On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4892.
The opinion of the court was delivered by: Axelrad, P.J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman, andJ. N. Harris.*fn1
The opinion of the court was delivered by AXELRAD, P.J.A.D.
In this appeal, defendant urges us to revisit State v. Bringhurst, 401 N.J. Super. 421 (2008), and hold, in essence, that a defendant who files a Laurick*fn2 post-conviction relief (PCR) petition to obtain relief from enhanced penalties for driving while intoxicated (DWI) based on a purported uncounseled prior DWI conviction is absolved from establishing a prima facie case for relief where her time delay has resulted in destruction of most of the records pertaining to the prior conviction. We decline to do so and affirm defendant's conviction.
The record before us is scant. On October 25, 1994, defendant pled guilty to DWI, N.J.S.A. 39:4-50, in Wayne Township (Wayne) Municipal Court, for an incident occurring on September 24, 1994. She subsequently committed and pled guilty to another DWI offense, though the record does not reveal the particulars or date.
On March 4, 2010, defendant appeared with counsel, Michael F. Kelly, in the Borough of Oakland (Oakland) Municipal Court, and entered a guilty plea to a third DWI occurring on October 6, 2009. The municipal court judge sentenced defendant as a third offender pursuant to N.J.S.A. 39:4-50(a)(3), but stayed the mandatory six-month custodial sentence pending a Laurick application in the Wayne Municipal Court, seeking a "step-down" in sentencing on the grounds her first conviction in 1994 was uncounseled. See R. 7:10-2(g); Laurick, supra, 120 N.J. 1.
Defendant promptly filed a motion for PCR relief. Other than listing the date of the offense and date of the guilty plea reflected on her certified driving abstract, defendant's certification contained only the following statements regarding the incident and municipal court appearance:
I do not recall being represented by the Municipal court public defender and was not represented by private counsel.
I do not recall being made aware of my constitutional right to a trial or giving a factual basis.
Kelly certified that he requested a transcript of the October 25, 1994 Wayne Municipal Court proceeding but the tape recording was unavailable "due to the age of the summons." Similarly, the police reports were no ...