(dissenting). The principal question posed by this appeal is whether the State may require a criminal defendant to waive his right of appeal as part of a negotiated plea agreement. Because this issue was specifically reserved in State v. Spinks, 66 N. J. 568 (1975)1, we certified the instant appeal on our own motion while it was pending unheard in the Appellate Division to consider this important question. B. 2:12-1. 67 N. J. 103 (1975).
Today the majority concludes that while judicial policy considerations require that a defendant who has agreed not to appeal a conviction as part of plea negotiations must be permitted to do so before the expiration of the 45-day period for bringing a direct appeal, the agreement may not be challenged out of time by means of a petition for post-conviction relief. Ante at 501. The Court has also concluded that it would be unwise for us to characterize an agreement not to appeal as illegal under any circumstances because such a “pronouncement” would tend to discourage plea bargains to an extent inconsistent with sound judicial policy. Ante at 511. I disagree with that approach and because I am convinced that the inclusion of a waiver of appeal provision is an impermissible element of plea negotiations with criminal defendants, I would reverse and permit Gibson to appeal out of time.
On October 21, 1971, defendant Jacklyn Gibson and Ernest Bryant2 were indicted by the Salem County Grand Jury on charges of robbery and robbery while armed in violation of N. J. S. A. 2A:141-1 and N. J. S. A. 2A:151-5. A separate indictment dated the same day also charged Gibson *520with escaping from the lawful custody of a police officer in violation of N. J. S. A. 2A:104-6. A third indictment was returned against defendant on January 27, 1972 charging him with malicious destruction of county property in violation of N. J. S. A. 2A:122-1 while he was incarcerated in the Salem County Jail. Finally, Gibson was also indicted for sodomy contrary to the provisions of N. J. S. A. 2A :143 — 1.3
Gibson was convicted of the robbery charges by a jury on December 16, 1971. Although the record does not disclose the exact date, some time after his conviction, but prior to sentencing, his attorney entered into plea negotiations with the prosecutor’s office concerning the indictments still pending against him. According to Gibson’s trial counsel, the prosecutor agreed to dismiss the sodomy charge in exchange for defendant’s guilty pleas on the escape and destruction of property charges if Gibson also promised not to appeal his conviction on the robbery charges.4
On July 21, 1972, Gibson was sentenced to a term of 10 to 12 years in the State Prison on the robbery conviction and a concurrent 2-3 year term on the armed robbery conviction. On the same day, the sentencing judge also accepted Gibson’s guilty pleas on the escape and malicious destruction of property charges and sentenced him to consecutive terms of 2 to 3 years in the State Prison on the latter two charges to run concmientlj with the sentence *521imposed for the robbery conviction. The sodomy charge was subsequently dismissed.5
On June 8, 1973, Gibson filed a pro se petition for post-conviction relief. The petition recited that no direct appeal had been taken from the robbery conviction but, nevertheless, alleged that the evidence was insufficient to sustain the conviction and that the State had used “pending charges * * * to enhance the punishment inflicted.” On October 25, 1973, the public defender amended the petition alleging that Gibson had not exercised his right of appeal on the robbery conviction in reliance on the plea bargain with the prosecutor’s office.
On November 30, 1973, the petition was heard by the same judge who had tried and sentenced Gibson. The relief sought by defendant was leave to appeal out of time. In support of the application Gibson offered the testimony of the attorney who represented him at the robbery trial. After hearing evidence that the plea bargain did include a waiver of Gibson’s right of appeal and that he did rely on the agreement in failing to appeal the robbery conviction, the trial court “accept [ed] that testimony in its entirety that such a bargain was made.” The court, however, denied the requested relief, stating:
I don’t see why he should be granted the relief he asks for at the present time. He had that relief at that time. He knew he could have taken an appeal • — • he chose voluntarily not to do so. The State has lived up to its bargain. The State would be prejudiced to attempt, at this late stage in the proceedings, to seek to try him on the sodomy indictment because of the lapse of time. The State might not have plea bargained for the sentences that were imposed on him on the escape and malicious damage to property charge; and I don’t believe that under the circumstances the defendant has been deprived of any of his constitutional or other legal rights. A bargain at full arm’s length with the advice and *522service of a qualified representative — legal representative — provided him by the public defender’s office, and I’m denying your motion for relief to appeal out of time.
An order' reflecting the denial of Gibson’s petition was signed by the trial court on December 19, 1973, and on January 16, 1974 a notice of appeal from the denial was filed with the Appellate Division. We certified the appeal on February 19, 1975.
