State v. Edwin Urbina (073209)

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. Edwin Urbina (A-49-13) (073209)
Argued November 12, 2014 – Decided June 16, 2015
FERNANDEZ-VINA, J., writing for a majority of the Court.
In this appeal, the Court considers whether, in pleading guilty to the crime of aggravated manslaughter,
defendant’s assertion of facts implying that he acted in self-defense rendered the factual basis for his plea
inadequate.
On the morning of November 24, 2007, Camden police officers arrived at the scene of a shooting where
they found the body of Edwin A. Torres on the sidewalk. Torres had suffered multiple gunshot wounds to the head
and neck. An eyewitness identified defendant, who was a juvenile, as the shooter. Three days later, defendant
surrendered, and, subsequently, he voluntarily elected to have his case transferred from the Family Part to the Law
Division. In order to avoid an indictment for first-degree murder, defendant entered into a negotiated plea
agreement. He agreed to proceed as an adult and plead guilty to one count of aggravated manslaughter in exchange
for the State’s recommendation of a sentence not to exceed seventeen-and-one-half years’ incarceration, subject to
an eighty-five percent parole disqualifier and five years of post-release parole supervision.
At the plea hearing, defendant confirmed that he had sufficient time to speak with his family and counsel.
In establishing a factual basis, he stated that he was walking away from Torres when he turned and saw Torres and
his cousin “pulling out their firearms.” Defendant then reached for his, which he claimed “just went off.”
Defendant asserted: “I ain’t meant to kill him, your Honor. I just wanted to have him back up.” Defense counsel
then explained that they had initially contemplated a self-defense affirmative defense. However, counsel noted that
no handgun was found on Torres, meaning that asserting a self-defense argument would require counsel to contend
that someone disposed of it. In light of the six bullet wounds in Torres and the absence of a weapon at the scene,
defense counsel determined that a self-defense argument was not viable. Defendant confirmed that he understood
and agreed with his counsel’s assessment. The prosecutor asked that the plea paperwork be amended to show a
waiver of self-defense. Defendant agreed and confirmed that, by pleading guilty, he was waiving any self-defense
argument. Subsequently, he was sentenced in accordance with his plea.
Nearly three years after his sentencing, defendant appealed, arguing that the trial court erred in accepting
his guilty plea because the factual basis elicited for the plea indicated that he was asserting a complete defense to the
charge. In a split decision, the Appellate Division affirmed defendant’s conviction and sentence. The majority held
that, although defendant testified to facts that raised the possibility of self-defense, when considered in light of the
surrounding circumstances, his testimony did not constitute a contemporaneous claim of innocence requiring
vacation of the plea. Rather, finding that defendant’s testimony “was merely suggestive of the possibility of
invoking self-defense,” the majority determined that the trial court sufficiently explored whether defendant was
raising a potential self-defense claim or was waiving it. It concluded that defendant intelligently, knowingly, and
voluntarily waived self-defense.
The dissent disagreed, noting that self-defense is a complete defense, equivalent to an assertion of
innocence. It further noted that when evidence is presented raising a claim of self-defense, the State bears the
burden of disproving the claim beyond a reasonable doubt, which the dissent believed did not occur here. Moreover,
the dissent believed that the trial court did not sufficiently explain to defendant the nature of the defense and the
significance of his waiver. Thus, the dissent concluded that defendant’s conviction should be reversed. Defendant
appealed to this Court as of right based on the dissent in the Appellate Division. R. 2:2-1(a)(2).
HELD: The trial court’s failure to make further inquiry into defendant’s apparent assertion of self-defense,
including ensuring that defendant truly understood the law of self-defense and that the State bears the burden of
disproving self-defense once asserted, renders it unclear whether defendant’s plea was truly knowing, intelligent,
and voluntary and requires vacation of his plea of guilty to aggravated manslaughter.
1. Self-defense is an affirmative defense to a charge of aggravated manslaughter. Pursuant to N.J.S.A. 2C:3-4(a),
the use of deadly force against another is justifiable as self-defense “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.” A defendant claiming self-defense must have an actual, honest, and reasonable
belief in the necessity of using force. In New Jersey, a guilty plea does not operate as a waiver of all affirmative
defenses, including self-defense. This is consistent with the requirement that the trial court elicit a comprehensive
factual basis prior to accepting a plea, which allows the court to ascertain the plea’s voluntariness while
simultaneously protecting a defendant from pleading guilty to a crime he or she did not commit. (pp. 18-23)
2. Challenges to the sufficiency of the factual basis for a plea are generally brought either by way of a motion to
withdraw the plea or on post-conviction relief, but may also be brought on direct appeal. A reviewing court owes no
deference to the trial court when assessing whether the factual admissions during a plea colloquy satisfy the
elements of an offense. Review of the law is plenary. (pp. 23-24)
3. The Court notes that if a suggestion of self-defense is raised in a plea colloquy, then the trial court must inquire
whether the defendant is factually asserting that defense. If he is not, the plea can be accepted. If, on the other
hand, he claims that he used deadly force against the victim in the reasonable belief that his life was in danger, then
he is asserting that he did not commit the crime. Before allowing a defendant to waive a claim of self-defense, the
trial court must conduct a thorough and searching inquiry into the defendant’s understanding of the nature of the
right being waived and the consequences of that choice. The court must, on the record, ensure that the waiver is
knowing and voluntary, requiring both the court and defense counsel to ensure that the defendant has an
understanding of self-defense in relation to the facts of the case and that he or she knows that the State bears the
burden of disproving the defense if asserted. (pp. 24-26)
4. Here, the trial court’s colloquy on aggravated manslaughter would have been appropriate if not for its failure to
make further inquiry into defendant’s apparent assertion of self-defense. The Court also is not satisfied that
defendant’s waiver of self-defense comported with the requisite standard. Specifically, the trial court did not ensure
that defendant truly understood the law of self-defense, including the requirement of a reasonable and honest belief
in the necessity of using force, or that he understood that the State bore the burden of disproving self-defense once
asserted. Absent such an inquiry, it is unclear whether defendant’s guilty plea was truly knowing, intelligent, and
voluntary, thereby rendering the factual basis insufficient and requiring vacation of the plea. (pp. 26-27)
The judgment of the Appellate Division is REVERSED, defendant’s guilty plea is VACATED, and this
matter is REMANDED for further proceedings.
