STATE OF NEW JERSEY VS. BRIAN G. GARRETT(8-15, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
APPELLATE DIVISION
DOCKET NO. A-2028-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN G. GARRETT,

Defendant-Appellant.
________________________________

Submitted March 28, 2017 – Decided July 13, 2017

Before Judges Reisner and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Municipal
Appeal No. 8-15.

Bruce K. Warren, attorney for appellant.

Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent
(Elizabeth K. Tornese, Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM

Defendant appeals from the January 5, 2016 order of the Law

Division denying his petition for post-conviction relief (PCR).
Defendant filed this petition seeking relief from the use of a

1984 conviction for driving while intoxicated (DWI), N.J.S.A.

39:4-50, to enhance the penalty for a subsequent DWI conviction.

For the reasons that follow, we affirm.

The procedural history of this case can best be understood

in the context of our drunk driving laws, as amended over the

years, which provide progressively-enhanced penalties for repeat

offenders. Penalties for first-time offenders include a fine

between $250 and $500, license suspension for a period between

three months and one year, and, in the court's discretion, a term

of imprisonment not to exceed thirty days, with twelve to forty-

eight hours of detainment at an Intoxicated Driver Resource Center

(IDRC). N.J.S.A. 39:4-50(a)(1). Second-time offenders are

subject to a fine of between $500 and $1000, a mandatory two-year

license revocation, and a term of imprisonment of not less than

forty-eight consecutive hours nor more than ninety days in length.

N.J.S.A. 39:4-50(a)(2). Penalties for third or subsequent

violations include a mandatory $1000 fine, a mandatory ten-year

license revocation and a mandatory custodial term of 180 days, 90

days of which may be served in an approved drug or alcohol in-

patient rehabilitation program. N.J.S.A. 39:4-50(a)(3).

If more than ten years elapse between convictions, N.J.S.A.

39:4-50(a) provides a "step-down" provision under which the

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earlier violation does not enhance the sentence of the subsequent

conviction. State v. Revie, 220 N.J. 126, 128 (2014); State v.

Lucci, 310 N.J. Super. 58, 61-62 (App. Div.), certif. denied, 156

N.J. 386 (1998). "Thus, a defendant's record of prior DWI offenses

has a pivotal impact on his or her exposure to a term of

incarceration, the loss of his or her driver's license, and other

penalties." Revie, supra, 220 N.J. at 133.

Against this statutory backdrop, on May 8, 1984, defendant,

seventeen years old at the time and without legal representation,

pled guilty to DWI in the City of Vineland Municipal Court. He

was later convicted of DWI for a second and third time in 1991 and

1997, respectively. After defendant was again charged with DWI

in Vineland sometime in 2014 or 2015,1 he made a PCR application

in February 2015, to vacate the 1984 conviction, or in the

alternative, have the municipal court not consider the 1984

conviction for sentence enhancement purposes. State v. Laurick,

120 N.J. 1, cert. denied, 489 U.S. 987, 111 S. Ct. 429, 112 L. Ed.

2d 413 (1990). Specifically, defendant argued that when he entered

his 1984 plea, he was an unrepresented juvenile, and was not

advised by the municipal court of his right to counsel nor that

future convictions could result in jail time and increased

1
The record is unclear.

3 A-2028-15T2
financial penalties. Following a hearing in which defendant was

the only witness, the municipal court judge denied defendant's

application, finding there was no legal basis to vacate the 1984

DWI conviction but that it would not be used to enhance a sentence

for the pending charge if he was found guilty. Defendant appealed

the denial of his request to vacate the conviction to the Law

Division.

Following oral argument and a trial de novo on the record on

November 6, 2015, Judge Robert G. Malestein issued an order and

written decision on January 5, 2016, denying defendant's PCR

petition. He found that defendant's petition, filed thirty-one

years after his 1984 DWI conviction, was untimely. Pursuant to

Rule 7:10-2(b), a petition must be filed no "more than five years

after entry of the judgment of conviction or imposition of the

sentence sought to be attacked, unless it alleges facts showing

that the delay in filing was due to defendant's excusable neglect."

The judge rejected defendant's contention that he thought the

conviction would merely be a juvenile record without affecting him

later. The judge reasoned, "at the time of his other two DWI

convictions, defendant was no longer a juvenile, his 1984 DWI

conviction most likely had an impact on the penal consequences of

those DWI's, and therefore he could have filed a [Laurick

application] following his second or third DWI conviction."

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 Judge Malestein further recognized that there were no grounds

pursuant to Rule 3:22-12 (a)(1) and Rule 7:10-2(c) to relax the

five-year time limitation because defendant did not establish that

the 1984 conviction constituted a fundamental injustice or denial

of rights afforded under the Constitution of the United States or

of New Jersey. Citing Rodriguez v. Rosenblatt, 58 N.J. 218, 285

(1971), the judge explained that in the 1984 proceeding

defendant had no constitutional right to
counsel simply because he was a juvenile at
the time, for this was not a delinquency
proceeding in which he would have been
afforded notice of the right to counsel,
albeit he should have had the right to counsel
(Rodriguez notice) due to his alleged indigent
status at the time. However, as per
Rodriguez, the right to the assignment of
counsel in municipal court for indigent
defendants charged with DWI's is not one of
constitutional dimension, either under the
state or federal Constitutions and does not
alone rise to the level of a "fundamental
injustice." In any event, the invalidity of
defendant's uncounseled conviction had been
properly resolved by [the municipal court
judge] in declaring that the 1984 conviction
would not increase any custodial penalties for
subsequent DWI's.

Additionally, the judge noted that defendant's delay in seeking

to vacate his thirty-one-year-old plea would prejudice the State

because it would have to dismiss the charge due to the absence of

witnesses, reports or transcripts. This appeal followed.

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 "We begin our review with the well-settled proposition that

appellate courts should give deference to the factual findings of

the trial court." State v. Reece, 222 N.J. 154, 166 (2015) (citing

State v. Locurto, 157 N.J. 463, 470-71 (1999)). When the Law

Division conducts a trial de novo on the record developed in the

municipal court, our appellate review is limited. State v.

Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).

However, an appellate court does not afford any special deference

to the legal determinations of the trial court. Templo Fuente De

Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016).

Before us, defendant reiterates the argument that as a matter

of law his 1984 DWI conviction should be set aside because even

though he did not request counsel, as a juvenile he should have

been appointed assigned counsel by the municipal court. Having

considered this contention and the applicable legal principles,

we affirm substantially for the reasons stated in Judge Malestein's

written decision. Defendant's appellate arguments are without

sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirm.

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