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March 5, 2015


Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-002.

Robert C. Scrivo argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Scrivo, of counsel and on the briefs; Lawrence S. Cutalo, on the briefs).

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).


Defendant appeals from an order entered by the Law Division on September 25, 2013, denying his petition for post-conviction relief (PCR). For the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.


On November 15, 1988, defendant was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and his driving privileges were suspended for six months. This was his first DWI conviction.

On February 8, 2004, a police officer pulled over defendant, by then a licensed and practicing attorney in New Jersey, for failure to maintain lane control and making an improper turn. The officer smelled alcohol when he approached the vehicle. He further noticed defendant's hand movements were slow, his eyes were watery, and his face was flushed. The officer asked defendant to repeat the alphabet and defendant missed the letter "E" and stopped at the letter "J." Defendant also could not perform the "one-leg-stand" and "walk-and-turn" test without falling, tripping, or swaying.

The officer arrested defendant and transported him to the police station for processing. The officer read defendant the "standard statement" form to consent to a breath sample. When asked if he was willing to submit to the breathalyzer, defendant responded that he needed a drink of water. The officer then read to defendant the "additional statement" paragraph and asked defendant if he would consent to the breath test. Defendant again responded he needed a drink of water because he did not feel well. The officer advised defendant that his answer was unacceptable. Defendant was charged with DWI, refusal to submit to a breath sample, N.J.S.A. 39:4-50.2, and making an improper left hand turn, N.J.S.A. 39:4-116.

On April 5, 2004, defendant appeared pro se in municipal court. The prosecutor recommended to the municipal court judge that the refusal charge and the improper turn charge be dropped, and indicated that defendant would plead guilty to the DWI charge of having a blood alcohol content of more than .08 but less than .10.

The municipal court judge questioned defendant regarding his right to legal counsel

THE COURT: Mr. Aratow, you understand that you have the right to have an attorney by your side, correct?

[DEFENDANT]: Yes, Your Honor.

THE COURT: Notwithstanding the fact that you, yourself are an attorney, you understand you have the right to have other counsel by your side?

[DEFENDANT]: Yes, I do, Your Honor.

THE COURT: Okay. Do you wish to be represented by an attorney in this case, sir?

[DEFENDANT]: Not at this time, no.

THE COURT: Well, this is the time.

[DEFENDANT]: No, Your Honor.

The municipal court judge then questioned defendant about his desire to plead guilty to DWI and the factual basis for his plea

THE COURT: . . . [Y]ou wish to enter a plea of guilty to [N.J.S.A.] 39:4-50[(a)](1) which exposes you to the penalty of three months suspension of your driving privileges, correct?

[DEFENDANT]: That's correct, Your Honor.

. . . .

THE COURT: . . . Have you ever been convicted of driving under the influence of alcohol before?

[DEFENDANT]: I discussed this with [the prosecutor and], in 1988 there was a [DWI] charge.

THE COURT: Okay. And I just checked the computer and there is a conviction in 1988. However, it's been beyond ten years, so I will treat you as a first offender and allow you to enter a plea of guilty to this offense based on the facts in this particular case.

So on February 8th, '04, were you operating a Jaguar, 2002 Jaguar on James Street?

[DEFENDANT]: Yes, Your Honor.

THE COURT: And prior to operating that vehicle, did you have some alcoholic beverages to drink?

[DEFENDANT]: Yes, Your Honor.

THE COURT: And what did you have, and how many?

[DEFENDANT]: I had three, I believe, [v]odka and tonics.

. . . .

THE COURT: Okay. All right. And you wish to plead guilty to operating your motor vehicle while under the influence of alcohol . . . with a blood alcohol reading . . . of less than .10, but more than .08, . . . based on the facts in this case; is that correct?

[DEFENDANT]: I believe that's correct, Your Honor, and yes.

THE COURT: Okay. I'm going to allow you to plead guilty for those reasons stated on the record previously. I'm satisfied that this is a proper resolution of this matter. I'll enter the plea of guilty to 39:4-50 -- 39:4-50[(a)][](1).

On June 20, 2009, defendant was arrested and charged with his third DWI and other traffic offenses. On June 14, 2011, defendant pled guilty to this DWI, the court treated it as a third offense, and suspended his license for ten years and entered a 180-day period of confinement. The jail sentence was stayed to allow defendant the opportunity to file a PCR petition regarding his 2004 DWI conviction.

On October 17, 2011, defendant filed a ten-page verified PCR petition. Defendant certified that in 1985 he "broke both legs below the knee" in a skiing accident, which resulted in his "right leg [being] over an inch and one-half shorter than [the] left," and his ankles "chronically unstable, particularly when on one foot[.]" He also provided explanations for his alleged erratic driving, slow hand movements, and failure to recite the entire alphabet.

On June 4, 2012, the municipal court judge heard oral argument on defendant's application. Defendant asserted that: 1) his April 2004 guilty plea failed to meet the constitutional standards for the acceptance of pleas; 2) the outcome of his 2004 case would have been different if he had the assistance of counsel; and 3) the five-year time period for filing a PCR petition should be relaxed. The judge denied the petition on two grounds. First, the judge found that defendant's petition was barred by Rule 7:10-2(b)(2) because it was filed more than five years after the April 2004 conviction. Second, the judge found that defendant was an experienced attorney, who "intelligently and knowingly waived his right to an attorney." The court did not directly address the adequacy of the factual basis defendant provided, only noting that he admitted to operating his vehicle after drinking three vodka and tonics.

Defendant then appealed to the Law Division. The Law Division judge conducted a de novo review of the record and concluded that although the petition was not barred by the five-year statute of limitations, defendant did not present a prima facie case for PCR. The judge determined that the 2004 guilty plea was not constitutionally defective; that "[w]hile the plea was succinct," defendant provided a factual basis for his plea; and that defendant was not entitled to be treated as a second offender under the DWI statute. The judge also determined that defendant was not entitled to bail or a stay pending appeal.

This appeal followed, with defendant raising the following points



A. [Defendant's] Guilty Plea Was Not Voluntary, Knowing, and Intelligent and Otherwise Violated Rule 7:6-2(a)(1).

B. The Law Division Erred By Failing to Find that [Defendant] Voluntarily, Knowingly, and Intelligently Waived his Right to Counsel.

C. The Courts Below Erred By Holding [Defendant] to A Higher Standard Because He was a Lawyer.






On an appeal such as this, we "consider only the action of the Law Division and not that of the municipal court[,]" State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001), because the Law Division's determination is de novo on the record from the municipal court. R. 3:23-8(a)(2). Our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Although we are ordinarily limited to determining whether the Law Division's de novo factual findings "could reasonably have been reached on sufficient credible evidence present in the record[,]" State v. Johnson, 42 N.J. 146, 162 (1964), we owe no such deference here because the Law Division decided the application under review on the papers without taking testimony. See State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Rule 7:10-2, the analog to Rule 3:22, provides a PCR remedy for municipal court convictions. In this case, defendant invokes, as a basis for relief, a "substantial denial in the conviction proceedings of [his] rights under the Constitution of the United States or the Constitution or laws of New Jersey[.]" R. 7:10-2(c)(1).

Rule 7:6-2, the analog to Rule 3:9-2, governs guilty pleas in municipal court proceedings. The Rule requires that the judge "shall not . . . accept a guilty plea without first addressing the defendant personally and determining by inquiry of the defendant . . . that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea and that there is a factual basis for the plea." R. 7:6-2(a)(1).

Rule 7:6-2(a)(1) follows the language of Rule 3:9-2 and is intended to afford defendants the same protections. Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 7:6-2 (2015); see also State v. Gale, 226 N.J. Super. 699, 704 (Law Div. 1988). "For a plea to be knowing, intelligent, and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005).

The transcript of the 2004 DWI conviction indicates that defendant was not informed orally of the progressively enhanced penalties that would apply if he were convicted of another DWI, as required by N.J.S.A. 39:4-50(c).1 While the record indicates that defendant received written advice of the progressively enhanced penalties, at oral argument before us the State conceded that defendant likely first received this notice at the municipal court window after he pled guilty to DWI.

We therefore conclude that the Law Division judge's determination that defendant knowingly, voluntarily, and intelligently understood the nature of the charges against him and the consequences of his guilty plea is not supported by the record. If defendant knew about the consequences by an on-the-record discussion with the judge, as required by Rule 7:6-2(a)(1), such a discussion may have caused him to have tried the 2004 case, instead of pleading guilty, especially in light of the purported meritorious defense outlined in his PCR petition.

We also have serious questions as to whether the court obtained a sufficient factual basis. N.J.S.A. 39:4-50(a) provides that to be guilty of DWI, a person must operate "a motor vehicle while under the influence of intoxicating liquor . . . or [operate] a motor vehicle with a blood alcohol concentration of 0.08% or more[.]" "[O]ur law requires that each element of the offense be addressed in the plea colloquy." State v. Campfield, 213 N.J. 218, 231 (2013). The "court must be satisfied from the lips of the defendant that he committed the acts which constitute the crime." State ex rel. T.M., 166 N.J. 319, 327 (2001) (citation and internal quotation marks omitted); State v. Tate, ___ N.J. ___, ___ (2015) (slip op. at 22); State v. Perez, ___ N.J. ___, ___ (2015) (slip op. at 19). "The trial court's task is to ensure that the defendant has articulated a factual basis for each element of the offense to which he pleads guilty." Campfield, supra, 213 N.J. at 232.

The Law Division judge found there was a factual basis for defendant's plea based upon defendant's admission that he was operating a vehicle on the date in question, after drinking three vodka and tonics. Defendant was not asked if the alcohol impacted his ability to operate the vehicle appropriately. Nor was defendant asked over what period of time he had consumed the drinks, nor the size of the drinks. Therefore, we conclude that a sufficient factual basis was not provided and that the record does not support a finding that defendant drove his vehicle while under the influence of alcohol, or drove his vehicle with a blood alcohol content between .08 and .10.

The remedy for an inadequate factual basis is an order vacating the guilty plea and restoring both parties to their positions prior to the trial court's acceptance of the plea. State v. Barboza, 115 N.J. 415, 420 (1989). If an appellate court "determines that a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re-plead or to proceed to trial." Ibid.

Regarding defendant's claim that the Law Division erred by finding that his 2004 conviction was not uncounseled and thus could be used to enhance the custodial portion of his 2011 conviction, we decline to address this issue since we are remanding for a trial on the 2004 charges.

If defendant should be found not guilty of the 2004 DWI charge, he would then be in a position to benefit, regarding his 2011 conviction, from the Supreme Court's recent decision in State v. Revie, 220 N.J. 126, 129 (2014) (holding that "a repeat DWI offender may invoke the statutory 'step-down' provision a second time, provided that more than ten years have passed with no infraction since the defendant's most recent DWI offense"). If defendant is acquitted of the 2004 DWI charge, then in light of Revie, the 2011 conviction would be more than ten years after his first DWI conviction, thereby entitling him to have the 2011 conviction treated as a first offense.

We therefore reverse and remand to the municipal court for a trial on the 2004 charges. We set aside the 2004 guilty plea and vacate the 2004 judgment of conviction. The dismissed charges shall be reinstated, and defendant allowed to re-plead or to proceed to trial. If defendant is found not guilty on the 2004 DWI charge, he can file a motion in the municipal court to modify his 2011 sentence.

Reversed and remanded. We do not retain jurisdiction.

1 In relevant part, N.J.S.A. 39:4-50(c) provides

Upon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section.

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