Opinion
DOCKET NO. A-5451-11T1
05-13-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEREMY MARTINEZ, Defendant-Appellant.
Amy E. Lefkowitz argued the cause for appellant (Law Offices of Curt J. Geisler, LLC, attorneys; Ms. Lefkowitz, on the brief). Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-23-12.
Amy E. Lefkowitz argued the cause for appellant (Law Offices of Curt J. Geisler, LLC, attorneys; Ms. Lefkowitz, on the brief).
Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief). PER CURIAM
Defendant appeals from the Law Division's denial, de novo, of his petition for post-conviction relief from an allegedly uncounseled conviction for driving under the influence (DUI), N.J.S.A. 39:4-50. We affirm.
I.
Defendant collaterally attacks his October 1990 DUI conviction, which was entered on the basis of a plea of guilty. In August 2011, he filed a notice of motion for PCR. It was unaccompanied by a petition, a supporting certification, or any cognizable evidence. Sometime after the 1990 conviction, defendant was convicted a second time, although the record does not indicate the date. A third DUI charge was pending at the time he motioned for PCR.
The motion was heard by the Teaneck Municipal Court two months later. Defendant sought an order, pursuant to State v. Laurick, 120 N.J. 1 (1990), that the conviction not be considered for purposes of enhancing a custodial term. Defense counsel also sought relief based on State v. Barboza, 115 N.J. 415 (1989). Counsel referred to her search for records of defendant's 1990 court appearance, noting she only had obtained a disposition sheet showing the date of the violation and the finding of guilty. The document did not address whether defendant was represented or advised of his right to an attorney. Defense counsel stated her client was "prepared to testify that he was not advised of his right[] to counsel, [and] was not advised of the enhanced penalties," when he entered his 1990 plea. Defense counsel also argued that the five-year period for filing a PCR petition should be relaxed because defendant was unaware of the infirmity in his first conviction.
The State objected. The prosecutor argued that defendant had not presented proof there was no attorney present, or that he was not advised of his rights. The prosecutor also argued that the occasion of defendant's second DUI should have alerted him to the need to file a challenge of his first conviction.
The municipal court reserved decision, stating it would consider the issue of the five-year deadline. The municipal court then denied the motion by order entered November 15, 2011, without providing a statement of its reasons.
Defendant sought de novo review of his petition before the Law Division. Defense counsel argued the municipal court should have granted defendant the opportunity to testify. The prosecutor argued that defendant was not entitled to an evidentiary hearing as he had not presented a prima facie case for relief. The prosecutor noted the absence of any record of the 1990 proceeding.
The Law Division denied defendant's application for relief on the grounds that the motion was untimely.
Defendant appeals, arguing: "UNDER THE RELEVANT RULES AND CASE LAW, DEFENDANT'S PLEA SHOULD BE VACATED BY THIS COURT AND/OR SHOULD NOT BE UTILIZED TO ENHANCE A SUBSEQUENT CONVICTION."
II.
We affirm the trial court's denial of relief because of the fundamental procedural infirmities in defendant's application. We review the prerequisites to seeking PCR from a DUI conviction.
A defendant may seek post-conviction relief from an enhanced custodial term based on a prior conviction by filing a petition. R. 7:10-2(g)(3). The petition shall be in writing and conform to the requirements of Rule 7:10-2(f). R. 7:10-2(g)(3). The defendant shall verify the petition and set forth "with specificity the facts upon which the claim for relief is based[.]" R. 7:10-2(f)(2). The petitioner is required to include in his or her verified petition whether counsel was retained or assigned. R. 7:10-2(f)(2)(E). The petition must also include all available records related to the conviction, and "shall account for any unavailable records by way of written documentation from the municipal court administrator or the custodian of records, as the case may be." R. 7:10-2(f)(2)(G). The petition also shall not be accepted for filing more than five years after the challenged conviction "unless it alleges facts showing that the delay in filing was due to defendant's excusable neglect." R. 7:10-2(b)(2).
Defendant in this case did not file a verified petition. Rather, he inappropriately sought relief by way of an unaccompanied notice of motion, unsupported by any cognizable evidence demonstrating that his conviction should be set aside. He was not entitled to an evidentiary hearing because he failed to set forth a prima facie case for relief. In State v. Weil, we noted that a defendant must satisfy three requirements: (1) he did not receive notice of the right to counsel; (2) he was prejudiced thereby because he was unaware of the right; and (3) if indigent, "the DWI conviction was a product of an absence of notice of the right to assignment of counsel and non-assignment of such counsel without waiver." 421 N.J. Super. 121, 129-30 (App. Div. 2011) (citation omitted). As in Weil, "defendant failed to articulate a single fact to demonstrate [he] could sustain [his] burden of proof and obtain PCR relief[.]" Id. at 131.
Moreover, defendant failed to provide any facts to excuse his delay in requesting relief, over twenty years after the challenged conviction. Defendant has not presented any evidence about when he became aware that he may have had a basis to challenge his 1990 conviction. As the State noted before the municipal court, defendant was convicted a second time, which should have triggered a prompt request for relief at that time.
We therefore find no error warranting reversal of the Law Division's order denying PCR.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION