State v. Charudutt J. Patel (081069) (Middlesex County and Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Charudutt J. Patel (A-13-18) (081069)

Argued April 23, 2019 -- August 7, 2019

ALBIN, J., writing for the Court.

In State v. Laurick, the Court held that a defendant is not subject to an enhanced
custodial sentence for a second or subsequent driving while intoxicated (DWI) conviction
if he was not advised of his right to counsel in an earlier DWI proceeding and entered an
uncounseled guilty plea or went to trial without counsel. 120 N.J. 1, 16-17 (1990). Here,
the Court considers the applicable standards for both indigent and non-indigent
defendants who seek relief from an enhanced custodial sentence for a second or
subsequent DWI based on a claimed denial of notice of the right to counsel in an earlier
DWI case.

In 2015, defendant Charudutt Patel was charged in two separate instances with
DWI. Patel had twice before been convicted of DWI. In 1994, he pled guilty to DWI in
the Piscataway Municipal Court. In 2010, Patel pled guilty to DWI in the North
Brunswick Municipal Court. Because of the passage of more than ten years between the
first and second convictions, Patel was sentenced as a first-time offender. See N.J.S.A.
39:4-50(a). The two 2015 DWI charges exposed Patel to potential third and fourth DWI
convictions. Patel claimed that his 1994 conviction in the Piscataway Municipal Court
was uncounseled and therefore could not be used for custodial enhancement purposes
pursuant to Laurick. Thus, for Laurick purposes, Patel contended that he stood before the
court as a second-time offender, and he moved to bar the use of his allegedly uncounseled
1994 DWI guilty plea to enhance any custodial sentence in the pending DWI cases.

In support of his Laurick motion, Patel filed two certifications averring that he was
indigent at the time of his 1994 DWI guilty plea, that he appeared in the Piscataway
Municipal Court without an attorney, and that the municipal court judge did not advise
him of his right to retain one. Patel did retain an attorney in 2010 to represent him on the
DWI charge in North Brunswick. In 2016, no documents remained in the Piscataway
Municipal Court to disprove Patel’s certifications.

The court denied Patel’s Laurick motion. Patel filed a motion for reconsideration
and a third certification to clarify his earlier certifications. He asserted that in 1994, “the
Judge never advised me that I had a right to retain an attorney nor did he advise me that I
1
had a right to an appointed attorney at no charge. Therefore, I simply pled guilty.” The
court denied the motion for reconsideration, stating that in the absence of municipal court
records, Patel’s certifications were insufficient to prove that he was denied notice of his
right to counsel twenty-two years earlier and that, in any event, he should have filed his
Laurick motion in 2010 when he was charged with his second DWI in North Brunswick.

The Law Division denied Patel’s appeal. He then pled guilty to the third DWI
incident, in exchange for which other charges, including the fourth DWI charge, were
dropped. The Appellate Division affirmed, and the Court granted Patel’s petition for
certification. 235 N.J. 337 (2018).

HELD: To secure relief from an enhanced custodial sentence for a subsequent DWI
conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI
proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he
known of his right to counsel, he would have retained a lawyer. A defendant contending
he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was
not advised and did not know of his right to appointed counsel, (2) he was entitled to the
appointment of counsel under the applicable financial means test, R. 7:3-2(b), and (3) had
he been properly informed of his rights, he would have accepted appointed counsel.
Because denial of counsel is a structural defect in the proceeding, to secure relief from an
enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show
that the outcome would have been different had he been represented. The Court removes
the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective
immediately, to provide the following: “(2) Time Limitations. A petition seeking relief
under this Rule may be filed at any time.” Here, Patel’s unrebutted certifications
established that his 1994 plea was uncounseled, and he had no obligation to establish that
he would not have pled guilty or been convicted at trial had he been represented by
counsel. The Court therefore reverses the judgment of the Appellate Division and
remands the matter for proceedings consistent with this opinion.

1. The right to the assistance of counsel is guaranteed to all defendants charged with
DWI. Knowledge of one’s right to counsel is indispensable to the exercise of that right.
For that reason, all municipal court judges must “inform the defendant of the right to
retain counsel or, if indigent, to have counsel assigned pursuant to [Rule 7:3-2(b)].” R.
7:3-2(a). The court also must ask the defendant “whether legal representation is desired”
and record the response “on the complaint.” Ibid. Because of the singular importance of
the right to counsel, the denial of counsel is deemed a structural defect in the framework
of the proceedings -- a defect that cannot be quantitatively assessed and therefore defies a
harmless error analysis. A defendant denied the right to counsel does not have to
establish prejudice on direct appeal; prejudice is presumed. (pp. 13-16)

2. In Laurick, the Court held that a prior uncounseled DWI conviction could “not be used
to increase a defendant’s loss of liberty,” but made clear that there was no impediment to
2
the use of other collateral consequences of the uncounseled conviction, such as a period
of license suspension or financial penalties. 120 N.J. at 4. The Court set different
standards of proof for indigent and non-indigent DWI defendants who sought to bar the
use of the prior uncounseled DWI conviction for custodial sentence enhancement
purposes. See id. at 11. The non-indigent defendant must show, like indigent
defendants, a “lack of notice as well as the absence of knowledge of the right to be
represented by counsel of one’s choosing,” but must also show “that the lack of notice
otherwise affected the outcome.” Id. at 11, 17. The Court did not explain its reasons for
placing a higher burden on non-indigent defendants. In State v. Hrycak, the Court
“reaffirm[ed] [its] holding in Laurick that an uncounseled DWI conviction may not be
used to enhance the period of incarceration for a subsequent offense,” restated the
Laurick formula, and again set different standards for indigent and non-indigent
defendants as to whether prior uncounseled DWI convictions could be used for custodial
sentence enhancement purposes. 184 N.J. 351, 354, 362-63 (2005). (pp. 16-21)

