June 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONATHAN NOBILE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-4751-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2007
Before Judges Parker and Messano.
Defendant Jonathan Nobile appeals the June 13, 2006, order of the Law Division which, after de novo review, affirmed the municipal court's prior denial of defendant's petition for post-conviction relief (PCR). We have carefully considered the record in light of appropriate legal standards. We affirm for reasons other than those expressed by the Law Division judge, but remand the matter for further proceedings consistent with this opinion.
The salient facts are these. Defendant was convicted in Sparta Township municipal court of driving while intoxicated (DWI) on July 25, 1995 and again convicted in Byram Township municipal court of DWI on September 17, 1996. He contends that both convictions were without the benefit of counsel.
On February 23, 2006, and again on March 16, 2006, defendant pled guilty in Sparta Township municipal court to DWI for a third and fourth time. All the appropriate administrative fines and penalties were imposed, defendant's driver's license was suspended for two consecutive ten-year periods, and two consecutive 180 day terms of imprisonment were imposed pursuant to N.J.S.A. 39:4-50(a)(3). The court stayed the terms of imprisonment pending defendant's appeal.
Defendant then filed a PCR petition in Byram Township municipal court claiming his prior conviction in that court in 1996 was uncounseled and he sought relief pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990). His application was summarily denied by the municipal court judge who determined that defendant's application was time-barred by R. 7:10-2(b)(2), and that defendant had not shown any excusable neglect for failing to bring the application sooner.*fn1
Defendant appealed to the Law Division where the judge affirmed the municipal judge's determination. Although initially uncertain whether a PCR petition was the appropriate mechanism for the relief sought by defendant, the judge concluded defendant's petition was time-barred noting, "[I]t is generally a good idea to bring post conviction relief attacks on underlying convictions within a reasonable time." This appeal ensued.
Defendant contends that his right to challenge the 1996 uncounseled DWI conviction in Byram Township pursuant to the holding in Laurick is independent of any time limit contained in the court rules. Alternatively, he argues that his application fits within exceptions to the Rule's time constraints and therefore is not untimely. Lastly, he argues that his failure to timely file his PCR was based upon excusable neglect. In sum, defendant contends he was entitled to a hearing before the Byram Township municipal court and that it was error to summarily dismiss his petition without one.
The State argues that defendant's PCR petition was properly dismissed because it was untimely without exception or excusable neglect under R. 7:10-2. Alternatively, the State contends that the transcript from the entry of defendant's guilty plea before the Byram Township municipal court in 1996 demonstrates he was not entitled to any relief pursuant to Laurick.
We begin by examining R. 7:10-2 which governs PCR petitions in municipal court. It provides, in pertinent part,
(a) Petition for Relief. A person convicted of an offense may . . . file . . . a petition for post-conviction relief captioned in the action in which the conviction was entered.
(b) Limitations and Exclusiveness.
(1) A petition to correct an illegal sentence may be filed at any time.
(2) A petition based on any other grounds shall not be accepted for filing more than five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked, unless it alleges facts showing that the delay in filing was due to defendant's excusable neglect.
(c) Grounds. A petition for post-conviction relief is cognizable if based on any of the following grounds:
(1) substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of New Jersey;
(2) lack of jurisdiction of the court to impose the judgment rendered on defendant's conviction;
(3) imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law; or
(4) any ground previously available as a basis for collateral attack on a conviction by habeas corpus or any other common law or statutory remedy.
(d) Bar of Grounds Not Raised in Prior Proceedings; Exceptions.
(1) The defendant is barred from asserting in a proceeding under this rule any grounds for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of R. 3:22-4, or in any appeal taken in any of those proceedings, unless the court on motion or at the hearing finds that:
(A) the grounds for relief not previously asserted could not reasonably have been raised in any prior proceeding;
(B) enforcement of the bar would result in fundamental injustice; or
(C) denial of relief would be contrary to the Constitution of the United States or of New Jersey.
The Rule was adopted October 6, 1997, and became effective on February 1, 1998. Also adopted at the same time was an amendment, ultimately codified in R. 7:8-8(a), which extended from three years to five years the period that "[e]very sound recording and stenographic record of proceedings" in municipal court must be retained.
In Laurick, the Court considered "whether the . . . prior guilty plea to a charge of [DWI] . . . without the advice of counsel prevents the imposition of enhanced penalties on a second DWI conviction." Lurick, supra, 120 N.J. at 4. The Court ultimately concluded that
[A]n uncounseled conviction without waiver of the right to counsel 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. [Id. at 16.]
In order to obtain the benefit of the Court's ruling, however, a defendant must bear the burden of proving he suffered a "fundamental injustice" from the municipal court's failure to advise him of the right to counsel and its failure to secure his voluntary waiver of same. Id. at 16-17. The Court held that a defendant, in post-conviction relief proceedings, must demonstrate he "(a) was unaware of [his right to counsel], and (b) if indigent, would have derived benefit from the notice [of his right to counsel] by seeking the assistance of counsel. A non-indigent defendant would have to show in addition that the lack of notice otherwise affected the outcome." Id. at 17.
At the time, no rule permitted post-conviction relief in the municipal courts. Id. at 9. Relying upon precedent and R. 3:22-4, which permitted the filing of PCR petitions after criminal convictions, the Court adopted the following procedure to allow defendants to challenge an increased custodial sentence for second or subsequent DWI convictions based upon a prior uncounseled conviction:
Post-conviction relief from the effect of prior convictions should normally be sought in the court of original jurisdiction, which will be in the best position to evaluate whether there has been any denial of fundamental justice. Appeals from the disposition in that court shall be combined with any appeal from proceedings involving the repeat offense. [Id. at 17.]
In State v. Latona, 307 N.J. Super. 387 (App. Div.), certif. denied, 154 N.J. 607 (1998), we considered Laurick's continued vitality in light of the United States Supreme Court's ruling in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed. 2d 745 (1994). In Nichols, the Court concluded that "an uncounseled conviction . . . may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment." Id. at 746-47. We concluded, nevertheless, that the Court's holding in Laurick was still binding precedent upon us. Latona, supra, 309 N.J. Super. at 389.
The factual circumstances of Latona are relevant to the issues presented in this case. There, the defendant pled guilty in 1996 in Sparta Township municipal court to his third DWI conviction and was sentenced by the municipal court as a third offender, to a period of 180 days imprisonment. Id. at 388. On de novo appeal, the Law Division judge reduced defendant's jail sentence to 90 days, consistent with the sentence imposed for a second DWI offense, based upon the undisputed fact that defendant's first DWI conviction, in Mt. Olive Township in 1988, was uncounseled. Id. at 388-89. We affirmed the Law Division's modification of the sentence. Id. at 390.
Although we decided Latona after R. 7:10-2 was proposed, and days before it was adopted, we did not address the Rule's relevancy, or its time constraints, in our opinion. And, as demonstrated by the brief factual recitation above, we permitted defendant to challenge the enhanced custodial portion of his sentence at the time of his guilty plea, in the municipal court where he pled guilty, and without the need to file a PCR petition. Furthermore, we did not consider defendant's application time-barred despite the fact that it was based upon an eight-year old conviction.
Fifteen years after Laurick, our Supreme Court decided State v. Hrycak, 184 N.J. 351 (2005). The defendant in Hrycak had been convicted of DWI in 1990 and 1999. Id. at 355. Upon her second conviction, she moved under Laurick to be sentenced as a first offender and the municipal court granted her request. Ibid. She was convicted of DWI a third time in 2002 and moved again to be sentenced as a second offender based upon her first uncounseled conviction. Ibid. The municipal court and the Law Division denied her request; in an unreported opinion, we affirmed her sentence as a third offender on other grounds. Id. at 355-56.
The Supreme Court reversed. Although R. 7:10-2 had been in existence for seven years, the Court did not mention the Rule in its decision. And, while it "affirm[ed] the continuing vitality of Laurick as it applies to our jurisprudence," id. at 363, the Court adopted a different procedure by which a defendant could challenge the imposition of an enhanced term of imprisonment.
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. 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. [Id. at 363 (emphasis added).]
The Court ultimately remanded the matter to the trial court to permit defendant "to establish her Laurick burden with respect to her first DWI conviction." Id. at 366.
In short, the Court abandoned the requirement that a request for a Laurick hearing be filed as a PCR petition in the municipal court where the prior conviction arose. Since the Court did not consider the defendant's application as a PCR petition, it did not address the time constraints contained within R. 7:10-2. Thus, despite the Rule's five-year time limitation, the defendant in Hrycak was permitted to argue that her twelve-year old predicate conviction was uncounseled, that she did not voluntarily waive counsel, and, therefore, the imposition of an enhanced term of imprisonment on her latest conviction was fundamentally unfair.
From this progression of decisional jurisprudence, we conclude that defendant's challenge to his sentences as a third and fourth DWI offender based upon Laurick grounds should have properly been made before the Sparta Township municipal court at the time of sentencing. If unsuccessful, defendant could have raised the issue on direct appeal before the Law Division thereafter. Our review of the transcript before the Law Division reveals the judge initially believed this was the appropriate procedure; ultimately, however, he yielded to the position espoused by both defense counsel and the assistant prosecutor that Laurick required the matter to proceed as a PCR petition before the municipal court, and he applied R. 7:10-2's time limitation to dismiss the petition.
Requiring the Laurick challenge to be brought in the sentencing proceeding on a second or subsequent DWI conviction recognizes that the essential nature of the issue is not a challenge to the predicate conviction, and, hence, not cognizable as a ground for post-conviction relief under R. 7:10-2. None of the four grounds for relief in the Rule apply to the issue raised in a Laurick hearing.
Stated differently, a defendant raising a Laurick challenge is not claiming the municipal court in which he was convicted "lack[ed] jurisdiction," or "impos[ed] [a] sentence in excess of or otherwise not in accordance with the sentence authorized by law," nor is he raising a "collateral attack on [the] conviction by habeas corpus or any other common law or statutory remedy." R. 7:10-2(c)(2), (3) and (4). Likewise, the defendant is not claiming a "substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of New Jersey." R. 7:10-2(c)(1). As the Laurick court noted, the relief it accorded was not based upon any claimed constitutional or statutory violation, 120 N.J. at 10, but rather upon "a core value" "that an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty." Id. at 16.
We also gather from the post-Laurick cases that the time constraints contained in R. 7:10-2 and generally recognized in PCR jurisprudence simply should not apply to the application. As noted, the challenges considered in Latona and Hrycak were both well beyond the five-year limitation contained in R. 7:10-2(b)(2).
Furthermore, freeing the Laurick application from the five-year time bar of the rule makes common sense. As defendant argued here, the fact that the prior conviction may have been uncounseled would, in and of itself, be of no moment unless and until there was a subsequent DWI conviction. In fact, a Laurick challenge simply could not be brought until a second or subsequent conviction. Only then would the fundamental unfairness that Laurick addressed come into being because only then would defendant suffer potential increased custodial sanctions. Since a defendant may never know if a second or subsequent offense would occur, and, therefore, a second or subsequent conviction, it would be illogical to apply the Rule's five-year time limit to such an application.
We must conclude, therefore, that the Supreme Court's decision in Hrycak signaled its intention to remove the filing of Laurick applications from the strict substantive and time constraints of R. 7:10-2 which governs PCR petitions in the municipal courts, and allow the challenge to be presented to the municipal court hearing the "second or subsequent DWI proceeding." Hrycak, supra, 184 N.J. 363.
As a result, we affirm the decision of the Law Division dismissing defendant's PCR petition for reasons other than those expressed by the judge. Home Properties of N.Y. v. Ocino, Inc., 341 N.J. Super. 604, 616 (App. Div. 2001). However, we conclude that defendant must be permitted to substantively raise his Laurick challenge in the Sparta Township municipal court where his third and fourth DWI convictions occurred.
The State alternatively argues that the transcript from defendant's 1996 guilty plea before the Byram Township municipal court clearly demonstrates that he cannot meet his Laurick burden. Although both the municipal court judge considering the PCR petition, and the Law Division judge on appeal, had the transcript at the time they considered the issue, neither conducted a hearing or considered the merits of defendant's request because they believed the issue was time-barred. Defendant argues it would now be inappropriate for us to consider the issue through the exercise of our original jurisdiction because he has not had any opportunity to present additional sworn testimony in support of the Laurick application.
Our review of the 1996 transcript reveals a clear exchange between the municipal court judge and defendant regarding the charges and the possible penalties he faced since he was a repeat offender. Although defendant was not represented by counsel, defendant told the judge of his prior consultation with an attorney and his subsequent decision not to retain one. Before the Law Division judge, and before us, defendant contends he should have the opportunity to offer additional proof beyond the bare transcript, proof that may affect the issue of the voluntary nature of any waiver of counsel.
In light of the transcript, defendant's burden may indeed be a heavy one. Nevertheless, we believe it is appropriate to remand the matter to the municipal court for further proceedings consistent with this opinion. If defendant has in fact already been accorded a Laurick hearing in the Sparta Township municipal court on the 1996 Byram Township guilty plea, then no further proceeding is necessary.*fn2
Affirmed; remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.