Laurick motions on uncounseled dwi guilty plea explained
NOT FOR PUBLICATION WITHOUT THE
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS DONNELLY,
Defendant-Appellant.
_______________________________
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Submitted November 16, 2015 - Decided
Before Judges Lihotz and Higbee.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Municipal Appeal No. 2-14.
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
Thomas Donnelly, appellant pro se.
Robert D. Bernardi, Burlington County Prosecutor,
attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant
Thomas Donnelly appeals from a May 21, 2014 Law Division order denying his
challenge to the imposition of incarceration penalties, pursuant to N.J.S.A.
39:4-50(a)(3), following his guilty plea to a fifth driving while intoxicated (DWI)
offense, N.J.S.A. 39:4-50. Defendant
argues two prior offenses were uncounseled and, most likely, this caused prior
sentencing courts to treat subsequent convictions in 1986 and 1987 as second
offenses. Further, he argues the time
elapsed between his fourth and fifth offense triggered the statutory "step-down,"
requiring his fourth offense be ignored for sentencing purposes.[1] Taken together, defendant argues when
imposing a period of incarceration, the custodial term set forth in N.J.S.A.
39:4-50(a)(2), must be imposed.
The facts
providing context for this legal challenge are not disputed. On December 12, 2013, defendant appeared
before the Evesham Township Municipal Court and pleaded guilty to DWI. This was defendant's fifth DWI offense; other
adjudications occurred in 1982, 1984, 1986, and 1987.
Before the
municipal court, defendant argued the resultant period of incarceration should be
as if this were his second violation. He
presented disposition records from his 1986 and 1987 convictions, both of which
inexplicably treated the violations as a second offense. No records were available regarding the 1982
or 1984 convictions, which defendant maintained were uncounseled. The municipal court allowed the
"step-down" reduction because defendant's last conviction was more
than ten years old and imposed penalties as if this were defendant's fourth
violation, apparently rejecting his argument the uncounseled convictions should
not be considered.
Defendant
appealed. In the trial de novo, the Law
Division judge also rejected defendant's argument, concluding he failed to
carry his burden to prove both the 1982 and 1984 convictions were the result of
the State's failure to provide him notice of his right to counsel. The State conceded it had no explanation for
why both the 1986 and 1987 offenses were treated as a second offense. However, the State insisted there was no
support to conclude in fact this status resulted after finding the pleas were
uncounseled. The judge acknowledged the sentences
imposed for 1986 and 1987 were not those required for a third and fourth
offense, but also found no evidence to show the sentence was "wrong,
illegal, or whether it was the benefit of some Laurick[2]
argument." The judge stated,
"I have nothing from any court anywhere nor counsel nor the defendant that
indicates that a court in 1982 or '84 ordered that there be no enhanced penalty
thereafter because he was uncounseled and didn't properly waive counsel on
those convictions in '82 and '84." Emphasizing
there were no affidavits from anyone explaining what happened in 1982 and 1984,
the judge noted defendant failed to carry his burden of proof and the judge was
not permitted to simply "guess."
The judge agreed the "step-down" applied because of the
twenty-six-year gap between the current offense and defendant's immediate prior
conviction in 1987. However, he declined
to allow any additional relief allowed by Laurick when guilty pleas to
DWI are uncounseled. The judge ordered defendant
incarcerated for 180 days in the county jail, a ten-year suspension of driving
privileges, an ignition interlock for one year thereafter, and mandatory fines
and assessments. Defendant
appealed. The Law Division stayed the custodial
portion of defendant's sentence pending our review.
Where
a municipal court judgment has been appealed to Superior Court, we consider
whether the Law Division's judgment is supported by sufficient credible
evidence in the record. State v.
Kuropchak, 221 N.J. 368, 382-83 (2015); State v. Kashi, 180 N.J.
45, 48 (2004). However, when the Law
Division's judgment rests entirely on the interpretation of the law, our scope
of review is de novo, without affording any special deference to the trial
court's interpretation of the law and the legal consequences that flow from
established facts. State v. Gandhi,
201 N.J. 161, 176 (2010); State v. Rivera, 411 N.J. Super.
492, 497 (App. Div. 2010).
The progressively
enhanced penalties imposed for repeat DWI offenses are militated, in part, by
the passage of time.
The statute includes a "step-down" provision,
under which a second DWI offender is treated as a first DWI offender for
sentencing purposes if more than ten years elapsed between his or her first and
second offenses, and a third DWI offender is treated as a second DWI offender
for sentencing purposes if more than ten years elapsed between his or her
second and third DWI offenses.
[State v. Revie, 220 N.J. 126, 128 (2014)
(citing N.J.S.A. 39:4-50(a)(3)).]
On appeal,
defendant again argues his second-offense treatment in 1987 likely resulted
because his 1982 and 1984 pleas were uncounseled and, therefore, should not be
considered when fixing the period of confinement for the 2013 offense.
In Laurick,
the Court considered whether an uncounseled guilty plea to a charge of DWI
"prevents the imposition of enhanced penalties on a second DWI
conviction." Laurick, supra,
120 N.J. at 4. The Court
concluded a "prior DWI conviction that was uncounseled in violation of
court policy may not be used to increase a defendant's loss of liberty";
however, the Court found "no constitutional impediment to the use of the
prior uncounseled DWI conviction to establish repeat-offender status under DWI
laws." See also Rodriguez
v. Rosenblatt, 58 N.J. 281, 294 (1971) ("[A]s a matter of
simple justice, no indigent defendant should be subjected to a conviction
entailing imprisonment in fact or other consequence of magnitude without first
having had due and fair opportunity to have counsel assigned without
cost.").
The
Court has made it very clear the Laurick holding, instructing sentencing
courts to disregard prior uncounseled DWI violations, affects only an imposed period
of confinement. Revie, supra,
220 N.J. at 139-40. These violations
remain applicable when considering "[t]he revocation of a DWI offender's
driver's license[,]" which "constitutes an administrative penalty
imposed by N.J.S.A. 39:4-50(a)." Id. at 140 n.4. See also State v. Hrycak, 184 N.J.
351, 362-63 (2005) (confirming an uncounseled DWI conviction may be used to
enhance the DWI administrative penalties set forth in N.J.S.A.
39:4-50(a)). Consequently, the number of prior DWI violations actually
considered for purposes of imposing a term of incarceration may differ from the
number of prior DWI violations considered when imposing administrative
penalties. Hrycak, supra,
184 N.J. at 362-63.
The
burden of proving that a prior uncounseled DWI conviction should not enhance
the jail component of a sentence imposed on a subsequent DWI rests with a
defendant, who "is faced with a three-step undertaking." Id. at 363.
As a threshold matter, the defendant has the burden of
proving in a second or subsequent DWI proceeding that he or she did not receive
notice of the right to counsel in the prior case. He or she must then meet the two-tiered Laurick
burden. Supra, 120 N.J. at
11. In that vein, if [the] defendant
proves that notice of the right to counsel was not provided, the inquiry is
then bifurcated into whether the defendant was indigent or not indigent. "[I]f [the] defendant [was] indigent,
[the defendant must prove that] the DWI conviction was a product of an absence
of notice of the right to assignment of counsel and non-assignment of such
counsel without waiver." Ibid. On the other hand, if the defendant was not
indigent at the time of the prior uncounseled conviction,
[the] defendant should have the right to establish
such lack of notice as well as the absence of knowledge of the right to be represented
by counsel of one's choosing and to prove that the absence of such counsel had
an impact on the guilt or innocence of the accused or otherwise 'wrought a
miscarriage of justice for the individual defendant.'
[Ibid.
(quoting [State v.] Cerbo, 78 N.J. [595,] 607
[(1979)]).]
[Hrycak, supra, 184 N.J. at 363
(second, third, fourth, fifth and sixth alterations in original).]
The
Law Division judge's findings stating defendant failed to meet this burden are
supported by this sparse record, which contains no evidence explaining the
circumstances surrounding the 1982 and 1984 convictions. Absent such proof, the judge correctly
concluded he could not merely assume Laurick had been applied.
However, Laurick
was not decided until 1990. Thus, its application
could not have been considered when defendant was sentenced in 1986 and
1987. Accordingly, this case presented
the first opportunity for defendant to seek Laurick's application to any
prior uncounseled DWI violations. Based
on comments during the Law Division hearing, this simple fact may have been
overlooked by defense counsel, while attempting to untangle the complexities of
this matter.
"[B]ecause
of the severity of the penalties [that] flow from a DWI conviction, both direct
and indirect, our duty is to ensure that the DWI statute is enforced fairly, based
on established principles of jurisprudence." Conroy, supra, 397 N.J.
Super. at 329. More importantly,
justice demands when a defendant, who is subjected to a conviction entailing
imprisonment pleads guilty, there must be a waiver of the opportunity to be
represented by counsel. Laurick, supra,
120 N.J. at 16-17. Balancing
all applicable considerations, we conclude it necessary to remand this matter
to the Law Division for the limited purpose of allowing defendant thirty days
to file his requisite applications to establish his Laurick burden as
defined in Hrycak to any alleged uncounseled convictions. If defendant does so, the judge shall consider
the result and resentence defendant to the appropriate period of incarceration,
required by N.J.S.A. 39:4-50. If
he fails to do so, the judge shall finalize the originally ordered sentence,
which included 180 days incarceration.
The remainder of defendant's sentence is affirmed.
Affirmed in part
and remanded in part. We do not retain
jurisdiction.
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[1]
In State v. Revie, 220 N.J.
126 (2014), the Court reviewed the statutory history of N.J.S.A.
39:4-50(a)(3), underscoring that the 1977 amendment adding a third grade of punishment
for third or subsequent DWI offenses also included for the first time a
"step-down" provision, triggered by the passage of time from the
first DWI offense. See L.
1977, c. 29, § 1 (codified, as amended, N.J.S.A.
39:4-50(a)). See Revie, supra,
220 N.J. at 133-34 (setting forth history of N.J.S.A.
39:4-50). Later amendments led to the
current statute, which provides the following "mandatory" provision, State
v. Conroy, 397 N.J. Super. 324, 330 (App. Div.), certif. denied,
195 N.J. 420 (2008):
A person who has been convicted of
a previous violation of this section need not be charged as a second or
subsequent offender in the complaint made against him in order to render him
liable to the punishment imposed by this section on a second or subsequent
offender, but if the second offense occurs more than 10 years after the first
offense, the court shall treat the second conviction as a first offense for
sentencing purposes and if a third offense occurs more than 10 years after the
second offense, the court shall treat the third conviction as a second offense
for sentencing purposes.
[N.J.S.A. 39:4-50(a)(3).]
[2]
State v. Laurick, 120 N.J.
1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L.
Ed. 2d 413 (1990).
