Challenging a NJ DWI guilty plea or verdict through post-conviction relief (PCR).
Post-Conviction Relief Generally
Post-Conviction Relief (PCR) refers generally to an application seeking to: 1. Prohibit a guilty plea from being used to enhance a custodial term of imprisonment for a subsequent DWI conviction or 2. Vacate a guilty plea or verdict. A PCR Application is distinguishable from an "appeal." An appeal is a direct review by a higher court whereas a PCR application is filed directly with the convicting Municipal Court. A defendant moving for post conviction relief must establish the right to relief by a preponderance of credible evidence. Petitions for PCR should be filed within five years. However, this five-year time limit is not absolute. A defendant's petition is not barred if his failure to file it before the expiration of the time limit was due to excusable neglect or if barring the petition would result in an injustice.
Laurick Relief - To Avoid Jail on a 3rd DWI
A PCR application seeking to prohibit a plea from being used to enhance a custodial term of imprisonment for a subsequent DWI conviction is distinguishable from an application seeking to vacate a plea/verdict in its entirety. These applications are often referred to as "Laurick" applications (based on the case of State v. Laurick, 120 N.J. 1, 16 (1990), certiorari denied 111 S.Ct. 429, 498 U.S. 967, 112 L.Ed.2d 413 (1990) which recognized the application and this right). A Laurick application is most common when a defendant is facing a jail sentence (180-days) as a third DWI offender. If the Court grants the petition, such a defendant, if convicted of his third offense must be treated as a 2nd DWI offender for purposes of incarnation. Thus, rather than the mandatory 180-day jail sentence that attaches to a 3rd offense, the court must sentence the defendant as a 2nd offender (2 to 90 days jail, although jail can typically be avoided). A prior conviction may not be used to enhance punishment for a later conviction if the prior conviction was obtained in a constitutionally impermissible manner. The admission of a prior criminal conviction that is constitutionally infirm is inherently prejudicial. Most often, a Laurick application is applicable to an uncounseled guilty plea without an adequate waiver of the right to counsel. Such a plea is invalid for increasing a defendant's loss of liberty. A plea taken without counsel and without a proper waiver should not be used in a subsequent DWI prosecution to enhance the period of incarceration.
Vacating a NJ DWI Plea or Conviction
A PCR application seeking to vacate a plea or conviction seeks exactly that; to vacate a guilty finding. The effect would be to place the defendant back in his/her pre-conviction (pre-plea) stage. If the Court grants the requested relief, the case is placed back on the Court's active contested calendar. There are several cognizable grounds for challenging a conviction. For example, an application to vacate a plea can be premised on the plea not being taken in accordance with NJ Rules of Court. R. 7:6-2(a)(1) provides: The court shall not ... accept a guilty plea without first addressing the defendant personally and determining by inquiry of the defendant and, in the court's discretion, of others, that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea and that there is a factual basis for the plea. Guilty pleas may be accepted by municipal courts, only after these exacting requirements have been met. Strict observance is essential for the protection of defendants' constitutional rights. I was appellate counsel for the defendant in State v. Martin, 335 N.J. Super. 447 (App. Div. 2000). The Court, vacating the defendant's guilty plea, called the Municipal Court's failure to follow Court Rules a "departure from fundamental requirements, the dictates of the Rules of Court, and common practice that should not have occurred." Id. at 451. The Court called the errors there "clear and ... fundamentally flawed." Id. at 452. A defendant must acknowledge the facts constituting the essential elements of an offense in order for a plea to be valid. R. 7:6-2(a)(1) refers to this as a "factual basis." If a Court fails to elicit a factual basis for a plea, the plea is not valid and should be vacated. R. 7:6-2(a)(1) also requires a plea to be knowing and voluntary. A voluntary plea should represent a voluntary and intelligent choice among the alternative courses of action open to the defendant. A defendant for example, must make an informed waiver of the right to a trial and the right to confront the witnesses against him or her. A defendant who pleads guilty without an adequate waiver of these rights cannot be said to have made a knowing or voluntary plea. Another challenge to a plea or verdict is ineffective legal counsel. The Constitutional right to counsel is a guarantee of the effective assistance of counsel. This assistance is essential to insuring fairness and due process in criminal proceeding. To establish a prima facie case of ineffective assistance of counsel, a defendant must establish that defense counsel's performance was deficient and there exists a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.
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