On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-086.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Lihotz.
On leave granted, the State appeals from the Law Division's grant of post-conviction relief (PCR) concluding defendant's first conviction for driving while intoxicated (DWI) entered over twenty years ago was uncounseled and thus subject to step-down relief. We reverse.
On July 30, 1988, defendant, Michael Strain, was charged with DWI, N.J.S.A. 39:4-50, in the Township of Parsippany-Troy Hills. He pled guilty on April 5, 1989.
On August l0, 2002, defendant was again charged with DWI in the Township of Roxbury. He pled guilty on October 10, 2002.
On April 29, 2009, defendant was charged with his third DWI offense in the Borough of Wharton. He pled guilty on March 24, 2010. Through counsel, defendant filed a PCR motion on July l3, 2009 in the Parsippany-Troy Hills Municipal Court, seeking a step-down sentence on the grounds his first conviction, in 1989, was uncounseled. See R. 7:10-2(g); State v. Laurick, 120 N.J. l, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990). The municipal court denied the motion, which defendant appealed. On de novo review, the Law Division also denied defendant's motion.
After defense counsel obtained police reports relating to the first DWI, he filed a second PCR. The municipal court again denied the motion. The Law Division granted defendant's motion, memorialized in an order of June 17, 2010, finding defendant satisfied the two prongs of Laurick. We granted the State's motion for leave to appeal.
On appeal, the State argues defendant's PCR motion should be denied procedurally based on the five-year time bar, R. 7:10-2 and R. 3:22-12, and alternatively, substantively based on a failure to establish a prima facie case for the Laurick relief.
The police reports contained in the record reveal that on July 30, 1988, Parsippany-Troy Hills police officers responded to the scene of a motor vehicle accident. They observed a woman, purportedly a pedestrian, lying on the ground unconscious. While unclear from the reports, it appears she had been struck by one of the vehicles. Defendant was involved in the accident and, according to the other driver, came around the bend at "a high rate of speed," striking his vehicle. Defendant's vehicle left tire tracks measuring seventy-two feet. A witness stated defendant had passed her prior to the accident "at a high rate of speed" and "cross[ing] double yellow lines."
The officer smelled alcohol on defendant's breath,*fn1 and defendant "had a hard time understanding [the] officer's request for his paper work." The officer also observed defendant's face was "flushed," and his eyes were "glassy and watery." The officer's additional recorded observations of defendant were that he was "swaying" and he had his "feet wide apart for balance"; his speech was "boisterous," "slurred," "stuttering," "rambling," and "slow"; his demeanor was "excited"; and his hand movements were "fumbling."
Defendant was taken to the hospital with a cut to his head. Accordingly, no psychomotor tests were performed at the scene. Defendant was placed under arrest at the hospital, waived his Miranda*fn2 rights, and consented to a blood test.*fn3 He was charged with DWI and other motor vehicle offenses. Defendant pled guilty to the DWI charge in April 1989. In this PCR, ...