On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Court Appeal No. 66-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2009
Before Judges Payne and Waugh.
Defendant, Robert Edwards, pled guilty in 1993 to driving while intoxicated (DWI), N.J.S.A. 39:4-50, his third such offense, having previously pled guilty in 1988 and 1992. Although Edwards was not given a custodial sentence, a ten-year license suspension was imposed. Apparently, additional periods of license suspension were also ordered, because counsel for Edwards has represented that the license suspension will not end until 2010. In 2007, Edwards was serving as a state corrections officer in Colorado. At that time, he wished to become a federal corrections officer, a position that requires a valid driver's license. Edwards therefore retained New Jersey counsel to seek a reduction of his license suspension, principally through an application for post-conviction relief (PCR) brought in the Atlantic City Municipal Court and, upon its denial as untimely, an appeal to the Superior Court. When the Superior application was denied, as well, on the same basis, Edwards filed the appeal that is presently before us.
On appeal, Edwards raises the following arguments:
Defendant Has Adequately Alleged Facts Demonstrating that the Delay in Filing his PCR was due to Excusable Neglect.
Defendant was Denied Effective Assistance of Counsel in the 1993 Atlantic City Proceedings.
Following our review of the arguments of counsel in light of the record, which contains no certifications by Edwards, and applicable precedent, we affirm.
The facts, which are largely uncontested, follow. In 1988, Edwards pled guilty to his first DWI charge in the Buena Borough Court. It does not appear that Edwards was represented at the time. However, it is unknown whether he was advised of his right to representation and waived it. It is further unknown whether defendant was indigent at the time, and thus eligible for free representation pursuant to Rodriguez v. Rosenblatt, 58 N.J. 281 (1971), a decision that recognized as a matter of fairness, not constitutional law, that in cases of petty offenses "as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost." Id. at 295.
Edwards pled guilty to a second DWI charge in 1992, occurring in Upper Deerfield, and to a third DWI charge in 1993, occurring in Atlantic City. Edwards was represented by privately retained counsel in Atlantic City, and there is no challenge to the fact that he was represented by counsel in Upper Deerfield, as well. Transcripts of the three plea proceedings are unavailable, and we lack even a certification from Edwards as to what occurred. It is thus not possible to discern from the record whether the fact that the 1988 plea was uncounseled (if indeed it was) was raised in the 1993 proceeding. In any case, as we have said, Edwards was not given a custodial sentence at that time, although his license was suspended, as statutorily required.
In 2001, Edwards retained Francis X. Moore to seek PCR on his behalf. Thereafter, Moore joined the practice of John Menzel, an attorney specializing in drunk-driving law, where he remained until his death in 2003.*fn1 It is unclear what happened to the PCR petition, although Edward's counsel states, in a footnote to his brief: "Defendant was later told by Menzel, that another attorney from the Office of Moore and Menzel took over the handling of that file and that the petition was dismissed." Edward's counsel has represented that the PCR petition, filed in 2001 or 2002, approximately thirteen to fourteen years after the Buena conviction and ...