NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0403-12T2 STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. October 14, 2015

VANCLEVE ASHLEY, a/k/a APPELLATE DIVISION QAWEE ALI,

Defendant-Appellant. _________________________________

Submitted March 9, 2015 – Decided October 14, 2015

Before Judges Espinosa, St. John, and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-06-1233.

Joseph E. Krakora, Public Defender, attorney for appellant, (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

ROTHSTADT, J.A.D. Defendant Vancleve Ashley, also known as Qawee Ali, appeals

from the Law Division's denial of his motion to vacate his

guilty plea and from his sentence, which he argues was

excessive. We conclude defendant's guilty plea, the judgment of

conviction, and the sentence must be vacated, the dismissed

charges reinstated, and defendant allowed to re-plead or to

proceed to trial.

When there has been a plea agreement and a defendant seeks

to withdraw his guilty plea to multiple counts after providing

an inadequate factual basis to support a guilty plea, the remedy

is to vacate the plea in its entirety, reinstate the dismissed

charges and restore both the State and the defendant to their

positions prior to the guilty plea. State v. Campfield,

(2013) (citing State v. Barboza,

(1989)). In this case, we consider whether the same remedy

applies when the guilty plea, lacking an adequate factual basis,

is entered without a plea offer from the prosecutor, but after

the defendant has been advised by the trial court regarding the

maximum sentence the judge was "inclined" to impose. Because it

was intended that the maximum ten-year sentence the judge was

inclined to impose would globally address all charges and

defendant provided an inadequate factual basis for the most

2 A-0403-12T2 serious offense, it was error to deny his motion to vacate his

plea and sentence him to the ten year term.

Defendant was arrested in 2002 and charged in an indictment

with attempted murder, conspiracy to commit murder, and

aggravated assault, exposing him to a possible sixty-year prison

sentence. In 2009, defendant pled guilty to each charge in the

indictment without a plea offer from the prosecutor. The judge,

however, advised defendant that he might be inclined to sentence

defendant to ten years with an eighty-five percent period of

parole ineligibility, concurrent to sentences defendant was then

serving, but the court made clear it was not making any promises

to defendant. The court's "inclination" was incorporated into a

written plea agreement, which the prosecutor, defendant, and his

attorney signed. Defendant purportedly gave a factual basis for

each of the crimes, but the prosecutor expressed concern that

defendant provided inadequate factual bases for the attempted

murder and conspiracy counts. The trial judge disagreed, and

accepted defendant's plea to all three charges.

Prior to sentencing, defendant moved to vacate his plea.

At his motion hearing before a different judge, defendant argued

that he did not provide an adequate factual basis for his guilty

plea to the attempted murder and conspiracy charges. He also

argued that he was not advised of the parole supervision aspect

3 A-0403-12T2 of his sentence. The judge found no merit to the parole

supervision argument, but agreed as to the lack of a factual

basis for defendant's guilty pleas to the attempted murder and

conspiracy counts. He granted defendant's motion as to those

two counts. However, the judge concluded defendant's testimony

sufficiently supported his plea to aggravated assault and,

therefore, did not vacate defendant's plea to that charge. The

State moved to dismiss counts one and two of the indictment and

have the court sentence defendant on the aggravated assault

charge. The court granted the motion and, after finding three

aggravating factors and no mitigating factors, sentenced

defendant to ten years imprisonment, with an eighty-five percent

parole ineligibility period, which he stated was "pursuant to

the plea agreement" between defendant and the former trial

judge.1 This appeal followed.

On appeal, defendant argues:

POINT I.

[DEFENDANT'S] ENTIRE PLEA MUST BE VACATED, BOTH BECAUSE THE JUDGE VACATED THE PLEAS TO THE TWO MOST SERIOUS OFFENSES WHILE REFUSING

1 The court also imposed a three-year period of parole supervision, waived all financial penalties, and awarded 570 days of jail credit and 2,390 days of gap time credit. Defendant filed a motion asking the court to reconsider its calculations, which the court denied. Defendant amended his Notice of Appeal to include the denial.

4 A-0403-12T2 TO VACATE THE PLEA TO THE REMAINING CHARGE, AND BECAUSE THE PLEA WAS NOT KNOWING AND VOLUNTARY.

A. It Was Improper For The Judge To Vacate The Plea As To The Two Most Serious Charges, But Deny The Plea-Withdrawal Motion As To The Least Serious Charge, And Then Continue To Bind [Defendant] To The Remainder Of The Plea Agreement.

B. The Unanticipated Three-Year Delay Between Plea And Sentencing Resulted In (1) A Day-For-Day Increase In Defendant's Incarceration; (2) Partially- Consecutive Sentencing, In Violation Of The Plea Agreement; And (3) The Loss Of Potential Discretionary Credits, Which Were Abolished Between His Plea And His Sentencing.

C. The Plea Was Not Knowing And Voluntary Because Even Though [Defendant] Repeatedly Informed The Court That He Was Reserving His Rights, Rather Than Waiving Them, The Judge Accepted His Plea.

POINT II.

BECAUSE [DEFENDANT] DID NOT RECEIVE THE BENEFIT OF HIS PLEA AGREEMENT TO CONCURRENT SENTENCES AND TO A MINIMUM SENTENCE, AND BECAUSE OF THE THREE-YEAR DELAY IN SENTENCING RESULTING IN MEANINGLESS GAP TIME, THE SENTENCE IS MANIFESTLY EXCESSIVE.

In his supplemental pro se brief, defendant presents the

following additional issues:

5 A-0403-12T2 POINT I.

IT WAS UNCONSTITUTIONAL FOR THE COURT THE STATE AND DEFENSE COUNSEL TO STIPULATE TO THE FACTUAL BASIS OF SERIOUS BODILY INJURIES IN REGARDS TO THE AGGRAVATED ASSAULT IN VIOLATION OF U.S. CONST. AMENDS. VI AND XIV AND N.J. CONST. (1947) ART I. PARS. 9 AND 10.

POINT II.

DEFENDANT DID NOT PROVIDE THE COURT WITH AN ADEQUATE FACTUAL BASIS ON COUNT THREE OF THE PLEA IN REGARDS TO THE AGGRAVATED ASSAULT THEREFORE THE COURT BELOW ABUSED ITS DISCRETION WHEN IT REFUSED TO VACATE THE ENTIRE PLEA AS BEING UNCONSTITUTIONAL IN VIOLATION . . . OF U.S. CONST. AMENDS. VI AND XIV AND N.J. CONST. (1947) ART I. PARS. 9 AND 10.

POINT III.

DEFENDANT'S PLEA SHOULD NOT HAVE BEEN ACCEPTED BECAUSE HE REPEATEDLY STATED OVER AND OVER THAT HE DID NOT SHARE THE SAME CRIMINAL INTENT TO ASSAULT VICTIM WITH [A] CAR AS HIS CO-DEFENDANT YORK U.S. CONST. AMENDS. VI AND XIV AND N.J. CONST. (1947) ART I. PARS. 9 AND 10.

We have considered defendant's arguments in light of our

review of the record and applicable legal principles. We

reverse.

Defendant was arrested in connection with an assault during

which the victim was struck by a motor vehicle and sustained

significant injuries. On June 23, 2003, a Monmouth County Grand

Jury issued Indictment No. 03-06-01233, charging defendant with

6 A-0403-12T2 first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3

(count one); first-degree conspiracy to commit murder, N.J.S.A.

2C:5-2a(1) and/or (2), N.J.S.A. 2C:11-3 (count two); and second-

degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three).

On June 1, 2009,2 defendant appeared before the court to

enter a guilty plea to the indictment. At the beginning of the

hearing, the prosecutor advised the court defendant was entering

"an open-ended plea," explaining that the "State [was] not a

party to any plea agreement here." The prosecutor acknowledged

that, despite the fact that "there [was] no plea agreement," he

was asked to sign the plea form and did so. Defense counsel

stated he had reviewed the plea form and discovery with

defendant. He represented that defendant was entering the plea

voluntarily and understood both the charges and the nature of

the proceedings.

When asked if he understood all the questions on the plea

form, defendant requested the court explain the notation on page

four, which read "ct. inclined to sentence [defendant] to 10 &

2 From 2003 through 2008, defendant was convicted and sentenced in both state and federal courts for various crimes. He remained in federal custody from 2006 through 2008. By the time he pled guilty in this matter, he was serving a thirty-four-year federal sentence and fifteen-year and nine-year sentences on state charges.

7 A-0403-12T2 85% concurrent to sent. being served." The following exchange

took place between defendant and the judge:

THE COURT: . . . It says that the [c]ourt is inclined to impose a sentence of ten with no parole for 85 percent concurrent to your presen[ t] sentence. That's what it says. . . . Inclined doesn't mean promise.

DEFENDANT: Oh, okay.

THE COURT: I have to see whatever happens. I have to read the presentence investigations. I have to see what happens. If you have to testify in another case, whatever it is, there's an inclination but no promise. Understand?

DEFENDANT: So what does "inclination" mean?

THE COURT: That I am leaning that way but haven’t tipped over yet. All right. I haven't made that my final decision. It's a thought. I told counsel, both counsel that but it's no promise.

DEFENDANT: Okay.

THE COURT: Tipping over is promise, I can't promise that that's what the sentence will be.

DEFENDANT: Is it permissible to promise the sentence to be that? Is that permissible?

THE COURT: Yes.

DEFENDANT: Could I talk to my counselor for a second[?]

(Off-the-record discussion.)

THE COURT: Understand?

DEFENDANT: Yes.

8 A-0403-12T2 THE COURT: You understand there's no promise. There's an inclination. I'm leaning in that direction but I haven’t promised it until everything is all over. And I can't tell you exactly what I'm going to do.

Do you understand that? So you really are pleading guilty open-ended which there's no promise from the prosecutor, there's no recommendation from the prosecutor, and just my inclination, not a promise. Do you understand that?

DEFENDANT: Yes.

THE COURT: Is that agreeable with you?

DEFENDANT: That's the situation at hand.

THE COURT: Well, this is part of your plea.

DEFENDANT: All right.

THE COURT: Now, you and [your counsel] went over the, all the questions together?

DEFENDANT: Yes.

THE COURT: Did you understand the questions?

DEFENDANT: Basically I got a different understanding from it, from the way you explaining it, but it sounds from the way he explained it to me, that's what it sounds.

THE COURT: All right.

DEFENDANT: Appropriate.

[(Emphasis added).]

9 A-0403-12T2 The court proceeded to question defendant to establish whether

he read and understood the plea agreement form he signed and was

knowingly, intelligently, and voluntarily entering his guilty

plea.3 During the court's questioning, defendant confirmed that

he understood the prosecutor was not making any recommendations

about the sentence to be imposed:

THE COURT: You know that the prosecutor has made no promises to you as to any recommendation at the time of your sentencing[?]

DEFENDANT: From I was concerned the prosecutor had nothing to do with me at all at this point.

THE COURT: He is the prosecutor in the case. You understand that there's no promises from the prosecutor?

DEFENDANT: Yes.

When the court asked defendant for a factual basis for the

crimes to which he was pleading guilty, defendant explained he

was approached by a man ("Roger") on behalf of another ("Nick")

to make arrangements to have Nick's attorney ("Peter")

3 Defendant complicated the plea hearing when he confirmed he signed the plea agreement "without prejudice" and he "reserved" his rights. Also, he claimed he was not a citizen of the United States but, rather, a "sovereign" and a "Moorish American." See United States v. James,

(7th Cir. 2003) (explaining a defendant who states he is a "Moorish American” is a person claiming "that his ancestors came from Africa, that he is therefore a Moorish national, and that as a result he need obey only those laws mentioned in an ancient treaty between the United States and Morocco").

10 A-0403-12T2 "straightened out" because Nick was not happy with the way Peter

represented him in a domestic matter. At a meeting with Nick

and Roger, Nick offered to pay defendant five thousand dollars

to have Peter's "ass beat." Defendant subsequently contacted

another man ("Raimaine") to tell him that he had a job for him,

stating "[t]he job was to beat the lawyer['s] ass because he was

a crook, too." Defendant had a second meeting with Roger and

Nick, during which he received half of the agreed-upon payment.

Defendant went with Raimaine to Peter's office in

defendant's wife's vehicle, where they met up with "another

assailant." Ultimately, despite defendant's instructions to

"wait for [Peter] to come outside to run up on him and beat the

shit out of him," Raimaine struck Peter with defendant's wife's

vehicle while traveling at approximately fifteen to twenty miles

per hour. Defendant emphasized that Peter was not supposed to

be hit with the vehicle because "[n]obody paid [him] to commit

murder," and "nobody paid nobody to do no murdering with a

vehicle registered to my wife."

When asked if he realized Peter's injuries were serious,

defendant replied:

Did I know that? No, I didn't know. I knew later on when the charges came about and, well, Roger did some investigation. Let me be honest. He found out that the man was hit and he was seriously hurt. He was hurt bad.

11 A-0403-12T2 Defendant expressed his remorse for what occurred and further

stated,

[I am] willing to do my time for what the hell I did and what is involved with this idiot, the man was struck. Thank God he didn't die because we would be here talking about something else. I was paid to make sure this man get his ass whooped[4] and he got ran over.

Toward the conclusion of the hearing, the prosecutor noted

that "[t]he second degree aggravated assault charge . . .

need[s] . . . proof of serious bodily injury." Defense counsel

stipulated to the seriousness of Peter's injuries, which

satisfied the prosecutor that "there's an adequate factual basis

for the second degree charge." The court stated:

THE COURT: I find in regard to that, that the injuries that I learned about earlier in this case and now today, that that's an indication of an, under our statute, second degree serious bodily injury. So do you have any questions you want to ask of [the prosecutor], [your counsel] or of me?

DEFENDANT: I just want to say I just want to leave the situation, clean my hands with it and just, you know, get this stuff resolved.

4 Defendant later clarified that an "ass whooping" consists of "[j]ust beat[ing] his ass, little bumps and bruises, something simple."

12 A-0403-12T2 The prosecutor then expressed his doubt as to whether

defendant's admissions constituted an adequate factual basis for

the attempted murder charge and the conspiracy charge, stating

he would leave the matter up to the discretion of the court.

The judge accepted defendant's plea, finding an adequate factual

basis as to all three charges.

Prior to sentencing, defendant moved to withdraw his guilty

plea. On July 11, 2012, a different judge heard oral argument

on defendant's motion. From the outset, defendant's new

attorney acknowledged that there was no plea agreement with the

prosecutor and that despite defendant explicitly asking for a

formal deal from the court, he was given "not a promise promise,

but a maybe." Defendant then proffered two bases for vacating

the plea: the court failed to advise him of "the penal

consequences of the plea in terms of the parole supervision

aspect of it, which our Court [has] held is – is mandatory;" and

the factual basis he proffered was inadequate as to the

attempted murder and conspiracy counts, reminding the court that

the prosecutor had acknowledged the deficiency at the hearing.

Defense counsel reiterated "[t]he agreement was for a beating,

never for a killing." Defendant did not attack the sufficiency

of the factual basis for his guilty plea to the aggravated

assault charge.

13 A-0403-12T2 The court found there was "no doubt" that defendant

voluntarily entered his plea. The judge also found no merit to

the argument that defendant was not properly informed of the

parole supervision aspect of his sentence, stating that, in

light of defendant's upcoming federal sentence, "it is not a

material factor." However, the judge agreed that there was an

insufficient factual basis to support the attempted murder and

conspiracy charges; therefore, he granted the motion as to

counts one and two. As to the third count, the judge found "all

the necessary components to support a plea of guilty," and

denied the motion to vacate as to that count. He commented,

"[d]efendant through his own words clearly indicate[d] he knew

what they were doing. . . . There's no question they were down

there to injure [Peter] and they did."

Immediately following the plea withdrawal hearing, the

State moved to dismiss counts one and two and sentence defendant

on the aggravated assault charge. The State declined to be

heard as to sentencing. Defense counsel acknowledged that

defendant could be sentenced to a maximum of ten years with an

eighty-five percent period of parole ineligibility. However, he

requested that the court consider a lesser sentence, claiming

that Raimaine, the "primary assaulter," received a sentence of

14 A-0403-12T2 eight years in exchange for his cooperation with the State.

Defendant argued that he never admitted to assaulting Peter.

Noting that defendant had fifty adult arrests, the judge

found that aggravating factors three, N.J.S.A. 2C:44-1(a)(3)

(risk of defendant committing another offense), six, N.J.S.A.

2C:44-1(a)(6) (extent of defendant's prior criminal record and

seriousness of offense), and nine, N.J.S.A. 2C:44-1(a)(9) (need

to deter defendant and others) applied. The judge found no

mitigating factors applicable. The judge stated he had

"completely eliminated all the first degree counts," was

sentencing defendant pursuant "to the plea agreement that was

between him and" the plea judge, and imposed the ten-year

sentence with the eighty-five percent parole ineligibility

period, concurrent to the sentence he was currently serving.5

This appeal followed.

We address defendant's argument that, once the court

dismissed two of the three counts to which he pled guilty

pursuant to a plea agreement, the trial court was required to

vacate his guilty plea to all three charges. We agree.

5 Defendant's judgment of conviction stated: "The court followed the plea agreement . . . . This was a plea agreement between the prosecutor and the defendant. It appears fair and in the interest of justice. The court will impose the recommended sentence." (emphasis added). This was obviously an error.

15 A-0403-12T2 "A plea agreement is an all-or-nothing arrangement."

. "The cornerstone of the plea-

bargaining system is the 'mutuality of advantage' it affords to

both the defendant and the State."

.

