STATE OF NEW JERSEY v. SEAN P. McCORMICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4471-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN P. McCORMICK,

Defendant-Appellant.

_________________________________

Submitted May 4, 2011 Decided May 16, 2011

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 39-09.

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

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Sean McCormick, represented by counsel, pled guilty in 2004 to driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). As a second offender, the municipal court judge sentenced defendant to forty-eight hours in the Intoxicated Driver Resource Centers and thirty days of community service, suspended defendant's driver's license for two years and imposed a $505 fine, $33 court costs, $50 Victims of Crime Compensation Board assessment, $75 Safe Neighborhood Services Fund assessment, and $200 surcharge. At sentencing, the following colloquy occurred between the municipal court judge and defendant:

[THE COURT]: Sir, if you get caught driving on the revoked list, an additional one to two years loss of license, a minimum $1,000 fine and 10 to 90 days in jail must be imposed. I -- and that's mandatory jail for another offense. How old are you?

[DEFENDANT]: Twenty-one, sir.

[THE COURT]: Twenty-one and you've already got two DWI's. Some people just should not drink.

[DEFENDANT]: I hear you.

[THE COURT]: A word to the wise is sufficient. There's no way around going to jail the next time. See the clerk through the rear door.

Defendant subsequently received a third DWI charge. In 2009, he filed a petition for post-conviction relief contending, in part, that his 2004 plea should be vacated because the municipal court judge did not orally advise him of the enhanced penalties for a subsequent DWI conviction, or, alternatively, his 2004 conviction cannot be used to enhance the penalties for a subsequent conviction.

A different municipal court judge found that the prior municipal court judge had orally advised defendant, in general terms, of the enhanced penalties for a subsequent DWI conviction and defendant's court file contained a document defendant signed on the date of sentencing, advising him of those enhanced penalties with specificity. The judge, therefore, denied the petition. Defendant appealed.

After a trial de novo in the Law Division, the trial judge denied the petition, concluding that State v. Petrello, 251 N.J. Super. 476 (App. Div. 1991) did not require oral notice. This appeal followed.

On appeal, defendant raises the following contention:

THE MUNICIPAL COURT FAILED TO ORALLY ADVISE [DEFENDANT] AT THE TIME OF CONVICTION AND SENTENCING OF THE ENHANCED PENALTIES FOR SUBSEQUENT DWI OFFENSES AND THEREFORE HE WAS DENIED DUE PROCESS OF LAW.

We first emphasize that defendant does not dispute receiving written notice of the enhanced penalties for a subsequent DWI conviction. In Petrello, the defendant was charged with DWI in the Borough of Metuchen. Before resolution of that charge, he received a second DWI charge in the Township of Holmdel. 251 N.J. Super. at 477. Defendant pled guilty to the Holmdel charge and was sentenced as a first offender. Ibid. He subsequently pled guilty to the Metuchen charge and was sentenced to the enhanced penalties for a second conviction. Ibid. On appeal, he contended he could not "be sentenced as a second offender [on the Metuchen charge] 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. Relying on the language in N.J.S.A. 39:4-50(c) providing that the court's failure to provide written notice is not a defense to a subsequent charge, the defendant posited that legislative silence on whether the court must provide oral notice "signifies an intention to bar sentencing as a subsequent offender without, minimally, an oral advisement of the penalties for a second, third or subsequent violation." Ibid.

We rejected defendant's contention, noting that accepting it "would frustrate the obvious legislative intent to provide enhanced penalties for each subsequent conviction of the statute." Ibid. We held, "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 (emphasis added).

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 subsequent conviction under the DWI statute, regardless of whether, when defendant entered his plea to the second DWI charge, he received written and/or oral notice of the enhanced penalties that could be imposed pursuant to the statute for a subsequent conviction.