NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5245-08T4
STATE OF NEW JERSEY,
NICOLA J. CIARLANTE,
Submitted April 12, 2010 - Decided May 13, 2010
Before Judges Reisner and Chambers.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Municipal Appeal No. 64-08.
Levow & Associates, P.A., attorneys for the
appellant (Evan M. Levow, of counsel and on
the brief; Kevin Leckerman, on the brief).
Warren W. Faulk, Camden County Prosecutor,
attorney for the respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
In this petition for post-conviction relief, defendant
Nicola J. Ciarlante seeks to overturn his guilty plea to the
charge of driving while intoxicated, N.J.S.A. 39:4-50. His
application was denied by both the municipal court and Law
Division. We affirm for the reasons set forth by those courts.
On June 18, 2001, in the Municipal Court of the Township of
Winslow, defendant, who was represented by counsel at the time,
pled guilty to the charge of driving while intoxicated. Under
the terms of his sentence, he lost his driving privileges for a
period of two years; he was required to serve forty-eight hours
in the Intoxicated Drivers' Resource Center and to perform
thirty days of community service; and a $500 fine and other
monetary assessments were imposed.
On August 27, 2008, over seven years after his guilty plea,
and while faced with a subsequent charge of driving while under
the influence, defendant filed this petition for post-conviction
relief in the municipal court. Although defendant did not
challenge the factual basis for the plea, he argued that he had
not been advised of his right to trial, the right to cross-
examine witnesses, and his right to remain silent. The
municipal court rejected these arguments noting that routinely
at the beginning of the court session these rights are
explained. Defendant's transcript did not contain the opening
of the June 18, 2001, municipal court proceedings.
Defendant appealed to the Law Division. The Law Division
judge denied the petition for post-conviction relief on the
basis that it was filed out of time, relying on Rule 3:22-12(a)
and Rule 7:10-2(g)(2), which require that a petition for post-
conviction relief be filed within five years of the judgment or
sentence absent a showing of excusable neglect. He further
concluded that defendant had not shown excusable neglect in
failing to meet the five year filing deadline under these rules.
Defendant then moved for reconsideration, and that motion was
also denied by the Law Division judge.
In his appeal to this court, defendant raises the following
APPELLANT WAS NOT PROPERLY ADVISED OF HIS
CONSTITUTIONAL RIGHTS BEFORE HE ENTERED A
PLEA OF GUILTY TO VIOLATING N.J.S.A. 39:4-50
AND, THEREFORE, THE GUILTY PLEA SHOULD HAVE
Defendant argues that the municipal judge failed to advise
him that by pleading guilty, he was waiving his right to a jury
trial and his right to confront accusers. He contends that the
municipal court also failed to advise him of his right to appeal
to the Law Division.
After a careful review of the record and the arguments of
counsel, we conclude that the issues raised in this appeal are
without sufficient merit to warrant discussion in a written
R. 2:11-3(e)(2). We note that defendant's post-
conviction relief petition to vacate his plea is untimely
because it was not filed within five years of the judgment or
sentence as required by Rule 7:10-2(g)(2).
Defendant seeks to circumvent the untimeliness of his
application by arguing that due to these failures, his sentence
is illegal, and hence, under Rule 7:10-2(b)(1), it may be
appealed at any time. However, the circumstances here do not
give rise to a claim of an illegal sentence. An illegal
sentence occurs when either: (1) the sentence "exceed[s] the
penalties authorized by statute for a specific offense," or (2)
the sentence "was not imposed in accordance with law." State v.
162 N.J. 240, 246-47 (2000). This second category
includes sentences with a disposition not authorized by the
code, sentences where defendant fails to satisfy a precondition,
and sentences that fail to include a required period of parole
ineligibility. Id. at 247. None of these circumstances are
Further, defendant has not made a showing of exceptional
circumstances and "injustice" that would allow us to entertain
his application for post-conviction relief despite its
untimeliness. See State v. Mitchell,
126 N.J. 565, 580 (1992)
(discussing the relaxation of the time periods in Rule 3:22-12
upon a showing of "exceptional circumstances" when determining
if there has been an injustice sufficient to warrant relaxation
of the time limits). Defendant has presented no pressing
justification for his delay. He has failed to sustain his
burden of establishing that his plea was not knowingly and
voluntarily made. He does not claim that he is innocent of the
charge. Thus, he has made no showing that injustice will occur
if his plea is allowed to stand.1
Finally, we note that the municipal court's failure to
advise defendant of his right to appeal to the Law Division may
not be raised by defendant once the five years allowed for a
See State v.
petition for post-conviction relief has expired.
187 N.J. 531, 536 (2006) (providing that a defendant who
was not advised of his right to appeal may appeal as within time
provided the appeal is filed within five years of the date of
Even if defendant were able to overcome the untimeliness
argument, he still would have to show "manifest injustice" in
order to vacate his plea after sentencing. State v. Slater,
198 N.J. 145, 156 (2009). The court would have to take into account
the following four factors when deciding whether to allow the
plea to be withdrawn: "(1) whether the defendant has asserted a
colorable claim of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in unfair
prejudice to the State or unfair advantage to the accused." Id.