From Casetext: Smarter Legal Research

State v. Taggart

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Jul 2, 2014
DOCKET NO. A-3563-12T3 (App. Div. Jul. 2, 2014)

Opinion

DOCKET NO. A-3563-12T3

07-02-2014

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DENNIS TAGGART, Defendant-Appellant.

Edward G. Appel, attorney for appellant. Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Ostrer and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-026364.

Edward G. Appel, attorney for appellant.

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief). PER CURIAM

Defendant Dennis Taggart appeals from both a January 29, 2013 order denying his petition for Post-Conviction Relief (PCR) of a 2003 DWI conviction and a February 25, 2013 order denying his Law Division appeal from the same conviction. Defendant argues that his appeal should be considered nunc pro tunc because he was not advised of his right to appeal and was not advised of the consequences of a subsequent DWI charge. We reject defendant's argument and affirm the denial of his petition.

Defendant was charged with driving under the influence in violation of N.J.S.A. 39:4-50 on January 30, 2003. On February 19, 2003, defendant pled guilty. The municipal court accepted the plea and found a factual basis to enter a finding of guilty, including the fact that defendant's breathalyzer reading was 0.16% Blood Alcohol Concentration. Defendant was sentenced as a second offender on the charge of drunk driving, and he did not appeal the municipal court conviction arising from his guilty plea. On February 11, 2012, defendant filed an application for PCR.

In general, Rule 3:23-2 requires notice of a municipal appeal to be filed "within 20 days after the entry of judgment." Furthermore, Rule 1:3-4(c) prohibits enlarging the twenty day time frame of Rule 3:23-2. There have been narrow exceptions to Rule 1:3-4(c) when a defendant has not been advised of the right to appeal. See State v. Martin, 335 N.J. Super. 447 (App. Div. 2000); see also State v. Gonzalez, 186 N.J. Super. 609 (Law Div. 1982).

In Martin, supra, 335 N.J. Super. at 452, we allowed the defendant to appeal ten days after the time limit had run. The defendant had not been informed of her right to appeal nor the applicable time frame of an appeal. Id. at 451. Additionally, the municipal court elicited no factual basis for the defendant's guilty plea as required by Rule 7:6-2(a)(1), and improperly merged one of the charged offenses. Id. at 450-51. We determined that the multiple errors of the municipal court could not be corrected except by granting the defendant's motion for leave to appeal out of time. Id. at 452.

In Gonzalez, supra, 186 N.J. Super. at 616, the Law Division held that "[t]he extraordinary circumstances of defendant's conviction . . . compel this court to relax the operation of the rules governing appeals from courts of limited jurisdiction," and allowed the defendant to appeal eight months out of time. The defendant was a deaf and mute man with no formal education in the use of sign language. Id. at 611. The defendant was completely reliant on two relatives, both of whom had minimal educational backgrounds and minimal skills in the English language, to communicate with him through a crude self-created sign language of their own. Ibid. Furthermore, the defendant was never advised of his right to counsel, nor assigned a proper interpreter. Id. at 612. Additionally, the judge questioned the defendant before the State made its case, no witnesses were sworn, and the defendant was not given the opportunity to cross-examine the State's sole witness. Id. at 612-13.

The extraordinary circumstances present in Martin and Gonzalez are not present in the case at bar. First, defendant was represented by counsel. Second, there is no certification in the record that defendant was unaware of his right to appeal or unaware of the penalties of a subsequent DWI conviction. Third, defendant's 2003 plea established a factual basis for the guilty plea. Finally, defendant does not allege any other defects in the 2003 proceeding that could only be corrected by granting his request to appeal nine years out of time.

Additionally, Rule 7:10-2(b)(2) requires that a petition for PCR must be filed no more than five years after entry of the judgment of conviction. Here, defendant's petition was filed nine years after his judgment of conviction. A court may relax the five-year bar if a defendant demonstrates "excusable neglect." R. 7:10-2(b)(2); State v. Mitchell, 126 N.J. 565, 576 (1992); State v. Weil, 421 N.J. Super. 121, 128 (App. Div. 2011); State v. Bringhurst, 401 N.J. Super. 421, 432 (App. Div. 2008). "When determining whether to relax the time bar . . . a court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits." Bringhurst, supra, 401 N.J. Super at 432.

Defendant has failed to demonstrate that the Law Division erred in refusing to relax the time bar. First, defendant proffers no reason or evidence for the cause of his nine-year delay. Next, after a nine-year delay, it is likely that the State would be prejudiced, especially because the equipment operator from the 2003 conviction is no longer employed by the Borough of Westville. It is uncertain whether he would be available for a new trial. Therefore, the state likely would be prejudiced in its ability to present evidence if a new trial were ordered.

Finally, there is no indication that there has been an injustice sufficient to relax the time limits. "To sustain the burden of demonstrating that an injustice has occurred, a defendant must allege and articulate specific facts, 'which, if believed, would provide the court with an adequate basis on which to rest its decision.'" Weil, supra, 421 N.J. Super. at 131 (citation omitted). Here, there is no certification in the record that defendant was unaware of his right to appeal, defendant was represented by counsel, and a factual basis was established for defendant's guilty plea.

Affirmed.

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. Taggart

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Jul 2, 2014
DOCKET NO. A-3563-12T3 (App. Div. Jul. 2, 2014)
Case details for

State v. Taggart

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. DENNIS TAGGART…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Jul 2, 2014

Citations

DOCKET NO. A-3563-12T3 (App. Div. Jul. 2, 2014)