On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 0002-07.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Messano.
This appeal once again raises the issue of whether post-conviction relief (PCR) petitions brought pursuant to the Supreme Court's holding in State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990), are time-barred if not filed within five years of the uncounseled municipal court conviction that gave rise to the petition. We recently reviewed the procedure for raising a Laurick challenge in State v. Schadewald, 400 N.J. Super. 350 (App. Div. 2007), though we did not specifically address whether the time constraints contained in the Court Rules applied to foreclose that defendant's challenge. We now conclude that a PCR petition that seeks relief pursuant to Laurick is subject to the time-bar contained in Rule 7:10-2. However, given the nature of a Laurick petition, a defendant may routinely demonstrate that any petition filed beyond the five-year limit was not the product of neglect or some other disqualifying reason, and thus, should not be automatically time-barred. However, to obtain the benefit of relaxation of the Rule, a defendant's petition must also establish a prima facie case for relief under Laurick. In this case, we conclude that defendant has failed to demonstrate a prima facie case entitling him to the relief he now seeks. We therefore affirm.
On June 25, 1996, without representation by counsel, defendant Joseph M. Bringhurst pled guilty in Hammonton City (Hammonton) municipal court to driving while intoxicated (DWI).
On February 24, 1998, he pled guilty a second time to DWI in the Township of Riverside municipal court while represented by an attorney. At that time, the State conceded that defendant should be sentenced as a first offender. After some colloquy with defendant, the municipal court judge concluded, "I'm satisfied that [in the 1996 proceeding] there was no factual basis laid and that the defendant did not have the benefit of counsel." He sentenced defendant as a first offender under the DWI statute.
Defendant was again arrested for DWI in Delran Township sometime in 2006, though the record does not reveal the particulars of the charge. He was convicted again, but any custodial aspect of his sentence was stayed pending his application for PCR under Laurick.*fn1 On October 24, 2006, defendant filed a petition for PCR in Hammonton supported by his attorney's certification, to which defendant attached his personal verification that the facts contained therein were true. In sum, counsel's certification alleged that defendant appeared alone in the Hammonton municipal court in 1996, spoke to the prosecutor who offered to dismiss the other charges in return for defendant's guilty plea to DWI. Defendant accepted this offer, appeared before the judge without counsel, told the judge he was pleading guilty, and surrendered his license. Defendant alleged that the judge never asked "if he understood he had a right to be represented by an attorney in the case or, that an attorney would be assigned if he could not afford representation." He claimed he had no independent knowledge about his right to counsel and never formally waived his right to an attorney.
On December 19, 2006, argument on defendant's PCR petition was heard by the Hammonton municipal judge. Defense counsel began by advising the judge of the nature of the application. Noting the municipal court transcript from 1996 was destroyed, defense counsel advised the judge
Maybe it's just [defendant's] recollection, I can't say for sure, but it is his recollection that those particular issues were not discussed in his plea and he paid his fines and left court that night.
The prosecutor objected to the application noting it was brought "more than five years" after the 1996 conviction.
The judge directed the prosecutor's and defense counsel's attention to the back of the actual summons from 1996 which the court had retained. Two printed entries were on the summons: RODRIGUEZ NOTICE GIVEN; and COUNSEL WAIVED. Next to each was the date, "6/25/96," and the judge's signature. Despite these notations, defense counsel contended that "it's not the fact that some notice was given, but it's the nature and extent and quality of the notice that was given." The judge reached the following conclusion:
Aside from the fact that it's time[-]barred . . . because all motions such as this should be made within five years[,] . . . [T]here isn't enough here that would cause me to believe that your client wasn't properly advised. The back of the summons indicates that he was given opportunity to have an attorney represent him . . . [W]e know that he came into court . . . and waived his right to counsel, waived his right to be represented . . .
[W]ithout more, I'm not in a position to upset the conviction or to grant your post-conviction relief.
Defendant appealed and on March 5, 2007, the matter was argued before the Law Division judge. Defense counsel first addressed the State's argument that the application was time-barred. He noted that the Supreme Court Committee on Municipal Court Practice had proposed a rule amendment that eliminated any time bar for a Laurick PCR petition. Although the proposed rule had not yet been adopted, counsel argued that it was indicative of an intention to eliminate any five-year time limit.
The judge, however, proceeded to address the merits of defendant's application. Recognizing the passage of time between actual convictions for DWI and subsequent Laurick challenges, the judge noted that the Laurick Court had suggested that notations be placed on the actual summons to reflect that defendants had been advised of their rights and had waived them. The judge noted that the summons at issue evidenced Hammonton's municipal court's adoption of that suggestion.
The judge ultimately concluded the case presented "a very interesting question that doesn't have a black and white answer today . . . ." He observed that the proposed rule change "may or may not happen," but that the "five-year limitation was . . . in effect for purposes of this case and that [the petition] [was] time[-]bar[red]." He found the PCR petition to be "way out of time and on that basis alone" affirmed the municipal court judge. The judge also denied defendant's requested relief finding the Hammonton municipal court "back in 96 followed the law as written in Laurick," and the judge further made "the assumption" that defendant had been properly advised of his rights and had ...