STATE OF NEW JERSEY v. MICHAEL DELMEIER

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

MICHAEL DELMEIER,

Defendant-Appellant.

________________________________________________________________

May 6, 2014

Argued January 8, 2014 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-056.

Theodore Sliwinski argued the cause for appellant.

Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief).

PER CURIAM

Defendant, Michael Delmeier, appeals from a January 30, 2013 Law Division order, which after de novo review, affirmed the municipal court's prior denial of defendant's petition for post-conviction relief (PCR) from his guilty plea conviction and sentence pursuant to the five-year time bar under Rule 7:10-2. We affirm.

The following are salient, undisputed facts. Hazlet Township police issued motor vehicle summonses following defendant's arrest on December 23, 1997 for failure to report an accident, N.J.S.A. 39:4-130; leaving the scene of an accident, N.J.S.A. 39:4-129; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; reckless driving, N.J.S.A. 39:4-96; and driving while intoxicated (DWI), N.J.S.A. 39:4-50.

On March 17, 1998, defendant pled guilty to and was convicted of, refusal to submit to a breath test and failure to report an accident. The court sentenced him as a second offender under the refusal statute and imposed $600 in fines, $30 in court costs, thirty-days' community service, one day in jail, forty-eight hours in an Intoxicated Driver Resource Center (IDRC), and a two-year license suspension. The remaining summonses were dismissed.

Defendant appealed the sentence to the Law Division pursuant to Rule 3:23-2. Judge Theodore J. LaBrecque heard the case on July 17, 1998. The judge declined to consider defense counsel's oral request to withdraw his guilty plea as it was not properly before the court. The judge affirmed the conviction as a second offender under the refusal statute, but corrected and reduced the sentence to a $350 fine. The judge vacated the thirty-days' community service and one day in jail. The license suspension, court costs and IDRC requirement remained the same.

In December 2010, defendant filed a petition for PCR from his 1998 conviction in the Hazlet Municipal Court. In his petition, defendant argued exceptional circumstances existed to warrant the relaxation of the five-year filing limitation for PCR petitions. He also argued he must be permitted to withdraw his guilty plea because it was made without receiving a videotape of him at police headquarters, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Alternatively, he argued his conviction must be reversed because "the Hazlet police never read him the entire DMV standard statement" and due to ineffective assistance of his trial counsel. Oral argument on the petition was held on July 23, 2012. The judge denied the petition.

On de-novo review, Law Division Judge John T. Mullaney, Jr., denied the relief sought for reasons articulated in a comprehensive, written opinion. In evaluating defendant's arguments, Judge Mullaney first considered the late filing of the PCR petition, twelve years after the entry of the judgment of conviction. Defendant contended that "he could not find an attorney to take on his case because of [his trial counsel's] influence."

For reasons cogently expressed in his opinion, Judge Mullaney determined that the excusable neglect argument was lacking in merit. In reaching this conclusion, he found defendant failed to demonstrate excusable neglect given that he "had previously represented himself pro se after his original municipal court appeal." Further, the court found defendant failed to present the exceptional circumstances, required under State v. Mitchell, 126 N.J. 565, 579 (1992), would justify relaxation of the five-year time bar under Rule 7:10-2(b)(2).

Next, the judge denied defendant's motion to set aside his guilty plea, finding defendant failed to satisfy the factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009), and failed to demonstrate his trial counsel was ineffective, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

This appeal follows in which defendant raises the same arguments on appeal as he advanced in the Law Division. He argues:

I. THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. MOREOVER, THERE WERE EXCEPTIONAL CIRCUMSTANCES THAT JUSTIFY RELAXING THE FIVE-YEAR, TIME LIMIT AS REQUIRED BY R. 3:22-12.

II. THE DEFENDANT MUST BE PERMITTED TO WITHDRAW HIS PLEA BECAUSE HE PLED GUILTY WITHOUT HAVING ALL OF THE DISCOVERY SENT TO HIM.

III. THE DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE HAZLET POLICE NEVER READ HIM THE ENTIRE DMV STANDARD STATEMENT.

IV. THE DEFENDANT'S CONVICTION MUST BE REVERSED BASED ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

V. THE DEFENDANT'S REFUSAL CONVICTION MUST BE REVERSED BECAUSE THE HAZLET POLICE ERRONEOUSLY MIXED UP THE MIRANDA WARNINGS AND THE DMV STANDARD STATEMENT.

VI. THE DEFENDANT'S REFUSAL CONVICTION MUST BE REVERSED BECAUSE OF THE MANDATE OF THE RECENT CASE OF STATE V. O'DRISCOLL.

VII. THE DEFENDANT'S REFUSAL CONVICTION MUST BE REVERSED BECAUSE THE POLICE FAILED TO READ ALL SECTIONS OF PARAGRAPH 36.

VIII. THE DEFENDANT'S REFUSAL CONVICTION MUST BE REVERSED BECAUSE OF THE EGREGIOUS BRADY VIOLATION.

After a careful review of the record, we conclude the issues raised in this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm, substantially for the reasons set forth by Judge Mullaney in his comprehensive and thorough written decision of January 30, 2013. We add only the following brief comments.

On appeal, we are bound by the trial court's findings of fact as long as those findings and conclusions are supported by substantial, credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-72 (1999); State v. Johnson, 42 N.J. 146, 160-62 (1964). Given the findings made and the evaluative determinations that flowed from them, we conclude there is no basis to disturb the decision articulated by Judge Mullaney.

Affirmed.