STATE OF NEW JERSEY VS. MICHAEL DELMEIER (18-009, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0342-18T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    MICHAEL DELMEIER,
    Defendant-Appellant.
    _____________________________
    Submitted October 8, 2019 – Decided November 14, 2019
    Before Judges Yannotti and Firko.
    On appeal from the Superior Court of New Jersey, Law
    Division, Monmouth County, Municipal Appeal No.18-
    009.
    Theodore P. Sliwinski, attorney for appellant.
    Christopher J. Gramiccioni, Monmouth County
    Prosecutor, attorney for respondent (Monica Lucinda
    do Outeiro, Assistant Prosecutor, of counsel and on the
    brief).
    PER CURIAM
    Defendant appeals from an order of the Law Division dated August 24,
    2018, which rejected his challenge to an order of the municipal court denying
    post-conviction relief (PCR). We affirm.
    On July 3, 2008, defendant was riding a motorcycle and collided with a
    vehicle that was stopped in traffic in Middletown. When Middletown Police
    Officer Antonio Ciccone responded to the scene, defendant was leaning against
    his motorcycle and bleeding from a laceration on his forehead. According to
    Ciccone, the vehicle's rear windshield was "busted out."     There were four
    individuals in the car, including a nine-year-old child who was crying and
    claimed he was injured. The officer requested an ambulance for the child and
    then approached defendant.
    Ciccone spoke with defendant and detected a strong odor of alcohol. The
    officer said defendant's eyes were droopy, bloodshot, and watery. When the
    officer asked defendant if he had consumed any alcohol, he stated, "[N]ot even
    close to enough." Defendant slurred his words. Ciccone continued to question
    defendant and then reviewed his license, registration, and insurance card.
    Defendant refused to answer any additional questions regarding his alcohol
    intake. He showed difficulty standing and dropped his cellphone twice while
    handing the officer his credentials.
    A-0342-18T4
    2
    Ciccone asked defendant to perform field sobriety tests, but defendant
    refused to cooperate. He also refused to provide a breath sample. Ciccone
    placed defendant in handcuffs and told him he was under arrest for driving while
    intoxicated (DWI). Emergency medical personnel arrived on the scene and
    tended to the injured child.     They then examined defendant.       Thereafter,
    defendant asked to be taken to a hospital. Ciccone removed the handcuffs and
    placed defendant in the back of the ambulance.        The officer followed the
    ambulance to the hospital.
    At the hospital, Ciccone told defendant a hospital employee would be
    taking samples of his blood to send for alcohol screening. Again slurring his
    words, defendant stated that he would not provide blood without counsel
    present. After certain additional difficulties, hospital security guards strapped
    defendant's wrists and ankles to the bed. Ciccone stayed with defendant the
    entire time defendant was at the hospital.
    About ninety minutes later, Sergeant Bryan McKnight of the Middletown
    Police Department arrived to assist the hospital staff with the blood draw. At
    approximately 1:35 a.m., a nurse assistant told McKnight she would be taking
    defendant's blood sample. The officer watched as the nurse assistant drew blood
    from defendant's right forearm and place the vials of blood in an evidence box.
    A-0342-18T4
    3
    Tests of the blood samples revealed defendant's blood-alcohol content was .20
    percent.
    The officer issued summonses to defendant charging him with DWI in
    violation of N.J.S.A. 39:4-50, and reckless driving in violation of
    N.J.S.A. 39:4-96. Defendant's wife arrived and then left the hospital with
    defendant. Ciccone returned to police headquarters with the blood samples. He
    logged the evidence and placed the blood samples into the station's evidence
    refrigerator.
    On June 10, 2009, defendant pled guilty to DWI, and the State agreed to
    dismiss the reckless driving summons.        The municipal court judge then
    sentenced defendant as a first offender under N.J.S.A. 39:4-50(a)(3) because his
    previous DWI conviction occurred more than twenty years earlier. The judge
    suspended defendant's license for seven months and imposed mandatory fines
    and penalties. Defendant did not file a direct appeal.
    On November 6, 2017, defendant filed a petition for PCR. On February
    22, 2018, the municipal court judge denied the petition, finding that defendant
    had not presented any evidence to support relaxation of the requirement that a
    PCR petition must be filed within five years, or to vacate his conviction.
