STATE OF NEW JERSEY v. THOMAS DONNELLY

NOT FOR PUBLICATION WITHOUT THE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.

THOMAS DONNELLY,

Defendant-Appellant.

_______________________________

January 12, 2016

Submitted November 16, 2015 - Decided

Before Judges Lihotz and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 2-14.

Thomas Donnelly, appellant pro se.

RobertD. Bernardi,Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas Donnelly appeals from a May 21, 2014 Law Division order denying his challenge to the imposition of incarceration penalties, pursuant to N.J.S.A. 39:4-50(a)(3), following his guilty plea to a fifth driving while intoxicated (DWI) offense, N.J.S.A. 39:4-50. Defendant argues two prior offenses were uncounseled and, most likely, this caused prior sentencing courts to treat subsequent convictions in 1986 and 1987 as second offenses. Further, he argues the time elapsed between his fourth and fifth offense triggered the statutory "step-down," requiring his fourth offense be ignored for sentencing purposes.1 Taken together, defendant argues when imposing a period of incarceration, the custodial term set forth in N.J.S.A. 39:4-50(a)(2), must be imposed.

The facts providing context for this legal challenge are not disputed. On December 12, 2013, defendant appeared before the Evesham Township Municipal Court and pleaded guilty to DWI. This was defendant's fifth DWI offense; other adjudications occurred in 1982, 1984, 1986, and 1987.

Before the municipal court, defendant argued the resultant period of incarceration should be as if this were his second violation. He presented disposition records from his 1986 and 1987 convictions, both of which inexplicably treated the violations as a second offense. No records were available regarding the 1982 or 1984 convictions, which defendant maintained were uncounseled. The municipal court allowed the "step-down" reduction because defendant's last conviction was more than ten years old and imposed penalties as if this were defendant's fourth violation, apparently rejecting his argument the uncounseled convictions should not be considered.

Defendant appealed. In the trial de novo, the Law Division judge also rejected defendant's argument, concluding he failed to carry his burden to prove both the 1982 and 1984 convictions were the result of the State's failure to provide him notice of his right to counsel. The State conceded it had no explanation for why both the 1986 and 1987 offenses were treated as a second offense. However, the State insisted there was no support to conclude in fact this status resulted after finding the pleas were uncounseled. The judge acknowledged the sentences imposed for 1986 and 1987 were not those required for a third and fourth offense, but also found no evidence to show the sentence was "wrong, illegal, or whether it was the benefit of some Laurick2 argument." The judge stated, "I have nothing from any court anywhere nor counsel nor the defendant that indicates that a court in 1982 or '84 ordered that there be no enhanced penalty thereafter because he was uncounseled and didn't properly waive counsel on those convictions in '82 and '84." Emphasizing there were no affidavits from anyone explaining what happened in 1982 and 1984, the judge noted defendant failed to carry his burden of proof and the judge was not permitted to simply "guess." The judge agreed the "step-down" applied because of the twenty-six-year gap between the current offense and defendant's immediate prior conviction in 1987. However, he declined to allow any additional relief allowed by Laurick when guilty pleas to DWI are uncounseled. The judge ordered defendant incarcerated for 180 days in the county jail, a ten-year suspension of driving privileges, an ignition interlock for one year thereafter, and mandatory fines and assessments. Defendant appealed. The Law Division stayed the custodial portion of defendant's sentence pending our review.

Where a municipal court judgment has been appealed to Superior Court, we consider whether the Law Division's judgment is supported by sufficient credible evidence in the record. State v. Kuropchak, 221 N.J. 368, 382-83 (2015); State v. Kashi, 180 N.J. 45, 48 (2004). However, when the Law Division's judgment rests entirely on the interpretation of the law, our scope of review is de novo, without affording any special deference to the trial court's interpretation of the law and the legal consequences that flow from established facts. State v. Gandhi, 201 N.J. 161, 176 (2010); State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010).

The progressively enhanced penalties imposed for repeat DWI offenses are militated, in part, by the passage of time.

The statute includes a "step-down" provision, under which a second DWI offender is treated as a first DWI offender for sentencing purposes if more than ten years elapsed between his or her first and second offenses, and a third DWI offender is treated as a second DWI offender for sentencing purposes if more than ten years elapsed between his or her second and third DWI offenses.

[State v. Revie, 220 N.J. 126, 128 (2014) (citing N.J.S.A. 39:4-50(a)(3)).]

On appeal, defendant again argues his second-offense treatment in 1987 likely resulted because his 1982 and 1984 pleas were uncounseled and, therefore, should not be considered when fixing the period of confinement for the 2013 offense.

In Laurick, the Court considered whether an uncounseled guilty plea to a charge of DWI "prevents the imposition of enhanced penalties on a second DWI conviction." Laurick, supra, 120 N.J. at 4. The Court concluded a "prior DWI conviction that was uncounseled in violation of court policy may not be used to increase a defendant's loss of liberty"; however, the Court found "no constitutional impediment to the use of the prior uncounseled DWI conviction to establish repeat-offender status under DWI laws." See also Rodriguez v. Rosenblatt, 58 N.J. 281, 294 (1971) ("[A]s a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.").

The Court has made it very clear the Laurick holding, instructing sentencing courts to disregard prior uncounseled DWI violations, affects only an imposed period of confinement. Revie, supra, 220 N.J. at 139-40. These violations remain applicable when considering "[t]he revocation of a DWI offender's driver's license[,]" which "constitutes an administrative penalty imposed by N.J.S.A. 39:4-50(a)." Id. at 140 n.4. See also State v. Hrycak, 184 N.J. 351, 362-63 (2005) (confirming an uncounseled DWI conviction may be used to enhance the DWI administrative penalties set forth in N.J.S.A. 39:4-50(a)). Consequently, the number of prior DWI violations actually considered for purposes of imposing a term of incarceration may differ from the number of prior DWI violations considered when imposing administrative penalties. Hrycak, supra, 184 N.J. at 362-63.

The burden of proving that a prior uncounseled DWI conviction should not enhance the jail component of a sentence imposed on a subsequent DWI rests with a defendant, who "is faced with a three-step undertaking." Id. at 363.

As a threshold matter, the defendant has the burden of proving in a second or subsequent DWI proceeding that he or she did not receive notice of the right to counsel in the prior case. He or she must then meet the two-tiered Laurick burden. Supra, 120 N.J. at 11. In that vein, if [the] defendant proves that notice of the right to counsel was not provided, the inquiry is then bifurcated into whether the defendant was indigent or not indigent. "[I]f [the] defendant [was] indigent, [the defendant must prove that] the DWI conviction was a product of an absence of notice of the right to assignment of counsel and non-assignment of such counsel without waiver." Ibid. On the other hand, if the defendant was not indigent at the time of the prior uncounseled conviction,

[the] defendant should have the right to establish such lack of notice as well as the absence of knowledge of the right to be represented by counsel of one's choosing and to prove that the absence of such counsel had an impact on the guilt or innocence of the accused or otherwise 'wrought a miscarriage of justice for the individual defendant.'

[Ibid. (quoting [State v.] Cerbo, 78 N.J. [595,] 607 [(1979)]).]

[Hrycak, supra, 184 N.J. at 363 (second, third, fourth, fifth and sixth alterations in original).]

The Law Division judge's findings stating defendant failed to meet this burden are supported by this sparse record, which contains no evidence explaining the circumstances surrounding the 1982 and 1984 convictions. Absent such proof, the judge correctly concluded he could not merely assume Laurick had been applied.

However, Laurick was not decided until 1990. Thus, its application could not have been considered when defendant was sentenced in 1986 and 1987. Accordingly, this case presented the first opportunity for defendant to seek Laurick's application to any prior uncounseled DWI violations. Based on comments during the Law Division hearing, this simple fact may have been overlooked by defense counsel, while attempting to untangle the complexities of this matter.

"[B]ecause of the severity of the penalties [that] flow from a DWI conviction, both direct and indirect, our duty is to ensure that the DWI statute is enforced fairly, based on established principles of jurisprudence." Conroy, supra, 397 N.J. Super. at 329. More importantly, justice demands when a defendant, who is subjected to a conviction entailing imprisonment pleads guilty, there must be a waiver of the opportunity to be represented by counsel. Laurick, supra, 120 N.J. at 16-17. Balancing all applicable considerations, we conclude it necessary to remand this matter to the Law Division for the limited purpose of allowing defendant thirty days to file his requisite applications to establish his Laurick burden as defined in Hrycak to any alleged uncounseled convictions. If defendant does so, the judge shall consider the result and resentence defendant to the appropriate period of incarceration, required by N.J.S.A. 39:4-50. If he fails to do so, the judge shall finalize the originally ordered sentence, which included 180 days incarceration. The remainder of defendant's sentence is affirmed.

Affirmed in part and remanded in part. We do not retain jurisdiction.

1 In State v. Revie, 220 N.J. 126 (2014), the Court reviewed the statutory history of N.J.S.A. 39:4-50(a)(3), underscoring that the 1977 amendment adding a third grade of punishment for third or subsequent DWI offenses also included for the first time a "step-down" provision, triggered by the passage of time from the first DWI offense. See L. 1977, c. 29, 1 (codified, as amended, N.J.S.A. 39:4-50(a)). See Revie, supra, 220 N.J. at 133-34 (setting forth history of N.J.S.A. 39:4-50). Later amendments led to the current statute, which provides the following "mandatory" provision, State v. Conroy, 397 N.J. Super. 324, 330 (App. Div.), certif. denied, 195 N.J. 420 (2008)

A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

[N.J.S.A. 39:4-50(a)(3).]

2 State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990).