STATE OF NEW JERSEY v. ELINA P. TIRADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5036-07T45036-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELINA P. TIRADO,

Defendant-Appellant.

____________________________________________________________

 

Submitted October 28, 2009 - Decided

Before Judges Graves and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Municipal Appeal

No. 2007-072.

Levow & Associates, P.A., attorneys for

appellant (Evan M. Levow, of counsel;

Michael B. Mankowski, on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (LeeAnn Cunningham,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Elina Tirado appeals from an order dated May 21, 2008, denying her petition for post-conviction relief (PCR). We affirm.

On April 5, 2001, defendant pled guilty in Fairfield Municipal Court to driving while under the influence of alcohol (DWI), in violation of N.J.S.A. 39:4-50. This was defendant's second conviction for DWI. During the plea hearing, defendant acknowledged that she drove a motor vehicle in the Township of Fairfield on November 14, 2000, after ingesting alcohol and that her breath test reading was .17. In addition, when questioned by the court, defendant testified as follows:

Q. Now, have you discussed this matter fully with your attorney?

A. Yes.

Q. Are you satisfied with his representation in all respects?

A. Yes --

Q. Has he answered all your questions to your satisfaction?

A. Yes.

Q. . . . [O]ther than what's been put forth on the record, have any promises been made or has anyone forced you to enter this guilty plea?

A. No.

Q. You're doing [this] of your own free will?

A. Yes.

Before accepting defendant's guilty plea, the municipal court judge also explained that if defendant committed a third DWI offense, the court would be required to impose a mandatory jail term and revoke her New Jersey driver's license for ten years.

More than six years later on July 30, 2007, while defendant's third DWI charge was pending, she filed a petition for PCR. The Fairfield Township Municipal Court judge denied the petition, and defendant appealed to the Law Division. When the appeal was heard on May 9, 2008, defendant's attorney argued there was "no adequate factual basis for the guilty plea." However, the Law Division judge affirmed the order of the municipal court, reasoning as follows:

Defendant's claim is premised on the insistence that defendant failed to give an adequate factual basis at the time the plea was taken. I am satisfied that the ruling in the within matter is controlled by State v. Mitchell, 126 N.J. 565 (1992). The facts in Mitchell are similar to the allegations set forth in the within matter. Specifically, defendant, Darrell Mitchell, filed a petition for post-conviction relief six-[and]-a-half years after he had been sentence[d] on his guilty plea to felony murder. His petition was based on an assertion that there was an inadequate factual basis for his plea. As the Court was in Mitchell, I am satisfied that defendant's petition is barred by Rules 3:22-12 and 3:22-4. Petitioner waited some 6 years after entering her guilty plea and sentence to file the within petition, well beyond the five-year deadline established by Rule 3:22-12. Moreover, defendant has based her petition on a ground that could and should have been raised in a timely direct appeal, in contravention of the bar imposed by Rule 3:22-4. As Justice Garibaldi state[d] in Mitchell, which clearly is applicable in the within matter: "This opinion underscores the importance of the foregoing Rules and emphasizes that this case does not present the type of exceptional circumstances that would justify their relaxation[.]" Id. at 572.

I am also satisfied that on the merits, there was a sufficient factual basis for the defendant's plea in the within matter. "As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." Id. at 577. Here, petitioner was represented by counsel, and when specifically asked by the court if her blood alcohol level was above .17, she answered in the affirmative.

On her appeal to this court, defendant presents the following arguments:

POINT I

PETITIONER'S POST CONVICTION RELIEF PETITION MUST BE GRANTED BECAUSE THE MUNICIPAL COURT FAILED TO ELICIT AN ADEQUATE FACTUAL BASIS FOR PETITIONER'S GUILTY PLEA.

POINT II

BASED ON STATE V. TAIMANGLO, [ 403 N.J. Super. 112 (App. Div. 2008), certif. denied, 197 N.J. 477 (2009),] [THE] FAILURE OF THE MUNICIPAL COURT TO ADVISE MS. TIRADO OF HER RIGHT OF APPEAL FOLLOWING HER GUILTY PLEA IS A VIOLATION OF DUE PROCESS RIGHTS AND WARRANTS VACATING HER PLEA, OR IN THE ALTERNATIVE, A BAR AGAINST USING THE CONVICTION TO ENHANCE DEPRIVATION OF LIBERTY IN A SUBSEQUENT DWI CONVICTION.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Fullilove's written decision on May 21, 2008. The record fully supports his determination that defendant failed to establish excusable neglect or other sufficient circumstances to justify relaxation of the five-year time limitation for filing a PCR petition under Rules 3:22-12 and 7:10-2(b)(2). Moreover, we agree that defendant provided an adequate factual basis for her DWI guilty plea when she appeared with counsel in the Fairfield Municipal Court on April 5, 2001. Defendant's arguments are without sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.

(continued)

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A-5036-07T4

January 11, 2010