    A-0342-18T4
    4
    On March 7, 2018, defendant appealed to the Law Division seeking de
    novo review of the municipal court's judgment. Judge Paul X. Escandon heard
    oral argument and placed his decision on the record.       The judge found
    defendant's petition was barred by Rule 7:10-2(b)(2), and memorialized his
    decision in an order dated August 24, 2018. This appeal followed.
    On appeal, defendant argues:
    POINT ONE
    THE DEFENDANT'S PETITION FOR POST-
    CONVICTION RELIEF SHOULD HAVE BEEN
    GRANTED BY THE TRIAL COURT. MOREOVER,
    THERE WERE EXCEPTIONAL CIRCUMSTANCES
    THAT JUSTIFY RELAXING THE FIVE-YEAR TIME
    LIMIT AS REQUIRED BY RULE 3:22-12.
    POINT TWO
    THE DEFENDANT'S WARRANTLESS/FORCED
    BLOOD DRAW WAS ILLEGALLY OBTAINED
    AND IT SHOULD HAVE BEEN EXCLUDED
    PURSUANT TO MISSOURI v. McNEELY[, 
    569 U.S. 141
    (2013)].
    POINT THREE
    THE NEW JERSEY SUPREME COURT HOLDING
    OF STATE v. ADKINS[, 
    221 N.J. 300
    (2015),]
    MANDATES THAT THE MISSOURI v. McNEELY
    HOLDING BE APPLIED RETROACTIVELY.
    POINT FOUR
    THE TRIAL COURT COMMITTED REVERSIBLE
    ERROR WHEN IT RULED THAT THE MISSOURI v.
    McNEELY [HOLDING] DID NOT APPLY
    RETROACTIVELY.
    A-0342-18T4
    5
    POINT FIVE
    A REVIEW OF SEARCH AND SEIZURE CASE LAW
    MANDATES THAT THE DEFENDANT'S DWI
    CONVICTION BE REVERSED.
    POINT SIX
    THE RECENT CASE OF STATE v. ZUBER[, 
    227 N.J. 422
    (2017),] MANDATES THAT THIS COURT
    REVERSE THE TRIAL COURT'S RULING.
    POINT SEVEN
    A REVIEW OF THE CASE LAW MANDATES THAT
    THE MISSOURI v. McNEELY CASE BE APPLIED
    RETORACTIVELY TO THE DEFENDANT'S PRIOR
    DWI CONVICTION.
    POINT EIGHT
    A REVIEW OF THE FEDERAL JURISPRUDENCE
    MANDATES THAT THE DEFENDANT'S DWI
    CONVICTION BE REVERSED.
    We have carefully considered defendant's arguments and conclude they
    are entirely without merit.       We affirm the court's order denying PCR
    substantially for the reasons stated by Judge Escandon in his oral decision of
    August 24, 2018. We add the following.
    Rule 7:10-2(b)(2) governs applications for PCR in the municipal court.
    The rule provides that a petition for PCR, based on grounds other than an alleged
    illegal sentence, "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 was due to defendant's
    A-0342-18T4
    6
    excusable neglect."     
    Ibid. When determining whether
    "excusable neglect"
    exists, a court "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. Norman,
    
    405 N.J. Super. 149
    , 159 (App. Div. 2009) (citing State v. Afanador, 
    151 N.J. 41
    , 52 (1997)).
    Here, Judge Escandon correctly found that defendant's petition was barred
    by Rule 7:10-2(b)(2). Defendant sought to challenge his conviction in June 2009
    of DWI under N.J.S.A. 39:4-50. He did not, however, file his PCR petition until
    November 6, 2017, which was beyond the five years required by Rule 7:10-
    2(b)(2).
    Defendant argued the time-bar should be relaxed so that the court could
    find that the warrantless draw of his blood was unlawful under Missouri v.
    McNeely, 
    569 U.S. 141
    (2013). The PCR court correctly found that McNeely
    did not apply to defendant, and therefore defendant failed to establish "excusable
    neglect" for his failure to file a timely petition.
    On appeal, defendant argues that the Law Division judge erred by refusing
    to relax the time bar in Rule 7:10-2(b)(2). He also argues that McNeely should
    be retroactively applied to his case. We disagree.
    A-0342-18T4
    7
    The Constitution of the United States and the New Jersey Constitution
    guarantee the right to be free from unreasonable searches and seizures. U.S.
    Const. amend. IV; N.J. Const. art I, ¶ 7. The compelled intrusion into the body
    for the purpose of drawing blood to determine its alcohol content is a se arch
    under the Fourth Amendment to the United States Constitution. Schmerber v.
