STATE OF NEW JERSEY v. FRANK P. ROMAN

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0996-07T40996-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK P. ROMAN,

Defendant-Appellant.

___________________________________

 

Submitted January 6, 2009 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Municipal Appeal

No. M-2007-715.

Frank P. Roman, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Patricia B. Quelch,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Frank P. Roman is currently an inmate at a state correctional facility serving a custodial sentence for a crime unrelated to the case under appeal. This appeal concerns summonses issued against defendant by the Holmdel Police Department on January 22, 1995, charging him with fictitious plates, N.J.S.A. 39:3-33; unregistered motor vehicle, N.J.S.A. 39:3-4; driving while suspended, N.J.S.A. 39:3-40; and failure to inspect, N.J.S.A. 39:8-1.

As the State concedes in its brief before us, this case has a tortured procedural history. Although we concur with the State in its characterization of the case's procedural past, distilled to its essence, defendant, through this appeal, seeks only to challenge two orders entered by the Law Division, on September 7, 2007 and October 17, 2007, respectively. After carefully reviewing the record, we affirm.

The record shows that defendant was incarcerated from February 2, 1995 to March 17, 1995. On March 29, 1995, defendant entered a not guilty plea before the Holmdel Municipal Court. He thereafter failed to appear on two court-ordered dates: May 3, and May 31, 1995. The matter thereafter remained dormant for the next six years.

On December 19, 2001, defendant filed an un-notarized affidavit with the Holmdel Municipal Court pleading guilty to all of the outstanding summonses. At the same time, defendant moved for the court to dismiss all fines associated with the summonses or, in the alternative, to convert all fines to jail time pursuant to N.J.S.A. 39:5-36. The Holmdel Municipal Court accepted defendant's guilty plea with respect to driving while suspended and dismissed all of the other summonses. The court imposed a $1,000 fine, $2.50 court cost, and sentenced defendant to be incarcerated for a period of ten days.

On January 15, 2002, the Holmdel Municipal Court converted the fines imposed on defendant to jail time. The municipal court ordered defendant to serve eighty-five days in the county jail, consecutive to the ten days originally imposed in connection with his sentence for driving while suspended.

On March 21, 2003, nearly two years after he pled guilty, defendant filed a pro se motion seeking to dismiss the summonses issued for driving while suspended and failure to inspect. In the notice of motion, defendant stated that he was serving a nine-year state prison sentence at the time. By letter dated April 17, 2003, the Violations Clerk of the Holmdel Municipal Court advised defendant that the municipal court judge had reviewed his "letter." According to the Clerk, the municipal court judge "requested that [defendant] pay the $2.50 fine that is outstanding. He will not dismiss it."

On October 15, 2004, defendant filed another pro se motion with the Holmdel Municipal Court requesting "a final disposition" on all pending matters. Once again, defendant referred to only the two summonses for driving while suspended and failure to register. Defendant gave the following statement in support of the motion:

I was convicted of several motor vehicle [tickets] and failure to appear. The whole time I have been in State Prison since 11/16/01 to present (2/8/07). [The municipal court judge] found me guilty. Since I can't pay due to the fact that I am in State Prison So. Wood's and won't get out till 7/12/2010.

Is there [any way] I can make these [fines] go away. Like [presenting] a motion I don't know of any and can you send me the name of any Public Defender that works for Holmdel Municipal Court, in order that I may contact him/or her for representation on my [behalf].

There is no record that the municipal court responded to, or otherwise disposed of, this motion. According to the procedural history reflected in the State's December 1, 2005 brief before us, defendant requested that the fines be reinstated. On December 12, 2005, the municipal court converted the jail time to a $1,500 fine to be paid by July 15, 2010. In violation of Rule 2:6-1(a)(1), the State's appendix does not contain supporting documentation attesting that these two events actually occurred.

The next documented event occurred on April 7, 2007. On that date, defendant filed a notice of motion to dispose of pending charges in the Holmdel Municipal Court. This time, the two summonses listed were for driving while suspended and unregistered motor vehicle. In the affidavit in support of the motion, defendant states that he was found guilty of contempt of court for failing to appear and "driving while revoke." He claimed that these two summonses should have been dismissed while he was in state prison. He concludes by emphasizing: "[A]t the time I was innocent of [these] charges because I was incarcerated in Middlesex County Workhouse. - No Brunswick, NJ and at Hudson County Jail and sent them notification (Holmdel M/C) plus these tickets are over 12 years old."

In a letter supplementing the motion documents, defendant appealed directly to the municipal court judge for clemency.

I Mr. Frank Roman have just completed an 12 month drug program and have accepted into a 18mon Rehab Program in the street. yes no longer prison, if your court can see hs way of letting me attend by granting me a little lee-way by (crediting a defendant for the time spent in custody. [Reproduced here exactly as written]

The only response received by defendant to this motion came by way of a letter from a clerk of the Holmdel Municipal Court dated June 26, 2007, stating:

The [municipal court judge] has reviewed your Motion to Dispose of Pending charges. This Motion was denied. As stated in a letter sent to you March 16, 2007 this court informed you there was a date of 7/15/2010 set up for you to appeal in our Court to establish a payment plan. In this letter it was also stated that the fines will not be eliminated. In case this previous letter has been misplaced a copy is enclosed.

Defendant's tenacity remained unaffected. On July 3, 2007, defendant filed yet another motion seeking dismissal under Rule 7:8-5. Once again, the Holmdel Municipal Court responded by way of a letter from one its clerks dated August 17, 2007. Defendant responded by filing an appeal to the Law Division on September 1, 2007. Read as liberally as possible in defendant's favor, this appeal (improperly captioned as a motion for trial pursuant to Rule 3:25-2) sought review of the actions taken by the Holmdel Municipal Court as described in detail supra.

This effort by defendant resulted in the Law Division assigning two separate municipal appeal docket numbers to defendant's case. By orders dated September 6, 2007, and October 17, 2007, both appeals were dismissed by the Law Division as untimely under Rule 3:23-2.

Against this backdrop, defendant now argues that his two municipal court convictions (driving while suspended and failure to register) should be vacated because he was denied the right to counsel. Specifically:

POINT ONE

APPELLANT'S CONVICTION MUST BE REVERSED AND THE SENTENCE IMPOSED VACATED AS WELL AS THE PENALTIES AND FINES, SINCE APPELLANT['S] RIGHTS WERE VIOLATED UNDER THE UNITED STATES CONSTITUTION (1791) SIXTH AMENDMENT AND NEW JERSEY'S CONSTITUTION ART. 1, 10 (1947).

We are satisfied that defendant's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Because this issue was not raised in any of the various applications seeking relief filed by defendant, we decline to consider it here. State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

Affirmed.

The $2.50 court cost was not included in this conversion. The municipal court also consented for defendant to serve the jail time through the work release program.

From this record, we are unable to ascertain whether the Clerk's response to defendant's motion was a routine practice or an isolated incident. In either case, it is improper for the municipal court judge to communicate his ruling on a motion in the fashion described here. The municipal court judge should have entered an order formally denying the motion. Such an order must contain a statement of reasons for the disposition ordered. R. 1:6-2(f).

This response contains the same deficiency noted in footnote 2.

(continued)

(continued)

7

A-0996-07T4

April 2, 2009