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State v. Han

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Feb 3, 2017
DOCKET NO. A-5609-14T2 (App. Div. Feb. 3, 2017)

Opinion

DOCKET NO. A-5609-14T2

02-03-2017

STATE OF NEW JERSEY, Plaintiff-Respondent, v. KUN P. HAN, Defendant-Appellant.

Richard F. Klineburger, III, argued the cause for appellant (Klineburger & Nussey, attorneys; Mr. Klineburger and Carolyn G. Labin, on the briefs). David M. Liston, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Liston, of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 56-2014. Richard F. Klineburger, III, argued the cause for appellant (Klineburger & Nussey, attorneys; Mr. Klineburger and Carolyn G. Labin, on the briefs). David M. Liston, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Liston, of counsel and on the brief). PER CURIAM

Defendant Kun P. Han appeals the July 20, 2015 denial of his post-conviction relief (PCR) application to vacate his 1995 and 1999 convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50. The application followed defendant's 2014 charge of a fifth DWI charge.

We conclude defendant has established a prima facie case pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), that his 1995 and 1999 convictions should not be included for sentencing purposes. After consideration of the record and applicable law, we reverse and remand for an evidentiary hearing.

In support of his petition, among other things, defendant asserts that he was not provided with interpreter services, even though he speaks only Korean, at any of his prior DWI hearings. He also asserts he was not advised as to his right to counsel, nor was he represented, at any of the prior proceedings.

The Plainsboro Municipal Court judge to whom the Laurick application was first made, gave defendant's application short shrift. On the record, he initially referred to a Law Division judge in that county as having "cut [defendant's attorney] a new one the last time you were there" on an unrelated Laurick application. During the course of entertaining very brief argument, and rendering an abbreviated decision, the judge said he was able to locate only the 1986 ticket, despite the fact counsel was arguing as to 1986, 1995, and 1999 DWIs. He added that he did

not know nor [could he] confirm that the other two tickets referred to by counsel were heard here in Plainsboro because I have no record of those other two tickets here in Plainsboro. The best I can say at this point after looking at the documents before me there is no indication whether there was counsel or not counsel. There is no indication whether an interpreter was used and there was no indication of whether Mr. Han was given his rights. So I cannot indicate that there was or was not counsel, although it appears from the papers that I reviewed that there probably was not counsel, otherwise there probably would have been some notation somewhere in the paperwork indicating a letter was sent to a lawyer.

Telephonic translator services were provided for defendant in the municipal court. The interpreter frequently asked that things be repeated. The judge responded, "No. I'm not going to keep repeating, Mr. Interpreter. If you can't understand, I'll get another interpreter, but I can't keep repeating. I got a full courtroom full of people and every sentence you want repeated." Finally, in deciding the application, the judge said:

Okay. Fine. You can disagree all you want. I'm not going to take any more time on this, please. All I can do is tell you what I did. I do see, by the way, there's an operating under the influence and the court code is L96. We're not L96. We're M20, okay, so I don't know where L96 is, but it isn't here, so.

In rendering his decision, the Law Division judge on the de novo appeal, see Rule 3:23, referenced only two tickets, Nos. 1218-061348 and 1218-084821, from 1995 and 1999 respectively. During that appeal, a more complete record was provided to defendant, indicating he had been convicted of DWI in 1987 as well.

The notice of appeal included the 1986 conviction. The judge did not appear to specifically address the 1986 ticket, and the notice of appeal to our court did not list it. --------

In an affidavit submitted to the Law Division without objection from the State, defendant asserted that he was not provided the services of an interpreter during any of his DWI hearings, he was not represented, nor advised of potential jail consequences. He entered guilty pleas to each charge, believing DWI convictions resulted in only fines. Curiously, defendant claims he was never incarcerated for any of his prior DWI convictions. The Law Division judge noted defendant was required to participate in the Intoxicated Driver Resource Center (IDRC) program for his 1999 conviction, but he did not attend.

Defendant also claimed that although his memory of the individual offenses, given their age, is unclear, he remembers that on at least one occasion he entered a guilty plea to DWI when he was not operating his vehicle. An officer discovered him sleeping in his car while waiting to go to work. His keys were not in the ignition.

The Law Division judge found no basis to relax the five-year time constraints in Rule 7:10-2(g)(2) because he considered defendant's allegations to be "too vague and conclusory to be determinative." The judge further found that even if it were true that defendant was not provided with an interpreter, or if indigent, an attorney, he did not establish any benefit that would have been gained had he been properly represented and supplied an interpreter. He weighed in the balance the considerable prejudice to the State if defendant's Laurick applications were granted. The judge also found defendant had not established excusable neglect. In denying the PCR application, the judge relied extensively on State v. Bringhurst, 401 N.J. Super. 421 (App. Div. 2008).

Because the Law Division decision discussed only the issue of the 1995 and 1999 convictions, as did the notice of appeal filed with this court, we address only those tickets and the claims regarding those charges.

On appeal, defendant raises the following issues for our consideration:

POINT ONE
THE COURT ERRED IN FINDING HAN'S APPLICATIONS FOR POST-CONVICTION RELIEF WERE UNTIMELY.
A. The Trial Court Erred When It Gave Much Weight To The Passage Of Time Between Han's Convictions And His Laurick Application.

B. The Trial Court Erred In Finding Han's Delay In Bringing His Application Was The Result Of Willful Neglect And It Erred In Finding Han Did Not Suffer An Injustice Sufficient To Outweigh Any Prejudice To The State.

C. The Trial Court Erred In Finding Han Did Not Allege Facts As Part Of His Laurick Application Warranting The Relaxation Of The Five-Year Time Limit For Post-Conviction Relief Applications.

POINT TWO
AT A MINIMUM, THE TRIAL COURT SHOULD HAVE ORDERED A HEARING IN THIS MATTER SO THAT IT AND THE STATE COULD QUESTION HAN ABOUT HIS ASSERTIONS IN HIS AFFIDAVITS PRESENTED TO THE COURT.

"[A]ppellate review of a municipal appeal to the Law Division is limited to 'the action of the Law Division and not of the municipal court.'" State v. Palma, 219 N.J. 584, 591-92 (2014) (quoting State v. Joas, 34 N.J. 179, 184 (1961)). We determine whether the Law Division's de novo findings could reasonably have been reached on sufficient credible evidence present in the record. State v. Monaco, 444 N.J. Super. 539, 549 (App. Div. 2016) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). Our review of legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

We agree with the trial court on the importance of Bringhurst to any analysis of defendant's legal contentions, although we disagree as to its impact on the outcome in this case. In Bringhurst, we discussed the practical difficulties defendants face in making Laurick applications, such as the inability to produce a transcript of the proceedings because of the age of the cases. Bringhurst, supra, 401 N.J. Super. at 433-34. Given the inherent difficulty in pursuing such petitions, which involve the fundamental right to counsel, "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 . . . . [T]he interests of justice are not served [] by automatically applying the five-year time bar contained in Rule 3:22-12(a)[.]" Id. at 433 (internal citation omitted). Furthermore, in this case, there is the added complication of defendant's significant language barrier, for which he claims no accommodation was made.

Moreover, some support for defendant's position that the gravity of a DWI conviction was never made clear to him exists in that, despite the number of prior convictions, he was not incarcerated for the offense. He failed to complete even the only IDRC requirement imposed by way of sentence, according to the abstract included in the appendix.

Defendant's lack of representation, of knowledge that if he could not afford a private attorney one would be assigned to represent him, lack of an understanding of the nature of the proceedings, as well as the language barrier, warrant relaxation of the time bar. We hold that the time bar should not be mechanistically applied in this case given these unique circumstances. See State v. Hrycak, 184 N.J. 351, 363 (2005).

Having concluded that the time bar should be relaxed, we consider whether defendant's allegations otherwise meet the requirements of a prima facie case. In State v. Schadewald, 400 N.J. Super. 350, 354 (App. Div. 2007), we found that in order to be entitled to PCR relief by way of a Laurick step-down sentence, a defendant has to establish, if he was then indigent, that the right to counsel, including the right to assigned counsel, was not explained. If the defendant was not indigent, he or she would have to prove that they were not advised of their right to counsel and extended the time in which to retain one. Ibid. Most significantly, a defendant would have to demonstrate that if represented by counsel, a defense to the charge existed and the outcome of the proceedings might have been different. Id. at 354-55.

Here, this defendant asserts that on at least one occasion, he was asleep in his car waiting to go to work, engine off, keys not in the ignition. We know nothing else about the conviction. It may well be that at an evidentiary hearing, the only proffer that defendant will be able to make is his own testimony. And it may well be that after his testimony, the judge will conclude operation was not a colorable defense. But he should be afforded that opportunity — a judge can assess credibility in this case as in any other, and make a finding as to whether defendant's recollection is a substantial enough basis upon which to conclude that the outcome would have been different. Further, in the event defendant is able to obtain any additional information with regard to the 1995 and 1999 DWI convictions prior to the hearing, he should be given the opportunity to present it.

Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Han

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Feb 3, 2017
DOCKET NO. A-5609-14T2 (App. Div. Feb. 3, 2017)
Case details for

State v. Han

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. KUN P. HAN…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Feb 3, 2017

Citations

DOCKET NO. A-5609-14T2 (App. Div. Feb. 3, 2017)