Decided: August 8, 1990; As Corrected October 11, 1990.
This petition for post-conviction relief raises an issue of first impression; namely, whether a petitioner may challenge, in this State, the constitutionality of a foreign conviction, which was used to enhance his sentencing by this court, when the foreign conviction is not presumptively void.
Petitioner Gregory Marshall has moved for post-conviction relief, pursuant to R. 3:22-2(c), on the ground that he was sentenced in excess of, or otherwise not in accordance with, that authorized by law. Petitioner, convicted of armed robbery in 1983 and sentenced as a persistent offender to a term of 30 years with a parole ineligibility term of 15 years, offers three arguments in support of his motion: first, that a 1968 conviction in the State of Oklahoma stems from a constitutionally defective plea bargain and was therefore improperly used to enhance his New Jersey sentence; second, that the State's motion to impose an extended term had been improperly served; and third, that, at the time of the original sentencing, this court improperly balanced aggravating and mitigating factors and relied upon a materially inaccurate presentence report. The
last of these arguments has already been raised, and rejected, and need not be discussed here.*fn1 The first and second arguments, however, are new and merit analysis and will be addressed in reverse order.
Petitioner submits that he had no knowledge of the State's motion to impose an extended term until the day of sentencing. In an alleged violation of R. 3:21-4(d) and denial of due process, petitioner states that this motion was served, not personally, but only upon his attorney.
The petitioner, however, has misconstrued this rule. Pursuant to R. 3:21-4(d), the motion for an extended term simply had to be filed with the court within 14 days of the return of the verdict. Only when a defendant is pleading guilty pursuant to a negotiated disposition, must the prosecutor file the motion prior to the date of the plea and serve the motion upon defendant and defendant's counsel. Since petitioner's conviction was not the result of a negotiated plea agreement, there was no requirement that the motion be personally served upon him. See State v. Martin, 110 N.J. 10, 18, 538 A.2d 1229 (1988). Furthermore, as the Appellate Division noted, when it rejected the argument that this court had erred in sentencing petitioner to an extended term, petitioner had been put on notice before the trial even began, at the Sands hearing*fn2, that the State would seek to use his prior convictions for both impeachment and sentencing purposes. The service of the motion for an extended term upon Marshall's attorney did not violate petitioner's constitutional right to due process and does not present a valid reason for post-conviction relief.
Petitioner primarily argues that this court improperly relied upon one of his prior convictions at the time of sentencing, independently of the issue of notice. He asserts that his 1968 guilty plea in the State of Oklahoma was involuntary in that it was induced through materially inaccurate representations by the prosecutor that petitioner faced the death penalty as a potential consequence of the charge of robbery by force. Absent such misrepresentations, petitioner contends he would have taken this matter to trial and relied upon his defense that, though he may have been guilty of assault, he was not guilty of robbery as he claims not to have had knowledge a robbery had taken place until he was informed by others of the fact. To be sure, a guilty plea may not be constitutionally entered unless it is made intelligently and voluntarily with an "understanding of the nature of the charge and the consequences of the plea." Henderson v. Morgan, 426 U.S. 637, 644-645, 96 S. Ct. 2253, 2257-2258, 49 L. Ed. 2d 108, 114 (1976). Petitioner contends that, with a capital sentence staring at him, he did not enter a voluntary plea.
The State argues that, in a post-conviction relief proceeding, a defendant may not raise, on collateral attack, issues that might reasonably have been raised on direct appeal. See R. 3:22-4. There are, however, exceptions to this general rule and a ground not raised on direct appeal may be raised on collateral review if denial of the petition would be contrary to the Constitutions of the United States or the State of New Jersey, or would result in fundamental injustice. State v. Laurick, 120 N.J. 1, 10, 575 A.2d 1340 (1990). Similarly, the existence of a substantial constitutional question which is raised by this petition overcomes the other potential, procedural bars to petitioner's application which are cited by the State.*fn3
It is well settled that a prior conviction may not be used to enhance punishment for a later conviction if the prior conviction was obtained in a constitutionally impermissible manner. Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987). In Burgett, the United States Supreme Court ruled that, where the defendant's prior Tennessee conviction was unconstitutional, it was reversible error for a Texas court to allow it into evidence under a Texas recidivist statute. There, the records of the prior conviction demonstrated that defendant had been denied his right to counsel. The prior conviction was void and its subsequent use resulted, in effect, in defendant's suffering anew from the deprivation of his Sixth Amendment right to counsel. The Supreme Court ruled that states are free to provide the recidivist procedures of their choice provided that none of such procedures or rules of evidence "infringes a guarantee in the Federal Constitution." 389 U.S. at 114, 88 S. Ct. at 261, 19 L. Ed. 2d at 324.
The right to counsel is just such a guarantee. Where the record of a prior conviction shows, on its face, that a defendant was not represented by counsel, the prior conviction is presumptively void. Yet, where a prior conviction is not presumptively void, or, in other words, is not unconstitutional on its face, the use of the prior conviction to impose additional penalties under a recidivist ...