing she had a box cutter . . . was reckless on your part" was not an admission that he acted under circumstances in which there was a probability he would inflict serious bodily injury; particularly when his statement suggested that he was attempting to prevent such injury from being inflicted on him. That leads to defendant's next argument.

Defendant's statements suggested he might have a defense of justification. He claimed the victim suffered several cuts when he grabbed her arm after she wielded a box cutter. Based upon that statement, the court should have clarified whether defendant was claiming the victim was injured during his attempt to disarm her. The court also should have undertaken "a thorough and searching inquiry" into defendant's understanding of the principle of justification and his waiver of that possible defense. Urbina, supra, 221 N.J. at 528.

The State's argument that defendant acknowledged on the plea form he waived his right to a jury trial, his right to remain silent, and his right to confront witnesses, is unavailing. The issue presented by this appeal is not whether defendant waived those rights, but whether he acknowledged facts that constitute the essential element of the crime of aggravated assault.

The State also contends defendant's self-defense claim is not cognizable on appeal because it was not raised before the trial court and because there is no evidence in the record to rationally support a self-defense claim. In support of the latter argument, the State relies in part on either the police report or the portions of the pre-sentence report that quoted the police report.

The State's arguments are unpersuasive for two reasons. First, as we have previously noted, defendant's statements suggesting justification of his conduct required the court to undertake a thorough and searching inquiry to clarify whether defendant was claiming or waiving a justification defense. Second, to the extent the State relies on extraneous documentary evidence, its argument overlooks our Supreme Court's jurisprudence "reaffirm[ing] the basic principle that the factual basis for a guilty plea must come directly from the defendant and not from informational sources outside of the plea colloquy." Tate, supra, 220 N.J. at 408.

For the foregoing reasons, we vacate defendant's guilty plea, reinstate the indictment as to the dismissed counts in its entirety and remand this matter to the trial court for further proceedings.

Reversed and remanded. We do not retain jurisdiction.