Opinion
DOCKET NO. A-1113-11T1
07-02-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARY STICKEL, Defendant-Appellant.
Michael S. Harwin argued the cause for appellant. David A. Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Malfitano, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Graves.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-12-11.
Michael S. Harwin argued the cause for appellant.
David A. Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Malfitano, of counsel and on the brief). PER CURIAM
Defendant Mary Stickle appeals from the order of the Law Division denying her post-conviction relief (PCR) petition. Defendant filed this petition seeking to vacate a 1996 conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.
Given the passage of time, the record of this conviction is limited. However, the operative facts are undisputed. On January 29, 1996, defendant was charged by the Borough of Fair Lawn Police Department with DWI, N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, and failing to display insurance coverage credentials, N.J.S.A. 39:3-29.
On April 16, 1996, defendant's father, Thomas Stickle, an attorney licensed to practice in the State of New York, sent a handwritten letter to the judge of the Fair Lawn Municipal Court indicating that his daughter had "asked me to represent her in regard to the . . . tickets which she received on 1/29/96." Mr. Stickle wrote the letter on his attorney letterhead stationary, listing the location of his law office in Bronx, New York.
The summons issued by the Fair Law Police Department indicates defendant's date of birth as December 1977. She was thus eighteen years old at the time she was charged with DWI in January 1996.
In this capacity as defendant's attorney, Mr. Stickle further advised the municipal court that
Mary very much wants to enter a plea of guilty which is retroactive to [February] 23, 1996 - the date she turned in her driver's license to the Court. She is presently in a very strict "rehab" facility . . . in Blairstown, NJ where she expects to remain for several more months until her recovery chance has been maximized.
It is our fervent hope that the three tickets could be merged into the D.W.I. charge and that your sentence could be made retroactive to either her date of admission to [the rehabilitation facility] or the date she sent in her license pursuant to the court's request.
Mr. Stickle appeared before the municipal court on defendant's behalf on September 18, 1996. Defendant was not present. The record of this proceeding indicates that the municipal prosecutor addressed the court first, informing the judge of Mr. Stickle's dual status as defendant's father and as "an attorney in New York." The prosecutor then referred to the "letter . . . from the defendant, who is [Mr. Stickle's] daughter, requesting that he be permitted to appear for her and enter a plea."
The following interaction then ensued between Mr. Stickle and the municipal court judge.
THE COURT: All right. Fine. Is he - -At this point, the proceeding is taken off the record for an unknown period of time. The following occurred when the proceeding is back on the record.
MR. STICKLE: May I approach, your Honor?
THE COURT: Is she here?
MR. STICKLE: No. She's (indiscernible.)
THE COURT: Stickle dated yesterday [September 17, 1996]. It's faxed to the Court, indicating that you are her father. You can represent her in connection with this case. She desires to plead guilty. That being the case I will accept a plea of guilty in her absence through you as her attorney. Although I'm required to ascertain that she understands the consequences of pleading guilty at this time and for the future, and also if she drives on the revoked list. I suppose considering the fact that she is in a rehabilitation program and obviously is not here because of that reason, that of necessity I'll have to dispense with that requirement.
[Addressing the municipal prosecutor] . . . do you have any recommendation in this matter?
THE PROSECUTOR: Judge, with regard to the remaining two charges, I don't have the report before me. This was added on. I don't know whether there was an accident involved, but the [N.J.S.A.] 39:4-97 would seem to be a lesser included charge in driving under the influence. So [the] State would move to dismiss that.
With respect to the charge of failure to display credentials that's a de minimis charge. [The] State will move to dismiss that as well.
THE COURT: Fine. Do you have the papers for a plea of guilty in a drunk driving case?
THE CLERK: (Indiscernible)
THE COURT: There . . . are papers which have to be executed by the defendant. What I'm going to do is give you those papers and ask you to have her sign them and send them back to us.
MR. STICKLE: Yes, your Honor.
Based on his earlier letter, we presume Mr. Stickle informed the municipal court judge that defendant was in a rehabilitation facility.
Immediately following this colloquy, the municipal court sentenced defendant in absentia, imposing the mandatory fines and penalties in accordance with the then prevailing provisions for a first time offender under N.J.S.A. 39:4-50, including suspending defendant's driving privileges for a period of six months. The municipal court also granted Mr. Stickle's request to make the suspension of driving privileges retroactive to February 1, 1996 - the date defendant allegedly surrendered her driver's license - and dismissed the remaining charges. Defendant thereafter signed and returned to the municipal court the official notice required under N.J.S.A. 39:4-50(a), apprising her of the legal ramifications of her conviction, including the enhanced penalty provisions for subsequent DWI offenses.