JUSTICE SOLOMON, DISSENTING, joined by JUSTICES LaVECCHIA and PATTERSON,
expresses the view that defendant knowingly, intelligently, and E voluntarily waived his right to raise a self-defense
claim, explaining that defendant’s fleeting suggestion that he acted in self-defense was a product of his natural
reluctance to admit to criminally culpable conduct and that any uncertainty about his admission of guilt was
sufficiently resolved by the trial court’s questioning and defendant’s own admissions.
CHIEF JUSTICE RABNER, JUSTICE ALBIN and JUDGE CUFF (temporarily assigned) join in
JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE SOLOMON filed a separate dissenting opinion, in
which JUSTICES LaVECCHIA and PATTERSON join.
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SUPREME COURT OF NEW JERSEY
A-49 September Term 2013
073209
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWIN URBINA,
Defendant-Appellant.
Argued November 12, 2014 – Decided June 16, 2015
On appeal from the Superior Court, Appellate
Division.
Robin Kay Lord argued the cause for
appellant (Law Office of Robin Kay Lord,
attorney; Ms. Lord and Richard W. Berg, of
counsel and on the brief).
Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for respondent
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
This case involves an appeal from defendant Edwin Urbina’s
conviction and sentence for first-degree aggravated
manslaughter, contrary to N.J.S.A. 2C:11-4(a)(1), following his
entry of a guilty plea for the shooting death of Edwin A.
Torres. Defendant asserts that the trial court erred in
accepting his guilty plea because the “factual basis elicited
for [that] guilty plea indicated that [defendant] was asserting
1
a complete defense to the charge.” That factual basis was later
challenged on appeal, along with defendant’s seventeen-and-one-
half year sentence.
In a split decision, a majority of the Appellate Division
panel affirmed defendant’s conviction and sentence. The
majority held that while defendant testified to facts during the
plea colloquy that raised the possibility of self-defense, his
testimony, when considered in light of all the surrounding
circumstances, did not constitute a contemporaneous claim of
innocence requiring the court to vacate the plea. Rather, the
majority found that defendant, during his plea colloquy,
explicitly agreed to waive self-defense after consultation with
counsel and his family. The majority additionally noted that
defendant signed an amended plea form waiving such defense. One
member of the appellate panel dissented, concluding that
defendant’s plea was accompanied by a claim of innocence, and
further found that the trial judge failed to engage in a
sufficient colloquy with defendant to confirm that his self-
defense waiver was knowing and voluntary.
Defendant appealed as of right to this Court. See R. 2:2-
1(a)(2). We are now asked to consider whether, in pleading
guilty to the crime of aggravated manslaughter, defendant’s
assertion of facts implying that he acted in self-defense
rendered the factual basis for that plea inadequate. For the
2
reasons set forth in this opinion, we reverse the judgment of
the Appellate Division.
I.
On the morning of November 24, 2007, emergency dispatchers
received a report of an injured man in Camden City. Upon
arrival at the specified location, Camden police officers found
the victim, Edwin A. Torres, deceased on the sidewalk with
multiple gunshot wounds to the head and neck. An eyewitness to
the incident identified defendant, Edwin Urbina, as the shooter.
The witness had known defendant since childhood. Defendant,
sixteen years old at the time of the shooting, was thereafter
charged with an offense that, if committed by an adult, would
constitute murder contrary to N.J.S.A. 2C:11-3(a)(1), (2).
Three days later, on November 27, 2007, defendant,
accompanied by counsel, surrendered at the Camden Police
Department, and was thereafter remanded to a youth correctional
facility.
On March 27, 2008, defendant voluntarily elected to have
his case transferred from the Family Part to the Law Division,
pursuant to N.J.S.A. 2A:4A-27.
On that same date, in order to avoid an indictment for
first-degree murder carrying a potential life sentence with a
mandatory parole disqualifier of thirty years, defendant entered
into a negotiated plea agreement with the State. Under the
3
terms of that plea arrangement, defendant agreed to proceed as
an adult and to plead guilty to one count of first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), in exchange for
the State’s recommendation of a sentence not to exceed
seventeen-and-one-half years’ incarceration subject to an
eighty-five percent parole disqualifier and five years of post-
release parole supervision under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. As a further part of the agreement,
defendant agreed to pay the requisite fines and penalties and to
waive his right to appeal. Defense counsel expressly reserved
the right to argue for a sentence less than the sentence the
State agreed to recommend in accordance with State v. Warren,
115 N.J. 433 (1989).
At the plea hearing, defendant testified under oath that he
had sufficient time to speak with his family and counsel before
deciding to plead guilty. Thereafter, counsel for defendant
represented to the court that he explained to defendant that “by
waiving the Grand Jury he would not be indicted for murder” and
that defendant would instead proceed “on a less serious charge.”
