On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Yannotti.
Defendant Michelle Pyne appeals from an order entered by the Law Division on January 3, 2011, which denied her petition for post-conviction relief (PCR). We affirm.
On March 1, 2002, defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; and operating a motor vehicle while knowingly possessing a controlled dangerous substance (CDS), N.J.S.A. 39:4-49.1. Defendant also was charged with certain motor vehicle violations, specifically speeding and failure to stop or yield. On March 15, 2002, defendant was again charged with DWI.
On June 27, 2002, defendant pled guilty in the municipal court to the March 1, 2002 DWI violation. Defendant said that she had been driving while under the influence of alcohol. The assistant prosecutor noted that, at the relevant time, the readings of defendant's blood alcohol concentration (BAC) were .21 and .22. The State agreed to dismiss the charges for speeding and failing to stop or yield.
The municipal court sentenced defendant on the CDS charge to twelve months of probation. On the DWI charge, the court ordered the suspension of defendant's license for six months, required that she attend programs at an Intoxicated Driver Resource Center, and imposed certain monetary penalties.
At the June 27, 2002 proceedings, defendant also pled guilty to the March 15, 2002 DWI charge. She stated that she had been driving under the influence of alcohol. The assistant prosecutor noted that, at the relevant time, the readings of defendant's BAC were .18 and .18.
The municipal court ordered the suspension of defendant's driving privileges for two years, required defendant to perform thirty days of community service and imposed a ten-day period of incarceration. The court placed defendant on probation for one year, and required that she attend meetings to address her use of alcohol. In addition, the court imposed certain monetary penalties.
In 2010, defendant was charged with DWI for the third time. She thereafter filed a PCR petition seeking to set aside her 2002 DWI convictions on the ground that she had not provided the municipal court with an adequate factual basis for her pleas. The municipal court denied the petition. In a decision placed on the record on September 9, 2010, the court found that the petition was barred by Rule 7:10-2(b)(2) because it had not been filed within five years after entry of the judgment of conviction, and defendant failed to show excusable neglect for the late filing.
Defendant filed an appeal seeking de novo review in the Law Division. The trial court considered the matter on January 3, 2011, and placed a decision on the record that day. The court rejected defendant's contention that the five-year time limit in Rule 7:10-2(b)(2) should be relaxed because the municipal court judge had not advised defendant of her right to appeal when she was sentenced in 2002, and because her attorney died a short time after the sentencing.
In its decision, the Law Division judge noted that the municipal court's failure to advise defendant of her right to appeal did not justify the eight-year delay in filing the PCR petition. The judge pointed out that defendant had not asserted that she was unaware of her right to appeal from the judgments of conviction entered in 2002. The judge also noted that defendant had not explained how the death of her attorney had prevented her from filing a timely appeal or engaging the services of another attorney to do so.
The Law Division judge entered an order dated January 3, 2011, denying defendant's petition for PCR. This appeal followed. Defendant argues that: 1) her PCR petition was not time-barred; and 2) she did not provide an adequate basis for her pleas to the two DWI convictions in 2002. We are convinced that these arguments are without sufficient merit to ...