STATE OF NEW JERSEY v. LORI A. TUTOLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1825-04T11825-04T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LORI A. TUTOLO,

Defendant-Respondent.

_____________________________________________

 

Argued October 6, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

Docket No. 34-04.

Thomas Cannavo, Assistant Prosecutor, argued

the cause for appellant (Thomas F. Kelaher,

Ocean County Prosecutor, attorney; Mr. Cannavo

of counsel and on the brief).

Luke C. Kurzawa argued the cause for respondent

(Matthew W. Reisig, attorney; Mr. Kurzawa on

the brief).

PER CURIAM

Pursuant to leave granted, the State appeals from a Law Division order of October 29, 2004, granting defendant Lori A. Tutolo's petition for post-conviction relief (PCR), vacating her August 8, 2000 plea of guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50, and remanding the matter to the Municipal Court for trial. We affirm.

On July 28, 2000, defendant was arrested in Berkeley Township, and charged with DWI and failure to maintain a lane of travel, N.J.S.A. 39:4-88. On August 8, 2000, without the benefit of counsel, she pled guilty to DWI and, apparently as a result of an agreement with the municipal prosecutor, the failure to maintain lanes charge was dismissed. Appropriate fines, penalties and surcharges as well as a six-month license suspension were imposed. Just over four years later, on August 17, 2004, defendant appeared in the same municipal court, before a different judge, and sought to vacate her guilty plea. She did so pursuant to a PCR petition filed under R. 7:10-2, based upon the fact that the judge had failed to elicit a factual basis for the plea. The application was denied.

Defendant sought de novo review in the Law Division. On October 22, 2004, the Law Division judge vacated defendant's conviction and remanded the matter for trial in the municipal court. Although the judge found that an adequate factual basis had been established for defendant's plea, he concluded that the plea was not entered knowingly and voluntarily because the municipal judge failed to inform defendant of her fundamental rights: (1) to remain silent; (2) to confront adverse witnesses; (3) to call witnesses in her own defense; (4) to require that the State prove the charges beyond a reasonable doubt; and (5) to appeal her conviction.

After granting leave to appeal, we granted the State's motion for a temporary remand to the Law Division for the purpose of supplementing the record with additional portions of the August 8, 2000 proceeding and permitting the Law Division judge to reconsider his ruling in light of the record as supplemented. On remand, the judge adhered to his earlier decision.

Rule 7:10-2, the analog to R. 3:22, provides a PCR remedy for municipal court convictions. In this case, it appears that defendant invokes, as a basis for relief, a "substantial denial in the conviction proceedings of [her] rights under the Constitution of the United States or the Constitution or laws of New Jersey." R. 7:10-2(c)(1). Rule 7:6-2, the analog to R. 3:9-2, governs guilty pleas in municipal court proceedings. The Rule requires that the judge personally address a defendant and determine "by inquiring of the defendant . . . that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea and that there is a factual basis for the plea." Here, the Law Division judge determined that there was a factual basis for the plea based on defendant's admission that she was operating a vehicle on the date in question, that she had consumed alcohol before driving and that the alcohol had impacted her ability to operate the vehicle appropriately. We agree with the Law Division judge that an adequate factual basis was provided, and defendant does not argue to the contrary on this appeal. Nevertheless, we emphasize that even with the volume of cases in the municipal courts, "[s]trict observance of the law regarding the acceptance of guilty pleas . . . is essential for the protection of the constitutional rights of persons charged with crime." State v. Gale, 226 N.J. Super. 699, 704 (Law Div. 1988).

Notwithstanding the sufficiency of defendant's factual basis, the judge concluded that the plea was not voluntary because defendant was not advised of the fundamental rights being waived by her guilty plea. While giving advice as to such rights (the right to remain silent, to confrontation, to produce witnesses in defense and to require proof beyond a reasonable doubt) is standard practice in the Law Division, and is included on the Uniform Plea Form, which is completed and signed by every defendant who pleads guilty, the Rules do not contain a requirement that a defendant be so advised. As noted, the requirement is simply that the plea be "voluntary." Indeed, it would appear that such advice of fundamental trial rights is not routinely given in municipal courts, a practice no doubt dictated by the large volume of cases handled by those courts. In any event, we find no authority, and defendant has provided none, holding that the advice concerning, and waiver of, those rights attendant to trial is a required component of a voluntary guilty plea. Rather, the sina qua non of voluntariness is that the action -- in this case the guilty plea -- reflect the unconstrained will of the defendant. State v. Simon, 161 N.J. 416, 443 (1999). Indeed, R. 2:9-2 makes this point clear by requiring that the plea be "made voluntarily, not as a result of any threats, or of any promises or inducements not disclosed on the record. . . ." Threats, as well as undisclosed promises or inducements, are precisely the types of pressures that render a plea involuntary. While the threats, promises, inducements language is not found in R. 7:6-2, if anything that omission suggests that even less may have been thought sufficient to deem a plea voluntary in the municipal courts. We assume, however, that "voluntary" means the same thing in municipal court as it does in the Law Division. That said, we disagree with the Law Division judge that defendant's plea was not voluntary because the judge did not engage her in the type of plea colloquy typical in Law Division pleas.

Nevertheless, although we are not in agreement with the PCR judge's rationale, we conclude that defendant's guilty plea did not meet constitutional standards. The transcript of the municipal court proceeding reveals the following:

THE COURT: All right. You have a right to trial, ma'am, a right to have an attorney represent you, a right to court-appointed counsel, ma'am, if you want an attorney and cannot afford same. Do you understand all that?

MS. TUTOLO: Yes, your Honor.

THE COURT: All right. And fully understanding that, ma'am, have you spoken to an attorney yet?

MS. TUTOLO: No, your Honor.

THE COURT: All right. Do you intend to get an attorney, ma'am?

MS. TUTOLO: No, your Honor.

THE COURT: Are you asking for a court-appointed counsel or do you wish to represent yourself?

MS. TUTOLO: Represent myself.

THE COURT: All right. If you're convinced of this, ma'am, there are minimum fines, costs, loss of license involved for drunk driving. Do you understand that?

MS. TUTOLO: Yes.

THE COURT: All right. Fully understanding that, on the charge of drunk driving, ma'am, how do you wish to plea?

MS. TUTOLO: Guilty.

THE COURT: All right. If I accept the guilty plea from you, ma'am, it's an admission on your part you committed the act as alleged. There will be no trial. The only thing the Court, ma'am, would have to do is sentence you. Do you understand that?

MS. TUTOLO: Yes, your Honor.

THE COURT: All right. And would this constitute a first offense for you, ma'am, if you're convicted?

MS. TUTOLO: Yes. Yes, it is.

THE COURT: There are mandatories on this, ma'am. Even a first offense would be the $250 in fines, 30 in costs, 100 D.W.I. surcharge, 50 to the V.C.C.B., $75 to Safe Neighborhood. There will be 12 hours of I.D.R.C. and six months loss of driving privileges. Do you understand all of that, ma'am?

MS. TUTOLO: Yes, your Honor.

THE COURT: And fully understanding that, you wish to enter a guilty plea?

MS. TUTOLO: Yes, I do.

THE COURT: All right.

We have made clear that while the right to counsel may, like other constitutional rights, be waived, "it is incumbent upon the court to insure that [defendant's] choice of self-representation has been made knowingly, intelligently and with a full awareness of the dangers and disadvantages inherent in such a course." State v. Slattery, 239 N.J. Super. 534, 544 (App. Div. 1990) (citing Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 581-82 (1975)). Thus, a "defendant must be apprised of the difficulties of self-representation in terms sufficient to enable him to intelligently decide which course to choose." Ibid. These same considerations apply when a defendant, as here, intends to plead guilty, even in municipal court. State v. Gale, supra, 226 N.J. Super. at 703-05. "There can hardly be a more significant stage of the proceeding than the entry of a guilty plea." State v. Melendez, 165 N.J. Super. 182, 184 (App. Div. 1979). And while the facts in Gale, Slattery and Melendez, revealed more egregious examples of the courts' failure to insure knowing waiver of the right to counsel, we are satisfied that the principles set out in those decisions are fully applicable here and compel an affirmance of the PCR judge's decision to vacate defendant's guilty plea and remand for a new trial.

The State argues that utilization of the PCR procedure was improper in that the proceeding was in reality a motion to withdraw a guilty plea that should have been governed by the "manifest injustice" standard governing such applications. Rule 3:21-1; R. 7:6-2(b). If defendant's application was premised upon the failure to elicit an adequate factual basis, the State's argument would have some force. However, the failure to accord defendant her fundamental constitutional right to counsel, by failing to elicit a knowing waiver of that right, is one that is properly examined within the context of the PCR rules. We do not read State v. Mitchell, 126 N.J. 565, 577 (1992) to the contrary.

 
Affirmed.

The Prosecutor informed the judge that the State intended "to move for a directed verdict." At the conclusion of the proceedings, the judge "granted the State's request for a directed verdict of acquittal for failure to maintain your lane."

R. 3:9-2 differs in that it also requires the court to determine that the plea is not the result of "any threats or of any promises or inducements not disclosed on the record. . . ." Of course, R. 3:9-2 also requires that the defendant be sworn before inquiry, while R. 7:10-2 does not.

(continued)

(continued)

9

A-1825-04T1

November 3, 2005