                                                      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.




                                                           2
                                       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”).
                                 18
           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
