STATE OF NEW JERSEY v. SLAWOMIR L. DYMACZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2130-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SLAWOMIR L. DYMACZ,

Defendant-Appellant.

_______________________________

December 27, 2010

Argued November 4, 2010 - Decided

Before Judges Lihotz and J. N. Harris.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-027.

Michael R. Ascher argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Mr. Ascher, on the briefs).

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Slawomir L. Dymacz appeals from a Law Division order denying his petition for post-conviction relief (PCR), without benefit of an evidentiary hearing, seeking to vacate his municipal court conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. See R. 7:10-2 (allowing PCR petitions to be filed with respect to a municipal court conviction). On appeal defendant argues:

POINT I.

APPELLANT WAS ENTITLED TO POST-CONVICTION RELIEF SINCE THE UNDERLYING AUGUST 17, 2000 CONVICTION WAS A NULLITY ENTERED IN DIRECT VIOLATION OF THE PROVISION OF R. 7:6-2.

(A) THERE EXISTED NO FACTUAL BASIS SINCE PETITIONER WAS PERMITTED BY COUNSEL TO ENTER A "PLEA OF GUILTY" TO A NON-EXISTENT OFFENSE.

(B) THE POST-CONVICTION RELIEF COURT FAILED TO PROPERLY ANALYZE THE CLEAR CONSTITUTIONAL ERROR CONTAINED IN THE RECORD.

(C) THE LAW DIVISION FAILED TO MAKE A PROPER ANALYSIS OF THE FACTUAL AND LEGAL ISSUES BEFORE IT AND ERRED WHEN IT DENIED THE POST-CONVICTION RELIEF PETITION WITHOUT A HEARING.

Following our review of the arguments presented in the parties' briefs, in light of the record and the applicable law, we affirm.

On August 17, 2000, while represented by private counsel in a hearing held before the Parsippany-Troy Hills Municipal Court, defendant entered a guilty plea to DWI and the State agreed to dismiss the related motor vehicle offense of careless driving, N.J.S.A. 39:4-97. Prior to entering defendant's plea, the State mentioned the results of two breath tests recording defendant's blood alcohol concentration of .17 and .18 percent.1 Thereafter, the following brief colloquy took place:

THE COURT: Okay. Mr. Dymacz, the Prosecutor has indicated you're pleading guilty to a violation of [N.J.S.A.] 39:4-50, driving while intoxicated. Is that so?

THE DEFENDANT: Yes.

THE COURT: Pleading guilty and freely and voluntarily?

THE DEFENDANT: Yes.

THE COURT: And you've discussed it with your attorney, answered all your questions?

THE DEFENDANT: Yes.

. . . .

DIRECT EXAMINATION BY [DEFENSE COUNSEL]: On the day in question, which is 5/16/00, did you drive a car in the municipality of Parsippany?

A. Yes.

Q. And prior to driving that car, did you consume any alcohol?

A. Yes.

Q. And you are aware that consumption of alcohol and driving is illegal in the State of New Jersey. Is that correct?

A. Yes.

Q. And subsequently, that you were pulled over by the police officers and you were given a DWI Breathalyzer test. Is that correct?

A. Yes.

Q. And you are pleading guilty freely and voluntarily today?

A. Yes.

Q. You understand you have the right to go to a trial where the State would have to prove their case beyond a reasonable doubt?

A. Yes.

. . . .

THE COURT: And you understand that you have a right to a trial today, you're waiving that right to a trial, correct?

THE DEFENDANT: Yes.

THE COURT: . . . And you said -- I wasn't sure. Did you already say the police officer had a good reason to stop you?

THE DEFENDANT: Yes.

The municipal court judge accepted defendant's guilty plea. After considering arguments regarding sentencing, the court imposed the requisite penalties, surcharges and fines for a first DWI offense, ordered defendant attend the Intoxicated Driver's Resource Center for twelve hours of instruction, and suspended his driving privileges for six months.

Subsequently, on March 26, 2002, defendant pled guilty to a second DWI offense before the municipal court judge of the Town of Boonton. On April 2, 2009, defendant was again charged with DWI in the Borough of Mountain Lakes. He filed a PCR petition attacking the validity of his first conviction in the Parsippany-Troy Hills Municipal Court. Thereafter, as to the third DWI charge, defendant entered a conditional guilty plea, and the court deferred sentence until the determination of the merits of defendant's PCR petition.

Defendant's PCR petition argued his plea was "an absolute constitutional nullity" because it was not properly supported by a sufficient factual basis. Specifically, identifying the colloquy passage recited above, defendant maintained trial counsel was ineffective because he allowed him to plead guilty to "drinking and driving," which is not a motor vehicle offense in New Jersey and the record did not substantiate a violation of N.J.S.A. 39:4-50. Further, defendant contended the record does not reveal he understood the nature of the charge against him and the consequences of a guilty plea. Defendant explained he was not advised by counsel of his right to hire an expert to challenge the results of the breath tests.

The State argued PCR relief was time barred, and, substantively, defendant's claims were meritless. The State urged defendant's request to vacate his plea be denied.

The same municipal court judge who presided over defendant's first DWI proceeding reviewed the PCR petition, which she denied. Following de novo review, Judge Manahan of the Law Division rendered a written opinion attached to the order denying relief. Judge Manahan considered defendant's PCR petition as an attack on an illegal sentence, obviating the necessity to address whether the requested relief was time barred. The judge then determined the factual basis recited in the municipal court record was sufficient to sustain that defendant's plea was voluntarily and knowingly made to DWI, rejecting defendant's contentions to the contrary. This appeal ensued.

