STATE OF NEW JERSEY v. DWIGHT D. LEWIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5619-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWIGHT D. LEWIS,

Defendant-Appellant.

May 13, 2011

Submitted March 28, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-017, Miscellaneous Case No. 09-12-0353.

James N. Butler, Jr., attorney for appellant.

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dwight D. Lewis appeals from the denial of post-conviction relief (PCR) on his appeal de novo to the Law Division. R. 3:23-2. As the basis for PCR relief, defendant asserted pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), that since his first conviction for driving while under the influence (DWI), N.J.S.A. 39:4-50, entered on September 25, 1990, was an uncounseled guilty plea, his October 27, 2008 guilty plea in Brick Township to a third DWI should not result in a 180-day jail sentence.1 For the reasons that follow, we affirm and find that defendant's belated Laurick claim does not warrant relief from the sentence imposed. See Laurick, supra, 120 N.J. at 4-5.

On November 17, 2008, defendant sought reconsideration of his third DWI sentence, based on Laurick, before the Brick Township municipal judge. The application was denied without prejudice and counsel was instructed to file a Laurick motion in Shrewsbury, the municipality where the first conviction occurred. On November 24, 2009, the Shrewsbury Municipal Court granted the motion, issuing an order providing that the 1990 conviction could "not be used for enhancement purposes as to jail time for third offense entered October 27, 2008[,] in the Brick Township Municipal Court."

The State thereafter moved to appeal nunc pro tunc, and on June 18, 2010, Judge Vernoia heard and granted the State's appeal in the Law Division. We affirm for the reasons expressed by Judge Vernoia in his cogent and detailed analysis rendered from the bench. He first concluded defendant's application was procedurally time-barred, as it was filed fourteen years after expiration of the time limits expressed in Rule 7:10-2(b)(2) and Rule 7:10-2(g)(2). Those rules provide that such petitions shall ordinarily not be granted more than five years after entry of judgment "unless [they] allege[] facts showing that the delay in filing was due to defendant's excusable neglect." Defendant not only failed to assert facts establishing excusable neglect, he offered no explanation for declining to seek relief at his intervening DWI conviction in 1999. See generally State v. Bringhurst, 401 N.J. Super. 421, 429 (App. Div. 2008).

Judge Vernoia went on to state that, finding a parallel to the facts in Bringhurst,

the resolution of the dispute over whether defendant received notice of his right to counsel in 1990 does not require an evidentiary hearing and is irrelevant because the PCR "petition fails to set forth any allegation that the defendant had a defense to the DWI charge and the outcome would, in all likelihood, have been different had he had representation." Bringhurst, supra, 401 N.J. Super. at 435.

In this case, Mr. Lewis's PCR application is devoid of any facts upon which it could be argued or concluded that [he] had a defense to the 1990 DWI charge. As a matter of fact, the affidavit submitted in support of the PCR does not mention any defense to the DWI charge and does not refer to any facts upon which a defense could be based or inferred. Most simply stated, the PCR petition does not address in any manner this element of the Laurick standard. Mr. Lewis has failed to meet his burden of setting forth facts suggesting he had a defense to the DWI charge and that the outcome of the DWI charge "in all likelihood" would have been different had he had representation.

The court therefore found that not only was defendant out of time, but that he had failed to establish a prima facie case for relief under the authority of either Laurick or Bringhurst. We agree.

1 Defendant's second DWI conviction occurred in August 1999. During the pendency of those proceedings, defendant did not argue that Laurick might affect the jail aspect of that sentence.