On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4741.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2009
Before Judges Rodríguez and Chambers.
Defendant Pawel Poltoranos appeals from the denial of his petition for post-conviction relief (PCR) challenging his August 12, 1996 conviction in the Clifton Municipal Court for driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm. Defendant entered a guilty plea to the 1996 DWI charge. He alleges that he was not represented by counsel.*fn1 He certifies in this appeal that "he has no recollection of being advised that he had the right to be represented by an attorney and that if he could not afford an attorney, that one would be appointed for him." He asserts that "[h]ad he been aware of his right to an attorney, he would have sought counsel." The Clifton Municipal Court judge imposed: a $342 fine; $72 in costs; $50 VCCB; $75 SNSF; $100 DWI surcharge; and a six-month driver's license suspension. There was no appeal from this conviction.
In 2000, defendant was convicted of a second DWI charge. There was no appeal from the 2000 conviction. On October 13, 2007, defendant was charged with a third DWI offense in Clifton. While this charge was pending, defendant filed a PCR petition in the Clifton Municipal Court to set aside the 1996 DWI conviction. He argued that pursuant to State v. Laurick, 120 N.J. 1 (1990), the 1996 DWI could not properly serve as a basis for an enhanced jail sentence and that pursuant to State v. Barboza, 115 N.J. 415 (1989), he was entitled to the vacation of his 1996 guilty plea because of the deficiencies with the plea. Clifton Municipal Court Judge Scott J. Bennion denied the PCR petition. Immediately thereafter, defendant pled guilty to DWI. Judge Bennion sentenced defendant as a third- time DWI offender, imposing: a $1,000 fine; $33 court costs; $50 VCCB penalty; $75 SNSF assessment; $100 DWI assessment; $100 DWI surcharge; a ten-year driver's license suspension; 180 days in the county jail; and ten years of ignition interlock. Judge Bennion gave defendant eleven days of jail credit and stayed the remainder of the jail sentence pending appeal to the Law Division.
Defendant appealed the denial of the PCR petition. Judge Ernest M. Caposela heard oral argument, affirmed the denial of the PCR petition and issued a written opinion. Judge Caposela imposed the same sentence and continued the stay of the remaining jail sentence.
On appeal, defendant contends:
THE LAW DIVISION IMPROPERLY FOUND THAT THE 1996 DWI CAN BE USED AS A BASIS FOR AN ENHANCED JAIL SENTENCE BECAUSE THERE IS INADEQUATE EVIDENCE TO SUPPORT A FINDING THAT [DEFENDANT] WAS ADVISED OF HIS RIGHT TO COUNSEL PRIOR TO HIS GUILTY PLEA.
THE LAW DIVISION ERRONEOUSLY HELD THAT THE 1996 DWI SHOULD NOT BE VACATED BECAUSE THE CONVICTION IS NOT SUPPORTED BY AN ADEQUATE FACTUAL BASIS.
We reject these contentions for the same reasons given and the findings made by Judge Caposela in his June 27, 2008 written decision. The judge wrote:
the Defendant challenges his 1996 conviction, and this petition was filed in late 2007, about 11 years after the imposition of the sentence sought to be attacked. The Defendant asserts that he was not aware nor had any reason to be concerned of his 1996 conviction until his current October 2007 DWI arrest due to the fact that he did not have an attorney for his second conviction. Defendant asserts that he did not learn of his right to a trial or counsel until his consultation with current counsel on this instant offense. However, in his certification in support of the petition, Defendant asserts that he does not recall whether he was advised of the right to an attorney. This court finds, as did the municipal court, that there is insufficient evidence of excusable neglect. The State asserts that when the Defendant was brought to court on his second violation of DWI on October 27, 2000, it was at that time that the Defendant should have been put on notice of any issues regarding his first conviction in 1996. However, this does not end the court's analysis. In the interest of justice, this court has extensively reviewed the current petition and issues raised therein. After a thorough review of the petition, submitted briefs and exhibits, transcripts and arguments of counsel, this court finds that the Defendant-Petitioner has not met his burden and therefore denies the petition for [PCR].
Although there was no transcript of the 1996 proceedings as it was more than five (5) years old, the municipal court was able to retrieve several documents from the court file, including notes written by Judge Fengya on the back of the summons, Notice to Defendant Following Conviction, a payment plan order, and other hand-written notes of Judge Fengya. First, as seen from the Notice to Defendant Following Conviction under N.J.S.A. 39:4-50(a) from the 1996 conviction, which the Defendant signed and acknowledged, he was advised in writing of the consequences of a second or subsequent offense for DWI.
Secondly, a payment plan was ordered and entered into, thus creating the reasonable inference that there was some inquiry by the court as to the Defendant's indigency status. There were also some questions and notes entered that indicated who the Defendant lived with and his household income. This court is satisfied that such recordation and order of payment plan provides sufficient support for finding that this line of questioning did not relate only to the Defendant's ability to pay the fines. In other words, such inquiry reasonably related to whether or not the Defendant was able to afford an attorney. Additionally, the back of the summons indicates that counsel was waived and ...