STATE OF NEW JERSEY VS. KAREN K. CLEIRBAUT (2018-025, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1944-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAREN K. CLEIRBAUT,
Defendant-Appellant.
_________________________
Submitted October 8, 2019 – Decided December 2, 2019
Before Judges Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Municipal Appeal No. 2018-
025.
Levow DWI Law, PC, attorneys for appellant (Evan M.
Levow, of counsel and on the brief; Sandra L. Battista,
on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Stephen A.
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
PER CURIAM
In 2018, while defendant had a pending charge for driving while
intoxicated (DWI) in violation of N.J.S.A. 39:4-50, she filed a petition for post-
conviction relief (PCR), seeking to vacate a 1980 DWI conviction. Defendant
certified that she was not represented by an attorney when she pled guilty in
1980, and she had not been advised of her right to counsel. She sought relief
from an enhanced custodial term in accordance with State v. Laurick, 120 N.J.
1 (1990).
Defendant appeals from a December 3, 2018 order entered by the Law
Division that denied her PCR petition. While this appeal was pending, our
Supreme Court decided State v. Patel, ___ N.J. ___ (Aug. 7, 2019), which
clarified the standard for obtaining relief from an enhanced custodial sentence
for a subsequent DWI conviction. In Patel, the Court also eliminated the time
limitation for seeking such PCR relief. Accordingly, we vacate the December
3, 2018 order and remand this matter for further proceedings.
I.
The record before us is limited. We therefore identify the relevant facts
that are supported by evidence in the record or are undisputed by the parties.
Defendant was convicted of DWI in December 1980 in Irvington
Municipal Court. In October 2017, defendant was charged with DWI in
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Roxbury. In January 2018, while the 2017 DWI charge was pending, defendant
filed a PCR petition in the Irvington Municipal Court seeking to vacate the 1980
DWI conviction.
In her verified petition, defendant certified that (1) she "was unrepresented
at the time of her plea [in 1980][;]" (2) she was not "advised of [her]
constitutional rights . . . prior to the entry of [her] plea[;]" and (3) had she been
advised of her rights, she "would not have entered the plea [of guilty] and would
have proceeded to trial."
The municipal court in Irvington does not have any records regarding
defendant's 1980 guilty plea. In her appendix on this appeal, defendant included
a form letter from the Irvington Municipal Court that had a handwritten note
stating that the records are no longer available because DWI records are retained
for a maximum of fifteen years.
After hearing oral argument, the Irvington Municipal Court denied
defendant's petition in a short letter order issued on August 31, 2018. Defendant,
thereafter, filed a municipal court appeal in the Law Division.
The Law Division conducted a de novo review of defendant's PCR petition
and heard oral arguments from counsel. On December 3, 2018, the Law Division
issued a written opinion and order denying defendant's petition.
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The Law Division found that defendant had four prior DWI convictions:
(1) a 1973 DWI conviction in West Milford; (2) the 1980 DWI conviction in
Irvington; (3) a 1981 DWI conviction in Hasbrouck Heights; and (4) a 2013
DWI conviction in Paterson. Those findings were apparently based on a review
of defendant's driver's abstract. That abstract was not included in the record
before us.
Turning to the substance of defendant's PCR petition, the Law Division
first found that defendant's petition was filed beyond the then five-year time
limitation and defendant had not shown excusable neglect that would justify
extending that limitation. The Law Division also held that defendant had not
established a prima facie case for PCR relief. In making that holding, the Law
Division relied on the three factors required by our decision in State v.
Schadewald, 400 N.J. Super. 305, 354-55 (App. Div. 2007). The first two
factors identified by Schadewald address what an indigent and non-indigent
defendant must show regarding not being informed of their right to counsel. The
third factor required Laurick petitioners to "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." Ibid.A-1944-18T1
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II.
The rulings in Patel require this matter to be remanded for further
proceedings consistent with Patel. Patel eliminated the time limitation for filing
a PCR petition seeking relief under Laurick. Patel, __ N.J. at __ (slip op. at 29).
In that regard, the Court pointed out that Laurick PCR petitions are governed by
Rule 7:10-2(g). Patel, __ N.J. at __ (slip op. at 27). Before the Court issued its
decision on August 7, 2019, Rule 7:10-2(g)(2) set a five-year time limitation for
filing a PCR petition, unless petitioner showed facts that the delay in filing was
due to his or her excusable neglect. Effective August 7, 2019, the Court changed
Rule 7:10-2(g)(2) to state: "A petition seeking relief under this paragraph may
be filed at any time."
We construe the rule announced in Patel to have pipeline retroactive
application. A court has four options when a new rule of law is introduced:
(1) make the new rule of law purely prospective,
applying it only to cases whose operative facts
arise after the new rule is announced; (2) apply the
new rule to future cases and to the parties in the
case announcing the new rule, while applying the
old rule to all other pending and past litigation; (3)
grant the new rule [pipeline] retroactivity, applying
it to cases in (1) and (2) as well as to pending cases
where the parties have not yet exhausted all
avenues of direct review; and, finally, (4) give the
new rule complete retroactive effect [. . . .]
