On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This case involves the maximum jail sentence that may be imposed on a third-time offender under the Driving While Intoxicated (DWI) statute when one of the prior convictions was uncounseled. In 1990, we held, in State v. Laurick, that the maximum jail sentence that could be imposed on a third-time offender of the DWI statute with one prior uncounseled conviction was ninety days, the maximum jail sentence that could be imposed for a second-time offender. But, subsequent to Laurick, in 1994, the United States Supreme Court held in Nichols v. United States, that an uncounseled prior conviction may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment.
Olga Hrycak was charged with DWI in September of 2002. She also had been convicted of DWI on two prior occasions. Her first DWI conviction occurred in 1990. Her second DWI conviction occurred in 1999. She claimed her first offense was uncounseled and moved to limit any period of incarceration to that of a first-time offender in accordance with Laurick. The trial court granted her motion and sentenced her as a first-time offender without any period of incarceration.
In the present case, Hrycak moved to be sentenced as a second-time offender. She informed the court that on the occasion of her second DWI conviction, based on her Laurick application, she was sentenced as a first-time offender. She also argued that because more than ten years has passed between her first conviction in 1990 and this one in 2002, she should be treated as a second-time offender under the statute. The municipal court sentenced Hrycak as a third-time offender to ninety days in jail with ninety days of community service, fines, surcharges, penalty costs, and a ten-year suspension of her driving privileges. On Hrycak's appeal to the Law Division, the court concluded that she should be sentenced as a third-time offender and imposed the same sentence as the municipal court. The Appellate Division affirmed the judgment.
This Court granted Hrycak's petition for certification.
HELD: We reaffirm our decision in Laurick that in the context of repeat DWI offenses, the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the actual period of incarceration imposed may not exceed that for any counseled DWI convictions.
1. In Laurick, we held that absent waiver of counsel, a prior uncounseled conviction is invalid for the purpose of increasing a defendant's loss of liberty. In the context of repeat DWI offenses, this means that the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the actual period of incarceration imposed may not exceed that for any counseled DWI convictions. In reaching that conclusion, we canvassed the development of the United States Supreme Court doctrine concerning the use of uncounseled convictions. We noted that in Baldasar v. Illinois, where four members of the Court concluded that uncounseled prior convictions cannot be used to enhance punishment, there was no majority opinion. We emphasized that because the Baldasar ruling did not command a majority opinion, there must be doubt not only of its vitality but of whether the United States Supreme Court would ever extend its holding. We concluded that there is a core value to Baldasar that we should follow: that an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty. Several years after our decision in Laurick, the United States Supreme Court resolved the uncertainty created by Baldasar when it decided Nichols. The Court overruled Baldasar, and held that consistent with the Sixth and Fourteenth Amendments of the Constitution, an uncounseled misdemeanor conviction is also valid when used to enhance punishment at a subsequent conviction. (pp. 8-10)
2. In 1998, in State v. Latona, the Appellate Division panel stated as to Baldasar, that it was satisfied that there is a core value to Baldasar that it should follow, an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty. We are in accord with the view expressed by the panel. Our decision in Laurick, wholly apart from the rationale in Baldasar, relied upon Rodriguez v. Rosenblatt. In Rodriguez, we emphasized our long held view that criminal defendants have a right to counsel. We recognized that it was not yet known whether the Supreme Court would limit to felony cases the Sixth Amendment right to counsel, but that other courts had done so. Ultimately, we determined that although not constitutionally or legislatively compelled, considerations of fairness dictate that appropriate steps be taken to protect unrepresented indigent defendants against injustices which may result from their inability to cope fairly with municipal court charges against them. We confirmed that holding in Laurick, where we emphasized the importance of advisement of the right to counsel when defendants are indigent and face a potential consequence of magnitude. Our current Court Rules provide that every person charged with a non-indictable offense shall be advised of his or her right to retain counsel and, if indigent and entitled by law to the appointment of counsel, of his or her right to have counsel assigned without cost. Thus, we provide for the right to counsel in DWI cases because the defendant faces a consequence of magnitude. (pp. 10-14)
3. We reaffirm our decision in Laurick that in the context of repeat DWI offenses, the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the actual period of incarceration imposed may not exceed that for any counseled DWI convictions. A prior uncounseled DWI conviction of an indigent is not sufficiently reliable to permit increased jail sanctions under the enhancement statute. A contrary conclusion would severely undermine the policy embodied in Rodriguez and our Court Rules. (pp. 14-15)
4. A defendant is faced with a three-step undertaking in proving that a prior uncounseled DWI conviction should not serve to enhance the jail component of a sentence imposed on a subsequent DWI conviction. 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. If 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. If 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. 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. Here, assuming Hrycak met the entirety of her burden with respect to her first DWI conviction, the maximum period of incarceration that she could have received a third-time offender with one prior uncounseled offense was ninety days. (pp. 15-16)
5. Hrycak argues that her sentence of a ninety-day prison term and a ninety-day community service requirement constitutes a greater period of incarceration than that provided for a second-time DWI offender. We agree. The second-time offender provision directs that a person shall be sentenced to imprisonment for a term of not less than 48 consecutive hours nor more than 90 days. For a second violation, the court must impose community service for a period of 30 days. However, for a third or subsequent DWI violation, the law provides that the person shall be sentenced to imprisonment for a term of not less than 180 days, except that the court may lower such term for each day, not exceeding 90 days, served performing community service. Therefore, in order for Hrycak to be required to serve ninety days of community service, the court had to first impose a period of incarceration of 180 days and then lower it for each day of the ninety days of community service. That would be an impermissible sentence as applied to Hrycak because it is equivalent to a period of incarceration greater than ninety days. We recognize, however, that the legislative intent could not have been to provide a greater penalty for a second-time offender (a maximum of ninety days imprisonment and thirty days community service) than for a third-time offender with one prior uncounseled conviction (a maximum of ninety days imprisonment with no community service). (pp. 16-18)
6. Recently, we faced a comparable anomaly. In Reiner, the question was whether the heightened penalties contained in N.J.S.A. 39:4-50(g), applicable upon conviction of a second DWI offense within 1,000 feet of school property, may be imposed when a defendant's first DWI offense did not occur within a school zone. We held that although the defendant was a first-time offender in respect of the subsection (g) conviction, because he was a second-time offender of subsection (a) (a DWI conviction without regard to a school zone), the defendant should be sentenced in accordance with the first-time subsection (g) penalties, and with the enhanced penalties for a second-time offender under subsection (a). We reach a similar result in the present case. We read the DWI statute for a third-time offender with one prior uncounseled DWI conviction to allow for the imposition of incarceration no greater than that for a second-time offender, i.e., ninety days, and to allow for the imposition of the second-time offender requirement of thirty days of community service. (pp. 18-19)
7. Although Hrycak informed both the municipal court and the Law Division that Laurick required that she be sentenced as a second-time DWI offender, neither trial court decided whether the first DWI conviction was uncounseled. We remand for Hrycak to establish her Laurick burden with respect to her first DWI conviction. If Hrycak fails to do so, the previously imposed sentence stands. If Hrycak satisfies her Laurick burden, the trial court shall impose a period of incarceration not to exceed the maximum period of incarceration that the Legislature has proscribed for a second-time DWI offender and the administrative penalties for a third-time DWI conviction, along with the period of community service provided for a second-time DWI offender. (pp. 19-20)
The matter is REVERSED and REMANDED to the Law Division for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN and RIVERA-SOTO join in JUSTICE WALLACE's opinion.
The opinion of the court was delivered by: Justice Wallace, Jr.
This case involves the maximum jail sentence that may be imposed on a third-time offender under the Driving While Intoxicated (DWI) statute, N.J.S.A. 39:4-50, when one of the prior convictions was uncounseled. The Municipal Court sentenced defendant as a third-time offender and imposed a ninety-day county jail sentence with ninety days of community service. The Superior Court, Law Division imposed the same sentence and the Appellate Division affirmed in an unpublished opinion.
We held in State v. Laurick, 120 N.J. 1, 16 (1990), cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990), the maximum jail sentence that could be imposed on a third-time offender of the DWI statute with one prior uncounseled conviction was the maximum jail sentence that could be imposed for a second-time offender, i.e. ninety days, but that the enhanced administrative penalties and fines for a third-time offender should be imposed. Subsequent to our decision in Laurick, the United States Supreme Court held that an uncounseled prior conviction "may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment." Nichols v. United States, 511 U.S. 738, 746-47, 114 S.Ct. 1921, 1927, 128 L.Ed. 2d 745, 754 (1994).
We granted defendant's petition for certification to reconsider our decision in Laurick. We now reaffirm our holding in Laurick that an uncounseled DWI conviction may not be used to enhance the period of incarceration for a subsequent offense. Supra, 120 N.J. at 16. We reverse and remand for a determination of whether defendant's first DWI conviction was uncounseled, and if so, the maximum jail sentence ...