Defendant acknowledged his understanding and voluntary agreement
to waive indictment. To establish the factual basis for
defendant’s plea, the following colloquy took place, which we
set out at length because of its importance:
4
[DEFENSE COUNSEL]: Edwin, on November 24th you
were in the City of Camden, correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: You came into contact at
that time with Edwin Torres. Do you recall
that?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And, Edwin, actually there
was another young man with him, is that
correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And at the time, you and
Edwin Torres, would it be fair to say, got into
an argument?
THE DEFENDANT: Yes.
[DEFENSE COUNEL]: At some point during that
argument did you produce a handgun and fire
that at Edwin? Did you shoot the handgun?
THE DEFENDANT: First he smacked me. When I
was walking off, I looked behind me. He said
I know you and I turn your back behind me. I
looked behind me. Him and his cousin was
pulling out their firearms. I went for mines.
It was an automatic, so then the gun just went
off. When it went off it dropped. When it
dropped I picked it up and I just ran.
I ain’t mean to kill him, your Honor. I just
wanted to have him back up.
THE COURT: You discharged a firearm in his
direction, right?
THE DEFENDANT: I shot, like, away from, but
it hit and the gun took my hand.
THE COURT: Well, you didn’t shoot it in the
air and it went in the air and accidentally
5
came down and hit him in the top of the head,
right?
THE DEFENDANT: No.
THE COURT: You pointed it in his direction,
right?
THE DEFENDANT: Yes.
THE COURT: You discharged it multiple times,
right?
THE DEFENDANT: Yes.
THE COURT: You pulled it six times. It wasn’t
an automatic, right?
THE DEFENDANT: Yes -- no, it was an automatic.
THE COURT: You pulled the trigger once and six
bullets came out?
THE DEFENDANT: Yes.
THE COURT: That’s right?
THE DEFENDANT: Yes.
THE COURT: You knew the pistol was an
automatic?
THE DEFENDANT: No.
THE COURT: But you still shot in his direction
six times, correct?
THE DEFENDANT: Yes.
THE COURT: And you struck him six times?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Your Honor, for the record,
I also have discovery. The post-mortem
indicates six bullet wounds to the victim, so
I would just state that also.
6
As far as –- and I don’t disagree at all with
Edwin’s recitation of the facts. However, as
far as the disposition in this matter, in
preparation of this matter, there was no
handgun found on the victim at the time the
police responded. We would have had to argue
that someone disposed of it in order to proffer
a viable self-defense argument and I took all
that into account when we decided on that and,
therefore, although it certainly was
contemplated a possible self-defense, based on
the lack of a weapon found at the scene and the
six bullet wounds, it’s my professional opinion
that that would not have been a particularly
viable defense.
THE COURT: You understand what your lawyer
just said?
THE DEFENDANT: Yes.
THE COURT: And you agree with that assessment?
THE DEFENDANT: Yes.
[PROSECUTOR]: If I may, Judge, there is an
eyewitness and the eyewitness account does not
include the victim having a handgun.
The facts as the State understood them are
different from the defense version.
We ask that the plea paperwork be amended to
show a waiver of self-defense as part of the
plea.1
THE COURT: You understand what [the
prosecutor] said?
THE DEFENDANT: Yes.
THE COURT: You agree with that as well?
1 The plea form, initialed and signed by the defendant, included
this requested waiver of self-defense as well as the waiver of
defendant’s right to appeal.
7
THE DEFENDANT: Yeah.
THE COURT: You reviewed everything with your
lawyer and you reached this conclusion that
this was the best thing to do under the
circumstances, right?
THE DEFENDANT: Yes.
THE COURT: There’s no doubt that you, in fact,
discharged a firearm in the direction of Mr.
Torres and caused his death, correct?
THE DEFENDANT: Yes.
THE COURT: All right. And you do know that,
again, by pleading guilty today, you’ve waived
any potential utilization of self-defense,
correct?
THE DEFENDANT: Yes.
THE COURT: You also understand when you
weighed everything out that, as [defense
counsel] said and as I alluded to, had the
matter gone to the Grand Jury you could have
been, in fact, indicted for a first degree
murder carrying a life sentence, 85 percent
without parole, which is essentially 62-and-a-
half years without parole?
You understand that?
THE DEFENDANT: Yes.
THE COURT: So, you weighed all that when you
reached this decision with your family’s
assistance and [defense counsel’s] assistance,
correct?
THE DEFENDANT: Yes.
8
The court thereafter found that defendant provided an
adequate factual basis for aggravated manslaughter, and accepted
the plea.
On May 16, 2008, defendant appeared for sentencing. At the
sentencing hearing, the prosecutor briefly set forth the State’s
version of events, as developed during the course of the
investigation into the victim’s murder:
[PROSECUTOR]: There was an eyewitness to this
matter of November 24, 2007, at 10:32 A.M.,
Third and Erie, in the City of Camden, where
Edwin Torres was murdered, he was 22 years old.
And we had an eyewitness to this murder. In
fact, the eyewitness stated the victim and the
defendant engaged in conversation, the
defendant pulled a gun, the defendant shot the
victim. When the victim, Edwin Torres, went
to the ground, the defendant stood over top of
him, the victim, and at point blank range,
repeatedly fired shots into the victim while
he was down.
In essence, Judge, this was an execution. The
victim was executed on the streets of Camden
at 10:32 A.M. in broad daylight.
Even more troubling is the fact that the
juvenile simply walked -- turned away and
calmly walked down the street as if nothing
ever happened.
The investigation revealed between 6 and 10
bullets were fired from one weapon, one firer
[sic]. Unfortunately, the victim was hit
multiple times. Shot in the leg, torso, neck
and face. And he was pronounced dead soon
thereafter.
9
Defense counsel then represented to the Court that he
agreed with the version of events set forth by the State:
[DEFENSE COUNSEL]: The facts which the State
just voiced to the Court were contained in
numerous reports which I read and, indeed, is
reflective of what [defendant] voiced to your
Honor when he pled guilty . . . to this
charge[.]
