April 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
MICHAEL STRAIN, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 23, 2011
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, defendant certified he was not represented by an attorney and was not advised of his right to counsel.
Defendant was represented by an attorney for the second DWI offense to which he pled guilty in October 2002. In April 2009, defendant was charged with a third DWI offense. He retained present counsel who investigated whether defendant wasrepresented by an attorney in the 1989 DWI conviction. By letter dated June 25, 2009, the Parsippany-Troy Hills Municipal Court advised it was unable to provide the records of the 1989 conviction as requested because the court records on disposed DWI matters were only kept for fifteen years.
On July 23, 2009, argument was conducted in municipal court on defendant's first PCR petition seeking relief from the enhanced custodial term appropriate for a third DWI offense. Defendant certified he "d[id] not believe that [he] was ever advised . . . as to [his] right to counsel" and "as to the penalties for subsequent offenses when [he] pled guilty." The motion was denied by both the municipal court and Law Division judges.
After obtaining records of the 1988 DWI arrest from the Parsippany-Troy Hills Police Department with a note stating "[t]his is everything in our file," defendant filed a second PCR petition for Laurick relief. This time, defendant certified he "was not ever advised" by the municipal court as to his right to counsel and "did not know that [he] could obtain counsel at the time [he] entered [his] plea." He also claimed he was not ever orally advised by the municipal court about "the penalties for subsequent offenses when [he] pled guilty." Defendant added the claim that there was insufficient observational evidence because no field sobriety tests were conducted and there were no blood alcohol content (BAC) readings.
After denial of defendant's application by the municipal court, the Law Division granted the motion on de novo review. The judge found defendant met the burden of showing his first conviction was "uncounseled" and a "fundamental injustice occurred . . . in that he was unaware of his rights to an attorney." The court then summarily concluded:
[c]learly, if [defendant] had an attorney in 1988, there would have been a different result. There's no BAC readings, no psycho-motor test. There's no - - there was no evidence. And clearly he - - I'm not going to say he was forced to plead guilty, but certainly he should have been advised of his right to counsel; he should have had - -been afforded a public defender,*fn4 if it was appropriate at the time. There's no evidence that that was afforded him, and the opposite is true.
An order granting defendant PCR relief was entered on June 17, 2010. On leave granted, the State appeals.
The determination of whether the trial court's findings of fact are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001).
The Supreme Court has held "an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty. In the context of repeat DWI offenses," enhanced administrative penalties and fines for a third-time DWI offender are to be imposed, however the maximum jail sentence that can be imposed on a third-time offender with one prior uncounseled conviction is the maximum jail sentence that could be imposed for a second-time offender.*fn5 Laurick, supra, 120 N.J. at 16. This is typically referred to as "step-down" sentence. See State v. Schadewald, 400 N.J. Super. 350, 353 (App. Div. 2007).
When Laurick was decided, the Court Rules did not expressly allow for post-conviction relief from a municipal court proceeding; Rule 7:10-2 was enacted in 1998 to govern the procedure of a PCR application in municipal court. State v. Bringhurst, 401 N.J. Super. 421, 428-30 (App. Div. 2008) (discussing the history of municipal court PCRs). In 2007, Rule 7:10-2(g) was enacted "to specifically address Laurick-styled PCR petitions." Id. at 430. Under Rule 7:10-2(g), a Laurick application is to be brought in the court where the prior conviction was entered and must be brought within five years of the entry of judgment unless the petition "alleges facts showing that the delay in filing was due to defendant's excusable neglect."
To aid the courts in deciding Laurick applications, the Court suggested that, prospectively, the municipal court make a notation on the hard-copy judgment of conviction that the defendant was advised of his or her right to counsel and counsel was waived. Laurick, supra, 120 N.J. at 12.*fn6 This notation has "presumptive correctness." Ibid.
The State first submits the five-year limitation in Rules 3:22-12(a) and 7:10-2(b) bars defendant's application. The State emphasizes that the present PCR petition was neither filed within five years of defendant's first uncounseled DWI conviction nor within five years of defendant's second counseled DWI conviction. Although we are mindful of the fact that the petition was filed twenty-one years after his first DWI conviction and eight years after his second DWI conviction, we conclude the circumstances warrant relaxation of the time bar.
Generally, the court should only relax the five-year limitation contained in the Rules under "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). However, in the case of a Laurick PCR petition, "a defendant's burden to justify relaxation of [the] five-year time limit, at least with respect to the reason for the delay, should be significantly less than proof of the 'exceptional circumstances' normally required." Bringhurst, supra, 401 N.J. Super. at 433 (quoting Afanador, supra, 151 N.J. at 52). We reasoned that, in the specific context of a Laurick petition, a prior uncounseled DWI conviction would "be of no moment unless and until there was a subsequent DWI conviction." Id. at 432-33.
In order to be entitled to relaxation of the Rule, the defendant must "establish that any delay in filing his claim was not the result of neglect or some other disqualifying reason." Id. at 437. The court should also consider "'the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits.'" State v. McQuaid, 147 N.J. 464, 485 (1997) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). Moreover, the Supreme Court has recognized the difficulty inherent in evaluating PCR applications "years after the fact" because inevitably "memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable." Mitchell, supra, 126 N.J. at 575. However, the time limits contained in Rule 7:10-2 "should be liberally relaxed." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 7:10-2 (2011).
Defendant has established that the delay in filing was not due to neglect or another disqualifying reason under Bringhurst. Moreover, a Laurick petition will not automatically be time-barred due to a defendant's failure to challenge the first conviction when charged with a second DWI. See, e.g., State v. Latona, 307 N.J. Super. 387, 388-89 (App. Div.) (defendant successfully challenged first conviction eight year later upon being charged with third DWI offense), certif. denied, 154 N.J. 607 (1998).
