(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 interests of brevity, portions of any opinion may not have been summarized).
Argued February 4, 1997 -- Decided May 15, 1997
Garibaldi, J., writing for a unanimous Court.
The questions raised on this appeal are (1) whether defendants, as part of plea agreements, can
waive their right to merge offenses; (2) if such waivers are allowed, did Shawn Crawley voluntarily and
intelligently waive his right to merger; and (3) if Crawley did knowingly waive his right to merger, is he now
prohibited from challenging that waiver?
On August 4, 1991, Ronald Lightcap asked Crawley to sell him drugs. Crawley told Lightcap that he
did not have the drugs with him and that Lightcap would have to drive them to get the drugs. Crawley's
intent was not to obtain drugs but to steal Lightcap's van. When the van came to a stop, Crawley pointed a
gun at Lightcap and ordered him out of the van. Lightcap grabbed the gun and a struggle ensued. After
Lightcap was pushed outside the door of the van, the gun, with Crawley's finger on the trigger, went off and
Lightcap was shot. Crawley left Lightcap in the street and drove away in the van. Lightcap later died.
Prior to the Lightcap shooting, Crawley had been placed on probation for possessing and intending
to distribute cocaine in 1990. Crawley violated probation in April 1991 by, among other things, being
arrested and indicted for receiving stolen property under an assumed name. Crawley was detained at a
satellite residence for those incarcerated at Jamesburg Training School. Shortly after his arrival at there,
Crawley left the premises without permission and never returned. In May 1991, he was arrested under a
different assumed name. Those indictments were pending when Crawley killed Lightcap.
During the pre-indictment stage of the criminal proceedings, Crawley entered a plea of guilty with
the Camden County Prosecutor's Office on the charge of killing Lightcap. As part of that agreement,
Crawley waived his right to have the charges arising from Lightcap's death presented to the Grand Jury. In
lieu of a formal indictment, the prosecutor filed an accusation, which charged Crawley with aggravated
manslaughter, armed robbery and escape. In exchange for pleading guilty to those three offenses and to the
charge of violating his probation, the prosecutor agreed to recommend the dismissal of the complaint
charging Crawley with felony murder in connection with the robbery and murder of Lightcap and to dismiss
the indictment for the two previous property offenses. In addition, the prosecutor agreed to recommend a
sentence of thirty years with a fifteen-year period of parole ineligibility for aggravated manslaughter; a
consecutive term of ten years with a five-year parole disqualifier for armed robbery; a concurrent term of five
years for escape; and a concurrent term of four years for violating probation.
Crawley filled out and signed a three-page plea agreement form. He responded affirmatively to
Question 18, which asks if he had discussed the doctrine of merger with his attorney. Question 20 of the
plea asked Crawley to list any other promises he, his attorney, or the prosecutor made. He answered,
“waiver of appeal; waiver of merger.”
At the plea hearing, the trial court heard from the prosecutor regarding the sentencing agreement and from defense counsel that Crawley was voluntarily and knowingly entering his plea. The judge then questioned Crawley about his plea. Crawley told the judge that he was entering into the plea agreement voluntarily and knowingly and that counsel had explained the rights that he was waiving by entering into the agreement. The court thereafter accepted Crawley's factual basis in support of his plea to each of the charges in the accusation and to violating probation. At the sentencing hearing, the prosecutor reiterated
that the State would have sought an indictment for felony murder if the plea agreement had not provided for
consecutive sentences. The trial court imposed the recommended sentence.
In an unpublished order, the Appellate Division held that Crawley could not agree to waive his right
to merger. The panel remanded the matter to the trial court to determine whether the charges of
aggravated manslaughter and armed robbery should merge. The panel ordered that if the trial court
determined that the offenses should merge, Crawley should be resentenced. If the offenses were determined
not to merge, it was ordered that the sentence be sustained.
The Supreme Court granted the State's petition for certification on the issue of merger, and denied
Crawley's cross-petition for certification that challenged the consecutive nature of his sentences.
HELD: Defendants can waive their right to merger in plea agreements. Shawn Crawley voluntarily and
intelligently waived his right to merger and is now prohibited from challenging that waiver on appeal.
1. Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the
State violated his or her constitutional rights prior to the plea. Where the ultimate resolution of the merger
issue is uncertain, the guilty plea does not necessarily have to be overturned when the trial court fails to
inform the defendant about his or her potential sentence. (pp. 6-8)
2. The position adopted in State v. Truglia is reaffirmed here. A holding of non-waiver of a claim of merger
following guilty pleas is more consistent with notions of fairness, limited to the situation in which there has
been no consideration given at the plea or sentencing hearing to the potential for merger of any of the
offenses. If it is apparent that a defendant had waived his or her right to merger in a bargained-for plea;
however, the defendant would be unable to challenge that waiver on appeal. If the issue of merger was not
adverted to below or subject to a specific waiver, then a defendant must establish the merger. (pp. 8-9)
3. Crawley's assertion that he did not fully understand that he waived his right to merger is contradicted by
the record. For instance: Crawley testified at the plea proceedings that the plea form was completed with
the advice and assistance of counsel and that he understood the terms; he answered yes to Question 18,
which specifically asked if he had discussed the legal doctrine of merger with his attorney; and the prosecutor
repeatedly discussed the consecutive nature of the sentences during the plea proceedings. Moreover, the
failure of the trial court to inform Crawley that the aggravated- manslaughter and armed-robbery convictions
might merge did not mislead Crawley about the possible maximum sentence. (pp. 9-11)
4. Although not required, the better practice would be for trial courts to ask defendants more specific
questions detailing the waiver of merger. (pp. 11)
5. Crawley would not have been able to prove that armed robbery and aggravated manslaughter merge
because these offenses require different elements of proof and protect different interests. (pp. 11-12)
Judgment of the Appellate Division is REVERSED and the trial court's judgment of conviction and
sentence is REINSTATED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI'S opinion.
SUPREME COURT OF NEW JERSEY
A-
92 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SHAWN CRAWLEY, a/k/a SHAWN
GOLDSBORO, a/k/a STEVEN R.
MILLS, a/k/a SHAWN LAMONT MAHAN,
Defendant-Respondent.
Argued February 4, 1997 -- Decided May 15, 1997
On certification to the Superior Court,
Appellate Division.
Robin A. Hamett, Special Deputy Attorney
General, Acting Assistant Prosecutor, argued
the cause for appellant (Lee A. Solomon,
Assistant Attorney General, Acting Camden
County Prosecutor, attorney).
Bernadette N. DeCastro, Assistant Deputy
Public Defender, argued the cause for
respondent (Susan L. Reisner, Public
Defender, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
In this appeal, we consider three questions: (1) whether
defendants, as part of plea agreements, can waive their right to
merge offenses; (2) if such waivers are allowed, did defendant
voluntarily and intelligently waive his right to merger; and (3)
if defendant did knowingly waive his right to merger, is he now
prohibited from challenging that waiver? We reaffirm the
position taken in State v. Truglia,
97 N.J. 513 (1984), and hold
that defendants can waive their right to merger in plea
agreements, that defendant did effectively waive his right to
merger, and that he is now prohibited from challenging that
waiver on appeal.
On August 4, 1991, Ronald Lightcap asked Shawn Crawley, defendant, to sell him drugs on a street in Camden, New Jersey. Defendant told Lightcap that he did not have any drugs on him and that Lightcap would have to drive them to East Camden to obtain the drugs. Defendant's purpose was not, however, to consummate the drug sale, but rather to steal Lightcap's van. When the van came to a stop, defendant pointed his revolver at Lightcap and told him to get out of the van.
Instead of acquiescing to defendant's demand, Lightcap grabbed the revolver and a struggle ensued. Eventually, defendant forced Lightcap out of the van and moved himself into the driver's seat. Defendant, however, was unable to close the door because Lightcap was still holding onto the revolver. Then, with defendant's finger on the trigger, the revolver went off and
the bullet hit Lightcap. Defendant left Lightcap on the street
as he drove away in the van. Lightcap later died.
