Superior Court of New Jersey, Appellate Division.
STATE of New Jersey, Plaintiff-Respondent,
v.
John REGAN, Defendant-Appellant.
209 N.J.Super. 596, 508 A.2d 1149
Argued March 11, 1986.
Decided May 2, 1986.
SYNOPSIS
Defendant was convicted in the Superior Court, Law Division, Passaic
County, of driving while intoxicated, pursuant to guilty plea, and he
appealed. The Superior Court, Appellate Division, Stern, J.S.C., held
that defendant's plea of guilty to charge leading to custodial
sentence could not be deemed voluntary, knowing and intelligent, and
thus, he could not be subject to mandatory penalties for a third
offender.
Vacated and remanded.
**1150 *598 David Hoffman, for defendant-appellant.
Margaret Ann F. Mullins, Asst. Prosecutor, for plaintiff-respondent,
Sp. Deputy Atty. Gen., Acting Asst. Prosecutor, (Joseph F. Falcone,
Passaic County Prosecutor, attorney).
Before Judges MICHELS, DEIGHAN and STERN.
The opinion of the court was delivered by
STERN, J.S.C., t/a
Defendant appeals his conviction for driving while intoxicated
( N.J.S.A. 39:4-50) and contends that it was error to sentence him as
a third offender. Specifically, he argues that his prior conviction in
New York for driving while impaired should not have been considered as
a prior offense for purposes of the enhanced penalties provided for a
third offender. He further contends that since he was not represented
by counsel when he pleaded guilty in New York, it was constitutionally
impermissible to use that conviction to impose an enhanced sentence of
imprisonment. Defendant also argues that the State of New Jersey was
=93estopped=94 from sentencing him as a third offender *599 in view of the
fact that he was treated as a first offender in New York.
We disagree with defendant's principal contentions but, for the
reasons set forth in Point IV of our opinion, vacate the conviction
for driving while intoxicated and remand for further proceedings.FN1
FN1. While defendant appeals his simultaneous conviction for
refusal to take a breathalyzer examination, see N.J.S.A. 39:4-50.2,
-50.4a, no issue is addressed to that conviction. We therefore do not
address the subject and dismiss the appeal from that conviction.
I
On February 5, 1985 defendant entered his guilty pleas in the Haledon
Municipal Court. On motion of the prosecutor, a charge of driving
while his license was suspended ( N.J.S.A. 39:3-40), occurring
simultaneously on November 5, 1984, was merged into the charge of
driving under the influence. On March 19, 1985 defendant appeared
before the municipal court judge for sentencing. The prosecutor
represented that defendant had two prior convictions within the last
ten years for driving while intoxicated, one on November 22, 1981 in
West Paterson, New Jersey, and the other on July 28, 1982 in the state
of New York. The question arose as to whether the New York conviction
should be considered and whether defendant could be sentenced as a
third offender. Defendant submitted a letter from the court clerk for
the Town of Blooming Grove, New York, indicating that he was arrested
in that town on July 28, 1982 and charged **1151 with driving while
intoxicated, and that on January 25, 1983 he pleaded guilty to driving
while impaired. See N.Y.Veh. & Traf.Law, =A7=A7 1192(1) and (3) (McKinney
Supp.1986). He was sentenced to pay a fine of $250 and to a 60-day
suspension of his New York driving privileges. The clerk further
indicated that defendant =93was not represented in court by an
attorney.=94
*600 The municipal judge in the case concluded that the New York
conviction should be considered and that defendant was therefore a
third offender under N.J.S.A. 39:4-50. Accordingly, on the conviction
for driving while intoxicated, he sentenced defendant to the Passaic
County Jail for 180 days, suspended his license for ten years and
imposed a fine of $1,000, a surcharge of $100 and $25 court costs.
The Law Division on trial de novo found that defendant was a third
offender and imposed the same sentence. The judge relied on State v.
Cromwell, 194 N.J.Super. 519, 477 A.2d 408 (App.Div.1984), which held
that a defendant was subject to the enhanced penalty for driving while
under a license suspension, pursuant to N.J.S.A. 39:4-50, where his
underlying conviction for drunk driving leading to the suspension
occurred in New York.
Defendant subsequently moved before the New York court to vacate his
guilty plea entered in that state on the ground that he was not
represented by counsel at the time the plea was entered. The presiding
justice denied defendant's motion for the following reasons:
The Defendant originally sought an adjournment for the purpose of
retaining an attorney. That adjournment was granted. He chose to
proceed without an attorney after several requests for further
adjournments were granted. He should not now be permitted to withdraw
his plea of guilty on the grounds that he was not represented at that
time.
II
Defendant, relying on State v. Davis, 95 N.J.Super. 19, 229 A.2d 682
(Cty.Ct.1967), contends that he should not have been treated as a
third offender since he had only one previous conviction under
N.J.S.A. 39:4-50 in New Jersey.
N.J.S.A. 39:4-50(a) provides that =93A person who operates a motor
vehicle while under the influence of intoxicating liquor ... shall be
subject=94 to certain enumerated penalties. The actual penalty depends
on the number of prior convictions, if any. N.J.S.A. 39:4-50(a)(3),
now reads as it provided on November 5, 1984, and states:
*601 For a third or subsequent violation, a person shall be subject to
a fine of $1,000.00, and shall be sentenced to imprisonment for a term
of not less than 180 days, except that the court may lower such term
for each day, not exceeding 90 days, served performing community
service in such form and on such terms as the court shall deem
appropriate under the cir***stances and shall thereafter forfeit his
right to operate a motor vehicle over the highways of this State for
10 years.
N.J.S.A. 39:4-50(a) further provides, in part:
A person who has been convicted of a previous violation of this
section need not be charged as a second or subsequent offender in the
complaint made against him in order to render him liable to the
punishment imposed by this section on a second or subsequent offender,
but if the second offense occurs more than 10 years after the first
offense, the court shall treat the second conviction as a first
offense for sentencing purposes and if a third offense occurs more
than 10 years after the second offense, the court shall treat the
third conviction as a second offense for sentencing purposes.
[Emphasis added.]
In State v. Davis, supra, the defendant was convicted for violating
N.J.S.A. 39:4-50 on June 2, 1966. Four years previously he had been
convicted of a similar offense in Pennsylvania, but he had no prior
convictions in New Jersey. The court disagreed **1152 with the
municipal court's decision to sentence defendant as a second offender.
The court interpreted language in N.J.S.A. 39:4-50, as it then
provided, as follows:
The pertinent language of the first paragraph of N.J.S.A. 39:4-50 (and
of the 1966 amendment ..., =91A person who operates a motor vehicle
while under the influence of intoxicating liquor * * *,=92 is not
followed by the words =91on or over any highway of this or any other
state=92 or others of similar im****t. The second paragraph reads: =91A
person who has been convicted of a previous violation of this section
need not be charged as a second offender in the complaint * *
*.=92 (Emphasis added.) The statute does not say that the =91previous
violation=92 may be one committed outside this State, or that a
=91subsequent violation=92 in this State may be predicated on a prior
conviction in another jurisdiction. [95 N.J.Super. at 22-23, 229 A.2d
682, footnote omitted.]
The Davis court noted that the statute had been amended and that the
Legislature could easily have provided, as it had with respect to
other crimes, that the enhanced penalty applied to convictions for a
similar offense in other jurisdictions. Id. at 24, 229 A.2d 682. Thus,
concluding that the statute should be accorded a strict construction,
the court stated that:
=2E.. the Legislature intended that the prior as well as the subsequent
violation shall have been committed in this State and that conviction
in another state *602 followed by violation here does not constitute
the latter a =91subsequent violation=92 or brand the accused a =91second
offender=92 so as to justify imposition of the more severe mandatory
penalty prescribed by N.J.S.A. 39:4-50 or its 1966 amendment.
Defendant is adjudged a first offender. [Ibid.]
By L.1966, c. 73, =A7 1, this State enacted the Driver License Compact,
N.J.S.A. 39:5D-1 et seq., which became effective on January 1, 1967. L.
1966, c. 73, =A7 7. That compact, to which New York is also a signatory,
N.Y.Veh. & Traf.Law, =A7 516 (McKinney 1970), expresses the policy
behind it as follows:
(b) It is the policy of each of the party States to:
(1) Promote compliance with the laws, ordinances, and administrative
rules and regulations relating to the operation of motor vehicles by
their operators in each of the jurisdictions where such operators
drive motor vehicles.
