STATE OF NEW JERSEY v. PETER WILLIS

NOT FOR PUBLICATION WITHOUT THE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.

PETER WILLIS,

Defendant-Appellant.

____________________________________

December 3, 2015

Argued October 7, 2015 Decided

Before Judges Ostrer and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 13-043.

Joseph J. Rodgers argued the cause for appellant.

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant, Peter Willis, appeals an order entered by the Law Division, Criminal Part, denying his request to withdraw his guilty plea. We affirm.

Defendant was charged and convicted in 1989 for Driving While Intoxicated (1989 DWI), in violation of N.J.S.A. 39:4-50. In April 2007, defendant was again charged with a DWI (2007 DWI). In May, defendant pled guilty to the 2007 DWI offense, and the municipal judge stayed the sentencing pending the Supreme Court's decision in State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). During the plea colloquy, the municipal judge stated

[T]he biggest thing you [have] to be concerned about is getting another one. And even more concerned about [] getting a third, because if you get a third[,] you go to jail for [six] months.

. . . .

And the other thing is that you have a conviction, once I accept this plea, you will have a conviction of DUI even though you're driving around and not serving any of the punishment[.] [Y]ou still have the conviction on the record[,] which means that if you were to do it while you're waiting for Chun to be decided[,] it would be your second.

The municipal judge then apprised defendant of the consequences for subsequent DWI offenses, as required by N.J.S.A. 39:4-50(c)1

If you're convicted for a second time of operating or allowing the operation of a motor vehicle while under the influence of alcohol or drugs[,] you will be subject to the following penalties. You'll be fined $500 to $1,000, you'll be imprisoned for 48 hours to 90 days, which 48 hours shall not be suspended or served on probation, you'll perform 30 days of community service, and your driver's license will be suspended for 2 years. If it's in a school zone, the fines are doubled.

And the third time is the most serious. You'll be fined $1,000, you'll be imprisoned for 180 days, 90 of which could be in an in-patient. And that's a real in-patient treatment program. And your driver's license will be suspended for 10 years. If you're convicted [] a third time in a school zone, again, [the] fines are doubled. [A] [c]ourt may order you [to serve] up to 90 days of that sentence participating in a drug or alcohol in-patient rehab program.[2]

The municipal judge accepted the guilty plea and concluded that defendant was to be charged as a first-time DWI offender, because the 2007 DWI occurred more than ten years after the 1989 DWI and the step-down provision of N.J.S.A. 39:4-50(a) was applicable. In May 2008, defendant appeared before the municipal judge for sentencing on the 2007 DWI offense. In accord with the plea colloquy, defendant was sentenced as a first-time DWI offender.

In October 2010, defendant was charged with his third DWI (2010 DWI). Defendant was found guilty of the DWI and sentenced as a third-time offender, in accordance with the progressively enhanced penalties provided in N.J.S.A. 39:4-50(a)(3).

Defendant filed a petition for post-conviction relief (PCR) in July 2013 regarding his 2007 DWI conviction, seeking to withdraw his guilty plea and proceed to trial. Defendant argued the municipal judge erred in advising him that he would be a second-time DWI offender if he were to be arrested again for a DWI, rather than a third-time DWI offender. Following oral argument, the municipal judge who conducted the DWI plea colloquy denied defendant's PCR motion, holding that it was untimely filed.

Defendant appealed the municipal judge's denial of the PCR. The Law Division judge conducted a trial de novo after which the judge granted the PCR, in part, finding that while the 2007 conviction was to remain in effect, the conviction "may not be used to enhance the period of incarceration on any subsequent DWIs." The Law Division judge reasoned

while the misadvice that the [d]efendant received from the [m]unicipal [j]udge concerning the collateral consequences of his guilty plea did not result in a violation of his constitutional rights, upon a review of the facts and circumstances, the [c]ourt finds that considerations of fairness dictate that the [d]efendant's 2007 DWI should not be used to enhance the period of incarceration on any DWIs subsequent to his 2007 DWI.[3]

Defendant now appeals the Law Division judge's order.

On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division not the municipal court. Id. at 162.

