STATE OF NEW JERSEY v. MICHAEL A. PANICHELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MICHAEL A. PANICHELLA,

Defendant-Respondent.

____________________________________

January 22, 2014

Argued December 11, 2013 Decided

Before Judges Grall, Waugh, and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-30-12.

Jason Magid, Assistant Prosecutor, argued the cause for appellant (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).

Glen L. Schemanski argued the cause for respondent.

PER CURIAM

The State appeals the Law Division's January 10, 2013 order granting post-conviction relief (PCR) to defendant Michael A. Panichella. The order declared that Panichella's 1986 guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, "shall not be considered a prior conviction for the purposes of sentencing the defendant on any future" DWI offense. We reverse.

I.

We discern the following facts and procedural history from the record on appeal.

Panichella was charged with DWI in Pittsgrove in April 2010. At that time, he had two prior convictions resulting from guilty pleas, one in 1986 from Gloucester City and the other in 2008 from Woodbury. Based on those earlier convictions, he is subject to the minimum 180-day period of incarceration mandated by N.J.S.A. 39:4-50(a)(3) in the event of a third conviction.1 Panichella sought and received a stay of the proceedings in the Pittsburg municipal court so that he could file a PCR petition seeking to withdraw the 1986 guilty plea.

Panichella filed his petition in the Gloucester City municipal court in August 2012, arguing that he was indigent at the time of the guilty plea in 1986 and was not represented by counsel when he entered the plea. He sought leave to withdraw the guilty plea or, in the alternative, an order providing that the 1986 conviction could not be considered a prior offense in connection with sentencing for future offenses, including the 2010 offense.

Panichella was unable to obtain a copy of the transcripts from the 1986 proceedings. However, he obtained, and submitted with his petition, a copy of the summons, which reflected that he initially appeared in court on June 24, 1986, at which time the matter was adjourned. The words "DEFENDANT ADVISED OF RIGHTS" were stamped on the back of the ticket, followed immediately by the words "to get own atty." In further support of the petition, Panichella submitted a certification stating that he was unemployed at the time of the 1986 offense and could not have afforded his own attorney.2 He certified that he did not "remember being advised" that he could be represented by a public defender or other appointed attorney.

In his certification, Panichella did not deny that he was under the influence of alcohol at the time of the one-car accident that preceded issuance of the 1986 summons. He only certified that he was then unable to remember whether he was asked to perform any field sobriety tests or whether he gave any breath samples, or the results if he did give them. He further certified that he pled guilty because "it was the quickest and easiest way to end the matter," and that he "never explored the possibilities of contesting the matter because [he] could not afford an attorney of [his] own" and did "not remember being offered the services of a Public Defender or a free attorney."

At the time of the 1986 plea, Panichella signed a document informing him that, because of his conviction, he was subject to enhanced penalties in the event of a subsequent conviction. The document specifically referred to the 180-day period of incarceration for a third conviction. He also acknowledged that he had been informed of that fact by the judge in open court.

The municipal judge denied Panichella's application to withdraw his plea and declined to order that his 1986 guilty plea not be used for the purposes of imposing an enhanced sentence. Panichella appealed to the Law Division for a trial de novo, which was held on January 9, 2013.

Based upon his review of the record, the Law Division judge concluded that Panichella had been advised of his right to have his own attorney, but that the record did not reflect whether or not he was advised that one would be appointed for him if he were indigent. He further found that "there's nothing . . . that tells me that upon entry of the guilty plea that Mr. Panichella was told what the [pro]spective effect of entering this guilty plea would have been." Although the judge found no basis to allow withdrawal of the plea, he granted the alternative relief sought by Panichella and entered the order directing that the 1986 conviction not be considered for the purposes of sentencing on future violations. This appeal followed.

II.

The State raises the following issue on appeal:

POINT I: UPON PLENARY REVIEW, IT WILL BE READILY APPARENT THAT THE TRIAL COURT'S DE NOVO DETERMINATION WAS WHOLLY IMPROPER AS SAID DECISION WAS FOUNDED ON THE DE NOVO COURT'S ERRONEOUS APPLICATION OF LAW AND FACT.

On an appeal such as this, we "consider only the action of the Law Division and not that of the municipal court," State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001), because the Law Division's determination is de novo on the record from the municipal court. R. 3:23-8(a). Our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Although we are ordinarily limited to determining whether the Law Division's de novo factual findings "could reasonably have been reached on sufficient credible evidence present in the record," State v. Johnson, 42 N.J. 146, 162 (1964), we owe no such deference here because both the municipal and Law Division judges decided the case on the papers without taking testimony.

As a preliminary matter, we note that the record does not support the Law Division judge's determination that Panichella was not advised of the consequences of the 1986 plea in terms of sentencing for future convictions. As we have noted above, the record contains a document signed by Panichella and dated August 26, 1986, the date of the plea, in which he clearly acknowledged that he was advised of the enhanced penalties. Consequently, the basis articulated by the judge for the relief he granted is not supported by the record.

In State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967 (1990), our Supreme Court held that, absent a waiver of the right to counsel, an uncounseled DWI guilty plea cannot be used to enhance the period of incarceration for future DWI convictions and that "the actual period of incarceration imposed may not exceed that for any counseled DWI convictions." Id. at 16. That holding was reaffirmed in State v. Hrycak, 184 N.J. 351 (2005).3

Nevertheless, it is the defendant who bears the burden of demonstrating entitlement to the relief afforded by Laurick. Id. at 363. Relying on Hrycak and Laurick, we have characterized the parameters of that requirement as follows:

[T]o establish entitlement to the step-down sentence for a second or subsequent DWI:

1. Indigent defendants must establish that they were not given notice of their right to counsel and advised that counsel would be provided for them if they could not afford one.

2. Non-indigent defendants must establish that they were not advised of their right to counsel and that they were unaware of such right at the time they entered the uncounseled pleas.

3. Defendants who establish that they were not adequately noticed of their right to counsel must then demonstrate that if they had been represented by counsel, they had a defense to the DWI charge and the outcome would, in all likelihood, have been different. Police reports, witness statements, insurance investigations and the like may be used to submit proofs that the outcome would have been different if the defendant had the benefit of counsel before pleading guilty.

[State v. Schadewald, 400 N.J. Super. 350, 354-55 (App. Div. 2007).]

A defendant's application for PCR relief under Laurick must also meet the timeliness requirement of Rule 7:10-2(b)(2), which provides that the petition shall be filed within five years of the conviction at issue. As we held in State v. Bringhurst, 401 N.J. Super. 421, 431-34 (App. Div. 2008), however, the five year bar is subject to relaxation under Rule 3:22-12(a). In fact, we warned against a mechanistic application of the time bar in Laurick cases, because the issue will not ripen until there is a subsequent offense. Id. at 433.

However, a defendant must still "allege facts in the petition sufficient to establish a prima facie case for relief under the standards enunciated in Laurick before relaxation is appropriate." Id. at 437. Here, although Panichella certified that he was indigent at the time of his first plea, he failed to assert that he was never advised of his right to appointed counsel, alleging only that he cannot "remember" having been so advised. In addition, he does not articulate how he was prejudiced by the lack of counsel because he does not certify that he was not under the influence when he was driving and had the one-car accident, nor does he articulate any other colorable defense to the 1986 charge.4 These are not deficiencies that can be remedied at a plenary hearing. A "court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." Bringhurst, supra, 401 N.J. Super. at 436-37. Consequently, Panichella's failure to present a prima facie case precludes relief under Laurick even if the petition had been timely filed.

Having determined that the basis upon which the Law Division judge granted relief is not supported by the record and that there is no other viable basis for granting such relief, we reverse the order on appeal and remand for entry of an order dismissing the petition.

Reversed.

1 The issue of an enhanced sentence for multiple offenses did not arise in connection with Panichella's 2008 DWI conviction because there were more than ten years between his first two offenses. As a result, he was treated as a first time offender for the purposes of sentencing in 2008. N.J.S.A. 39:4-50(a).

2 Panichella was twenty at the time of the offense in June 1986.

3 Hrycak was decided after doubts were expressed concerning the continued viability of Laurick following a change in some of the United States Supreme Court jurisprudence cited in Laurick. Hyrcak, supra, 184 N.J. at 356-62. Our Supreme Court adhered to its holding in Laurick as a matter of New Jersey law. Id. at 362-63.

4 Those factors, plus the prejudice to the State in vacating a guilty plea entered almost sixteen years earlier, preclude allowing Panichella to withdraw his guilty plea. State v. Slater, 198 N.J. 145, 157-58 (2009).