State v. John Tate (072754)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. John Tate (A-46-13) (072754)
Argued November 10, 2014 -- Decided February 2, 2015
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court determines whether, under Rule 3:9-2, defendant John Tate provided an adequate
factual basis supporting his plea of guilty to fourth-degree child abuse.
In 2004, defendant was charged with first-degree aggravated sexual assault, second-degree endangering the
welfare of a child, and third-degree aggravated criminal sexual contact for acts he allegedly committed between
September and November 1999, while serving as a foster parent to a thirteen-year-old boy. In June 2009, the State
offered defendant a plea deal that expired the same day. In exchange for pleading guilty to the downgraded charge
of fourth-degree child abuse, N.J.S.A. 9:6-1(d) and 9:6-3, the State agreed to dismiss the remaining charges and
recommend a sentence of time served.
During the plea hearing, when eliciting the factual basis in support of defendant’s guilty plea, defense
counsel asked, “[D]id you curse in [the child’s] presence to and in a way that would debauch his morals?”
Following defendant’s affirmative response, the prosecutor asked, “[Y]ou used off-color language in his presence?”
Defendant again responded affirmatively and confirmed that he wanted the court to accept his plea. The court did
so, finding that defendant provided an adequate factual basis for the charge and entered a knowing and voluntary
plea.
In August 2010, defendant moved to withdraw his guilty plea on the ground that it was not supported by an
adequate factual basis. The court denied the motion, following the template set forth in State v. Slater, 198 N.J. 145(2009), which addresses the circumstances under which a guilty plea may be withdrawn even when supported by an
adequate factual basis. The court explained that defendant had admitted that he cursed and used foul language in the
child’s presence. It sentenced defendant to time served and dismissed the remaining charges.
On appeal, the Appellate Division affirmed. It acknowledged that, although N.J.S.A. 9:6-1(d) requires that
use of the “profane” language be “habitual,” defendant did not specify the frequency with which he used off-color
language. However, the panel determined that habitual use was implied by defendant’s unequivocal assertion that
he committed child abuse by using language that tended to debauch a child’s morals. The panel also implicitly
concluded that the use of curse words or off-color language satisfied the statutory requirement of using “profane,
indecent or obscene language.” The Court granted defendant’s petition for certification. 216 N.J. 367 (2013).
HELD: The factual basis provided by defendant during the plea colloquy was inadequate to support the guilty plea
because it did not satisfy the elements of N.J.S.A. 9:6-1(d).
1. The standard of review of a trial court’s denial of a motion to vacate a guilty plea for lack of an adequate factual
basis is de novo. This standard is different from the Slater analysis used when a court denies a motion to withdraw a
plea that is supported by an adequate factual basis but where the defendant later asserts his innocence. Where, as
here, the issue is solely whether an adequate factual basis supports a guilty plea, a Slater analysis is unnecessary.
Here, the Court also must construe the meaning of the statutes governing child abuse, as well as Rule 3:9-2. These
interpretations are de novo. (pp. 11-13)
2. In accordance with Rule 3:9-2, prior to accepting a guilty plea, a judge must be satisfied that the defendant has
given a factual account that makes him guilty of the crime. In other words, a court, in its discretion, shall not accept
a guilty plea unless inquiry of the defendant and others establishes a factual basis for the plea. The factual basis
must include either an admission or the acknowledgment of facts that meet every essential element of the crime,
1
regardless of how heinous the offense may be. In those limited circumstances where a particular element of an
offense may address a fact that is beyond a defendant’s knowledge, such as the distance an unlawful narcotics
transaction occurred from a school, the prosecutor should make an appropriate representation on the record at the
time of the hearing, so that the defendant can acknowledge or dispute it. (pp. 13-16)
3. The Court rejects the State’s contention that a court may look to evidence beyond the words spoken at the plea
colloquy to establish a factual basis. The case on which the State relies for this proposition, State v. Mitchell, 126
N.J. 565 (1992), is distinguishable from the case here. Notably, Mitchell did not involve a motion to vacate a plea
before or shortly after sentencing. Rather, the defendant there challenged the factual basis of his plea over six years
after his sentencing in an untimely post-conviction relief proceeding. Although the Mitchell Court stated that an
assessment of a plea’s factual adequacy may include consideration of surrounding circumstances, this merely served
to inform the Court’s decision that no fundamental injustice warranted relaxation of the post-conviction relief time
