July 17, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MARTIN WALSH, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 that the evidence against defendant was overwhelming. The court stated:
There were observations of the defendant which were consistent with someone who was under the influence of alcohol. The argument that [counsel] presents is that he was suffering from some type of a medical problem. That would have explained some of the symptoms or some of the evidence. In this case, however, I think that . . . from what I gather from the police reports, the breath test result, the evidence against [defendant] was really overwhelming.
And, even if the attorney did a better job . . . I don't believe that the outcome would have been different.
[S]o I'm going to deny the [PCR] motion because without deciding whether the attorney's performance was deficient, I'm not satisfied that the outcome would have been different. . . . [I]f the [c]ourt were to have heard all the evidence . . . the [c]ourt could have easily concluded that the defendant was under the influence of alcohol.
Defendant appealed to the Law Division where the Honorable Thomas P. Kelly, J.S.C., affirmed the municipal judge's determination. For the de novo appeal, defendant submitted a recapitulation in which he argued that counsel was deficient by failing to obtain discovery and provide defendant with all discovery her office had received; counsel had not developed all of his defenses regarding his medical condition and challenges to the blood testing procedures; counsel failed to prepare certain pretrial motions to dismiss for lack of full discovery; and failed to insist that the status conference be rescheduled to a different date. At the hearing, counsel argued these same points.
On the motion to withdraw the guilty plea, the court found that defendant had not satisfied the criteria set forth in State v. Slater, 198 N.J. 145 (2009). Specifically, the judge rejected defendant's claim that his diabetic medical condition was a viable defense, as that claim has been rejected in State v. Cryan, 363 N.J.Super. 442 (App. Div. 2003). As such, defendant could not satisfy the first and second Slater factors to establish that he was entitled to withdraw the guilty plea.
The judge also determined that defendant had not met his burden in establishing that he was entitled to PCR. First, he found that defendant failed to satisfy the first prong of Strickland in showing counsel was ineffective. He stated:
Bald assertions without companion establishment of facts to support contentions are not going to meet the burden.
What defendant claims is that he did not get and see discovery. That he did not see blood test results.
However, it seemed to me that everybody knew what the blood test results were. They knew what the case was about. And there . . . is an absence of any real factual support that the defendant must bear in these type of applications.
. . . .
But I don't think that there was a defense available here based on the diabetic basis. And I read the case law in New Jersey that's been the law for a considerable number of years.
I, therefore, conclude there was no basis to conclude that he has not met that first burden.
[(Internal quotation marks omitted).]
As to the second prong, the judge determined that defendant failed to establish that counsel's performance was deficient and prejudiced his defense. The judge stated that "blood tests have always been recognized as pretty good evidence of the condition of one's body, " and that if defendant tried the case, the blood alcohol content (BAC) test results of .22 would have been admitted and, presumably, the outcome would have been no different. As such, the judge denied defendant's motions, found defendant guilty anew, and imposed the same sentence as below.
On appeal, defendant raises the following issues:
I. [DEFENDANT] MUST BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AND PROCEED WITH A TRIAL ON THE MERITS IN ORDER TO CORRECT A MANIFEST INJUSTICE.
II. THE LOWER COURT'S DENIAL OF [DEFENDANT'S] PETITION FOR [PCR] MUST BE OVERTURNED BECAUSE, BUT FOR HIS ATTORNEY'S DEFICIENCIES, HE WOULD HAVE DEMANDED A TRIAL.
III.THE LOWER COURT'S DENIAL OF [DEFENDANT'S] PETITION FOR [PCR] WAS BASED ON A MISAPPLICATION OF LAW.
IV. ASSUMING, ARGUENDO, THAT [DEFENDANT] IS NOT PERMITTED TO WITHDRAW HIS PLEA AND HIS CONVICTION IS UPHELD, [DEFENDANT] SHOULD BE RESENTENCED AS A SECOND OFFENDER[, ] [N.J.S.A.] 39:4-50.
We have considered the record and affirm for the reasons set forth in Judge Kelly's well-reasoned oral opinion. We add only the following.
Defendant alleges the Law Division erred in denying his PCR petition based on ineffective assistance of counsel. He presents a number of additional legal arguments in support of this position for the first time on appeal. On appeal, defendant now adds that his prior counsel lied to him by informing him that his case had to be brought to a conclusion on that date. Further, he claims that counsel should have demanded a trial, filed a motion to suppress the BAC test results and filed a motion to bar the testimony of the individual who conducted the blood draw. Defendant also contends that he was not offered the opportunity to retain an expert witness to review and evaluate his discovery.
It is clear from our review of the records of the municipal and Law Division proceedings that these additional assertions had not been addressed in the lower tribunals. We, therefore, decline to address these contentions as defendant did not raise them below and no exception applies. See Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (noting that "'[i]t is a well-settled principle that our Appellate Courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance") (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). In State v. Robinson, 200 N.J. 1, 20 (2009), our Supreme Court instructed that
our appellate courts retain the inherent authority to "notice plain error not brought to the attention of the trial court[, ]" provided it is "in the interests of justice" to do so. [Rule] 2:10-2. Yet, [this] exception [is] not without practical boundaries; [it is] not intended to supplant the obvious need to create a complete record and to preserve issues for appeal. To permit otherwise would allow the "clearly capable of producing an unjust result"/"interests of justice" standard of Rule 2:10-2 to render as mere surplusage the overarching requirement that matters be explored first and fully before a trial court.
Even if we consider these contentions, they, as well as defendant's contentions about the Law Division judge's alleged errors, are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). However, we make the following comments.
Our scope of review is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J.Super. 244, 251 (App. Div. 2001). Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). When we conclude the findings and conclusions of the Law Division meet that criterion, our "task is complete, " and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid.
We are satisfied that the Law Division judge carefully considered the arguments as presented. We discern no reason to disturb the result.