Defendant filed the PCR upon being charged with his third DWI, which created the impetus to challenge his first conviction in order to receive a step-down sentence as defendant's third DWI would carry jail time. While the State is correct that a second DWI typically carries jail time, N.J.S.A. 39:4-50(a)(2), defendant was not going to be sentenced to jail time for the 2002 conviction because more than ten years had elapsed between his first and second convictions. See N.J.S.A. 39:4-50(a) (stating that "if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes").
We do find persuasive, however, the State's substantive challenge, i.e., the Law Division erred as a matter of law because defendant did not establish a prima facie case of entitlement to Laurick relief. In other words, the court erred both factually and legally, as the evidence contained in the police reports was sufficient to convict defendant of DWI beyond a reasonable doubt.
After establishing a sufficient reason for the delay in filing, "a defendant must also allege facts in the petition sufficient to establish a prima facie case for relief . . . ." Bringhurst, supra, 401 N.J. Super. at 437. In order to establish a prima facie case in a Laurick application:
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. [Schadewald, supra, 400 N.J. Super. at 354-55.]
Here, defendant has not claimed he was indigent at the time of his first conviction, therefore, defendant is required to establish the absence of notice as to the right to counsel "as well as the absence of knowledge of the right to be represented by counsel of one's choosing and to prove that the absence of such counsel had an impact on the guilt or innocence of the accused or otherwise 'wrought a miscarriage of justice for the individual defendant.'" Laurick, supra, 120 N.J. at 11 (quoting State v. Cerbo, 78 N.J. 595, 607 (1979)). Arguably, defendant has presented a prima facie case that he was not advised of his right to counsel as he certified he was not so advised and there is no evidence in the record to refute his claims.
Therefore, the inquiry here focuses on the second prong of the analysis, whether representation would have, in all likelihood, changed the outcome. A defendant must establish, by a preponderance of the credible evidence, entitlement to the relief requested on PCR. State v. McQuaid, 147 N.J. 464, 483 (1997). To sustain that burden, a defendant must allege and articulate specific facts, "which, if believed, would provide the court with an adequate basis on which to rest its decision.
A court reviewing a petition that does not allege facts sufficient to sustain that burden of proof should not jump to its own conclusions regarding the factual circumstances of the case." Ibid.
Here, defendant argued the absence of field sobriety tests and BAC readings created a defense to the DWI charge. However, the absence of that evidence does not, in and of itself, create a defense such that "in all likelihood the outcome would have been different" as required by Schadewald. "Clearly, the State has the burden of proving beyond a reasonable doubt that a defendant was driving while intoxicated." State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005). However, we have held that evidence such as the arresting officer's testimony as to a defendant's "erratic driving, his physical appearance, demeanor, and speech, as well as the smell of alcohol on his breath" to be sufficient evidence to sustain a DWI conviction independent of the breathalyzer results. State v. Slinger, 281 N.J. Super. 538, 543 (App. Div. 1995). See also State v. Nemesh, 228 N.J. Super. 597, 603, 608 (App. Div. 1988) (upholding conviction independent of breathalyzer where arresting officer testified as to odor of alcohol on defendant's breath, slight swaying, tired appearance and bloodshot eyes and video showed defendant unable to complete balancing tests), certif. denied, 114 N.J. 473 (1989); State v. Sisti, 209 N.J. Super. 148, 150-51 (App. Div. 1986) (reaching the same result based on the officer's testimony regarding the "defendant's erratic driving, inability to produce his driver's license, alcoholic beverage odor on his breath, slurred speech, slow hand movements, and failure to pass a field test for balance"); State v. Liberatore, 293 N.J. Super. 580, 588-89 (Law Div.) (finding guilt beyond a reasonable doubt based upon observational evidence of defendant's difficulty in standing or walking, swaying, rambling speech, argumentative, boisterous, talkative and threatening demeanor, bloodshot eyes, and strong odor of an alcoholic beverage on his breath), aff'd, 293 N.J. Super. 535 (App. Div. 1996).
Similarly, in the present case, the totality of the observational evidence of the police and witnesses provides sufficiently reliable indicia of DWI to find defendant guilty beyond a reasonable doubt of the l988 charge without reliance on field sobriety tests or breathalyzer results. Witnesses observed defendant's erratic driving - traveling at a high rate of speed, crossing the yellow line, and striking another vehicle. The officer observed and documented the smell of alcohol on defendant's breath, his slurred speech, his unstable balance, his glassy and watery eyes, his boisterousness and his difficulty in understanding the officer's request for his driving credentials.
Defendant relies on his ability to cross-examine the State's witnesses as the sole support for his claim of a defense to the first DWI charge. Defendant, however, presents no basis upon which to undermine the credibility of the eyewitness' or officer's observations, or the officer's opinion that defendant was driving under the influence of alcohol. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (holding that a defendant "must offer something more than a bare allegation" to support a PCR application), certif. denied, l62 N.J. 199 (1999). Absent any alternative explanation for his erratic driving and demeanor or medical documentation of a concussion or similar injury that might have mimicked the post-accident symptoms of drunkenness, defendant is unable to present a prima facie case that, had he been represented by counsel at the l989 municipal court proceeding, he would have "had a defense to the DWI charge and the outcome would, in all likelihood, have been different." See Bringhurst, supra, 401 N.J. Super. at 434-35.
The Law Division erred both factually and legally in granting the requested PCR relief. The court's finding there was "no evidence" to support a DWI conviction completely ignored the observational evidence detailed in the police reports.
Accordingly, the court's ruling was not supported by "sufficient credible evidence in the record." State v. Locurto, 157 N.J. 463, 471 (l999).