Defendant confirmed that he did not have any additions or
corrections to the presentence report and acknowledged that he
was sorry for the crime and apologized to the Torres family.
Thereafter, the following exchange occurred between the court
and defendant:
THE COURT: I mean, it’s somewhat distressing
when you did what you did as if you were killing
a bug of some kind where you don’t even think
about it, you step on the ant and you end its
life and not give it a second thought.
That’s what seemed to happen here . . . .
THE DEFENDANT: I had a witness. Ain’t happen
like that. I ain’t stand over him and shot him
two times in the face.
THE COURT: Well, let me ask you this. How many
times did that weapon discharge in his
direction?
THE DEFENDANT: Ten times.
THE COURT: How many?
THE DEFENDANT: Ten.
THE COURT: I mean, what do you think happens
when you shoot at somebody ten times? You
think they are going to live? You think there
is a likelihood of survival in that situation?
10
THE DEFENDANT: No.
After finding two aggravating factors –- N.J.S.A. 2C:44-
1(a)(3) (risk of re-offense) and N.J.S.A. 2C:44-1(a)(9) (need
for deterrence) –- and no mitigating factors, the court, in
accordance with the plea agreement, sentenced defendant to a
prison term of seventeen-and-one-half years with an eighty-five
percent parole ineligibility period subject to NERA, with
appropriate fines and penalties.
On April 11, 2011, nearly three years after his sentencing,
defendant filed a pro se petition for post-conviction relief
alleging ineffective assistance of counsel. After retaining
private counsel, defendant moved to withdraw his petition in
favor of pursuing an untimely direct appeal. The trial court
granted defendant’s motion without prejudice. The Appellate
Division thereafter granted defendant’s motion to file a Notice
of Appeal as within time.
On direct appeal, defendant argued that the trial court
erred in accepting his guilty plea because the “factual basis
elicited for defendant’s guilty plea indicated that he was
asserting a complete defense to the charge.” Defendant also
argued that his sentence was manifestly excessive.
In a split decision, the Appellate Division majority
affirmed defendant’s conviction and sentence. At the outset,
11
the majority noted that defendant never moved to withdraw his
plea, and thus the panel was only asked to consider defendant’s
challenge to the factual basis for his plea. On that issue, the
majority held that while defendant testified to facts during the
plea colloquy that raised the possibility of self-defense, his
testimony, when considered in light of all the surrounding
circumstances, did not constitute a contemporaneous claim of
innocence requiring the court to vacate the plea.
Explaining its rationale for this conclusion, the majority
began by noting that defendant testified as follows: (1) he
fired multiple shots from a handgun in the direction of the
victim, and struck the victim six times; (2) the victim died as
a consequence of the gunshot wounds; and (3) he did not intend
to kill the victim, but “just wanted to have him back up.”
According to the majority, this testimony provided a sufficient
factual basis to support a plea to aggravated manslaughter under
N.J.S.A. 2C:11-4(a)(1).
Moreover, the majority determined that defendant’s
statement that he saw the victim and another person “pulling out
their firearms,” prompting defendant to pull his own weapon and
fire at the victim “to have him back up,” did not constitute an
assertion of innocence. To the contrary, the majority concluded
that defendant’s statement “was merely suggestive of the
possibility of invoking self-defense.” Noting that such a
12
statement required exploration into whether defendant was
raising a potential self-defense claim or was waiving the
defense, the majority found that the trial court sufficiently
probed defendant about his statement and plea in accordance with
State v. Munroe, 210 N.J. 429, 445 (2012) (instructing trial
courts to fully explore factual basis for plea to ascertain
whether defendant “has a potentially valid defense and whether
he is willing to waive it and enter a guilty plea”).
Considering the totality of the record before it, the
majority concluded that defendant intelligently, knowingly, and
voluntarily waived self-defense. Specifically, the majority
noted, defendant acknowledged discussing the case with counsel
and his family and having sufficient time to consider entering a
plea. Moreover, the majority noted that the issue of self-
defense was explored on the record before the judge, and
defendant acknowledged that he agreed to waive the defense and
concurred with the judgment of his counsel that the defense may
not have succeeded. Finally, defendant stated that after
weighing all the facts and the charges then pending against him,
he wanted to waive self-defense and accept the plea offer.
In response to the dissent’s argument that defendant
asserted a claim of self-defense, and consequently a claim of
innocence, the majority noted that defendant never stated that
“the victim threatened his life or even tried to point the
13
weapon at him,” nor did he assert that “he had to fire [the
weapon] to prevent his own death or serious injury.” Therefore,
under the circumstances presented, defendant’s plea statement
did not negate an essential element of his aggravated
manslaughter charge, and did not, in the majority’s opinion,
amount to a contemporaneous claim of innocence.
The majority found defendant’s sentence, imposed pursuant
to the plea bargain, was not manifestly excessive or unduly
punitive.
The dissent concluded that defendant’s conviction should be
reversed because the defendant asserted a claim of self-defense,
and consequently a claim of innocence. The dissent posited that
accepting defendant’s plea despite his assertion that he was
defending himself runs afoul of this Court’s disapproval of
Alford pleas, wherein a defendant pleads guilty but
simultaneously maintains his or her innocence. See North
Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970).
The dissenting judge first noted that self-defense is a
complete defense -- equivalent to an assertion of innocence.
The dissent added that when evidence is presented raising a
claim of self-defense, the State bears the burden of disproving
that claim beyond a reasonable doubt. The dissent stated that
waiver of self-defense should not be permitted because it
14
constitutes waiver of an essential, but missing element of the
offense at issue, and thus results in a guilty plea despite a
claim of innocence.
