NOT FOR PUBLICATION WITHOUT THE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-5119-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID ZINSMEISTER,
Defendant-Appellant.
_____________________________
Submitted February 5, 2020 — Decided February 14, 2020
Before Judges Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Municipal Appeal No. 2018-
08.
Broscious, Fischer & Zaiter, PC, attorneys for appellant
(Thomas Paul Fischer, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Monica Anne Martini, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant David Zinsmeister appeals from a June 26, 2019 order denying
his petition for post-conviction relief (PCR) to vacate his 1980 and 1986 DWI
convictions, pursuant to State v. Laurick, 120 N.J. 1 (1990). On August 7, 2019,
the Supreme Court decided State v. Patel, 239 N.J. 424, 448 (2019), which held
non-indigent, uncounseled DWI litigants who were unadvised or did not know
of their right to counsel, and who would have retained a lawyer had they known,
are entitled to relief under Laurick to avoid an enhanced custodial sentence for
a subsequent DWI conviction. The Patel Court further stated Laurick petitions
are not subject to a five-year time bar, which formerly existed under Rule 7:10-
2(g). Id. at 447.
In defendant's case, he was convicted of DWIs in 1980 and 1986, in West
Windsor, and charged with DWI in 2017, in Phillipsburg. In 2018, defendant
filed his PCR petition in West Windsor municipal court, seeking Laurick relief
related to the 1980 and 1986 convictions. He certified his 1980 conviction was
uncounseled, and his 1986 conviction was counseled, but his attorney did not
advise him of his rights before advising him to enter a guilty plea. The municipal
court denied the petition.
On de novo review, the law division judge found defendant's petition was
time-barred because it was filed beyond the five-year time limit set forth in Rule
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7:10-2(b)(2). The judge also found defendant did not prove excusable neglect
for the delay in filing the PCR petition. The judge concluded defendant did not
meet his burden under Laurick because he
has not established enough evidence that he acted
without the knowledge of his rights in the 1980
conviction or the 1986 conviction . . . .
[and] [a]lthough . . . defendant alleges that had he
known he could contest his charges, there is no
evidence that he would not have taken the guilty plea in
either case.
On appeal, citing Patel, defendant raises the following point.
I. THE TRIAL COURT ERRED IN DECIDING
THAT DEFENDANT SHOULD BE DENIED
LAURICK RELIEF AS TO HIS 1980 DWI
CONVICTION BECAUSE HE FAILED TO SHOW
"EXCUSABLE NEGLECT" TO PERMIT THE
RELAXATION OF THE FIVE-YEAR BAR TO A PCR
PURSUANT TO R. 7:10-2(G)(2).
"We review issues of law de novo and owe no deference to the interpretive
conclusions of . . . [the] Law Division." Patel, 239 N.J. 435. We address the
issue raised on this appeal through this lens because Patel clarified Laurick. The
Patel Court amended the time limitation provision in Rule 7:10-2(g), governing
petitions for relief from an enhanced custodial term based on a prior conviction
to state: "A petition seeking relief under this Rule may be filed at any time." Id.
at 447. Therefore, defendant's PCR petition was not time barred.
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Finally, defendant certified his 1980 conviction was uncounseled. He also
certified: "In the case in 1980, I met with the municipal prosecutor who told me
I'd get no jail [time] and the minimum penalties if I pled guilty, and I did. At
no time did I know, nor was I told of, the rights [my attorney] has advised me I
have, and had, back then." Nothing in the record contradicted defendant's
assertion.
On appeal, pursuant to Patel, the State does not contest "that the
Phillipsburg Municipal Court is prohibited from using the 1980 DWI conviction
to enhance defendant's custodial sentence on his pending DWI case. However,
Phillipsburg Municipal Court may still impose enhanced administrative fines
and penalties." We agree and, for the reasons we expressed, reverse and remand
accordingly.
Reversed and remanded. We do not retain jurisdiction.
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