On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 34-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2011
Before Judges Carchman and Fisher.
In 1999, defendant pled guilty in Southampton Township Municipal Court to driving while intoxicated (DWI), N.J.S.A. 39:4-50. In 2010, more than ten years later, defendant petitioned that court for post-conviction relief (PCR), arguing she may have been uncounseled when entering the 1999 guilty plea. Following the municipal judge's denial of her PCR petition, defendant pled guilty to a third DWI offense and appealed the denial of her PCR petition to a Law Division judge, who also denied relief. In this appeal, defendant contends that the Law Division judge erroneously denied her PCR petition, presenting the following arguments for our consideration:
I. THIS APPEAL IS NOT TIME-BARRED BY COURT RULES.
II. THE MUNICIPAL COURT AND LAW DIVISION ERRED IN IMPOSING AN INCREASED PERIOD OF INCARCERATION BASED ON APPELLANT'S PRIOR UNCOUNSELED DWI CONVICTION.
A. Defendant-Appellant's 1999 DWI Conviction Was Uncounseled.
B. Defendant-Appellant Was Indi-gent At The Time Of Her 1999 DWI Conviction.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments in affirming the order under review.
In State v. Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), the Court held that an uncounseled DWI conviction -- resulting from a violation of the notice requirements of Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) -- may not be used to enhance the period of incarceration for a subsequent offense. Here, faced with the prospect of a third DWI conviction, defendant sought to demonstrate her 1999 DWI conviction was uncounseled. Her PCR petition, however, did not assert she was unrepresented in that matter. Defendant argued in her PCR petition that she was not "properly advised as to the legal implications associated with entering my plea of guilty, the sentence or the exposure . . . face[d]" (emphasis added); defendant did not clearly assert that she was not represented at that time.*fn1 Indeed, defendant mainly relied on the fact that defense counsel's name was not written on the back of the 1999 summons -- a circumstance that, at best, was only thinly suggestive of a lack of representation.
Defendant's fatal equivocation on the precise point of whether she was represented was borne out by the following colloquy between the municipal judge and defense counsel during the PCR hearing:
THE COURT: I mean, the question is very simple. If the defendant was represented by the public defender at the time of her initial plea, her right to counsel has been satisfied.
[DEFENSE COUNSEL]: But we don't know if the notices were properly given; and, again, looking at the ...