September 11, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT EDWARDS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 eight or nine years after the Atlantic City conviction, did not address the issues now raised. However, no documentary support for that contention has been presented.
In early 2007, Edwards retained his present counsel, Stephen M. Pascarella. Pascarella initially sought relief in the Buena Municipal Court, which was denied in an order that stated: "Petitioner's request that his previous conviction entered without the benefit of Counsel in the Borough of Buena be vacated is denied inasmuch as the application for Post Conviction Relief was not made within the five (5) years as required by Rule of Court." This ruling was not appealed, and no transcript of the municipal proceeding was ordered. Therefore, although counsel stated at the Atlantic City hearing in this matter and on appeal to the Superior Court, Law Division, that the Buena Municipal Court judge had confirmed Edwards's unrepresented status, there is no documentary proof of that fact.
Thereafter Pascarella moved before the Atlantic City Municipal Court for PCR, claiming without evidentiary support that Edwards had been denied effective assistance of counsel in the 1993 proceeding, because counsel had failed to investigate whether Edwards had given an uncounseled plea of guilty to his first DWI charge in 1988. After a preliminary hearing, for which no transcript has been supplied, at which time the municipal judge apparently queried the timeliness of Edwards's application, filed fifteen years after the 1993 hearing, and sought evidence of excusable neglect, Rule 7:10-2(b)(2), a further hearing was conducted on July 14, 2008. Edwards, who remained in Colorado, waived his appearance at the hearing. Following argument, his petition for PCR was denied as untimely.
On appeal to the Superior Court, further argument was held before the Hon. Robert Neustadter, at the conclusion of which the judge found in a carefully constructed oral opinion that Edwards's PCR application was untimely and that excusable neglect had not been demonstrated. In reaching his conclusion, the judge first noted that Rule 7:10-2(b)(2) provides that a petition for post-conviction relief based on grounds other than an illegal sentence "shall not be accepted for filing more than five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked, unless it alleges facts showing that the delay in filing was due to defendant's excusable neglect." The judge then noted the reasons given for that rule, as stated by the Supreme Court in State v. Milne, 178 N.J. 486, 491 (2004), namely that achieving justice long after-the-fact, when memories have dimmed, witnesses have disappeared and evidence has been lost, may be "more an illusory temptation than a plausibly attainable goal." Ibid. (quoting State v. Mitchell, 126 N.J. 565, 575-76 (1992)).
The judge recognized that a finding of excusable neglect could support an exception to the time bar. However, citing State v. Afanador, 151 N.J. 41 (1997), the judge noted that, in this regard: "The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Id. at 52. Further, "[a]bsent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.
Viewing the record before him, Judge Neustadter found that not only had there been no showing of excusable neglect, "but really not even a claim of excusable neglect that I believe fits into that definition." The judge additionally found that the interests of justice did not demand that the time bar be lifted.
We affirm substantially on the basis of the reasons expressed by Judge Neustadter in his oral opinion. We add only that, unless the Buena conviction were vacated in its entirety, relief that was denied without appeal, a lessening of Edwards's license suspension could not be achieved by means of this PCR. Although an uncounseled prior DWI conviction could serve to avoid the custodial penalties arising from a third conviction, State v. Laurick, 120 N.J. 1, 16, cert. denied, sub nom. Laurick v. New Jersey, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990), it would not affect the imposition, in connection with the third conviction, of administrative fines and penalties, including the ten-year loss of license mandated by N.J.S.A. 39:4-50a(3). Ibid.