limitations. In contrast, where a timely motion or appeal is made to vacate a plea, surrounding circumstances cannot
substitute for the failure to elicit an adequate factual basis directly from a defendant. (pp. 16-18)
4. In this case, a factual basis to the guilty plea of child abuse must satisfy the following essential elements, as
found in N.J.S.A. 9:6-3 and 9:6-1(d): (1) defendant had custody or control of the thirteen-year old child, a minor;
(2) he used profane, indecent, or obscene language in the presence of the minor; and (3) he did so on a habitual
basis. That defendant had custody or control of the child is undisputed. Turning to the remaining elements, the
language in N.J.S.A. 9:6-1(d) is unchanged from the original 1915 legislation and does not define “profane, indecent
or obscene” language or the word “habitual.” Thus, the Court ascribes the words their ordinary meaning, looking to
the general dictionary definitions of each. The words profane, indecent, and obscene are not susceptible to neat and
fixed definitions, and, while the definitions have remained remarkably similar since the enactment of the 1915
legislation, the social taboos regarding the usage of certain words are not the same today. Moreover, curse words
and off-color language may fall both in and out of the range of the definitions of profane, indecent, and obscene
language. (pp. 18-21)
5. As to whether defendant admitted to or acknowledged uttering profane, indecent, or obscene language in the
presence of a minor on a habitual basis, the Court reiterates that these words are susceptible to various
interpretations and that reasonable people may have different understandings of their meanings. Here, defendant
was never asked precisely what words he used and only generally asserted that he cursed and used off-color
language in the child’s presence. Curse words and off-color language are often synonymous with profane, indecent,
or obscene language, but not always. Without eliciting the actual words and language uttered by defendant, the
court could not make an independent determination as to whether the purportedly offending language constituted
child abuse. Moreover, even if the Court accepts that use of curse words or off-color language equates with profane,
indecent, or obscene language, the plea colloquy failed to elicit whether defendant engaged in the habitual use of
such language, a fact which cannot be inferred from the child’s three-month cohabitation with defendant. (pp. 22-
23)
6. Since the factual basis of defendant’s plea does not comport with the requirements of New Jersey’s court rules or
jurisprudence, the Court need not reach the constitutional issue raised on appeal: Whether N.J.S.A. 9:6-1(d) is so
broadly and vaguely worded that it treads on free-speech, due-process, or parental rights. Because the factual basis
does not satisfy the elements of N.J.S.A. 9:6-1(d), the Court vacates defendant’s plea of guilty to child abuse, and
returns defendant to the position where he stood before he entered his plea. (pp. 23-25)
The judgment of the Appellate Division is REVERSED, defendant’s guilty plea is VACATED and his
indictment is REINSTATED, and the matter is REMANDED to the trial court for proceedings consistent with this
opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-46 September Term 2013
072754
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN TATE,
Defendant-Appellant.
Argued November 10, 2014 – Decided February 2, 2015
On certification to the Superior Court,
Appellate Division.
Michael J. Pastacaldi, Designated Counsel,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney).
John K. McNamara, Jr., Assistant
Prosecutor/Special Deputy Attorney General,
argued the cause for respondent (Fredric M.
Knapp, Morris County Prosecutor, attorney;
John K. McNamara and Erin Smith Wisloff,
Assistant Prosecutor/Special Deputy Attorney
General, on the briefs).
CJ Griffin argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey Foundation (Pashman Stein, attorneys;
C.J. Griffin, Edward L. Barocas, Jeanne M.
LoCicero, and Alexander R. Shalom, of
counsel and on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
Rule 3:9-2 and our jurisprudence do not permit a court to
accept a guilty plea unless the defendant provides a factual
1
basis establishing that he is guilty of the offense. Our
longstanding commitment to this approach, above all, is intended
to preserve the integrity of the criminal justice process and to
safeguard against convicting a potentially innocent person.
Accordingly, a court must reject a guilty plea if a defendant
protests his innocence or does not admit to or acknowledge facts
that evidence his guilt.
Defendant John Tate pled guilty to the fourth-degree
offense of abuse of his foster child, N.J.S.A. 9:6-3, by
engaging in “the habitual use . . . in the hearing of [the]
child, of profane, indecent or obscene language,” N.J.S.A. 9:6-
1(d).1 The trial court accepted the guilty plea based solely on
defendant’s admission that he “curse[d]” in the child’s presence
“in a way that would debauch his morals” and that he used “off-
color” language.
The trial court denied defendant’s motion to vacate his
guilty plea based on an inadequate factual basis, and the
Appellate Division affirmed.
