STATE OF NEW JERSEY v. ELIZABETH L. WALTON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5352-07T45352-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELIZABETH L. WALTON,

Defendant-Appellant.

_______________________________________

 

Submitted April 21, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 29-08.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel; Mr. Levow and Michael B. Mankowski, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Elizabeth L. Walton appeals from a judgment entered by the trial court on June 6, 2008, denying her petition for post-conviction relief. For the reasons that follow, we affirm.

This appeal arises from the following facts. On October 12, 2006, defendant was arrested and charged with driving while intoxicated (DWI), reckless driving and failure to maintain lane. On January 8, 2007, defendant pled guilty to the DWI charge. The other charges were dismissed on the motion of the municipal prosecutor.

The municipal court informed defendant of the sentence that would be imposed by reason of her DWI conviction. Defendant's driving privileges would be suspended for seven months. She would be fined $306 and required to spend twelve hours at a Intoxicated Drivers Resource Center. In addition, the court would impose a DWI surcharge, a Violent Crimes Compensation Board assessment, and an assessment for the Safe Neighborhood Services Fund. Defendant also would be required to pay court costs.

The municipal court stayed the sentence pending the Supreme Court's decision regarding the use of results from the Alcotest breathalyzer testing systems in DWI matters. See State v. Chun, 194 N.J. 54, 67-68 (2008) (noting that the matter had been remanded to a Special Master in January 2006 and the sentences of all first-time DWI offenders were stayed if their cases involved the use of Alcotest results). The municipal court informed defendant that once the Supreme Court decided Chun, she would "have to come back . . . and resolve everything on the record[.]"

Thereafter, defendant was charged with DWI on March 21, 2007 and April 14, 2007. In March 2008, shortly before those matters were scheduled to be heard, defendant filed a petition for post-conviction relief in the municipal court. Defendant alleged, among other things, that, when she entered her plea on January 8, 2007, she had not been advised of the enhanced penalties that could be imposed for a second, third or subsequent DWI conviction. Defendant sought an order barring the imposition of enhanced penalties mandated by N.J.S.A. 39:4-50 in the event she were to plead guilty or be found guilty of DWI in the pending matters.

The municipal court considered the petition on March 14, 2008. The municipal court denied the petition, noting in its decision on the record that since defendant's sentence had been stayed, it had anticipated that defendant would return to court after the stay was lifted. The court stated that, at that time, defendant would have been advised of the penalties that could be imposed upon a subsequent DWI conviction. The municipal court entered an order dated March 14, 2008, denying the petition.

Defendant filed a de novo appeal to the Law Division. The court considered the appeal on May 27, 2008, and placed its decision on the record on that date. The court determined that the enhanced penalties under N.J.S.A. 39:4-50 for second, third and subsequent DWI convictions must be imposed regardless of whether defendant was advised of the statutory penalties prior to commiting any subsequent violations of the statute. The court entered an order dated June 6, 2008, denying defendant's petition. This appeal followed.

On appeal, defendant argues that her right to due process of law was violated because, at the time she entered her plea to DWI on January 8, 2007, the municipal court failed to provide her with oral or written notice of the penalties that could be imposed for a subsequent DWI conviction. Defendant therefore maintains that the sentence imposed as a result of her plea is an illegal sentence that cannot be used for the purpose of imposing enhanced penalties for a second, third or subsequent DWI conviction. We disagree.

N.J.S.A. 39:4-50(a) provides among other things that "a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood" is subject to certain penalties. N.J.S.A. 39:4-50(c) further provides in pertinent part that:

[u]pon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section.

[Ibid.]

As the record reflects, the municipal court did not provide defendant with the oral or written notice required by N.J.S.A. 39:4-50(c) when she entered her guilty plea on January 8, 2007. We are nevertheless convinced that the municipal court's failure to provide defendant with notice of the enhanced penalties that could be imposed for a second, third or subsequent DWI conviction did not bar the court from imposing such penalties.

Our decision in State v. Petrello, 251 N.J. Super. 476 (App. Div. 1991) is instructive. In that case, the defendant was charged with DWI and, before that charge was resolved, the defendant was charged with and pled guilty to a subsequent DWI charge. Id. at 477. After the defendant pled guilty to the first charge, he was sentenced to enhanced penalties under N.J.S.A. 39:4-50 because it was his second DWI conviction. Ibid. The defendant argued that he was not subject to the enhanced penalties as a second offender because, "at the time of the commission of the offense leading to the second conviction, he had not then received the mandated oral advice by the court of the penalties for a second, third or subsequent violation." Id. at 478.

We rejected that contention, noting that, were we to accept the defendant's argument, we would be frustrating "the obvious legislative intent to provide enhanced penalties for each subsequent conviction of the statute." Ibid. We stated that this interpretation of the statute would "reward the defendant who intentionally or negligently fails to appear in court and subsequently violates the statute because he could not then be sentenced as a subsequent offender." Ibid. We accordingly held that

the enhanced penalties of N.J.S.A. 39:4-50 must be imposed at sentencing on entry of a second drunk-driving conviction, regardless of the order in which the violations occurred and whether or not defendant had previously been advised orally or in writing of the penalties for a subsequent violation.

[Id. at 479.]

The principle enunciated in Petrello applies in this case. The penalties mandated by N.J.S.A. 39:4-50 must be imposed upon any second, third or subsequent conviction under the DWI statute, notwithstanding the fact that, when defendant entered her plea to the initial charge of DWI, she was not informed of the enhanced penalties that could be imposed pursuant to the statute.

 
Affirmed.

(continued)

(continued)

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A-5352-07T4

May 11, 2009