On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, MAM-39-99.
Before Judges Pressler, Kestin and Alley.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2000
Defendant was charged with violating N.J.S.A. 39:3-40, driving with a suspended driver's license; and N.J.S.A. 39:3-29, failure to have driver's credentials in her possession. The August 4, 1998 verbatim record in the South Brunswick Municipal Court discloses that, after representations from counsel for both the State and defendant, the court regarded a plea of guilty to the first charge to have been entered, and proceeded to "merge" the second charge into it. Defendant was then sentenced, as mandatory upon conviction for a third offense, N.J.S.A. 39:3-40c, to a ten-day jail term and a $1,000 fine. The trial court provided that the jail term would be served on work release and that the fine would be discharged on a payment plan ordered by the court. Costs in the amount of $30 were also assessed.
On October 1, 1998, defendant moved in the municipal court to vacate the guilty plea and for other relief including the suppression of evidence. The motion to vacate was denied after oral argument on April 13, 1999. The court ordered defendant to begin serving her jail term on May 14, 1999, unless defendant filed an appeal with the Law Division from that denial, in which event the jail term would be stayed.
On May 13, 1999, defendant filed a motion in the Law Division to enlarge the time to appeal beyond the twenty-day time period provided by R. 3:23-2. The motion was returnable on June 1, 1999, and oral argument was heard on that date from counsel for defendant alone. The motion was denied in an order entered on June 9. On June 1, however, the Law Division judge had stayed the jail term for an additional thirty days in recognition of defendant's expressed intention to apply to the municipal court for post-conviction relief based, presumably, on prior counsel's assertedly inadequate representation and the substantive issues raised.
This appeal followed instead by a notice of appeal filed on June 29. On August 9, 1999, an order was entered in the South Brunswick Municipal Court staying the sentence pending the outcome of this appeal.
On appeal, defendant raises a single issue: that the Law Division misapplied its discretion "in denying Martin a right to file an appeal out of time in light of her lack of notice of her appellate rights." We reverse and remand for this and other reasons.
The State, sua sponte, concedes one of those other reasons. In accepting and entering defendant's guilty plea, the municipal court judge elicited no factual basis as is required by R. 7:6-2(a)(1). See State v. Gale, 226 N.J. Super. 699 (Law Div. 1988). In fact, until the terms of the work release aspect of the sentence were discussed, the court did not address defendant at all. Thus, there was no opportunity for defendant to depict the following scenario as her version of the circumstances of her arrest, which she sets forth in her brief on appeal:
Martin, a[n] African[-]American [f]emale, . . . was standing by her car near her house when she was approached by a South Brunswick Police Officer. The Officer told her that they were investigating a report of a stolen green Honda Accord. Martin told the Officer she was Joan (Martin) after the Officer indicated that the Honda she was standing next to, was registered to Joan Martin who had a suspended New Jersey driver's license. Martin's arrest followed.
According to this version, defendant was not operating the vehicle at the time. Manifestly, if these facts had been recounted to the trial court as a circumstantial predicate for defendant's plea, there would have been no factual basis to sustain a charge of driving with a suspended license. The error grounded on this account, however, is only alluded to by defendant in the context of the one issue she raises on appeal. We also note in this connection that the summonses which were issued describe the location of the offenses as "S/B RTE 27/DELAR", (Da 1) which we take to denote southbound Route 27 at a particular location, an indication that the issuing police officer may have thought defendant was operating the motor vehicle at the time. Nevertheless, that recitation alone provided no adequate basis upon which to adjudicate guilt.
We also regard the structure of the disposition in municipal court to have been defective. It is inappropriate to order merger of one charged offense to which no plea of guilty has been entered with another in respect of which a guilty plea has been entered. Merger occurs, not of charges but rather of convictions, when there are two or more convictions which, by the standards of State v. Dillihay, 127 N.J. 42 ...