The dissenting judge further stated that when a court
accepts a guilty plea on a waiver of self-defense, then under
Alford, supra, “we should demand a ‘strong factual basis’” for
rejecting the self-defense claim and accepting the plea. The
dissent stated that “the State’s showing [here] fell short”
because it failed to offer any cognizable evidence, let alone a
“strong factual basis,” disproving defendant’s claim of self-
defense. Moreover, whether defendant’s waiver was knowing and
voluntary was a “significant question,” because “[t]here was an
insufficient effort [by the court] to explain to defendant on
the record the nature of the defense and the significance of his
waiver.” In light of these perceived errors and deficiencies,
the dissent concluded that it was necessary to reverse
defendant’s conviction.
Defendant appeals to this Court as of right based on the
dissent in the Appellate Division. See R. 2:2-1(a)(2).
II.
Defendant maintains that the trial court erred in accepting
his guilty plea because the factual basis elicited for that plea
indicated that he was asserting a complete defense to the charge
of aggravated manslaughter. Defendant argues that accepting a
15
guilty plea despite a claim of self-defense runs afoul of this
Court’s disapproval of Alford pleas. Therefore, according to
defendant, a plea generally should not be accepted unless there
is a retraction or disavowal of a “complete defense, like self-
defense, which is an assertion of innocence.”
Defendant additionally argues that the trial court failed
to sufficiently engage defendant both to determine whether there
existed an adequate factual basis for his guilty plea and to
confirm that he understood the law of self-defense well enough
to make a truly voluntary and knowing decision to waive that
defense. Defendant notes that he was only sixteen years old,
with a limited education, and no experience with the adult
criminal justice system when he entered his guilty plea.
Defendant asserts that the trial court did not give him
appropriate advice regarding his rights.
In contrast, the State contends that defendant’s guilty
plea was supported by an adequate factual basis. Noting that a
challenge to the sufficiency of the factual basis for a plea is
generally premised upon a failure of a defendant to admit to all
of the elements of a crime, the State argues that it is beyond
dispute that defendant’s own admissions established all of the
elements of aggravated manslaughter. According to the State,
defendant’s testimony that the victim pulled out a gun first did
not negate his guilty plea, and did not constitute a
16
contemporaneous claim of innocence requiring that his plea be
vacated. Rather, the State maintains that these statements were
nothing more than an unsupported, self-serving attempt by
defendant to downplay his criminal culpability.
The State also insists that when confronted with
defendant’s testimony regarding this alleged act of the victim,
the trial court appropriately explored the issue to ensure that
defendant’s plea was knowing and voluntary, and that it was
based on facts sufficient to support the charge of aggravated
manslaughter. Addressing the claim that the trial court failed
to adequately explain to defendant on the record the nature of
self-defense and the significance of his waiver, the State
argues that requiring a more detailed colloquy would place an
improper burden on the trial judge to become a second defense
attorney in advising a defendant with respect to his decision to
enter a guilty plea. Specifically, the State argues that the
dissent “would require the trial judge to explore the merits of
a potential self-defense claim on the record with a defendant.”
Moreover, to the extent defendant now claims he is actually
innocent because he has a valid defense, the State argues that
defendant should have moved below to withdraw his guilty plea on
that basis, noting that all of the Slater2 factors weigh heavily
2 State v. Slater, 198 N.J. 145, 157-58 (2009) (prescribing four
factors that should be weighed in evaluating motion to withdraw
17
against granting such a motion at this late stage. For support,
the State cites to and distinguishes this Court’s recent
application of the Slater factors in Munroe, supra, arguing that
unlike in Munroe, defendant here specifically acknowledged that
he was not asserting a self-defense claim and that the State’s
proofs contradicted his claim.
The State concludes by asserting that under the paradigm
created by the dissent, any defendant who admits guilt at a plea
hearing while throwing some blame at his victim can successfully
repudiate his plea at any time –- a result that would undermine
the judicial system’s compelling interest in finality and the
plea bargaining system as a whole.
III.
A.
The essential elements of aggravated manslaughter are found
in N.J.S.A. 2C:11-4(a)(1). Under this statute, “[c]riminal
homicide constitutes aggravated manslaughter when . . . [t]he
actor recklessly causes death under circumstances manifesting
extreme indifference to human life.” A defendant acts
“recklessly” when he
guilty plea: “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 would result in unfair prejudice to the
State or unfair advantage to the accused”).
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consciously disregards a substantial and
unjustifiable risk that the material element
exists or will result from his conduct. The
risk must be of such a nature and degree that,
considering the nature and purpose of the
actor’s conduct and the circumstances known to
him, its disregard involves a gross deviation
from the standard of conduct that a reasonable
person would observe in the actor’s situation.
[N.J.S.A. 2C:2–2(b)(3).]
B.
Self-defense, one of several forms of justification
recognized by our Code of Criminal Justice, is an affirmative
defense to a charge of aggravated manslaughter. N.J.S.A. 2C:3-
1(a). Under the Code, the use of deadly force against another
is justifiable as self-defense “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).
While it is not imperative that actual necessity exist, a
defendant claiming self-defense must have an actual belief in
the necessity of using force, and must also establish that the
belief was honest and reasonable. See State v. Perry, 124 N.J.
128, 161 (1991) (quoting State v. Kelly, 97 N.J. 178, 198–99
(1984)). However, for a defendant to prevail on a claim of
self-defense,
19
the jury need not find beyond a reasonable
doubt that the defendant’s belief was honest
and reasonable. Rather, if any evidence
raising the issue of self-defense is adduced,
either in the State’s or the defendant’s case,
then the jury must be instructed that the
State is required to prove beyond a reasonable
doubt that the self-defense claim does not
accord with the facts; acquittal is required
if there remains a reasonable doubt whether
the defendant acted in self-defense.
