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State of New Jersey v. Slawomir L. Dymacz

December 27, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SLAWOMIR L. DYMACZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-027.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 4, 2010

Before Judges Lihotz and J. N. Harris.

Defendant Slawomir L. Dymacz appeals from a Law Division order denying his petition for post-conviction relief (PCR), without benefit of an evidentiary hearing, seeking to vacate his municipal court conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. See R. 7:10-2 (allowing PCR petitions to be filed with respect to a municipal court conviction). On appeal defendant argues:

POINT I.

APPELLANT WAS ENTITLED TO POST-CONVICTION RELIEF SINCE THE UNDERLYING AUGUST 17, 2000 CONVICTION WAS A NULLITY ENTERED IN DIRECT VIOLATION OF THE PROVISION OF R. 7:6-2.

(A) THERE EXISTED NO FACTUAL BASIS SINCE PETITIONER WAS PERMITTED BY COUNSEL TO ENTER A "PLEA OF GUILTY" TO A NON-EXISTENT OFFENSE.

(B) THE POST-CONVICTION RELIEF COURT FAILED TO PROPERLY ANALYZE THE CLEAR CONSTITUTIONAL ERROR CONTAINED IN THE RECORD.

(C) THE LAW DIVISION FAILED TO MAKE A PROPER ANALYSIS OF THE FACTUAL AND LEGAL ISSUES BEFORE IT AND ERRED WHEN IT DENIED THE POST-CONVICTION RELIEF PETITION WITHOUT A HEARING.

Following our review of the arguments presented in the parties' briefs, in light of the record and the applicable law, we affirm.

On August 17, 2000, while represented by private counsel in a hearing held before the Parsippany-Troy Hills Municipal Court, defendant entered a guilty plea to DWI and the State agreed to dismiss the related motor vehicle offense of careless driving, N.J.S.A. 39:4-97. Prior to entering defendant's plea, the State mentioned the results of two breath tests recording defendant's blood alcohol concentration of .17 and .18 percent.*fn1 Thereafter, the following brief colloquy took place:

THE COURT: Okay. Mr. Dymacz, the Prosecutor has indicated you're pleading guilty to a violation of [N.J.S.A.] 39:4-50, driving while intoxicated. Is that so?

THE DEFENDANT: Yes.

THE COURT: Pleading guilty and freely and ...


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