STATE OF NEW JERSEY v. MICHELLE PYNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2860-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHELLE PYNE,

Defendant-Appellant.

_______________________________________

December 28, 2011

 

Argued November 9, 2011 Decided

 

Before Judges Messano and Yannotti.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-065.

 

Anthony J. Iacullo argued the cause for appellant (Iacullo Martino, L.L.C., attorneys; Mr. Iacullo, of counsel; Joshua H. Reinitz, on the brief).

 

Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the brief).

PER CURIAM

Defendant Michelle Pyne appeals from an order entered by the Law Division on January 3, 2011, which denied her petition for post-conviction relief (PCR). We affirm.

On March 1, 2002, defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; and operating a motor vehicle while knowingly possessing a controlled dangerous substance (CDS), N.J.S.A. 39:4-49.1. Defendant also was charged with certain motor vehicle violations, specifically speeding and failure to stop or yield. On March 15, 2002, defendant was again charged with DWI.

On June 27, 2002, defendant pled guilty in the municipal court to the March 1, 2002 DWI violation. Defendant said that she had been driving while under the influence of alcohol. The assistant prosecutor noted that, at the relevant time, the readings of defendant's blood alcohol concentration (BAC) were .21 and .22. The State agreed to dismiss the charges for speeding and failing to stop or yield.

The municipal court sentenced defendant on the CDS charge to twelve months of probation. On the DWI charge, the court ordered the suspension of defendant's license for six months, required that she attend programs at an Intoxicated Driver Resource Center, and imposed certain monetary penalties.

At the June 27, 2002 proceedings, defendant also pled guilty to the March 15, 2002 DWI charge. She stated that she had been driving under the influence of alcohol. The assistant prosecutor noted that, at the relevant time, the readings of defendant's BAC were .18 and .18.

The municipal court ordered the suspension of defendant's driving privileges for two years, required defendant to perform thirty days of community service and imposed a ten-day period of incarceration. The court placed defendant on probation for one year, and required that she attend meetings to address her use of alcohol. In addition, the court imposed certain monetary penalties.

In 2010, defendant was charged with DWI for the third time. She thereafter filed a PCR petition seeking to set aside her 2002 DWI convictions on the ground that she had not provided the municipal court with an adequate factual basis for her pleas. The municipal court denied the petition. In a decision placed on the record on September 9, 2010, the court found that the petition was barred by Rule 7:10-2(b)(2) because it had not been filed within five years after entry of the judgment of conviction, and defendant failed to show excusable neglect for the late filing.

Defendant filed an appeal seeking de novo review in the Law Division. The trial court considered the matter on January 3, 2011, and placed a decision on the record that day. The court rejected defendant's contention that the five-year time limit in Rule 7:10-2(b)(2) should be relaxed because the municipal court judge had not advised defendant of her right to appeal when she was sentenced in 2002, and because her attorney died a short time after the sentencing.

In its decision, the Law Division judge noted that the municipal court's failure to advise defendant of her right to appeal did not justify the eight-year delay in filing the PCR petition. The judge pointed out that defendant had not asserted that she was unaware of her right to appeal from the judgments of conviction entered in 2002. The judge also noted that defendant had not explained how the death of her attorney had prevented her from filing a timely appeal or engaging the services of another attorney to do so.

The Law Division judge entered an order dated January 3, 2011, denying defendant's petition for PCR. This appeal followed. Defendant argues that: 1) her PCR petition was not time-barred; and 2) she did not provide an adequate basis for her pleas to the two DWI convictions in 2002. We are convinced that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). However, we add the following brief comments.

Here, the Law Division judge determined that the municipal court's failure to advise defendant that she could file an appeal from the judgments of conviction entered in 2002 does not constitute "excusable neglect" under Rule 7:10-2(b)(2) for her failure to file a PCR petition within the five years required by that rule. The record supports that determination.

Defendant was represented by an attorney when she entered her pleas in 2002. Although the municipal court did not advise defendant of her appeal rights when defendant was sentenced, there is no indication that defendant had any interest in challenging the convictions until she was faced with her third DWI charge in 2010. Moreover, as the trial court pointed out in its decision, there is no indication in the record that defendant was unaware in 2002 of her right to appeal the judgments of conviction.

The Supreme Court's decision in State v. Molina, 187 N.J. 531 (2006), supports the conclusion that defendant failed to establish excusable neglect for her failure to file a timely PCR petition. In Molina, the Court stated that a defendant would be permitted to file a direct appeal after the time prescribed by the court rules if the sentencing court had not advised the defendant of his or her right to appeal and the defendant files the motion for leave to appeal as within time no later than five years after the date of sentencing. Id. at 536.

Here, it is undisputed that the municipal court judge did not advise defendant of her right to appeal when she was sentenced on the 2002 DWI violations. Defendant never appealed from the 2002 judgments of conviction and she failed to seek relief from those judgments until 2010, when she filed her PCR petition. Molina precludes defendant from filing a direct appeal from the 2002 convictions under these circumstances. In our view, the reasoning of Molina also precludes defendant from filing a time-barred PCR petition seeking relief from the judgments.

Defendant argues, however, that the municipal court's failure to advise her of her appeal rights was compounded by the fact that her attorney died shortly after she was sentenced. Defendant contends that she was left without advice and counsel as to the merits of the convictions and her right to challenge the convictions on appeal. Defendant asserts that she expeditiously filed her PCR petition as soon as she became aware her pleas were not supported by an adequate factual basis. However, defendant's attorney died shortly after defendant was sentenced in 2002. Defendant could have filed an appeal or retained another attorney to advise her concerning her appeal rights.

Defendant also argues that she did not provide the municipal court with an adequate factual basis for her pleas. We do not agree.

When questioned by the municipal court judge, defendant stated that she was driving while intoxicated on March 1, 2002 and March 15, 2002. Defendant's blood alcohol readings at the relevant times were significantly higher than the BAC required to establish a violation of N.J.S.A. 39:4-50(a). Moreover, when defendant entered her pleas, her attorney stated on the record that defendant told him that the police had "saved her life" when she was stopped for the first 2002 violation because she "was doing the wrong thing and . . . was intoxicated." Defendant's attorney stated that the police had done defendant "a favor getting her off the road." He also noted that defendant's BAC was "high" at the time of the second violation.

In our view, defendant's statements, her BAC readings and the statements of her attorney provided an adequate factual basis for the pleas. These facts were sufficient to establish that defendant was intoxicated to the point where it would not have been proper for her to be driving a motor vehicle.

Affirmed.