On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 11-010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued June 22, 2012
Before Judges Sabatino and Kennedy.
Defendant Michael Spangenberg appeals from an order entered by the Law Division on July 22, 2011, which denied his petition for post-conviction relief (PCR) seeking to vacate his 1979 conviction in Wall Township for driving while intoxicated (DWI), N.J.S.A. 39:4-50, for "failure to advise defendant of right to counsel." We affirm essentially for the reasons set forth by Judge Anthony J. Mellaci, Jr., in his comprehensive and well- reasoned opinion from the bench on July 22, 2011.
On April 29, 1979, defendant pled guilty to DWI in the Wall Township Municipal Court. On June 29, 2009, defendant was convicted of DWI in the Hopatcong Municipal Court. On October 24, 2010, defendant pled guilty in the Hopatcong Municipal Court to his third charge of DWI. Sentencing on the charge was stayed to allow defendant to file a PCR petition in Wall Township challenging his 1979 DWI conviction.
Defendant filed his PCR petition in the Wall Township Municipal Court on December 20, 2010. Because the challenged conviction occurred over thirty years earlier, no transcripts of the proceeding were available, see Rule 7:8-8(a), and the only record of the events in the municipal court was a "transcript of docket" which revealed that defendant was charged with the offense on January 28, 1979 and pled guilty on April 10, 1979. In the space for "attorney's appearance[,]" the record stated "N/A." Defendant submitted a certification in support of his PCR application in which he stated:
I have only a faint recollection of the events of that time, but I know that I was not represented by an attorney. I was only eighteen years old at the time and did not understand the importance of what was happening. I do not remember the [c]court advising me that I had the right to an attorney.
The municipal court judge denied the petition on January 26, 2011, and in his bench opinion noted that court records of proceedings "are not maintained in excess of [thirty] years" and are, in fact, "maintained for a far lesser period of time than that." The judge denied the petition on the ground it was time barred, and he found defendant's assertions insufficient to support a claim of "fundamental injustice" to overcome the time limitation established by court rule.
Defendant thereafter pled guilty to DWI in the Hopatcong Municipal Court and was sentenced as a third offender to a ten year loss of license, 180 days imprisonment and other penalties. N.J.S.A. 39:4-50(a)(3). Sentence was stayed pending the outcome of a de novo appeal to the Law Division.
Defendant then filed an appeal seeking de novo review in the Law Division. Defendant was permitted to file a supplemental certification in which he alleged that there were "family problems" in 1979 and that he was "very anxious to complete the proceedings [in municipal court] because [he] wanted to enlist in the U.S. Marines and get the incident behind [him]."
Judge Mellaci considered the matter on July 22, 2011, and placed a decision on the record that day. Preliminarily, Judge Mellaci explained:
This case came up after Rodriguez [v.] Rosenblatt, 58 N.J. 281 at 295, 1971, that stated that the Court required as a matter of simple justice that any indigent defendant facing imprisonment or other consequence of magnitude be advised of a right to representation by counsel and to have counsel assigned to him unless he chooses to proceed pro se with his plea of guilty or his defense at trial.
Rodriguez [v.] Rosenblatt . . . put all municipal courts on notice that they had to advise a defendant of their right to counsel for cases involving potential imprisonment or for consequences of magnitude. And subsequent case law indicated that taking one's privilege to drive an automobile was a consequence of magnitude. There's nothing that's been ...