February 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER CARTWRIGHT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal 23-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 19, 2007
Before Judges Lisa and Lihotz.
Defendant Peter Cartwright appeals from a Law Division order, entered after de novo review, denying his motion for post-conviction relief (PCR). See R. 7:10-2(a). The record discloses defendant pled guilty in the Washington Township Municipal Court (WTMC) to driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50(a) on December 10, 2002. Defendant was charged and convicted of a second DWI offense; the date of the offense is not stated. On April 26, 2006, following arrest for his third drunk driving offense, defendant filed a verified petition for PCR in the WTMC, seeking to withdraw the guilty plea entered on December 10, 2002. Defendant asserted he was not fully and properly advised of the penalties for future DWI convictions and his right to appeal. After denial, defendant appealed to the Law Division where de novo review again resulted in the denial of his PCR motion.
On appeal, defendant argues:
I. DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS PLEA OF GUILTY TO N.J.S.A. 39:4-50, DRIVING UNDER THE INFLUENCE OF ALCOHOL BECAUSE DEFENDANT NEITHER UNDERSTOOD THE CONSEQUENCES OF THE PLEA, NOR WAS ADVISED OF HIS RIGHTS TO APPEAL, RENDERING HIS PLEA UNKNOWING AND INVOLUNTARY.
A. DEFENDANT DID NOT UNDERSTAND THE CONSEQUENCES OF HIS PLEA MAKING IT UNKNOWING AND THEREFORE NOT VOLUNTARY.
B. DEFENDANT WAS NOT ADVISED OF HIS APPELLATE RIGHTS.
We reject these arguments and affirm. Our review necessitates we examine the facts surrounding defendant's December 10, 2002 guilty plea.
On October 7, 2002, a summons issued charging defendant with DWI and reckless driving, N.J.S.A. 39:4-96. Defendant first appeared in the WTMC on October 8, 2002. The transcript of that proceeding reflects the municipal court judge (MCJ) issued an opening statement concerning court procedures and the rights of defendants, as required by Rule 7:14-1(a). The statement included the following:
If you wish to take an appeal of a decision of this [c]court, you have 20 days within which to file. I suggest that you consult with an attorney, however, before you do so, because of the formalities involved in the appeals process.
Immediately following the opening statement, defendant's case was called. The MCJ addressed defendant and recited the charges and penalties for conviction of DWI. The MCJ specifically advised defendant of his right to counsel and the State's burden of proof. Defendant's "not guilty" plea was recorded and the matter was adjourned for two weeks to afford defendant the opportunity to obtain counsel. Although listed for disposition on November 11, 2002, defendant's case was again adjourned to secure counsel's appearance.*fn1
Counsel appeared with defendant on December 10, 2002.*fn2
Defendant retracted his prior plea and entered a guilty plea to the DWI charge, with the understanding that the remaining charge would be "merged or dismissed."*fn3
Prior to accepting the guilty plea, the MCJ expressly related the consequences of entering the plea, including the defendant's waiver of his right to trial. Defendant responded affirmatively to the MCJ's inquiry. He acknowledged he was not being forced or coerced to change his plea and provided the factual basis underpinning his plea. Relying on this testimony, the MCJ determined defendant knowingly and voluntarily waived his rights and the MCJ accepted defendant's plea. The MCJ then provided defendant with written notice detailing the penalties for subsequent convictions for driving while intoxicated and for driving while on the revoked list. Defendant was sentenced to four days community service, required to attend an Intoxicated Driver Resource Center screening, ordered to forfeit his driving privileges for six months, and assessed mandatory fines and surcharges.
Defendant filed the instant PCR motion on April 26, 2006. After a hearing on June 26, 2006, the MCJ denied the motion. On defendant's application, the MCJ expanded the record and recited the reasons for his decision. Defendant appealed to the Law Division.
Following the Law Division's de novo review of the record, Judge Bielamowicz determined defendant, while represented by competent counsel who advised him of the penalties of conviction, had entered his plea voluntarily and provided a full factual basis to support the plea. Further, she determined that defendant received written notice of the penalties for conviction as required by N.J.S.A. 39:4-50(c), and was present on three occasions when the MCJ read his opening statement, which contained instructions for a defendant to file an appeal.
Defendant's argument before us mirrors that presented to the Law Division. Defendant maintains his guilty plea was not made knowingly and voluntarily for two reasons. First, the MCJ did not "hold any discussion with defendant to ascertain whether he understood the nature of consequences of the plea." Second, the MCJ did not adequately explain defendant's right to appeal.
"[I]t is well-settled that a plea must be entered into voluntarily and intelligently." State v. Simon, 161 N.J. 416, 443 (1999). The MCJ shall not accept a guilty plea "without first addressing the defendant personally and determining by inquiry of the defendant . . . that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea and that there is a factual basis for the plea." R. 7:6-2(a)(1). Generally, entry of a plea of guilt waives all procedural objections a defendant may have. State v. Laurick, 120 N.J. 1, 9, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990). Nevertheless, a plea may be challenged on the ground that defendant was unaware of its penal consequences. State v. Kovack, 91 N.J. 476, 482 (1982).
"A guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). Thus, the trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous. [Simon, supra, 161 N.J. at 444. (parallel citations omitted).]
A more stringent standard applies where a defendant moves to retract his plea after sentencing, State v. McQuaid, 147 N.J. 464, 488 (1997), as defendant's request to be relieved of the consequences of his plea must be weighed against the strong interests of the State in its finality. State v. Taylor, 80 N.J. 353, 362 (1979).
At defendant's arraignment the MCJ stated:
Mr. Cartwright, you're here under a summons issued October 7 which alleges that you were driving while intoxicated. If you are convicted of this offense or a first conviction, the fine is $250 to $400, plus insurance surcharges, plus other assessments, 30 day -- I'm sorry -- 12 to 48 hours of Intoxicated Driver Resource Center, 30 days in jail, six to 12 month loss of driver's license at the discretion of the [c]court.
If you are convicted for a second offense, the fine is $500 to $1,000, 30 days community service, two to 90 days in jail, two-year loss of driver's license, two-year loss of registration or one to three years with an ignition interlock device.
For a third or subsequent fine -- third or subsequent conviction[,] the fine is $1,000, plus the surcharges and court costs, 180 days in jail, ten-year loss of driver's license, ten-year loss of registration privileges or one to three years with an ignition interlock device.
You have a reckless driving charge pending, as well, which could result in a fine of up to $500 maximum, and a maximum of up to 60 days in jail. You have a right to remain silent for anything that you say tonight can be used against you.
Following entry of defendant's plea, the MCJ provided him with a written notice that outlined the penalties for subsequent convictions for DWI and for driving while on the revoked list. Moreover, counsel acknowledged discussions with defendant regarding the penalties.
Nothing in the record demonstrates defendant's lack of understanding of the law or suggests his innocence. He stated he understood the charges against him when he first appeared. He obtained counsel and testified he was satisfied with his advice. He unequivocally provided a factual basis for his conviction by testifying he was drinking beer, recorded a breathalyzer reading of .11 when stopped, and admitted the consumption of alcohol adversely affected his ability to operate his motor vehicle on the date in question.
Defendant argues that the time lapse from the MCJ's recitation of the penalties for conviction and the entry of his guilty plea violates the statutory intent of N.J.S.A. 39:4-50(c). Although it may be preferable to have the oral and written discussion of the penalties for conviction provided to a defendant simultaneously, it is not mandated. Additionally, we do not determine that the two-month hiatus between these events negatively impacted defendant's understanding of the consequences he faced if convicted. "A guilty plea is not to be set aside whenever the trial court procedures are less than perfect." State v. Taylor, 80 N.J. 353, 363 (1979). On this record our conclusion does not differ from that of the MCJ and the Law Division judge, i.e., defendant knowingly entered his guilty plea.
Additionally, we reject defendant's claim that the MCJ improperly advised him of his rights to appeal. Rule 7:14-1(c) provides: "Regardless of whether the defendant pleads guilty or is found guilty after a trial, the court, as part of the opening statement, shall advise each defendant of the right to appeal . . . ." (Emphasis added). This was done on each of the three municipal court appearances defendant attended. Defendant's argument that the MCJ was required to individually address this right with defendant is not supported.