We now reverse. During the brief plea colloquy, defendant
was not asked to repeat the offending language or the frequency
with which he used the language. The court did not assess
whether defendant’s conception of a curse word or off-color
1 Sub-part (d) refers to one of several descriptions of child
abuse in N.J.S.A. 9:6-1.
2
language was equivalent to the statutory language prohibited by
N.J.S.A. 9:6-1(d). In short, the court could not -- based on
the plea colloquy -- determine that defendant admitted to
committing the crime of child abuse. Our conclusion that the
factual basis was inadequate to support the guilty plea does not
require that we reach the constitutional questions that have
been raised: whether the statute treads on free-speech rights
and whether the statute is so hopelessly vague that a reasonable
person would not have notice of the conduct that is proscribed.
Defendant’s guilty plea is vacated, his indictment is
reinstated, and this matter is remanded to the trial court for
further proceedings.
I.
A.
Defendant was charged in a 2004 Morris County indictment
with first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2a(2)(c); second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4a; and third-degree aggravated criminal sexual
contact, N.J.S.A. 2C:14-3a. Defendant allegedly committed those
criminal acts between September and November 1999, when he
served as a foster parent to thirteen-year-old R.G., who had
been placed in defendant’s home. The long and tortuous
procedural history of this case is not germane to this appeal.
Suffice it to say that defendant filed multiple motions and
3
cycled through a number of attorneys from the time of the
indictment in 2004 to the plea proceedings in June 2009.
On June 4, 2009, the State tendered to defendant a plea
offer that expired that same day. The State and defendant
entered into an agreement, which provided that defendant would
plead guilty to the downgraded charge of fourth-degree child
abuse. See N.J.S.A. 9:6-1(d); N.J.S.A. 9:6-3.2 In return for
the guilty plea, the State agreed to dismiss the remaining
charges in the indictment and recommend a sentence of time
served. The State also agreed that no fine would be imposed.
That day, in court and on the record, defense counsel
explained the terms of the plea agreement to defendant.
Defendant stated that he understood and assented to the
agreement. For the purpose of eliciting a factual basis to
support the guilty plea to child abuse, the court turned to
defense counsel to examine his client:
[Defense counsel]: Between the dates of
September 1st, 1999 and November 30th, 1999,
did you reside in the Township of Randolph in
this County and this State?
[Defendant]: Yes, I did.
[Defense counsel]: Did you become a foster
father to a person known as R.G.?
[Defendant]: Yes, I did.
2 The State amended the indictment’s second-degree child-
endangerment charge to the child-abuse charge.
4
[Defense counsel]: That person known to you
was born on February 10th, 1986 and in the
time stated was less than the age of 16. Is
that correct, sir?
[Defendant]: That’s correct.
[Defense counsel]: Did you at that time while
having the duty as a parent for -- for this
child, did you curse in his presence to and in
a way that would debauch his morals?
[Defendant]: Yes.
At this point, the prosecutor interjected with the following
question:
[Prosecutor]: You -- you used off-color
language in his presence?
[Defendant]: Yes.
The prosecutor then stated that “the factual allocution is
satisfactory to the State.” Defense counsel asked defendant:
“Do you wish the Court to accept your plea of guilty to this
matter?” Defendant responded, “Yes.”
The court next questioned defendant: “Do you feel you’ve
had enough time to think about your decision to enter this
plea?” Defendant replied, “I would have liked more time, but I
understand the circumstances” -- an apparent reference to the
fact that the plea offer was only available that day. After
some additional questioning, the court expressed its
satisfaction that (1) defendant had “given an appropriate
factual basis for the amended charge” of child abuse and (2)
5
defendant had entered the guilty plea knowingly and voluntarily.3
B.
Fourteen months later, defendant still had not been
sentenced. On August 27, 2010, defendant filed a motion to
withdraw his guilty plea on the ground that the plea was not
supported by an adequate factual basis. He also sought to
withdraw his guilty plea for reasons not pertinent to our
resolution of this appeal. On October 25, 2010, the trial court
conducted a hearing on the plea-withdrawal motion. In denying
that motion, the court followed the template set forth in State
v. Slater, 198 N.J. 145 (2009), which addresses whether a
defendant may withdraw a guilty plea even when it is supported
by an adequate factual basis.
With respect to the crimes charged in the indictment, the
court observed that defendant “sat in jail for a number of
years” and “maintained his innocence,” rejecting “favorable plea
offers to time served.” Indeed, defendant had been incarcerated
for more than three years before he was released on bail on May
20, 2008. According to the court, defendant only accepted
“responsibility” when he was “offered an opportunity to provide
a factual basis” to cursing in R.G.’s presence. The court found
3 The day after the plea proceeding, defendant gave the following
written statement to the probation department on a form entitled
“Defendant’s Version of Instant Offense”: “I used foul
language, (swore) in front of my son.”
6
that defendant provided a factual basis for child abuse because
he admitted that he was a foster parent in charge of a minor and
that “he did curse [and] use foul language” in the child’s
presence. The court determined that none of defendant’s
arguments justified a withdrawal of his plea.
The sentencing followed. In his allocution, defendant told
the court: “I felt, in the interest of justice, it would be the
right thing to do to accept the plea, but accepting the plea
would be understanding that the plea is valid, not invalid . . .
.” Before imposing sentence, the court repeated that defendant
had admitted “that he did use foul language or curse” in the
presence of his foster child. In accordance with the plea
agreement, the court sentenced defendant to the time he had
served in the Morris County Correctional Facility -- 1231 days
in all.4 The court assessed the requisite financial penalties
mandated by statute, but imposed no monetary fine. The
remaining charges in the indictment were dismissed.
Defendant appealed.
C.
In an unpublished opinion, the Appellate Division affirmed
the trial court’s denial of defendant’s motion to withdraw his
4 The jail time credit of 1231 days exceeded the maximum
eighteen-month sentence that could have been imposed for the
fourth-degree crime of child abuse. See N.J.S.A. 2C:43-6(a)(4).
7
guilty plea. In particular, the appellate panel determined
that, “in the context of the circumstances of the plea colloquy,
defendant provided a factual basis for his guilty plea.” The
panel acknowledged that the “profane” language proscribed by
N.J.S.A. 9:6-1(d) “must be ‘habitual’ and defendant only
admitted to using off-color language without specifying the
frequency.” Nevertheless, the panel held that “defendant was
unequivocal in stating that he committed the child [abuse]
offense by engaging in language that tended to debauch a child’s
morals, hardly a result that comes from one profane word.” The
panel did not address -- but apparently assumed -- that the use
of curse words or off-color language satisfied the requirement
of using “profane, indecent or obscene language” under N.J.S.A.
9:6-1(d). Last, the court rejected defendant’s alternative
arguments in support of his withdrawal motion.
D.
We granted defendant’s petition for certification. State
v. Tate, 216 N.J. 367 (2013). We also granted the motion of the
American Civil Liberties Union of New Jersey (ACLU) to
participate as amicus curiae.
II.
Defendant urges the Court to vacate the guilty plea to
child abuse because he did not provide a factual basis that
8
established a violation of N.J.S.A. 9:6-1(d) and N.J.S.A. 9:6-3.5
Defendant argues that his admission to using “off-color” words
does not equate to using “profane, indecent or obscene language”
-- the language proscribed under the statute. Moreover, even
assuming that off-color or curse words are equivalent to
“profane, indecent or obscene language,” defendant contends that
he never admitted to using such language “habitual[ly]” --
another essential requirement for a violation of N.J.S.A. 9:6-
1(d) and N.J.S.A. 9:6-3. Additionally, in this appeal, for the
first time, defendant raises a challenge to the
constitutionality of those statutes.
The ACLU submits that N.J.S.A. 9:6-1(d) and N.J.S.A. 9:6-3,
which criminalize the use of non-obscene profanity, are
unconstitutionally overbroad and vague and trench on free-speech
rights protected by the United States and New Jersey
Constitutions. The ACLU notes that defendant “was penalized for
the mere use of ‘curse words’ and ‘off-color language,’” which
do not necessarily “fall in the constitutionally unprotected
category of obscenity.” The ACLU opines that, under the
statutes, a parent could commit a crime for “merely cursing at
5 Defendant has advanced several arguments in support of his
motion to withdraw his guilty plea to child abuse. Because we
only address whether that plea should have been vacated for lack
of an adequate factual basis, we do not present defendant’s
other arguments.
9
the television every week during a football game.” The ACLU
also agrees with defendant that the plea colloquy failed to set
forth a factual basis for a violation of the child-abuse
statutes.
In contrast, the State argues that defendant’s admission to
cursing in a way that would debauch the morals of a child and to
using off-color language satisfies the statutory proscription
against the habitual use of profane, indecent, or obscene
language in the presence of a minor. The State infers the
habitual use of such language in R.G.’s presence because
defendant admitted that R.G. resided in his home for a three-
month period and because defendant “in no way limited his
factual admission . . . to a specific instance of conduct.” The
State also posits that, in deciding whether to vacate a plea for
an inadequate factual basis, a court may “consider evidence that
was available to the prosecutor and defendant through discovery”
when the plea was entered. From this premise, the State reasons
that defendant’s admission to the use of curse words and off-
color language may be considered along with “the affidavit of
arrest,” which purportedly “details how the victim told police
that the defendant had sexually explicit conversations with
him.”
