July 18, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL SPANGENBERG, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 provided to me to indicate other than the judge complied with Rodriguez [v.] Rosenblatt.
It's unclear whether or not defendant actually did have counsel, although I would think that he did not since they put not applicable on the form. But that doesn't mean defendant didn't waive counsel. And he doesn't want to affirmatively say that he did or he didn't. He says, I don't remember.
Judge Mellaci then cited State v. Laurick, 120 N.J. 1, certif. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), wherein the 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 if the defendant had not been informed of his or her right to counsel and, if indigent, the right to assignment of counsel. 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 -based PCR petitions, retained the five-year time limitations for filing PCR petitions set forth in Rule 7:10-2(b)(2).
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.].
In order to claim entitlement to relaxation of the five year limitation on bringing Laurick petitions, the defendant must "establish that any delay in filing his claim was not the result of neglect or some other disqualifying reason." State v. Bringhurst, 401 N.J. Super. 421, 437 (App. Div. 2008). The court should also consider "'the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits.'" State v. McQuaid, 147 N.J. 464, 485 (1997) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). Moreover, the Supreme Court has recognized the difficulty inherent in evaluating PCR applications "years after the fact" because inevitably "memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable." Mitchell, supra, 126 N.J. at 575; State v. Weil, 421 N.J. Super. 121, 131 (App. Div. 2011) (In determining whether defendant's PC petition should be time- barred, "we balance the competing interest of the State in achieving finality to pleas, and the potential prejudice to the State and detriment to the public interest occasioned by the sixteen-year delay and destruction of the bulk of the recordings pertaining to the 1994 offense and conviction, with defendant's entitlement to fairness and protection of basic rights.") (citations and internal quotations omitted).
In rejecting defendant's argument in support of relaxation
of the time-bar here, Judge Mellaci stated:
The extent of the delay is clearly significant. This is evidenced by the fact that the only documentation of the 1979 proceeding is the transcript of the docket, filled out on November of 2010. Moreover, the defendant's own memory of the proceeding has faded to the point that he does not remember why, as he claims, he was not represented by an attorney.
His faded memory is significant not only because it shows how the 32 year delay prejudices the State were it required to re-litigate the case in an evidentiary hearing, but it also shows why he has failed to establish a prima facie claim for [Laurick] relief.
Defendant alleges no fact that even tends to show that he may not have been informed of his right to counsel at the 1979 proceeding. The fact that the transcript of the docket states N/A on the attorney appearance line bears little relevance to defendant's burden of proof.
Even assuming arguendo that he was not represented by counsel, the analysis turns on whether he was informed of his right to counsel, not whether he was actually represented. The defendant could very well have waived his right to counsel.
We have no affirmative proof one way or another that that was done, but I can infer that it was done. And certainly the burden is not on the State. It's on the defendant to show that it was not done.
Furthermore, defendant -- and there is no reason to favor the belief that he was uniformed of this right over a belief that he waived the right to counsel. As I stated, there are no facts and his memory does not help to show whether he was informed of this right. Defendant has not articulated any specific facts that "would provide the [c]court with an adequate basis on which to rest its decision." [citation omitted].
Given that the delay is so long and prejudice to the State is so substantial and that the defendant has failed to assert any credible facts [addressing the waiver of counsel] in the 1979 proceeding, defendant has not demonstrated in this [c]court's opinion the "excusable neglect" required to relax the five year time bar.
On appeal, defendant asserts he was unaware of his right to counsel and that, due to the passage of time, he cannot reconstruct his "financial situation [in] 1979." We find these arguments unpersuasive and affirm the order denying defendant's PCR petition essentially for the reasons expressed by Judge Mellaci. We note that defendant's certification stated that his recollection of events pertaining to the proceeding in 1979 is "faint" and that, at most, he "do[es] not remember" being advised of a right to counsel. Those limited assertions fail to sustain defendant's burden of proof under Shadewald, which instructs that defendants "must establish" that they were not advised of their right to counsel at the time of the uncounseled pleas. Shadewald, supra, 400 N.J. Super. at 354. Moreover, defendant does not address the defenses that would have been available to him had he, in fact, engaged counsel. On this scant record, we cannot conclude that the trial judge erred in denying defendant's petition to vacate his 1979 DWI conviction. Affirmed. Any stay currently in effect is dissolved, effective ten days after the date of this opinion.
© 1992-2012 VersusLaw Inc.