November 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IDELLA MITCHELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2011-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 10, 2012 --
Before Judges Yannotti and Harris.
Defendant Idella Mitchell appeals from an order entered by the Law Division on July 25, 2011, dismissing her appeal from a judgment of conviction entered by the Ewing Township Municipal Court on July 19, 2007. We affirm.
This appeal arises from the following facts. On March 27, 2005, State Trooper Matthew Morin issued several summonses to defendant charging her with various motor vehicle violations, including driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to provide a breath sample, N.J.S.A. 39:4-50.2; consumption of alcohol while operating a motor vehicle, N.J.S.A. 39:4-51a; and failure to drive within a single lane, N.J.S.A. 39:4-88(b).
Defendant filed a motion to suppress and the municipal court judge conducted a hearing on the motion on February 15, 2007. Defendant was not present, but she was represented by counsel. The State presented testimony from Trooper Morin. The hearing continued on April 25, 2007. Defendant and her attorney were present and defendant testified. The judge denied the motion to suppress, finding that Trooper Morin had reasonable grounds to stop defendant's vehicle because he observed defendant's car weaving to the left and to the right.
Trial in the matter began on June 14, 2007. Defendant was represented by counsel. The parties stipulated to the admission of the testimony that Trooper Morin gave about the motor vehicle stop at the suppression hearing. The Trooper further testified that he approached defendant's vehicle, which was stopped at the side of the road. Trooper Morin detected the odor of alcohol emanating from defendant. He also observed a half-filled glass of what appeared to be an alcoholic beverage in the center console of the car.
Trooper Morin administered certain field sobriety tests, which defendant did not successfully complete. Defendant was arrested and taken to the police station. She was informed of her Miranda rights.*fn1 Defendant signed a statement acknowledging she had been advised of her rights. The Trooper also read the standard drinking and driving questionnaire. Defendant remained silent when asked to provide a breath sample. The officers treated this as a refusal.
Defendant also testified. Defendant stated that in the early morning hours of March 27, 2005, she was returning from a friend's house in Trenton, when she was stopped by the police. She said she was a diabetic and was "prone to hypoglycemia" which makes her nauseous and dizzy. Defendant stated that the speed limit in the area was thirty-five miles per hour and she was "doing" thirty miles per hour. She had consumed about twelve ounces of beer at her friend's house, and had about three or four ounces of alcohol in the car.
Defendant further testified that she pulled over when she saw the flashing lights. She did not recall making any errors in performing the "recite-the-alphabet" test. She thought the other field sobriety tests "went smoothly." Defendant did not believe the alcohol had affected her ability to drive. Defendant said she was annoyed when she was taken to the police station because she thought she had performed the tests well.
Defendant also said that, at the police station, she remained "totally silent" because she did not believe she should have been stopped. Defendant conceded she refused to provide the breath sample but said this was because she "felt . . . the whole thing was illegal[.]" The trial was adjourned so that defendant's attorney could have the opportunity to view a videotape made of the field sobriety tests.
The trial resumed on June 21, 2007. According to her attorney, defendant was ill and could not be present. The municipal court judge denied defendant's motion for an adjournment, noting "the tortured history of many adjournments of the matter over the course of two years[.]"
The judge said he had informed defendant he expected her to be in court and the matter would proceed in her absence if she was not present. Defendant's attorney then stated that, since defendant was not present, he did not believe the videotape would help her case. Defense counsel moved to dismiss the charges on speedy trial grounds. The judge denied the motion.
After hearing the arguments of counsel, the judge placed his decision on the record. The judge found Trooper Morin's testimony to be credible and defendant's testimony to be lacking in credibility. Among other things, the judge found defendant guilty of DWI, refusing to provide the breath sample, consuming an alcoholic beverage while operating a motor vehicle, and failing to drive within a single lane.
The municipal court judge sentenced defendant on July 19, 2007. Defendant was not present. The judge denied defense counsel's motion to postpone the sentencing. After imposing sentence, the judge entered a judgment of conviction dated July 19, 2007, memorializing his decision.
Defendant appealed to the Law Division. Defendant's attorney filed a brief in which he argued that: (1) the charges should be dismissed because the State did not prosecute the charges in a timely manner; (2) the motion to suppress should have been granted because the Trooper did not have probable cause to stop or arrest defendant; and (3) the State did not prove the charges beyond a reasonable doubt. The Law Division considered the matter on June 20, 2008, and entered an order on June 27, 2008, which found defendant guilty of DWI, refusal to provide a breath sample; consuming an alcoholic beverage while operating a motor vehicle, and failure to drive within a single lane.
The court sentenced defendant to a three-month suspension of her driving privileges; imposed drunk driving enforcement surcharges totaling $200; directed defendant to attend the Intoxicated Driver's Resource Center (IDRC) for two consecutive days; and imposed various fines, assessments and costs. The Law Division entered a judgment dated June 27, 2008, memorializing its decision.
On July 2, 2008, an officer of the West Windsor Police Department issued several motor vehicle summonses to defendant, including a summons charging her with DWI. The municipal court judge considered the matter on April 20, 2011, and stated that if defendant pled guilty to DWI, she would be sentenced as a second-time DWI offender. Defendant was represented by counsel. She pled guilty and provided a factual basis for her plea.
The judge then sentenced defendant to two days in jail, to be served through the IDRC program; ordered a two-year suspension of her driving privileges; required defendant to use an ignition interlock device on her car for one year; directed defendant to perform thirty days of community service; and imposed a $500 fine, a $100 surcharge and various assessments and costs. The judge stayed the sentence pending appeal.
Defendant filed a pro se appeal to the Law Division. In the notice of appeal, defendant stated that she was challenging the imposition of second-offender DWI penalties based on her claim that she did not have counsel in the proceedings that resulted in the first DWI conviction. The court determined that defendant was indigent and assigned counsel to represent her.
Defendant's attorney thereafter sought to withdraw as counsel. In a letter dated July 7, 2011, the court denied the request and directed counsel to provide the court with copies of the transcripts of the municipal court proceedings that resulted in the first DWI conviction. The court noted that defendant's "sole basis for [her] appeal is [the] allegation that [defendant's] first conviction for [DWI] was entered as a result of proceedings during which she was not represented by counsel." Along with a letter dated July 19, 2011, counsel provided the court with copies of the requested transcripts.
The court subsequently entered an order dated July 25, 2011, dismissing the appeal because the court believed that the only issue raised had been previously decided by the judgment entered by the Law Division on June 27, 2008, in defendant's appeal from her first DWI conviction. This appeal followed.
Defendant argues that she lost her driving privileges due to judicial misconduct and error by the municipal court. She contends that she was found guilty "in absentia" by the Ewing Township Municipal Court. She claims she was not notified of the June 21, 2007 and July 19, 2007 proceedings in Ewing Township. Defendant asserts that the "erroneous" convictions have caused her "considerable" hardship and have deprived her of her ability to find gainful employment.
Defendant additionally argues that the State deprived her of her Sixth Amendment rights and failed to prove that she was guilty of the charged offenses. She asserts that the State relied on falsehoods, unethical and illegal tactics, and coercion to obtain the convictions. We are convinced that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following.
Here, the Law Division dismissed defendant's appeal from her second DWI conviction because it appeared to the court that the issue defendant raised had been resolved in the appeal from her first DWI conviction. As the Law Division pointed out in its order of July 25, 2011, the first matter had been resolved by the Law Division's June 27, 2008 judgment, and defendant never appealed from that judgment.
We note, however, that defendant's notice of appeal from the second DWI conviction in the municipal court challenged the imposition of second-offender penalties because defendant's first DWI conviction allegedly resulted from a proceeding in which she was not represented by counsel. See State v. Laurick, 120 N.J. 1, 16 (1990) (holding that prior guilty plea to a DWI charge without the advice of counsel may establish repeat-offender status for purposes of imposing enhanced penalties but the uncounseled DWI conviction may not result in an increased period of incarceration). The Law Division judge erroneously determined that this issue had been resolved by the Law Division's judgment in defendant's appeal from her first DWI conviction.
Nevertheless, it is clear from the record that, despite her claim to the contrary, defendant was represented by an attorney in the municipal court proceedings that resulted in the first DWI conviction, as well as in the appeal to the Law Division from that conviction. Thus, defendant's challenge to the repeat-offender penalties imposed as a result of her second DWI conviction was entirely without merit.
Accordingly, we modify the court's July 25, 2011 order and affirm defendant's second DWI conviction and the sentence imposed as a result of that conviction.
Affirmed, as modified.