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[State v. G.E.P., 458 N.J. Super. 436, 445 (App. Div.
2019) (first alteration in original) (quoting State v.
Burstein, 85 N.J. 394, 402-03 (1981)).]
In determining whether a new rule of law has retroactive application, a
court must balance "'(1) the purpose of the rule and whether it would be
furthered by a retroactive application, (2) the degree of reliance placed on the
old rule by those who administered it, and (3) the effect a retroactive application
would have on the administration of justice.'" Ibid. (quoting State v. Feal, 194
N.J. 293, 308 (2008)); see also R.M. v. Supreme Court, 185 N.J. 208, 230 (2005)
(applying the same standard and giving pipeline retroactivity to a modification
of the scope of Rule 1:20-9's confidentiality provisions). The first of these three
factors is the "most pivotal." G.E.P., 448 N.J. Super. at 445 (quoting State v.
Knight, 145 N.J. 233, 251 (1996)).
Here, the purpose animating the Patel Court's changes to Rule 7:10-
2(g)(2) is furthered by giving those changes retroactive application. See ibid.Full retroactivity, however, is inappropriate because the State and the court
system justifiably relied on Rule 7:10-2(g)(2)'s five-year time limit and a fully
retroactive application of the ruling in Patel would interfere with the
administration of justice. Accordingly, the rule providing that there is no time
limitation applies to defendant's petition since she had a pending appeal when
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Patel was issued. As a consequence, the Law Division's first ground for denying
defendant's petition no longer applies.
The Court in Patel also clarified the standard for granting PCR relief to a
DWI defendant who faces an enhanced custodial sentence based on an earlier
uncounseled DWI conviction. The Court first spelled out what an indigent and
non-indigent defendant must establish concerning the advice they did not
receive regarding the right to counsel. Patel, __ N.J. at __ (slip op. at 3-4).
Second, the Court clarified that a defendant who was not advised of his or her
right to counsel need not show that the outcome would have been different had
he or she been represented by counsel. Ibid. Specifically, the Court held:
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 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 proceedings, to secure relief
from an enhanced custodial sentence, neither an
indigent nor a non-indigent defendant must show that
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the outcome would have been different had he been
represented.
[Ibid.]
In clarifying the law, the Court in Patel rejected the standards set forth in
our decision in Schadewald. Patel, __ N.J. at __ (slip op. at 21-22). We do not
read the decision in Patel as creating new law that would only be applied
prospectively. Instead, the Court in Patel was clear that it was clarifying the
Laurick standard. Patel, __ N.J. at __ (slip op. at 3). Accordingly, the clarified
standard announced in Patel governs defendant's PCR petition in this matter.
See In re Board's Main Extension Rules N.J.A.C. 14:3-8.1, 426 N.J. Super. 538,
550 (App. Div. 2012) ("A rule of law is not 'new,' and 'no issue of retroactive
application even exists,' where the rule 'represents either established law or a
principle plainly hovering on the horizon.'" (quoting Williams v. Bell Tel. Labs.,
132 N.J. 109, 123 (1993))); see also Feal, 194 N.J. at 308 ("Where a new rule is
not at issue, a retroactivity inquiry is unnecessary." (alterations in original
omitted)).
Patel also addressed how a court should deal with the lack of a record from
the earlier DWI conviction. Patel, __ N.J. at __ (slip op. at 24-25). "The
defendant has the burden of proving that his [or her] prior uncounseled DWI
conviction was based on the municipal court's failure to advise him [or her] of
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his [or her] right to counsel." Ibid. If the municipal court has the appropriate
records, those records can be reviewed to determine if defendant was advised of
his or her right to counsel. See ibid. If, on the other hand, records no longer
exist, then defendant can file an affidavit or certification confirming that she or
he was not advised of the right to counsel and did not know that they had such
a right. Ibid. We also read Patel to require that defendant certify that he or she
would have retained counsel if informed of that right. See ibid. The Court in
Patel then explained that absent another witness with a recollection or
documentary evidence that can rebut defendant's certification, a court must
accept defendant's certification. See ibid.III.
Applying the clarifications announced in Patel, defendant's PCR petition
must be remanded for further proceedings in the municipal court. Patel, __ N.J.
at __ (slip op. at 31-32). Defendant did not expressly state that if she had been
advised of her right to counsel in 1980 she would have retained counsel. Given
the current limited record, that missing component should not end the inquiry.
Instead, the matter should be remanded to determine if defendant can credibly
establish that had she been advised of her rights to counsel, she would have
retained counsel in 1980. The record is also unclear as to whether defendant
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claimed she was indigent in 1980. Accordingly, that issue should also be
clarified on remand. Consistent with Patel, we vacate the Law Division's order
denying defendant's PCR petition, and we remand to the municipal court for
proceedings consistent with the rulings in Patel.
Reversed and remanded. We do not retain jurisdiction.
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