STATE OF NEW JERSEY v. ANNA PENAGLOU

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3036-04T23036-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANNA PENAGLOU,

Defendant-Appellant.

______________________________________

 

Submitted June 5, 2006 - Decided June 19, 2006

Before Judges C.S. Fisher and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MA-81-2004.

Stephen M. Pascarella, attorney for appel-lant.

Bruce J. Kaplan, Middlesex County Prose-cutor, attorneys for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order, entered on February 22, 2005, which denied her petition for post-conviction relief (PCR) regarding a 1980 conviction in the Old Bridge Municipal Court for driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm because the PCR petition was time-barred and, therefore, correctly denied.

The facts are relatively simple. Defendant pled guilty to DWI in Monroe Township Municipal Court in 1979 and, as observed above, she pled guilty to DWI in Old Bridge Municipal Court in 1980. Defendant alleges she was not represented by counsel during the proceedings that led to the 1979 conviction; it is conceded that she was represented by counsel in the 1980 proceedings. Defendant's interest in those old proceedings arose when she pled guilty to DWI in Howell Township Municipal Court in 2004.

In 2004, because of her DWI conviction in Howell, defendant filed PCR petitions in the municipal courts of Monroe Township and Old Bridge regarding her 1979 and 1980 convictions. The Old Bridge application was denied; the Monroe application was thereafter withdrawn.

Defendant appealed the denial of the Old Bridge PCR application to the Law Division, contending that the 1980 conviction should not be utilized to enhance the sentence on the 2004 conviction because the 1979 conviction occurred without the benefit of counsel. The Law Division judge denied her claim for relief, finding it to be both time-barred and otherwise without merit.

Defendant's post-conviction attack on the 1980 conviction consists of her claim that, upon sentencing, that conviction was considered as a second conviction for DWI (the 1979 conviction being the first) and that, in defendant's view, it should have been considered a first offense because she was without counsel at the time of the 1979 conviction. Defendant contends that the 1979 conviction was vulnerable to post-conviction attack because of our Supreme Court's later determination, in State v. Laurick, 120 N.J. 1, 11-12, cert. denied sub nom., Laurick v. New Jersey, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), which held that an uncounseled conviction cannot be used to enhance a custodial sentence. See also State v. Hrycak, 184 N.J. 351 (2005). Even if we were to assume that defendant was uncounseled in 1979, we find no error in the denial of the PCR application regarding the 1980 conviction because defendant concedes that she was represented by counsel during the 1980 proceedings. The impact of the 1979 conviction cannot be alleviated by whatever relief to which defendant might arguably be entitled regarding the 1980 conviction.

Alternatively, we affirm because the PCR application was filed well out of time. In municipal courts, PCR applications must be filed within five years of the judgment of conviction unless the applicant can show excusable neglect. See R. 7:10-2(b)(2). Here, defendant greatly exceeded that time. Indeed, if the decision in Laurick generated a basis for upsetting the 1979 conviction, or the sentence imposed on the 1980 conviction, we observe that Laurick was decided in 1990 and that defendant waited 15 years since Laurick was decided to seek relief from either of the earlier convictions. That delay was unreasonable, has not been justified under the standard contained in R. 7:10-2(b)(2), and required a denial of defendant's application.

Affirmed.

 

Since defendant withdrew her Monroe Township PCR petition, any arguments she has made regarding the 1979 conviction are not properly before us.

It appears that due to the passage of time, no evidence regarding those proceedings and whether defendant was then represented by counsel, beyond defendant's current statements, is available.

We assume for present purposes -- without deciding -- that Laurick would have authorized the granting of post-conviction relief regarding the 1979 or 1980 convictions if defendant's PCR application had been timely filed.

(continued)

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4

A-3036-04T2

June 19, 2006