Following our review of the record, we conclude defendant's PCR request is time barred by Rule 7:10-2. Moreover, after consideration of the substantive arguments advanced by defendant, we reject the suggestion that defendant's guilty plea was invalid and conclude he voluntarily and knowingly pled guilty to an offense under N.J.S.A. 39:4-50.

The provisions of Rule 7:10-2(b)(2) bar PCR petitions filed "more than 5 years after entry of the judgment of conviction or imposition of the sentence sought to be attacked[.]" The rule permits review of a PCR petition filed more than five years from the date of the judgment of conviction if the petition "alleges facts showing that the delay in filing was due to defendant's excusable neglect." See State v. Mitchell, 126 N.J. 565, 576 (1992) (reviewing the parallel provision found in Rule 3:22-12). No excusable neglect is alleged in this matter. Moreover, no exceptional circumstance implicating a constitutional deprivation was shown. See State v. Afanador, 151 N.J. 41, 52 (1997) (stating a court should only relax the bar of Rule 3:22-12 under "exceptional circumstances").

Rule 7:10-2(b)(1) does allow PCR challenges seeking to correct an illegal municipal court sentence to be raised at any time. In the criminal context, our Supreme Court has recognized "that under some extraordinary circumstances, a court's improper acceptance of a guilty plea may constitute an illegal sentence within the meaning of Rule 3:22-12. For a guilty plea to be illegal in that sense, however, its acceptance must implicate constitutional issues[.]" Mitchell, supra, 126 N.J. at 577.

Defendant cites State v. Owczarski, 236 N.J. Super. 52 (Law Div. 1989), in which the Law Division, relying on the holding in State v. Paladino, 203 N.J. Super. 537, 549 (App. Div. 1985) that a "sentence which has been imposed on the basis of an illegal plea is itself illegal[,]" held "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." Owczarski, supra, 236 N.J. Super. at 53-55. Defendant's plea does not suffer from similar infirmities.

In Owczarski, the defendant entered his guilty pleas and "the court engaged in no colloquy whatsoever concerning his understanding of the pleas, their voluntary nature or their factual basis." Id. at 54. Thus "the municipal court's acceptance of Owczarski's guilty pleas in total disregard of the requirements of R[ule] 7:4-2(b) was a violation of constitutional dimension." Id. at 55.

Here, defendant admitted he was aware of the offense charged. He was well aware his blood alcohol concentration exceeded the legal limit resulting in a presumption of DWI, as the State had provided him with the Breathalyzer results it intended to introduce at trial. The State also was prepared to present the testimony of the arresting officer, who engaged the motor vehicle stop after observing defendant drive carelessly and observed defendant's behavior evincing intoxication. Defendant did not proclaim his innocence prior to entering his plea, offered no evidence exhibiting some lack of understanding of the charge, the nature of the State's evidence against him or a lack of understanding of the law. Mitchell, supra, 126 N.J. at 577. In fact, defendant fully acknowledged he was pleading guilty to DWI and assured the court he was at all times fully aided by counsel, had sufficient time to consult with his attorney, was waiving trial and voluntarily entering his plea. Finally, defendant was provided with a statement of penalties in the event of future DWI convictions. State v. Wilkerson, 321 N.J. Super. 219, 224 (App. Div.), certif. denied, 162 N.J. 128 (1999).

We discern no impairment of defendant's fundamental rights or manifest injustice in the denial of his motion to vacate his plea. State v. Slater, 198 N.J. 145, 156 (2009). We have no doubt the plea "was made truthfully, voluntarily and understandingly." State v. Herman, 47 N.J. 73, 76-77 (1966). See R. 7:6-2.

Defendant's arguments are not directed to his sentence but aimed at counsel's alleged ineffective efforts. Such challenges are time barred. Nevertheless, we will address the merits of defendant's contentions.

The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693); State v. Allah, 170 N.J. 269, 283 (2002). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.

Defendant suggests he was not told by counsel that he could employ an expert to challenge the viability of the breath test results, or otherwise challenge the admissibility of that evidence, yet he fails to provide any basis for possible challenges. "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritz test. State v. Preciose, 129 N.J. 451, 463 (1992). A defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also Allah, supra, 170 N.J. at 283.

In support of his request to vacate his plea, defendant argues counsel's examination during the plea was negligent, as the record reveals his testimony failed to establish he was driving while under the influence of alcohol because counsel only asked him whether he had "consumed alcohol and [was] driving." Defendant adds his "belief" that he was not "intoxicated at the time of arrest." He does not deny he had been drinking and offers no challenge to the breath test results showing his blood alcohol concentration well above the presumptive legal limit.

We first note defendant's claim that his guilty plea must be vacated, as it is not supported by a factual basis, is procedurally barred pursuant to Rule 7:10-2(b)(3) because it could have been, but was not, raised on direct appeal.

Second, in examining the merits of the claim, we note a defendant's application to retract a plea must be considered in light of the competing interests of the State and the defendant.

Our case law has long recognized the "important interest of finality to pleas." State v. Smullen, 118 N.J. 408, 416 (1990). "The State's strong interest in that regard 'is in having criminal wrongdoers account and in the finality of that accounting.'" Slater, supra, 198 N.J. at 155 (quoting State v. Taylor, 80 N.J. 353, 365 (1979)). At the same time, defendants are entitled to "fairness and protection of basic rights." Ibid.

Although we would agree a more detailed examination could have been made of defendant when taking his plea, nevertheless Judge Manahan's findings that defendant had a full understanding of the charge and the consequences of the plea are adequately supported by the record. We conclude defendant's assertions meet neither the performance nor prejudice prong of the Strickland/Fritz test.

Affirmed.

1 The transcript of the Law Division's de novo review states the recited Breathalyzer readings were inaccurate. Without stating the actual result of each Breathalyzer test, defense counsel admitted defendant's actual readings were higher than those recited.