I
At the outset, it must be recognized that defendant seeks to challenge the propriety of the plea bargain by means of a petition for post-conviction relief rather than by direct appeal. The grounds for such relief are limited,6 and it is clear that post-conviction relief may not be used as a substitute for direct appeal. R. 3:22-3; State v. Trantino, 60 N. J. 176, 180 (1972); State v. Smith, 43 N. J. 67, 74 (1964), cert. den. 379 U. S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706 (1965). See also State v. Poteet, 61 N. J. 493, 495 (1972).
In my view, however, defendant’s application is properly cognizable under R. 3:22-2(a). Our rules provide for appeals as of right from, among others, final judgments of the Superior Court trial divisions and the county courts. *523R. 2:2-3(a). S'ee also R. 2:3-2. Moreover in Midler v. Heinowitz, 10 N. J. 123, 129 (1952), this Court, in an opinion by Justice Brennan, made it clear that our judicial system “contemplates one appeal as of right to a court of general appellate jurisdiction.” If the plea bargain by which defendant promised not to exercise his right of appeal improperly denied him a right guaranteed by the laws of this State, then he has alleged a substantial denial of his rights under our law within the meaning of R. 3:22-2(a).7
Because I view Gibson’s claims properly cognizable under R. 3 :22-2(a), I proceed to an examination of the merits of his application.
II
Both the United States Supreme Court and this Court have recognized that plea bargaining is a useful tool in the administration of criminal justice. Santobello v. New York, 404 U. S. 257, 260, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Thomas, 61 N. J. 314, 321 (1972); State v. Taylor, 49 N. J. 440, 455 (1967). See also ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 1.8 (Approved Draft 1968). Despite our general approval of the practice of plea negotiation between the *524prosecutor and criminal defendants, we have held that the ultimate bargain struck by the parties is not entirely free from judicial scrutiny. In State v. Spinks, supra, Justice Sullivan, writing for the Court, rejected the argument that appellate review of sentences imposed as the result of plea bargains was incompatible with the contractual nature of the plea negotiation and said:
We conclude that appellate review of a sentence imposed pursuant to a plea bargain is proper and is not incompatible with the concept of plea negotiations. A defendant in a criminal ease has a right of appeal from the final judgment of conviction, including the sentence. [66 N. J. at 573 (footnote omitted)]
In my view, the considerations which we identified in Spinks are equally applicable in the instant case. The appellate courts have an obligation to review the terms of a plea bargain where, as here, the agreement forecloses substantial rights of the defendant.8 The majority notes that a guilty plea freely and voluntarily entered renders compliance with many constitutional guarantees unnecessary. Ante at 510. Recognition of this fundamental principle, however, is not responsive to the real problem confronting us, i. e., what terms of a negotiated plea agreement are impermissible as a matter of judicial policy. Decisions such as State v. Raymond, 113 N. J. Super. 222 (App. Div. 1971) and cases cited therein which deal with a guilty plea as a waiver of prior constitutional rights do not address the latter consideration and are thus of little relevance in resolving the present appeal.
*525In the present case, defendant argues that the agreement not to appeal the robbery conviction was illegal and should be vacated, returning the parties to their original status. The State, on the other hand, emphasizes that Gibson voluntarily entered into the agreement and thus should not be permitted to renege on it. Although the precise question is a novel one before this Court, the problem has been considered in other jurisdictions with varying results.
In People v. Butler, 43 Mich. App. 270, 204 N. W. 2d 325 (Ct. App. 1972), defendant pleaded guilty to a reduced charge in exchange for the prosecutor’s agreement to dismiss two other outstanding charges against defendant at the expiration of the appeal period. Emphasizing the judicial sensitivity to the rights of an accused in entering a guilty plea, the court characterized the right of appeal from such a conviction as one of “substantial value.” 204 N. W. 2d at 330. Einding it impermissible for the state to induce a defendant to waive his right of appeal as part of a plea agreement, the court said:
If such bartering were to be permitted, the prosecution would indeed be able to insulate, in many cases, guilty pleas accepted in contravention of standards which have been developed with painstaking care to afford defendants their basic rights. To state that plea agreements are now an accepted practice in this State, then, is not to state that there are no limits to the conditions imposed thereon. [204 N. W. 2d at 330],
To prevent the “chilling effect” that this practice would have on those who are deterred from appealing, the court concluded that plea convictions must be vacated whenever they are based on an agreement by defendant to waive his right of appeal. 204 N. W. 2d at 331. See also People v. Ledrow, 53 Mich. App. 511, 220 N. W. 2d 336 (Ct. App. 1974).
A New York appellate court has also concluded that the state should not be permitted to insulate a conviction from appellate review in this context. In People v. Ramos, 30 *526A. D. 2d 848, 292 N. Y. S. 2d 938 (App. Div. 1968), defendant pleaded guilty to a charge of murder in the second degree to avoid a possible death sentence. As part of the bargain, the state stipulated that a robbery indictment based on the same incident would be dismissed 31 days after sentencing, provided that no appeal was taken. In accepting defendant’s plea, the court specifically informed him that should he attempt to disturb the plea or conviction, “ cof course the plea will not stand, and also the promise of the district attorney to dismiss the robbery charge will not stand.’ ” 292 N. Y. S. 2d at 939 (emphasis in original)-. In concluding that defendant had been wrongfully denied his right of appeal, the court observed:
The net effect of the conditions so imposed was that defendant was confronted with the “choice” of either accepting whatever punishment the court might mete out, no matter how severe, excessive, or unjust, or appealing from the judgment of conviction, in which case the plea, pursuant to the conditions attached thereto, would not be permitted to stand and defendant would presumptively be required to stand trial for murder in the first degree, thereby exposing himself to the possibility of receiving the death sentence if convicted. Under the circumstances, it could not have been reasonably contemplated that defendant would exercise his “option” to appeal. In practical effect, the court virtually insulated the conviction and the sentence imposed thereon against appellate review. The court’s actions were tantamount to a denial of defendant’s right to appeal. [292 N. Y. S. 2d at 939-40].
In Ramos, however, the court vacated the judgment of conviction and remanded the case for resentencing in order for the defendant to perfect an appeal. 292 N. Y. S. 2d at 940.9
*527An analogous situation was before tbe Pirst Circuit in Worcester v. Commissioner of Internal Revenue, 370 F. 2d 713 (1 Cir. 1966), involving a series of consolidated petitions to review decisions of the Tax Court. The Tax Court found deficiencies in Worcester’s tax returns for 1947-52 and upheld the imposition of fraud penalties and interest. On the issue of fraud, however, the Tax Court made no findings for three years, relying instead on collateral estoppel by virtue of Worcester’s prior criminal conviction for willfully filing false returns. On appeal, the court concluded that the Tax Court’s reliance on collateral estoppel was misplaced since the District Court in the criminal case imposed a suspended sentence upon Worcester in exchange for his agreement not to appeal the conviction. 370 F. 2d at 718-19.10 More recently, in Clark v. Universal Builders, Inc., 501 F. 2d 324, 341 (7 Cir. 1974), cert. den. 419 U. S. 1070, 95 S. Ct. 657, 42 L. Ed. 2d 666 (1974), the Seventh Circuit expressed similar sentiments in concluding that it was error for the trial court to dismiss defendant’s counterclaim subject to automatic reinstatement in the event plaintiffs appealed from the court’s directed verdict *528for defendants. Citing Worcester, supra, the court agreed with plaintiffs that the arrangement was a “highly improper attempt at coercing plaintiffs into waiving their right to appeal * * 501 F. 2d at 341.
Although the foregoing should serve to illustrate the commitment on the part of some courts to prevent attempts to bargain away access to the appellate process, this view is by no means universally accepted. Indeed in Brown v. Haynes, 385 F. Supp. 285 (W. D. Mo. 1974), the District Court refused to grant a writ of habeas corpus on the ground, among other things, that petitioner had been coerced into waiving his right to appeal a conviction for robbery following a jury trial in the expectation that an outstanding charge would be dropped. In deciding Brown, however, the court focused on the knowing and voluntary nature of petitioner’s decision not to appeal, without analyzing the more fundamental question of whether the State should be permitted to include a waiver of appeal provision in its plea negotiations. 385 F. Supp. at 292-93. I have examined Brown, supra, and in my judgment it is not persuasive. Therefore, I reject it. See also United States ex rel. Amuso v. LaVallee, 291 F. Supp. 383 (E. D. N. Y. 1968), aff’d per curiam 427 F. 2d 328 (2 Cir. 1970); State v. Gutierrez, 20 Ariz. App. 337, 512 P. 2d 869 (Ct. App. 1973); People v. Irizarry, supra.
I also appreciate the fact that the American Bar Association has suggested that one of defense counsel’s duties with regard to criminal appeals is to consider the possibility under some circumstances of including a decision to forego an appeal as part of plea negotiations. ABA Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals, § 2.2(c) (Approved Draft 1970) provides:
(e) Where a case has been tried, prior to final judgment, defense counsel should review the prospects of appeal. One alternative to be considered is whether it is in his client’s interests to seek mitigation in the grade of the offense or in the severity of the sentence in exchange for a decision to forego appeal.
*529The commentary to this section, however, adds important limitations to the waiver suggestion. In addition to stressing the importance of both the rights of the accused and the processes of the courts in this context, the commentary also emphasizes that permitting this type of negotiation is the source of potential abuse:
There are, obviously, dangers of overreaching and abuse in a system that permits such negotiations. Reports have been heard of trial judges who refuse probation to some defendants, where otherwise warranted, unless they will agree to forego appeal. [ABA Project, supra at 52]
I would also add that plea bargaining, just like other forms of negotiation where the parties may not be of equal bargaining power, is clearly capable of producing unconscionable results. To prevent such abuses, appellate review must be available.
Although the commentary suggests that the principal safeguard against such abuse is open reporting of the basis for any action taken, I believe that a more realistic and straightforward approach is to exclude such negotiations in their entirety. I believe that a total preclusion is necessary not only to vindicate the rights of criminal defendants and to prevent abuses, but to preserve the integrity of the judicial process as well.
It is impermissible to allow criminal defendants to waive their right of appeal as part of a negotiated plea agreement. In reaching this conclusion, I accept the trial court’s finding that the instant plea bargain was voluntarily entered into by defendant. The right of appeal implicates many values which transcend the immediate interests of the parties; indeed, appellate supervision of the trial courts and the operation of the appellate process as a device for fashioning new law are at the very heart of our judicial system. Recognition of these values persuades me that it would be unwise for the State to insulate convictions, whether they derive from the trial process or pleas of guilty, from appel*530late review through plea negotiations with criminal defendants. The court has no right to put a price on the right of appeal. Defendant’s exercise of that right must be free. People v. Butler, supra; Worcester v. Commissioner of Internal Revenue, supra. Since I have concluded that the instant plea bargain contained an impermissible element and was thus illegal from its inception, I have no occasion to resort to the eases dealing with the standards governing the withdrawal of a guilty plea, e. g., State v. Deutsch, 34 N. J. 190 (1961); State v. Pomelti, 12 N. J. 446 (1953); State v. Johnson, 131 N. J. Super. 252 (App. Div. 1974); State v. Huntley, 129 N. J. Super. 13 (App. Div. 1974), certif. den. 66 N. J. 312 (1974).
Accordingly, I would vacate the plea bargain arrived at in the instant case. However, when a bargained-for plea is set aside “the defendant should not emerge free of the collaterally dismissed charges but only of his bargain.” State v. Rhein, 117 N. J. Super. 112, 121 (App. Div. 1971). Thus, I would give defendant the opportunity to withdraw his pleas of guilty to the escape and malicious destruction of property charges, but would reinstate the sodomy indictment.
Although I would not distinguish appeal waiver agreements involving guilty pleas from those following convictions, I believe that even with respect to the latter category of plea negotiations, the majority’s insistence upon “timely” challenges is unrealistic. I suggest that at the time of sentencing, or shortly thereafter, the question of appeal is not foremost in the mind of the defendant. Presumably, the plea is the result of the defendant’s belief, at the time at least, that such a course is in his interest. The initial flush of satisfaction inevitably becomes overshadowed by the all-too-real consequences of an over-hasty decision.' It is only upon reflection and reevaluation of many factors that the defendant is likely to conclude that he desires to take an appeal. To require that this decision must be made within the time limits *531permitted for a direct appeal places decisive emphasis upon the post-sentence period in which a defendant is probably most satisfied with the disposition of what may well be multiple, complex charges against him, all involving significant legal implications. In my judgment, the timely requirement insisted upon by the majority will, in practice, frustrate all but a very small number of challenges to this type of plea negotiation.
My personal objections transcend the time restrictions which the majority would impose on a defendant’s right of appeal, and are more properly directed to what I perceive as the majority’s overall dalliance with the right of appeal. In the instant case, we are asked to pass judgment on the imposition of one of the most severe sanctions at the disposal of society — incarceration. The decision to impose this penalty is not one which can be considered lightly, nor acceded to readily. Moreover, it represents the sort of situation for which appeal is the only real remedy. To further subject it to the vagaries of the plea bargaining process and permit reconsideration of a waiver only within an arbitrarily contracted time period, for me at least, crosses into the impermissible realm of coercion and unconscionability.