Defendant argues "the court below erred by not granting defendant's Petition for Post-Conviction Relief by remanding the case for trial." Defendant contends the municipal judge "was required to instruct [him] about the consequences of another drunk driving conviction." Defendant argues "the municipal court's failure to inform [him] of the mandatory consequence of a subsequent conviction undermined the efficacy of the plea of guilty." Consequently, defendant seeks to withdraw the guilty plea as it was not voluntarily given since he did not understand the consequences of his plea. We are unpersuaded.

In State ex. rel. T.M., 166 N.J. 319, 326 (2001), our Supreme Court held that pursuant to "Rule 3:9-2, a court taking a plea . . . must satisfy itself through inquiry of the defendant and others, in its discretion, that an adequate factual basis exists for the plea." See also R. 3:9-2. In addition, "a court may accept a guilty plea only when that court 'is convinced that the defendant has entered into it knowingly and voluntarily and with an understanding of its consequences.'" State ex. rel. T.M., supra, 166 N.J. at 327 (quoting State v. Warren, 115 N.J. 433, 447 (1989)). "A guilty plea that is not voluntary and knowing violates due process and thus is constitutionally defective." Ibid.

In State v. Heitzman, 107 N.J. 603, 604 (1987), our Supreme Court held that a "defendant need be informed only of the penal consequences of his plea and not the collateral consequences . . . ." Upon our review of the record, we agree with the Law Division judge that defendant was misadvised by the municipal judge as to "the enhanced penalties [for] subsequent DWIs, a collateral consequence of his guilty plea, but not a penal consequence." Here, we are satisfied defendant entered into the guilty plea with the requisite knowledge and understanding of the plea's "penal consequences."4 Ibid. We are further satisfied that defendant's responses to the questions posed to him during the plea colloquy established an adequate factual basis. R. 3:9-2. Concerning defendant's arguments that the plea was otherwise constitutionally defective, we conclude they are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Defendant also argues the Law Division judge erred in denying his PCR as the judge improperly balanced the prescribed factors when evaluating motions to withdraw a guilty plea. We disagree. "[P]ost-sentencing motions must meet a higher standard of 'manifest injustice' to succeed." State v. Slater, 198 N.J. 145, 156 (2009) (quoting R.3:21-1). The Court in Slater established a four-prong balancing test for "evaluating motions to withdraw a guilty plea." Id. at 150. The four factors are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. "Trial courts should consider and balance all of the factors discussed above in assessing a motion for withdrawal of a plea. No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Id. at 162.

Under the first prong of the Slater test, the court must analyze "whether the defendant has asserted a colorable claim of innocence." Id. at 150. "A bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Id. at 158. With respect to the first prong, the Law Division judge found defendant did not assert a colorable claim of innocence; rather, defendant recited legal remedies that should have been pursued at the trial level.

The second Slater prong requires the court to consider the "nature and strength of defendant's reasons for withdrawal." Id. at 150. As discussed in Slater, "[t]his second factor focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159. The Court in Slaterprovided some examples of situations warranting the withdrawal of a guilty plea

(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea; (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea; (3) defendant's reasonable expectations under the plea agreement were not met; (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense was forgotten or missed at the time of the plea.

[Id.at 159-60 (citations omitted) (internal quotation marks omitted).]

With respect to the second prong, the Law Division judge referred to his previous finding that defendant was not misadvised as to a penal consequence, but rather, "[d]efendant was misadvised as to a collateral consequence of his plea as it relate[d] to speculative future penalties."

The third prong of Slater requires the court to consider whether "the plea [was] entered as part of a plea bargain[.]" Id. at 160. In Slater, the Court held that "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Id. at 160. To the Court, "the vast majority of criminal cases are resolved through plea bargains" and as a result, the third factor should not be given great weight in the balancing process. Id. at 161. With respect to the third prong, the Law Division judge noted the guilty plea was entered as part of a plea bargain as defendant's plea of guilty resulted in the municipal judge dismissing a speeding violation that occurred during the 2007 DWI.

Under the fourth and final prong of Slater, the court must consider whether the withdrawal of the guilty plea would "result in unfair prejudice to the State or unfair advantage to the accused." Ibid. The Court held that a number of facts demonstrate prejudice,

such as the loss of or inability to locate a needed witness, a witness's faded memory on a contested point, or the loss or deterioration of key evidence. The critical inquiry in those and other situations is whether the passage of time has hampered the State's ability to present important evidence.

[Ibid.]

However,"[t]he State is not required to show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Id.at 162. With respect to the fourth prong, theLaw Division judge found the State would not suffer unfair prejudice if defendant were allowed to withdraw his guilty plea, because the State did not provide "any information on whether the arresting officer is unavailable to testify or [has] issues with memory."

In balancing the four Slaterfactors, the Law Division found that defendant should not be permitted to withdraw his guilty plea as defendant did not assert a colorable claim of innocence and he was "misinformed only as to a collateral consequence, and not a penal consequence."

"[T]he trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999). In our application of the Slater factors, we concur with the Law Division judge that defendant failed to assert a colorable claim of innocence under the first prong of Slater. At no point has defendant argued that he was not under the influence at the time of the 2007 DWI. Further, defendant admitted during the plea colloquy to drinking about "four or five beers" prior to his arrest.

As to the second Slater prong, we also concur with the Law Division judge that the judicial "advice" defendant received was limited to a collateral consequence of his guilty plea. From our review of the plea record, we are satisfied defendant understood the material terms and penal consequences of the plea agreement. Moreover, there is nothing in the record, even implicitly, that supports the argument that defendant relied on the municipal judge's advice when entering the plea of guilty.

Regarding the third Slater prong relating to the existence of a plea bargain, we note that plea bargaining is not permitted for a DWI. See Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII at 2595 (2016). However, we also note that the prosecutor dismissed the speeding charge which, presumably, was an incentive for defendant's plea.

As to the fourth prong of Slater, the State did not provide sufficient proof that it would likely suffer prejudice if the guilty plea were withdrawn. However, we note that the State is not obligated to show prejudice when, as here, the defendant "fails to offer proof of other factors in support of the withdrawal of a plea." Id. at 162.

Having considered the record in light of the operative facts, procedural history and controlling decisions of law, we conclude the Law Division judge's denial of plaintiff's petition to vacate his guilty was not erroneous. Defendant's remaining arguments regarding Rule 7:10-2 are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 In relevant part, N.J.S.A. 39:4-50(c) provides, "Upon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section."

2 Defendant also signed the "Notification of Penalties for Subsequent DWI" form setting out in further detail the enhanced penalties for future DWI offenses and acknowledging he was orally informed by the municipal judge of the consequences for subsequent DWI offenses.

3 The State argues in its brief the judge incorrectly relied on State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), when determining the "considerations of fairness dictate that the [d]efendant's 2007 DWI should not be used to enhance the period of incarceration on any DWIs subsequent to his 2007 DWI." The State's motion for leave to appeal was denied, and it did not file a cross-appeal arguing the issue. We therefore cannot consider the point, "for it can only be brought here by cross-appeal and none has been filed." Lyons v. Hartford Ins. Grp., 125 N.J. Super. 239, 248 (App. Div. 1973), certif. denied, 64 N.J. 322 (1974).

4 In State v. Bellamy, 178 N.J. 127, 138-39 (2003), our Supreme Court noted that "'[w]hether a court should be required to advise defendant of certain consequences of a guilty plea should not depend on ill-defined and irrelevant characterizations of those consequences.'" (quoting Heitzman, supra, 107 N.J. at 606); see also State v. Nunez-Valdez, 200 N.J. 129, 138 (2009). Notwithstanding, the Court noted, "We continue to stress the necessity of determining whether a consequence is direct or penal when analyzing whether a defendant must be informed of a particular consequence." Id. at 139. In this matter, we are satisfied that defendant, who was represented by counsel, was informed by the municipal judge as to the penal consequences flowing from his 2007 conviction. Although we recognize that defendant was misinformed as to a collateral consequence of his plea, i.e., how the enhanced penalties would apply in the future if he were convicted of a subsequent DWI, we are unpersuaded that such judicial "advice" undermined the efficacy of the plea.