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October 25, 2013


Argued October 16, 2013 - Decided


Before Judges Messano and Sabatino.


On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 12-07-0449.


J. Vincent Molitor, Assistant Prosecutor, argued the cause for appellant/cross-respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Mr. Molitor, of counsel and on the brief).


James K. Smith, Jr., argued the cause for respondent/cross-appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the briefs).


This appeal and cross-appeal arise out of defendant's conviction in the Law Division for violating N.J.S.A. 2C:40-26(b), operating a motor vehicle with a license suspended as the result of multiple prior drunk driving offenses. Her conviction of that fourth-degree criminal offense occurred several months after withdrawing her guilty plea in the municipal court to the lesser charge of driving on the suspended list, N.J.S.A. 39:3-40.

Defendant contends that her former counsel, who arranged the plea withdrawal in municipal court, was constitutionally ineffective, because if her plea to the Title 39 violation had not been withdrawn, the State would have been precluded under the Double Jeopardy Clause from prosecuting her for an indictable offense for that same conduct under N.J.S.A. 2C:40-26(b). The State, meanwhile, challenges the legality of the thirty-day jail sentence the Law Division imposed upon defendant for the N.J.S.A. 2C:40-26(b) offense.

For the reasons that follow, we remand this matter to the Law Division to allow defendant to file a petition for post-conviction relief ("PCR"), and to enable a fuller record to be developed exploring the reasons why defendant's former counsel had arranged for the withdrawal of her original municipal plea. In the meantime, with the State's consent, the previously-imposed stay of defendant's jail sentence shall continue, pending completion of the PCR proceedings. Subject to the outcome of those remand proceedings, we further direct that the jail sentence, which defense counsel concedes is illegal, be increased from thirty days to the minimum of 180 days mandated by N.J.S.A. 2C:40-26(c).

We derive the following chronology from the record. Defendant Davi F. Kane was arrested in Ocean City on January 25, 2012 for driving while on the suspended list. Defendant's vehicle had been stopped because she had been talking on a cell phone while driving. There is no contention that she was intoxicated at the time, or was committing a moving violation.

At the time of defendant's motor vehicle stop, she had been serving a ten-year suspension of her driver's license as a result of multiple prior convictions for drunk driving, N.J.S.A. 39:4-50.

On March 22, 2012, defendant, represented by counsel, entered into a plea agreement with the municipal prosecutor, in which she pled guilty to driving while on the suspended list, in violation of N.J.S.A. 39:3-40. A violation of that statute is a non-indictable offense, triggering mandatory imprisonment in the county jail for not less than ten days, but no more than ninety days. Ibid.

The municipal judge sentenced defendant to thirty days in jail, with the ability to serve that time intermittently, under an alternate incarceration program. In addition, the municipal judge imposed a one-year consecutive suspension of defendant's driver's license, plus various fines and court costs.

The original municipal plea was advantageous to defendant because her conduct was also in violation of N.J.S.A. 2C:40-26(b). That statute, which became effective on August 1, 2011, makes it a fourth-degree crime for a motorist to operate a vehicle at a time when his or her driver's license is suspended or revoked for a second or subsequent conviction for driving while intoxicated ("DWI"). In State v Carrigan, 428 N.J. Super. 609 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013), we upheld the constitutionality of this new fourth-degree statute, allowing it to apply in circumstances where the underlying DWI suspensions were imposed prior to the statute's August 2011 effective date.

The reason that defendant's original plea was especially advantageous to her is that N.J.S.A. 2C:40-26(b) carries a mandatory minimum penalty of 180 days in prison. N.J.S.A. 39:3-40 is a lesser-included offense of N.J.S.A. 2C:40-26(b), because the elements of the former statute are subsumed among the elements of the latter. Pursuant to State v. Dively, 92 N.J. 573 (1983), if defendant's original guilty plea to the lesser offense in municipal court had not been vacated, the State would be precluded under Double Jeopardy principles from pursuing a fourth-degree indictment against defendant for the same conduct.

For reasons that are not explained in the record, another attorney, who was associated with defendant's original counsel, appeared five days later before the municipal judge in the company of defendant and withdrew her guilty plea to the lesser offense. The municipal judge took no sworn testimony from defendant acknowledging that she was withdrawing her plea voluntarily. The only comment by defendant recorded in the transcript is her brief remark to the judge stating that she had paid $236 of the fines that had been previously imposed.

Subsequent to the withdrawal of defendant's municipal plea, she was indicted by the grand jury for the fourth-degree offense under N.J.S.A. 2C:40-26(b). She then appeared with the attorney who had withdrawn her initial guilty plea in the Law Division, and pled guilty to that more serious charge. In exchange, the State recommended that she be sentenced to the 180-day minimum under the statute.

On the day of sentencing before a different Law Division judge, defendant requested an opportunity to obtain new counsel. Thereafter, defendant's new attorney moved to withdraw her guilty plea to the fourth-degree offense. The Law Division judge declined that request, essentially because defendant had not asserted a colorable claim of innocence.

Defendant then moved for reconsideration, which the Law Division judge denied. The judge recognized that defendant had potentially viable Double Jeopardy and ineffectiveness arguments, but she directed that they be pursued separately in a future PCR. The judge then sentenced defendant to thirty days in the county jail, without explaining how that shorter sentence could comport with the 180-day minimum under N.J.S.A. 2C:40-26(b). Defendant's service of the jail sentence has been stayed, however, pending the State's appeal.

In her cross-appeal, defendant contends that she was deprived of the effective assistance of counsel when her former counsel withdrew the municipal plea on her behalf five days after it had been entered. In its frank response, the State's brief acknowledges that defendant's claims of ineffective assistance of counsel "certainly seem to have some validity." Even so, the State contends that the record is inadequate to reach that conclusion definitively. The State submits that the record should be expanded to include testimony from defendant's former counsel "to explain [their] thoughts and actions" concerning the withdrawn plea.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in her defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). In these situations, defendant must show with "reasonable probability" that the result would have been different had she received proper advice from her attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Turning initially to the second prong of Strickland, we note that the State does not seem to quarrel with defendant's claim that she was "actually prejudiced" by the withdrawal of her guilty plea to N.J.S.A. 39:3-40. It is readily apparent, as a matter of law, that if her plea to that lesser-included offense had not been withdrawn, she would have been protected under the Double Jeopardy Clause from prosecution for the fourth-degree crime. See Dively, supra, 92 N.J. at 585-86 (analogously concluding that a defendant's conviction of the lesser-included Title 39 offense of reckless driving barred his subsequent prosecution under Title 2C for death by auto arising out of the same conduct).

The ineffectiveness analysis here thus turns on whether the first Strickland prong is met, i.e., whether defendant's former counsel's performance was deficient. As the State acknowledges, there are substantial indicia here of such deficient performance. There is nothing in the present record that explains why counsel thought it was necessary or appropriate to vacate his client's guilty plea five short days after it was entered in municipal court. If defendant had changed her mind and wanted to disprove her guilt, she presumably would not have subsequently pled guilty to the fourth-degree crime in the Law Division. In addition, the baseline fact of defendant's operation of a motor vehicle while having a suspended license seems incontrovertible. On appeal, defendant admits that she was driving illegally, but simply contests the State's legal right to prosecute her for the more serious offense under N.J.S.A. 2C:40-26(b).

So it is puzzling, at the very least, why defendant's former attorney would have arranged to vacate her municipal plea. It is also puzzling, and irregular, for the municipal judge to not have placed defendant under oath at that proceeding, and to not have explored her reasons for wanting to withdraw the plea. See R. 3:21-1 (allowing guilty pleas to be withdrawn before sentencing); see also R. 7:6-2(b) (similarly authorizing such plea withdrawals in municipal court). The municipal judge accepted the withdrawal without making any findings under the four-part standards of State v. Slater, 198 N.J. 145, 150 (2009) (requiring consideration of "(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").

The transcript of the short March 27, 2012 withdrawal proceeding does contain a cryptic remark by the municipal prosecutor, stating that defense counsel "understands that as a consequence [of the withdrawn plea] what will now happen is what should have happened, in that the police will charge the defendant with an indictable offense, which will supersede . . . this [traffic] ticket, and the matter will then be referred to the County Prosecutor's Office." It is unclear what the municipal prosecutor meant by "what should have happened." As the State's appellate counsel suggested to us at oral argument, it is possible that the municipal prosecutor and police had not initially recognized the potential for indictment here under N.J.S.A. 2C:40-26(b), a statute that had only been recently enacted and which had yet to be constitutionally validated by our decision in Carrigan.

Alternatively, it is conceivable that defendant's former counsel may have been under a belief that he had some ethical obligation to have the plea vacated. Cf. In re Seelig, 180 N.J. 234, 256 (2004) (holding that defense counsel was required to inform the court of pending indictable charges against his client, so that the court would not be misled as to the Double Jeopardy implications of accepting the client's guilty plea on motor vehicle charges). Although there was no pending indictment under N.J.S.A. 2C:40-26(b) as of the March 27, 2012 withdrawal proceeding, perhaps defendant's counsel had construed Seelig or another ethics case to require corrective action.

Despite these unknowns, defendant urges that we declare conclusively that her former counsel was constitutionally ineffective and vacate her fourth-degree conviction. We decline to do so at this juncture. It is well established that claims of ineffective assistance of counsel are generally better suited for disposition through a PCR proceeding, where the record may be expanded with appropriate proofs, than through a direct criminal appeal. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We will follow that general approach here.

For these reasons, we remand this matter to the Law Division for further proceedings. More specifically, defendant shall file within thirty days a PCR petition asserting her claims of ineffectiveness. After the State responds to the petition, the assigned Law Division judge shall conduct a hearing on the matter and consider appropriate proofs. Such proofs ideally should include a certification or testimony from defendant's former attorneys, explaining why they pursued the withdrawal of her municipal guilty plea and her ensuing guilty plea to the indictable offense in the Law Division.

Upon considering such additional evidence and the parties' arguments under Strickland, the Law Division judge shall make detailed findings of fact and conclusions of law adjudicating the PCR application. If, as a result of that process, defendant is still aggrieved, she may file a new notice of appeal with this court. In the meantime, with the State's consent, defendant's service of her jail sentence shall continue to be stayed, although the suspension of her driver's license will remain in effect.

Lastly, we direct that, subject to the outcome of the PCR proceeding, the judgment of conviction on the N.J.S.A. 2C:40-26(b) offense shall be amended to increase the jail sentence from thirty days to the statutorily-mandated 180 days.

Remanded to the Law Division for further proceedings as instructed in this opinion. We do not retain jurisdiction.

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