STATE OF NEW JERSEY v. CHARUDUTT J. PATEL

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1824-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHARUDUTT J. PATEL,

     Defendant-Appellant.
___________________________

              Submitted February 5, 2018 – Decided March 20, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Municipal
              Appeal No. MAM-39-2016.

              The Rotolo Law Firm, attorneys for appellant
              (Victor A. Rotolo, of counsel and on the
              brief; E. Carr Cornog, III and William E.
              Reutelhuber, on the briefs).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Patrick F. Galdieri,
              II, Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM
     Defendant Charudutt Patel appeals from a Law Division order,

entered after de novo review of orders entered in the Piscataway

Municipal Court, denying his request for post-conviction relief

(PCR) under State v. Laurick, 
120 N.J. 1 (1990), from a 1994

conviction for driving while intoxicated (DWI), 
N.J.S.A. 39:4-50,

and his motion for reconsideration.      Based on our review of the

record in light of the applicable law, we affirm.

                                  I.

     In April 1994, defendant was charged with DWI.           The police

reports show defendant was behind the wheel of his parked vehicle,

with the engine running.    He admitted he "had been drinking," and

parked his vehicle because he "felt unable to drive further."           The

officer smelled a "strong odor of alcohol," and found four beers

in the vehicle.   Defendant failed the field sobriety tests, and

chemical breath tests showed a blood alcohol content (BAC) of .13%

and .12%.

     On May 19, 1994, defendant pleaded guilty to DWI in the

Piscataway   Municipal   Court.   The   court   files   are   no    longer

available because they were destroyed fifteen years after the

conviction in accordance with the court's practice.

     In 2010, defendant was charged with DWI in North Brunswick.

He retained counsel, and on July 29, 2010, pleaded guilty to a

second DWI offense.

                                  2                                A-1824-16T4
     On January 18, 2015, defendant was charged with DWI in

Tewksbury Township.    While that charge was pending, defendant was

charged with DWI in Hillsborough.          The charges were consolidated

for disposition in the Tewksbury Municipal Court.

     Prior to the disposition of the two DWI charges, defendant

moved under Laurick for PCR from his 1994 conviction in the

Piscataway Municipal Court.       Defendant relied on a January 4, 2016

certification asserting he was not represented by counsel when he

pleaded guilty to DWI in 1994, and was not advised by the court

he had a right to retain an attorney.            Defendant also filed a

February 3, 2016 supplemental certification stating that at the

time of his 1994 DWI arrest, he was unemployed, did not have money

to hire an attorney, and that his wife was paying the rent because

he was unable to do so.

     The municipal court judge denied defendant's request for

Laurick relief and subsequent motion for reconsideration.                   On

defendant's   appeal   to   the   Law    Division,   the   court   found    it

unnecessary to decide whether defendant's Laurick PCR petition was

barred because it was not filed within the five-year time limit

under Rule 7:10-2(g).        Instead, the court denied defendant's

request because he failed to sustain his burden of establishing

that if he had been advised of his right to counsel and had

obtained counsel, the outcome of the 1994 proceeding would have

                                     3                               A-1824-16T4
been different.      The court observed that the 1994 police reports

showed   defendant    admitted     drinking   alcohol    and    driving   his

vehicle, there were intoxicating liquors found in his car, and he

had a BAC of .12%, and that defendant's "certifications [were]

silent on the issue of having a viable defense to the 1994 charge

and that as a result the outcome would have been different."

     Defendant    appealed   the    Law   Division's    order   denying   his

request for relief.      He presents the following arguments for our

consideration:

           POINT I

           STANDARDS OF REVIEW AS TO AN APPELLATE
           DIVISION REVIEW OF A MUNICIPAL COURT APPEAL
           TO THE LAW DIVISION.

           POINT II

           CHARUDUTT PATEL HAS SHOWN THAT HE IS CLEARLY
           ENTITLED TO THE LIMITED LAURICK RELIEF OF
           AVOIDING A CUSTODIAL JAIL TIME ENHANCEMENT DUE
           TO A PRIOR 1994 UNCOUNSELED DWI CONVICTION IN
           THE PISCATAWAY MUNICIPAL COURT.

           POINT III

           [THE] LAW DIVISION JUDGE . . . COMMITTED LEGAL
           ERROR BY HOLDING THAT CHARUDUTT PATEL WAS NOT
           ENTITLED TO THE LIMITED LAURICK RELIEF OF
           AVOIDING A JAIL [SENTENCE] ENHANCEMENT DUE TO
           A PRIOR UNCOUNSELED DWI CONVICTION IN THE
           PISCATAWAY MUNICIPAL COURT.

           POINT IV

           STATE V. HRYCAK AND ITS PROGENY CONTAIN A
           MAJOR DOCTRINAL ERROR AS TO THE LIMITED

                                      4                              A-1824-16T4
            LAURICK RELIEF OF AVOIDING A CUSTODIAL JAIL
            ENHANCER AND, IF THIS COURT DOES NOT CONTINUE
            TO PROPAGATE SUCH ERROR, CHARUDUTT PATEL WOULD
            EVEN MORE CLEARLY BE ENTITLED TO RELIEF [FROM]
            ENHANCED   JAIL   TIME   DUE  TO   THE   PRIOR
            UNCOUNSELED 1994 PISCATAWAY DWI CONVICTION.

                                        II.

      On an appeal taken from the Law Division's final decision,

our review "is limited to determining whether there is sufficient

credible evidence present in the record to support the findings

of the Law Division judge, not the municipal court."                    State v.

Clarksburg Inn, 
375 N.J. Super. 624, 639 (App. Div. 2005) (citing

State v. Johnson, 
42 N.J. 146, 161-62 (1964)).                 We review de novo

the Law Division's legal determinations or conclusions based upon

the facts.       State v. Goodman, 
415 N.J. Super. 210, 225 (App. Div.

2010).

      In Laurick, the Court held that "an uncounseled conviction

without waiver of the right to counsel is invalid for the purpose

of increasing a defendant's loss of liberty."                  Laurick, 
120 N.J.

at   16;   see    also   State   v.   Hrycak,    
184 N.J.   351,   354    (2005)

(reaffirming the holding in Laurick).                  For a defendant facing

convictions for repeat DWI offenses, "this means that the enhanced

administrative       penalties    and    fines    may    constitutionally          be

imposed" but the maximum jail sentence "may not exceed that for

any counseled DWI convictions.          For example, a third-offender with


                                        5                                   A-1824-16T4
one prior uncounseled conviction could not be sentenced to more

than ninety days' imprisonment."      Laurick, 
120 N.J. at 16.     "This

is typically referred to as a 'step-down' sentence."         State v.

Weil, 
421 N.J. Super. 121, 128 (App. Div. 2011).

     The defendant has the burden of establishing entitlement to

the relief afforded under Laurick.     Id. at 363: see also Weil, 
421 N.J. Super. at 133 (finding defendant seeking Laurick relief must

"establish a prima facie case for relief" and an entitlement "to

relaxation   of   Rule   7:10-2(g)(2)'s    time   limit");   State      v.

Bringhurst, 
401 N.J. Super. 421, 434 (2008) (finding the "defendant

was obligated to submit sufficient proof in the petition to

establish a prima facie case for [Laurick] relief").

     Relying on Hrycak and Laurick, we have defined the parameters

of a defendant's burden as follows:

          [T]o establish entitlement to the step-down
          sentence for a second or subsequent DWI:

          1. Indigent defendants must establish that
          they were not given notice of their right to
          counsel and advised that counsel would be
          provided for them if they could not afford
          one.

          2. Non-indigent defendants must establish that
          they were not advised of their right to
          counsel and that they were unaware of such
          right at the time they entered the uncounseled
          pleas.

          3. Defendants who establish that they were not
          adequately noticed of their right to counsel

                                  6                              A-1824-16T4
          must then demonstrate that if they had been
          represented by counsel, they had a defense to
          the DWI charge and the outcome would, in all
          likelihood, have been different. Police
          reports,   witness    statements,    insurance
          investigations and the like may be used to
          submit proofs that the outcome would have been
          different if the defendant had the benefit of
          counsel before pleading guilty.

          [State v. Schadewald, 
400 N.J. Super. 350,
          354-55 (App. Div. 2007).]

     A defendant's application for PCR relief under Laurick must

also meet the timeliness requirement of Rule 7:10-2(b)(2).      See

R. 7:10-2(g)(2) (providing that petitions for relief from enhanced

custodial terms based on prior convictions must be filed within

the time limits in Rule 7:10-2(b)(2)).     Laurick PCR petitions

therefore must be filed no later than "five years after entry of

the judgment of conviction or imposition of the sentence sought

to be attacked, unless it alleges facts showing that the delay in

filing was due to defendant's excusable neglect." R. 7:10-2(b)(2);

see also Weil, 
421 N.J. Super. at 128.

     Here, the court correctly determined defendant failed to

sustain his burden of establishing entitlement to Laurick relief.

Defendant's certifications are bereft of any evidence showing he

had a defense to the DWI charge or in all likelihood the result

would have been different if he had counsel for his 1994 DWI

proceeding.   See Schadewald, 
400 N.J. Super. at 354-55.        His


                                7                          A-1824-16T4
failure to make such a showing required the court's denial of his

Laurick petition.      See ibid.; see also Bringhurst, 
401 N.J. Super.

at 435 (finding the defendant's Laurick petition was deficient

because   he    did   not   present    evidence    showing   that   if   he   had

representation, he would have had a defense to the DWI charge or

in all likelihood the result of the uncounseled DWI proceeding

would have been different).

     Because defendant's failure to demonstrate that the result

of the 1994 DWI proceeding would have been different if he had

received proper notice of his right to counsel requires rejection

of his Laurick petition, we agree with the Law Division that it

is unnecessary to address any other issues related to defendant's

petition.      We therefore do not express an opinion as to whether

defendant's certifications are sufficient to establish he was

indigent at the time of the 1994 DWI proceeding, or whether

defendant sufficiently demonstrated excusable neglect under Rule

7:10-2(b)(2) to permit the filing of his petition more than sixteen

years after the Rule's five-year time limit.             See Weil, 
421 N.J.

Super. at 131-34 (applying the five-year time limit for the filing

of   Laurick     petitions     under     Rule     7:10-2(g)(2));    see       also

Bringhurst, 
401 N.J. Super. 432-33 (discussing application of the




                                        8                                A-1824-16T4
five-year time limit for filing a Laurick petition under Rule

7:10-2(g)(2)).1

      In Bringhurst, we found it unnecessary to resolve fact issues

as to the defendant's claims he was indigent and not properly

advised of his right to counsel because he did not demonstrate

that had he been counseled, the result of the proceeding would

have been different.        Bringhurst, 
401 N.J. Super. at 434-36.

Similarly, we found that "critical to" the determination of whether

the   five-year   time   limit   should   be   relaxed   is   a   showing   by

defendant that had he been properly advised of his right to

counsel, the outcome of the proceeding in all likelihood would

have been different.      Id. at 435.     Therefore, where, as here, a

defendant does not make a showing that had he been properly

notified of this right to counsel in all likelihood the result of

the proceeding would have been different, it is unnecessary to



1
   We note that when we decided Weil and Bringhurst, Rule 7:10-
2(b)(2) made the five-year time limitations in Rule 3:22-12
applicable to the filing of Laurick petitions.     See generally
Bringhurst, 
401 N.J. Super. at 431-34 (discussing application of
the Rule 3:22-12 time limitation to the filing of Laurick
petitions). A subsequent 2009 amendment to Rule 7:10-2(b)(2) made
the five-year time limit in Rule 7:10-2(b)(2) applicable to the
filing of Laurick petitions. Rule 7:10-2(b)(2) imposes a five-
year time limit for the filing of a petition, "unless it alleges
facts showing that the delay in filing was due to defendant's
excusable neglect." As noted, however, we find it unnecessary to
determine if defendant's petition was barred because it was filed
beyond the five-year time limitation in Rule 7:10-2(b)(2).

                                     9                               A-1824-16T4
decide whether defendant was indigent, properly advised of the

right to counsel, or there was otherwise excusable neglect for his

filing of the petition beyond the five-year time limit under Rule

7:10-2(g)(2).    Id. at 434-36.

     We have considered defendant's contention that the Court in

Hrycak misinterpreted, misstated and misapplied its holding in

Laurick.    We find that contention, which is raised for the first

time on appeal,    and defendant's other arguments we have not

expressly   addressed,   are   without   merit   sufficient   to   warrant

discussion in a written opinion.       R. 2:11-3(e)(2).

     Affirmed.




                                  10                               A-1824-16T4