STATE OF NEW JERSEY v. MICHAEL BARBELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3799-07T43799-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BARBELLA,

Defendant-Appellant.

_________________________________________

 

Submitted December 3, 2008 - Decided

Before Judges Rodr guez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 91-07.

Darrin Lord, attorney for appellant.

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Barbella appeals from the denial of his petition for post-conviction relief (PCR) to vacate his plea of guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.

Defendant was convicted of DWI in 1989 in the Atlantic City Municipal Court; on February 15, 1994 in the Ventnor Municipal Court; and on March 8, 1994 in the Margate Municipal Court. He was sentenced on the last two convictions on the same date. Perhaps due to the confusion caused by the same date disposition in Ventnor and Margate, he was sentenced as a second offender in each court. Clearly, he was lucky to avoid being sentenced as a third offender in either Ventnor or Margate.

In 2006, he was charged in Atlantic City with a fourth DWI. Defendant eventually pled guilty.

Despite the Rule 7:10-2 five-year time bar, defendant filed a PCR petition to set aside the Ventnor conviction. The PCR petition was filed on December 18, 2006, more than twelve years after the conviction. Nonetheless, the Ventnor Municipal Court considered the petition. Defendant had limited success in Ventnor. The judge did not vacate the conviction. However, the judge ordered that the Ventnor conviction not be used for the purpose of enhancement of the penalty for future convictions.

Defendant appealed to the Law Division, requesting that the Ventnor conviction be vacated. Judge James Isman ordered that the matter be remanded to the Ventnor Municipal Court for an evidentiary hearing to determine: whether or not defendant's plea was entered knowingly and voluntarily; and whether any procedural bars would apply pursuant to Rule 7:10-2(b).

On remand, the Ventnor Municipal judge held an evidentiary hearing. Defendant testified as to the existence of excusable neglect. The judge denied the PCR petition because defendant failed to establish excusable neglect. Thereafter, defendant was sentenced in the Atlantic City Municipal Court on the 2006 offense as a fourth offender.

Defendant appealed the denial of his PCR petition and the Atlantic City sentence to the Law Division. Judge Isman found that the PCR petition was properly denied. Therefore, defendant faced the enhanced penalties upon his conviction for the 2006 arrest in Atlantic City. N.J.S.A. 39:4-50(a)(3) sets the punishment for a third or subsequent violator as payment of a $1,000 fine; imprisonment for a term of not less than 180 days in a county jail or workhouse and forfeiture of driving privileges for ten years. In addition, defendant must install an ignition interlock device pursuant to N.J.S.A. 39:4-50.16 once his driving privileges have been restored.

Judge Isman also ruled that defendant should be sentenced as a fourth offender and imposed the following sentence:

$1,006.00 fine; $33.00 court costs; $50.00 VCCA penalty; $75.00 safe streets assessment; $200.00 drunk driving enforcement surcharge; two year ignition interlock; ten year suspension of drivers license, effective August 21, 2006; 180 days in the county jail, 90 days of which may be satisfied by participation in an inpatient rehabilitation program approved by the [Intoxicated Driver's Resource Center]

. . .

The 180 day county jail sentence set forth in ordinal paragraph number three above shall be and is hereby stayed pending appeal to the Appellate Division, provided the defendant files an appeal to the Appellate Division within forty-five days of the date of this order.

On appeal, defendant contends:

[DEFENDANT'S] GUILTY PLEA WAS NOT ENTERED KNOWINGLY AND VOLUNTARILY VIOLATING HIS RIGHTS UNDER THE UNITED STATES CONSTITUTION AND THEREFORE SHOULD HAVE PROPERLY BEEN VACATED.

WHERE A GUILTY PLEA IS NOT KNOWINGLY AND VOLUNTARILY OBTAINED A MOTION TO VACATE THAT GUILTY PLEA MAY BE FILED AT ANY TIME AS IT IS A VIOLATION OF CONSTITUTIONAL DIMENSION.

THE LAW DIVISION'S DECISION IS FLAWED AS IT MAKES PRESUMPTIVE ASSUMPTIONS THAT [DEFENDANT] RECEIVED THE BENEFIT OF A BARGAIN AND THEREFORE HIS PLEA WOULD BE KNOWING AND VOLUNTARY.

We disagree and determine that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We merely note that even if defendant were to succeed on the merits of his PCR petition, he would still face third-time offender status for the 2006 Atlantic City DWI conviction. We note that he received the minimum mandatory sentence for a third-time offender.

 
Affirmed. The stay of the 180-day county jail sentence is vacated. Defendant must surrender to the Atlantic County Jail no later than August 28, 2009.

(continued)

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A-3799-07T4

August 17, 2009