Opinion
DOCKET NO. A-1608-15T2
04-29-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DANA PETRIELLO, Defendant-Respondent.
Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for appellant (Elizabeth R. Rebein, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Bruno & Ferraro, attorneys for respondent (John F. Latoracca, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 5-6-15. Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for appellant (Elizabeth R. Rebein, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Bruno & Ferraro, attorneys for respondent (John F. Latoracca, on the brief). PER CURIAM
The State appeals the Law Division's decision granting defendant, Dana Petriello's, petition for post-conviction relief (PCR) and the denial of a subsequent motion for reconsideration of that decision. Because we find defendant did not show excusable neglect for her failure to timely file her petition, we reverse the Law Division's decision and reinstate the convictions.
In April 2009, appearing with counsel, defendant pled guilty in municipal court to driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50, and refusal to submit to a breath test, in violation of N.J.S.A. 39:4-50.2. At the plea hearing, defendant was advised by the municipal court judge, both orally and in writing, of the enhanced penalties that would be imposed if convicted of a second or subsequent DWI.
A PCR petition was filed by defendant on April 23, 2015; she asserted that her prior guilty pleas should be vacated as being unsupported by a sufficient factual basis. After the municipal court judge denied the petition, ruling that it was untimely filed and there was a sufficient factual basis for the plea, defendant appealed.
Rule 7:10-2(b)(2) states that a PCR petition "shall not be accepted for filing more than five years after entry of the judgment of conviction . . . unless it alleges facts showing that the delay in filing was due to defendant's excusable neglect." Defendant's petition was filed more than six years after her guilty plea.
During oral argument on the application before the Law Division, defendant informed the judge that she had been charged in February 2015 with driving with a suspended license in violation of N.J.S.A. 39:3-40(a), and the prospect of the enhanced penalty had prompted her PCR filing. The judge found circumstances existed to relax the time bar of Rule 7:10-2(b)(2) as the municipal court judge had not "conduct[ed] a thorough and searching inquiry into the factual basis of the charge." She, therefore, vacated defendant's guilty pleas. A motion for reconsideration was denied.
The State raises the following issues on appeal:
POINT I: THE LAW DIVISION IMPROPERLY RELAXED THE FIVE-YEAR TIME BAR SET FORTH IN RULE 7:10-2(b)(2) WITHOUT FINDING THAT DEFENDANT DEMONSTRATED EXCUSABLE NEGLECT.
POINT II: BECAUSE DEFENDANT'S 2009 GUILTY PLEA WAS KNOWING AND VOLUNTARY AND WAS SUPPORTED BY AN ADEQUATE FACTUAL BASIS, THE TRIAL COURT ERRED IN VACATING HER GUILTY PLEA.
Our scope of review is limited to whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We owe no deference to the trial judge's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). As we find the judge erred in her relaxation of the timeframe of the PCR rule, we need not address Point II.
Rule 7:10-2(b)(2) requires a PCR petition to be filed no more than five years after entry of the judgment of conviction. The rule provides an exception to the time bar if the petition alleges "facts showing that the delay in filing was due to defendant's excusable neglect." R. 7:10-2(b)(2). In addressing Rule 3:22-12, applicable to Superior Court matters, the Supreme Court has stated that the time bar should only be relaxed "under exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). Defendant does not raise excusable neglect, provide exceptional circumstances nor give any explanation for her delay as a basis for relief from the rule's five-year bar.
Rule 3:22-12 governs the filing of a PCR petition in Superior Court, requiring the submission of a petition within five years after the entry of the judgment of conviction "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." --------
The Law Division judge did not address whether defendant had shown excusable neglect. Although conceding the relief defendant sought from the time bar should only be provided in "truly exceptionally rare circumstances," she found those circumstances existed due to the "sparse nature of the factual basis provided by [d]efendant for the plea." As a result, she found an injustice existed requiring a relaxation of the time bar under the discretion accorded to her by Rule 1:1-2.
We find the judge erred in considering the substantive merits of defendant's application prior to a determination that exceptional circumstances existed to hurdle the time bar. There were no compelling circumstances presented to the judge for her consideration. For the first time, defense counsel revealed at oral argument on the application in the Superior Court that defendant faced an enhanced penalty on new charges. That does not constitute excusable neglect or exceptional circumstances. Furthermore, those consequences could not have come as a surprise to defendant; she was advised of the consequences of a subsequent offense by the municipal court judge at the time of her plea in 2009.
We conclude that the judge erred in disregarding defendant's burden of showing "excusable neglect." See State v. Mitchell, 126 N.J. 565, 576 (1992) (concluding defendant failed to "present the type of exceptional circumstances" that would justify the relaxation of the PCR rules).
We reverse the Law Division ruling and reinstate defendant's convictions.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION