STATE OF NEW JERSEY v. WAYNE E. FABER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYNE E. FABER,

Defendant-Appellant.

_________________________________

September 5, 2014

Submitted June 2, 2014 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-37-12.

Milton W. Brown, attorney for appellant (William A. Colarulo, Jr., on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Wayne E. Faber pled guilty in Municipal Court to driving while intoxicated and failing to report an accident. The Law Division rejected his attempts to claim the denial of a speedy trial, to withdraw his guilty plea, and to raise ineffective assistance of counsel. We affirm.

I.

At his guilty plea, defendant admitted that on December 22, 2011, he had gone out with friends to celebrate his birthday. He had two beers, and two shots of vodka with Red Bull. He had also taken cold medication. Both impaired his ability to drive. Driving home, he was involved in an accident with another vehicle, but he did not report the accident.1 Police officers arrived at his home, and he accompanied them to the police station. He attempted psycho-physical tests. A "Breathalyzer" [Alcotest] machine showed his blood alcohol content was .13%.

Defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; leaving the scene of an accident, N.J.S.A. 39:4-129; failure to report an accident, N.J.S.A. 39:4-130; and another charge. Pursuant to a plea bargain, defendant pled guilty to DWI and failure to report an accident. The other charges were dismissed.

At the July 30, 2012 plea colloquy, defendant was questioned extensively by his counsel and by the Municipal Court. Defendant swore that he was entering the guilty plea of his own free will, that he was in fact guilty, and that the breathalyzer was a "true test." He attested that he had enough time to discuss the matter at length with his counsel, that all of his questions had been answered, and that he was satisfied with the services of his counsel.

Counsel acknowledged that this was defendant's second DWI offense, and that the accident victim was pregnant. Counsel noted that the fines and penalties would be "really hard" for defendant. Counsel recognized that defendant was "going to lose his license for about two years," and that "[h]e's going to lose his job" because "he needs his license for work." Counsel also recognized that defendant would also have an interlock device. Counsel requested, and the prosecutor recommended, the minimum penalties, and a "civil reservation" that the plea would not be evidential in any civil proceedings.

The Municipal Court found that defendant "has no doubt about what he's testifying here to today," and that his plea of guilty was voluntary. The court accepted the recommendation to impose the minimum sentence and grant a civil reservation. On the DWI offense, the court imposed forty-eight hours of Intoxicated Drivers Resource Center (IDRC) counseling, thirty days of community service, a two-year license suspension, an interlock device for four years, a fine of $1006, court costs of $33, and the following surcharges: DWI $100, DDEF $100, VCCB $50, and Safe Neighborhood $75. For the offense of failure to report the accident, the court imposed five days in SLAP or another alternate program, a fine of $106, and court costs of $33. After defendant described his ability to pay, the court accepted a payment plan of $20 immediately and $50 per month.

Defendant appealed to the Law Division raising his current claims. After hearing argument, the court denied defendant's request for dismissal or remand.

Defendant appeals the Law Division's January 30, 2013 order, raising the following claims:

POINT I - THE CASE SHOULD BE DISMISSED BECAUSE THE APPELLANT WAS DENIED A SPEEDY TRIAL.

POINT II - THE GUILTY PLEA SHOULD BE WITHDRAWN AND THE CASE REMANDED FOR A NEW TRIAL BECAUSE THE GUILTY PLEA WAS NOT A VOLUNTARY PLEA.

POINT III - THE GUILTY PLEA SHOULD BE WITHDRAWN BECAUSE THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

II.

Defendant's speedy trial claim is meritless. "'Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Knight, 183 N.J. 449, 470 (2005); accord Tollett v. Henderson, 411 U.S. 258, 267, 93 Sct 1602, 1608, 36 L. Ed. 2d 235, 243 (1973). "Included within those constitutional rights that are deemed waived after entering an unconditional guilty plea are 'the privilege against compulsory self-incrimination, the right to trial by jury, the right to confront one's accusers, and the right to a speedy trial.'" Ibid.; e.g., State v. Garoniak, 164 N.J. Super. 344, 348-49 (App. Div. 1978).

In any event, defendant was unable to detail the length of the extensions, which extensions were requested by the defense, or what outstanding discovery caused delays. Nor has he shown dismissal would be required by the "length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant." State v. Cahill, 213 N.J. 253, 264 (2013) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972)). The Law Division properly refused to dismiss based on his speedy trial claim.

III.

Defendant next claims that his plea was not voluntary because he was not advised of "the consequences of a guilty plea." R. 7:6-2(a)(1). As set forth above, however, counsel on the record addressed several important consequences of the plea, and the court immediately thereafter imposed the specific consequences without surprise or protest from defendant. The Municipal Court found that defendant was pleading guilty "knowing what you're facing and also the fines, the penalties and the effect of a guilty plea to you today." The Law Division found that the plea was knowing, intentional, and voluntary.

Defendant notes the colloquy did not cover the range of penalties, but he was informed he was receiving the minimum, and he does not allege to have been unaware of the range. He notes there was no notice that the guilty plea would become part of his driving record. However, he does not claim ignorance of that fact, which is hardly surprising as he had previously been prosecuted for a DWI and sentenced and knew he was being sentenced as a second offender. Defendant cannot show that any error was "clearly capable of producing an unjust result." R. 2:10-2.

In any event, "[t]here is nothing before us indicating . . . that the defendant ever sought leave from the municipal court to withdraw his plea." State v. Mull, 30 N.J. 231, 233 (1959). Even if he may move to withdraw his Municipal Court plea in the Law Division, "the trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999); State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009). We must hew to that standard of review.

Because defendant moved to withdraw his plea after sentencing, he must show withdrawal is necessary "to correct a manifest injustice." R. 7:6-2(b); see Mustaro, supra, 411 N.J. Super. at 100. To meet that standard, he "must show that the mistaken belief about, or lack of knowledge of, a penal consequence of a plea was material to the decision to plead guilty and prejudiced the defendant." State v. Johnson, 182 N.J. 232, 241 (2005). "'[T]he plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead.'" State v. McQuaid, 147 N.J. 464, 496 (1997). Defendant has failed to make such a showing.

Nor has defendant shown that plea withdrawal was justified considering "(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." State v. Slater, 198 N.J. 145, 157-158 (2009). Given the favorable plea bargain, the prejudice to the State including bringing back the victim from Delaware, the parties' plea bargain, defendant's weak reasons for withdrawal, and his unsupported claim of innocence, the Law Division found no basis to withdraw the plea. Its decision was not an abuse of discretion.

IV.

Lastly, defendant argues his plea counsel was ineffective. Specifically, defendant claims that he gave counsel reasons why the Alcotest results were invalid, that he requested counsel to defend the charges and retain an expert, that counsel was unprepared, and that counsel told him he could either plead guilty or fire her and go to trial without counsel. He also claims he was unable to converse freely with counsel prior to trial. Any evidence to support these claims is outside the record if it exists at all.

Courts "routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'" State v. Hess, 207 N.J. 123, 145 (2011) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). Such claims "should be determined in a post-conviction relief [PCR] proceeding." State v. McDonald, 211 N.J. 4, 30 (2012). Accordingly, the Law Division properly dismissed defendant's

ineffectiveness claims without prejudice to a PCR petition in Municipal Court.

Affirmed.

1 According to the police reports, defendant's pickup ran a yield sign and hit a Toyota. Defendant fled because he had been drinking and "it would be my second drinking and driving." However, the accident victim in the Toyota got his license plate number, and police found him in the pickup in his driveway. He had bloodshot eyes, smelled of alcohol, had vomited, and was apparently impaired.