Opinion
DOCKET NO. A-5561-11T1
03-17-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KALVIN C. BELLINGER, a/k/a CALVIN C. BELLINGER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-01-0171.
Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kalvin Bellinger appeals his conviction, following a guilty plea, for second-degree conspiracy to unlawful possession of a handgun, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:39-5b, claiming the factual basis for his guilty plea was inadequate. We agree, and reverse and remand. Given our disposition, we need not reach the additional points defendant raises.
Defendant also contends the trial court erred when it denied his motion to suppress evidence and sentenced him to a "second-degree term of imprisonment."
I.
On September 21, 2010, defendant was indicted for second-degree conspiracy to possess a "weapon," N.J.S.A. 2C:5-2 and N.J.S.A. 2C:39-5b (count two), and second-degree unlawful possession of a "firearm, a 9mm, handgun," N.J.S.A. 2C:39-5b (count three). Co-defendants Cord Burns and Brian Wright were also charged with the same offenses in the indictment. In addition, defendant Burns was charged with second-degree eluding, N.J.S.A. 2C:29-2b (count one).
On January 3, 2012, defendant appeared in court to plead guilty pursuant to a negotiated agreement. At the outset of the plea colloquy, the prosecutor detailed the terms of the agreement:
Mr. Bellinger will be pleading guilty to count 2 of indictment 11-1-171, charging second degree conspiracy to possess a handgun. He'll provide a truthful factual basis of his co-defendants.After detailing the sentence defendant was facing in connection with a pending parole violation, defense counsel voiced his concurrence with the prosecutor's recitation of the plea agreement.
[The] State to dismiss . . . count 3 of that indictment, as well as count 1 of [another
pending indictment] recommending five years New Jersey state prison concurrent to any parole violation, which is expected.
[Emphasis supplied.]
At the time of the plea, another indictment was pending which charged defendant with a parole violation. The plea form indicates defendant was charged with certain persons not to have weapons, but the record does not contain the statutory citation to the crime with which defendant was charged in this other indictment.
The court then questioned defendant directly about his understanding of the plea. Defendant acknowledged the information in the plea form was accurate, that he understood what the crime of conspiracy to possess a weapon "means" and that he was aware that under the agreement he would receive a five-year term of imprisonment. After ascertaining defendant's plea was voluntary and that he was knowingly relinquishing certain rights by pleading guilty, the court asked defense counsel to elicit a factual basis.
Defendant testified that he had been a passenger in a car that had been stopped by the police for speeding. During the stop, the police discovered a weapon "within the back of the car." Defendant admitted that he and co-defendant Burns had agreed to and did obtain the weapon without first getting a permit which, defendant acknowledged, made possession of the weapon illegal.
Apparently mindful defendant had to admit to conspiracy to possess, specifically, a handgun without a permit, in order to be convicted under N.J.S.A. 2C:39-5b and N.J.S.A. 2C:5-2, the prosecutor inquired, "[d]oes the defense stipulate and Mr. Bellinger acknowledge the weapon was legally a handgun?" The defense attorney replied, "[d]efense counsel will stipulate that it was a handgun and plead as indicted." The court then concluded there was "an adequate factual basis of a conspiracy to possess an unlicensed firearm, so that is an adequate factual basis." Defendant himself never stated that the weapon in question was a handgun or acknowledged defense counsel's stipulation the weapon was a handgun was accurate.
On February 24, 2012, the trial court imposed the sentence recommended by the prosecutor under the plea agreement, and sentenced defendant to a flat five-year term of imprisonment, to run concurrently with any sentence imposed for the parole violation. The remaining charge was dismissed.
On appeal, defendant raises the following point:
The remaining Points raised in defendant's brief, which we are not deciding, are:
POINT II - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS WHERE THE WEAPON WAS THE PRODUCT OF AN ILLEGAL SEARCH AND SEIZURE.
POINT III - THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING THE DEFENDANT TO A SECOND-DEGREE TERM OF IMPRISONMENT.
POINT I - THE TRIAL COURT ERRED BY ACCEPTING THE DEFENDANT'S GUILTY PLEA UNDER R. 3:9-2.
