On certification to the Superior Court, Appellate Division, whose opinion is reported at 231 N.J. Super. 464 (1989).
For reversal and remandment -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.
The question in this case is whether the assertion that a prior guilty plea to a charge of driving while intoxicated (DWI) was without the advice of counsel prevents the imposition of enhanced penalties on a second DWI conviction.
There are two aspects of our analysis. The first is constitutional analysis of the limits on a state's power to impose recidivist penalties on the basis of uncounseled convictions. The second is a more familiar judicial analysis of what constitutes good cause for collateral relief from an earlier judgment of conviction.
We hold that with the exception that a prior DWI conviction that was uncounseled in violation of court policy may not be used to increase a defendant's loss of liberty, there is no constitutional impediment to the use of the prior uncounseled DWI conviction to establish repeat-offender status under DWI laws. With respect to collateral consequences of an uncounseled conviction other than a loss of liberty, any relief to be afforded should follow our usual principles for affording post-conviction
relief from criminal judgments, namely, a showing of a denial of fundamental justice or other miscarriage of justice.
The significance of the ruling lies in the progressively enhanced penalties that second and third offenders receive under our drunk driving laws. N.J.S.A. 39:4-50. Without intending this to be a definitive digest of such provisions, which are often amended, we note the following: Penalties for first offenders include a fine between $250 and $400, detainment between twelve and forty-eight hours at an Intoxicated Driver Resource Center, license suspension for a period between six months and one year, and up to thirty days' imprisonment. N.J.S.A. 39:4-50(a)(1). Second offenders must do thirty days of community service, and are subject to a fine between $500 and $1,000, a mandatory two-year license revocation, and from forty-eight hours' to ninety days' imprisonment. N.J.S.A. 39:4-50(a)(2). Penalties for third offenders include a mandatory $1,000 fine, a mandatory ten-year license revocation, and a mandatory 180-day prison term, which may be commuted to ninety days with ninety days' community service. N.J.S.A. 39:4-50(a)(3). A court imposing a term of imprisonment may sentence an offender to an inpatient rehabilitation program or other facility approved by the Director of the Division of Alcoholism in the Department of Health. In the alternative a court may sentence a first or second offender to an Intoxicated Driver Resource Center. Ibid. All DWI offenders must satisfy the screening, evaluation, referral, program, and fee requirements of the Division of Alcoholism's Intoxicated Driving Programs Unit and of the Intoxicated Driver Resource Centers, and must complete a program of alcohol education and highway safety. N.J.S.A. 39:4-50(b). In addition, pursuant to the New Jersey Automobile Insurance Reform Act of 1982, L. 1983, c. 65, every offender is subject to an insurance surcharge of $1,000 a year for three years, but a third offense within three years results in an increase to $1,500 a year. N.J.S.A. 17:29A-35(b)(2). Every
offender must pay a $100 Drunk Driving Enforcement Fund surcharge. N.J.S.A. 39:4-50.8.
In this case defendant was arrested for DWI on September 4, 1985. After unsuccessfully challenging breath-test results, he pled guilty in municipal court on June 22, 1987. During the 1987 plea proceedings he admitted that he had pled guilty to the same charge in 1982. He stated, however, that at the earlier proceeding he had been unrepresented by counsel, unaware of his right to counsel, and uninformed of that right by the previous judge. The Law Division judge, who was sitting as Municipal Court Judge, sentenced defendant as a first offender, and ruled in a reported opinion that defendant's prior uncounseled conviction could not be used to enhance punishment absent an intelligent waiver of right to counsel. 222 N.J. Super. 636, 537 A.2d 792 (1987). He relied on Rodriguez v. Rosenblatt, 58 N.J. 281, 277 A.2d 216 (1971), which established a right to counsel whenever defendant is exposed to a "consequence of magnitude." The Appellate Division affirmed, agreeing with the lower court that in the face of defendant's statement, there could be no presumption that the 1982 municipal court informed defendant of his right to counsel, as it was required to do by Rule 3:27-2. 231 N.J. Super. 464, 555 A.2d 1133 (1989); see also State v. Carey, 230 N.J. Super. 402, 553 A.2d 844 (App.Div.1989) (no presumption that municipal court regularly followed administrative directive to inform defendants of right to counsel).
There were no proofs presented at the 1987 sentencing proceeding to rebut defendant's statement that the 1982 court had failed to advise him of the right to appointed or retained counsel. Stenographic or sound recordings of municipal court proceedings are required to be kept for only three years. R. 7:4-5(a). The municipal court judge who presided at the 1982 plea proceeding did not testify. For purposes of this appeal, however, we accept the posture of the case as we have received it, namely, that there was an absence of the Rodriguez advisory at the start of the 1982 municipal court proceedings. We
It is now well settled that there is a sixth-amendment right to counsel in felony cases. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). In misdemeanor cases there is a right to counsel only if the conviction results in imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).
As Justice Jacobs pointed out in Rodriguez v. Rosenblatt, supra, 58 N.J. at 285, 277 A.2d 216, New Jersey has "never utilized the traditional English felony-misdemeanor classification." We have viewed the difference as between indictable offenses and non-indictable offenses, familiarly known as disorderly persons. We have a long history of legislative concern that where an indictment has been returned against a defendant who is indigent, the accused shall be entitled to assigned counsel without cost. Ibid. (citing Act of March 6, 1795, Paterson, Laws 162 (1800)); see State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966). At the time of the Rodriguez decision every person charged with an indictable offense was entitled to retain counsel and to have the office of the Public Defender represent him or her if indigent. Our Rules of Court required that such persons be advised of such rights. R. 3:27-1.
In Rodriguez the Court recognized that the federal constitutional guarantee of jury trial is inapplicable to petty offenses, which have generally been considered to be those punishable by no more than six months in prison, and noted that it "join[ed] the many state courts which have announced that, pending further controlling decision by the Supreme Court, there will be no inflexible constitutional compulsion to assign counsel without cost to indigents ...