June 7, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HEE S. BAE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-06-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 lowered by up to 90 days of community service.
For those reasons, I'm going to deny your motion.
On appeal, the Superior Court, Law Division, also denied defendant's PCR petition as time-barred and lacking in merit.
In this appeal, defendant argues that the court's denial of his petition was an abuse of discretion. We disagree.
Rule 3:22-12(a) provides in pertinent part:
No . . . petition [for post conviction relief] shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
Rule 7:10-2(g), which was added to specifically address Laurick PCR petitions, retained the time limitations for filing PCR petitions set forth in Rule 3:22-12.
Defendant seeks to avert the five-year time limit for the filing of his petition by arguing that his twelve-year failure to file his petition was due to excusable neglect. "The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). We recognize that "because of the unique nature of a Laurick PCR petition, a defendant's burden to justify relaxation of Rule 3:22-12(a)'s five-year time limit, at least with respect to the reason for the delay, [is] significantly less than proof of the 'exceptional circumstances' normally required." State v. Bringhurst, 401 N.J. Super. 421, 433 (App. Div. 2008) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). Still, a defendant is required to submit sufficient proof in the petition to establish a prima facie case for relief. Bringhurst, supra, 401 N.J. Super. at 434. In State v. Schadewald, 400 N.J. Super. 350 (App. Div. 2007), we identified the proofs required to establish entitlement to the step-down sentence for a second or subsequent DWI:
1. Indigent defendants must establish that they were not given notice of their right to counsel and advised that counsel would be provided for them if they could not afford one.
2. Non-indigent defendants must establish that they were not advised of their right to counsel and that they were unaware of such right at the time they entered the uncounseled pleas.
3. Defendants who establish that they were not adequately noticed of their right to counsel must then demonstrate that if they had been represented by counsel, they had a defense to the DWI charge and the outcome would, in all likelihood, have been different. Police reports, witness statements, insurance investigations and the like may be used to submit proofs that the outcome would have been different if the defendant had the benefit of counsel before pleading guilty.
[400 N.J. Super. at 354-55.]
Defendant's petition states that he was unrepresented by counsel when he entered the guilty plea and that he "[did] not recall being told that [he] had the right to a lawyer or being told that a lawyer would be appointed without charge if [he] was unable to afford a lawyer." Both these points were rejected by the municipal court based upon the judge's notes and established practice. Even if these representations were sufficient, however, defendant's petition is devoid of any factual assertion "that if [he] had been represented by counsel, [he] had a defense to the DWI charge and the outcome would, in all likelihood, have been different." As a result, defendant failed to show that he was entitled to a relaxation of Rule 3:22- 12(a)'s time limit.