Opinion
DOCKET NO. A-4844-12T3
04-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD FALK, Defendant-Appellant.
Ryan A. Dornish, attorney for appellant. Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal Nos. 6A 2012 K17 and 9A 2012 K81. Ryan A. Dornish, attorney for appellant. Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Richard Falk appeals from a May 14, 2013 Law Division order denying consolidated petitions for post-conviction relief (PCR), seeking to vacate his 1981 and 1988 convictions for driving while intoxicated (DWI). Following our consideration of the arguments in light of the record and applicable law, we affirm.
In November 2011, Falk was charged with a fourth DWI offense in Pohatcong. His earlier convictions were in 1981 from Kingwood, 1988 from Milford, and 1992 from North Hunterdon. Based on the earlier convictions, Falk is subject to the enhanced sentence mandated by N.J.S.A. 39:4-50(a)(3) for a third or subsequent conviction, of a minimum 180-day period of incarceration, ten-year license suspension, and appropriate monetary fines and penalties. This matter is still pending.
In April 2012, Falk filed petitions for post-conviction relief (PCR) in the Kingwood Township Municipal Court and in the Joint Court of the Delaware Valley, seeking relief pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), that the convictions not be considered for purposes of enhancing a custodial term on the 2011 offense. Falk subpoenaed Kingwood and Milford for court transcripts, police reports, or any documentation evidencing whether he had waived his right to counsel. He obtained, and submitted with each petition, a certified disposition indicating that all records of the respective municipal court proceeding had been destroyed, but providing the dates of the violations and the guilty plea. The dispositions indicated for attorney's name, either "None" or "No Attorney on record indicated in docket book." Neither disposition indicated whether Falk had been advised or had waived the right to counsel.
In support of his petitions, Falk provided certifications in which he stated he was indigent at the time he pled guilty, unrepresented, and not advised of his right to counsel. He acknowledged that he was represented by counsel when he pled guilty to a third DWI offense in 1992.
Each municipal judge denied Falk's applications as time-barred by Rule 7:10-2(b)(2) and declined to order that the 1981 and 1988 guilty pleas not be used for the purposes of imposing an enhanced sentence. In August 2012, Falk filed separate appeals in the Law Division raising the same claims as presented in municipal court. The Law Division entered an order consolidating the appeals. In its de novo review, the Law Division judge denied PCR relief on the record and issued a comprehensive, written opinion that same date.
The Law Division judge concluded that Falk failed to demonstrate excusable neglect as required to relax the five-year deadline set forth in Rule 7:10-2. The judge found that the pertinent issue in the 1981 and 1988 proceedings was "not whether [Falk] was represented, but whether he was informed of his right to counsel." The judge concluded Falk failed to produce evidence that he had not been advised of that right, and that the late filing of the PCR petitions, thirty-one and twenty-three years after the entry of the judgments of conviction, coupled with the unavailability of court records from the 1981 and 1988 proceedings, significantly prejudiced the State's ability to prosecute the cases. The judge also concluded Falk's failure to raise these issues while he was represented by counsel during the 1992 DWI proceeding undercut his claim of excusable neglect. Finally, the judge determined even if Falk had met his burden of showing excusable neglect, he failed to establish that the outcome would have been any different if he had counsel as he neither proclaimed his innocence with respect to the DWIs, nor offered any defense in his certifications.
On appeal, defendant raises the same arguments as advanced in the Law Division.
Our role in this appeal is limited in that we will "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). In that regard, our task is limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). However, 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).
In Laurick, the Court held that, absent a waiver of the right to counsel, an uncounseled DWI guilty plea cannot be used to enhance the period of incarceration for future DWI convictions and that "the actual period of incarceration imposed may not exceed that for any counseled DWI convictions." Laurick, supra, 120 N.J. at 16. That holding was reaffirmed in State v. Hrycak, 184 N.J. 351 (2005).
Hrycak was decided after doubts were expressed concerning the continued viability of Laurick following a change in some of the United States Supreme Court jurisprudence cited in Laurick. Hrycak, supra, 184 N.J. at 358-63. Our Supreme Court adhered to its holding in Laurick as a matter of New Jersey law. Id. at 362-63.
We have identified the proofs required to 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 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 meet the timeliness requirement of Rule 7:10-2(b)(2), requiring a petition for PCR in municipal court be filed no more than five years after entry of the judgment of conviction. A court may relax the five-year bar if a defendant demonstrates "excusable neglect." R. 7:10-2(b)(2); State v. Mitchell, 126 N.J. 565, 576 (1992); State v. Weil, 421 N.J. Super. 121, 128 (App. Div. 2011); State v. Bringhurst, 401 N.J. Super. 421, 432 (App. Div. 2008). In Bringhurst, supra, 401 N.J. Super. at 433, we have warned that the time bar in Laurick cases should not be mechanistically applied. A defendant bears the burden of demonstrating entitlement to relief. Hrycak, supra, 184 N.J. at 363.
Here, Falk fails to establish excusable neglect for filing the petitions thirty-one and twenty-three years after his prior convictions. Though he was represented by counsel when he pled guilty to the 1992 DWI offense, Falk did not raise these PCR claims at that time. We find unavailing his present contention that his 1992 attorney did not advise him of his rights to file for PCR or advise him of the step-down provisions of the law. A defendant cannot assert excusable neglect simply because he received inaccurate or incomplete advice from his defense counsel. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013).
On September 19, 2013, the North Hunterdon Municipal Court judge vacated the 1992 DWI conviction and dismissed the complaint.
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The certifications provided with the petitions also fail to establish that Falk had not been advised of his rights to an attorney and did not offer a meritorious defense. Schadewald instructs that defendants "must establish" that they were not advised of their right to counsel at the time of the uncounseled pleas. Schadewald, supra, 400 N.J. Super. at 354. Here, defendant's bald assertions fail to sustain his burden of proof.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION