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State v. Bae

June 7, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HEE S. BAE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-06-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2010

Before Judges Fisher and Espinosa.

Defendant appeals from the denial of his petition for post- conviction relief (PCR). We affirm.

On December 29, 1995, defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50. He entered a guilty plea to that charge on March 7, 1996 and was sentenced as a first offender to a six-month suspension of driving privileges and appropriate fine, surcharge, Intoxicated Driver Resource Center (IDRC) program, and VCCB assessment. Thereafter, defendant entered guilty pleas to a second DWI charge in 2003 and a third DWI charge in 2008.

Twelve years after the 1996 conviction, defendant brought this PCR petition pursuant to R. 7:10-2(g), to seek relief from the enhanced custodial term appropriate for a third DWI offense, N.J.S.A. 39:4-50(a)(3). Defendant raised a Laurick*fn1 claim, arguing that, at the time that he entered his guilty plea in 1996, he was not represented by counsel and was not advised of his rights to counsel or to have counsel appointed to him without charge. Because of the passage of time, a transcript of that guilty plea was no longer available. However, the municipal court judge who heard the petition was also the judge who had accepted defendant's guilty plea in 1996. Reading from his own notes on the back of the summons, the municipal court judge commented that his notes reflected that an attorney he knew to be fluent in Korean appeared with defendant at the time of his guilty plea.

The municipal court denied defendant's petition, setting forth the following reasons:

Number one, it is beyond the five-year case law limitation.

Number two, I am satisfied, and I will place on the record that, as many years as I have been doing this, I have bored people to tears with the number of times I have had to advise people of the enhanced penalties for a DWI.

It is my policy and procedure on every DWI to repeat it over and over and over again, even if I take 10 pleas every court session, and people are anxious to leave, I repeat the enhanced penalties for a second and third offense.

In addition to that, J1 in evidence, is a form, which is a statewide form that is kept with our file, which lists the enhanced penalties for both the second and third offense.

And - in paragraph two, this is to further inform you that as a person convicted of a violation of 39:4-50, operating or - to operate - the penalties for a second offense are a fine of not less than 500, no more than 1000 and 30 days community service. A term of imprisonment, not less than 48 consecutive hours.

For a third or subsequent offense, the penalties are a fine of $1,000, a term of imprisonment not less than 180 days, except the term of imprisonment may be ...


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