June 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY PARRA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. 18621.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges Baxter and Alvarez.
Defendant Jeffrey Parra appeals from a March 11, 2009 Law Division order that dismissed his de novo appeal of an adverse decision rendered in the Hightstown Municipal Court. In particular, the municipal court judge denied defendant's motion to vacate his 1997 sentence as "illegal," which claim was based on defendant's contention that the two ten-year periods of driver's license suspension that were imposed in 1997 should have run concurrently not consecutively. We affirm.
On August 20, 1997, defendant entered a plea of guilty under complaint number D6747 to driving while intoxicated (DWI), N.J.S.A. 39:4-50, arising out of his arrest on March 13, 1997. As this was defendant's third DWI conviction, the sentence included a ten-year suspension of his driving privileges.
In 2007, after the ten-year period of suspension had been completed, defendant went to a Motor Vehicles Commission (MVC) office to apply for reinstatement of his driver's license, only to be informed that his suspension on the DWI charge under complaint number D6747 was not his only conviction from August 20, 1997. According to MVC records, defendant had also been sentenced on August 20, 1997 under a second complaint, namely number D8049, to a consecutive ten-year driver's license suspension. Complaint D8049 involved a July 7, 1997 arrest on a charge of refusal to submit to a breath test, N.J.S.A. 39:4-50.2. The MVC official explained that the agency's records showed defendant's total period of license suspension to be twenty years.
Shortly thereafter, defendant contacted the Borough of Hightstown municipal clerk and asked her to provide him with a copy of the original dispositional order for the DWI offense under D6747. According to defendant, the court clerk explained that the original order and original records were no longer available. She provided a "Certification of Disposition," in which she certified that on August 20, 1997, two ten-year driver's license suspensions were imposed and that the two periods of suspension were ordered to run consecutively. Defendant's attempt to obtain a transcript of the August 20, 1997 proceedings was unsuccessful.
On October 10, 2008, defendant filed a motion with the Hightstown Municipal Court to vacate his 1997 DWI conviction. In a certification filed in support of that motion, he asserted that at the hearing in the Hightstown Municipal Court on August 20, 1997, he pled guilty only to the DWI charge arising under D6747, as all other charges brought against him "were dismissed." For that reason, according to his certification, the suspension of his driving privileges was for only a ten-year period. He also asserted in his certification that he "was not convicted of the second offense of Refusal to Submit Test [sic] nor was [he] sentenced on that charge."
At the November 19, 2008 hearing before the Hightstown Municipal Court on defendant's motion to withdraw his guilty plea, Municipal Court Judge James Newman denied defendant's motion, reasoning: 1) defendant's motion was time-barred, as it was essentially a petition for post-conviction relief, which must be filed within five years of the date of conviction; 2) the original tickets, which the judge had before him, showed that defendant had been convicted on both the refusal and the DWI charges and that each conviction carried a ten-year driver's license suspension; 3) in the absence of a notation that the license suspensions were concurrent, "they are automatically consecutive"; 4) at the time of sentencing on August 20, 1997, the judge completed "two very separate IDRC... orders,...
[t]wo distinct ones on two separate pieces of paper for two separate offenses"; 5) each of the original tickets under D6747 and D8049 bore defendant's signature, as well as the signature of the judge, thereby negating defendant's contention that he had only been sentenced on the DWI charge under D6747; and 6) sentences must be served consecutively, unless the judge expressly provides to the contrary, and the judge in 1997 had not done so. Although an order denying defendant's motion to withdraw his guilty plea is not part of the record on appeal, the parties agree that such an order was entered by the municipal court on November 19, 2008.
On December 9, 2008, exactly twenty days after the adverse decision was rendered in the Hightstown Municipal Court, defendant filed a notice of appeal in the Law Division. However, rather than file his notice of appeal with the Criminal Division Manager's office, as required by Rule 3:23-2, defendant instead filed his notice of appeal with the "Court Clerk, Superior Court of New Jersey, Mercer County, Mercer County Civil Courthouse, 175 S. Broad Street, Trenton." There were numerous other deficiencies. In particular, defendant did not file a notice of appeal with the municipal court as required by Rule 3:23-2, which obligates a person "aggrieved by a final post-judgment order entered by a court of limited jurisdiction [to] appeal therefrom by filing a notice of appeal with the clerk of the court below...." Additionally, Rule 3:23-2 requires a defendant to serve a copy of the notice of appeal on the "prosecuting attorney," which Rule 3:23-9 defines as the "county prosecutor," unless the appeal involved a violation of a municipal ordinance, or the "Attorney General," where required by law. Defendant did not serve a copy of the notice of appeal on the Ocean County Prosecutor, instead serving it only on the Hightstown municipal prosecutor.
Thus, defendant violated three separate requirements of Rule 3:23-2: 1) he did not file the notice of appeal with the clerk of the Hightstown Municipal Court; 2) he did not provide the county prosecutor with a copy of the notice of appeal; and 3) he filed the notice of appeal with the Civil Division, rather than with the Criminal Division Manager's office.
These violations are not mere administrative violations that can be overlooked. Instead, they are fatal to defendant's ability to pursue an appeal in the Law Division. Rule 3:23-2 specifically provides that:
On failure to comply with each of the foregoing requirements, the appeal shall be dismissed by the Superior Court, Law Division without further notice or hearing.
Defendant was represented by counsel both in the municipal court and in the Law Division, as he is on appeal as well. Moreover, no explanation is given by defendant for the failure to file his notice of appeal with the Criminal Division Manager's office, for his failure to serve a copy of the notice of appeal on the clerk of the Hightstown Municipal Court or for his failure to serve a copy of his notice of appeal on the Mercer County Prosecutor's Office. In fact, the Mercer County Prosecutor's Office asserts, without any contradiction from defendant, that the first time that office became aware of this matter was "when it received the current appeal papers" filed with the Clerk of the Appellate Division.
Thus, although defendant did file his notice of appeal within twenty days of the adverse judgment rendered in the Hightstown Municipal Court, such filing was not perfected as the notice of appeal was filed with the Civil Division and not with the Criminal Division Manager's office, as required by Rule 3:23-2. Thus, in every single respect, defendant violated the requirements of the Rule. As Rule 3:23-2 makes abundantly clear, these defects cannot be excused. Therefore, the Law Division correctly dismissed the appeal.
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