Last, the State asks this Court to disregard the
constitutional challenges to N.J.S.A. 9:6-1(d) and N.J.S.A. 9:6-
10
3, which are raised here for the first time. The State contends
that defendant did not attack the constitutionality of those
statutes in the trial court or Appellate Division and that
amicus cannot raise arguments not advanced by the parties.
Alternatively, the State maintains that the statutes are not
facially vague or overbroad and pass constitutional muster as
applied to the facts of this case.
III.
A.
The standard of review of a trial court’s denial of a
motion to vacate a guilty plea for lack of an adequate factual
basis is de novo. Manalapan Realty, L.P. v. Twp. Comm., 140
N.J. 366, 378 (1995) (“A trial court’s interpretation of the law
and the legal consequences that flow from established facts are
not entitled to any special deference.”). An 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. When reviewing the adequacy of the
factual basis to a guilty plea, the trial court is not making a
determination based on witness credibility or the feel of the
case, circumstances that typically call for deference to the
trial court. See State v. Barboza, 115 N.J. 415, 422 (1989)
(“The discretion of the trial court in assessing a plea is
limited to assuring that the criteria for a valid plea of guilty
11
have been met.”). In short, if a factual basis has not been
given to support a guilty plea, the analysis ends and the plea
must be vacated.
Significantly, the standard of review here is different
from a court’s denial of a motion to withdraw a guilty plea
where the plea is supported by an adequate factual basis but the
defendant later asserts his innocence. In that circumstance,
the trial court’s decision is judged by the four-prong test set
forth in Slater, supra: “(1) whether the defendant has asserted
a colorable claim of innocence; (2) the nature and strength of
defendant’s reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal [will] result in unfair
prejudice to the State or unfair advantage to the accused.” 198
N.J. at 157-58. In a Slater scenario, the appellate standard of
review is abuse of discretion. State v. Lipa, 219 N.J. 323, 332
(2014). That is so because the trial court is making
qualitative assessments about the nature of a defendant’s
reasons for moving to withdraw his plea and the strength of his
case and because the court is sometimes making credibility
determinations about witness testimony.
To be clear, when the issue is solely whether an adequate
factual basis supports a guilty plea, a Slater analysis is
unnecessary. See State v. Campfield, 213 N.J. 218, 230-32, 235-
37 (2013) (analyzing whether factual basis existed without
12
discussing Slater factors); see also State ex rel. T.M., 166
N.J. 319, 325-27, 332-37 (2001) (concluding there was inadequate
factual basis for defendant’s guilty plea without discussing
factors for plea withdrawal). This is a point that may not have
been fully understood by the parties.
Here, we must also construe the meaning of the statutes
governing child abuse and Rule 3:9-2. Our interpretation of a
statute and a court rule is de novo as well. Willingboro Mall,
Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253 (2013)
(“In construing the meaning of a court rule or a statute, our
review is de novo, and therefore we owe no deference to the
trial court’s or Appellate Division’s legal conclusions.”).
B.
We next discuss our court rule and case law requiring that
a defendant provide a factual basis to support a guilty plea.
Under our jurisprudence, a person cannot be punished for
violating a criminal statute unless he has been convicted at
trial or he has admitted his guilt through the entry of a plea.
At a trial, the factfinder must be satisfied that the proofs
establish guilt; at a plea hearing, a judge must be satisfied
that the defendant has given a factual account that makes him
guilty of the crime. R. 3:9-2. Like a trial, a plea hearing is
intended to “ensur[e] that innocent people are not punished for
crimes they did not commit.” See State v. Taccetta, 200 N.J.
13183, 198 (2009).
Rule 3:9-2, in part, provides that a court shall not accept
a guilty 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 and that the
plea is made voluntarily, not as a result of
any threats or of any promises or inducements
not disclosed on the record, and with an
understanding of the nature of the charge and
the consequences of the plea.
[(Emphasis added).]
The principal purpose of the factual-basis requirement of
Rule 3:9-2 is 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.” Barboza, supra, 115 N.J. at 421(internal quotation marks omitted). Rule 3:9-2 serves as a
fail-safe mechanism that filters out those defendants whose
factual accounts do not equate to a declaration of guilt. Thus,
before accepting a guilty plea, “the trial court must be
‘satisfied from the lips of the defendant that he committed the
acts which constitute the crime.’” State v. Smullen, 118 N.J.
408, 415 (1990) (quoting Barboza, supra, 115 N.J. at 422)
(restated in Slater, supra, 198 N.J. at 155). A factual basis
for a plea must include either an admission or the
14
acknowledgment of facts that meet “‘the essential elements of
the crime.’” T.M., supra, 166 N.J. at 333 (quoting State v.
Sainz, 107 N.J. 283, 293 (1987)); see also Campfield, supra, 213
N.J. at 232 (“The trial court’s task is to ensure that the
defendant has articulated a factual basis for each element of
the offense to which he pleads guilty.”).6
T.M. is illustrative of this point. There, the defendant
pled guilty to fourth-degree criminal sexual contact under
N.J.S.A. 2C:14-3b. T.M., supra, 166 N.J. at 322. Although the
defendant acknowledged that he had touched and kissed the
private areas of a child, id. at 323, we held that the factual
basis was inadequate because he did not acknowledge that he
committed those acts with “‘the purpose of degrading or
humiliating the victim or sexually arousing or sexually
gratifying [himself],’” id. at 333 (quoting N.J.S.A. 2C:14-1d).
That state-of-mind requirement is an essential element of
criminal sexual contact. Id. at 333-34. T.M. reminds us that a
factual basis must be given for every element of even the most
heinous of crimes. See id. at 333.
6 We recognize that, in certain limited circumstances, a
particular element of an offense may address a fact that is
beyond a defendant’s knowledge. For example, a defendant may
not know whether an unlawful transaction occurred within 1000
feet of a school. To satisfy such an element, the prosecutor
should make an appropriate representation on the record at the
time of the hearing, so that the defendant can acknowledge or
dispute it.
15
In the end, a court must “reject a guilty plea absent the
defendant’s admission of ‘the distasteful reality that makes the
charged conduct criminal.’” Campfield, supra, 213 N.J. at 231
(quoting T.M., supra, 166 N.J. at 334-35).
C.
The State argues that a court may look to evidence beyond
the words spoken at the plea colloquy -- such as the affidavit
of arrest -- to establish a factual basis. As support for that
proposition, the State cites to State v. Mitchell, 126 N.J. 565,
581-82 (1992). We reject that argument and do not rely on
Mitchell here for two reasons. First, Mitchell did not involve
a motion to vacate a plea before or shortly after sentencing.
Id. at 572. Rather, in Mitchell, the defendant challenged the
factual basis of a plea for the first time on post-conviction
relief six-and-one-half years after his sentencing. Id. at 572,
574. The Court determined that the defendant’s post-conviction
relief petition in Mitchell was both time-barred and
procedurally barred. Id. at 572. The Court wrote in Mitchell
“that this case does not present the type of exceptional
circumstances that would justify [the] relaxation” of our rules
governing post-conviction relief. Ibid. Despite resolving the
issue on procedural grounds, the Court upheld the factual basis
of the guilty plea. Id. at 572, 581.
Mitchell stated that an assessment of the factual adequacy
16
of a guilty plea may include such “surrounding circumstances” as
“the proceedings of [a] co-defendant’s trial” and a defendant’s
“presentence report.” Id. at 581-82. Generally speaking, the
manner in which Mitchell used “surrounding circumstances” finds
no support in our jurisprudence, not even in the cases Mitchell
cited -- Barboza and Sainz. While it is true that Barboza and
Sainz state that a court may look to “all surrounding
circumstances” to determine whether a factual basis was given,
they do not indicate that a court may look to sources that go
beyond the actual facts, spoken or acknowledged, at the plea
colloquy. Barboza, supra, 115 N.J. at 422; Sainz, supra, 107
N.J. at 293. Indeed, Sainz, which first used the “surrounding
circumstances” language, cited as authority State v. Heitzman,
209 N.J. Super. 617, 620-21 (App. Div. 1986), aff’d, 107 N.J.
603 (1987), a case that looked only to the plea colloquy in
upholding the factual basis of a guilty plea. Importantly, both
Barboza and Sainz reaffirmed 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. Barboza, supra, 115 N.J. at 422 (stating that “the
trial court must be satisfied from the lips of the defendant
that he committed the acts which constitute the crime” (internal
quotation marks omitted)); Sainz, supra, 107 N.J. at 293 (“The
factual basis for a guilty plea must obviously include
17
defendant’s admission of guilt of the crime or the
acknowledgement of facts constituting the essential elements of
the crime.”).
In Mitchell, the “surrounding circumstances” to the plea
informed the Court’s decision that no fundamental injustice
warranted a relaxation of the post-conviction relief time
limitations; however, surrounding circumstances cannot
substitute for the failure to elicit an adequate factual basis
from a defendant, where a timely motion or appeal is made to
vacate a plea. For those reasons, we do not follow Mitchell
here.
IV.
We now turn to the substantive law applicable to this case.
The essential elements of child abuse are found in two
statutes. N.J.S.A. 9:6-3 states that “[a]ny parent, guardian or
person having the care, custody or control of any child” who
abuses that child commits a fourth-degree crime. Child abuse is
defined in various ways under N.J.S.A. 9:6-1, but only one form
of such abuse is relevant in this case. N.J.S.A. 9:6-1(d)
provides that child abuse consists of “the habitual use . . . in
the hearing of [a] child, of profane, indecent or obscene
language.” In this case, a factual basis to the guilty plea of
child abuse had to satisfy these elements: (1) defendant had
custody or control of thirteen-year-old R.G., a minor; (2) he
18
used profane, indecent, or obscene language in the presence of
R.G.; and (3) he did so on a habitual basis.
That defendant, as a foster parent, had custody or control
of R.G. for three months is not in dispute. The question is
whether defendant’s factual basis met the remaining elements.
The current language in N.J.S.A. 9:6-1(d) is unchanged from
the original legislation enacted in 1915. L. 1915, c. 246, § 1.
The statutory scheme does not define “profane, indecent or
obscene” language or the word “habitual.” In the absence of a
legislative definition, we generally “ascribe[] to the words
used ‘their ordinary meaning and significance.’” Murray v.
Plainfield Rescue Squad, 210 N.J. 581, 592 (2012) (quoting
DiProspero v. Penn, 183 N.J. 477, 492 (2005)); see also N.J.S.A.
1:1-1 (stating that customarily “words and phrases” in statute
are to “be given their generally accepted meaning, according to
the approved usage of the language”). The general dictionary
definitions of those words have remained remarkably similar
since the enactment of the 1915 legislation. That is not to say
that the social taboos regarding the usage of certain words in
1915 are the same as those of the present day.
The words profane and indecent, and even obscene, are not
susceptible to neat and fixed definitions. Profane is defined
variously as “serving to debase or defile that which is holy or
worthy of reverence”; “characterized by abusive language
19
directed [especially] against the name of God”; “indulging in
cursing or vituperation”; and “marked by insulting or perverted
utterance.” Webster’s Third New Int’l Dictionary 1810 (3d ed.
1981); see also The Century Dictionary 4754 (1913) (defining
profane as “[i]rreverent toward God or holy things; speaking or
spoken, acting or acted, in manifest or implied contempt of
sacred things; blasphemous” and “[t]o put to a wrong use; employ
basely or unworthily”).
Indecent is defined variously as “altogether unbecoming”;
“contrary to what the nature of things or what circumstances
would dictate as right or expected or appropriate”; “not
conforming to generally accepted standards of morality”;
“tending toward or being in fact something generally viewed as
morally indelicate or improper or offensive”; and “being or
tending to be obscene.” Webster’s Third New Int’l Dictionary,
supra, at 1147; see also The Century Dictionary, supra, at 3052
(defining “indecent” in 1913 as “[u]nbecoming; unseemly;
violating propriety in language, behavior, etc.”; and “[g]rossly
vulgar; offensive to modesty; obscene; lewd”).
Obscene is defined variously as “grossly repugnant to the
generally accepted notions of what is appropriate”; “abhorrent
to morality or virtue”; “inciting or designed to incite to lust,
depravity, indecency”; and “marked by violation of accepted
language inhibitions and by the use of words regarded as taboo
20
in polite usage.” Webster’s Third New Int’l Dictionary, supra,
at 1557; see also The Century Dictionary, supra, at 4062
(defining “obscene” in 1913 as “[o]ffensive to the senses;
repulsive; disgusting; foul; filthy”; and “[o]ffensive to
modesty and decency; impure; unchaste; indecent; lewd”).
Curse words and off-color language may fall both in and out
of the range of the definitions of profane, indecent, and
obscene language. Among the definitions of “curse” is “any
utterance marked by malediction or execration”; “to rail at
typically impiously and profanely”; “blaspheme”; “to swear at”;
and to “invoke divine vengeance or anger against -- sometimes
used with out.” Webster’s Third New Int’l Dictionary, supra, at
558; see also Webster’s Unabridged Dictionary of the English
Language 492 (2001) (defining “curse word” as “profane or
obscene word, [especially] as used in anger or for emphasis”;
and “any term conceived of as offensive”).
“Off-color” is defined as “being of doubtful propriety”;
“not socially acceptable”; “dubious”; and “risqué.” Webster’s
Third New Int’l Dictionary, supra, at 1566.
In light of the definitions of those words, we must
determine whether defendant in his plea colloquy admitted to
using profane, indecent, or obscene language in violation of
N.J.S.A. 9:6-1(d).
V.
21
With the applicable legal principles in mind, we now
examine whether the factual basis elicited from defendant to
support his guilty plea satisfied the elements of child abuse.
That is, did defendant admit to or acknowledge uttering profane,
indecent, or obscene language in the presence of R.G. on a
habitual basis? As we discussed, the words profane, indecent,
and obscene are susceptible to various interpretations -- and
reasonable people may have different understandings of the
meaning of those words. Here, defendant was never asked
precisely what words he uttered that fit the statutory language.
Defendant merely answered, “Yes,” to the question, “did you
curse in [R.G.’s] presence to and in a way that would debauch
his morals?” and, “Yes,” to the question, “you used off-color
language in his presence?”
Curse words and off-color language many times will be
synonymous with profane, indecent, or obscene language, but not
always. Therefore, it is not possible to determine whether
defendant’s use of a curse word or off-color language is the
equivalent of the language proscribed by the child-abuse
statutes. Conceptions of what constitutes a curse word -- even
ones that would debauch the morals of a minor -- and off-color
language may differ among reasonable people. What is profane or
indecent may depend on social norms that are fluid.
The flaw in the plea colloquy was the failure to elicit the
22
actual words and language uttered by defendant in the presence
of R.G. Only then would the court have been in a position to
make an independent determination whether the purportedly
offending language constituted child abuse.
Moreover, even if we accept that the use of curse words or
off-color language is the equivalent of “profane, indecent or
obscene language,” N.J.S.A. 9:6-1(d), the plea colloquy did not
elicit whether defendant engaged in the “habitual use” of such
language. The “habitual use” of the statutorily proscribed
language is an element of child abuse. Ibid. Defendant’s
factual account does not satisfy that element. We cannot infer
from defendant’s admission that because R.G. lived with him for
three months, defendant therefore must have habitually cursed in
the minor’s presence.
Eliciting an adequate factual basis should not be a complex
or difficult undertaking if a defendant is willing and able to
give a truthful account of the conduct that violates a statute.
We are aware of the long procedural history of this case, and
that the State attributes delays to defendant and that defendant
complains about the one-day-only plea offer. But the sole
matter of consequence that we address is whether the factual
basis given during the plea colloquy conforms to our court rules
and jurisprudence.
We need not decide whether N.J.S.A. 9:6-1(d) is so broadly
23
and vaguely worded that it treads on constitutionally protected
free-speech or due-process rights, or the right of a parent to
raise a child without undue interference by the State.7 Here,
the factual basis does not comport with the requirements of our
court rules or jurisprudence and, therefore, we choose not to
reach the constitutional issue raised for the first time on
appeal before us. Randolph Town Ctr., L.P. v. Cnty. of Morris,
186 N.J. 78, 80 (2006) (“Courts should not reach a
constitutional question unless its resolution is imperative to
the disposition of litigation.”).
Because we conclude that the factual basis does not satisfy
the elements of N.J.S.A. 9:6-1(d), we are constrained to vacate
defendant’s plea of guilty to child abuse.
VI.
For the reasons explained, we reverse the judgment of the
Appellate Division and vacate defendant’s guilty plea to child
abuse. Defendant is returned to the position where he stood
before he entered his guilty plea. His indictment, therefore,
is reinstated and this matter is remanded for further
7 Amicus ACLU cites to the New Jersey Law Revision Commission,
which recommends the deletion of N.J.S.A. 9:6-1(d). See N.J.
Law Revision Comm’n, Final Report Relating to Title 9-Child
Abuse and Neglect 2, 5, 49 (2014). However, the Law Revision
Commission proposal is not pertinent to our analysis. It is not
our role to pass on the wisdom of current or proposed
legislation. In re P.L. 2001, Chapter 362, 186 N.J. 368, 391
(2006).
24
proceedings.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily
assigned) join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
NO. A-46 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN TATE,
Defendant-Appellant.
DECIDED February 2, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
VACATE/
CHECKLIST
REINSTATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7
1