Prior to the killing, defendant was placed on probation for
possessing and intending to distribute cocaine in 1990. He
violated his probation in April 1991 by, inter alia, being
arrested and indicted for receiving stolen property under an
assumed name. The authorities decided to detain defendant at
Camden House, a satellite residence for those incarcerated at
Jamesburg Training School. Shortly after arriving at Camden
House, defendant left the premises without permission and never
returned. In May 1991, defendant was arrested and indicted again
for receiving stolen property under a different assumed name.
Those indictments were pending when defendant killed Lightcap.
During the pre-indictment stage of his criminal proceedings,
defendant entered into a plea agreement with the Camden County
Prosecutor's Office on the charge of killing Lightcap. As a part
of the agreement, defendant waived his right to have the charges
arising from Lightcap's death presented to a Grand Jury. In lieu
of a formal indictment, the prosecutor filed an accusation, which
charged defendant with aggravated manslaughter, in violation of
N.J.S.A. 2C:11-4A (Count One); armed robbery, in violation of
N.J.S.A. 2C:15-1a(2) (Count Two); and escape, in violation of
N.J.S.A. 2C:29-5 (Count Three). In exchange for defendant
pleading guilty to those three counts and to the charge of
violating his probation, the prosecutor agreed to recommend the
dismissal of the complaint charging defendant with felony murder
in connection with the Lightcap robbery and homicide and to
dismiss the indictment for the two previous property offenses.
In addition, the prosecutor agreed to recommend the following
sentence: thirty years with fifteen years of parole
ineligibility for aggravated manslaughter; a consecutive term of
ten years with five years of parole ineligibility for armed
robbery; a concurrent term of five years for escape; and a
concurrent term of four years for violating probation.
Defendant filled out and signed a three-page plea agreement.
Question 18 of that form asks: "Have you discussed with your
attorney the doctrine of merger?" Defendant answered yes.
Question 20 asked defendant to list any other promises he, his
counsel, or the prosecutor made. He responded, "waiver of
appeal; waiver of merger."
At the first retraxit proceeding, the prosecutor stated that
defendant was waiving both his right to appeal if the court
imposed the recommended sentence and "any possible issue as to
merger with respect to Counts One and Two in the accusation."
Defense counsel then told the trial court that she had spoken
with defendant and that he was making his guilty plea
voluntarily. In addition, defense counsel stated that defendant
understood that he was waiving certain constitutional rights.
The trial court then asked defendant if his counsel had explained
what rights he was waiving by entering into the plea agreement
and whether he was making the plea voluntarily. Defendant
answered both questions affirmatively. The court, however, did
not accept defendant's plea because his recitation of what had
transpired on the day in question did not provide a sufficient
factual basis for a finding of guilt.
Two days later, the court resumed the retraxit proceeding.
After restating the terms of the plea agreement, the prosecutor
told the court that part of the agreement involved dismissing the
charge of felony murder. In fact, the prosecutor informed the
court that part of the bargain was that defendant would accept
the consecutive sentences in order to avoid the thirty-year
period of parole ineligibility that accompanies a conviction for
felony murder. The prosecutor stated: "So while it is somewhat
unusual for a three-count accusation to have the counts follow
consecutively one upon the other, particularly where one is for
aggravated manslaughter and one is for armed robbery, the record
should reflect it was structured in this fashion so as to give a
benefit to the defendant." Defense counsel again represented to
the court that she and defendant had discussed the matter on
several occasions and that she believed that defendant was
voluntarily making the guilty pleas.
The trial court then conducted its examination of defendant,
who told the court that he was entering into the agreement
voluntarily and that he reaffirmed his answers from the preceding
proceeding. The court subsequently accepted defendant's factual
basis in support of his plea to each of the charges in the
accusation and to violating probation.
At the sentencing hearing on January 15, 1992, the
prosecutor reiterated that the State would have sought an
indictment from the Grand Jury for felony murder if the plea
agreement did not provide for consecutive sentences. Defense
counsel asked the court to adopt the sentence in the plea
agreement. The trial court imposed the recommended sentence.
In an unpublished order, the Appellate Division held that
defendant could not agree to waive his right to merger. The
panel, therefore, remanded to the trial court to determine
whether the charges of aggravated manslaughter and armed robbery
should merge. If so, the panel ordered that defendant should be
resentenced. If not, the panel ordered that the sentence should
be sustained.
We granted the State's petition for certification on the
issue of merger,
146 N.J. 499 (1996), and denied defendant's
cross-petition for certification, which challenged the
consecutive nature of his sentences.
147 N.J. 264 (1996).
Criminal convictions merge because a defendant who has committed only one offense cannot be punished as if he committed two offenses. See, e.g., State v. Dillihay, 127 N.J. 42, 46 (1992); State v. Cole, 120 N.J. 321, 325-26 (1990); State v. Miller, 108 N.J. 112, 116 (1987). As in the past, we recognize
that merging convictions implicates a defendant's substantive
constitutional rights without specifying which constitutional
provision creates those rights because identifying the specific
provision does not aid the analysis of this case. See, e.g.,
Dillihay, supra, 127 N.J. at 46; Cole, supra, 120 N.J. at 326;
State v. Truglia,
97 N.J. 513, 522 (1984).
Generally, a defendant who pleads guilty is prohibited from
raising, on appeal, the contention that the State violated his
constitutional rights prior to the plea. See, e.g., Tollett v.
Henderson,
411 U.S. 258, 267,
36 L. Ed.2d 235, 243,
93 S. Ct. 1602, 1608 (1973); State v. DeLane,
207 N.J. Super. 45, 48 (App.
Div. 1978). Those constitutional rights include the privilege
against compulsory self-incrimination, the right to trial by
jury, the right to confront one's accusers, and the right to a
speedy trial. See Boykin v. Alabama,
395 U.S. 238, 243,
23 L.
Ed.2d 274, 279-80,
89 S. Ct. 1709, 1712 (1969); State v.
Garoniak,
164 N.J. Super. 344, 348 (App. Div. 1978), certif.
denied,
79 N.J. 481 (1979). Moreover, where the ultimate
resolution of the merger issue is uncertain, a guilty plea need
not necessarily be overturned when a trial court fails to inform
a defendant about the possibility of merger because such a
failure does not misinform the defendant about his potential
sentence. See State v. Taylor,
80 N.J. 353, 364 (l979); see also
State v. Nichols,
71 N.J. 358, 361 (1976) (permitting defendant
to withdraw guilty plea where prosecutor, trial court, and
defense counsel failed to inform defendant that offenses could
merge because defendant was misinformed about material element of
plea negotiation).
In Truglia, supra, the defendant was charged with two counts of attempted murder, two counts of aggravated assault, possession of a gun without a permit, possession of a gun by a convicted felon, and criminal mischief. 97 N.J. at 517. Those charges arose out of a series of incidents in which the defendant shot his gun at two people, hitting one of them in the shoulder, and destroyed the roof of another person's automobile. Id. at 516. The defendant pleaded guilty to aggravated assault and possessing a handgun with an unlawful purpose in exchange for, inter alia, the prosecutor dismissing the other charges in the indictment and recommending that the sentence should not exceed fifteen years, with seven-and-one-half years of parole ineligibility. Id. at 517.
Even though we held that the defendant had not proven that the two offenses should merge, we addressed, in dictum, the issues raised in this case:
We conclude that a holding of non-waiver of a claim of merger following guilty pleas is more consistent with our notions of fairness, limited however to the situation in which there has been no consideration given at the plea or sentencing hearing to the potential for merger of any of the offenses.
[Id. at 523.]
We added that if it was apparent that a defendant had waived his
right to merger in a bargained-for plea, he would be unable to
challenge that waiver on appeal. Id. at 524. If, on the other
hand, the issue of merger was not "adverted to below or subject
to a specific waiver,” then a defendant must establish the
merger. Ibid. We reaffirm our position in Truglia.
In New Jersey, it is well-settled that a plea must be entered into voluntarily and intelligently. Taylor, supra, 80 N.J. at 362. Indeed, we have codified that requirement in Rule 3:9-2, which provides that a court shall not accept a guilty plea without "determining by inquiry of the defendant and others, in the court's discretion . . . that the plea is made voluntarily . . ., and with an understanding of the nature of the charge and the consequences of the plea."
The crux of defendant's argument is that he did not knowingly, intelligently, and voluntarily waive his right to merger. We disagree.
Defendant's assertion that he did not fully understand that he waived his right to merger is contradicted by the record. See Taylor, supra, 80 N.J. at 365 (reasoning that when defendant attacks guilty plea "his contentions should be assessed with great care and realism"). For example, in response to Question 20, defendant answered "waiver of merger." Although defendant submits that this may merely be pro forma practice in Camden
County, he testified at the retraxit proceeding that the plea
form was completed with the advice and assistance of counsel and
that he understood the terms. More importantly, defendant
answered yes to Question l8 of the plea agreement, which
specifically asked if he had discussed the legal doctrine of
merger with his attorney. See State v. Herman,
47 N.J. 73, 77
(l966) (finding that execution of plea form weighs heavily
against later contention by defendant that plea was not entered
voluntarily and understandingly). In addition, the prosecutor
referred to the waiver of merger at the first retraxit
proceeding, stating "[i]t is my [] understanding [that] the
defendant is waiving any possible issue as to merger with respect
to Counts One and Two of the accusation." The prosecutor also
repeatedly discussed the consecutive nature of the sentences,
which would be precluded if the convictions merge, at the
retraxit proceedings because that was the entire premise of
defendant's bargained-for plea.
Nor is this a case where defendant was "misinformed . . . as
to a material element of a plea negotiation, which [he] relied
thereon in entering his plea." State v. Nichols, 7l N.J. 358,
36l (l976). The failure of the trial court to inform defendant
that the aggravated-manslaughter and armed-robbery convictions
might merge did not mislead defendant about the maximum sentence
that he could receive. The record clearly indicates that the
State repeatedly represented at the retraxit proceedings, the
sentencing hearing, and its discussions with defense counsel that
it was the State's position that felony murder would subject
defendant to the maximum prison term. If defendant was convicted
of felony murder, he would serve a mandatory minimum of thirty
years without parole -- ten years more than the twenty-year
period of parole ineligibility recommended and imposed.
In Truglia, we found that a defendant can waive his right to
merger when entering into a plea agreement if the waiver is used
as part of the consideration for that agreement. The
prosecutor's comments and the explicit waiver of merger in the
plea agreement clearly show that defendant intelligently and
voluntarily bargained away his right of merger so that he could
receive a more lenient sentence. Because defendant clearly
waived his right to merger, he cannot now challenge that waiver
on appeal.
Defendant argues that the trial court should have asked
specific questions about merger to determine his level of
understanding as to what he was waiving. Although we do not find
that such questions are required or necessary in order for
defendants to waive their rights to merger, we believe that the
better practice would be for trial courts to ask defendants more
specific questions detailing the waiver of merger.
Finally, we observe that defendant would have been unable to
prove that the two charges, armed robbery and aggravated
manslaughter, merge. See N.J.S.A. 2C:1-8; Cole, supra, 120 N.J.
at 327-28. N.J.S.A. 2C:1-8(a)(1) provides that a defendant “may
. . . not be convicted of more than one offense if . . . one
offense is included in the other.” Armed robbery and aggravated
manslaughter require different elements of proof and protect
different interests. See Cole, supra, at 327-28.
Defendant voluntarily and intelligently waived his right to challenge the nonmerger of offenses and understood that that waiver was part of the consideration of his plea agreement. Because the record clearly indicates that he understood that he was waiving his right to merger, he cannot appeal that waiver. We reverse the Appellate Division's judgment and reinstate the trial court's judgment of conviction and sentence of defendant.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion.
NO. A-92 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SHAWN CRAWLEY, a/k/a SHAWN
GOLDSBORO, a/k/a STEVEN R.
MILLS, a/k/a SHAWN LAMONT MAHAN,
Defendant-Respondent.
DECIDED May 15, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY