STATE OF NEW JERSEY v. FINBARR T. DEMPSEY

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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     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-4436-18
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FINBARR T. DEMPSEY,

          Defendant-Appellant.


                   Argued November 12, 2020 – Decided February 8, 2021

                   Before Judges Alvarez, Geiger, and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 17-09-1334.

                   Michael J. Beatrice argued the cause for appellant
                   (Michael J. Beatrice, PC, attorneys; Michael J.
                   Beatrice, of counsel and on the brief; Jenna M.
                   Beatrice, on the brief).

                   Craig A. Becker, Assistant Prosecutor, argued the cause
                   for respondent (Mark Musella, Bergen County
                   Prosecutor, attorney; Craig A. Becker, of counsel and
                   on the brief).

PER CURIAM
      On May 17, 2019, a Law Division judge denied defendant Finbarr T.

Dempsey's petition for post-conviction relief (PCR) based on ineffective

assistance of counsel, and motion for leave to withdraw a guilty plea to fourth-

degree operating a motor vehicle during a period of license suspension,  N.J.S.A.

2C:40-26(b). The judge stayed defendant's service of the mandatory 180-day

county jail sentence required by the statute pending appeal. We now vacate the

order, and remand for the court to conduct an evidentiary hearing as to both

applications.

      Defendant had no valid driver's license when stopped by a Montvale

police officer on February 10, 2017. On November 12, 2009, defendant had

been sentenced in a New York state court to a one-year period of driver license

revocation and a five-year term of probation.       The precise nature of the

proceedings is unclear, as the exhibit included in the appendix was issued by the

New York State Department of Motor Vehicles although captioned "Order of

Suspension or Revocation" (emphasis added) and signed by either a judge or

court clerk—which is not clear, however, and the signature is illegible. This

"Order" imposed both the probationary sentence and the license revocation on

defendant.

      A subsequent "Order of Suspension or Revocation" issued February 5,

2010, indicates that defendant's driver's license was permanently revoked

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effective November 12, 2009. That "order," also issued from the New York

State Department of Motor Vehicles, does not bear the signature of a judge or

other court official, and appears to emanate from the Commissioner.

      The probation department of Rockland County, New York, notified

defendant on August 29, 2012, that he would be discharged from probation

effective August 30, 2012. Defendant had acquired a lengthy motor vehicle

history between 1995 and 2010, including four prior driving while intoxicated

(DWI) offenses in New York between 2000 and 2007. His application for

reinstatement of driving privileges five years after revocation was denied on

September 29, 2017.

      In 2010, defendant completed New York state's version of drug court for

his alcohol abuse. In a certification submitted in support of his PCR petition

and motion to withdraw from his guilty plea, he claimed counsel had advised

him he was ineligible for pretrial intervention (PTI) because the charges called

for mandatory incarceration of six months. See  N.J.S.A. 2C:43-12(b); R. 3:28-

1 (deeming persons "charged with a crime, or crimes, for which there is a

presumption of incarceration or a mandatory minimum period of incarceration"

ineligible   for   pretrial   intervention   without   prosecutorial   consent    to

consideration). His attorney also advised him to enter a guilty plea to ensure his



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mandatory sentence would be six months, as opposed to the maximum eighteen

months.

      When defendant entered his guilty plea, defense counsel asked a series of

leading questions eliciting only that on the relevant date defendant was driving

a motor vehicle, having been convicted in the prior ten years of at least two

DWIs. The prosecutor asked only one question, also leading—establishing that

when stopped defendant had no driver's license, having been previously

suspended for two DWIs. 1 No mention was made of the fact the convictions,

and suspensions or revocations, all occurred out-of-state.

      In rendering the decision now appealed, the judge found no basis for PCR

relief, first, because in her opinion defendant would not have been eligible for

PTI had his attorney made such an application. The judge believed a PTI

application would have failed because of defendant's conviction history of four

DWIs, and that counsel could not be faulted for "failing to raise losing

arguments." She further noted that trial counsel did file a motion to dismiss the

indictment based on three claims: (1) that defendant had already been punished

in New York state in 2009 for driving while under the influence, and therefore

could not be punished again (presumably this was a double jeopardy argument);


1
  No challenge is made to the sufficiency of the factual basis elicited when the
plea was taken.
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(2) that defendant would not be subjected to mandatory incarceration in New

York state for this offense and therefore should not face such punishment here;

and (3) that defendant was not noticed of the possibility of an enhanced pena lty

in New Jersey as required by  N.J.S.A. 39:4-50(c).

      The judge who accepted the initial plea and sentenced defendant had

denied the motion for dismissal, which was immediately followed by defendant's

guilty plea. Four days before the scheduled sentencing, counsel informed the

court of his client's intent to appeal and requested an adjournment. The judge

refused, and the matter proceeded to sentencing. As a result of this review, the

judge who denied defendant's PCR petition found that defense counsel's

representation overall "was not deficient when measured by an objective

standard of reasonableness."

      Moving on to defendant's request for leave to withdraw his guilty plea,

the court began by opining that since defendant did not deny the act of driving

while his license had been "permanently revoked by the State of New York at

that time," he failed to meet prong one of the State v. Slater four-prong test. She

therefore reasoned that since defendant had no colorable claim of innocence, no

further inquiry as to the merits of the other prongs was necessary. State v. Slater,

 198 N.J. 145, 158-59 (2009).



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      The judge distinguished State v. Perry,  439 N.J. Super. 414 (App. Div.

2015), on the basis that it applied to a universe of drivers which did not include

defendant. She opined defendant's conviction fit within Perry's definition of a

judicially imposed suspension or revocation. Therefore, since  N.J.S.A. 2C:40-

26(b) applies to license suspensions imposed by a foreign jurisdiction, State v.

Luzhak,  445 N.J. Super. 241 (App. Div. 2016), and the Interstate Driver's

License Compact,  N.J.S.A. 39:5D-1 to -14, defendant had no colorable claim of

innocence on this basis either.

      Defendant appeals, claiming the court committed the following errors:

            POINT ONE: THE COURT BELOW COMMITTED
            REVERSIBLE ERROR IN NOT VACATING
            DEFENDANT'S GUILTY PLEA TO PREVENT A
            MANIFEST INJUSTICE.

            POINT TWO:   THE ENTRY OF THE GUILTY
            PLEA IN THE SUPERIOR COURT [OF] NEW
            JERSEY, BERGEN COUNTY MUST BE VACATED
            TO PREVENT A MANIFEST INJUSTICE AS A
            RESULT OF THE DEFENDANT HAVING
            RECEIVED INEFFECTIVE ASSISTANCE OF
            COUNSEL.

            A.    The Defendant Received Ineffective Assistance
                  of Counsel and He Would Not Have Pleaded
                  Guilty    but   for   Counsel's     Deficient
                  Representation.

            B.    The Defendant Received Ineffective Assistance
                  of Counsel in That He Was Told He Was


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                   Ineligible for PTI When in Fact He Was Eligible
                   to at Least Apply.

            POINT THREE: THE ENTRY OF THE GUILTY
            PLEA IN THE SUPERIOR COURT OF NEW
            JERSEY, BERGEN COUNTY MUST BE VACATED
            TO PREVENT A MANIFEST INJUSTICE AS THE
            USE OF PRIOR OUT OF STATE DWI
            CONVICTIONS AS PREDICATE OFFENSES DOES
            NOT MEET THE PLAIN LANGUAGE OF [N.J.S.A.]
            2C:40-26.

      State v. O'Donnell,  435 N.J. Super. 351 (App. Div. 2014), reinforced the

notion that petitions for PCR made simultaneously with a motion to withdraw a

guilty plea are "requests for relief [that] are distinct, and governed by different

rules of court." Id. at 368.

      We conclude, first, that the court's denial of PCR without an evidentiary

hearing was error. It is patently clear that the information defendant supplied in

the appendix is not dispositive of the question of whether the suspension in this

case was imposed judicially or administratively.        It may well be that th e

seemingly administrative revocation from New York state is equivalent to a

judicially imposed suspension in New Jersey, thus under Perry a proper basis

for an  N.J.S.A. 2C:40-26(b) conviction. But the issue cannot be determined in

the absence of a hearing at which time testimony can be elicited as to the

meaning of the documents, and more extensive legal arguments conducted on

those facts. For example, in New Jersey, the Division of Motor Vehicles (DMV)

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cannot issue orders per se, although it has the authority to suspend driver's

licenses in certain factual scenarios. See, e.g.,  N.J.S.A. 39:5-30(a). DMV

suspensions, triggered by circumstances such as failure to pay surcharges, are

not judicially imposed. See Perry,  439 N.J. Super. at 524. The process may

well be different elsewhere, but it has to be clear on the record before the trial

judge decides the matter.

      A defendant must establish a prima facie case before being entitled to an

evidentiary hearing. R. 3:22-10(b). There must be disputed issues of material

fact which cannot be resolved except by way of hearing. Ibid. Defendant has

done so by virtue of the documents which support his petition .

      Additionally, in his certification, defendant claims his attorney informed

him that because the statute requires a minimum period of incarceration, he was

ineligible for PTI. If the judge hearing the remand finds the assertion is credible,

it may have been mistaken legal advice. See State v. Roseman,  221 N.J. 611,

622, 624-25 (2015) (holding "all defendants may apply for admission into PTI"

and "[t]rial courts may overrule a prosecutor's decision to accept or reject a PTI

application only when the circumstances clearly and convincingly establish that

the prosecutor's refusal to sanction admission into the program was based on a

patent and gross abuse of . . . discretion.") (second alteration in original)

(internal quotations omitted). Should defendant prove this allegation, it may

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alone warrant relief.     State v. Nuñez-Valdez,  200 N.J. 129, 139-40 (2009)

(finding ineffective assistance of counsel where counsel "provid[ed] misleading,

material information [to defendant] that result[ed] in an uninformed plea"). That

issue was not explored.

      With regard to PTI, defendant successfully completed an alcohol

rehabilitation program by 2010 and claims he has maintained sobriety since

then. He has remained infraction-free since 2007, although admittedly having

lost his driver's license, he was poorly situated to commit other driving

violations. Although Rule 3:28-1(d) provides that applicants "shall be ineligible

for [PTI] without prosecutor consent" for crimes that carry "(1) . . . a

presumption of incarceration or a mandatory minimum period of parole

ineligibility[,]" the rule also concludes: "[t]o rebut the presumption against

admission set forth in subparagraph[] (1) . . . applicants shall include with their

application for admission a statement of the extraordinary and compelling

circumstances that justify consideration of the application notwithstanding the

presumption against admission." We need not determine whether defendant

could have made the heightened showing necessary for admission given the

mandatory jail term of incarceration called for by the statute. See State v.

Roseman,  221 N.J. 611, 622-25 (2015) ("when a statutory presumption against

PTI applies . . . a[] defendant can show that PTI is nonetheless warranted through

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'facts or materials demonstrating the defendant's amenability to the

rehabilitation process.' . . . To overcome the statutory presumption against PTI

the defendant must 'show compelling reasons justifying . . . admission, and

establish[] that a decision against enrollment would be arbitrary and

unreasonable.'"). In other words, a defendant must show something more than

that he is a first-time offender remorseful for the commission of the crime—he

must also establish "'something extraordinary or unusual' about [his]

background." Id. at 623. Here, defendant's point is that he was not even

informed about the option of the PTI process, and thus may have been deprived

of the opportunity to apply. It is the failure to advise that raises a question of

whether counsel provided adequate counsel.

      When the trial court does not conduct an evidentiary hearing, we exercise

de novo review of the factual and legal conclusions. O'Donnell,  435 N.J. Super.

at 373.    Doing so, we do not agree that the record on its face supported

defendant's automatic rejection from PTI. That no application was made in this

case may itself have established a prima facie case of ineffective assistance of

counsel.

      Second, with regard to defendant's application to withdraw from the guilty

plea, we note merely that the first prong of Slater can be interpreted in one of

two ways.    The Law Division judge chose to interpret the requirement as

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meaning that so long as defendant did not dispute the fact he was driving and

had no valid license, having lost his ability to obtain a license due to DWIs, he

had no colorable claim of innocence. We are not so certain that is the case, as

if, pursuant to Perry, he was not serving a judicially imposed term of suspension,

then as a matter of law he could not have been found guilty and therefore, as a

matter of law, he had a colorable claim of innocence. Furthermore, "[no] factor

is mandatory; if one is missing, that does not automatically disqualify or dictate

relief." Slater,  198 N.J. at 162. In other words, the judge should have examined

all the Slater prongs as applied to this defendant.

      During the evidentiary hearing, the parties should be permitted to present

proofs regarding the nature of the New York state proceedings.            This is

necessary for the court to make a thorough decision as to whether ineffective

assistance has been established. This is also necessary for the court to decide

whether defendant should be granted leave to withdraw his guilty plea.

      Reversed and remanded for hearing. We do not retain jurisdiction.




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