STATE OF NEW JERSEY v. NICOLA J. CIARLANTE

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5245-08T4



STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

NICOLA J. CIARLANTE,

     Defendant-Appellant.
___________________________________

         Submitted April 12, 2010 - Decided    May 13, 2010

         Before Judges Reisner and Chambers.

         On appeal from the Superior Court of New
         Jersey, Law Division, Camden County,
         Municipal Appeal No. 64-08.

         Levow & Associates, P.A., attorneys for the
         appellant (Evan M. Levow, of counsel and on
         the brief; Kevin Leckerman, on the brief).

         Warren W. Faulk, Camden County Prosecutor,
         attorney for the respondent (Jason Magid,
         Assistant Prosecutor, of counsel and on the
         brief).

PER CURIAM

     In this petition for post-conviction relief, defendant

Nicola J. Ciarlante seeks to overturn his guilty plea to the

charge of driving while intoxicated, N.J.S.A. 39:4-50.   His

application was denied by both the municipal court and Law

Division.    We affirm for the reasons set forth by those courts.

    On June 18, 2001, in the Municipal Court of the Township of

Winslow, defendant, who was represented by counsel at the time,

pled guilty to the charge of driving while intoxicated.     Under

the terms of his sentence, he lost his driving privileges for a

period of two years; he was required to serve forty-eight hours

in the Intoxicated Drivers' Resource Center and to perform

thirty days of community service; and a $500 fine and other

monetary assessments were imposed.

    On August 27, 2008, over seven years after his guilty plea,

and while faced with a subsequent charge of driving while under

the influence, defendant filed this petition for post-conviction

relief in the municipal court.    Although defendant did not

challenge the factual basis for the plea, he argued that he had

not been advised of his right to trial, the right to cross-

examine witnesses, and his right to remain silent.    The

municipal court rejected these arguments noting that routinely

at the beginning of the court session these rights are

explained.   Defendant's transcript did not contain the opening

of the June 18, 2001, municipal court proceedings.

    Defendant appealed to the Law Division.    The Law Division

judge denied the petition for post-conviction relief on the




                                                            A-5245-08T4
                                 2

basis that it was filed out of time, relying on Rule 3:22-12(a)

and Rule 7:10-2(g)(2), which require that a petition for post-

conviction relief be filed within five years of the judgment or

sentence absent a showing of excusable neglect.    He further

concluded that defendant had not shown excusable neglect in

failing to meet the five year filing deadline under these rules.

Defendant then moved for reconsideration, and that motion was

also denied by the Law Division judge.

    In his appeal to this court, defendant raises the following

point:

           APPELLANT WAS NOT PROPERLY ADVISED OF HIS
           CONSTITUTIONAL RIGHTS BEFORE HE ENTERED A
           PLEA OF GUILTY TO VIOLATING N.J.S.A. 39:4-50
           AND, THEREFORE, THE GUILTY PLEA SHOULD HAVE
           BEEN VACATED.

    Defendant argues that the municipal judge failed to advise

him that by pleading guilty, he was waiving his right to a jury

trial and his right to confront accusers.    He contends that the

municipal court also failed to advise him of his right to appeal

to the Law Division.

    After a careful review of the record and the arguments of

counsel, we conclude that the issues raised in this appeal are

without sufficient merit to warrant discussion in a written

           R. 2:11-3(e)(2).   We note that defendant's post-
opinion.

conviction relief petition to vacate his plea is untimely




                                                            A-5245-08T4
                                 3

because it was not filed within five years of the judgment or

sentence as required by Rule 7:10-2(g)(2).

    Defendant seeks to circumvent the untimeliness of his

application by arguing that due to these failures, his sentence

is illegal, and hence, under Rule 7:10-2(b)(1), it may be

appealed at any time.    However, the circumstances here do not

give rise to a claim of an illegal sentence.     An illegal

sentence occurs when either: (1) the sentence "exceed[s] the

penalties authorized by statute for a specific offense," or (2)

the sentence "was not imposed in accordance with law."     State v.

Murray, 
162 N.J. 240, 246-47 (2000).     This second category

includes sentences with a disposition not authorized by the

code, sentences where defendant fails to satisfy a precondition,

and sentences that fail to include a required period of parole

ineligibility.    Id. at 247.   None of these circumstances are

present here.

    Further, defendant has not made a showing of exceptional

circumstances and "injustice" that would allow us to entertain

his application for post-conviction relief despite its

untimeliness.    See State v. Mitchell, 
126 N.J. 565, 580 (1992)

(discussing the relaxation of the time periods in Rule 3:22-12

upon a showing of "exceptional circumstances" when determining

if there has been an injustice sufficient to warrant relaxation




                                                              A-5245-08T4
                                  4

of the time limits).   Defendant has presented no pressing

justification for his delay.   He has failed to sustain his

burden of establishing that his plea was not knowingly and

voluntarily made.   He does not claim that he is innocent of the

charge.   Thus, he has made no showing that injustice will occur

if his plea is allowed to stand.1

     Finally, we note that the municipal court's failure to

advise defendant of his right to appeal to the Law Division may

not be raised by defendant once the five years allowed for a

                                                   See State v.
petition for post-conviction relief has expired.

Molina, 
187 N.J. 531, 536 (2006) (providing that a defendant who

was not advised of his right to appeal may appeal as within time

provided the appeal is filed within five years of the date of

sentencing).

     Affirmed.


1
  Even if defendant were able to overcome the untimeliness
argument, he still would have to show "manifest injustice" in
order to vacate his plea after sentencing. State v. Slater, 
198 N.J. 145, 156 (2009). The court would have to take into account
the following four factors when deciding whether to allow the
plea to be withdrawn: "(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.




                                                          A-5245-08T4
                                5