    California, 
    384 U.S. 757
    , 768 (1966).
    "Warrantless searches are 'prohibited unless they fall within a recognized
    exception to the warrant requirement.'" State v. Adkins, 
    221 N.J. 300
    , 310
    (2015) (quoting State v. Pena-Flores, 
    198 N.J. 6
    , 18 (2009)). One exception to
    the warrant requirement is the presence of exigent circumstances. 
    Ibid. (citing State v.
    Johnson, 
    193 N.J. 528
    , 552 (2008)). In Schmerber, the Court found that
    the warrantless blood draw of the suspect in that case was permissible, noting
    that the officer
    might reasonably have believed that he was confronted
    with an emergency, in which the delay necessary to
    obtain a warrant, under the circumstances, threatened
    the destruction of evidence[.] We are told that the
    percentage of alcohol in the blood begins to diminish
    shortly after drinking stops, as the body functions to
    eliminate it from the system. Particularly in a case
    such as this, where time had to be taken to bring the
    accused to a hospital and to investigate the scene of the
    accident, there was not time to seek out a magistrate
    and secure a warrant. Given these special facts, we
    conclude that the attempt to secure evidence of blood-
    A-0342-18T4
    8
    alcohol content in this case was an appropriate incident
    to petitioner's arrest.
    
    [Schmerber, 384 U.S. at 770-71
    .]
    Thereafter, the courts disagreed as to whether in Schmerber the United
    States Supreme Court had established that dissipation of alcohol created a per
    se exigency justifying a warrantless draw of blood in every case where a driver
    is suspected of driving under the influence. 
    Adkins, 221 N.J. at 310-11
    . The
    Supreme Court resolved that split of authority in McNeely. 
    Id. at 311.
    The
    Court held Schmerber did not create a per se rule, and instead applied a totality-
    of-the-circumstances test. 
    Ibid. (citing McNeely, 569
    U.S. at 150).
    The McNeely Court held that in determining whether an exigency exists
    that would permit the warrantless taking of blood, the court must consider the
    totality of the circumstances. 
    McNeely, 569 U.S. at 145
    . The McNeely Court
    stated that:
    while the natural dissipation of alcohol in the blood
    may support a finding of exigency in a specific case, as
    it did in Schmerber, it does not do so categorically.
    Whether a warrantless blood test of a drunk-driving
    suspect is reasonable must be determined case by case
    based on the totality of the circumstances.
    [Id. at 156.]
    A-0342-18T4
    9
    In Adkins, our Supreme Court held that McNeely applied retroactively to
    cases that were in the "pipeline" on April 17, 2013, when the Court issued its
    opinion in McNeely. 
    Adkins, 221 N.J. at 304
    , 313. The Court explained that
    when a new rule of law is announced, it may be applied retroactively to all cases
    "pending on direct review or not yet final, with no exception for cases in which
    the new rule constitutes a 'clear break' with the past." 
    Id. at 312
    (quoting State
    v. Wessells, 
    209 N.J. 395
    , 412 (2012), and Griffith v. Kentucky, 
    479 U.S. 314
    ,
    328 (1987)).
    Here, Judge Escandon correctly found defendant's case was not in the
    "pipeline" when McNeely was decided. The record shows that defendant pled
    guilty and was sentenced in June 2009. He did not file a direct appeal. The
    Court issued its decision in McNeely in April 2013, nearly four years later. The
    judge found that McNeely cannot be retroactively applied to defendant's case.
    We agree.
    Defendant argues that notwithstanding Adkins, we should apply McNeely
    in this case. He contends that if there is a "major" change in the criminal law,
    it is generally applied retroactively. He asserts that search and seizure law
    requires that his conviction be reversed. He further argues that State v. Zuber,
    
    227 N.J. 422
    (2017), requires reversal of the Law Division's judgment in this
    A-0342-18T4
    10
    matter. He contends other case law supports retroactive application of McNeely
    here.
    We are convinced that defendant's arguments lack sufficient merit to
    warrant discussion in a written opinion.   R. 2:11-3(e)(2). Notwithstanding
    defendant's arguments to the contrary, McNeely does not apply to his
    conviction. 
    Adkins, 221 N.J. at 304
    , 313. His case was not in the "pipeline"
    when McNeely was decided. The court correctly found that defendant was not
    entitled to PCR.
    Affirmed.
    A-0342-18T4
    11