NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 20, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Court Appeal No. 29-12.
Mark W. Catanzaro argued the cause for appellant.
Bethany L. Deal, Assistant Prosecutor argued the cause for appellant (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Deal, of counsel and on the brief).
Before Judges Parrillo and Maven.
Defendant Martin Walsh appeals the September 6, 2012 Law Division order which, after de novo review, affirmed the municipal court's prior denial of defendant's petition for post-conviction relief (PCR) and motion to withdraw his guilty plea. After careful consideration of the record in light of appropriate legal standards, we affirm.
The following are salient undisputed facts. Defendant pled guilty and was convicted in Riverside Township Municipal Court of driving while intoxicated on December 28, 2010. As this was defendant's fourth offense,  he was sentenced to mandatory fines and penalties, including 180 days in the county jail.
Defendant did not file a direct appeal, but rather filed motions to withdraw his guilty plea and for PCR on December 19, 2011, in the Riverside Township Municipal Court. He filed an amended motion on February 1, 2012.
Defendant asserted that he would not have pleaded guilty but for the ineffective assistance of counsel. In particular, he claimed that his counsel lacked sufficient knowledge of his factual circumstances; failed to seek full discovery or discuss the information with defendant; and failed to file a "Motion to Dismiss for Lack of Full Discovery" pertaining to the blood test or present a forensic chemist in court to challenge the test procedures. Finally, defendant claimed that counsel failed to proffer that his medical condition, diabetes, constituted a viable defense.
The court heard oral argument in the matter on February 7, 2012, but reserved decision until May 15, 2012. On that date, counsel raised an additional argument that defendant should have been sentenced as if it were his second offense instead of his fourth offense since there was more than a ten-year gap between his third and fourth convictions. The judge rejected defendant's contentions on that issue noting that
[t]here [is] no provision in the statute for a fourth offender. There's no step-down from a fourth to a third or from a fourth to any other status. In fact, it's very clear from the case law that, although there's a step-down for sentencing purposes, it does not vacate nor eradicate the plea.
The court also found that defendant had not been deprived of effective assistance of counsel. After noting the two requisite elements of the Strickland test, the court based its decision on defendant's inability to overcome the second prong. The court determined ...