(2) Make the reciprocal recognition of licenses to drive and
eligibility therefor more just and equitable by considering the over-
all compliance with motor vehicle laws, ordinances and administrative
rules and regulations as a condition precedent to the continuance or
issuance of any license by reason of which the licensee is authorized
or permitted to operate a motor vehicle in any of the party States.
[ N.J.S.A. 39:5D-1(b) ]
In line with this policy, N.J.S.A. 39:5D-4 provides, in pertinent
part, that:
(a) The licensing authority in the home State, for the purposes of
suspension, revocation or limitation of the license to operate a motor
vehicle, shall give the same effect to the conduct re****ted, pursuant
to Article III [ N.J.S.A. 39:5D-3] of this compact, as it would if
such conduct had occurred in the home State, shall apply the penalties
of the home State or of the State in which the violation occurred, in
the case of convictions for:
* * *
(2) Driving a motor vehicle while under the influence of intoxicating
liquor.... [Footnote omitted.]
In State v. Cromwell, supra, defendant was convicted of driving while
on the revoked list, contrary to N.J.S.A. 39:3-40. That statute
prohibits a person whose license has been revoked from operating a
motor vehicle during the period of revocation, and fixes the penalties
for violating the section. It provides increased penalties for
subsequent violations. At the time Cromwell committed the offense, the
statute also provided:
**1153 Notwithstanding paragraphs a. through e., any person violating
this section while under a suspension issued pursuant to R.S. 39:4-50
shall be subject upon *603 conviction to a fine of $500.00,
imprisonment in the county jail for 90 days, and an additional
suspension of the license to operate a motor vehicle for a period of 5
years. [ N.J.S.A. 39:3-40.]
Cromwell had been convicted of drunk driving in New York and, as a
result, had his license suspended in New Jersey pursuant to the
Interstate Driver License Compact. The question was whether defendant
was properly held subject to the enhanced penalties provided for
persons =93violating this section while under a suspension issued
pursuant to R.S. 39:4-50.=94 N.J.S.A. 39:3-40; 194 N.J.Super. at 521,
477 A.2d 408.
We concluded that by virtue of N.J.S.A. 39:5D-4(a), embodying
provisions of the Interstate Compact, =93defendant was subjected to the
mandatory license suspension of N.J.S.A. 39:4-50 following his New
York drunk driving conviction.=94 Id. at 522, 477 A.2d 408 (footnote
omitted). We stated that =93The conclusion is unavoidable that his
violation of N.J.S.A. 39:3-40 occurred while he was =91under a
suspension issued pursuant to R.S. 39:4-50.=92 That the enhanced
penalties of N.J.S.A. 39:3-40 are thus triggered is entirely
consistent with the statutory language and design.=94 Ibid.
Significantly, we added that =93To the extent that it may be read as
inconsistent with our conclusion, State v. Davis, 95 N.J.Super. 19,
229 A.2d 682 (Law Div.1967), is expressly disapproved.=94 Id. 194
N.J.Super. at 523, 477 A.2d 408.
The Compact requires New Jersey to give the same effect to drunk
driving convictions =93for the purposes of suspension, revocation or
limitation of the license to operate a motor vehicle.=94 N.J.S.A.
39:5D-4(a). However, the issue before us concerns sentencing,
including the mandatory imposition of a custodial term.
Nevertheless, given this state's strong public policy against drunken
driving, see e.g., State v. Kirk, 202 N.J.Super. 28, 56, 493 A.2d 1271
(App.Div.1985), and notwithstanding that penal statutes =93must be
strictly construed against the State=94, see e.g., State v. Biegenwald,
96 N.J. 630, 640, 477 A.2d 318 (1984), we are satisfied that the
Legislature intended an out-of-state conviction for an offense *604
equivalent to a violation of N.J.S.A. 39:4-50 to be considered as a
prior offense under that statute.
