On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5946.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
Defendant William Schadewald appeals his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after trial de novo on the record in the Law Division. See R. 3:23-8(a). On a prior appeal from this conviction, the matter was remanded so as to afford defendant the opportunity to file an application for post-conviction relief (PCR) pursuant to Rule 7:10-2(g). Defendant entered an allegedly uncounseled guilty plea to DWI in the Westfield municipal court. State v. Schadewald, 400 N.J. Super. 350, 356-57 (App. Div. 2007). The rationale for the remand was grounded on the principles enunciated in State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), and State v. Hrycak, 184 N.J. 351 (2005), with regard to uncounseled guilty pleas to DWI, and a defendant's right under those circumstances where appropriate, to vacate such pleas and receive the benefit of a "step-down" sentence for a subsequent offense. In defendant's case, a successful Laurick application would have deleted the uncounseled conviction from the chain resulting in an enhanced sentence, thereby making him a second-, not third-time, DWI offender. Schadewald, supra, 400 N.J. Super. at 351. We conclude that defendant did not meet the standard for grant of such an application, and therefore affirm.
On January 13, 2010, the Westfield municipal court denied defendant's PCR petition. The tape of the 1989 proceeding was played in open court. Although to some extent degraded, it was stipulated that the following exchange took place between the municipal court judge and defendant:
I will advise [you] that with regard to the drunk driving charge which is a serious charge carrying a very substantial penalty that you have the right to be represented by a lawyer before you proceed - to explain [at] a minimum your rights, obligations and alternatives with regard to these charges and if you are unable to afford a lawyer you have the right to apply for the public defender if you can establish that you are unable to afford a lawyer on a form provided by the court.
Do [you] understand all that?
OK Have you talked to a lawyer?
I guess about 3 weeks ago.
OK and what decision did you make as a result of that?
I decided that when I talked to him he just said come and, I don't know and that I ...