May 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NICOLA J. CIARLANTE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 64-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2010
Before Judges Reisner and Chambers.
In this petition for post-conviction relief, defendant Nicola J. Ciarlante seeks to overturn his guilty plea to the charge of driving while intoxicated, N.J.S.A. 39:4-50. His application was denied by both the municipal court and Law Division. We affirm for the reasons set forth by those courts.
On June 18, 2001, in the Municipal Court of the Township of Winslow, defendant, who was represented by counsel at the time, pled guilty to the charge of driving while intoxicated. Under the terms of his sentence, he lost his driving privileges for a period of two years; he was required to serve forty-eight hours in the Intoxicated Drivers' Resource Center and to perform thirty days of community service; and a $500 fine and other monetary assessments were imposed.
On August 27, 2008, over seven years after his guilty plea, and while faced with a subsequent charge of driving while under the influence, defendant filed this petition for post-conviction relief in the municipal court. Although defendant did not challenge the factual basis for the plea, he argued that he had not been advised of his right to trial, the right to cross-examine witnesses, and his right to remain silent. The municipal court rejected these arguments noting that routinely at the beginning of the court session these rights are explained. Defendant's transcript did not contain the opening of the June 18, 2001, municipal court proceedings.
Defendant appealed to the Law Division. The Law Division judge denied the petition for post-conviction relief on the basis that it was filed out of time, relying on Rule 3:22-12(a) and Rule 7:10-2(g)(2), which require that a petition for post-conviction relief be filed within five years of the judgment or sentence absent a showing of excusable neglect. He further concluded that defendant had not shown excusable neglect in failing to meet the five year filing deadline under these rules. Defendant then moved for reconsideration, and that motion was also denied by the Law Division judge.
In his appeal to this court, defendant raises the following point:
APPELLANT WAS NOT PROPERLY ADVISED OF HIS CONSTITUTIONAL RIGHTS BEFORE HE ENTERED A PLEA OF GUILTY TO VIOLATING N.J.S.A. 39:4-50 AND, THEREFORE, THE GUILTY PLEA SHOULD HAVE BEEN VACATED.
Defendant argues that the municipal judge failed to advise him that by pleading guilty, he was waiving his right to a jury trial and his right to confront accusers. He contends that the municipal court also failed to advise him of his right to appeal to the Law Division.
After a careful review of the record and the arguments of counsel, we conclude that the issues raised in this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note that defendant's post-conviction relief petition to vacate his plea is untimely because it was not filed within five years of the judgment or sentence as required by Rule 7:10-2(g)(2).
Defendant seeks to circumvent the untimeliness of his application by arguing that due to these failures, his sentence is illegal, and hence, under Rule 7:10-2(b)(1), it may be appealed at any time. However, the circumstances here do not give rise to a claim of an illegal sentence. An illegal sentence occurs when either: (1) the sentence "exceed[s] the penalties authorized by statute for a specific offense," or (2) the sentence "was not imposed in accordance with law." State v. Murray, 162 N.J. 240, 246-47 (2000). This second category includes sentences with a disposition not authorized by the code, sentences where defendant fails to satisfy a precondition, and sentences that fail to include a required period of parole ineligibility. Id. at 247. None of these circumstances are present here.
Further, defendant has not made a showing of exceptional circumstances and "injustice" that would allow us to entertain his application for post-conviction relief despite its untimeliness. See State v. Mitchell, 126 N.J. 565, 580 (1992) (discussing the relaxation of the time periods in Rule 3:22-12 upon a showing of "exceptional circumstances" when determining if there has been an injustice sufficient to warrant relaxation of the time limits). Defendant has presented no pressing justification for his delay. He has failed to sustain his burden of establishing that his plea was not knowingly and voluntarily made. He does not claim that he is innocent of the charge. Thus, he has made no showing that injustice will occur if his plea is allowed to stand.*fn1
Finally, we note that the municipal court's failure to advise defendant of his right to appeal to the Law Division may not be raised by defendant once the five years allowed for a petition for post-conviction relief has expired. See State v. Molina, 187 N.J. 531, 536 (2006) (providing that a defendant who was not advised of his right to appeal may appeal as within time provided the appeal is filed within five years of the date of sentencing).