3. In State v. Schadewald, the Appellate Division altered the tests for indigent and non-
indigent defendants challenging prior uncounseled DWI convictions articulated in
Laurick and Hrycak. See 400 N.J. Super. 350, 354-55 (App. Div. 2007). In that case, the
Appellate Division held that both indigent and non-indigent defendants must
“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.” Id. at 354. The
Appellate Division in this case followed the Schadewald paradigm. (pp. 21-22)

4. Schadewald treats equally two classes of similarly situated defendants. That being
said, Schadewald is in clear conflict with the holdings in both Laurick and Hrycak and
arguably imposes an unduly burdensome standard by requiring that indigent and non-
indigent defendants prove that the outcome would have been different had they been
represented by counsel. Denial of counsel -- here the denial of the opportunity to retain
counsel or secure appointed counsel -- is a structural defect in the proceedings, not
quantifiable by any traditional measurement and therefore not typically susceptible to a
harmless-error analysis. And when notice of the right to counsel is not given in DWI
cases, to obtain the special form of relief recognized in Laurick, neither indigent nor non-
indigent defendants should be required to establish that the outcome of the proceeding
would have been different had they been given the opportunity to retain counsel or secure
appointed counsel. (pp. 22-24)

5. The Court adopts the standards reprinted in the HELD paragraph above and notes that
the defendant has the burden of proving that his prior uncounseled DWI conviction was
based on the municipal court’s failure to advise him of his right to counsel. If municipal
courts retain the records mandated by New Jersey court rules and jurisprudence,
determining whether there was compliance with the notice requirements should not be
difficult. The defendant must secure the relevant documents to establish a violation of
the notice requirement. In the absence of documentary evidence or witnesses with a
3
recollection, the defendant is in a position to do no more than file an affidavit averring
that he was not advised of his right to counsel and did not know that he could retain
counsel. The defendant who claims he was indigent at the time of the prior proceeding
should attest that he was not advised and did not know of his right to appointed counsel,
and was unable to afford an attorney. In future cases, he also should attach to his
affidavit or certification documents that would establish his indigence. (pp. 24-25)

6. In the present case, the Piscataway Municipal Court has indicated that no record
remains of whether Patel’s 1994 DWI guilty plea was uncounseled or whether Patel was
given notice of his right to counsel and, if indigent, the right to appointed counsel. Patel
filed three certifications in the Piscataway Municipal Court in support of his application
to bar the use of his 1994 DWI conviction to enhance his custodial term. Patel has made
clear in his certifications that had he been advised of his right to counsel, he would have
sought the assistance of counsel -- preferably appointed counsel -- and, if he had
resources, retained counsel. Patel’s assertions -- like those of the defendant in Laurick --
have gone unrebutted. See Laurick, 120 N.J. at 6. Patel has satisfied his burden of
showing that his prior uncounseled DWI conviction was caused by the municipal court’s
failure to advise him of his right to counsel. (pp. 26-27)

7. The current court rules provide that a petition for Laurick relief “shall not be accepted
for filing 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.” R. 7:10-2(g)(2); R. 7:10-2(b)(2). In the
present case, Patel submits that he sought relief from his prior uncounseled conviction at
the only time that it made sense to do so and that therefore any “delay” should be deemed
excusable. State v. Bringhurst, 401 N.J. Super. 421 (App. Div. 2008), supports this point.
The Bringhurst court reasoned that because “a second or subsequent [DWI] conviction
may occur at any time in the future, it would be illogical to apply the Rule’s five-year
time limit mechanistically to deny all [Laurick] applications.” Id. at 433. That logic
accords with recommendations by the Municipal Court Practice Committee to allow a
Laurick petition to be filed at any time. The Court now adopts the language proposed by
the Committee and amends in part Rule 7:10-2(g), effective immediately, to provide:
“(2) Time Limitations. A petition seeking relief under this
Rule may be filed at any time.”
(pp. 27-31)

The judgment of the Appellate Division is REVERSED and the matter is
REMANDED for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.
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 SUPREME COURT OF NEW JERSEY
A-13 September Term 2018
081069

State of New Jersey,

Plaintiff-Respondent,

v.

Charudutt J. Patel,

Defendant-Appellant.

On certification to Superior Court,
Appellate Division.

Argued Decided
April 23, 2019 August 7, 2019

Victor A. Rotolo argued the cause for appellant (Rotolo
Karch Law, attorneys; Victor A. Rotolo, E. Carr Cornog,
III, William E. Reutelhuber, and Matthew R. Marotta, on
the briefs).

Patrick F. Galdieri, II, Assistant Prosecutor, argued the
cause for respondent (Andrew C. Carey, Middlesex
County Prosecutor, attorney; Patrick F. Galdieri, II, of
counsel and on the briefs).

Lila B. Leonard, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Lila B.
Leonard, of counsel and on the brief).

1
 JUSTICE ALBIN delivered the opinion of the Court.

Every defendant charged with driving while intoxicated (DWI), N.J.S.A.

39:4-50, is guaranteed the right to retain counsel or, if indigent, the right to

appointed counsel in municipal court.1 State v. Hrycak, 184 N.J. 351, 362

(2005). In a DWI case, the guiding hand of counsel is essential to safeguard

fundamental rights in our adversarial system of justice, such as the right to a

fair plea or trial proceeding.

To ensure the efficient administration of justice in our municipal courts ,

judges are directed to “inform the defendant of the right to retain counsel or, if

indigent, to have counsel assigned.” R. 7:3-2(a); see also Hrycak, 184 N.J. at

362. Judges are also required to ask the defendant “whether legal

representation is desired” and to have the response “recorded on the

complaint.” R. 7:3-2(a).

Repeat DWI offenders are subject to enhanced custodial sentences,

license suspensions, and financial penalties. N.J.S.A. 39:4-50(a)(2)-(3). We

held in State v. Laurick that a defendant is not subject to an enhanced custodial

sentence for a second or subsequent DWI conviction if he was not advised of

1
“‘Indigent defendant’ means a person who is entitled to be represented by a
municipal public defender . . . and does not have the present financial ability to
secure competent legal representation . . . .” N.J.S.A. 2B:24-2.

