Judge Rose concluded with the following in relevant part: Having invalidated the offending plea provision, we turn to the appropriate remedy. Citing State v. Hess (2011), the Attorney General essentially argues removing the no-new-charges provision of the plea agreement eliminates a key term of that agreement. Because the State opposed defendant’s application for release pending sentencing, it may have offered defendant a higher sentence without the inclusion of the provision. As such, “in the absence of the original plea agreement’s terms, there may be no meeting of the minds between the State and defendant.” Id. at 160. The Attorney General thus argues the parties should be permitted to return to their “pre-plea positions” to negotiate a new plea agreement or proceed to trial. See State v. Warren (1989) (holding a plea “must be vacated” if it was premised on a “negotiated-sentence practice” that was “unauthorized and improper” under the Code); see also State v. Bell (2022).
Recently, in Bell, the Court considered the validity of the defendant’s convictions for two counts of second-degree leaving the scene of an accident resulting in death, N.J.S.A. 2C:11-5.1, following a guilty plea. Id. at 522. Upholding our decision that the defendant committed only one crime, the Court disapproved of our modification of his sentence to five years. Id. at 544-45. The Court therefore reversed our “judgment to amend sua sponte the sentence imposed by the trial court in a manner not contemplated by the terms of the plea agreement negotiated by the parties in good faith and approved by the trial court under Rule 3:9-2.” Id. at 523. The Court concluded the proper remedy was a remand “to permit the parties to negotiate a new plea agreement that the trial court finds acceptable or otherwise schedule the case for trial.” Ibid.
Although the circumstances in the present matter are distinguishable from those in Bell, the Court’s reasoning applies with equal force. We therefore remand the matter to the trial court to afford the parties the opportunity to renegotiate the plea agreement without the offending no-new-charges provision or proceed to trial.
Having substantially agreed with the contentions raised in point I of defendant’s merits brief, our disposition makes it unnecessary to consider the arguments raised in point II. The trial court is reversed and remanded. We do not retain jurisdiction.
This case brings to light the enormous resource advantages that prosecutors’ offices have over defendants. They almost always have entry-level prosecutors who they can assign to handle a trial in order to gain experience. The same can not be said for most private criminal defense practitioners.
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