On appeal from Superior Court of New Jersey, Law Division, Gloucester County, New Jersey, Docket No. A-26-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Grall.
The State appeals from the order of the Law Division granting defendant Ronald R. Beverly's post-conviction relief (PCR) petition. The Law Division concluded defendant's January 4, 1991 conviction for driving while under the influence of alcohol (DWI) should not be considered "for purposes of increasing his loss of liberty" in any sentence imposed for a subsequent DWI conviction. We reverse.
Defendant's PCR petition was first considered by the East Greenwich Township Municipal Court on May 21, 2007. That court found that all of the records of the January 7, 1991 proceeding concerning defendant's DWI conviction had been destroyed pursuant to Administrative Office of the Courts' policy, as codified in R. 7:4-5(a).*fn1 Defendant's conviction was based on his entry of a guilty plea. The only documents available were copies of the original traffic summonses with the judge's annotations that reflect the court's proceedings and findings.
From a review of these summonses, the municipal court judge found that defendant was advised of his right to be represented by counsel pursuant to Rodriguez v. Rosenblatt, 58 N.J. 281 (1972). After waiving his right to counsel, defendant pled guilty to DWI. The court sentenced defendant as a first-time offender to a suspended term of thirty days imprisonment in the county jail, assessed the mandatory fines and penalties totaling $401, ordered him to serve twelve hours in the intoxicated drivers resource center, and suspended his driving privileges for six months.
Defendant was again convicted of DWI on April 18, 2000, and sentenced accordingly as a second offender under N.J.S.A. 39:4-50. Defendant did not challenge any aspect of his first conviction at the time. Confronted by the prospect of a third DWI conviction, defendant now seeks the relief requested in his PCR petition. Specifically, defendant argued before the municipal court that there was no factual basis supporting his guilty plea on January 7, 1991.
Based on the facts outlined, the municipal court denied defendant's PCR petition. In so doing, the municipal court judge emphasized that "[t]he burden of justifying the petition filed after five years will increase with the extent of the delay. We are 16 and a half years later. The defendant must offer something more than bare allegations as to the facts set forth."
Acting on defendant's petition for a de novo review, the Law Division noted that the only available records, the summonses issued to defendant in 1991, did not disclose defendant's blood alcohol content (BAC). Thus, based only on the absence of evidence, the Law Division granted defendant's PCR petition.
We now reverse. Defendant has the burden of proof here, not the State. State v. Hrycak, 184 N.J. 351, 363 (2005). Defendant must prove, by competent evidence, that his 1991 conviction was not supported by an adequate factual basis. As correctly noted by the municipal court, "bare allegations" are not enough. Defendant has not met that burden.*fn2