STATE OF NEW JERSEY v. THOMAS M. FULLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0351-04T30351-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS M. FULLER,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 11, 2005 - Decided

Before Judges Cuff and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. 16348.

Francine A. Gargano, attorney for appellant.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (John M. Jingoli, Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On January 25, 2003, defendant, Thomas M. Fuller, was arrested by the Princeton Police Department and charged with violations of driving while under the influence of alcohol (DWI), failing to maintain a lane, driving under the influence of alcohol in a school zone, careless driving, and unsafe movement. On March 31, 2003, he appeared with counsel in the Princeton Municipal Court and informed the court that pursuant to a plea bargain he would plead guilty to DWI with the remaining charges to be dismissed. There was then discussion as to how defendant would be treated in terms of his "repeat offender status." Counsel represented that this would be his fourth conviction for DWI, although his prior convictions all occurred ten years prior. The case was carried and on April 8, 2003, defendant appeared with counsel, a guilty plea was accepted by the judge, and defendant was sentenced as a third-time offender.

Defendant's sentence as a third-time offender was appealed to the Law Division. The Law Division judge, concluding that there had been an insufficient factual basis given for the acceptance of defendant's guilty plea, remanded the matter to the municipal court for either a re-plea or trial of the charges. On remand, the municipal court obtained a sufficient factual basis to accept defendant's guilty plea and after adjudicating guilt sentenced defendant again as a third-time offender. Defendant again appealed to the Law Division, contesting the third-offender sentence imposed by the municipal court. Judge Bielamowicz, after considering the legal arguments of counsel and reviewing the record de novo, sentenced defendant as a third-time offender. We affirm.

Defendant asserts that the court erred in failing to require the State to produce a certified abstract of his driving record as proof of his three prior DWI convictions. However, due to admissions by both defendant and his counsel, the number of prior DWI's was never in dispute. The record of the proceedings before both the municipal court and the Law Division clearly shows that defendant and his counsel admitted before both courts that he had entered pleas of guilty and was convicted of three prior DWI offenses. These admissions sufficed to establish defendant's three prior DWI convictions and his awareness that the January 25, 2003 arrest was his fourth offense. Therefore, defendant knowingly waived the State's requirement to produce a certified abstract of his three prior convictions. The State was not required to prove that which was undisputed.

Defendant contends that the court erred in sentencing him as a third-time offender. We disagree.

N.J.S.A. 39:4-50(a)(3) provides:

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 in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 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 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

In State v. Lucci, 310 N.J. Super. 58, 61-62 (App. Div.), certif. denied, 156 N.J. 386 (1998), we 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. Id. at 61. 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 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 illogical result 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. Ibid.

Defendant admitted that all of his prior convictions were counseled convictions but argues that the State had the burden to establish that those prior convictions met the constitutional requirements for the acceptance of a plea of guilty, including proving that he was aware of the penalties for a fourth offense. Defendant argues this requirement could not be satisfied because the penalties have changed since the time of his prior DWI convictions. Defendant contends that the constitutional requirements that the court must assure are satisfied when taking a defendant's DWI guilty plea include: 1) obtaining a knowing waiver by a defendant of the right against self-incrimination; 2) the right to confrontation of witnesses; and 3) advising a DWI defendant of the collateral effects of a guilty plea.

In State v. Laurick, 120 N.J. 1 (1990), cert. denied, 498 U.S. 967, 111 S. Ct. 429 112 L. Ed. 2d 413 (1990), our Supreme Court addressed the effect of prior DWI convictions that were entered in violation of court policy as established by the Rules of Court. Id. at 4. The issue was whether a non-indigent defendant's assertion that a prior guilty plea for DWI was without the advice of counsel prevented the imposition of enhanced penalties on a second DWI conviction. Ibid. The Court determined that there is no constitutional impairment in a non-indigent case to the use of prior uncounseled DWI convictions to establish repeat offenders status under the DWI laws, and that to obtain vacation of such a conviction, a defendant has the burden of producing evidence that the absence of such counsel had an impact on his guilt or innocence or otherwise "wrought a miscarriage of justice for the individual defendant." Id. at 11 (quoting State v. Cerbo, 78 N.J. 595, 607 (1979)). A defendant would have to show that the absence of notice of his right to counsel and his appearing without counsel "had a 'real probability' of having played a role in the determination of guilt." Id. at 13, (quoting State v. Reynolds, 43 N.J. 597, 602 (1965)). Although there can be no imprisonment absent a waiver, a conviction does not otherwise entitle a defendant to relief from the other enhanced penalties provided by the statute. Id. at 16.

Defendant argues that he could not have known what penalties would be imposed if he were convicted of a fourth or subsequent offense because at the times that his prior DWI guilty pleas were entered, the handling of enhanced penalties for those offenses was different. In State v. Gelok, 237 N.J. Super. 503, 506 (App. Div. 1989) (citing State v. Fahrer, 212 N.J. Super. 571, 576 (App. Div. 1986)), we determined that amendments to N.J.S.A. 39:4-50 on enhanced penalties for drunk driving do not limit consideration of prior offenses to those prior offenses committed after the amendment's effective date. We concluded to do so would produce an absurd result.

In Laurick, the Court made clear that post-conviction relief from the effect of prior convictions should normally be sought in the court of original jurisdiction, which would be in the best position to evaluate whether there had been any denial of fundamental rights. Laurick, supra, 120 N.J. at 11-12. We are satisfied that if there had been a constitutional or legal defect in one of defendant's prior DWI convictions that would have affected the outcome of the DWI trial had the defect not occurred, it was defendant's burden to prove the defect, thereby resulting in the vacation of the earlier conviction. If defendant's fundamental rights were violated in any of his previous DWI convictions, defendant was required by way of post-conviction relief to set aside that conviction before the municipal court where the conviction was entered. Defendant did not do so.

Defendant's and his counsel's admissions of his past DWI convictions established that defendant's January 25, 2003 offense was his fourth DWI conviction. Although defendant's fourth conviction occurred more than ten years after his third conviction in 1989, our interpretation in Lucci of the statutory step-down provision required defendant to be sentenced as a third offender. Accordingly, defendant's sentence as a third offender imposed by the Law Division on defendant's appeal from the third offender sentence imposed by the municipal court is affirmed.

 
Affirmed.

The sentence, in addition to the fine and monetary penalties required by N.J.S.A. 39:4-50(a)(3), included a 180 day jail sentence to be served by ninety days of community service and twenty-eight days in-patient alcohol rehabilitation. A ten-year revocation of driving privileges and ten-year suspension of registration certificate were also imposed.

Rule 7:6-2(a)(1) establishes the requirements imposed on the Municipal Court before the acceptance of a guilty plea.

Rule 7:10-2(c)(1) provides for post-conviction relief from a municipal court sentence based on "substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of New Jersey."

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A-0351-04T3

October 26, 2005