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State v. Selle

March 16, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HARRY J. SELLE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 53-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 3, 2008

Before Judges Sapp-Peterson and Alvarez.

Defendant appeals from the November 14, 2007 order of the trial court denying his motion to withdraw guilty pleas he entered five years earlier to various motor vehicle offenses, and also denying his motion for post-conviction relief (PCR). We affirm.

Defendant's conviction arose out of three motor vehicle charges lodged against him on May 22, 2001: (1) driving while under the influence (DWI), N.J.S.A. 39:4-50; (2) driving while on the revoked list, N.J.S.A. 39:3-40; and (3) careless driving, N.J.S.A. 39:4-97; as well as a charge of aggravated assault, N.J.S.A. 2C:12-1b(5)(a), which was amended to simple assault, N.J.S.A. 2C:12-1(a)(1), and resisting arrest, N.J.S.A. 2C:29-2(a)(1)(a). Defendant retained private counsel to represent him in connection with the charges and entered not guilty pleas to all of the offenses on June 7, 2001. On that same date, the court scheduled trial on the charges for June 26, 2001. Thereafter, defense counsel moved to suppress the test results of blood taken from defendant at a local hospital following his arrest. The court scheduled the matter for a conference on July 3, at which time defense counsel withdrew defendant's motion to suppress the blood alcohol evidence. Defendant did not appear at the July 3 conference. However, defense counsel indicated he had been in contact with his client by phone and "was sure that he would appear the following week for a plea." The case was scheduled for the entry of pleas to the charges on July 11. Although defendant's attorney appeared at that time, defendant did not. On July 17, the court received a letter from defense counsel confirming that his client had twice failed to appear for court proceedings related to the matter and failed to cooperate with his attorneys. As a result, his attorney sought to be relieved as counsel. The court granted the application on July 23 and also issued a warrant for defendant's arrest. That warrant remained open until March 2002, when bail was posted on defendant's behalf.

Defendant appeared before the court on March 5. The court once again reviewed the charges and penalties, including the fact that defendant faced a ten-day jail sentence in connection with the driving while on the revoked list charge because he had multiple prior convictions for the offense and that this jail sentence on that offense would be "in addition to anything else that [he was] sentenced to on the DWI." Defendant told the court that he was unemployed, and the court directed him to fill out an application for the public defender, adding that "[t]his case is going to get resolved one way or the other. You're not going to leave today until at least -- you've at least applied for an attorney. This case is getting old. They must be resolved relatively quickly. This is left over from last year because you didn't appear." (emphasis added).

Defendant inquired whether the court would grant him a one-week adjournment to retain counsel. The court responded, No, you had a year to acquire an attorney. You go[t] this ticket on May 22nd, 2001. So have a seat and fill out a form for the public defender. That's what you're going to do today.

You've also got a criminal complaint in this matter. The criminal complaint is aggravated assault on a police officer, resisting arrest. So have a seat, fill out the forms. You're not leaving.

The court then proceeded to consider other matters. When defendant's case was again called, he did not approach. A search of the area did not prove successful. Defendant later returned, telling the court that he did not hear the court advise him not to leave and that his father, who apparently was with him earlier when the matter was first called before the court, told him that they should "go acquire an attorney." The court was not persuaded by this explanation and told defendant that it had received a letter from his previous attorney asking the court to please excuse defendant for having left the court prematurely. The court therefore concluded that "[defendant] knew that [he] left the courtroom prematurely." The court offered defendant two alternatives: forfeit the $1,500 bail and post $2,500 to be released or speak to a public defender. Defendant opted to speak to the public defender. The court attended to other matters.

When defendant's case was recalled, the following exchange took place on the record:

THE COURT: Selle. Right. Mr. Selle is charged on May 22nd, 2001, with three motor vehicle violations: careless driving, driving while suspended, and driving while intoxicated. There's also two criminal complaints. The criminal [charges] are resisting arrest and assault.

Mr. Selle and I went over his record before. He's charged with driving while suspended, which would be a multiple offense, more than three. Let's put it that way. He's also charged with driving while intoxicated, which is a second offense. This first offense, I think, is '94, I think.

[DEFENSE COUNSEL]: Was it '94, sir?

MR. SELLE: What?

[DEFENSE COUNSEL]: The first time you were convicted -- or pulled over for driving while intoxicated.

THE COURT: Oh, I'm sorry, '98.

MR. SELLE: No, that ...


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