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State v. Barton

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK BARTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-46-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2010

Before Judges Skillman and Simonelli.

Defendant appeals from that part of the May 1, 2009 order of the Law Division, which sentenced him as a third offender under the driving while intoxicated (DWI) statute, N.J.S.A. 39:4-50(a), for all purposes except incarceration. We affirm.

The facts are not disputed. Defendant was convicted of DWI in March 1989, July 1990 and April 1995. He was not represented by counsel when he pled guilty to the first offense. On October 8, 2008, defendant pled guilty to his fourth DWI.

At sentencing, defendant argued that he should be sentenced as a second offender for all purposes. Citing State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990) and State v. Conroy, 397 N.J. Super. 324 (App. Div.), certif. denied, 195 N.J. 420 (2008), defendant contended that his uncounseled conviction in 1989 could not be used to enhance a subsequent sentence. Defendant also contended that because his 2008 conviction was more than ten years after his 1995 conviction, he was entitled to the benefit of the step-down provision contained in N.J.S.A. 39:4-50(a).

The municipal court judge agreed that defendant should be sentenced as a second offender for incarceration purposes and sentenced defendant to two days in the county jail. The judge disagreed that defendant should be sentenced as a second offender for all other purposes. Accordingly, he sentenced defendant as a third offender to a fine of $1,006, a ten-year loss of driving and registration privileges, and thirty days of community service. The judge also imposed the appropriate costs, assessment, penalty and surcharge.

On appeal de novo from that part of the sentence sentencing defendant as a third offender, the Law Division judge rejected defendant's contentions and imposed the same sentence imposed by the municipal court judge. Citing Conroy, supra, 397 N.J. Super. at 330, the judge concluded that defendant's uncounseled DWI could not be used to enhance the period of incarceration on a subsequent conviction, but could be used for all other purposes.

On appeal, defendant contends as he did in the Law Division, that he should have been sentenced as a second offender for all purposes, and that he is entitled to the benefit of the step-down provision of N.J.S.A. 39:4-50(a) pursuant to Conroy.

Based on our review of the record and applicable law in light of defendant's contentions, we affirm substantially for the reasons expressed by Judge Marshall in his oral opinion rendered May 1, 2009.

Affirmed.

20100323

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