It is clear that the Director of Motor Vehicles has the authority
under N.J.S.A. 39:5D-4(a) to suspend defendant's license for the term
specified in N.J.S.A. 39:4-50(a) upon consideration of a New York
drunk driving conviction. See Division of Motor Vehicles v. Lawrence,
194 N.J.Super. 1, 2-3, 475 A.2d 1265 (App.Div.1983). See also Division
of Motor Vehicles v. Kleinert, 198 N.J.Super. 363, 486 A.2d 1324
(App.Div.1985); Matter of Kovalsky, 195 N.J.Super. 91, 95, 477 A.2d
1295 (App.Div.1984). It is illogical to consider defendant as a
subsequent offender for administrative purposes only. There is nothing
in the legislative history presented to us or in State v. Cromwell to
sup****t such an anomaly. Accordingly, defendant's conviction for drunk
driving in New York, entered before the present offense occurred, may
be considered as a prior violation for purposes of sentencing under
N.J.S.A. 39:4-50.
III
Defendant, however, contends that because he was not represented by
counsel when he entered his guilty plea in New York, he may not
constitutionally be subject to an enhanced penalty based on that
conviction. He relies on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct.
1585, 64 L.Ed.2d 169 (1980), reh. den. 447 U.S. 930, 100 S.Ct. 3030,
65 L.Ed.2d 1125 (1980).
In Baldasar the United States Supreme Court considered whether an
uncounselled misdemeanor conviction =93may be used under an enhanced
penalty statute to convert **1154 a subsequent misdemeanor into a
felony with a prison term,=94 446 U.S. at 222, 100 S.Ct. at 1585, and
held that the enhanced sentencing was impermissible where defendant
was unrepresented at the time of the prior conviction.FN2
FN2. =93There was no majority opinion in Baldasar. However, Justice
Marshall, joined by two members of the court, thought it =91plain that
petitioners' prior uncounselled misdemeanor conviction could not be
used collaterally to impose a term of imprisonment upon a subsequent
conviction.=92 446 U.S. at 226, 100 S.Ct. at 1587, 64 L.Ed.2d at 173-74.
The same two justices who joined Justice Marshall also concurred with
Justice Stewart's conclusion that Baldasar could not be =91sentenced to
an increased term of imprisonment only because he had been convicted
in a previous prosecution in which he had not had the assistance of
appointed counsel in his defense.=92 446 U.S. at 224, 100 S.Ct. at 1586,
64 L.Ed.2d at 173 (emphasis in original). Justice Blackmun concurred
separately.=94 [ State v. Garcia, 186 N.J.Super. 386, 388-399, 452 A.2d
715 (Law Div.1982).]
*605 In State v. Sweeney, 190 N.J.Super. 516, 464 A.2d 1150 (App.Div.
1983), this court considered whether Baldasar prevented the use of
defendants' prior uncounselled convictions for driving while
intoxicated for purposes of sentencing them as second offenders. Both
defendants were sentenced as second offenders in municipal court, but
the sentences did not include custodial terms. The court held:
=93Neither defendant was sentenced to imprisonment and, therefore, the
federal Constitution does not bar the use of a prior conviction for
driving under the influence for the purpose of imposing an enhanced
noncustodial sentence upon a second conviction for driving under the
influence.=94 Id. at 521, 464 A.2d 1150. The court distinguished
Baldasar on the ground that there the defendant received a substantial
prison term. Id. at 521-523, 464 A.2d 1150. The court recognized that
under New Jersey law defendants were entitled to counsel upon their
previous convictions for driving while intoxicated. Id. at 524-525,
464 A.2d 1150. See Rodriguez v. Rosenblatt, et al., 58 N.J. 281, 295,
58 A.2d 216 (1971). See also State v. Garcia, 186 N.J.Super. 386, 452
A.2d 715 (Law Div.1982). However, the Sweeney court further stated:
While it is appropriate to require the State to prove a prior
conviction if it seeks second offender penalties under N.J.S.A.
39:4-50, [ State v.] Bowman stands for the proposition that if a
defendant wishes to challenge the use of a prior motor vehicle law
conviction for enhanced sentencing purposes under a motor vehicle
statute, he has the burden of demonstrating that the conviction is
invalid for sentencing purposes. A defendant, in such cir***stances,
is in a better position to provide the court with information
surrounding the prior convictions. [190 N.J.Super. at 526, 464 A.2d
1150.]
[3] Headnote Citing References In State v. Bowman, 131 N.J.Super. 209,
329 A.2d 97 (Cty.Ct.1974), aff'd 135 N.J.Super. 210, 343 A.2d 103
(App.Div.1975), this court, in affirming*606 defendant's sentence as a
second offender to a 90-day jail term for violating N.J.S.A. 39:6B-2,
had rejected defendant's argument that the State failed to prove that
he knowingly waived his right to counsel when he pleaded guilty to his
first offense. The court stated: =93The certification by the judge of
that court, submitted following an order enlarging the appellate
record, clearly shows that defendant was advised of his right to
counsel and knowingly waived it before he pleaded guilty.=94 Id. at 211,
343 A.2d 103. Moreover, since Bowman was decided, Baldasar made clear
that defendant has the burden, for sentence purposes, of proving that
the prior conviction was entered without the assistance of counsel and
that defendant was indigent and did not waive the assistance of an
attorney. See Baldasar v. Illinois, supra, 446 U.S. at 229, 100 S.Ct.
at 1588, 64 L.Ed.2d at 175 (Marshall, J. concurring at ftn. 3); State
v. Garcia, supra, 186 N.J.Super. at 389, 452 A.2d 715 (ftn. 4). Here,
the record is clear that defendant is now represented by private
counsel and, particularly given the reasons expressed on the denial of
defendant's motion to vacate the New York conviction,**1155 we cannot
presume that he could not afford counsel or did not waive his right to
retain counsel there.
IV
Defendant contends that because he was sentenced in New York as a
first offender, notwithstanding a previous New Jersey conviction, that
error estops the State from now seeking to sentence him as a third
offender. Defendant relies on State v. Decher, 196 N.J.Super. 157, 481
A.2d 848 (Law Div.1984), in which the Law Division held that because
defendant was considered a first offender upon being sentenced for
what was actually his second offense, the State could not now sentence
him as a third offender.
We have concluded that the issue need not be addressed because the
plea must be vacated on other grounds. At oral argument we pursued
exactly what was said at the time of plea *607 which gave rise to the
assertion of =93reliance.=94 We questioned counsel about the advice given
defendant as to his maximum exposure which would relate to the
assertion under review.
Subsequent to oral argument, the parties supplied us with a copy of
the plea transcript, and we note the following colloquy containing the
only exchange between the court and defendant relating to the guilty
plea for violating N.J.S.A. 39:4-50:
THE COURT: Mr. Regan, you've heard the representation of your attorney
that you intend to enter a plea of guilty to summons # 27538 which
charges you with driving under the influence of alcohol, violation of
NJ39:4-50, did you not?
MR. REGAN: Yes sir.
THE COURT: Do you concur that you wish to plead guilty?
MR. REGAN: Yes sir.
THE COURT: I'll accept your plea of guilty. I'll postpone sentencing
for one month so that defense counsel can ascertain the nature and
extent of the defendant's driving record.
MR. REGAN: Yes sir.
If defendant was facing a mandatory custodial term, he had to be so
advised. Cf. State v. Kovack, 91 N.J. 476, 453 A.2d 521 (1982).
Moreover, here there was no questioning directed to the maximum
exposure much less to any mandated imprisonment. See and compare R.
7:4-2(b); R. 7:6-7. If the matter had been properly developed, the
issue of estoppel would have been avoided. In any event, the record
reflects that defendant was told nothing about the sentence maximum or
mandatory sentence for third offenders. In fact, sentencing was
adjourned to await the driving record. It did not appear to the
parties at that time that a mandatory sentence was required.
Accordingly, defendant's plea leading to a custodial sentence cannot
be deemed voluntary, knowing and intelligent. Cf. State v. Kovack,
supra; State v. Womack, 206 N.J.Super. 564, 503 A.2d 352 (App.Div.
1985); State v. Smith, 109 N.J.Super. 9, 262 A.2d 45 (App.Div.1970),
certif. den. 56 N.J. 473, 267 A.2d 55 (1970). Thus, he cannot be
subjected to the mandatory penalties for a third offender.
V
Under the cir***stances, the plea of guilty to drunk driving is
vacated, and the matter is remanded to the Haledon Municipal*608
Court. If defendant is convicted of the charge upon appropriate
consideration of the matter, he shall be treated as a third offender.
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