STATE OF NEW JERSEY v. SAMUEL JENKINS, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1571-07T41571-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL JENKINS, III,

Defendant-Appellant.

________________________________________

 

Submitted October 15, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, A-32-07.

Law Offices of Fredric L. Bor, attorney for appellant (Mr. Bor, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Samuel Jenkins, III appeals from the denial of his post-conviction relief (PCR) petition. In the PCR petition, he sought to set aside the guilty plea he entered to the charge of driving while intoxicated, N.J.S.A. 39:4-50.

On July 1, 2005, defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50, reckless driving, N.J.S.A. 39:4-96, and failure to maintain a lane, N.J.S.A. 39:4-88. It was his second driving while intoxicated offense. In municipal court on August 18, 2005, he pled guilty to driving while intoxicated and the other two charges were dismissed. Defendant was represented by counsel at the time. Defendant was sentenced as a second time offender and received a license and registration suspension of two years, thirty days of community service, forty-eight hours in the Intoxicated Driver Resource Center (IDRC) in lieu of jail, a fine of $506, costs of $33, a $50 violent crime penalty, $250 DWI surcharge, and a $75 Safe Neighborhood Services Fund assessment.

This plea and sentence were not challenged by defendant until he was charged on December 8, 2006, with a third driving while intoxicated offense. He then brought this PCR petition to vacate the guilty plea entered on August 18, 2005. The PCR petition was denied by the municipal court judge, the same judge who had taken the plea. In its de novo review of the record, the Law Division also denied relief, and this appeal followed.

Defendant contends that the record reveals no factual basis for the plea and that the municipal court judge, when accepting the plea, failed to determine that the plea was made voluntarily with defendant's full understanding of the nature of the charge and the consequences of the plea. The State contends that these arguments may not be raised in defendant's PCR petition and are barred by Rule 7:10-2(b)(3) and Rule 7:10-2(d)(1). However, these rules do not bar relief where "denial of relief would be contrary to the Constitution of the United States or of New Jersey." R. 7:10-2(d)(1)(C); see State v. Owczarski, 236 N.J. Super. 52, 53 (Law Div. 1989) (holding that "post-conviction relief is available at any time to a defendant whose guilty pleas were accepted by a municipal court without determining whether the pleas were offered knowingly and voluntarily"). Since defendant's contentions implicate constitutional rights, we will address the merits of the appeal.

In order to properly accept a plea of guilty, a municipal court judge must address the defendant personally and must determine "that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea and that there is a factual basis for the plea." R. 7:6-2(a)(1). Indeed, constitutional law requires that a guilty plea be entered knowingly and voluntarily. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1468-69, 25 L. Ed. 2d 747, 756 (1970). The voluntariness of the plea is "determined only by considering all of the relevant circumstances surrounding it." Brady v. United States, supra, 397 U.S. at 749, 90 S. Ct. at 1469, 25 L. Ed. 2d at 757.

After a careful review of the record, we find no basis to set the plea aside. We note that defendant was represented by counsel when the plea was taken on August 18, 2005, and that counsel waived the reading of the complaint. The municipal court advised defendant of the consequences of the plea, setting forth in detail the various penalties for a first conviction, a second conviction and a third conviction for driving while intoxicated. A factual basis for the plea was also developed. Defendant pled guilty to the charge of driving while intoxicated. He admitted that he was driving on the day in question and that he had consumed "[t]wo beers, a couple of Red Bulls and vodkas, and two . . . Crown Royal and coke." His attorney advised the court that defendant's breathalyzer reading was "[.]19, [.]20" which is well above the legal limit. Thus, defendant was advised of the consequences of the plea and provided a factual basis for the plea.

Defendant also contends that the record does not indicate that the plea was voluntarily made. Indeed, he was not expressly asked if the plea was voluntary. However, nothing in the record suggests otherwise. "A guilty plea is not to be set aside whenever the trial court procedures are less than perfect." State v. Taylor, 80 N.J. 353, 363 (1979). Rather, the matter is considered on a case by case basis, to determine whether defendant has been "prejudiced by the omission." Ibid. The "touchstone" in this analysis is "basic fairness to the defendant." Id. at 364. The voluntariness of a plea is "determined only by considering all of the relevant circumstances surrounding it." Brady v. United States, supra, 397 U.S. at 749, 90 S. Ct. at 1469, 25 L. Ed. 2d at 757. Here the record reveals that defendant answered all questions without prodding. As the trial court noted, defendant had a previous offense so he was not a "first timer." He was represented by experienced counsel. Significantly, he presented no certification or affidavit in his post-conviction application stating that the plea was involuntary. No argument has been made that he was coerced or induced into entering the plea. We therefore defer to the findings made by the municipal court judge who took the plea.

We may not reverse the decision of a trial court denying a request to withdraw a guilty plea unless we find an abuse of discretion rendering that court's decision clearly erroneous. See State v. Simon, 161 N.J. 416, 444 (1999). Further, we must give great deference to the findings of the municipal court judge who had the opportunity to see and hear the defendant when he gave the plea. Id. at 445. For all of these reasons, we find no basis to overturn the trial court's decision.

Affirmed.

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A-1571-07T4

November 24, 2008