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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3448-18T4






                    Submitted November 9, 2020  Decided December 28, 2020

                    Before Judges Messano and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 16-04-0227.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

                    John T. Lenahan, Salem County Prosecutor, attorney
                    for respondent (David M. Galemba, Assistant
                    Prosecutor, of counsel and on the brief).

      Defendant Leslie Hill appeals from the January 14, 2019 Law Division

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. Defendant collaterally challenges his conviction, after a

guilty plea to first-degree aggravated manslaughter.

      Because we conclude that defendant, in the course of his plea allocution,

did not present a sufficient factual basis of guilt, we reverse. In reaching this

conclusion, we apply the principles set forth in State v. Urbina, 

221 N.J. 509


(2015). We conclude the failure to elicit a sufficient factual basis was of

constitutional dimension and warrants PCR. See State v. D.D.M., 

140 N.J. 83


95 (1995); State v. Mitchell, 

126 N.J. 565

, 577-78 (1992); State v. Belton, 

452 N.J. Super. 528

, 530 (App. Div. 2017).


      On February 8, 2016, Kyana Roman called 9-1-1 because A.C., her two-

year-old daughter, was not breathing. When officers from Salem City Police

Department    arrived   at   Roman's     apartment,    A.C.   was   unresponsive.

Approximately one hour after the 9-1-1 call, A.C. was pronounced dead at Salem

Memorial Hospital. While no injuries were visible at the time of death, an

autopsy revealed multiple blunt force injuries to A.C.'s spine, head, and internal


       Defendant, Roman's boyfriend, was also present at the scene when police

arrived and voluntarily gave a recorded statement to Salem County Prosecutor's

Office (SCPO) investigators, admitting no wrongdoing. After the autopsy,

police called Roman and defendant to be interviewed at the Salem City Police

Department. Before defendant's interview, however, police learned defendant

had an outstanding warrant for an unrelated matter.

       At the start of the interview, police read defendant his Miranda1 rights.

During the approximately three-hour interview, defendant admitted he

"slammed" A.C. on the couch, caused her to fall, and "wrestl[ed]" with her

during the evening of February 7, 2016. While putting A.C. in "yoga positions"

 pushing her legs behind her head  defendant heard a loud "pop" and A.C.

began crying.    He subsequently took A.C. upstairs and placed her in her

bedroom. At no point during this interview did defendant invoke his Miranda


       On April 27, 2016, a Salem County Grand Jury returned an indictment,

charging defendant with one count of first-degree murder, N.J.S.A. 2C:11-

4(a)(1); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-

    Miranda v. Arizona, 

384 U.S. 436

1(b)(1); and one count of second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a).

      On June 29, 2016, defendant's plea counsel filed a motion to suppress

defendant's second statement to law enforcement. However, counsel withdrew

the motion on September 2, 2016 and requested "the pre-trial conference remain

as scheduled to permit counsel to continue off-record plea negotiations."

Defendant eventually accepted the State's plea offer. Under the plea agreement,

defendant agreed to plead to an amended charge of first-degree aggravated

manslaughter, and the State agreed to recommend defendant receive a twenty-

five-year prison term, subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, and dismissal of the remaining charges.

      At his plea hearing on December 5, 2016, plea counsel engaged defendant

in the following colloquy:

            Q: [Y]ou were in Salem on or around February 7th of

            A. Yes.

            Q: Is it correct on that day you engaged in rough play
               with a two-year-old whose initials are A.C.?

            A. Yes.

            Q: And in the course of that rough play . . . did you
               cause significant injuries to her?

            A. Yes.

            Q: And in the course of causing those injuries, did you
               cause her death?

            A. Yes.

            Q: And would you agree that the manner in which you
               were playing with A.C. disregarded a risk of injury
               that you posed to her?

            A. Yes.

            Q: Isn't it correct that after you engaged in rough play
               with her, you did not seek any medical attention?

            A. Yes.

      While defendant may have admitted to reckless conduct, he was not asked

to admit that his conduct was done "under circumstances manifesting extreme

indifference" to human life, N.J.S.A. 2C:11-4(a)(1), i.e., that it was probable,

not possible, that death would result. Notwithstanding this omission, neither the

prosecutor nor the judge asked any additional questions to establish the key

element of aggravated manslaughter.2

   In State v. Curtis, 

195 N.J. Super. 354

, 364-65 (App. Div. 1984), this court
found that the difference between aggravated and reckless manslaughter is the
degree of risk created by defendant's conduct. If, under all the surrounding
circumstances, the defendant's conduct creates a probability, as opposed to a
"mere possibility" of death, then the circumstances manifest "extreme

      On January 20, 2017, the same judge sentenced defendant, in accordance

with the plea agreement, to a twenty-five-year prison term, subject to NERA,

and dismissed the remaining charges. Defendant appealed his sentence to an

excessive sentence oral argument (ESOA) panel, which affirmed the sentence.

State v. Hill, No. A-002678-16 (App. Div. June 5, 2017).

      On January 3, 2018, defendant filed a pro se petition for PCR. Assigned

counsel filed a brief in support of the petition, asserting that 1) there was an

insufficient factual basis for the amended charge of aggravated manslaughter;

2) plea counsel was ineffective for failing to explain the aggravated

manslaughter charge and failing to investigate third party guilt; and 3) counsel

improperly withdrew the Miranda motion.

      On January 14, 2019, a different judge heard oral argument on defendant's

PCR petition at a non-evidentiary hearing. The PCR judge issued a written

opinion denying defendant's petition on January 18, 2019, finding defendant's

argument that the factual basis was insufficient was procedurally barred by Rule

3:22-4, because it could have been raised on direct appeal, and was otherwise

indifference to human life" and the offense is aggravated manslaughter.

Id. at 365-65.

Our Supreme Court endorsed Curtis in State v. Breakiron, 

108 N.J. 591

605 (1987). See also State v. Galicia, 

210 N.J. 364

, 378 (2012) ("[W]hen it is
only possible that death will result, the homicide constitutes reckless
manslaughter." (citing 

Curtis, 195 N.J. Super. at 364

without merit, and that defendant failed to establish a prima facie case of

ineffective assistance of counsel. This appeal followed.

      Defendant raises the following argument on appeal:



      PCR is the vehicle through which a defendant may, after conviction and

sentencing, challenge a judgment of conviction by raising issues that could not

have been raised on direct appeal and, therefore, ensures that a defendant was

not unjustly convicted. State v. McQuaid, 

147 N.J. 464

, 482 (1997). Pursuant

to Rule 3:22-2(a), a defendant is entitled to PCR if there was a "[s]ubstantial

denial in the conviction proceedings of defendant's rights under the Constitution

of the United States and the Constitution or laws of the State of New Jersey."

      We review the trial court's denial of PCR de novo. State v. Harris, 

181 N.J. 391

, 421 (2004) (stating appellate court conducts de novo review when PCR

court does not hold an evidentiary hearing). We also review de novo a decision

whether a defendant has provided an adequate factual basis for a guilty plea.

State v. Tate, 

220 N.J. 393

, 403-04 (2015). "An appellate court is in the same

position as the trial court in assessing whether the factual admissions during a

plea colloquy satisfy the essential elements of an offense."

Id. at 404.

      When seeking PCR, a defendant may challenge the adequacy of the factual

basis of a guilty plea. 

Urbina, 221 N.J. at 527

. Our decision on this appeal is

largely guided by Urbina.

      In Urbina, the defendant  a juvenile waived up to adult court  attempted

to plead guilty to aggravated manslaughter. But, in the course of his allocution,

he asserted that he reached for his firearm only after the victim began to reach

for his own. The defendant "just wanted to have [the victim] back up," but his

automatic weapon "just went off."

Id. at 516.

Defense counsel then stated that

he had discussed a potential self-defense claim with his client and advised him

that it was not "particularly viable."

Id. at 517.

In response to the prosecutor's

request, defendant's plea form was amended to state that he was waiving self-


Ibid. Without reviewing the

nature of a self-defense claim, or the

State's burden to disprove self-defense, the court then asked Urbina, "And you

do know . . . by pleading today, you've waived any potential utilization of self-

defense, correct?"

Ibid. Defendant answered yes,

and the court accepted the

plea as providing an adequate factual basis.

Id. at 517-18.

After this court

affirmed the conviction on direct appeal by a divided panel, State v. Urbina, No.

A-1761-11 (App. Div. July 19, 2013) (slip op. at 2), the Supreme Court reversed.


221 N.J. 509


      In reversing, the Court reaffirmed New Jersey's adherence to the principle

that a defendant must provide a comprehensive factual basis for a plea,

addressing each element of the offense.

Id. at 526-27.

"[I]n 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.'"

Id. at 527

(quoting State v. Smullen, 

118 N.J. 408

, 415


      "A factual basis may be challenged by a petition for post-conviction relief,

as well as by a motion to withdraw a plea, or by direct appeal." Belton, 452 N.J.

Super. at 537 (citing 

Urbina, 221 N.J. at 528

). "In short, if a factual basis has

not been given to support a guilty plea, the analysis ends and the plea must be


Tate, 220 N.J. at 403-04

. As a result, "a challenge to the sufficiency

of a factual basis does not implicate the four-part standard under State v. Slater,

198 N.J. 145


Belton, 452 N.J. Super. at 537

, n.2.


      We first address the PCR judge's determination that defendant's

insufficient factual basis claim was procedurally barred under Rule 3:22-4.

Other than for enumerated exceptions, Rule 3:22-4 bars a defendant from

employing PCR to assert a claim that could have been raised on direct appeal.

See State v. Nash, 

212 N.J. 518

, 546 (2013). However, Rule 3:22-4(a)(2)

provides an exception where enforcement of the bar to preclude claims would

result in "fundamental injustice."     Although there is no bright-line test to

determine when this exception applies, the Court has instructed:

            In defining fundamental injustice, the courts will look
            to whether the judicial system has provided the
            defendant with fair proceedings leading to a just
            outcome. 'Fundamental injustice' will be found . . . if
            inadvertent errors mistakenly impacted a determination
            of guilt or otherwise 'wrought a miscarriage of justice
            for the individual defendant.' The standard goes
            beyond      constitutional    infringements      to    any
            circumstances deemed 'unjust.' Although a petitioner
            would not have to prove that the issue of concern cost
            him the case, 'to establish injustice there should at least
            be some showing that . . . [the alleged violation] played
            a role in the determination of guilt. . . . To conclude
            otherwise would exalt form over substance.'


[Mitchell, 126 N.J. at 587

(alterations in original)
            (citations omitted).]

The defendant must "allege specific facts, which, if believed, would demonstrate

the likelihood of injustice by a preponderance of the evidence."

Id. at 589.

      On appeal, defendant contends the factual basis of his guilty plea did not

establish the essential elements of aggravated manslaughter, specifically a

probability of death. The State responds that the factual basis presents sufficient

circumstances involving a probability of death, particularly given that A.C. was

only two years old, and defendant failed to seek medical attention. In light of

the limited plea colloquy in this case, we are constrained to agree with

defendant. As a result, we must vacate defendant's guilty plea, concluding

enforcement of the bar would result in fundamental injustice." R. 3:22-4(a)(2).

      The factual basis requirement, among other things, protects a defendant

who voluntarily and knowingly pleads, but without recognition that his conduct

does not fall within the charge. State ex rel. T.M., 

166 N.J. 319

, 327 (2001). It

also provides a record for appellate review if the plea is later challenged and

gives a court the opportunity to evaluate the conditions under which a plea is

made. State v. Barboza, 

115 N.J. 415

, 421 (1989). Because of the constitutional

values at stake, "we have been very sensitive to the requirement that there be an

adequate factual basis for a plea of criminal guilt." 

Smullen, 118 N.J. at 414


      "Criminal homicide constitutes aggravated manslaughter when . . . [t]he

actor recklessly causes death under circumstances manifesting extreme

indifference to human life[.]"       N.J.S.A. 2C:11-4(a)(1).      For aggravated

manslaughter, a defendant acts recklessly when he consciously disregards a

substantial and unjustifiable risk of death, State v. Cruz, 

163 N.J. 403

, 417

(2000), i.e., when defendant's actions create "a probability as opposed to the

mere possibility that death would occur." State v. Bakka, 

176 N.J. 533

, 549

(2003) (citing State v. Kotter, 

271 N.J. Super. 214

, 227 (App. Div. 1994)).

      The "law requires that each element of the offense be addressed in the plea

colloquy[,]" State v. Campfield, 

213 N.J. 218

, 231 (2013), though "[t]hat does

not mean that a court must follow a prescribed or artificial ritual." 

T.M., 166 N.J. at 327

. This is because "different criminal charges and different defendants

require courts to act flexibly to achieve constitutional ends, [and] a factual basis,

established . . . through direct admission by the defendant, should be examined

in light of all surrounding circumstances and in the context of an entire plea


Ibid. Nonetheless, “it is

essential to elicit from the defendant a

comprehensive factual basis, addressing each element of a given offense in

substantial detail." 

Campfield, 213 N.J. at 236


      In this case, the plea colloquy clearly failed to establish the essential

elements of aggravated manslaughter. Although defendant admitted causing

"significant injuries" to A.C., and those injuries caused A.C.'s death, defendant

neither admitted nor acknowledged facts constituting the requisite "extreme

indifference" or conscious disregard for a "probability of [A.C.'s] death." See

Campfield, 213 N.J. at 231

. Defendant's conduct of engaging in "rough play"

with two-year-old A.C., disregarding a risk of injury to her, and failing to seek

medical attention after causing her injuries, while inappropriate and reckless,

are not circumstances manifesting extreme indifference to A.C.'s life.

Defendant's colloquy does not establish a disregard for a risk of death, let alone

a probability of death. We note that no injuries were visible at the time of death.

Additional information should have been elicited from defendant to assure that

the factual basis supported his plea. See State v. Harris, 

141 N.J. 525

, 545

(1995) (holding that the State must prove beyond a reasonable doubt the

elements of the charged offense).

      However, as we recognized in Belton,

            an inadequate factual basis does not necessarily entitle
            a defendant to relief upon a collateral attack of a
            conviction. "As 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 basis."

            [452 N.J. Super. at 540 (quoting 

Mitchell, 126 N.J. at 577


However, "a contemporaneous claim of innocence alters the legal significance

of the lack of factual basis.

Ibid. As does other

"indicia . . . that the defendant

does not understand enough about the natre of the law as it applied to the facts

of the case to make a truly voluntary decision on his own." Mitchell, 126 N.J.

at 577. See also 

Barboza, 115 N.J. at 415

n.1, ("A guilty plea violates due

process and is, thus, constitutionally defective if it is not voluntary and


      Here, we find significant a hand-written letter dated November 28, 2016

that defendant sent to the judge approximately one week before his guilty plea.

In the letter, defendant wrote "the whole incident was an accident," and "[i]f

[he] had anything to do with" A.C.'s death, or "[i]f he was the cause," he was

sorry. We note these comments are consistent with the voluntary statement

defendant provided the day of A.C.'s death, when he admitted that he engaged

in rough housing with A.C. the night before, but qualified his admission, stating,

"I didn't even know she was hurt though." During all the questioning, defendant

maintained his position that he did not kick or punch A.C. in anger or do

anything to harm her intentionally. The entire transcript of defendant's guilty

plea is less than ten pages, and we have quoted above the entire plea allocution.

      Inasmuch as the plea colloquy did not establish that defendant's conduct

created "a probability . . . of death," 

Curtis, 195 N.J. Super. at 364

-65, it cannot

be said his plea was voluntary and knowing; as a result, it violated due process.

Because an adequate factual basis was not elicited from defendant to support a

guilty plea to first-degree aggravated manslaughter, "the analysis ends and the

plea must be vacated." 

Tate, 220 N.J. at 404

. Therefore, without the necessity

of reaching defendant's remaining arguments, we reverse the denial of PCR and

vacate defendant's plea and conviction. 

Campfield, 213 N.J. at 232

(holding in

the absence of an adequate factual basis, "the parties must be restored to their

respective positions prior to the guilty plea" (citing 

Barboza, 115 N.J. at 420


The matter is remanded to the Law Division for review of defendant's bail status

pending further proceedings. The bail review shall be conducted within thirty

days of our judgment.

      Reversed and remanded. We do not retain jurisdiction.


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