[Kelly, supra, 97 N.J. at 200.]
At trial, therefore, “[o]nce the issue of self-defense has
been raised, the burden to disprove the issue shifts to the
State.” Perry, supra, 124 N.J. at 194.
”Self-defense exonerates a person who kills in the
reasonable belief that such action was necessary to prevent his
or her death or serious injury . . . .” Kelly, supra, 97 N.J.
at 198.
C.
A defendant who enters a plea of guilty “simultaneously
waives several constitutional rights, including his privilege
against compulsory self-incrimination, his right to trial by
jury, and his right to confront his accusers.” McCarthy v.
United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1170–71, 22 L.
Ed. 2d 418, 425 (1969). While in some jurisdictions a guilty
plea operates as a waiver of all affirmative defenses, see,
e.g., People v. Bonwit, 219 Cal. Rptr. 297, 299 (Ct. App. 1985)
(“A guilty plea is more than an admission of guilt; it is also a
20
waiver of affirmative defenses”), our courts have been hesitant
to go to such extremes.
This is in line with our Rules of Court, which instruct
courts not to accept a plea of guilty
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.
[R. 3:9-2 (emphasis added).]
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. Campfield, 213 N.J.
218, 236 (2013). The “court must be ‘satisfied from the lips of
the defendant,’” State v. Smullen, 118 N.J. 408, 415 (1990)
(quoting State v. Barboza, 115 N.J. 415, 422 (1989)), that he
committed every element of the crime charged, State v. Sainz,
107 N.J. 283, 293 (1987).
The purpose of this factual foundation is multi-faceted.
First, the factual basis enables a judge to “ascertain the
plea’s voluntariness.” McCarthy, supra, 394 U.S. at 466, 89 S.
Ct. at 1170–71, 22 L. Ed. 2d at 425. “Because a guilty plea is
an admission of all the elements of a formal criminal charge, it
21
cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts.” Ibid.
Indeed, Rule 3:9-2 specifies that the court must determine that
the “plea is made voluntarily . . . with an understanding of the
nature of the charge.” It is therefore the duty of the plea
judge to ensure that a defendant pleading guilty “has a full
understanding of what the plea connotes and of its consequence,”
and to thereby “leave[] a record adequate for any review that
may be later sought.” Boykin v. Alabama, 395 U.S. 238, 244, 89
S. Ct. 1709, 1712, 23 L. Ed. 2d 274, 280 (1969).
Second, 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.” Barboza, supra, 115 N.J. at 421 (internal
quotation marks omitted). In fact, in New Jersey, “[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.” Smullen, supra, 118 N.J. at 415. This is in stark
contrast to the federal standard, which allows an individual
accused of a crime to “voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence
even if he is unwilling or unable to admit his participation in
the acts constituting the crime,” so long as there is a “strong
22
factual basis for the plea,” Alford, supra, 400 U.S. at 37–38,
91 S. Ct. at 167–68, 27 L. Ed. 2d at 171–72. Our rationale for
departure from the federal rule is clear:
We are mindful that our system of justice
is not perfect and that, at times, an accused,
without the knowledge of the court, may enter
a plea of guilty to a crime he did not commit
to insulate himself from a potentially greater
sentence if found guilty by a jury. That is
something over which we have no control. It
is another thing, however, for a court to say
it is acceptable for a defendant to give a
perjured plea. Our court rules and case law
require a factual basis for a plea of guilty,
that is, a truthful account of what actually
occurred to justify the acceptance of a plea.
That approach in the long-run is the best
means of ensuring that innocent people are not
punished for crimes they did not commit. It
is an approach that is essential to the very
integrity of our criminal justice system.
Just because we are powerless to control
or eliminate every negative practice in our
criminal justice system does not mean that we
must condone those practices. Though we
recognize that sometimes an accused, unknown
to the trial judge, will perjure himself to
put through a plea agreement, a court cannot
give official license to such a practice.
[State v. Taccetta, 200 N.J. 183, 198
(2009).]
D.
Challenges to the sufficiency of the factual basis for a
guilty plea are most commonly brought by way of a motion to the
trial court to withdraw that plea, see, e.g., Slater, supra, 198
23
N.J. at 157, or on post-conviction relief, see, e.g., State v.
D.D.M., 140 N.J. 83, 95 (1995).
Although less common, a defendant may also challenge the
sufficiency of the factual basis for his guilty plea on direct
appeal. See State v. Butler, 89 N.J. 220, 224 (1982). “The
standard of review of a trial court’s denial of a motion to
vacate a plea for lack of an adequate factual basis is de novo.”
State v. Tate, 220 N.J. 393, 404 (2015); see also Campfield,
supra, 213 N.J. 230-32 (analyzing whether factual basis existed
without discussing Slater factors). We therefore owe no
deference to the trial court that took this plea. “An appellate
court is in the same position as the trial court in assessing
whether the factual admissions during a plea colloquy satisfy
the elements of an offense.” Tate, supra, 220 N.J. at 404.
Review of the law is plenary. Ibid.
IV.
With the applicable legal principles in mind, we now
examine whether, in pleading guilty to the crime of aggravated
manslaughter, defendant’s assertion of facts implying that he
acted in self-defense rendered the factual basis for that plea
inadequate.
We begin by first noting that if a suggestion of self-
defense is raised in the plea colloquy, then the trial court
must inquire whether the defendant is factually asserting self-
24
defense. If the defendant states that he is not claiming self-
defense, then the plea can be accepted. On the other hand, if
the defendant claims that he used deadly force against the
victim in the reasonable belief that his life was in danger,
then the defendant is asserting that he did not commit the
crime.
So long as 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.” State
v. Handy3, 215 N.J. 334, 362 (2013); see also McCarthy, supra,
394 U.S. at 466, 89 S. Ct. at 1171, 22 L. Ed. 2d at 425 (noting
waiver cannot be deemed knowing, intelligent, and voluntary
“unless the defendant possesses an understanding of the law in
relation to the facts”). To this end, it is the responsibility
of the plea judge to ensure that the waiver is knowing and
voluntary, and to do so on the record. See Boykin, supra, 395
U.S. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280. Presuming
waiver from a silent record is impermissible. Accordingly,
during the plea colloquy, both the plea judge and defense
3 In cases such as this, State v. Slater, 198 N.J. 145 (2009) is
not applicable.
25
counsel should ensure that the defendant has an understanding of
self-defense in relation to the facts of his case, and should
inform the defendant that the State has the burden to disprove
the defense if asserted.
Here, the trial court’s colloquy on aggravated manslaughter
would have been appropriate if not for the failure to make
further inquiry into the apparent assertion of self-defense.
Furthermore, we are not satisfied that defendant’s waiver of
self-defense comported with the standard that we require.
After defendant stated during the plea colloquy that he
pulled his handgun after the victim and his cousin pulled their
guns, and that “I ain’t mean to kill him, your Honor. I just
wanted to have him back up[,]” the trial court should have
explored whether defendant was claiming he acted in self-
defense. However, the plea judge did not ensure that defendant
truly understood the law of self-defense, including the
requirement of a reasonable and honest belief in the necessity
of using force, see Perry, supra, 124 N.J. at 161, or that he
understood that the State had the burden to disprove self-
defense once asserted, id. at 194. Absent such an inquiry on
the record, it is unclear whether defendant’s plea was truly
knowing, intelligent, and voluntary. See McCarthy, supra, 394
U.S. at 466, 89 S. Ct. at 1171, 22 L. Ed. 2d at 425; State v.
Cecil, 260 N.J. Super. 475, 488 (1992). As such, we cannot
26
rightly conclude that a strong factual basis existed to support
defendant’s guilty plea.
Because we find that the factual basis was insufficient, we
are constrained to vacate defendant’s plea of guilty to
aggravated manslaughter.
V.
For these reasons, we reverse the judgment of the Appellate
Division and vacate defendant’s guilty plea to aggravated
manslaughter. Defendant is returned to the position where he
stood before he entered his guilty plea, and this matter is
hereby remanded for further proceedings.
CHIEF JUSTICE RABNER, JUSTICE ALBIN and JUDGE CUFF
(temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
JUSTICE SOLOMON filed a separate dissenting opinion, in which
JUSTICES LaVECCHIA and PATTERSON join.
27
SUPREME COURT OF NEW JERSEY
A-49 September Term 2013
073209
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWIN URBINA,
Defendant-Appellant.
JUSTICE SOLOMON, dissenting.
Defendant admitted under oath that he caused the death of
the victim, who was standing in close proximity just before
defendant fired a gun in the victim’s direction, shooting him
six times. The majority acknowledges that these admissions were
sufficient to support defendant’s conviction for aggravated
manslaughter, N.J.S.A. 2C:11-4(a)(1). However, the majority
believes that defendant did not knowingly, intelligently, and
voluntarily waive the affirmative defense of self-defense.
Because, in my view, defendant’s express waivers were adequate
to relinquish his self-defense claim, I respectfully dissent.1
1 Nearly three years after his sentencing, defendant filed a
timely pro se petition for post-conviction relief (PCR). After
he obtained private counsel, defendant moved to withdraw his PCR
application and pursued leave to file an untimely direct appeal,
which the Appellate Division granted.
1
I.
At the plea hearing, defendant stated that he had a verbal
disagreement with the victim, and that, as defendant was
“walking off,” he looked back and saw the victim and his cousin
“pulling out their firearms.” Because this statement suggested
defendant was making a claim of self-defense, the plea judge
directed further inquiry to determine whether defendant’s plea
was factually supported and whether he actually intended to
assert or waive self-defense.
I agree with the majority that defendants are permitted to
waive self-defense pursuant to a plea. See ante at ___ (slip
op. at 25. The reasons for this are two-fold. First, as this
Court recognized in State v. Perry, 124 N.J. 128, 163 (1991), a
self-defense claim may severely limit trial strategy because a
self-defense theory carries with it the tacit admission that the
defendant was indeed at the scene of the crime. Second, our
Court has already established that a defendant may waive an
affirmative defense so long as that waiver is “knowing,
voluntary, and intelligent.” See State v. Handy, 215 N.J. 334,
362 (2013) (dealing specifically with insanity defense). These
two principles, taken together, suggest that a criminal
defendant should be permitted to waive self-defense where waiver
offers a strategic benefit to the defendant -- including
entering into a plea agreement -- provided the waiver is
2
knowing, voluntary, and intelligent. As stated by the majority,
“[s]o long as the defendant does not factually contend that he
acted in self-defense a defendant may waive a claim of self-
defense.” Ante at ___ (slip op. at 25).
Here, defendant did not factually contend that he acted in
self-defense. Furthermore, after defendant intimated that his
actions were justified, defense counsel stated that, because
“there was no handgun found on the victim at the time the police
responded,” it was his “professional opinion that [self-defense]
would not have been a particularly viable defense.” Defendant
agreed with his counsel’s assessment.
Additionally, the prosecutor stated that an “eyewitness
account” indicated that the victim was unarmed at the time of
the shooting. Defendant not only agreed with that statement,
but also acquiesced to the prosecutor’s request to amend the
plea agreement to include a waiver of self-defense, which
defendant later signed.