Negotiations for plea agreements take place between the

defendant and the State, ibid., as judges are prohibited from

taking part in plea discussions. R. 3:9-3(a). However, in the

absence of a plea agreement, the court may

indicate . . . the maximum sentence it would impose in the event the defendant enters a plea of guilty, assuming, however, . . . that the information in the presentence report at the time of sentence is as has been represented to the court at the time of the disclosure and supports its determination that the interests of justice would be served thereby. . . . [I]f the plea is to be based on the court's conditional indication about the sentence, all the terms of the plea, including the court's concurrence or its indication concerning sentence, shall be placed on the record in open court at the time the plea is entered. Nothing in this Rule shall be construed to authorize the court to dismiss or downgrade any charge without the consent of the prosecutor.

[R. 3:9-3(c).]

See also State v. Salentre,

(App. Div.)

(stating that the court rules permit the parties to "obtain the

judge's view as to 'maximum sentence' he might impose if

defendant entered a plea"), certif. denied,

(1994).

16 A-0403-12T2 This does not mean that a judge is bound to impose the

sentence he previously indicated, even if the presentence report

is as expected. Rule 3:9-3(e) provides,

If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.

When a court gives an inclination of a sentence in a plea

agreement, it is not an open plea to the indictment. "An 'open

plea' [is] one that d[oes] not include a recommendation from the

State, nor a prior indication from the court, regarding

sentence." State v. Kates,

, 42 n.4 (App.

Div. 2012) (emphasis added) (citing State v. McDonald,

(2012)), aff'd,

(2014).

When a court has given an inclination of a maximum

sentence, but subsequently determines that there was an

inadequate factual basis to support the plea, absent an

agreement between the State and defendant,

[t]he remedy . . . is an order vacating the guilty plea and restoring both parties to their positions prior to the trial court's acceptance of the plea.

. If an appellate court determines that "a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence

17 A-0403-12T2 must be vacated, the dismissed charges reinstated, and defendant allowed to re- plead or to proceed to trial."

[Campfield, supra,

.]

The plea must be vacated regardless of whether a defendant

gave a factual basis for all of the charges to which he pled

guilty, or less than all of the charges, if there is a material

change to the reasons why he pled in the first instance. See R.

3:9-2; see also

n.5 (Albin,

J., dissenting) ("[W]hen a guilty plea to one charge is vacated,

the plea agreement as a whole is a nullity, and the State

retains the right to proceed to trial on all charges in the

indictment (citing

)). As the

Court explained, "[this] procedure . . . best reflects the

concerns of fundamental fairness to defendants and of procedural

simplicity, which benefits all parties involved and the criminal

justice system."

.

Contrary to the State's argument here, the fact that the

State did not participate in the plea is of no consequence. The

requirement that the entire plea be vacated is equally

applicable whenever the defendant's exposure to prison time is

dramatically reduced from what it was when a defendant entered

the plea. "Knowledge of the comparative sentence exposure

between standing trial and accepting a plea offer will often be

18 A-0403-12T2 crucial to the decision whether to plead guilty." United States

v. Day,

(3d Cir. 1992). Sentencing a defendant

in accordance with the original plea after his exposure is

reduced violates the defendant's "right to make a reasonably

informed decision whether to accept a plea offer," because

knowledge of potential sentence exposure is crucial to the

decision of whether to plead guilty. Ibid.; see also State v.

Nichols,

(1976).

Defendant pled guilty after the court indicated that it

would consider limiting his exposure to ten years, rather than

the sixty years he was facing. His plea to the greater offenses

was vacated and dismissed, thereby dramatically reducing his

exposure to ten years, the maximum sentence for a second-degree

aggravated assault and the sentence to which the court was

inclined to limit his exposure when he was facing sixty years.

Under these circumstances, we are constrained to reverse

the court's denial of defendant's motion to vacate the entirety

of his plea and remand the matter for reinstatement of the

dismissed charges, allowing defendant to re-plead or proceed to

trial. In doing so, we stress to our courts the importance of

trial judges scrutinizing the factual basis offered by

defendants in support of guilty pleas and the need for the

rejection of those pleas that lack an adequate factual basis so

19 A-0403-12T2 as to avoid similar outcomes in the future. See State v.

Urbina,

(2015) ("'[e]ven if a defendant wished

to plead guilty to a crime he or she did not commit, he or she

may not do so. No court may accept such a plea.'" (quoting

State v. Smullen,

(1990))).

Because we reverse the court's denial of the motion to

vacate his plea and judgment of conviction, we need not reach

defendant's other arguments.

Reversed and remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

20 A-0403-12T2