June 3, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ELIZABETH JACOBSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2012-027.
John J. Bruno, Jr. argued the cause for appellant (Bruno & Ferraro, attorneys; Salvatore R. Vargo, on the brief).
Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pollock, of counsel and on the brief).
Before Judges Yannotti and Harris.
Defendant Elizabeth Jacobson appeals from an order entered by the Law Division on August 17, 2012, denying her petition for post-conviction relief (PCR). We affirm.
In February 1991, defendant pled guilty in the municipal court in Fairfield, New Jersey to driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50. In October 1993, defendant was found guilty in Spring Lake Heights of refusing to take a breathalyzer test, contrary to N.J.S.A. 39:4-50.2. On February 13, 2003, defendant was arrested and charged in Cedar Grove with DWI, and on March 19, 2003, defendant pled guilty to DWI.
On January 22, 2012, defendant was arrested and charged in Verona with DWI and refusal to take a breath test. Thereafter, defendant filed a PCR petition in the Cedar Grove municipal court, seeking to vacate the guilty plea entered in that court on March 19, 2003, for a previous DWI. The municipal court judge considered the matter on April 25, 2012, and denied PCR. Defendant later filed a notice of appeal to the Law Division from the order denying PCR.
On May 9, 2012, defendant pled guilty to DWI in the Verona municipal court. The judge sentenced defendant as a third-time DWI offender and imposed, among other things, 180 days of incarceration. The judge stayed the custodial portion of the sentence pending disposition of defendant's appeal to the Law Division from the denial of her PCR petition.
The Law Division judge considered that appeal on August 17, 2012, and placed his decision on the record. The judge determined that the petition was time-barred. The judge also found that defendant had not established grounds for withdrawal of the plea that she entered in Cedar Grove on March 19, 2003. The Law Division judge pointed out that defendant was charged with DWI in Cedar Grove on February 13, 2003, after she crashed her car into a building located in a designated school zone. At the time of her arrest, defendant was found to have a blood alcohol concentration of .20 percent.
Defendant subsequently entered into a negotiated plea agreement which provided, among other things, for a two-year license suspension, instead of the one-year maximum suspension. The judge found that defendant's plea and acceptance of the two-year suspension was in consideration for the State's agreement not to charge defendant with DWI in a school zone, a charge that could have resulted in imposition of a custodial term.
The judge noted that the municipal prosecutor who handled the matter in 2003, recalled the case and said he was prepared to seek the maximum penalty for a school zone DWI offense if defendant did not agree to the two-year suspension. The judge noted that, while defendant claimed she had not been properly counseled concerning the plea, she did not submit an affidavit or certification from her attorney substantiating her claim.
The judge memorialized his decision denying PCR in an order dated August 17, 2012. This appeal followed.
Defendant raises the following arguments for our consideration: (1) the five-year limitations period for filing a PCR petition should have been waived because the March 19, 2003 guilty plea was the result of a manifestly unjust plea bargain; (2) the five-year time bar should be relaxed because defendant established a prima facie case for the requested relief; and (3) the judge erred by denying the motion for withdrawal of the previously-entered guilty plea.
We are convinced that defendant's arguments are entirely without merit. We accordingly affirm the denial of defendant's petition for PCR substantially for the reasons stated by the Law Division judge in the decision placed on the record on August 17, 2012. We add the following comments.
Defendant argues that the judge erred by refusing to relax the five-year time bar for PCR petitions. We do not agree. Rule 7:10-2 applies to PCR petitions arising from convictions obtained in municipal court. The rule provides that a petition to correct an illegal sentence may be filed at any time. R. 7:10-2(b)(1). However, a PCR petition based on any other ground must be filed within five years after entry of the judgment of conviction. R. 7:10-2(b)(2). The time bar may be relaxed only if the defendant shows that the delay in filing is due to "excusable neglect." Ibid.
Here, defendant's PCR petition was filed nine years after the entry of the judgment of conviction at issue, and she has not shown that her failure to file a timely petition was due to "excusable neglect." Thus, as the Law Division judge correctly determined, defendant had not established a basis to relax the time bar.
In support of her contention that the petition should not be subject to the five-year limitations period in Rule 7:10-2(b)(2), defendant relies upon State v. Bringhurst, 401 N.J.Super. 421 (App. Div. 2008). In that case, we noted that a penalty for a second DWI conviction cannot be imposed upon a defendant whose first DWI conviction was the result of a plea entered without the advice of counsel. Id. at 427 (citing State v. Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed.2d 413 (1990)).
We noted that relief from a prior, uncounseled DWI conviction would not ordinarily be sought until a second or subsequent conviction occurs. Id. at 433. We stated that, under the circumstances, the interests of justice would not be served by automatically applying the five-year time bar for PCR petitions. Ibid.
We held, however, that the trial court had correctly determined that the defendant had not established a basis to relax the time bar. Id. at 434-37. We noted that the defendant had not shown he had a defense to the DWI charge, or that the outcome would have been different if he had been represented by counsel when he entered the plea. Id. at 435.
Defendant's reliance upon Bringhurst is misplaced. As we have explained, Bringhurst dealt with the application of the limitations period to PCR petitions when a defendant seeks to avoid enhanced DWI penalties resulting from a prior, uncounseled guilty plea. Defendant's 2003 DWI conviction was the result of a negotiated plea, which defendant agreed to with the advice of counsel.
Even if Bringhurst applied in this context, there is no basis for relaxing the time bar. Defendant has not established a defense to the DWI charge she faced in 2003. Furthermore, defendant has not established that she was not properly counseled concerning the plea. In addition, defendant has not shown that the plea agreement was manifestly unjust. By agreeing to the two-year license suspension, defendant was able to avoid being charged with DWI in a school zone and a possible custodial sentence.
Defendant additionally argues that she met the test for withdrawing her plea. Again, we disagree. In order to withdraw a plea, a defendant must demonstrate that relief is required to correct a "manifest injustice." R. 7:6-2(b). In addressing this issue, the court must consider (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for seeking to withdraw the plea; (3) the existence of a plea bargain; and (4) whether withdrawal would unfairly prejudice the State or unfairly advantage the accused. State v. Slater, 198 N.J. 145, 157-58 (2009).
Here, defendant has not asserted a colorable claim of innocence. She also has not provided a sound reason for withdrawing her plea. The plea was not manifestly unfair as she claims, and there is no indication defendant was not properly counseled by her attorney. In addition, the plea was the result of a plea bargain, and the State would be substantially prejudiced if it had to prosecute the charge after the passage of such a long period of time.