STATE OF NEW JERSEY v. DOUGLAS M. HIGGINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3338-08T43338-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOUGLAS M. HIGGINS,

Defendant-Appellant.

________________________________________________________________

 

Argued October 19, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 41-08.

W. Curtis Dowell argued the cause for appellant (Mr. Dowell, attorney; Mr. Dowell and Robert L. Cerefice, of counsel and on the brief).

Thomas Cannavo, Senior Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Cannavo, on the brief).

PER CURIAM

Defendant Douglas M. Higgins appeals from two Law Division orders. The first is a March 13, 2008 order that granted the State's motion to set aside a May 17, 2007 order of the Manchester Township municipal court, in which the municipal court vacated defendant's March 17, 1999 guilty plea and conviction on a driving while intoxicated (DWI) charge. The second was a January 29, 2009 Law Division order that denied his petition for post-conviction relief (PCR). In that petition, defendant argued that his newly-reinstated March 17, 1999 Manchester Township DWI conviction should be vacated because he received ineffective assistance of counsel. We reject defendant's contention that the State's appeal from the May 17, 2007 municipal court order was untimely and should not have been considered. We likewise reject his contention that the Law Division erred when, on January 29, 2009, it rejected his claim that trial counsel provided ineffective assistance in connection with his March 17, 1999 DWI conviction in Manchester Township. We affirm.

I.

On January 12, 1993, defendant was convicted of driving while intoxicated in Toms River. Nearly six years later, on December 26, 1998, defendant was arrested in Manchester Township, this time for both driving while intoxicated, N.J.S.A. 39:4-50, and refusal to submit to a breath examination, N.J.S.A. 39:4-50.4a. On March 17, 1999, while represented by L. Gilbert Farr, defendant pled guilty to the December 26, 1998 Manchester Township DWI; the refusal charge was dismissed. Defendant did not appeal that March 17, 1999 DWI conviction, and took no action concerning it, until January 11, 2007, when he filed a petition for post-conviction relief (PCR) that we discuss below. In 2000, Farr was suspended from the practice of law, and was eventually disbarred in 2004 for, among other things, gross neglect of client matters, lack of diligence, failure to communicate with clients, commission of a criminal act that reflected adversely on a lawyer's honesty or fitness, and conduct prejudicial to the administration of justice. In re Farr, 178 N.J. 458-59 (2004).

On November 18, 2006, defendant was arrested for the third time on a charge of driving while intoxicated, this time in Toms River. While the November 18, 2006 DWI charge was still pending, defendant filed a PCR petition in Manchester Township municipal court seeking to vacate the March 17, 1999 DWI conviction he had incurred in Manchester Township while Farr represented him. Defendant asserted in his PCR petition that Farr did not discuss the case with him, did not provide him with adequate legal advice, and did not file an appeal of the March 17, 1999 conviction despite promising to do so. Defendant also asserted that Farr never provided him with the discovery or reviewed with him its contents, never advised him of the ramifications of entering a guilty plea, and incorrectly advised him that his license would be suspended for only six months, when, in fact, because it was defendant's second offense, his license was suspended for a period of two years. For those reasons, defendant asserted he was entitled to an order vacating his March 17, 1999 guilty plea and conviction.

The May 17, 2007 PCR proceeding in the Manchester Township municipal court is notable for its brevity and the paucity of the judge's findings of fact. The court's findings of fact and conclusions of law were limited to the following:

All right, this matter comes before the [c]ourt by way of [d]efense [c]ounsel's [m]otion for post-conviction relief having to do with a plea which was apparently entered in 1999. I have reviewed [defendant's] certification. Based upon the information contained therein, I do believe that the relief requested should be granted within reasonable, limited circumstances.

It's my understanding the State has no objection to the relief sought. In addition, you have also advised that [the municipal prosecutor] has discussed this matter with the arresting officer, who also has no objection [to] the relief sought.

Accordingly, I am going to grant the [m]otion for Post-Conviction Relief with regard to the [guilty] plea entered on 006842, [the DWI charge], as well as the dismissal that was entered on 006843[, the refusal charge].

The municipal prosecutor did not enter his appearance on the record, and was apparently not in the courtroom when these brief proceedings occurred. Without addressing the manifest violation of the five-year time bar for the filing of a PCR petition in municipal court, see R. 7:10-2, without eliciting a factual statement from defendant admitting his guilt to the refusal charge, and without making any findings on the quality of the representation Farr had provided seven years earlier, the municipal court vacated defendant's March 17, 1999 DWI conviction and dismissed the underlying DWI summons. With defendant's consent, the municipal court judge then reinstated the accompanying previously-dismissed refusal charge from 1999 and entered a judgment of conviction on that charge.

In sentencing defendant on the now-reinstated 1999 refusal charge, the municipal court judge gave defendant credit for the two-year license suspension that he had already served as a result of his March 17, 1999 guilty plea on the DWI charge. The fines and penalties that defendant had paid in connection with the 1999 DWI were also transferred to the refusal charge, resulting in defendant incurring no driver's license suspension and no monetary penalties as a result of the May 17, 2007 PCR proceeding. Documents filed with the Motor Vehicle Commission (MVC) reflected this disposition.

A few days later, on May 23, 2007, defendant appeared in the Toms River municipal court where he pled guilty to the November 18, 2006 Toms River DWI charge that was pending when he filed his PCR petition in Manchester Township. Because the March 1999 conviction had now been vacated, and more than ten years had elapsed since his 1993 DWI conviction, defendant was sentenced as a first-time offender by virtue of the step down provision of N.J.S.A. 39:4-50(a)(3).

Following these proceedings, the MVC apparently took note of the unusual nature of the May 17, 2007 Manchester Township proceedings. The MVC, in turn, notified the Attorney General's office of what had transpired, and on June 18, 2007, that office notified the Ocean County Prosecutor's Office that defendant's March 17, 1999 DWI in Manchester Township had been vacated by virtue of the May 17, 2007 PCR proceeding in the Manchester Township municipal court, and that defendant had been sentenced as a first-time DWI offender on May 23, 2007 in Toms River as a result.

On August 27, 2007, after ordering and receiving the relevant transcripts, the State moved to consolidate the already-concluded May 17, 2007 Manchester Township and the May 23, 2007 Toms River proceedings, pursuant to Rule 7:8-4, "for purposes of the State's motioning to the Presiding Municipal Court Judge to correct the illegal sentences." Because both proceedings had already been concluded, Judge Grasso, on September 20, 2007, denied the State's consolidation motion. The judge did, however, authorize the State to move for leave to file an appeal of the May 17, 2007 Manchester Township municipal court order out-of-time.

On October 25, 2007, in keeping with Judge Grasso's authorization, the Ocean County Prosecutor's Office filed a motion to vacate the May 17, 2007 Manchester Township PCR order, arguing that the Manchester and Toms River sentences were illegal sentences that may be corrected at any time. The State also asserted that because the Manchester Township proceedings were rife with irregularities and errors, the State should be permitted to file an appeal from the May 17, 2007 PCR order even if such appeal was out-of-time. The State also maintained that it should not be held to the twenty-day filing deadline of Rule 3:23-2 because it had not been notified of the May 17, 2007 Manchester Township municipal court proceedings until June 18, 2007, at which time it promptly ordered a transcript.

In opposition, defendant argued that the State's appeal from the May 17, 2007 order granting his PCR petition should be barred as out-of-time. He also maintained that the relief he had obtained by virtue of the May 17, 2007 order had caused jeopardy to attach, thereby barring the State's appeal. Rejecting defendant's contentions, Judge Grasso concluded that the May 17, 2007 proceedings in the Manchester Township municipal court were plagued with so many irregularities as to render the grant of PCR, and the resulting vacating of the 1999 DWI guilty plea, illegal. Judge Grasso signed a confirming order on March 13, 2008. Judge Grasso's order specifically vacated the May 17, 2007 Manchester Township PCR proceedings and reinstated the original March 14, 1999 disposition, thereby reviving defendant's 1999 DWI conviction. Judge Grasso afforded defendant thirty days in which to again file a PCR petition in the Manchester Township municipal court, this time on notice to the Ocean County Prosecutor's Office, and before a different municipal court judge.

Defendant filed a motion for leave to appeal, which was denied by this court. On June 19, 2008, he re-filed his PCR petition with the Manchester Township municipal court, again arguing that because Farr provided ineffective assistance in connection with defendant's 1999 Manchester Township DWI conviction, he was entitled to an order vacating that conviction. By order of August 27, 2008, Brant S. Collins, P.J.M.C., denied defendant's PCR petition, concluding that defendant failed to establish that the outcome would have been different with an attorney other than Farr representing him.

Defendant appealed to the Law Division from the municipal court's August 27, 2008 denial of his renewed PCR petition. On January 29, 2009, in a trial de novo, the Law Division denied the PCR petition. Specifically, Judge Hodgson concluded that the State's August 29, 2007 appeal of the May 17, 2007 PCR was timely; defendant's own May 2007 PCR filing was time-barred because it was filed more than five years after the March 17, 1999 conviction; and defendant had presented no circumstances warranting a relaxation of the five-year time bar contained in R. 7:10-2. Judge Hodgson granted a stay of defendant's sentence pending an appeal to this court.

On appeal, defendant raises the following claims:

I. THE MAY 17, 2007 ADJUDICATION OF NOT GUILTY IS FINAL AND THUS THE FIFTH AMENDMENT DOUBLE JEOPARDY CLAUSE AND ARTICLE I, PARAGRAPH II OF THE NEW JERSEY STATE CONSTITUTION APPLY, PRECLUDING THE STATE FROM APPEALING SAID FINDING

II. THE STATE IS BARRED FROM FILING THE DE FACTO APPEAL OF [THE MAY 17, 2007] GRANT OF POST CONVICTION RELIEF AND OF [THE] NOT GUILTY ADJUDICATION ON THE DRUNK DRIVING CHARGE

III. THE COURT BELOW ERRED ITS [sic] RULING THAT THE DEFENDANT'S ATTORNEY L. GILBERT FARR WAS NOT INEFFECTIVE IN HIS REPRESENTATION OF THE DEFENDANT ON THE MATTER HEARD ON MARCH 17, 1999

II.

We turn first to Point I. There defendant argues that he had a justifiable expectation of finality in the May 17, 2007 PCR order that dismissed his 1999 DWI conviction, and therefore Judge Grasso's order of March 12, 2008, which vacated the favorable order of May 17, 2007, violated the constitutional protection against double jeopardy. For that reason, he maintains that the March 12, 2008 order must be reversed and the not guilty disposition entered in the Manchester Township municipal court on May 17, 2007 reinstated. The State objects, arguing that Judge Grasso properly permitted the State to appeal the May 17, 2007 order of the Manchester Township municipal court. In particular, the State asserts that because Judge Grasso's order merely reinstated a finding of guilt, and did not authorize a new prosecution after an acquittal on the merits, the constitutional protection against double jeopardy was not offended.

The double jeopardy clause provides, "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const. art. I, 11. The double jeopardy clause guarantees the "State shall not be permitted to make repeated attempts to convict the accused, 'thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'" State v. Barnes, 84 N.J. 362, 370 (1980) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199 (1957)). The clause serves three purposes:

(i) It protects against a second prosecution of an offense after acquittal of the same offense.

(ii) It protects against a second prosecution of an offense after conviction of the same offense.

(iii) It protects against multiple punishments for the same offense.

[Id. at 370 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969)).]

The double jeopardy clause, however, has its limits. Among the instances where that constitutional protection is inapplicable, two are present here. First, because the clause protects against "successive prosecution," its provisions are "not offended" when "reversal on appeal would merely reinstate the jury's verdict." United States v. Mundt, 846 F.2d 1157, 1160 (8th Cir. 1988); see also United States v. Martin Linen Supply Co., 430 U.S. 564, 569-70, 97 S. Ct. 1349, 1354, 51 L. Ed. 2d 642, 650 (1977) (holding that "where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended").

In Barnes, the Court held that the reinstatement of a previously-vacated conviction does not implicate double jeopardy concerns. Barnes, supra, 84 N.J. at 369. The defendants had pled guilty to ordinance violations in the municipal court; however, on appeal to the County Court, their convictions were overturned because the ordinance in question was found to be unconstitutionally vague and overbroad. Id. at 365-66. The Court held that the State could appeal the reversal of the defendants' convictions, without such an appeal violating the protection against double jeopardy. Id. at 369. The Court reasoned that "a successful government appeal of the county court determination could not subject them to successive prosecution or multiple punishment but only . . . reinstatement of their guilty pleas. Hence, the double jeopardy clause does not present any impediment to the State's appeal in those cases." Ibid.

Like the defendants in Barnes, defendant in this case pled guilty in the municipal court and his conviction was later vacated. Thus, defendant was subject only to a reinstatement of his original guilty plea and conviction. Applying the Court's reasoning in Barnes, double jeopardy was not offended by the State's appeal of defendant's PCR. The State's appeal did not subject defendant to further prosecution, nor did it represent a repeated attempt to convict him. The State's appeal merely reinstated defendant's prior conviction. Thus, the constitutional protection against double jeopardy was not violated.

We turn to the second reason why the State's appeal was not barred by principles of double jeopardy: defendant had no justifiable expectation of finality in the 2007 Manchester Township municipal court PCR disposition. Specifically, "a defendant has no expectation of finality in a sentence where the State has a right to appeal, at least until all avenues of appeal have been exhausted." State v. Faunce, 244 N.J. Super. 499, 502 (App. Div. 1990). Here, defendant is not entitled to assert a reasonable expectation of finality in the May 17, 2007 disposition of his 1999 Manchester Township charges because the May 17, 2007 disposition was the result of a PCR, which is appealable by the State. Pursuant to Rule 2:3-1(b)(4), the State may appeal "a judgment in a post-conviction proceeding collaterally attacking a conviction or sentence." Because defendant had attacked his own convictions by filing a PCR petition and because the grant of PCR was appealable by the State, defendant had, or should have had, no expectation that the PCR disposition was final. As such, the double jeopardy clause is not implicated. We thus reject the double jeopardy claim defendant advances in Point I.

III.

Next, defendant argues that even if double jeopardy protections do not bar the State from appealing the May 2007 grant of PCR, the State's appeal was untimely and therefore barred. Specifically, defendant asserts that Rule 3:23-2 requires the State to file an appeal from a post-judgment order entered by a municipal court within twenty days after the entry of such judgment. Here, the judgment in question was entered on May 17, 2007, and the State did not file its appeal until August 29, 2007. Thus, the State filed its appeal more than three months after the judgment in question, rather than within the twenty-day period required by Rule 3:23-2. Defendant further argues that the twenty-day time period of that Rule is not enlargeable. In support of his non-enlargeability argument, he points to Rule 1:3-4, which provides that "[n]either the parties nor the court may, however, enlarge the time specified by . . . R. 3:23-2."

Defendant's argument, however, ignores the language that immediately follows: "(appeals to the Law Division from judgments of conviction in courts of limited criminal jurisdiction.)" Thus, as is evident from the parenthetical language in Rule 1:3-4, the Court has chosen to preclude an expansion of the twenty-day time limit only when a defendant appeals to the Law Division from a judgment of conviction entered in the municipal court. Stated differently, Rule 1:3-4 has no effect on the timing of an appeal by the State from a post-conviction proceeding in the municipal court. Notably, the court made no reference in the non-enlargeability language of Rule 1:3-4 to the portion of Rule 3:23-2 that authorizes the State to appeal from a "final post-judgment order entered by a court of limited jurisdiction." Instead, the Court limited the prohibition on enlargement of time to Rule 3:23-2 appeals "from judgments of conviction in courts of limited criminal jurisdiction."

What occurred in this case was not an appeal by a defendant from a judgment of conviction. It was an appeal by the prosecutor from an order granting PCR. Therefore, Rule 1:3-4, by its terms, is not applicable in this situation, and the general rule of relaxation in the interest of justice, Rule 1:1-2, applies. Rule 1:1-2 authorizes such relaxation to promote "a just determination" or "fairness in administration."

We thus must decide whether Judge Grasso mistakenly exercised his discretion when he permitted the relaxation of the Rule 3:23-2 twenty-day time deadline. The State urges us to uphold that relaxation, contending that because the Manchester Township municipal prosecutor failed to notify the Ocean County Prosecutor's Office of the granting of the PCR, the late filing by the Prosecutor's Office should be excused. We cannot agree that the State should be permitted to compartmentalize itself in this fashion; the Attorney General, the county prosecutor, and the municipal prosecutor are all "the State." Thus, we are not prepared, as a basis for applying the Rule 1:1-2 general rule of relaxation, to rely solely on the fact that different State entities learned at different times of what had occurred in Manchester Township. That factor may, however, be considered among others.

Those other factors include: the prompt action by the Ocean County Prosecutor's Office in ordering the transcript as soon as it learned in June 2007 of what had occurred in the Manchester Township municipal court; the lack of any prejudice to defendant arising from the delay; the relatively minor length of the deviation from the twenty-day limit; and the potential for promotion of the "just determination" that Rule 1:1-2 is designed to achieve.

This last factor warrants further discussion. The May 2007 PCR proceedings in the Manchester Township municipal court were highly irregular. The municipal court judge made no findings of fact or conclusions of law, instead referring in a conclusory fashion to the certification he had received from defendant. He never explained what conduct by Farr had specifically resulted in ineffective assistance of counsel, nor did he address how such deficiencies affected the result, which he was required to do. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Nor did the municipal court judge ever address the five-year time bar contained in Rule 7:10-2 that is applicable to such proceedings. As is evident, the five-year time bar should have been addressed as a threshold matter because the conviction in question occurred on March 17, 1999 and defendant did not file his PCR petition in the Manchester Township municipal court until nearly eight years later on January 11, 2007. Permitting the State to address these irregularities in its appeal advanced the Rule 1:1-2 goals of "a just determination" and "fairness in administration."

For all of these reasons, we conclude that Judge Grasso properly exercised his discretion when he permitted the State to appeal from the May 17, 2007 granting of the PCR even though the State's appeal was out-of-time by approximately two and one-half months. We thus reject the claim defendant advances in Point II.

IV.

In Point III, defendant asserts that the Law Division erred when, on January 29, 2009, it rejected his renewed PCR filing, in which he had asserted that Farr provided ineffective assistance in 1999. In particular, he asserts that the judge erroneously concluded that: 1) Rule 7:10-2 rendered defendant's 2007 PCR petition, as well as his renewed 2008 PCR petition, time-barred; and 2) despite Farr's ultimate disbarment, defendant failed to establish that the representation Farr provided was defective, and led to a result that would otherwise have been different. Defendant's contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Hodgson in his comprehensive and well-reasoned oral opinion of January 29, 2009.

Suffice it to say, we agree with Judge Hodgson's conclusion that the record strongly suggests that the issue of the validity of defendant's 1999 guilty plea only became a matter of concern when, in 2007, he was faced with the enhanced penalties attendant to a third conviction. As the State correctly argues, even if defendant did not know that he was required to file a PCR petition within five years of his 1999 conviction, such lack of knowledge does not constitute excusable neglect sufficient to relax the five-year time bar. State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.) (holding that defendant's mistaken belief that the five-year time bar had begun later than it actually had was an insufficient basis for relaxation of the time requirement), certif. denied, 145 N.J. 373 (1996); State v. Dillard, 208 N.J. Super. 722, 728 (App. Div. 1986) (holding that defendant's lack of knowledge about the five-year time bar does not constitute excusable neglect).

Moreover, as Judge Hodgson correctly concluded, the mere fact that Farr was disbarred for neglect of client matters does not, standing alone, establish that the representation Farr provided to defendant in 1999 was defective. Nor did defendant establish, as Strickland v. Washington requires, that any such deficient representation, if the representation was indeed deficient, prejudiced his defense or caused a result that would not otherwise have occurred. We thus reject the claim defendant advances in Point III.

Affirmed. The stay of sentence imposed in the Law Division on January 29, 2009 is hereby dissolved.

 

In re Farr, 165 N.J. 540 (2000).

In a certification filed months after the May 2007 PCR was concluded, the municipal prosecutor certified that prior to the May 17, 2007 hearing, the municipal court judge conferenced the matter with the municipal prosecutor and defense counsel. During that conference, the municipal court judge explained that in light of his knowledge of Farr's conduct and ultimate disbarment, he was inclined to grant the relief requested, by vacating defendant's 1999 DWI conviction and restoring the matter to the active trial list. The municipal prosecutor also certified that after discussing the proofs with the arresting officer, he had advised the municipal court judge that due to the length of time that had transpired since the December 26, 1998 arrest, the State was unable to prove all elements of the DWI beyond a reasonable doubt. The municipal prosecutor agreed to request a directed verdict of dismissal on the DWI charge, and defendant agreed to plead guilty to the refusal charge.

None of these allegations are reflected in the two-page transcript of the May 17, 2007 Manchester Township PCR proceeding.

N.J.S.A. 39:4-50(a)(3) provides that if more than ten years has elapsed between a defendant's first and second DWI convictions, the defendant should be sentenced as a first-time offender.

Rule 3:23-2 provides that "the defendant or State, if aggrieved by a final post-judgment order entered by a court of limited jurisdiction shall appeal therefrom by filing a notice of appeal with the clerk of the court below within 20 days after the entry of judgment. . . ."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

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A-3338-08T4

October 29, 2009