It is basically wrong to insist upon a waiver of a fundamental right to appeal as part of a plea bargain; it is unconscionable to refuse to review the propriety of such a waiver. The State should not and may not deal oppressively or coercively with a defendant. Such conduct should warrant an application for post-conviction relief. A prosecutor who insists upon a waiver of the right of appeal has overreached and abused a system that permits plea negotiations. If the Court’s opinion represents its particular notions of protecting criminal defendants’ rights, it is a theory in which I cannot concur.
I appreciate the problems confronting the State when it is required to prosecute indictments long since dismissed. Evidence is lost, witnesses move, memories dim. Accordingly, I would require a defendant to repudiate an alleged agree*532ment not to appeal within a reasonable time. Unlike the majority, however, I do not believe that a rigid rule governing this time period can, or should, be formulated. What is reasonable will vary with the many circumstances involved in each case, among others, the severity and number of crimes charged and the reasons for seeking an appeal. While the ultimate finding of reasonableness must be decided on a case-by-case basis, I am satisfied that the delay involved in the instant case was not unreasonable.
I would reverse.
Sohreiber, J., concurring in the result.
For affirmance — Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Con-ford. — 6.
For reversal — Justice Pashman — 1.
See State v. Spinks, supra at 573, n. 2.
See State v. Bryant, 68 N. J. 532 (1975), also decided today.
The record does not disclose the date of the last indictment.
I note that despite our directive in 94 N. J. L. J. 1 (1971), that all plea bargains must be placed in the record in open court, this procedure was not followed in the instant case. See also State v. Thomas, 61 N. J. 314, 321 (1972). As a result, Gibson’s trial counsel was called as a witness at his post-conviction relief hearing to testify about the terms of the agreement.
At the time of sentencing, Gibson was informed by the court that he had a right to appeal the sentences within 45 days. See R. 3:21-4(f).
R. 3 :22-2 provides:
A petition for post-conviction relief is cognizable if based upon any of the following grounds:
(a) Substantial denial in the conviction proceedings of defendant’s rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant’s conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law.
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
There is also a more pragmatic reason for entertaining this petition. Gibson relied on the challenged plea bargain in declining to prosecute a timely appeal. In this respect, an analogy can be made to the situation before the court in State v. Allen, 99 N. J. Super. 314 (Law Div. 1968), where defendant alleged that his conviction should be set aside because he had not been advised of his right to appeal. In concluding that the matter should be considered on the merits, the court said:
With respect to the propriety of the court hearing this matter on an application for post-conviction relief, the State argues that this matter is the subject matter of an appeal. * * * However, in cases such as this, where a defendant claims he did not know of his right to appeal and the time for filing an appeal has expired, the State’s position would forever bar the defendant from obtaining judicial relief. [99 N. J. Super, at 316; citations omitted]
See ABA Project, supra, Standards Relating to Criminal Appeals, § 1.3 (Approved Draft 1968) :
(a) A defendant should have the right to seek review of any final judgment adverse to him, including:
(iii) a conviction based upon plea of guilty or nolo contendere.
But see People v. Irizarry, 32 App. Div. 2d 967, 303 N. Y. S. 2d 332 (App. Div. 1969), aff’d mem. 27 N. Y. 2d 856, 317 N. Y. S. 2d 15, 265 N. E. 2d 540 (1970), where the court distinguished Ramos on the basis that in Irizarry there was no express provision for vacation of the guilty plea in the event of an appeal:
[I] t was merely stipulated that an additional indictment would not be dismissed until the time to appeal from the conviction based on appellant’s guilty plea had expired. [303 N. Y. S. 2d at 333].
*527See also People v. Williams, 36 N. Y. 2d 829, 331 N. E. 2d 684, 370 N. Y. S. 2d 904 (1975), in which the New York Court of Appeals recently sustained a plea bargain involving defendant’s waiver of his right to appeal the denial of a pretrial suppression motion.
Cf. North Carolina v. Pearce, 395 U. S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), in which the court concluded that neither the equal protection clause nor the double jeopardy provision of the federal constitution imposes an absolute bar to a more severe sentence upon reconviction after an appeal, but that
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. [395 U. S. at 725, 89 S. Ct. at 2080, 23 L. Ed. 2d at 669]