Submitted April 9, 2018 Decided April 23, 2018 Remanded by Supreme Court November 2, 2018 Resubmitted December 21, 2018 Decided January 15, 2019

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1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. STATE OF NEW JERSEY, v. Plaintiff-Respondent, DONELL J. ANDERSON, Defendant-Appellant. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Submitted April 9, 2018 Decided April 23, 2018 Remanded by Supreme Court November 2, 2018 Resubmitted December 21, 2018 Decided January 15, 2019 Before Judges Sabatino and Ostrer. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No Joseph E. Krakora, Public Defender, attorney for appellant (John V. Molitor, Designated Counsel, and Michele A. Adubato, Designated Counsel, on the briefs). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).

2 PER CURIAM This appeal returns to us upon remand from the Supreme Court, with directions that we reconsider our opinion, State v. Anderson, No. A (App. Div. Apr. 23, 2018) (Anderson II), affirming the denial of post-conviction relief (PCR), in light of State v. Vasco, N.J. (2018). State v. Anderson, N.J. (2018) (Anderson III). We assume the reader's familiarity with our prior opinion. In brief, defendant contended he was entitled to relief on two grounds: (1) he presented an inadequate factual basis for his guilty plea to two counts of first-degree aggravated sexual assault; and (2) his trial and appellate counsel were ineffective by, respectively, permitting him to plead without an adequate factual basis, and failing to raise the issue on appeal. Appellate counsel on direct appeal initially raised the inadequate-factual-basis argument before an ESOA panel, but then withdrew it, after which the panel affirmed defendant's sentence. State v. Anderson, No. A (App. Div. Sept. 2, 2015) (Anderson I). In Anderson II, we affirmed the trial court's determination "that defendant failed to demonstrate that his plea and appellate counsels performed deficiently, or that he suffered prejudice because they did not challenge the adequacy of his factual basis." Slip op. at 4. We noted that appellate counsel expressly withdrew 2

3 the argument that defendant's factual basis was inadequate, stating he did so after conferring with defendant. We held, "An effective counsel may withhold even a winning argument such as, a challenge to the adequacy of the factual basis in service of a more important goal preserving a plea agreement that limited defendant's exposure to an aggregate eight-year term." Id. at 5. We also held that "absent a showing of ineffective assistance, defendant's conviction [was] not subject to collateral attack solely because of the inadequate factual basis" as defendant did not contemporaneously claim his innocence. Id. at 6 (citing State v. Mitchell, 126 N.J. 565, 577 (1992); State v. Barboza, 115 N.J. 415, 421 n.1 (1989)). Although we did not reach the adequacy of defendant's factual basis since appellate counsel withdrew the issue, see Anderson I, slip op. at 1-2, it is indisputable that defendant provided a factual basis only to seconddegree attempt, as opposed to first-degree aggravated sexual assault. Defendant petitioned for certification, contending that the lack of a factual basis for the first-degree sexual assault charges rendered the guilty plea null and void, entitling him to relief even on a collateral challenge to his conviction. The petition did not expressly address the Court's statement in Mitchell that "[a]s long as a guilty plea is knowing and voluntary... a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus 3

4 does not render illegal a sentence imposed without such a basis." 126 N.J. at 577. Nor did defendant address the statement in Barboza that "[a] factual basis is not constitutionally required unless the defendant accompanies the plea with a claim of innocence." N.J. at 421 n.1. The Supreme Court granted the petition and summarily remanded, as noted, for our reconsideration in light of Vasco. The Court did not issue a plenary opinion in Vasco. Rather, it reversed the judgment of the Appellate Division substantially for the reasons expressed in Judge Espinosa's dissenting opinion. Vasco, 235 N.J. at 365 (citing State v. Vasco, 456 N.J. Super. 382, 393 (App. Div. 2017) (Espinosa, J., dissenting)). Vasco involved a defendant's presentencing motion to vacate or withdraw his plea on the grounds that he had presented an inadequate factual basis of guilt. Judge Espinosa wrote that the trial judge erred in denying the motion. 456 N.J. Super. at 397. She opined the trial court inappropriately relied on disavowed third-party statements, which the defendant himself never accepted as true. Id. at 393. She wrote that it was 1 Compare State v. D.D.M., 140 N.J. 83, 95 (1995) (denying PCR, holding "the trial court's failure to spell out the factual basis of defendant's plea did not, under the circumstances, constitute an improper acceptance of the guilty plea sufficient to invalidate his conviction and to render his sentence illegal"), with State v. Belton, 452 N.J. Super. 528, (App. Div. 2017) (granting PCR where the defendant provided an inadequate factual basis coupled with a contemporaneous claim of innocence, consisting of a defense of others). 4

5 necessary for defendant to admit to circumstances establishing the essential elements of the offense to which he purported to plead guilty. Ibid. Defendant, in a supplemental brief, contends that Vasco "reinforces that the factual basis is the first necessary step toward the imposition of any criminal sanctions against a citizen before a court." Therefore, he contends the lack of factual basis is a basis for PCR. However, we discern no guidance in Vasco regarding the question whether the lack of a factual basis alone without a showing of ineffective assistance or a contemporaneous claim of innocence provides a basis for PCR. 2 Grounds for PCR include the denial of a constitutional right, R. 3:22-2(a), and imposition of an illegal sentence, R. 3:22-2(c). 3 As noted, the Supreme 2 We also recognize that "[a] guilty plea that is not voluntary and knowing violates due process and thus is constitutionally defective." State ex rel. T.M., 166 N.J. 319, 327 (2001). Furthermore, a plea of guilty "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v. United States, 394 U.S. 459, 466 (1969). Requiring a factual basis is designed to assure such an understanding. Id. at 467; T.M., 166 N.J. at 327; Barboza, 115 N.J. at 421. Yet, the absence of an adequate factual basis does not necessarily establish a lack of voluntariness. 3 Defendant does not claim a lack of jurisdiction, R. 3:22-2(b); ineffective assistance by failure to file a timely appeal, R. 3:22-2(e); or "[a]ny ground heretofore available as a basis for collateral attack upon conviction by habeas corpus or any other common-law or statutory remedy," R. 3:22-2(d). 5

6 Court has repeatedly stated that, although our rules require an adequate factual basis for a guilty plea, the failure to provide one, absent a contemporaneous claim of innocence, does not necessarily offend the Constitution or render a sentence illegal. Therefore, it does not necessarily warrant relief under Rule 3: However, defendant provides an alternative ground for PCR. Although defendant concedes that effective assistance may include foregoing a winning argument in service of a more important strategic goal, defendant contends that his appellate counsel on direct appeal jettisoned the inadequate-factual-basis argument without his approval. He contends that his appellate counsel conceded in a file memorandum (which current counsel inaccurately describes as a 4 Defendant relies on State v. Tate, 220 N.J. 393, (2015), which distinguished Mitchell. But, in applying the requirement of an adequate factual basis, the Court emphasized that Tate, unlike Mitchell, involved a motion to vacate a plea before or shortly after sentencing, not a request for PCR. Tate, 220 N.J. at 407; see also State v. Campfield, 213 N.J. 218 (2013) (addressing necessity of factual basis on direct appeal). Also, in recognizing that "[c]hallenges to the sufficiency of the factual basis for a guilty plea" may be brought "on post-conviction relief," the Court in State v. Urbina, 221 N.J. 509, 528 (2015), cited D.D.M. As noted, D.D.M. restated the principle in Mitchell that "[a]s long as a guilty plea is knowing and voluntary,... a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis." 140 N.J. at 95 (quoting Mitchell, 126 N.J. at 577). We therefore presume this statement in Mitchell retains vitality. 6

7 "certification") that he acted without his client's fully informed consent when he withdrew the appellate argument that the plea of guilty to the aggravated sexual assault charges lacked an adequate factual basis. Therefore, he alleges his appellate attorney was ineffective. In Anderson II, we noted the absence of such evidence. Slip op. at 4. We now agree with defendant that his prior appellate counsel's unsworn admission creates, at the very least, a factual issue worthy of an evidentiary hearing. We recognize that the PCR court held that even if withdrawing the inadequate-factual-basis argument constituted deficient performance, defendant suffered no prejudice, because his allocution satisfied the elements of a seconddegree charge, and he received a sentence in the second-degree range. 5 Upon further reflection, however, we cannot conclude on the record before us that defendant suffered no prejudice. Had appellate counsel raised the inadequate-factual-basis argument, we would have vacated the conviction for the first-degree sex-related charges. Absent a factual basis for the first-degree sex-related charges, the court would 5 His concurrent eight-year terms for the two sex-related convictions ran concurrently with an eight-year term for a first-degree robbery charge, to which defendant also pleaded guilty. Although he initially challenged the adequacy of the factual basis for that charge, which the PCR court rejected, he abandoned the argument before us. See Anderson II, slip op. at 2 n.1. 7

8 have been obliged to reject the plea agreement in its entirety. Campfield, 213 N.J. at 232 (noting that where "an appellate court determines that 'a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated and defendant allowed to replead or proceed to trial'") (quoting Barboza, 115 N.J. at 420); see also Barboza, 115 N.J. at 422 (holding where defendant provided a factual basis inadequate for her plea but adequate for a lesser included offense, the trial court could not "downgrade" the conviction without a new plea agreement, because "[a] plea agreement is an all-or-nothing arrangement"). Only through a new plea agreement could defendant, grounded in the factual basis he was willing to provide, plead guilty to second-degree sexrelated offenses and accept the same eight-year terms previously bargained for in return for first-degree convictions. 6 We therefore remand to the trial court for an evidentiary hearing on whether appellate counsel was ineffective by withdrawing the inadequate- 6 In any event, it is far from apparent that the trial court which promised to impose no more than an aggregate eight years in return for a plea of guilty to first-degree sex-related charges would have imposed the same sentence had defendant pleaded only to second-degree charges. 8

9 factual-basis argument. We do not retain jurisdiction. 9