STATE OF NEW JERSEY v. HEE S. BAE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3778-08T43778-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HEE S. BAE,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 19, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-02-09.

Greggory M. Marootian, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

On December 29, 1995, defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50. He entered a guilty plea to that charge on March 7, 1996 and was sentenced as a first offender. Thereafter, defendant entered guilty pleas to a second DWI charge in 2003 and a third DWI charge in 2008. This PCR petition concerns defendant's guilty plea to his second DWI charge.

In this case, defendant was issued summonses for driving while intoxicated, N.J.S.A. 39:4-50, tailgating, improper passing, and refusal to submit to a breathalyzer. On January 2, 2003, defendant entered a guilty plea to the DWI charge while represented by counsel pursuant to a plea agreement in which the remaining charges were dismissed or merged. The municipal court reviewed the consequences of the guilty plea to a second DWI offense with defendant and asked him if he wanted to plead guilty. Then, defendant provided a factual basis for the plea in responding to questions from his attorney and the court.

Q. [By Counsel] Mr. Bae, on October 16th[,] 2001, were you driving your motor vehicle in a southbound direction on Kinderkamack Road proceeding from Emerson into Oradell?

A. Yes.

Q. At the intersection of Soldier Hill Road?

A. Yes.

Q. And at that time were you driving under the influence of alcoholic beverages?

A. Yes.

Q. And were you stopped by a police officer?

A. Yes.

. . . .

THE COURT: Where had you been drinking? Where had you been drinking?

MR. BAE: In Palace Stadium (phonetic) in Cliffside Park.

THE COURT: And how much had you drunk?

MR. BAE: About six shots of [S]cotch.

THE COURT: Over what -

MR. BAE: - along with dinner.

THE COURT: -over what period of time?

MR. BAE: I believe within three to four hours.

THE COURT: And how long after you finished your last drink were you stopped in Oradell by Officer Savino?

MR. BAE: About hour and a half.

THE COURT: You're satisfied that you were under the influence of alcohol while you were operating your vehicle?

MR. BAE: At the time, yes, Your Honor.

Defendant was sentenced for his second DWI offense to a two year suspension of driving privileges, 30 days community service, installation of an ignition interlock device for two years, 48 hours in Intoxicated Drivers Resource Center, $750 fine and appropriate fees and assessments.

In October 2008, defendant filed a PCR petition pursuant to Rule 7:10-2, seeking to withdraw his guilty plea. In his petition, he alleged that his guilty plea was not knowing and voluntary. The municipal court denied the petition, stating that it was "satisfied from [its] review of the transcript that Mr. Bae's guilty plea - presented in Court in the presence of capable and experienced counsel - was voluntary and intelligent." In addition, the court noted that the petition was untimely as filed more than five years after conviction and found that the PCR petition failed to allege facts sufficient to establish the "good cause" required under Rule 7:10-2 to permit relief.

On appeal, the Superior Court, Law Division, denied his petition, finding that his guilty plea was voluntary and his petition was time-barred.

In this appeal, defendant alleges that his guilty plea was not voluntary because he was never advised of his right to a trial by his attorney or the court and that he did not properly waive that right prior to entering his guilty plea.

In his petition, defendant alleged that he did not want to plead guilty; that he wanted to go to trial to fight the charges but his attorney told him "there was nothing that we could do, and that we had to enter a 'plea bargain.'" Although he stated that he "wholeheartedly disagree[s] with the statements in the police reports, and the transcript regarding [his] driving (tailgating and going over the double yellow lines)[,]" his disagreement only addresses charges that were dismissed.

Defendant's petition was not filed within five years of his conviction. Rule 3:22-12(a) provides in pertinent part:

No . . . petition [for post conviction relief] shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

This time limit should be relaxed "only under exceptional circumstances." State v. Mitchell, 126 N.J. 565, 580 (1992).

Defendant seeks to avert the five-year time limit for the filing of his petition by arguing that his failure to file his petition was due to excusable neglect. There are, however, two fatal flaws in defendant's request to relax the time-bar. First, his only reason for failing to file the petition within time is that he was unaware that he had the right to withdraw the guilty plea until he retained present counsel in May 2008. Second, even now, he has not denied that he was guilty of the offense to which he pled guilty.

"The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To be entitled to a relaxation of the Rule based upon excusable neglect, the petitioner must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." Mitchell, supra, 126 N.J. at 576. To determine whether a defendant has asserted a sufficient basis for relaxing the Rule's time restraints, we "should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Afanador, 151 N.J. 41, 52 (1997); Norman, supra, 405 N.J. Super. at 159. The petitioner must "articulate[] facts that demonstrate a serious question about his or her guilt or the propriety of the sentence imposed and . . . provide factual evidence to support it." Mitchell, supra, 126 N.J. at 580. "In other words, a court should determine that the procedural rule as applied is unjust only when a significant liberty interest is at stake and the petitioner has offered something more than a bare allegation that that is so." Ibid.

Defendant's petition fails to articulate facts that demonstrate a serious question about his guilt and merely alleges a lack of knowledge to excuse his failure to act on a timely basis. He has, therefore, failed to show that an application of the time-bar here is unjust. The result is no different if we adopt defendant's approach and consider his request within the context of a simple motion to withdraw his guilty plea.

Rule 3:9-2 requires that a defendant who pleads guilty must do so voluntarily, knowingly, and intelligently. If this standard is not met, as defendant alleges here, a defendant may move to withdraw his plea pursuant to Rule 3:21-1, which provides in pertinent part:

A motion to withdraw a plea of guilty . . . shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice.

Following sentencing, the court gives more weight to the State's interest in finality and applies a more stringent standard to a defendant's motion to withdraw his guilty plea. State v. McQuaid, 147 N.J. 464, 485 (1997).

Timing matters as to the strength of the reasons proffered in favor of withdrawal. As the standards in Rules 3:9-3(e) and 3:21-1 suggest, efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons. . . . In general, the longer the delay in raising a reason for withdrawal, or asserting one's innocence, the greater the level of scrutiny needed to evaluate the claim.

[State v. Slater, 198 N.J. 145, 160 (2009).]

 
Plainly, the passage of more than five years after defendant's conviction warrants a high level of scrutiny in evaluating his claim. In Slater, the Court held that four factors are to be considered and balanced in evaluating motions to withdraw a guilty plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 157-58. Defendant entered his guilty plea pursuant to a plea agreement and did not ask to withdraw his plea until after the time period for filing a PCR petition expired. Under these circumstances, we find his failure to assert a colorable claim of innocence to be fatal to his request, rendering a discussion of the remaining factors unnecessary.

Affirmed.

Defendant also filed a PCR petition regarding his first DWI conviction. His appeal from the denial of that petition is addressed in a separate opinion. State v. Bae, A-3777-08.

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A-3778-08T4

June 7, 2010