2
his right to counsel in an earlier DWI proceeding and entered an uncounseled

guilty plea or went to trial without counsel. 120 N.J. 1, 16-17 (1990). Under

this special form of relief, the defendant is not relieved of enhanced financial

and administrative penalties. Id. at 16.

Since Laurick, our courts have struggled to establish clear standards for

both indigent and non-indigent defendants who seek relief from an enhanced

custodial sentence for a second or subsequent DWI based on a claimed denial

of notice of the right to counsel in an earlier DWI case. To receive this special

form of relief from an uncounseled prior DWI conviction, we have imposed

different standards on indigent and non-indigent DWI defendants. See Hrycak,

184 N.J. at 363. Only uncounseled non-indigent defendants are required to

show that the outcome would have been different if counsel had been retained.

Ibid. We can find no justification for such an asymmetrical approach.

The present case provides us with the opportunity to give clearer

guidance to indigent and non-indigent DWI defendants who face an enhanced

custodial sentence based on an earlier uncounseled DWI conviction. We now

hold that to secure relief from an enhanced custodial sentence for a subsequent

DWI conviction, a non-indigent defendant must establish that in the earlier

uncounseled DWI proceeding, (1) he was not advised or did not know of his

right to counsel and (2) had he known of his right to counsel, he would have

3
retained a lawyer. A defendant contending he was indigent must establish

that in the earlier uncounseled DWI proceeding (1) he was not advised and did

not know of his right to appointed counsel, (2) he was entitled to the

appointment of counsel under the applicable financial means test, R. 7:3-2(b),

and (3) had he been properly informed of his rights, he would have accepted

appointed counsel. Because denial of counsel is a structural defect in the

proceeding, to secure relief from an enhanced custodial sentence, neither an

indigent nor a non-indigent defendant must show that the outcome would have

been different had he been represented.

I.

A.

In 2015, defendant Charudutt Patel was charged in two separate

instances with DWI -- in Tewksbury Township in January and in Hillsborough

Township five months later. The assignment judge of the vicinage

consolidated both cases for disposition in the Tewksbury Municipal Court.

Patel had twice before been convicted of DWI. In 1994, he pled guilty

to DWI in the Piscataway Municipal Court.2 As a consequence of his guilty

2
According to a police report, a Piscataway Township patrol officer found
Patel asleep in his car with the engine running in a restaurant parking lot
located within 100 feet of a police department drunk-driving checkpoint. In
Patel’s car were two bags containing four beers. Patel was transported to
police headquarters, where a breathalyzer test was administered. Two tests

4
plea, his license was suspended for six months, and he was fined $495. In

2010, Patel pled guilty to DWI in the North Brunswick Municipal Court.

Because of the passage of more than ten years between the first and second

convictions, Patel was sentenced as a first-time offender to serve twelve hours

at an Intoxicated Driver Resource Center and fined $764. See N.J.S.A. 39:4-

50(a) (providing that, for sentencing purposes, a second DWI conviction is

treated as a first DWI conviction if more than ten years have passed between

the first and second offenses). Additionally, Patel received a three-month

license suspension.

The two 2015 DWI charges exposed Patel to potential third and fourth

DWI convictions. For a third and subsequent DWI conviction, Patel faced a

180-day term of imprisonment, a ten-year license suspension, and significant

financial and administrative penalties. Patel claimed that his 1994 conviction

in the Piscataway Municipal Court was uncounseled and therefore could not be

used for custodial enhancement purposes pursuant to Laurick, 120 N.J. at 4

(holding that “a prior DWI conviction that was uncounseled in violation of

court policy may not be used to increase a defendant’s loss of liberty”). Thus,

revealed that Patel’s blood alcohol content (BAC) measured at .13 percent and
.12 percent.

5
for Laurick purposes, Patel contended that he stood before the Tewksbury

Municipal Court as a second-time offender.

In 2016, Patel filed a Laurick motion in the Piscataway Municipal Court

to bar the use of his allegedly uncounseled 1994 DWI guilty plea to enhance

any custodial sentence in the pending DWI cases in the Tewksbury Municipal

Court. See R. 7:10-2(g)(1) (“A post-conviction petition to obtain relief from

an enhanced custodial term based on a prior conviction shall be brought in the

court where the prior conviction was entered.”). In support of his Laurick

motion, Patel filed two certifications in which he made the following

averments. At the time of his 1994 DWI guilty plea, Patel was a twenty-eight-

year-old recent immigrant from India, having moved to the United States four

years earlier. He lived with his wife in an apartment, was unemployed, “and

had no money to . . . hire an attorney.” His wife paid the rent, and they “were

barely scraping by.” He appeared in the Piscataway Municipal Court without

an attorney, and the municipal court judge did not advise him of his right to

retain one. Patel did retain an attorney in 2010 to represent him on the DWI

charge in North Brunswick.

In 2016, no documents remained in the Piscataway Municipal Court to

disprove Patel’s certifications. In a handwritten note, the municipal court

administrator advised that “[a]fter 15 years all DWI files are sent for

6
destruction. No transcripts are available.” Through counsel, Patel asserted to

the present Piscataway Municipal Court judge that in 1994, without the advice

of counsel, he “just assumed that he had to plead guilty” to the DWI charge.

The court denied Patel’s Laurick motion. In doing so, it explained that

not only had Patel failed to present a claim of innocence to the 1994 DWI

charge, but also that the State would suffer undue prejudice because of the age

of the case and the destruction of documents. The court added that there

remained several unknowns: whether Patel consulted with an attorney and

whether the 1994 municipal court judge advised him of his right to counsel.

Patel filed a motion for reconsideration and a third certification to clarify

his earlier certifications. He asserted that in 1994, “the Judge never advised

me that I had a right to retain an attorney nor did he advise me that I had a

right to an appointed attorney at no charge. Therefore, I simply pled guilty.”

Patel added, “Had I known that I could have had an attorney appointed for me

at no charge I would have taken advantage of that option.”

The court denied the motion for reconsideration, stating that in the

absence of municipal court records, Patel’s certifications were insufficient to

prove that he was denied notice of his right to counsel twenty-two years earlier

and that, in any event, he should have filed his Laurick motion in 2010 when

he was charged with his second DWI in North Brunswick.

7
 B.

Patel appealed to the Middlesex County, Law Division. In denying the

appeal, the court stated that Patel was not entitled to relief because his

certifications did not assert that he had a viable defense to the 1994 DWI

charge and because he did not establish that the outcome would have been

different if he had the benefit of counsel.

C.

In December 2016, Patel pled guilty in Tewksbury Municipal Court to

the Tewksbury DWI charge. The court sentenced Patel, as a third-time

offender, to 180 days in the county jail, suspended his license for ten years,

and imposed the requisite fines and administrative penalties. See N.J.S.A.

39:4-50(a)(3). The remaining charges, including the Hillsborough DWI

charge, were dismissed. The court stayed the custodial portion of the sentence

pending Patel’s appeal.

D.

The Appellate Division affirmed, finding that the Law Division

“correctly determined [that Patel] failed to sustain his burden of establishing

entitlement to Laurick relief.” The court held that Patel had the obligation of

“showing he had a defense to the DWI charge or in all likelihood the result

8
would have been different if he had counsel for his 1994 DWI proceeding,”

citing State v. Schadewald, 400 N.J. Super. 350, 354-55 (App. Div. 2007). It

concluded that Patel’s certifications were “bereft of any evidence”

demonstrating “that the result of the 1994 DWI proceeding would have been

different if he had received proper notice of his right to counsel.” Having

rejected Patel’s appeal on that basis, the Appellate Division, relying on Rule

7:10-2(g)(2)’s five-year bar, declined to address “whether [Patel’s]

certifications [were] sufficient to establish he was indigent at the time of the

1994 DWI proceeding, or whether [Patel] sufficiently demonstrated excusable

neglect under Rule 7:10-2(b)(2) to permit the filing of his petition more than

sixteen years after the Rule’s five-year time limit.”

E.

We granted Patel’s petition for certification. 235 N.J. 337 (2018). We

also granted the New Jersey Attorney General’s motion to participate as

amicus curiae.

II.

A.

Patel contends that, under Laurick and Hrycak, a defendant challenging

an enhanced custodial sentence to a DWI conviction based on a prior

uncounseled DWI conviction, secured while he was indigent, need prove only

9
that he was not given notice of his right to counsel and to the assignment of

counsel if unable to afford an attorney. He submits that an indigent defendant

is not required to establish that “he had a defense to the DWI charge, and that

the outcome would have in all likelihood been different,” citing Laurick and

Hrycak. Given the precedents of this Court, he argues that the decisions by the

Appellate Division and Law Division in this case, and the Appellate Division

decisions in Schadewald, 400 N.J. Super. at 354-55, and State v. Bringhurst,

401 N.J. Super. 421, 435 (App. Div. 2008), are in error.

Patel submits, moreover, that he had no reason to pursue a Laurick

petition in 2010 -- the time of his second DWI conviction -- because the

passage of more than ten years between his first and second DWI convictions

allowed him to be sentenced as a first-time offender. He also notes that by

2010, the Piscataway Municipal Court’s records had already been destroyed

pursuant to the judiciary’s retention policy. Last, he argues that the five-year

time bar of Rule 7:10-2(g)(2) -- a rule adopted in 2009 -- should not apply

retroactively to his uncounseled 1994 DWI conviction because Laurick,

decided in 1990, placed no time constraints on relief from an improper

sentence enhancement.

B.

10
 The State acknowledges that, under Laurick, the standard for obtaining

relief is less onerous for indigent defendants than non-indigent defendants

because the indigent defendant need only prove that he did not receive notice

of the right to assignment of counsel, he was not appointed assigned counsel,

and he did not waive the right to counsel, citing Hrycak, 184 N.J. at 363.

Nevertheless, the State maintains that Patel did not make a sufficient showing

to the Piscataway Municipal Court that he was indigent when he entered his

1994 guilty plea. The State points out that an “indigent defendant” entitled to

the representation by a municipal public defender is one who “does not have

the present financial ability to secure competent legal representation,” quoting

N.J.S.A. 2B:24-2. According to the State, Patel’s claims of indigence were

“self-serving, unsubstantiated, and conclusory” because he did not submit

relevant financial documents, such as “tax returns, unemployment records, and

bank statements.”

The State contends that the absence of adequate proof of indigence

required Patel to satisfy the additional burden of showing that “his 1994 guilty

plea wrought a miscarriage of justice,” and that he failed to do so. In the

State’s view, “[t]he police records demonstrate that even if [Patel] were

represented by counsel, he still would have been found guilty of DWI.”

11
 Last, the State argues that Patel failed to demonstrate excusable neglect

or some other justifiable reason for relaxing the five-year time bar of Rules

7:10-2(g)(2) and (b)(2), and therefore he is foreclosed from attacking a twenty-

two-year-old municipal court conviction.

C.

Disagreeing with both Patel and the State, the Attorney General claims

that Laurick did not impose different requirements for relief for indigent and

non-indigent defendants. The Attorney General posits that Laurick

“recognized that both indigent and non-indigent defendants must show that the

lack of notice of their respective rights resulted in a miscarriage of justice.”

(emphasis added). In the Attorney General’s view, relieving indigent

defendants but not non-indigent defendants of the requirement of showing a

miscarriage of justice “would deprive non-indigent defendants of equal

protection of the law, and would thus be untenable.” Otherwise, the Attorney

General concurs with the arguments advanced by the State that Patel is not

entitled to Laurick relief.

III.

A.

The parties and courts in this case have varied interpretations of the

governing case law. We review issues of law de novo and owe no deference to

12
the interpretive conclusions of either the Appellate Division or Law Division.

State v. Quaker Valley Farms, LLC, 235 N.J. 37, 55 (2018). Factual findings

made by the trial court are entitled to deference provided they are supported by

“sufficient credible evidence in the record.” Willingboro Mall, Ltd. v. 240/242

Franklin Ave., LLC, 215 N.J. 242, 253 (2013) (quoting Brunson v. Affinity

Fed. Credit Union, 199 N.J. 381, 397 (2009)). Only when those findings are

“clearly mistaken” will we intervene in the interests of justice. State v. S.S.,

229 N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 425 (2014)).

B.

The right to the assistance of counsel is guaranteed to all defendants

charged with DWI. State v. Stein, 225 N.J. 582, 594 (2016); R. 7:3-2(a).

Indigent defendants facing imprisonment or other consequences of magnitude

are also guaranteed the appointment of counsel without cost “as a matter of

simple justice.” Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971); see also R.

7:3-2(b). We granted that right to indigent defendants through “the exercise of

[our] supervisory jurisdiction over procedures in New Jersey courts .” Laurick,

120 N.J. at 8 (citing Rodriguez, 58 N.J. at 294); see also N.J. Const. art. VI, §

2, ¶ 3 (“The Supreme Court shall make rules governing the administration of

all courts in the State and, subject to the law, the practice and procedure in all

such courts.”). In doing so, we recognized that “considerations of fairness

13
dictate that appropriate steps be taken to protect unrepresented indigent

defendants against injustices which may result from their inability to cope

fairly with municipal court charges against them.” Rodriguez, 58 N.J. at 294.

Knowledge of one’s right to counsel is indispensable to the exercise of

that right. For that reason, all municipal court judges must “inform the

defendant of the right to retain counsel or, if indigent, to have counsel assigned

pursuant to [Rule 7:3-2(b)].” R. 7:3-2(a). The court also must ask the

defendant “whether legal representation is desired” and record the response

“on the complaint.” Ibid.

The assistance of counsel is essential to a fair proceeding in our

adversarial system of justice. See United States v. Gonzalez-Lopez, 548 U.S.

140, 147 (2006) (“[R]epresentation by counsel ‘is critical to the ability of the

adversarial system to produce just results.’” (quoting Strickland v.

Washington, 466 U.S. 668, 685 (1984))). “[T]he untrained defendant is in no

position to defend himself . . . even where there are no complexities,”

Rodriguez, 58 N.J. at 295, and “[w]ithout the guiding hand of counsel, an

innocent defendant may lose his freedom because he does not know how to

establish his innocence,” State v. Sugar, 84 N.J. 1, 16 (1980). Because of the

singular importance of the right to counsel, the denial of counsel is deemed a

structural defect in the framework of the proceedings -- a defect that cannot be

14
quantitatively assessed and therefore defies a harmless error analysis.

Gonzalez-Lopez, 548 U.S. at 148-49; see also State v. Gonzalez, 114 N.J. 592,

608 (1989) (holding on direct appeal that the defendant’s “conviction must be

reversed . . . because the defendant was not adequately advised of his right to

counsel”). A defendant denied the right to counsel does not have to establish

prejudice on direct appeal; prejudice is presumed. See Gonzalez-Lopez, 548

U.S. at 148-49; see also State v. McCombs, 81 N.J. 373, 375 (1979).

C.

Defendants charged with DWI are guaranteed the right to counsel

because the penalties for a DWI conviction constitute consequences of

magnitude. See Rodriguez, 58 N.J. at 295. Progressive penalties apply to

defendants convicted of a second and subsequent DWI violation. See N.J.S.A.

39:4-50(a)(1)-(3). A first-time offender is subject to a period of license

suspension of up to a year depending in part on his BAC level, a potential term

of imprisonment of thirty days, a fine between $250 and $500, and other

penalties. N.J.S.A. 39:4-50(a)(1). A second-time offender is subject to a

period of license suspension of two years, a term of imprisonment of two to

ninety days, a fine between $500 and $1000, and other penalties. N.J.S.A.

39:4-50(a)(2). A third-time or subsequent offender is subject to a period of

license suspension of ten years, a mandatory term of imprisonment of 180 days

15
(which may be lowered by as many as 90 days served in an inpatient drug or

alcohol rehabilitation program), a fine of $1000, and other penalties. N.J.S.A.

39:4-50(a)(3).

D.

In light of our discussion of the importance of the right to counsel and

the severity of progressive DWI penalties, we turn to the central cases --

Laurick and Hrycak -- that govern enhanced custodial sentences based on prior

uncounseled convictions.

In Laurick, the issue was whether a defendant convicted of a second or

subsequent DWI could have his sentence enhanced by an earlier uncounseled

DWI conviction. 120 N.J. at 4. In that case, we provided a limited form of

post-conviction relief to those defendants who had not waived their right to

counsel and who were not informed by the court of their right to retain counsel

or, if indigent, of their right to assigned counsel without cost. Id. at 4, 16. We

held that a prior uncounseled DWI conviction could “not be used to increase a

defendant’s loss of liberty.” Id. at 4. We made clear, however, that under this

special form of post-conviction relief there was no impediment to the use of

other collateral consequences of the uncounseled conviction, such as a period

of license suspension or financial penalties. Ibid. The remedy for those other

collateral consequences, we stated, “should follow our usual principles for

16
affording post-conviction relief” -- the “showing of a denial of fundamental

justice or other miscarriage of justice.” Id. at 4-5.

