April 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN LLOYD, JR., DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 19, 2012
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 concern with the questioning by the municipal court judge as necessary to the judge's role as a fact-finder.
In rendering his decision, Judge Baker expressly stated he was ignoring the municipal court judge's findings that were grounded on his familiarity with the prior judge's practices, as well as his allusion to defendant's "old memory." Placing greater weight on defendant's live testimony in municipal court than on the affidavit prepared by counsel, particularly that defendant did not remember anything about the September 1977 court appearance, Judge Baker was satisfied defendant did not remember whether or not he had been advised of his right to counsel. Thus, based on his analysis of the transcript as a whole, he was not satisfied defendant carried his burden under Laurick for PCR relief over three decades after he pled guilty to DWI in Egg Harbor municipal court. This appeal ensued.
On appeal, defendant asserts legal error by the Law Division judge in: (l) discounting inflammatory statements made by the municipal court judge when addressing defendant; (2) discounting the fact the municipal court judge testified as to the habit of a previous judge and took judicial notice of that judge's practices; (3) not taking into consideration the fact the municipal court judge had crossed the line between prosecutor and judge, thereby coloring the record being considered on de novo appeal; (4) considering previous DWI offenses when determining whether to grant defendant's PCR application; and (5) his analysis of a Laurick petition. Based on our review of the record and applicable law, we do not find any of defendant's arguments to be persuasive.
As more fully discussed below, the municipal court judge acted well within his discretion in choosing not to rule on defendant's motion based solely on the affidavit despite the State's acquiescence. Defense counsel did not request an adjournment but only a "short break" to prepare defendant for testimony, which the court accommodated, and defense counsel proceeded with direct examination without further comment. Defendant was treated fairly by counsel and the court and was asked appropriate questions aimed at ascertaining whether, and to what extent, he remembered the details of the incident and his 1977 court appearance. Defendant was not badgered and was given ample opportunity to clarify his responses. The judge's reference to defendant's memory as "old" near the end of their colloquy, though insensitive, was not inflammatory. Moreover, this comment was expressly disregarded by the Law Division judge. In addition, it is clear Judge Baker also disregarded the municipal court judge's inappropriate discussion of the prior judge's practice and speculative conclusion that the prior judge advised defendant of his right to counsel.
Thus, the record presented to the Law Division was not tainted by the municipal court judge's comments or questioning of defendant. Contrary to defendant's assertion, the municipal court judge did not cross the line between advocacy and impartiality. A judge is authorized to ask questions of witnesses. N.J.R.E. 614. We review the court's decision to examine witnesses under an abuse of discretion standard. State v. Medina, 349 N.J. Super. 108, 130-31 (App. Div.), certif. denied, 174 N.J. 193 (2002). A court may examine witnesses to clarify testimony, aid the court's understanding, elicit material facts, and assure the orderly and expeditious conduct of the trial. Ibid.
Particularly before a jury, trial courts should exercise "great restraint" in questioning witnesses so as not to influence the jury by suggesting disbelief or that it is taking one party's side. State v. Taffaro, 195 N.J. 442, 451 (2008) (citing State v. Guido, 40 N.J. 191, 208 (1963); Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958)). Moreover, "while it is proper for judges to attempt to clarify testimony, they should not press defendants when the meaning of their responses is 'perfectly plain'" because such questions may express incredulity and prejudice a defendant before a jury. Taffaro, supra, 195 N.J. at 451 (quoting Guido, supra, 40 N.J. at 208-09 n.2). The critical concern is that there is a "point at which the judge may cross that fine line that separates advocacy from impartiality. When that occurs there may be substantial prejudice to the rights of one of the litigants." Ridgewood, supra, 28 N.J. at 132.
Concerns about the impact of the judge as questioner, however, "are less acute in the context of bench trials, where judges serve as fact finders and have more latitude in questioning witnesses." Taffaro, supra, 195 N.J. at 451. Nonetheless, even in a bench trial, "a trial judge must take special care to craft questions in such a manner to avoid being perceived as an advocate for any side of a dispute." L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 537 (App. Div. 2011) (referring to the court's questioning in a non-jury domestic violence trial).
Based on our review of the record, we have no doubt the municipal court judge was engaged in a good faith search for the truth when he decided to elicit live testimony from defendant and engage in a brief colloquy with him. He did not assume the role of an advocate, badger or harass defendant with irrelevant or repetitive questions, or attempt to trick or confuse defendant so as to distort the record. To the contrary, all the questioners made significant efforts to help jog defendant's memory and defendant was given wide latitude to clarify and explain his answers. We discern no impairment of defendant's right to a fair hearing.
