January 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT MOFFETT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. A-16-07-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Fuentes and Graves.
Defendant Robert Moffett appeals from an order dated March 8, 2010, denying his post-conviction relief (PCR) petition to vacate his conviction for driving while intoxicated (DWI) on August 16, 1986. On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE THE DEFENDANT'S EXCUSABLE NEGLECT.
PURSUANT TO THE MANDATES OF LAURICK,*fn1 THE DEFENDANT WAS ENTITLED TO BE MADE APPRISED OF THE CONSEQUENCES ASSOCIATED WITH FUTURE ENHANCED PENALTIES SHOULD HE BE SUBSEQUENTLY CONVICTED OF DRIVING WHILE INTOXICATED.
Based on our review of the record and the applicable legal principles, we have concluded that these arguments are without sufficient merit to warrant extended discussion. R. 2:11- 3(e)(2). We therefore affirm with only the following comments. In a certification dated January 20, 2009, defendant presented the following reasons for vacating his guilty plea:
I submit this certification in support of my application to vacate and dismiss my plea of guilty predicated on the fact that it was not knowing and/or voluntary.
By way of factual background I received a charge on August 16, 1986 for driving while intoxicated. I presented on the matter on or about December 8, 1986, at which time I do not recall being represented by counsel, nor do I recall being provided with notice as to enhanced penalties. My specific recollection of the events is that I entered a plea which was not voluntary, and/or knowing and/or moreover with full notice and knowledge as to future enhancements as a result of subsequent driving while intoxicated and/or under the influence charges.
Based on the fact that I was not represented by counsel, I do not believe that my plea was knowing and voluntary. Moreover I do not recall the Court ever advising me as to proper notice and knowledge as to the fact that my plea could have subsequent ramifications should I be charged in the future with driving while either intoxicated and/or under the influence. In fact it is my specific recollection that I was never apprised of the enhanced penalties associated with a second and/or third offense.
Based on the aforementioned and the fact that I do not recall having been represented by counsel and not apprised of my future rights, I respectfully request pursuant to Laurick the Court vacate my plea of guilty for the aforementioned reasons.
In addition I also request of the Court that I be tried on the matter and/or in the alternative if the Court is not prepared to try me on the underlined charge that the case be dismissed predicated on the fact that I was denied procedural and/or substantive due process.
Defendant's petition was initially denied by the Avalon Municipal Court. In an oral decision on April 7, 2009, the municipal court judge stated that "the docket book" kept by the "Court Clerk at the time," indicated defendant "was represented by James Crawford, Esquire." The municipal court judge also determined that defendant's application was time-barred by Rule 7:10-2(b)(2) because defendant had not shown any "credible reason" for the delay in filing his petition.
Defendant appealed to the Law Division and during oral argument on March 8, 2010, defense counsel advised the court that defendant's second DWI conviction occurred on November 27, 2002, and his third DWI conviction occurred sometime in 2007. Defense counsel also acknowledged that he represented defendant at the time of his second conviction in 2002. In denying defendant's application, the court found: (1) defendant failed to establish excusable neglect for seeking relief twenty-three years "post the Avalon conviction" and more than five years after defendant's second DWI conviction on November 27, 2002; (2) defendant failed to clearly articulate a viable defense to the first DWI charge in 1986; (3) there was no showing that the judge who sentenced defendant in 2002 failed to advise him of the enhanced penalties for a subsequent DWI offense; and (4) the State's ability to prosecute the case would be prejudiced by the "passage of time."
On appeal to this court, defendant argues "there was no rational basis" for the Law Division's ultimate conclusion. We do not agree. In our view, the Law Division judge's findings are fully supported by the record. Moreover, even if we assume defendant was not represented by counsel when he entered his guilty plea in 1986; he was not advised of the right to the assignment of counsel and was not aware of his right to be represented by counsel of his choosing; he still failed to demonstrate the absence of counsel "had an impact on [his] guilt or innocence" or otherwise resulted in "a miscarriage of justice." Laurick, supra, 120 N.J. at 11. Thus, defendant failed to establish a prima facie case for the relief he sought.