On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 006-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
Defendant John Lloyd, Jr. appeals from a May 18, 2011 order of the Law Division, denying his post-conviction relief (PCR) petition seeking Laurick*fn1 relief from enhanced penalties for driving while intoxicated (DWI), N.J.S.A. 39:4-50, based on a purportedly uncounseled plea in 1977. Defendant challenges conduct by the municipal court judge and asserts factual and legal error by the Law Division judge. We are not persuaded by defendant's arguments and affirm.
On August 11, 1977, defendant was charged with DWI in Egg Harbor Township. He pled guilty to that charge on September 9, 1977, and was sentenced to a one-year loss of license and appropriate fines and penalties.*fn2 Defendant, represented by counsel, entered a guilty plea to a subsequent DWI in Egg Harbor Township in 1982.
In January 2011, defendant filed this PCR petition pursuant to Rule 7:10-2(g), seeking Laurick relief to bar the 1977 conviction from being used to enhance a custodial term with respect to a subsequent DWI conviction. Defendant stated in an affidavit that when he entered his guilty plea in 1977, he was not represented by an attorney, was not advised of his right to counsel, and was not made aware of the enhanced consequences of a subsequent conviction for DWI. He further stated that had he been so advised, he would have retained counsel. Defendant expressed the belief that he was prejudiced by not having counsel in that he was "unable to adequately defend" against the DWI charge.
At the hearing on January 27, 2011, although State and defense counsel apparently agreed the motion should be decided on the affidavit, the municipal court judge had questions about the case and wanted to hear from defendant prior to ruling. Before proceeding, the judge allowed defense counsel to meet with defendant to prepare him to testify. On direct examination, defendant stated he was "82 plus" years of age, and he remembered his arrest at the Cardiff Circle in Egg Harbor Township and guilty plea to the DWI charge shortly thereafter in which he did not have an attorney. When asked if he was advised of his right to have a lawyer, defendant responded, "As far as I -- my knowledge I don't remember" and clarified that he did not "remember being advised to counsel." On cross-examination, when asked if he was advised of his right to counsel on the day in question, defendant responded, "As part of my recollection, I don't -- I don't think so." Defendant further stated that if he had been aware of his right to counsel and the consequences of a DWI conviction, he would have retained counsel.
The judge asked defendant questions about his ability to recall the events of his September 9, 1977 court appearance, but defendant was unable to recollect the day of the week, the name of the judge, whether it was the same courtroom, and candidly acknowledged he could not "recall anything at all about that court proceeding." The following colloquy ensued regarding defendant's recollection as to being advised of his right to counsel:
[Judge] Q. So you can't tell the court definitively that you were not advised of your right to counsel, is that correct? [Defendant] A. To the best of my knowledge. [Judge] Q. Well, if you don't recall anything about that day how can you tell the Court that you weren't advised of your right to counsel? [Defendant] A. I don't know.
The judge briefly questioned defendant regarding his memory of the Absecon municipal court appearance three days before the Egg Harbor one, about which defendant had no specific recollection, prompting the judge to use the term "old memory."
Defense counsel then elicited testimony from defendant that he was in an accident at the Cardiff Circle on an unknown date during which he "was talking on [his] CB and [his] cord got tangled around [his] steering wheel[,]" and he was charged and pled guilty to DWI. When questioned again by defense counsel whether he remembered anyone advising him of his right to counsel, defendant responded that he "[did not] remember."
In denying defendant's petition, the judge discussed his knowledge of the practice of the judge who took defendant's plea in 1977, speculating that the prior judge would have advised defendant of his right to counsel before accepting a plea on the second DWI offense. He also found defendant did not satisfy his burden to prove he was not advised of his right to counsel and did not have counsel at that time based on defendant's failure to remember anything about what happened thirty-three or thirty-four years ago. Defendant appealed.
In a colloquy with the Law Division judge during his de novo review on April 28, 2011, defense counsel represented that defendant informed him no breath test had been taken following the 1977 incident; however, he was unaware whether any psychophysical or other roadside sobriety tests had been performed by police. Judge Max A. Baker denied defendant's PCR motion in an order of May 18, 2011. The judge dismissed defendant's ...