Opinion
DOCKET NO. A-5036-12T4
03-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARY H. REESE, Defendant-Appellant.
Charles W. Sandman, III, attorney for appellant. James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0007-13. Charles W. Sandman, III, attorney for appellant. James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Gary Reese appeals from a May 15, 2013 order denying, after a de novo review, his petition for post-conviction relief (PCR) as time-barred.
On August 23, 1983, defendant was issued summonses for driving while intoxicated (DWI), N.J.S.A. 39:4-5 0, and driving while suspended, N.J.S.A. 39:3-40. Defendant failed to appear in the Hammonton Municipal Court as ordered, and on September 30, 1983, the court issued a failure to appear notice, giving defendant a new court date of October 18, 1983. Defendant called the court on October 10, 1983. A notation on the back of the summons indicates that defendant was to call back to inform the court whether he would be entering a guilty plea.
Defendant alleges that, during this same call, he provided the court with his new mailing address. In his brief, defendant's counsel contends that this new address, in Yardville, was noted on the front of the summons. However, in defendant's affidavit, he did not certify that he moved to Yardville nor was the record supplemented with a postal verification or other proof satisfactory to the court that defendant receives mail at that address. R. 7:2-4(a)(3).
The matter was subsequently postponed to November 29, 1983, and then to March 15, 1984. On March 23, 1984, a bench warrant was issued for defendant's arrest for failure to appear. The Wildwood Crest Police Department attempted to execute the warrant but noted defendant no longer lived at the residence. In 1991, defendant went to the Department of Motor Vehicles to restore his license and was informed there was an open matter in Hammonton.
On May 21, 1991, defendant appeared in Hammonton Municipal Court to "resolve the matter." Defendant alleges he was neither made aware of his right to a court appointed free attorney nor did he formally waive his right to counsel. He further alleges the prosecutor told him the only way to restore his license was to enter a guilty plea. The municipal court judge advised defendant of his rights as evinced by an entry on the back of the summons stating, "defendant advised as to rights," followed by the notation "waived." Defendant pled guilty to DWI. The court imposed a six-month license suspension, fines, and court costs. Defendant also signed the "Intoxicated Driver Penalty Provisions Court Order," which advised him of the penalties for subsequent offenses. On this document, defendant listed his address as the residence in Wildwood Crest where the police attempted to execute the warrant and he certified that the "defendant information is correct."
On August 26, 2012, defendant received additional charges in the City of Cape May. Defendant states that for the first time he obtained legal counsel. After meeting with counsel, defendant filed a petition for post-conviction relief in Hammonton Municipal Court. On February 5, 2013, the municipal court judge denied defendant's petition noting that the petition was "almost twenty-two (22) years after he waived his rights and entered a plea of guilty." Defendant appealed to the Law Division.
On May 15, 2013, after a de novo review, the Law Division issued an order denying defendant's petition as time-barred. It is from that order defendant appeals.
On appeal, defendant presents the following issues for our consideration:
POINT I
DEFENDANT'S TOTAL LACK OF KNOWLEDGE OF ANY RIGHT OR REASON TO BRING A POST CONVICTION RELIEF MOTION UNDER R . 7:10-2(b)(2) CONSTITUTES "EXCUSABLE NEGLECT" SUFFICIENT TO ALLOW HIM TO BRING SAID MOTION BEYOND THE FIVE (5) YEAR LIMITATION PERIOD.
POINT II
AT THE TIME THE DEFENDANT ENTERED HIS PLEA OF GUILTY, THE DEFENDANT WAS INDIGENT AND THE COURT MUST STRICTLY SCRUTINIZE SAID UNCOUNSELED PLEA OF GUILTY IN ACCORDANCE WITH THE APPLICABLE LAW.
POINT III
THE MUNICIPAL COURT'S FAILURE TO NOTICE DEFENDANT OF ANY OF THE SCHEDULED PROCEEDINGS FOR ALMOST EIGHT YEARS DEPRIVED DEFENDANT OF HIS RIGHT TO SPEEDY TRIAL. THEREFORE IF REPRESENTED BY COUNSEL DEFENDANT WOULD NOT HAVE BEEN CONVICTED OF VIOLATION OF CHARGES BROUGHT AT THE TIME HE ENTERED HIS UNCOUNSELED PLEA.
POINT IV
A POINT BY POINT ANALYSIS OF THE MUNICIPAL COURT'S RULING, SHOWS THAT IF THE FACTS WERE
PROPERLY SET FORTH LOGIC DICTATES A DIFFERENT CONCLUSION.
Following our consideration of these arguments in light of the record and applicable law, we conclude his petition is untimely.
Rule 7:10-2(b)(2) requires that a petition for PCR in municipal court must be filed no more than five years after entry of the judgment of conviction. Here, defendant's petition was filed nearly twenty-two years after he pleaded guilty. 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). A "lack of legal education" does not constitute excusable neglect, State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000), nor does "incorrect or incomplete advice" from counsel. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013).
In the absence of excusable neglect, the court may still relax the time limitation "if adherence to [the rule] would result in an injustice." R. 1:1-2. "When determining whether to relax the time bar . . . a court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits." Bringhurst, supra, 401 N.J. Super. at 432 (quoting State v. McQuaid, 147 N.J. 464, 485 (1997)).
Defendant maintains that his ignorance of the law and the fact he never consulted with an attorney until 2012 warrants relaxation of the five-year limitation for bringing a PCR petition. Defendant's arguments rest primarily on the Court's decision in State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), which articulated the standard for seeking post-conviction relief where an enhanced custodial sentence was imposed based on a previous uncounseled DWI conviction.
The five-year time limit should not be applied to "mechanistically" bar a Laurick PCR petition where a defendant seeks to reduce an enhanced custodial sentence, and defendant's burden "should be significantly less" than what is normally required. Bringhurst, supra, 401 N.J. Super. at 433. However, this lessened burden is unique to Laurick PCR petitions and is only applied where defendant seeks to reduce an enhanced custodial sentence based on a prior uncounseled conviction, not where a defendant pursues traditional post-conviction relief. See id. at 430-32; Laurick, supra, 120 N.J. at 4-5. Pursuant to Laurick, defendant must show that the delayed filing of his claim "was not the result of neglect or some other disqualifying reason." See Bringhurst, supra, 401 N.J. Super. at 437.
Defendant has failed to demonstrate that the Law Division judge erred in refusing to relax the time bar. First, defendant's sole explanation for the delayed filing is his "total lack of knowledge" of the law regarding his right to counsel and his right to a speedy trial. The record lacks any substantiated evidence that defendant suffered from an impairment which prevented him from exercising his rights, see State v. D.D.M., 140 N.J. 83, 100-01 (1995), without which he cannot show excusable neglect. Further, after a nearly twenty-two year delay, it is likely the State would be prejudiced in its ability to present evidence if a new trial were ordered.
Finally, defendant has not shown that there has been an injustice sufficient to relax the time limits. "To sustain the burden of demonstrating that an injustice has occurred, a defendant must allege and articulate specific facts, which, if believed, would provide the court with an adequate basis on which to rest its decision." Weil, supra, 421 N.J. Super. at 131 (citation and internal quotation marks omitted). Here, defendant does not assert any defense to his DWI charge nor does he adequately articulate the specific facts entitling him to relief. See id. at 131.
Defendant alleges an injustice occurred when the court violated his right to a speedy trial. In State v. Cahill, 213 N.J. 253, 269-70 (2013), the Court acknowledged the right to a swift prosecution and punishment in DWI cases. However, the Court "declined to adopt a bright-line" rule with respect to speedy trial claims. Id. at 270. The court concluded that each application for dismissal based on speedy trial principles is fact-sensitive and requires "a case-by-case analysis." Ibid.
Defendant alleges the delay in prosecution was the fault of the State because it failed to provide notice to him after he informed the court of a new "mailing address." However, defendant failed to adequately substantiate that he changed his address. In fact, when defendant pleaded guilty in 1991, he certified his accurate address was the residence in Wildwood Crest, the same address where he was initially served, where the police attempted to execute the warrant, and from where he allegedly moved.
It is of note that this address appears to belong to defendant's mother as it is listed as her address on the check she signed to obtain defendant's Law Division transcript.
--------
More importantly, however, defendant never asserted his right to a speedy trial. We are aware that "[a] defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial." Id. at 266. However, the time to assert this right was prior to the proceeding in which he pleaded guilty.
In Cahill, defendant filed a motion to dismiss the charge on the basis of speedy trial "promptly after receipt of the trial notice." Id. at 274. Here, defendant was made aware of the outstanding charge, made no motion for dismissal, and pleaded guilty. Defendant did not allege any violation for more than two decades until the present matter in which he attempts to use delay in trial as grounds for post-conviction relief. As such, defendant has failed to show that an injustice occurred sufficient to relax the time restraints.
We find defendant's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION