STATE OF NEW JERSEY VS. JAMES M. WATERS, JR. (15-05-0970 AND 16-01-0155, OCEAN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4095-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES M. WATERS, JR.,
Defendant-Appellant.
_________________________
Submitted November 18, 2020 – Decided December 31, 2020
Before Judges Whipple, Rose, and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment Nos. 15-05-0970
and 16-01-0155.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven E. Braun, Designated Counsel, on the
brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel and on the brief).
PER CURIAM
Defendant James M. Waters appeals from a March 6, 2019, order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant raises the following issue on appeal:
POINT I: TRIAL DEFENSE COUNSEL WAS
INEFFECTIVE BY FAILING TO ADVISE
DEFENDANT OF THE MANDATORY TWO-YEAR
SUSPENSION OF HIS DRIVER'S LICENSE FOR
THE DRIVING WHILE INTOXICATED CHARGE.
We affirm for the reasons stated by Judge Guy P. Ryan in his well-
reasoned written opinion issued with the order. We add the following
comments.
Defendant was charged under two separate indictments with possession of
a controlled dangerous substance, phencyclidine (PCP), N.J.S.A. 2C:35-
10(a)(1), as well as five motor vehicle tickets, including driving while
intoxicated (DWI), N.J.S.A. 39:4-50, from separate incidents. He was also
charged with various other drug offenses under a summons.
During a March 2017 plea hearing, defendant admitted he had ingested
liquid PCP prior to driving his car in February 2015. His car slid off the road,
and police responded, finding defendant's bottle of PCP in the car. He pleaded
guilty to possession of PCP; DWI, which was a second offense for defendant;
and to wandering to obtain a controlled substance, N.J.S.A. 2C:33-2.1(b), a
A-4095-18T1
2
disorderly persons offense, which was amended and downgraded from an
indictable offense.
During the plea hearing, defendant openly acknowledged that pleading
guilty to the DWI offense could result in the loss of his driver's license "for
anywhere from [six] months to [twenty-four] months" and that he would need
to pay monetary penalties for the DWI and additional offenses. 1
At sentencing, trial counsel informed the judge at sidebar that defendant
sought to withdraw his guilty pleas because he "can't take the two years [license
suspension]." On the record in open court, defense counsel asserted that he
discussed the mandatory two-year loss of license with defendant, arguing that
the license suspension would be "devastating." The sentencing court rejected
defendant's informal request to withdraw the plea and imposed a two-year loss
of driver's license as a result of the DWI, in addition to monetary penalties.
Defendant was also ordered to spend forty-eight hours in a classroom-setting
Intoxicated Driver Resource Center and was sentenced to thirty days of
1
Although not a part of this appeal, defendant also pleaded guilty to the two
summonses for wandering to obtain a controlled dangerous substance, which
were downgraded from indictable offenses to disorderly persons offenses.
A-4095-18T1
3
community service. At its discretion, the court decided not to impose an
interlock on defendant's motor vehicle.
In May 2018, defendant filed this petition for PCR, simply alleging
"ineffective assistance of counsel," with no further specificity. In denying the
petition, Judge Ryan noted that defendant had his driving privileges suspended
twenty-one times and it was unclear whether defendant ever obtained a New
Jersey driver's license. Judge Ryan emphasized that because the DWI charge at
issue was defendant's second DWI conviction, defendant would have been
notified at his first offense of the consequences of subsequent offenses. The
record demonstrates defendant knew of the penalties, and that the first DWI was
recent enough in time to the second DWI for defendant to be on sufficient notice
of the enhanced penalty.
In response to defendant's contention that his constitutional rights had
been implicated by alleged lack of information, Judge Ryan stated that even if
there had indeed been deficient advisement, the prior conviction could only be
barred from enhancing defendant's incarceration period—it would have no effect
on the mandatory driver's license suspension component of defendant's penalty.
(citing State v. Hrycak, 184 N.J. 351, 358 (2005) (explaining that a prior
uncounseled conviction for DWI cannot increase a "defendant's loss of liberty"
A-4095-18T1
4
but that "enhanced administrative penalties and fines may constitutionally be
imposed . . .")).
Finally, the court concluded defendant's assertions were not sufficient to
meet the Strickland/Fritz 2 standard for ineffective assistance claims. Based on
our review of the record, we discern no error requiring us to disturb the denial
of the petition nor the denial of a motion for a new trial.
Affirmed.
2
Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42(1987) (requiring a defendant seeking PCR on ineffective assistance of counsel
grounds to demonstrate: (1) the particular manner in which counsel's
performance was deficient; and (2) that the deficiency prejudiced defendant's
right to a fair trial).
A-4095-18T1
5