In Laurick, the defendant pled guilty to a second DWI in municipal

court. Id. at 6. He claimed, however, that five years earlier, during the

proceeding when he pled guilty to the first DWI, “he had been unrepresented

by counsel, unaware of his right to counsel, and uninformed of that right by

the previous judge.” Ibid. No proofs were presented to rebut defendant’s

claim that the earlier “court had failed to advise him of the right to appointed

or retained counsel.” Ibid. We held that, on the record before us, the

defendant could only be sentenced to a custodial term as a first-time offender

but was subject to all other collateral consequences as a second-time offender. 3

Id. at 17.

3
The 2007-2009 Report of the Municipal Court Practice Committee explained
the distinction between Laurick collateral relief and traditional post-conviction
relief:

The nature of the relief sought in a Laurick application
is qualitatively different than the relief sought in a
conventional post-conviction relief proceeding. In the
latter category of applications, the relief sought is a
vacating of the conviction. In a Laurick application,
the conviction is left in place, however it may not be
used to enhance the custodial component of a sentence
related to a future conviction for a violation of the same
statute.

17
 In reaching that determination, the Court set different standards of proof

for indigent and non-indigent DWI defendants who sought to bar the use of the

prior uncounseled DWI conviction for custodial sentence enhancement

purposes. See id. at 11. The indigent defendant need only show that his

earlier DWI guilty plea “was a product of an absence of notice of the right to

assignment of counsel and non-assignment of such counsel without waiver.”

Ibid. In contrast, the non-indigent defendant must show “lack of notice as well

as the absence of knowledge of the right to be represented by counsel of one’s

choosing” and “show in addition that the lack of notice otherwise affected the

outcome.” Id. at 11, 17. The Court did not explain its reasons for placing a

higher burden on non-indigent defendants.

Importantly, going forward, to ensure that evidence of right-to-counsel

notices would be retained by municipal courts, the Court directed that “the

hard-copy judgment of conviction in DWI cases should contain a notation by

the municipal court that the Rodriguez notice has been given and counsel

waived.” Id. at 12. The Court, moreover, indicated that the “notation will

[Mun. Ct. Practice Comm., 2007-2009 Report 27
(2009).]

In Laurick, we did not bar the defendant from seeking full post-conviction
relief from the court of original jurisdiction in the earlier DWI case. 120 N.J.
at 17.

18
have presumptive correctness.”4 Ibid. Last, the Court noted that “post-

conviction relief from the effect of prior convictions should normally be

sought in the court of original jurisdiction.” Id. at 17.

The right-to-counsel principles articulated in Laurick were essentially

grounded in state law, particularly the landmark decision in Rodriguez. Id. at

7-8. We discoursed, however, on the plurality decision in Baldasar v. Illinois,

446 U.S. 222 (1980), in which four members of the United States Supreme

Court held that an uncounseled misdemeanor conviction could not be used to

enhance punishment by “convert[ing] a subsequent misdemeanor into a felony

with a prison term.” Laurick, 120 N.J. at 14 (alteration in original) (quoting

Baldasar, 446 U.S. at 222 (1980)). We expressed “genuine doubt” about the

future course that the United States Supreme Court might take in this area, but

decided to adopt the “core value” of the Baldasar plurality opinion -- “that an

uncounseled conviction without waiver of the right to counsel is invalid for the

purpose of increasing a defendant’s loss of liberty.” Id. at 16.

In Nichols v. United States, 511 U.S. 738 (1994), the United States

Supreme Court overruled the plurality opinion in Baldasar and “held that an

4
The Court also expressed hope that, in the future, the judiciary’s
computerized records would “permit storage of daily docket information for
longer periods of time without space or storage problems” and that those
records could be readily retrieved. Ibid.

19
uncounseled prior conviction ‘may be relied upon to enhance the sentence for

a subsequent offense, even though that sentence entails imprisonment.’” See

Hrycak, 184 N.J. at 354 (quoting Nichols, 511 U.S. at 746-47). In light of the

Nichols decision, we granted certification in Hrycak “to reconsider our

decision in Laurick.” Ibid.

In Hrycak, we “reaffirm[ed] our holding in Laurick that an uncounseled

DWI conviction may not be used to enhance the period of incarceration for a

subsequent offense.” Ibid. (citing Laurick, 120 N.J. at 16). We explained that

-- “wholly apart from the rationale in Baldasar” -- our decision in Laurick

relied on Rodriguez, which “emphasized our long held view that criminal

defendants have a right to counsel.” Id. at 360 (citing Rodriguez, 58 N.J. at

285).

We restated the Laurick formula in Hrycak and again set different

standards for indigent and non-indigent defendants when determining whether

prior uncounseled DWI convictions could be used for custodial sentence

enhancement purposes. Id. at 363. According to Hrycak, the threshold issue

for both indigent and non-indigent defendants is whether they satisfied their

burden of proving that they were not advised of their right to counsel in the

prior DWI proceeding. Ibid. The defendant who was indigent at the time of

the prior proceeding must establish that the uncounseled “DWI conviction was

20
a product of an absence of notice of the right to assignment of counsel and

non-assignment of such counsel without waiver.” Ibid. (quoting Laurick, 120

N.J. at 11). In contrast, the defendant who was non-indigent must show not

only that his prior uncounseled DWI conviction was based on a “lack of notice

as well as the absence of knowledge of the right to be represented by counsel

of one’s choosing,” but also “that the absence of such counsel had an impact

on the guilt or innocence of the accused or otherwise ‘wrought a miscarriage

of justice for the individual defendant.’” Ibid. (quoting Laurick, 120 N.J. at

11).

E.

In Schadewald, the Appellate Division altered the tests for indigent and

non-indigent defendants challenging prior uncounseled DWI convictions

articulated in Laurick and Hrycak. See 400 N.J. Super. at 354-55. In that

case, the Appellate Division held that both indigent and non-indigent

defendants must “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.” Id. at 354; accord Bringhurst, 401 N.J. Super.

at 435. To prove “that the outcome would have been different if the defendant

had the benefit of counsel before pleading guilty,” the Appellate Division

suggested that the defendant could submit “[p]olice reports, witness

21
statements, insurance investigations and the like.” Schadewald, 400 N.J.

Super. at 354-55. The Appellate Division in this case followed the

Schadewald paradigm.

Schadewald treats equally two classes of similarly situated defendants.

That being said, Schadewald is in clear conflict with the holdings in both

Laurick and Hrycak.

The Attorney General has questioned whether treating indigent

defendants differently from non-indigent defendants raises equal protection

concerns. That is a legitimate question when there is no justifiable basis for

the different classifications. The Attorney General urges us to follow

Schadewald. But Schadewald arguably imposes an unduly burdensome

standard by requiring that indigent and non-indigent defendants prove that the

outcome would have been different had they been represented by counsel.

As discussed earlier, the denial of counsel -- here the denial of the

opportunity to retain counsel or secure appointed counsel -- is a structural

defect in the proceedings, not quantifiable by any traditional measurement and

therefore not typically susceptible to a harmless-error analysis. The role of

counsel is to ensure the reliability of the proceedings and a just outcome . See

Hrycak, 184 N.J. at 363 (“We are convinced that a prior uncounseled DWI

conviction of an indigent is not sufficiently reliable to permit increased jail

22
sanctions under the enhancement statute.”); see also State v. Hayes, 205 N.J.

522, 541 (2011) (“Where a defendant in practice has been denied the right to

be represented by counsel . . . we can have no confidence in the uncounseled

proceedings below.”).

Additionally, attempting to determine whether the defendant could have

presented a viable defense had he been represented by counsel cannot be

discerned merely by reviewing police reports or witness statements. In the

typical DWI case, an attorney will consider whether the police officer had

reasonable suspicion to conduct the motor vehicle stop, see State v. Amelio,

197 N.J. 207, 210-11 (2008); whether the officer had probable cause to obtain

a breath sample, see State v. Chun, 194 N.J. 54, 79 (2008); whether the

breathalyzer result was reliable, see State v. Kuropchak, 221 N.J. 368, 384-85

(2015); and whether a video or audio recording of the stop differs from the

officer’s police report, see Stein, 225 N.J. at 596.

What defense might have been mounted had Patel been represented in

1994 is a matter of sheer speculation at this point. Our jurisprudence,

however, tells us that the assistance of counsel is vital to an adversarial

proceeding and the reliability of the outcome. See Hayes, 205 N.J. at 541;

Hrycak, 184 N.J. at 363.

23
 For these reasons, when notice of the right to counsel is not given in

DWI cases, to obtain the special form of relief recognized in Laurick, neither

indigent nor non-indigent defendants should be required to establish that the

outcome of the proceeding would have been different had they been given the

opportunity to retain counsel or secure appointed counsel.

IV.

A.

We now clarify the standard for indigent and non-indigent defendants

who challenge a custodial enhancement from a prior uncounseled DWI

conviction. A defendant who was non-indigent at the time of the earlier

uncounseled DWI proceeding must establish that (1) he was not advised or did

not know of his right to counsel and (2) had he known of his right to counsel,

he would have retained a lawyer. A defendant contending he was indigent in

the earlier uncounseled DWI proceeding must establish that (1) he was not

advised and did not know of his right to appointed counsel, (2) he was entitled

to the appointment of counsel under the applicable financial means test, R. 7:3-

2(b), and (3) had he been properly informed of his rights, he would have

accepted appointed counsel.

The defendant has the burden of proving that his prior uncounseled DWI

conviction was based on the municipal court’s failure to advise him of his rig ht

24
to counsel. If municipal courts retain the records mandated by our rules and

jurisprudence, determining whether there was compliance with the notice

requirements should not be difficult. See R. 7:3-2(a) (“The defendant shall be

specifically asked whether legal representation is desired and defendant’s

response shall be recorded on the complaint.”); Laurick, 120 N.J. at 12 (“[T]he

hard-copy judgment of conviction in DWI cases should contain a notation by

the municipal court that the Rodriguez notice has been given and counsel

waived.”).

The defendant must secure the relevant court documents or the

electronic recording or transcript of the proceeding to establish a violation of

the notice requirement. In the absence of documentary evidence or witnesses

with a recollection, the defendant is in a position to do no more than file an

affidavit or certification averring that he was not advised of his right to

counsel and did not know that he could retain counsel. The defendant who

claims he was indigent at the time of the prior proceeding should attest that he

was not advised and did not know of his right to appointed counsel, and was

unable to afford an attorney. In future cases, he also should attach to his

affidavit or certification relevant documents -- bank statements or other

financial documents that would establish his indigence in accordance with the

standards set forth in N.J.S.A. 2A:158A-14 and N.J.S.A. 2B:24-9.

25
 B.

In the present case, the Piscataway Municipal Court has indicated that no

record remains of whether Patel’s 1994 DWI guilty plea was uncounseled or

whether Patel was given notice of his right to counsel and, if indigent, the right

to appointed counsel. Patel filed three certifications in the Piscataway

Municipal Court in support of his application to bar the use of his 1994 DWI

conviction to enhance his custodial term. He attested that the court never

advised him of his right to retain an attorney or, if indigent, his right to an

appointed attorney at no charge; that had he known that he had the right to an

appointed attorney, he “would have taken advantage of that option”; that at the

time he appeared in court he was unemployed, “barely scraping by,” and had

no money to hire a lawyer; and that he entered his guilty plea without the

assistance of counsel.

Patel has made clear in his certifications that had he been advised of his

right to counsel, he would have sought the assistance of counsel -- preferably

appointed counsel -- and, if he had resources, retained counsel. Patel’s

assertions -- like those of the defendant in Laurick -- have gone unrebutted.

See Laurick, 120 N.J. at 6. Patel has satisfied his burden of showing that his

prior uncounseled DWI conviction was caused by the municipal court’s failure

to advise him of his right to counsel.

26
 Still, Patel must vault the five-year time bar imposed by Rules 7:10-

2(g)(2) and (b)(2) for a “Petition to Obtain Relief from an Enhanced Custodial

Term Based on a Prior Conviction.” See R. 7:10-2(g).

V.

Our current court rules provide that a petition for Laurick relief “shall

not be accepted for filing 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.” R. 7:10-2(g)(2); R. 7:10-2(b)(2).

In the present case, Patel submits that he sought relief from his prior

uncounseled conviction at the only time that it made sense to do so. When

Patel pled guilty to DWI in 2010 in the North Brunswick Municipal Court -- a

second DWI conviction -- he was sentenced as a first-time offender because

his first DWI conviction occurred more than ten years earlier. See N.J.S.A.

39:4-50(a). Patel would not have received any benefit then by challenging his

1994 uncounseled conviction in the Piscataway Municipal Court. Even if

successful, he still would have been sentenced as a first-time offender in the

North Brunswick Municipal Court. Indeed, the Piscataway Municipal Court

might have wondered why Patel was wasting his time and the court’s resources

by bringing a meaningless challenge. Additionally, had Patel sought

27
information about his uncounseled conviction, he probably would have learned

that relevant information had already had been purged from the municipal

court records due to the judiciary’s retention policy. See State of New Jersey

Judiciary, Recs. Retention Schedule (Mar. 16, 2001).

In short, Patel filed his petition for Laurick relief when it mattered and

therefore any “delay” should be deemed excusable.

Bringhurst supports this point. There the Appellate Division observed

that “given the nature of a Laurick petition, a defendant may routinely

demonstrate that any petition filed beyond the five-year limit was not the

product of neglect or some other disqualifying reason, and thus, should not be

automatically time-barred.” 401 N.J. Super. at 424. As the Bringhurst court

recognized, “[t]he fact that a prior DWI conviction may have been

uncounseled would, in and of itself, be of no moment unless and until there

was a subsequent DWI conviction.” Id. at 432-33. It reasoned that because “a

second or subsequent [DWI] conviction may occur at any time in the future, it

would be illogical to apply the Rule’s five-year time limit mechanistically to

deny all [Laurick] applications.” Id. at 433. The Appellate Division

concluded that it could “discern no reason why the Supreme Court would have

explicitly recognized the Laurick-styled PCR petition on the one hand, and at

28
the same time deny its relief where ‘the extent and cause of the delay’ was not

occasioned by the defendant.” Ibid.

Importantly, the Bringhurst court referenced the 2004-2007 Report of

the Supreme Court’s Committee on Municipal Court Practice, which

recommended a rule that would have allowed a Laurick petition to be filed at

any time. Id. at 430.

In its 2007-2009 Report, the Municipal Court Practice Committee again

recommended a rule without a five-year time limit for Laurick petitions, citing

Bringhurst. Mun. Ct. Practice Comm., 2007-2009 Report 27 (2009). As the

Committee explained, a defendant has “no grounds for filing [a Laurick]

petition . . . unless or until [he] has been arrested for a [second or subsequent]

violation of the [DWI] statute.” Ibid.

We are persuaded that there is wisdom to the previous recommendations

of the Municipal Court Practice Committee, as well as the reasoning of

Bringhurst, for the removal of the five-year limitation on Laurick petitions.

We therefore accept the recommendation in the Committee’s 2007-2009

Report for a rule eliminating any time limitation for filing a Laurick petition.

We adopt the language originally proposed by the Committee and now amend

in part Rule 7:10-2(g) to provide the following: “(2) Time Limitations. A

petition seeking relief under this Rule may be filed at any time.” Typically,

29
we would refer a proposed rule change to the appropriate Court committee.

State v. Robinson, 229 N.J. 44, 74 (2017). Here, however, the Municipal

Court Practice Committee has twice recommended this rule change, and

therefore a referral is unnecessary. Accordingly, our adoption of the new rule

is effective immediately pursuant to “the Court’s authority under Article VI,

Section 2, Paragraph 3 of the State Constitution to make rules that govern the

administration of the court system.” See ibid.

To be clear, a defendant who seeks traditional post-conviction relief to

vacate a DWI conviction -- as opposed to Laurick relief -- must abide by the

general principles governing post-conviction relief and the five-year time bar

in the absence of excusable neglect. R. 7:10-2(b)(2). The five-year time bar is

appropriate for traditional post-conviction relief because, if a defendant

reasonably believes that he has been wrongly convicted as a result of the

denial of counsel, he should challenge that conviction as early as possible

rather than sit on his rights “until it is too late for a court to render justice.”

See State v. Mitchell, 126 N.J. 565, 576 (1992). As we have explained, courts

“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.” State v. Milne, 178 N.J.

486, 492 (2004) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).

30
 VI.

In summary, when facing a second or subsequent DWI conviction, an

indigent or non-indigent defendant may file a petition for post-conviction

relief to bar the use of a prior uncounseled DWI conviction as a predicate

conviction for increasing a term of incarceration. This form of post-conviction

relief does not prohibit the imposition of enhanced financial or administrative

penalties, such as a period of license suspension. By “uncounseled” we mean

an unrepresented defendant who was not advised by the municipal court of his

right to retain counsel or, if indigent, of his right to appointed counsel without

cost; who otherwise did not know of his right to counsel in the proceeding and

did not waive that right; and who, if properly advised of his rights, would have

secured counsel or accepted appointed counsel. The defendant has the burden

of proving he was uncounseled, but is not required to establish that the

outcome would have been different had he been represented.

Although his certifications were far from ideal, Patel carried his burden

of presenting sufficient proof -- unrebutted by the State -- that his 1994 guilty

plea was uncounseled, whether he was indigent or non-indigent. Patel had no

obligation to establish that he would not have pled guilty or been convicted at

trial had he been represented by counsel.

31
 Accordingly, we reverse the judgment of the Appellate Division and

remand this matter to the Tewksbury Municipal Court for proceedings

consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.

32