Opinion
DOCKET NO. A-0527-12T3
08-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER RUSCHMANN, Defendant-Appellant.
Richard M. De Luca, attorney for appellant. Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Annemarie Mueller, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Court Appeal No. 15-10. Richard M. De Luca, attorney for appellant. Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Annemarie Mueller, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Peter Ruschmann appeals from his sixth conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, following a trial in the Law Division. On appeal, defendant contends he should have been sentenced as a second offender, rather than a third offender. We reject this contention and affirm.
I.
On August 28, 2009, defendant was stopped by the police in the Borough of Peapack and Gladstone after he stopped at an intersection and subsequently accelerated at an excessive speed. Defendant agreed to submit to the Alcotest, which resulted in a blood alcohol content (BAC) reading of 0.20%. The police then charged defendant with DWI.
On November 29, 2010, defendant pled guilty in municipal court to the DWI charge. According to defendant's driver's abstract, this was his sixth conviction for DWI, the first one occurring on June 6, 1971. Subsequent convictions occurred on the following dates: October 4, 1983, November 6, 1988, September 24, 1994 and April 23, 1998. The court sentenced defendant to 180 days in the Somerset County Jail, assessed mandatory fines and penalties, and revoked defendant's driving privileges for ten years, all consistent with the penalties for a third-time or subsequent offender under N.J.S.A. 39:4-50. The court stayed the incarceration portion of defendant's sentence pending appeal.
The record indicates defendant was sentenced as a first offender for his 1994 conviction and as a second offender for his 1998 conviction.
Defendant appealed his conviction to the Law Division, challenging the municipal court's decision to sentence him as a third or subsequent offender. Upon de novo review, Judge Paul Armstrong rejected defendant's argument that his prior convictions were constitutionally defective and thus could not serve as a basis to enhance his sentence. He also found that defendant was not eligible for the "step-down" provision provided in N.J.S.A. 39:4-50(a)(3). The judge ordered the same sentence as defendant received in municipal court, including 180 days of incarceration. This appeal followed.
The Law Division granted defendant a stay of sentence pending this appeal.
II.
On an appeal such as this, 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), because the Law Division's determination is de novo on the record from the municipal court. R. 3:23-8(a)(2). Our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Although we are ordinarily limited to determining whether the Law Division's de novo factual findings "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 such deference here because the Law Division decided the disputed sentencing issue on the papers without taking testimony.
The penal consequences that flow from a DWI conviction escalate with each subsequent DWI conviction. N.J.S.A. 39:4-50. A first-time offender may "in the discretion of the court, [be sentenced to] a term of imprisonment of not more than 30 days . . . ." N.J.S.A. 39:4-50(a)(1)(i) and (ii). A second offender is exposed to a mandatory jail term of "not less than 48 consecutive hours . . . nor more than 90 days . . . ." N.J.S.A. 39:4-50(a)(2). For a third or subsequent offense, the statute requires a sentence of "not less than 180 days . . . ." N.J.S.A. 39:4-50(a)(3). Pursuant to section (a)(3) of the statute, a defendant whose first and second or second and third convictions are separated by at least ten years is afforded a downward variance at sentencing. N.J.S.A. 39:4-50(a)(3) specifically provides, in pertinent part:
A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him [or her] in order to render him [or her] liable to the punishment imposed by this section on a second or subsequent offen[se], but if the second offense occurs more than [ten] years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than [ten] years after the second offense, the court shall
treat the third conviction as a second offense for sentencing purposes.
A.
According to the written opinion of Judge Armstrong, defendant claims his 1994 and 1998 convictions are constitutionally defective, claiming no factual basis was elicited in either case, relying upon State v. Barboza, 115 N.J. 415, 420-21 (1989) (if an appellate court subsequently determines that a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re-plead or proceed to trial). He also contends he did not waive his right to a trial in either case, and that he was not represented by counsel for the 1994 conviction. Based upon these claims, defendant asserts each of his convictions from 1994 and 1998 should be deemed a nullity for sentencing purposes, which would result in defendant receiving a sentence as a second offender.
It is unclear whether defendant submitted a certification to the Law Division supporting his claims. The record on appeal contains no certification from defendant.
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In support of this argument, defendant principally relies upon State v. Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), which held that the period of incarceration for a DWI conviction cannot be enhanced based on a prior uncounseled DWI conviction that occurred without the waiver of counsel. See also State v. Hrycak, 184 N.J. 351, 354 (2005) (reaffirming the holding in Laurick, supra, 120 N.J. 1).
Nevertheless, it is the defendant who bears the burden of demonstrating entitlement to the relief afforded by Laurick. Id. at 363. Relying on Hrycak and Laurick, we provided guidance for presenting a meritorious claim for relief:
[T]o establish entitlement to the step-down sentence for a second or subsequent DWI:
1. Indigent defendants must establish that they were not given notice of their right to counsel and advised that counsel would be provided for them if they could not afford one.
2. Non-indigent defendants must establish that they were not advised of their right to counsel and that they were unaware of such right at the time they entered the uncounseled pleas.
3. Defendants who establish that they were not adequately noticed of their right to counsel must then demonstrate that if they had been represented by counsel, they had a defense to the DWI charge and the outcome would, in all likelihood, have been different. Police reports, witness statements, insurance investigations and the like may be used to submit proofs that the outcome would have been different if the defendant had the benefit of counsel before pleading guilty.
[State v. Schadewald, 400 N.J. Super. 350, 354-55 (App. Div. 2007).]
Despite defendant's claims regarding the deficiencies relating to his convictions, he has not filed a petition for post-conviction relief (PCR), pursuant to Rule 7:10-2(g), seeking Laurick relief to bar their use to enhance the custodial term with respect to his current DWI conviction. Defendant argues in his brief that we should permit him to collaterally attack his prior convictions in this proceeding, "[d]ue to the absence of records pertaining to the prior conviction[s] and the fact that a motion for [PCR] would be deemed untimely[.]" However, defendant's argument lacks merit; the Court in Laurick specifically instructed,
[p]ost-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. Appeals from the disposition in that court shall be combined with any appeal from proceedings involving the repeat offense.Moreover, we previously addressed the time bar issue and concluded the interests of justice are not served, in cases seeking Laurick relief, to automatically apply the five-year time bar contained in Rule 3:22-12(a):
[Laurick, supra, 120 N.J. at 17.]
Since a second or subsequent conviction may occur at any time in the future, it would be illogical to apply the Rule's five-year time limit mechanistically to deny all such applications. Indeed, a defendant could never obtain the benefit of Laurick's holding if his second conviction occurred more than five years after the first uncounseled one because his petition would automatically be time-barred. . . . We can discern no reason why the Supreme Court would have explicitly recognized the Laurick-styled PCR petition on the one hand, and at the same time deny its relief where "the extent and cause of the delay" was not occasioned by the defendant.Because defendant has not petitioned for PCR to challenge any of his prior DWI convictions, we conclude the Law Division correctly refused to afford defendant Laurick relief in this proceeding.
We recognize that the passage of time creates potential prejudice to the State, particularly since sound recordings of municipal court proceedings are retained for only five years. R. 7:8-8(a). However, the Court apparently did not conclude that the failure to produce a transcript of the uncounseled proceedings should be a reason to automatically bar a Laurick PCR petition. Rule 7:10-2(g)(3) permits the "petitioner [to] account for any unavailable records by way of written documentation from the municipal court administrator or the custodian of records . . . ."
In sum, because of the unique nature of a Laurick PCR petition, a defendant's burden to justify relaxation of Rule 3:22-12(a)'s five-year time limit, at least with respect to the reason for the delay, should be significantly less 'than proof of the "exceptional circumstances" normally required.
[State v. Bringhurst, 401 N.J. Super. 421, 433-434 (App. Div. 2008) (alteration in original) (citations omitted).]
B.
Even if his prior convictions stand, defendant claims he should still be sentenced as a second offender because he was sentenced as a second offender for his 1998 conviction, receiving a two-year license revocation, and N.J.S.A. 39:4-50(a)(3) provides that "if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes." Because the court in 1998 treated that conviction, for sentencing purposes, as a second offense, and since more than ten years elapsed before defendant's next conviction, defendant argues he should receive the benefit of the ten-year step-down provision. We disagree.
We have previously determined that N.J.S.A. 39:4-50(a)(3) "accord[ed] sentencing leniency to a driver who is a second and third repeat DWI offender where there is a hiatus of ten or more years in between respectively, the first and second, and second and third infractions[,]" but that the statute is silent as to subsequent offenders. State v. Lucci, 310 N.J. Super. 58. 61-62 (App. Div.), certif. denied, 156 N.J. 386 (1998). Since subsection (3) specifically refers to both third offenders and subsequent offenders, we found the deletion of subsequent offenders from the leniency provision to have been intentional by the Legislature. Ibid.
We referred to State v. Jenkins, 173 N.J. Super. 25, 28 (Law Div. 1980) where the prior DWI enhanced penalty statute provided that if a third or subsequent offense occurs ten or more years after the first conviction, the court shall treat the conviction as a second offense. We observed the anomaly of a sixth offender being sentenced as a second offender, which would be required under a rule of strict statutory construction. Id. at 28-29.
The present statute applies to third offenders only and makes no provision for subsequent offenders to be treated less severely, even after the lapse of ten years. N.J.S.A. 39:4-50(a)(3). In Lucci, we determined that a contrary interpretation would be "inimical to the statute because a third offender is sentenced to an automatic [ten]-year license revocation, therefore, a fourth or subsequent offense would necessarily come more than [ten] years after a third offense. The result would be that all fourth time offenders . . . would automatically be treated as second time offenders." Lucci, supra, 310 N.J. Super. at 62. We concluded that such a result would be inconsistent with the public policy of this State to rid the highways of drunk drivers and would create an absurdity.
In his written decision dated March 19, 2012, Judge Armstrong cogently and comprehensively set forth reasons for sentencing defendant as a third-time offender. We discern no basis to disturb his decision. We consider defendant's remaining arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION