March 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM SCHADEWALD, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2011
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?
You have. Recently?
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 really don't need him.
Did he advise you as to how to proceed[?]
To plead guilty.
And that was based on your discussion with him what happened and the details.
How old are you[?]
And you are employed.
Manage a pet store. I'm sorry, I manage a pet store.
You're a manager of a store.
OK Did you graduate from High School?
Did you attend college[?]
OK Mr. Monahan any other questions you think are appropriate with regard to the [potential] guilty plea on this charge[?]
Yes. Were [you] able to review with your attorney the police report. Have you seen the police report[?]
Yeah, they gave to me that night.
Did you read it over[?]
Is your decision also based upon what you read in that report[?]
Did you tell that to your attorney[?] The attorney that you spoke to.
Yes. I explained everything that was on it over the phone.
You spoke with an attorney over the phone.
And did you explain to that attorney that there was a breathalyzer test conducted[?]
[Without] saying what the results were did you indicate to him what the results were of the breathalyzer test that you took[?]
And was it after that that the attorney advised you to come in and plead guilty[?]
Are you doing this freely and voluntarily[?]
Later in the proceeding, defendant advised the judge that earlier on the day he was stopped he had "paid off" $9000 in credit card bills and that he had just bought a house. On October 4, 2010, the Law Division judge conducted the trial de novo on the record from the municipal court's denial of PCR. After hearing the argument of counsel, the judge rendered a decision from the bench. He determined that the 1989 Westfield municipal court judge had adequately explained to defendant that DWI offenses are serious, result in substantial penalties, and, most significantly, that defendant had a right to be represented and a right to counsel even if he could not afford private counsel. He also noted that defendant acknowledged understanding those rights.
Having found as a threshold matter that defendant had received notice of his right to counsel, the Law Division judge went on to state that it was unnecessary to proceed to the remaining Laurick analysis. See Hrycak, supra, 184 N.J. at 363. That would have required defendant to prove that had he been represented by counsel, in all likelihood the outcome would have been different. See Laurick, supra, 120 N.J. at 111. Hence defendant's petition for PCR was denied.
On appeal, defendant contends that he was entitled to PCR and a step-down in his sentence. He asserts that the colloquy the court conducted with him in 1989 was inadequate, did not sufficiently explain the concept of indigency, and failed to address whether he was in fact indigent.
Our role is extremely limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Olivieri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). We ask whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Nonetheless, our review of purely legal issues is plenary. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
Our independent review of the record supports the Law Division judge's finding that defendant was advised of his right to counsel. Defendant was told that he had the right to be represented by an attorney. He was told that if he could not afford an attorney, he could apply for a public defender to represent him. In fact, defendant replied by saying that he had spoken to an attorney, albeit by phone, and even discussed the contents of a police report given to him the night of his arrest, which may have included the outcome of breathalyzer testing. Defendant stated he was advised to appear pro se and simply enter a guilty plea. There is ample basis in the record for the Law Division judge's conclusion.
We therefore agree that defendant has not met his burden to establish that he did not receive sufficient notice of his right to counsel. See Hrycak, supra, 184 N.J. at 363. The judge's determination that defendant's 1989 plea met the Laurick standard is therefore affirmed.
The consequence of our decision is that the stay of defendant's sentence is dissolved. He is to surrender to the appropriate authorities within ten days of the date of this decision.
Affirmed, and the stay of the incarceration aspect of defendant's sentence is hereby dissolved.
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