On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 41-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
Defendant Douglas M. Higgins appeals from two Law Division orders. The first is a March 13, 2008 order that granted the State's motion to set aside a May 17, 2007 order of the Manchester Township municipal court, in which the municipal court vacated defendant's March 17, 1999 guilty plea and conviction on a driving while intoxicated (DWI) charge. The second was a January 29, 2009 Law Division order that denied his petition for post-conviction relief (PCR). In that petition, defendant argued that his newly-reinstated March 17, 1999 Manchester Township DWI conviction should be vacated because he received ineffective assistance of counsel. We reject defendant's contention that the State's appeal from the May 17, 2007 municipal court order was untimely and should not have been considered. We likewise reject his contention that the Law Division erred when, on January 29, 2009, it rejected his claim that trial counsel provided ineffective assistance in connection with his March 17, 1999 DWI conviction in Manchester Township. We affirm.
On January 12, 1993, defendant was convicted of driving while intoxicated in Toms River. Nearly six years later, on December 26, 1998, defendant was arrested in Manchester Township, this time for both driving while intoxicated, N.J.S.A. 39:4-50, and refusal to submit to a breath examination, N.J.S.A. 39:4-50.4a. On March 17, 1999, while represented by L. Gilbert Farr, defendant pled guilty to the December 26, 1998 Manchester Township DWI; the refusal charge was dismissed. Defendant did not appeal that March 17, 1999 DWI conviction, and took no action concerning it, until January 11, 2007, when he filed a petition for post-conviction relief (PCR) that we discuss below. In 2000, Farr was suspended from the practice of law,*fn1 and was eventually disbarred in 2004 for, among other things, gross neglect of client matters, lack of diligence, failure to communicate with clients, commission of a criminal act that reflected adversely on a lawyer's honesty or fitness, and conduct prejudicial to the administration of justice. In re Farr, 178 N.J. 458-59 (2004).
On November 18, 2006, defendant was arrested for the third time on a charge of driving while intoxicated, this time in Toms River. While the November 18, 2006 DWI charge was still pending, defendant filed a PCR petition in Manchester Township municipal court seeking to vacate the March 17, 1999 DWI conviction he had incurred in Manchester Township while Farr represented him. Defendant asserted in his PCR petition that Farr did not discuss the case with him, did not provide him with adequate legal advice, and did not file an appeal of the March 17, 1999 conviction despite promising to do so. Defendant also asserted that Farr never provided him with the discovery or reviewed with him its contents, never advised him of the ramifications of entering a guilty plea, and incorrectly advised him that his license would be suspended for only six months, when, in fact, because it was defendant's second offense, his license was suspended for a period of two years. For those reasons, defendant asserted he was entitled to an order vacating his March 17, 1999 guilty plea and conviction.
The May 17, 2007 PCR proceeding in the Manchester Township municipal court is notable for its brevity and the paucity of the judge's findings of fact. The court's findings of fact and conclusions of law were limited to the following:
All right, this matter comes before the [c]court by way of [d]efense [c]counsel's [m]otion for post-conviction relief having to do with a plea which was apparently entered in 1999. I have reviewed [defendant's] certification. Based upon the information contained therein, I do believe that the relief requested should be granted within reasonable, limited circumstances.
It's my understanding the State has no objection to the relief sought. In addition, you have also advised that [the municipal prosecutor] has discussed this matter with the arresting officer, who also has no objection [to] the relief sought.
Accordingly, I am going to grant the [m]otion for Post-Conviction Relief with regard to the [guilty] plea entered on 006842, [the DWI charge], as well as the dismissal that was entered on 006843[, the refusal charge].
The municipal prosecutor did not enter his appearance on the record, and was apparently not in the courtroom when these brief proceedings occurred. Without addressing the manifest violation of the five-year time bar for the filing of a PCR petition in municipal court, see R. 7:10-2, without eliciting a factual statement from defendant admitting his guilt to the refusal charge, and without making any findings on the quality of the representation Farr had provided seven years earlier, the municipal court vacated defendant's March 17, 1999 DWI conviction and dismissed the underlying DWI summons. With defendant's consent, the municipal court judge then reinstated the accompanying previously-dismissed refusal charge from 1999 and entered a judgment of conviction on that charge.*fn2
In sentencing defendant on the now-reinstated 1999 refusal charge, the municipal court judge gave defendant credit for the two-year license suspension that he had already served as a result of his March 17, 1999 guilty plea on the DWI charge. The fines and penalties that defendant had paid in connection with the 1999 DWI were also transferred to the refusal charge, resulting in defendant incurring no driver's license suspension and no monetary penalties as a result of the May 17, 2007 PCR proceeding. Documents filed with the Motor Vehicle Commission (MVC) reflected this disposition.
A few days later, on May 23, 2007, defendant appeared in the Toms River municipal court where he pled guilty to the November 18, 2006 Toms River DWI charge that was pending when he filed his PCR petition in Manchester Township. Because the March 1999 conviction had now been vacated, and more than ten years had elapsed since his 1993 DWI conviction, defendant was ...