A. THE TRIAL COURT ERRED BY ACCEPTING DEFENSE COUNSEL'S STIPULATION THAT THE WEAPON WAS A "HANDGUN" WHERE THE STIPULATION WAS NOT IN WRITING AND WAS NOT SIGNED BY THE DEFENDANT, DEFENSE ATTORNEY, AND PROSECUTOR AS REQUIRED BY R. 3:9-2 AND, THEREFORE, DEFENDANT'S PLEA MUST BE VACATED.
B. THE TRIAL COURT ERRED BY ACCEPTING THE DEFENDANT'S GUILTY PLEA BECAUSE THERE WAS NO FACTUAL BASIS FOR THE ELEMENT THAT THE WEAPON WAS A "HANDGUN" AS REQUIRED FOR A CONVICTION OF SECOND DEGREE CONSPIRACY TO VIOLATE FIREARMS LAW IN VIOLATION OF N.J.S.A. 2C:5-2 AND N.J.S.A. 2C:39-5b.
Defendant argues the factual basis to his plea was insufficient because he never admitted or acknowledged his attorney's representation that the subject weapon was a handgun He in fact contends the State never had any evidence the weapon was a handgun; defendant claims that, at best, the evidence indicated the weapon was a rifle, a third-degree crime under N.J.S.A. 2C:39-5c.
II.
When taking a guilty plea, a court is required to adhere to the procedure set forth in Rule 3:9-2, which provides in pertinent part:
The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea . . . .A court must be satisfied an adequate factual basis for the plea exists. State v. Campfield, 213 N.J. 218, 230 (2013). Each element of the offense to which a defendant pleads guilty must be addressed during the plea colloquy. Id. at 231 (citing State ex rel. T.M., 166 N.J. 319, 333-34 (2001); State v. Sainz, 107 N.J. 283, 293 (1987)); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.3.2. on R. 3:9-2 (2014). "The factual foundation may take one of two forms; defendant may either explicitly admit guilt with respect to the elements or may 'acknowledge[ ] . . . facts constituting the essential elements of the crime.'" Campfield, supra, 213 N.J. at 231 (citing Sainz, supra, 107 N.J. at 293).
Regardless which of the two forms is used to establish a factual foundation, "[t]he trial court 'must be satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Id.; T.M., supra, 166 N.J. at 327 (quoting State v. Barboza, 115 N.J. 415, 422 (1989) (citations omitted) (quotations omitted)). The court may question others if they have relevant knowledge, see Pressler & Verniero, supra, comment 1.3.2. on R. 3:9-2 (2014), but ultimately the court must hear directly from a defendant an admission of guilt on the elements of the crime or an acknowledgement of facts constituting the essential elements of the crime. See State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006).
In State v. Lavoy, 259 N.J. Super. 594 (App. Div. 1992), we reversed the defendant's conviction resulting from a guilty plea, because the trial court accepted the defense attorney's representation his client was guilty without also questioning the defendant in accordance with Rule 3:9-2. We concluded defense counsel's purported guilty plea on his client's behalf was not binding. Id. at 599. Our reasons, among others, were that if a court fails to address a defendant personally to ascertain if he is pleading guilty both knowingly and voluntarily, there is the risk the defendant will later try to disavow the plea on the grounds that he is innocent of the charges or that he did not authorize the entry of the plea. Id. at 602.
Since Lavoy was decided, the Rule has been expanded to permit a stipulation of a fact, opinion, or state of mind that the defendant admits to be true, as long as such stipulation is in writing and signed by the defendant, defense counsel, and the prosecutor. The pertinent language in Rule 3:9-2 is otherwise substantially the same today as it was when Lavoy was decided.
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III.
An indispensable element of N.J.S.A. 2C:39-5b is that a defendant specifically possess a handgun without a permit, not merely a weapon. Although defense counsel stipulated the subject weapon was a handgun, defendant never acknowledged or affirmed his counsel's stipulation, a crucial omission. Defense counsel's stipulation did not fulfill the requirement that defendant admit he conspired to obtain a handgun.
As during the plea colloquy defendant failed to admit to all of the elements of the subject crime or acknowledge facts constituting the essential elements of the crime, there is an inadequate factual basis to his plea. Accordingly, the plea, the judgment of conviction, and the sentence are vacated. The dismissed charges are reinstated, and defendant shall be allowed to re-plead or proceed to trial. Campfield, supra, 213 N.J. at 237 (citing Barboza, supra, 115 N.J. at 420).
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION