Opinion
DOCKET NO. A-2000-13T4
07-08-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALI KHALID, Defendant-Appellant.
Jennifer E. Biderman, attorney for appellant. James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-04-1100. Jennifer E. Biderman, attorney for appellant. James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant entered guilty pleas to driving while intoxicated (DWI), N.J.S.A. 39:4-50; leaving the scene of an accident, N.J.S.A. 39:4-129; and refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; pursuant to a plea agreement in which an indictment charging him with operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b) and other motor vehicle charges were dismissed. This was defendant's third DWI conviction. He appeals from the sentence imposed on the DWI conviction, arguing he should have been sentenced as a second offender pursuant to State v. Laurick, 120 N.J. 1 (1990), cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), because he entered a guilty plea to a DWI charge in 1999, unrepresented by counsel.
On March 18, 1999, defendant was arrested and pled guilty to driving while intoxicated in Absecon Municipal Court in Egg Harbor Township. There are no transcripts of defendant's 1999 guilty plea. The only record of the 1999 plea is a ticket that had boxes checked on the back stating a Rodriguez notice was given and counsel was waived. The State attempted to retrieve this ticket from the Atlantic County Superior Court and prosecutor's office, but was told the ticket was not in their files.
In Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) the Court required that "no indigent defendant . . . be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost."
Defendant's second DWI conviction followed his arrest on December 22, 2001. He was represented by appointed counsel in this matter.
Defendant was arrested in the instant matter on September 25, 2010, and has been represented by counsel. The trial judge sentenced defendant on the DWI charge as a third offender. The court suspended defendant's license for ten years, imposed a fine and court costs, gave a sentence of 180 days in the county jail which could be served in an alternative fashion, required forty-eight hours in the Intoxicated Driver Resource Center and an interlock device on defendant's car for three years. The trial judge suspended the entire sentence except the suspension of defendant's license pending an appeal.
Because defendant does not challenge the sentences imposed on the other charges, it is unnecessary to recite those sentences. --------
In the years since his 1999 DWI conviction, defendant has never filed a petition for post-conviction relief (PCR) in the court where that conviction was entered.
Defendant presents the following arguments in his appeal:
POINT I
PURSUANT TO STATE v. LAURICK, KHALID SHOULD HAVE BEEN SENTENCED AS A SECOND OFFENDER.
1. As a Threshold Matter, It is Permissible to Examine the 1999 Matter Under Laurick in Determining Sentence In this Matter Notwithstanding the Intervening 2001 Matter.
2. Laurick and its Progeny Establish the Factors for "Step-Downs" In DWI Sentencing and the Step-Down Should Have Been Applied to Khalid's Sentencing.
POINT II
IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR FURTHER FACT FINDING WITH RESPECT TO THE 1999 MATTER CONSISTENT WITH LAURICK.
We have examined these arguments in light of the record and applicable legal principles and conclude they lack merit.
In Laurick, the Supreme Court considered "whether . . . a prior guilty plea to a charge of driving while intoxicated (DWI) . . . without the advice of counsel prevents the imposition of enhanced penalties on a second DWI conviction." Laurick, supra, 120 N.J. at 4. The Court concluded
[A]n uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty. In the context of repeat DWI offenses, this means that the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the actual period of incarceration imposed may not exceed that for any counseled DWI convictions.
[120 N.J. at 16.]
The Court provided the following procedure for challenging an enhanced custodial sentence based upon an uncounseled prior conviction:
Post-conviction relief from the effect of prior convictions should normally be sought in the court of original jurisdiction, which will be in the best position to evaluate whether there has been any denial of fundamental justice.
[Id. at 17.]
Rule 7:10-2, the municipal court PCR rule, was amended, effective September 1, 2007, to set forth the procedure for making a Laurick application in municipal court. See Pressler and Verniero, Current N.J. Court Rules, comment 2 on R. 7:10-2 (2015). The rule provides, "[a] post-conviction petition to obtain relief from an enhanced custodial term based on a prior conviction shall be brought in the court where the prior conviction was entered." R. 7:10-2(g)(1); see also State v. Bringhurst, 401 N.J. Super. 421, 430-31 (App. Div. 2008); State v. Schaewald, 400 N.J. Super. 350, 356-57 (App. Div. 2007). The rule also requires the petitioner to "account for any unavailable records by way of written documentation from the municipal court administrator or the custodian of records." R. 7:10-2(g)(3).
The requirement that a challenge a prior conviction as uncounseled proceed in the municipal court in which the original conviction was entered reflects an appreciation of the practical obstacles to reviewing such a challenge. As the Court stated,
We realize the difficulty in reviewing such dispositions more than three years after the fact when transcripts or tapes of the proceedings are no longer available. Still, it will be much easier in the original court to arrange for a thorough and complete review of the dockets of the proceedings. Sometimes notation of an attorney's entry of an appearance may be in the case file. In addition, any available police records may confirm or dispel the absence of counsel in the proceedings, and in the case of non-indigence, the evidence bearing on guilt or innocence. That requirement of proceeding in the court of original jurisdiction should be equally applicable when the only issue is whether the uncounseled plea precluded imposition of an additional loss of liberty. Resolution of that issue will ordinarily be simpler and more straightforward, with the only consequence that the period of incarceration imposed may not exceed that available for the counseled conviction.
[Laurick, supra, 120 N.J. at 12.]
The Court also directed, "In the future, the hard-copy judgment of conviction in DWI cases should contain a notation by the municipal court that the Rodriguez notice has been given and counsel waived. That notation will have presumptive correctness." Ibid.
Defendant never properly challenged his 1999 conviction by filing a PCR petition in the Absecon Municipal Court as required by Laurick and Rule 7:10-2(g)(1). At this point, such a challenge would be subject to the five-year time-bar established by Rule 7:10-2(b)(2). This failure provides an adequate basis for rejecting his arguments.
However, defendant's arguments also fail on the merits. In addition to the requirement to seek relief in the court of original jurisdiction, a defendant bears the significant burden of "demonstrat[ing] a fundamental injustice" occurred by showing that he was "prejudiced" in that he "(a) was unaware of such rights, and (b) if indigent, would have derived benefit from the notice by seeking the assistance of counsel. A non-indigent defendant would have to show in addition that the lack of notice otherwise affected the outcome." Laurick, supra, 120 N.J. at 16-17.
In State v. Hrycak, 184 N.J. 351 (2005), the Court identified the burden shouldered by a defendant who seeks to avoid an enhanced period of incarceration for a subsequent DWI offense:
A defendant is faced with a three-step undertaking in proving that a prior uncounseled DWI conviction should not serve to enhance the jail component of a sentence imposed on a subsequent DWI conviction. As a threshold matter, the defendant has the burden of proving in a second or subsequent DWI proceeding that he or she did not receive notice of the right to counsel in the prior case. He or she must then meet the two-tiered Laurick burden.
[Id. at 363 (citing Laurick, supra, 120 N.J. at 11).]
Defendant has clearly failed to demonstrate a "fundamental injustice." See Laurick, supra, 120 N.J. at 16-17. He has not presented proof that he did not receive notice of the right to counsel. See Hrycak, supra, 184 N.J. at 363. To the contrary, defendant's counsel and the trial judge acknowledged that, according to the 1999 ticket, defendant was given his Rodriguez warnings and waived his right to counsel. Although this notation did not appear on a judgment of conviction, this acknowledgment merits considerable weight, if not a presumption of correctness. See Laurick, supra, 120 N.J. at 12.
Under Laurick, defendant was then required to show he was unaware of such rights. Id. at 16-17. If indigent, he was required to show he "would have derived benefit from the notice by seeking the assistance of counsel." Id. at 17. And, if not indigent, he "would have to show in addition that the lack of notice otherwise affected the outcome." Ibid. He failed to satisfy any of these requirements.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION