(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE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
DOCKET NOS. A-5844-17T1
STATE OF NEW JERSEY,
MATTHEW P. ARLUNA,
Submitted November 13, 2019 – Decided December 12, 2019
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Municipal Appeal No. 18-10,
and Indictment No. 17-01-0144.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michelle Erica Friedman, Assistant Deputy
Public Defender, of counsel and on the briefs).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel and on the brief).
In 2003, defendant appeared without counsel in the Ho-Ho-Kus Municipal
Court and pled guilty to a charge of driving while intoxicated (DWI), N.J.S.A.
39:4-50, resulting in his first DWI conviction. He acquired two more DWI
convictions thereafter. For his third DWI conviction, defendant received a ten-
year suspension of his driver's license in 2008. In 2016, defendant was pulled
over while driving a friend's car. Because his license remained suspended,
defendant was charged with violating N.J.S.A. 2C:40-26(b), operating a motor
vehicle while his license was suspended for a second or subsequent DWI
conviction, a fourth-degree criminal offense.
On November 15, 2017, a jury found defendant guilty of violating
N.J.S.A. 2C:40-26(b). Prior to sentencing, defendant filed a motion to withdraw
his uncounseled 2003 guilty plea, pursuant to State v. Laurick, 120 N.J. 1
(1990).1 The Ho-Ho-Kus Municipal Court denied the motion and defendant
appealed. On August 15, 2018, following a trial de novo, the Law Division also
denied defendant's motion. On November 9, 2018, the same Law Division judge
sentenced defendant to 364 days in the county jail and three years of probation.
In Laurick, our Supreme Court held "a prior uncounseled DWI conviction may
establish repeat-offender status for purposes of the enhanced penalty provisions
of the DWI laws"; however, "a defendant may not suffer an increased period of
incarceration as a result of . . . an uncounseled DWI conviction." Id. at 16.
Defendant filed appeals challenging both Law Division orders. On April
15, 2019, this court consolidated both appeals.
Defendant's brief presents the following points of arguments:
AS APPLIED TO THE PRE-2011 DUI OFFENSES, MR.
ARLUNA'S N.J.S.A. 2C:40-26 CONVICTION
VIOLATES THE EX POST FACTO CLAUSE.
THE COURT USURPED THE DEFENDANT'S
DECISION-MAKING AUTHORITY, DECIDING TO
ISSUE THE CHARGE ON HIS ELECTION NOT TO
TESTIFY WITHOUT HIS CONSENT.
THE LAW DIVISION IMPROPERLY AFFIRMED THE
MUNICIPAL APPEAL AND RELIED UPON THAT
CONVICTON AT THE TIME OF SENTENCING. THE
SENTENCING COURT ALSO ERRED IN DOUBLE-
COUNTING AND IN FINDING THAT MR. ARLUNA
ATTEMPTED TO MINIMIZE THE SERIOUSNESS OF
A. The 2003 Guilty Plea is Founded Upon an
Inadequate Factual Basis. The Law Division
Should Have Vacated That Conviction and
Refused to Consider It During Sentencing on the
B. The Court's Failure to Advise the Defendant of
His Right to a Municipal Public Defender Once
He Indicated a Private Attorney Was Cost-
Prohibitive Also Renders the 2003 DUI
Conviction and Sentence Invalid.
C. The Court's Rationale for Finding Aggravating
Factor Nine was Patently Flawed.
While we conclude that defendant's first two points lack sufficient merit
to warrant extended discussion, 2 R. 2:11-3(e)(2), we find that sub points A. and
B. under Point III do have merit, in light of the recent decision of the Supreme
Court in State v. Patel, ___ N.J. ___, ___ (2019) (slip op.). For the reasons that
follow, we vacate the orders under review and remand for further proceedings
consistent with Patel.
On May 2, 2003, police pulled over defendant and cited him for DWI, in
violation of N.J.S.A. 39:4-50, and failure to observe traffic lanes, in violation of
N.J.S.A. 39:4-88. Prior to entering his plea, defendant signed a "Notice of
Motion to Enter a Plea Agreement," which indicated the State recommended the
minimum sentence for his DWI charge, and the citation for failure to observe
Regarding Point I, defendant failed to raise his ex post facto argument in the
trial court. In addition, this court previously addressed and rejected this
argument. See State v. Carrigan, 428 N.J. Super. 609, 612 (App. Div. 2012).
Regarding Point II, defendant did not object to the election-not-to-testify
instruction; in fact, defense counsel referenced the instruction in his closing
argument. Following our review of these arguments, we find no plain error. R.
traffic lanes would be merged and dismissed. Defendant also signed the
"Intoxicated Driver Penalty Provisions Court Order" which outlined the
penalties imposed by the court. The "Defendant Information" section of the
order stated defendant was charged with DWI based on a .17 and .18 blood
alcohol content (BAC).
On June 4, 2003, defendant appeared without counsel before the Ho-Ho-
Kus Municipal Court, where the following colloquy occurred:
Judge: Let[']s get right to the case here. One charge is
being dismissed. [The DWI] charge you've indicated
that you wish to plead guilty to it.
Judge: [The DWI] charge is a charge that carries with
it rather severe penalties[. Therefore,] you have the
absolute right to an attorney to represent your interest
in that particular case.
Judge: Do you understand that?
Judge: Do you have any problem understanding what I
just told you?
Judge: Do you wish to proceed in this matter with or
without an attorney?
Defendant: Because I can convey to you what happened
without going through a [$1500] attorney.
Judge: [T]hat's a very fair comment, and I don’t mean
it in any other way. But just so you understand, I have
to be careful, obviously, when people represent
themselves, you know, again, only because there are
certain rights that they may or may not know about or
have, and I understand that.
The judge explained to defendant the consequences of pleading guilty to
DWI and outlined the consequences of repeated offenses; however, at no point
did the judge advise defendant he was entitled to court-appointed counsel, if he
could not afford an attorney. After discussing the consequences of his DWI and
the consequences of subsequent offenses, the following additional exchange
Judge: I'm not saying that to scare you but to again let
you know what the penalties are and to make sure that
you are proceeding and know what you're doing.
Judge: All right. You still wish to proceed?
Judge: Okay. I am satisfied you know what you're
doing. Again, I'm not trying to be a wise guy, I just
want you to understand I'm kind of careful when it
comes to those things[.]
Defendant: I understand.
Defendant then testified that, prior to police pulling him over, he went to
a bar with some friends, "had a shot" that "was 190 proof" and drank a beer.
Defendant then added that the shot was "probably what put me over the limit."
The judge stated, "I'm satisfied that you do, in fact, know what you did. You
also are quite aware of the ramifications and penalties. . . ."
The judge then accepted defendant's guilty plea, found him guilty of DWI,
and merged the charge of failure to observe traffic lanes. As part of defendant's
sentence, the judge suspended his license for 180 days. In 2007, defendant was
convicted of his second DWI. In 2008, defendant was convicted of his third
DWI. As part of the sentence imposed for his third DWI, the court suspended
his license for ten years.
On January 22, 2016, defendant was pulled over by a police officer in the
Borough of Waldwick for having an unclear license plate, in violation of
N.J.S.A. 39:3-33. The owner of the vehicle was a passenger. Defendant
provided the officer with a license issued "for identification purposes only";
eventually, defendant admitted he did not have a valid driver's license.
Defendant also admitted to drinking one beer before driving his passenger's
vehicle. A dispatcher ran defendant's license and informed the officer his
license was suspended for DWI. On January 30, 2017, a grand jury returned an
indictment charging defendant with violating N.J.S.A. 2C:40-26(b). Following
a trial, on November 15, 2017, a jury found defendant guilty of the charge.
Prior to his sentencing hearing, defendant filed a motion in the Ho -Ho-
Kus Municipal Court, seeking to withdraw his 2003 guilty plea, after his counsel
reviewed a transcript of defendant's 2003 plea hearing. The municipal court
judge denied the motion, but acknowledged "the [c]ourt[,] in a self-critical
analysis[,] could have done a better job on the issues of the right to appeal and
operation of the motor vehicle." The judge who denied the motion was the same
judge who accepted defendant's guilty plea in 2003.
Defendant then filed an appeal from the denial of his motion to withdraw
his 2003 guilty plea. Defendant's appeal was heard by the same judge who
presided at defendant's trial on the N.J.S.A. 2C:40-26(b) charge. Following a
trial de novo, the judge denied the motion. Even though defendant did not state
he was drunk, the judge found defendant knew he was over the legal limit
because he received an order notifying him that he had a .17 and .18 BAC at the
time of his arrest. The judge further noted defendant's "extraordinary delay" in
bringing his application and the "equities weigh[ed] heavily against [him]"
because he failed to argue he was innocent of the DWI. Lastly, the judge found
withdrawing his plea agreement would create an "unfair prejudice" to the State
and an unfair advantage to defendant because the underlying offense occurred
over fifteen years prior.
On November 9, 2018, the same Law Division judge presided at
defendant's sentencing hearing. The judge found aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); six, N.J.S.A. 2C:44-1(a)(6)
(criminal history and seriousness of conviction); and nine, N.J.S.A. 2C:44- -
1(a)(9) (deterrence). The judge found that defendant's admitted drinking –
although not being drunk – and driving, after having three prior DWIs, made his
conduct "outrageous, and . . . heighten[ed] the need to deter" him. He further
found defendant's sentencing memo "attempt[ed] to minimize the seriousness of
this offense by arguing that there was nobody else on the road. Even if that's
true the argument highlights the fact that defendant simply doesn't understand
the seriousness of this offense, and the need to deter this defendant in particular
is extremely strong."
The judge found mitigating factors ten, N.J.S.A. 2C:44-1(b)(10)
(probation); and eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment would entail
excessive hardship). The judge then sentenced defendant to 364 days in the
Bergen County Jail and three years of probation. The judge ordered defendant
to surrender on March 1, 2019, "or within [seventy-two hours] of denial of a
stay by the Appellate Division." No motion for a stay was filed, and defendant
began serving his jail sentence on March 18, 2019.
While we are convinced the Law Division judge correctly denied
defendant's motion to withdraw his uncounseled 2003 guilty plea, based upon
the applicable law at the time, after his decision, our Supreme Court decided
Patel on August 7, 2019. Relevant to this appeal, the Court held:
[W]hen notice of the right to counsel is not given in
DWI cases, to obtain the special form of relief
recognized in Laurick, neither indigent nor non-
indigent defendants should be required to establish that
the outcome of the proceeding would have been
different had they been given the opportunity to retain
counsel or secure appointed counsel.
[Patel, slip op. at 33.]
Before Patel, the Court had ruled in Laurick that unless the lack of counsel
results in a "miscarriage of justice," the court should not grant relief. 120 N.J.
A remand to the Law Division is required so that the court can reconsider
the orders under review and fully address all relevant issues, with the guidance
provided by the Court in Patel. The Law Division shall immediately enter an
order for defendant's release from the county jail pending the court's further
consideration of these orders.
Vacated and remanded. We do not retain jurisdiction.