Defendant also assented when, near the end of the plea
colloquy, the judge asked if defendant “reached this decision
with your family’s and [defense counsel’s] assistance.”
Moreover, the court specifically asked defendant if he
understood that, “by pleading guilty today, you’ve waived any
potential utilization of self-defense,” to which defendant
answered “Yes.”
3
Any uncertainty about defendant’s admission of guilt was
resolved by the trial court’s questioning and the admissions of
defendant who unequivocally and emphatically adopted the
statements of his counsel. See Handy, supra, 215 N.J. at 348,
362 (finding defendant was entitled to waive affirmative defense
after he informed court of that desire); see also State v.
Gregory, 220 N.J. 413, 420 (2015) (holding plea courts are
entitled to consider direct admissions and statements adopted by
defendant).
II.
Nevertheless, the majority, relying on Handy, supra, 215
N.J. at 362, concluded that “the plea judge did not ensure that
defendant truly understood the law of self-defense, including
the requirement of a reasonable and honest belief in the
necessity of using force, or that the State had the burden to
disprove self-defense once asserted.” Ante at ___ (slip op at
26) (citations omitted).
In Handy, this Court was confronted with the issue of
whether a defendant was competent to waive an insanity defense
and proceed on a claim of self-defense. Id. at 337-39. Defense
counsel in that case disregarded the defendant’s repeated
attempts to assert self-defense, instead relying on “the strong
possibility that [the defendant] might be found not guilty by
reason of insanity.” Id. at 357. In a bifurcated proceeding,
4
the defendant was found not guilty by reason of insanity, and
thus was deprived of an opportunity to present his self-defense
claim. Id. at 338. This Court, addressing the tension between
the trial court’s finding that defendant was not competent to
waive the insanity defense and defendant’s preference to assert
only the substantive claim of self-defense, determined that “the
solution is to apply a procedure akin to that which we utilize
in evaluating a competent defendant’s effort to waive other
significant rights.” Id. at 362.
In that context, this Court held that “a thorough and
searching inquiry” should be conducted before determining
whether “the decision to waive the insanity defense,
particularly in the context of a unified trial proceeding, is
indeed knowing, voluntary and intelligent.” Ibid. By contrast,
competency, which understandably requires a more thorough and
searching analysis, was not at issue here. Rather, the plea
court was faced only with a vague assertion of facts which
ultimately demonstrated that self-defense was not a viable
claim.
The second case cited by the majority is State v. Munroe,
210 N.J. 429 (2012). In that case, the defendant pled guilty,
then later sought to withdraw his guilty plea by asserting that
he had acted in self-defense. Id. at 434. Analyzing the
defendant’s claim under the framework established in State v.
5
Slater, 198 N.J. 145, 157-58 (2009), this Court determined that
the defendant presented a colorable claim of innocence. Munroe,
supra, 210 N.J. at 434, 445.2 Importantly, we found “[n]othing
in the [the defendant’s] plea colloquy [that] contradicted [his]
later assertion that he was acting in self-defense.” Ibid.
That is not the case here, where defendant agreed with his
counsel’s assertion that because no gun was found on the victim
and the State had an eyewitness who stated that the victim was
unarmed at the time of the shooting, self-defense was a non-
viable claim. Defendant also expressly disclaimed self-defense
both in the plea colloquy and on the amended plea form.
III.
The majority also fails to account for considerations first
acknowledged by this Court in State v. Smullen, 118 N.J. 408,
415 (1990), namely, a defendant’s reasonable impulse to avoid
directly admitting criminal conduct. In Smullen, this Court
accepted that criminal defendants are often reluctant to
recognize “the distasteful reality that makes the charged
conduct criminal” during their plea hearing. Ibid. Thus,
2 Noting the majority’s consideration of Munroe, I question why
the majority vacates defendant’s guilty plea rather than remand
this matter to the trial court for an analysis of “(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
would result in unfair prejudice to the State or unfair
advantage to the accused.” Slater, supra, 198 N.J. at 150.
6
defendants providing a factual basis often exhibit a “natural
reluctance to elaborate on the details.” State ex rel. T.M.,
166 N.J. 319, 334 (2001).
This “natural reluctance” on the part of defendants has
informed our approach to plea colloquies. For example, plea
courts are permitted to elicit from defendants through leading
questions admissions “necessary to ensure an adequate factual
basis for the guilty plea.” State v. Campfield, 213 N.J. 218,
231 (2013). Furthermore, plea courts may draw rational
inferences from the defendant’s admissions. Id. at 236-37.
IV.
This record reveals that defendant agreed that no gun was
found on the victim at the scene, an eyewitness to the crime
stated the victim was unarmed, his claim of self-defense was
“not viable,” and he was waiving any claim of self-defense by
pleading guilty. Based on those facts, I conclude that
defendant’s fleeting suggestion that he acted in self-defense
was a product of his natural reluctance to admit to criminally
culpable conduct, not a legitimate assertion of a self-defense
claim. T.M., supra, 166 N.J. at 334; Smullen, supra, 118 N.J.
at 415. Thus, in my view, defendant knowingly, intelligently,
and voluntarily waived his right to raise a self-defense claim
and proffered a sufficient factual basis to support his guilty
plea.
7
Therefore I would affirm the Appellate Division’s judgment
without prejudice to defendant’s right to refile a PCR petition.
8
SUPREME COURT OF NEW JERSEY
NO. A-49 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWIN URBINA,
Defendant-Appellant.
DECIDED June 16, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Solomon
REVERSE/
CHECKLIST VACATE/ DISSENT
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 4 3