On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 29-06.
The opinion of the court was delivered by PARKER, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION May 5, 2008
Argued September 19, 2007
Before Judges Wefing, Parker and Lyons.
Defendant William Schadewald appeals from his third conviction for driving while intoxicated (DWI), N.J.S.A. 39:4- 50, after de novo review. This appeal focuses on defendant's sentence to 180 days in the Hudson County Jail. He may serve up to ninety days in an inpatient rehabilitation facility pursuant to N.J.S.A. 39:4-50(a)(3). The sentence was stayed pending appeal.
Defendant pled guilty in municipal court, but argued that he was entitled to a "step-down" in sentencing from a third offense to a second in accordance with State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990). During his plea colloquy, defendant acknowledged that he was previously convicted of DWI in 1989 and again in 2003. He argued, however, that in 1989, he pled guilty without the benefit of counsel. He presented the municipal judge with a copy of the 1989 summons which had a notation that stated:
Explained rights. He talked to his attorney three weeks ago. A 27 year man, attended college. Elected pro se on attorney advice.
The municipal judge denied defendant's application for a step-down in sentencing because the note on the summons indicated that defendant had spoken with counsel before appearing pro se. The municipal judge stayed the custodial sentence pending appeal to the Superior Court, Law Division. The Law Division heard the matter de novo. State v. Kashi, 360 N.J. Super. 538, 545-46 (App. Div. 2003). Defendant again argued that pursuant to Laurick, he was entitled to a sentence step-down. The Law Division reviewed the notations on the 1989 summons and stated:
It is the defendant's burden . . . to show that the outcome could have been different if in fact this case had gone to trial. I believe that the standard would then require the defendant to get police reports and show that in effect there could have been a legitimate challenge to that original conviction.
So I believe that the courts have placed a very heavy burden on the defendant to overcome that conviction. And therefore I do not find that that burden has been met.
The court then concluded:
I think on the first aspect the mere talking to an attorney, knowing you had the right to an attorney, knowing you had the right to be represented by an attorney and challenge the conviction, that . . . alone makes it a counseled conviction.
In this appeal, defendant argues:
DEFENDANT'S FIRST CONVICTION WAS "UNCOUNSELED" WITHIN THE INTENDMENT OF STATE V. LAURICK AND ITS PROGENY
THE LAW DIVISION ERRED IN HOLDING THAT DEFENDANT SHOULD HAVE RAISED THE ISSUE IN WESTFIELD COURT AS ...