Turning to the merits, we are satisfied the Law Division judge
properly applied the law when he analyzed defendant's Laurick motion
and his findings are supported by the record. In Laurick, supra, the
New Jersey Supreme Court held that "[i]t is constitutionally
permissible that a prior uncounseled DWI conviction may establish
repeat-offender status for purposes of the enhanced penalty provisions
of the [State's] DWI laws"; however, it may not be used to enhance the
period of incarceration for a subsequent conviction.*fn3
120 N.J. at 16. See also State v. Hrycak, 184 N.J. 351, 354
(2005) (reaffirming the holding in Laurick). This is typically
referred to as a "step-down" sentence. State v. Schadewald, 400 N.J.
Super. 350, 353 (App. Div. 2007). Rule 7:10-2(g), which was added to
specifically address Laurick PCR petitions, retained the five-year
time limitations for filing PCR petitions set forth in Rule 3:22-12.
As emphasized by Judge Baker, defendant's PCR petition was filed over three decades after his 1977 DWI conviction. We note that defendant made no proffer of "excusable neglect" for his significant delay in the filing of his PCR petition, nor did he provide any explanation, for example, why he waited seventeen years after he pled guilty in l982 to the subsequent DWI, admittedly represented by counsel. See, e.g., State v. Bringhurst, 401 N.J. Super. 421, 437 (App. Div. 2008) (holding that to be entitled to the relaxation of the five-year time bar for a Laurick PCR petition, a defendant must "establish that any delay in filing his claim was not the result of neglect or some other disqualifying reason").
"A defendant must establish, by a preponderance of the credible evidence, entitlement to the relief requested on PCR." State v. Weil, 421 N.J. Super. 121, 131 (App. Div. 2011) (citing State v. McQuaid, 147 N.J. 464, 483 (1997)). In Schadewald, supra, we identified the proofs required to establish entitlement to the step-down sentence for a second or subsequent DWI:
1. Indigent defendants must establish that they were not given notice of their right to counsel and advised that counsel would be provided for them if they could not afford one.
2. Non-indigent defendants must establish that they were not advised of their right to counsel and that they were unaware of such right at the time they entered the uncounseled pleas.
3. Defendants who establish that they were not adequately noticed of their right to counsel must then demonstrate that if they had been represented by counsel, they had a defense to the DWI charge and the outcome would, in all likelihood, have been different. Police reports, witness statements, insurance investigations and the like may be used to submit proofs that the outcome would have been different if the defendant had the benefit of counsel before pleading guilty. [400 N.J. Super. at 354-55.]
See also Hrycak, supra, 184 N.J. at 363; Laurick, supra, 120 N.J. at 11.].
Judge Baker found, primarily based on defendant's testimony, that he failed to meet his burden of proving he was not informed of his right to counsel. That finding is supported by defendant's equivocal testimony and inability to recollect any of the events of the September 1977 court appearance. Moreover, defendant has failed to demonstrate in either his affidavit or testimony that he had a defense to the 1977 DWI charge and the outcome of the DWI charge "in all likelihood" would have been different if he had representation before pleading guilty. Defendant's mere statement that he was in an accident while "talking on [his] CB and [his] cord got tangled around [his] steering wheel" is insufficient. Particularly considering this vague testimony, it is reasonable to require defendant to have produced police reports, witness statements, insurance investigations or the like to demonstrate a viable defense to the 1977 DWI charge and prejudice resulting from the purported lack of notice regarding counsel.
This is particularly so for a defendant who sought Laurick relief almost three decades beyond the five-year bar for PCR relief.
Contrary to defendant's assertion, it is clear from the totality of the transcript that Judge Baker understood this prong did not require defendant to have a claim of innocence for PCR relief. Although the judge misspoke and inadvertently referred to this requirement as a "claim that, in fact, [defendant] was innocent[,]" he promptly clarified it, stating, "[a]nd we don't know that  even -- if [defendant] had had an attorney, . . . that there's . . . some sort of a likelihood that he would've been found not guilty." This understanding was evident in the judge's colloquy with defense counsel as to whether defendant had a breathalyzer taken or psychophysical field tests performed.
The record does not reflect that defendant's prior DWI convictions had any bearing on the court's denial of this PCR application. They were briefly discussed at the municipal court hearing and during argument before the Law Division for historical perspective and as explanation for defendant's present concern with enhanced penalties.
Judge Baker correctly concluded that defendant's belated Laurick claim did not warrant PCR relief.