The record includes a copy of the form signed by the municipal court judge and acknowledged by defendant via her signature dated September 22, 1996.
On March 30, 2011, defendant filed a pro se PCR petition in the Fair Lawn Municipal Court seeking to vacate the 1996 DWI conviction or, alternatively, to prevent the conviction from acting as a basis to enhance the penalties called for under N.J.S.A. 39:4-50 for a subsequent DWI conviction. Defendant explained the basis for the relief she was seeking in the following certification.
On September 18, 1996, I entered a plea to driving under the influence in violation of N.J.S.A. 39:4-50. At the time of the plea, to the best of my recollection, the Municipal Court Judge asked me if I was guilty and I stated "yes." I do not recall providing the Municipal Court Judge with a factual basis as to whether or not I was actually drinking while driving, nor where I had consumed the alcohol or whether the alcohol affected my ability to operate a motor vehicle.
I am currently facing an offense for driving while intoxicated in the Hawthorne Municipal Court. I am facing a mandatory six (6) months in jail. Accordingly, I am making this Motion to vacate the prior conviction or, alternatively, to obtain an Order setting forth that my prior conviction cannot be used to enhance the penalty on a later conviction.
The record before us indicated that the Hawthorne charge was defendant's second DWI conviction. Because the reference to a mandatory six-month term of incarceration is consistent with the enhanced sentencing provisions for a third DWI conviction under N.J.S.A. 39:4-50(a)(3), we asked defendant's counsel at oral argument in this appeal to explain this inconsistency. According to defendant's counsel, approximately one year after the 1996 conviction, defendant pled guilty to DWI and was sentenced as a second offender pursuant to N.J.S.A. 39:4-50(a)(2). Defendant did not challenge the propriety of the 1996 conviction at that time.
Defendant retained counsel after this initial pro se pleading; counsel filed a brief in support of the relief requested and appeared as defendant's legal representative when the petition came for adjudication before the municipal court on April 27, 2011. In response to the municipal court's query concerning the five-year limitation period for filing a PCR petition under Rule 7:10-2(b)(2), defendant's counsel argued that the time restrictions did not apply because defendant's absence at the time the court accepted her guilty plea made the issue of "constitutional dimension, meaning that she . . . didn't enter the plea knowingly and voluntarily."
Counsel also argued that the time limitations were not applicable because defendant was also seeking the relief available under State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990). By order dated May 4, 2011, the municipal court held that defendant's 1996 conviction could not be used "as an enhancement for the custodial portion of any subsequent [DWI] convictions."
Defendant and the State both appealed the municipal court's ruling to the Law Division. After considering the arguments of counsel, the Law Division denied defendant's PCR petition in its entirety and granted the State's cross-appeal vacating the relief ordered by the municipal court.
Defendant now appeals to this court raising the following argument.
POINT ONE
SINCE THE MAGISTRATE DID NOT [ELICIT] A FACTUAL BASIS, THE DEFENDANT'S SENTENCE WAS NOT LEGAL AND THEREFORE THE JUDGMENT OF CONVICTION MUST BE VACATED.
We reject this argument and affirm. We begin our analysis by unequivocally repudiating the manner in which the Fair Lawn Municipal Court adjudicated defendant's DWI charge in 1996. There is simply no support for accepting a guilty plea to a quasi-criminal offense by proxy. The fact that the guilty plea here involved the extremely serious offense of operating a motor vehicle while intoxicated makes this gross departure from rudimentary principles of sound judicial management even more egregious. Although the judge is the ultimate gatekeeper under these circumstances, we are equally critical of the municipal prosecutor for failing to object when this arrangement was suggested by defendant's counsel.
That being said, however, fundamental principles of justice and fairness demand that we not allow defendant to use the method she strongly advocated in 1996 as a means of escaping responsibility for her subsequent deleterious behavior in continuing to drive while intoxicated in 2011. As the State correctly noted in its brief before us, "defendant herself proposed the actions which she now condemns as grievous error."
Our holding here is not unprecedented. We confronted a similar situation in State v. Nicolai, 287 N.J. Super. 528 (App. Div. 1996). The municipal court in Nicolai initially sentenced the defendant as a second DWI offender despite his two prior DWI convictions in 1979 and 1980, because over ten years had elapsed between his second and third violations. Id. at 530. Inexplicably, "the municipal court subsequently granted defendant's motion for reconsideration and sentenced him as if he were a first offender." Ibid. All of the parties agreed that the municipal court erred in sentencing the defendant as a first offender. Id. at 531.
