On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 29-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Yannotti.
Defendant Elizabeth L. Walton appeals from a judgment entered by the trial court on June 6, 2008, denying her petition for post-conviction relief. For the reasons that follow, we affirm.
This appeal arises from the following facts. On October 12, 2006, defendant was arrested and charged with driving while intoxicated (DWI), reckless driving and failure to maintain lane. On January 8, 2007, defendant pled guilty to the DWI charge. The other charges were dismissed on the motion of the municipal prosecutor.
The municipal court informed defendant of the sentence that would be imposed by reason of her DWI conviction. Defendant's driving privileges would be suspended for seven months. She would be fined $306 and required to spend twelve hours at a Intoxicated Drivers Resource Center. In addition, the court would impose a DWI surcharge, a Violent Crimes Compensation Board assessment, and an assessment for the Safe Neighborhood Services Fund. Defendant also would be required to pay court costs.
The municipal court stayed the sentence pending the Supreme Court's decision regarding the use of results from the Alcotest breathalyzer testing systems in DWI matters. See State v. Chun, 194 N.J. 54, 67-68 (2008) (noting that the matter had been remanded to a Special Master in January 2006 and the sentences of all first-time DWI offenders were stayed if their cases involved the use of Alcotest results). The municipal court informed defendant that once the Supreme Court decided Chun, she would "have to come back . . . and resolve everything on the record[.]"
Thereafter, defendant was charged with DWI on March 21, 2007 and April 14, 2007. In March 2008, shortly before those matters were scheduled to be heard, defendant filed a petition for post-conviction relief in the municipal court. Defendant alleged, among other things, that, when she entered her plea on January 8, 2007, she had not been advised of the enhanced penalties that could be imposed for a second, third or subsequent DWI conviction. Defendant sought an order barring the imposition of enhanced penalties mandated by N.J.S.A. 39:4-50 in the event she were to plead guilty or be found guilty of DWI in the pending matters.
The municipal court considered the petition on March 14, 2008. The municipal court denied the petition, noting in its decision on the record that since defendant's sentence had been stayed, it had anticipated that defendant would return to court after the stay was lifted. The court stated that, at that time, defendant would have been advised of the penalties that could be imposed upon a subsequent DWI conviction. The municipal court entered an order dated March 14, 2008, denying the petition.
Defendant filed a de novo appeal to the Law Division. The court considered the appeal on May 27, 2008, and placed its decision on the record on that date. The court determined that the enhanced penalties under N.J.S.A. 39:4-50 for second, third and subsequent DWI convictions must be imposed regardless of whether defendant was advised of the statutory penalties prior to commiting any subsequent violations of the statute. The court entered an order dated June 6, 2008, denying defendant's petition. This appeal followed.
On appeal, defendant argues that her right to due process of law was violated because, at the time she entered her plea to DWI on January 8, 2007, the municipal court failed to provide her with oral or written notice of the penalties that could be imposed for a subsequent DWI conviction. Defendant therefore maintains that the sentence imposed as a result of her plea is an illegal sentence that cannot be used for the purpose of imposing enhanced penalties for a second, third or subsequent DWI conviction. We disagree.
N.J.S.A. 39:4-50(a) provides among other things that "a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood" is subject to certain penalties. N.J.S.A. 39:4-50(c) further provides in pertinent part that:
[u]pon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a ...