October 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL SNYDER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0034-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Fisher and Simonelli.
Defendant Michael Snyder appeals from the August 31, 2009 Law Division order, which sentenced him as a third offender for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), for all non-incarceration purposes. We affirm.
The facts are not disputed. In May 1982, defendant, who was not represented by counsel, pled guilty to DWI in the Barnegat Light municipal court. In March 1995, defendant was convicted of two separate DWI offenses in Atlantic City.
On October 7, 2007, defendant was charged with his fourth DWI offense in Somers Point. At a hearing in the Somers Point municipal court on March 4, 2008, defendant requested an adjournment in order to file a motion with the Barnegat Light municipal court for post-conviction relief (PCR) pursuant to State v. Laurick, 120 N.J. 1 (1990), based on his uncounseled 1982 conviction. Defendant also argued, and the prosecutor mistakenly agreed, that because of the ten-year period between his first and second DWI convictions, he should receive second-offender status for all sentencing purposes based on N.J.S.A. 39:4-50(a)(3) and State v. Conroy, 397 N.J. Super. 324 (App. Div.), certif. denied, 195 N.J. 420 (2008). The municipal court judge granted the adjournment, but warned defendant and all counsel that he had not yet read Conroy and did not guarantee defendant second-offender status.
At the April 7, 2008 PCR hearing before the Barnegat Light municipal court, defense counsel represented that defendant did not seek to vacate his 1982 guilty plea. Rather, defendant sought an order that the 1982 conviction could not be applied to enhance the penalties for a fourth DWI conviction. On April 14, 2008, the municipal court judge entered an order that "defendant's uncounselled May 4, 1982 conviction . . . shall not be used to enhance any future conviction for a violation of N.J.S.A. 39:4-50."
At the April 15, 2008 plea hearing on the fourth DWI offense in the Somers Point municipal court, defendant argued that he should receive second-offender status for all sentencing purposes based on the April 14, 2008 order and Conroy. The municipal court judge disagreed and held that Conroy only afforded defendant second-offender status for incarceration purposes. Prior to defendant entering his plea, the judge advised him that he would impose a ten-year suspension of defendant's driving privileges. Defendant pled guilty nonetheless and acknowledged the consequences of his plea. The judge treated defendant as a second offender for incarceration purposes and imposed no term of incarceration. The judge imposed a ten-year suspension of defendant's driving and registration privileges, ordered defendant to spend forty-eight hours at the Intoxicated Driver's Resource Center, and imposed the appropriate fine, costs, penalties and surcharge.
Defendant filed a motion for reconsideration of the license and registration suspensions, which the municipal court judge denied. Defendant then appealed to the Law Division, contending that he was entitled to second-offender status for all sentencing purposes based on the April 14, 2008 order and N.J.S.A. 39:4-50(a)(3). Defendant also contended that the State should be estopped from seeking a ten-year suspension because he relied on the prosecutor's agreement to treat defendant as a second offender for all sentencing purposes. The Law Division judge disagreed and concluded that Conroy required sentencing defendant as a third offender for all non-incarceration purposes. The judge affirmed the municipal court and imposed the same sentence.
Defendant contends for the first time on appeal that the Barnegat Light municipal court judge erred by failing to address the absence of a factual basis for his 1982 guilty plea, and the Somers Point municipal court judge erred by failing to properly address the voluntariness of his guilty plea to the fourth DWI offense in light of the sentencing agreement between the prosecutor and defense counsel. Defendant also contends that the Law Division judge erred by failing to address the absence of a factual basis for his 1982 guilty plea and properly address and question him about the voluntariness of his guilty plea to the fourth DWI offense in light of the sentencing agreement between the prosecutor and defense counsel.
We decline to consider defendant's contentions about the municipal court judges' alleged errors, as defendant did not raise these contentions below and no exception applies. See State v. Robinson, 200 N.J. 1, 20 (2009); Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Even if we consider these contentions, they, as well as defendant's contentions about the Law Division judge's alleged errors, are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). However, we make the following comments.
Defendant has not provided the transcript of the 1982 plea hearing, and thus, cannot prove the lack of a factual basis; defendant represented to the Barnegat Light municipal court judge that he did not seek to vacate his 1982 guilty plea; and defendant cites no authority requiring the Law Division or municipal court judges to elicit a factual basis for a plea that occurred over twenty-six years prior to the proceedings before them.
Defendant's plea in Somers Point was voluntary. He knew prior to pleading guilty to the fourth DWI offense that he had no guarantee of sentencing as a second offender for nonincarcerations purposes and faced a ten-year license and registration suspension if the municipal court judge disagreed with counsels' interpretation of Conroy. In fact, prior to defendant's entering his plea, the municipal court judge ruled in defendant's presence that Conroy required sentencing defendant as a second offender for non-incarceration purposes and advised defendant that he faced a ten-year loss of driving privileges. Notwithstanding the alleged sentencing agreement between the prosecutor and defense counsel, defendant pled guilty to the fourth DWI offense and acknowledged the consequences of his plea.
Further, even assuming there was a sentencing agreement, plea agreements are prohibited in DWI cases. Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII, at 2353 (2011); see also State v. Hessen, 145 N.J. 441, 459 (1996) (upholding prohibition against plea bargaining in all DWI cases); State v. Rastogi, 403 N.J. Super. 581, 585 (Law Div. 2008) (holding plea bargain also prohibited to resolve de novo appeals of DWI convictions). Thus, the municipal court judges were required to reject any agreement made in this case.
Finally, we are satisfied that Conroy required defendant's sentencing as a third offender for all non-incarceration purposes.
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