In 1995, defendant Nicolai again pled guilty to DWI and the municipal court correctly sentenced him as a third offender. The defendant appealed to the Law Division arguing that the State should be precluded from correcting an error made in 1992. Ibid. The Law Division agreed with the defendant's argument, "concluding that it would be a violation of due process to impose a sentence inconsistent with defendant's reasonable and justifiable expectations." Ibid.
On the State's appeal, we reversed. Writing for the court in Nicolai, our colleague Judge Baime aptly captured the essence of the principle at stake:
What is involved here is the judicial obligation to enforce a legislatively mandated sentence. When the Legislature imposes minimum penalties for certain offenses, the judiciary must enforce that mandate. We would frustrate the legislative command if we were to conclude that defendant could avoid the statutorily required minimum sentence for a third offender merely because the municipal court imposed an illegal penalty on an earlier conviction and the prosecutor failed to challenge that error by filing an appeal.
. . . .
We find no basis for the Law Division's statement that a sentence in accordance with the mandatory penalties provided by N.J.S.A. 39:4-50(a)(3) would conflict with defendant's justifiable expectations. No defendant can claim a legitimate expectation of finality in a sentence below the statutorily mandated minimum. In any event, the sentence at issue here is not the one imposed in 1992. No one seeks to compel defendant at this late date to serve the sentence that should have been imposed on that conviction. Defendant has already benefited from the mistake made on that occasion, but he has no vested right in perpetuating that illegality.
[Id. at 531-532 (citations omitted) (emphasis added).]
Defendant here is likewise not entitled to benefit from the illegality she advocated. Under the doctrine of invited error, a defendant is barred "from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J. 479 (1996)). The doctrine of invited error has been applied with equal force to defendants in criminal cases. State v. Kemp, 195 N.J. 136, 155 (2008). We discern no valid reasons for not applying the invited error doctrine here to preclude defendant from repudiating the course of action she advocated in 1996.
We also reject defendant's argument that the absence of a factual basis rendered her 1996 plea a constitutional nullity. We recognize that before accepting a guilty plea to DWI from defendant, the municipal court judge was required to address defendant personally and determine "by inquiry . . . that the plea [was] made voluntarily with understanding of the nature of the charge and the consequences of the plea and that there [was] a factual basis for the plea." R. 7:6-2(a)(1).
However, as the Court noted in State v. Mitchell:
Our procedural Rules do require a judge to elicit a factual basis for a guilty plea. As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and
thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own.
[126 N.J. 565, 577-578 (1992) (citations omitted).]
Here, defendant's certification in support of her PCR petition does not contain a contemporaneous claim of innocence or dissatisfaction with the manner her father represented her in 1996. Indeed, defendant did not voice any concern with her 1996 conviction until fifteen years later, when she was facing a mandatory term of incarceration for her third DWI conviction.
Defendant's failure to challenge the 1996 conviction at the time of her second DWI conviction approximately one year later also reveals the pretextual nature of her current claims.
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Finally, we reject defendant's argument claiming relief under State v. Laurick, supra. As the Court made clear in State v. Hrycak:
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. . . . In that vein, if defendant proves that notice of the right to counsel was not provided, the inquiry is then bifurcated into whether the defendant was indigent or not indigent. [I]f [the] defendant [was] indigent, [the defendantHere, defendant has not claimed indigency, and she was represented by an attorney in 1996. The fact that Mr. Stickle was not licensed to practice law in this State at the time he appeared on defendant's behalf may be a factor in assessing his effectiveness; however, defendant has not claimed that her father provided her with less than effective legal representation.
must prove that] the DWI conviction was a product of an absence of notice of the right to assignment of counsel and non-assignment of such counsel without waiver. On the other hand, if the defendant was not indigent at the time of the prior uncounseled conviction, [the] defendant should have the right to establish such lack of notice as well as the absence of knowledge of the right to be represented by counsel of one's choosing and to prove that the absence of such counsel had an impact on the guilt or innocence of the accused or otherwise wrought a miscarriage of justice for the individual defendant.
[184 N.J. 351, 363 (2005) (referring to the analysis laid out in Laurick, supra, 120 N.J. at 11) (quotation marks and citations omitted) (alterations in original).]
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION