November 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTINA M. MOHRMANN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ticket on its face, it doesn't --
THE COURT: The back of the ticket is just the judge's note, all right? . . . That's not controlling as to the issue of whether or not she was represented.
[DEFENSE COUNSEL]: Well, Judge, I would argue that it does -- does give an issue. It's not -- you know, it's there for a reason.
THE COURT: Well, does your client remember whether she was represented by the public defender or not?
[DEFENSE COUNSEL]: No, she doesn't, Your Honor . . . .
Following this exchange, the municipal judge rendered an oral decision in which he concluded that the court's file memorialized that defendant was represented in 1999 by the public defender, as revealed by the notice of a hearing date, and that defendant had failed to sufficiently dispute that fact. In a very thorough and correct decision, Judge Thomas P. Kelly drew conclusions similar to those expressed by the municipal judge, and also found that defendant failed to demonstrate excusable neglect in failing to seek relief in a timely fashion.
We affirm because defendant failed to affirmatively assert or otherwise persuasively suggest she was unrepresented in the 1999 matter, because the available evidence demonstrated defendant actually was represented when pleading guilty in the 1999 matter, and because defendant failed to demonstrate excusable neglect to explain her failure to seek relief from the 1999 conviction within the five-year limit contained in Rule 7:10-2(b)(2).
Affirmed. In addition, the stay of the custodial portion of the sentence imposed by way of this court's May 9, 2011 order is vacated.