NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...