STATE OF NEW JERSEY VS. BRUCE D. LUKENS (19-17, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0458-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRUCE D. LUKENS,
Defendant-Respondent.
________________________
Submitted March 15, 2021 – Decided April 13, 2021
Before Judges Fasciale and Susswein.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Somerset County,
Municipal Appeal No. 19-17.
Michael H. Robertson, Somerset County Prosecutor,
attorney for appellant (Natacha Despinos Peavey,
Assistant Prosecutor, of counsel and on the brief;
Lauren Fox, Assistant Prosecutor, on the brief).
Robert Ramsey, attorney for respondent.
PER CURIAM
The State appeals from an August 31, 2020 Law Division order granting
reconsideration and vacating defendant's 2012 conviction for driving while
intoxicated (DWI), N.J.S.A. 39:4-50. In 2018, defendant was charged with his
third DWI offense, having previously been convicted in 2012 and 1995.
Motivated by his desire to avoid a mandatory six-month jail sentence as a three-
time DWI offender, see infra note 2, defendant moved to vacate his 2012 guilty
plea nearly six years after it was entered. Defendant argued the factual basis for
the plea was inadequate 1 and that he was not properly advised during the plea
colloquy that he would face a mandatory jail term for any subsequent DWI
offense. The municipal court judge denied defendant's motion to vacate the
2012 guilty plea, as did the first Law Division judge to hear the matter o n de
novo review. A second Law Division judge, however, vacated the 2012 guilty
plea on defendant's motion for reconsideration. While we agree with the
reconsideration motion judge that defendant was not properly advised of the
consequences of a third DWI conviction as required by N.J.S.A. 2C:39-50(c),
we conclude the failure to advise defendant of those consequences does not
constitute a manifest injustice and thus affords no basis upon which to vacate
1
Defendant abandoned the argument regarding the factual basis for the 2012
guilty plea in his motion for reconsideration, and that contention is not before
us in this appeal. See infra note 6.
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the 2012 DWI conviction. We therefore reverse the order vacating the 2012
guilty plea and remand for the purpose of reinstating that conviction.
We briefly summarize the relevant facts and procedural history.
Defendant was convicted of his first DWI offense in 1995. On June 18, 2012,
defendant was charged with his second DWI offense. On August 13, 2012,
defendant appeared in municipal court and pled guilty. The municipal court
judge conducted a colloquy with defendant that established that the guilty plea
was knowing and voluntary and that defendant was satisfied with the services
that had been provided by counsel. The judge also elicited the factual basis for
defendant's guilty plea. During the plea colloquy, rather than recite the
consequences of a future DWI offense, 2 the judge instead essentially
incorporated by reference the advisement that was given to other defendants who
2
N.J.S.A. 39:4-50 provides in relevant part:
For a third or subsequent violation, a person shall be
subject to a fine of $1,000, and shall be sentenced to
imprisonment for a term of not less than 180 days in a
county jail or workhouse, except that the court may
lower such term for each day, not exceeding 90 days,
served participating in a drug or alcohol inpatient
rehabilitation program approved by the Intoxicated
Driver Resource Center and shall thereafter forfeit the
right to operate a motor vehicle over the highways of
this State for eight years.
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3
had pled guilty to DWI during that court session. 3 The following exchange
occurred:
Court: All right. Now, Mr. Lukens, more
importantly, to me—maybe not to you—
were you present when I read to the other
people?
Defendant: Yes, I was.
Court: Is it necessary for me to read it to you
today?
Defendant: It is not.
Court: All right. The most important part of that
is the increased penalties for driving
while suspended. You realize you could
face up to [eighteen] months in jail?
Defendant: Yes, I know.
Court: Okay. I will not read that to you.
The judge thereupon accepted defendant's guilty plea. Because the
defendant's second offense occurred more than ten years after his 1995 offense,
he was treated as a first offender for sentencing purposes. 4 Defendant did not
appeal the August 13, 2012 guilty plea conviction or sentence.
3
Those other defendants are not identified, and transcripts of their plea
colloquies are not part of the record before us.
4
N.J.S.A. 39:4-50(a)(3) provides:
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4
On April 9, 2018, defendant was again arrested and charged with his third
DWI offense.5 On August 6, 2018, defendant filed a motion before the
municipal court to vacate his 2012 guilty plea. He argued his 2012 plea was not
knowingly made because the court failed to apprise him of the potential
consequences of a third DWI conviction. He also argued the plea rested on an
insufficient factual basis. On August 20, 2018, a municipal court judge denied
the motion.
Defendant appealed to the Superior Court, Law Division. On April 16,
2019, a Law Division judge conducted a de novo review on the record and
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
[ten] 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 [ten]
years after the second offense, the court shall treat the
third conviction as a second offense for sentencing
purposes.
5
Defendant has since pled guilty to the April 9, 2018 DWI offense and was
sentenced in accordance with N.J.S.A. 39:4-50 as a third offender. That
enhanced sentence was stayed pending the outcome of this appeal.
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denied defendant's motion, rendering a twenty-nine-page written statement of
reasons.
On May 2, 2019, defendant filed a motion for reconsideration. Because
the Law Division judge who rendered the initial decision was on an extended
leave of absence, the matter was reassigned to another Law Division judge. The
reconsideration motion judge agreed with the municipal court judge and original
Law Division judge there was an adequate factual basis for the 2012 guilty plea. 6
However, the reconsideration motion judge determined that defendant had not
been properly advised of the penal consequences of his 2012 guilty plea because
the municipal court failed to apprise him of the consequences of a future DWI
conviction. On that basis, the reconsideration motion judge concluded that
defendant suffered a manifest injustice that required the 2012 guilty plea to be
vacated.
We begin our analysis by acknowledging the legal principles governing
this appeal. Rule 7:6-2(b) provides, "[a] motion to withdraw a plea of guilty
6
Defendant did not file a cross-appeal from the reconsideration motion judge's
ruling that the factual basis for the 2012 guilty plea was adequate. Nor does
defendant argue in his appellate brief that the municipal court judge and both
Law Division judges erred in concluding that the factual basis was adequate.
We therefore deem this argument to be waived for purposes of this appeal. See
supra note 1; Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)
("An issue not briefed on appeal is deemed waived.").
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shall be made before sentencing, but the court may permit it to be made
thereafter to correct a manifest injustice."
N.J.S.A. 39:4-50(c) reads in pertinent part:
Upon conviction of a violation of this section, the court
shall notify the person convicted, orally and in writing,
of the penalties for a second, third or subsequent
violation of this section. A person shall be required to
acknowledge receipt of that written notice in writing.
Failure to receive a written notice or failure to
acknowledge in writing the receipt of a written notice
shall not be a defense to a subsequent charge of a
violation of this section.
We have repeatedly held that failure to provide notice of the consequences
of a future DWI violation as required by the statute does not preclude imposition
of enhanced punishment on a future DWI conviction. In State v. Petrello, for
example, the defendant argued "[a] defendant cannot be subjected to the
enhanced penalty provisions as a second offender without having been advised
of the penalties as a second offender." 251 N.J. Super. 476, 477 (App. Div.
1991). In that case, the defendant's second DWI offense occurred before he pled
guilty to his first offense. He claimed he was not sufficiently apprised, whether
orally or in writing, of the repeat offender consequences at the time of his second
offense. Id. at 477–78. We rejected that argument, noting:
The basis for [defendant's] position is the language in
the statute providing that the failure of the court to
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provide defendant with written notice is not a defense
to a subsequent charge, coupled with silence of the
statute as to the effect of a failure to so notify the
defendant orally. Defendant posits that this legislative
silence signifies an intention to bar sentencing as a
subsequent offender without, minimally, an oral
advisement of the penalties for a second, third or
subsequent violation. We disagree. To do so would
frustrate the obvious legislative intent to provide
enhanced penalties for each subsequent conviction of
the statute. We would then reward the defendant who
intentionally or negligently fails to appear in court and
subsequently violates the statute because he could not
then be sentenced as a subsequent offender.
[Id. at 478.]
In State v. Nicolai, we reiterated: "we have held that the failure to receive
written or oral notice of the penalties applicable to a second, third[,] or
subsequent conviction does not bar imposition of the progressively enhanced
sentences mandated by our statutes." 287 N.J. Super. 528, 532 (App. Div. 1996)
(citing Petrello, 251 N.J. Super. at 478–79).
In this instance, we agree with the reconsideration motion judge that the
municipal court judge in 2012 failed to comply with the statutory notice
requirement. The shortcut the judge took—referring to the notice given to other
defendants rather than expressly repeating the notice to defendant on the
record—is improper, and we do not condone such practice. Cf. R. 7:14-1(a)
(noting that a court's opening statement to assembled litigants "concerning court
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procedures and rights of defendants . . . shall not, however, be a substitute for
the judge advising individual defendants of their rights prior to their respective
hearings").
The remaining issue before us is whether this deficiency warrants a
remedy in the form of precluding imposition of the enhanced sentence, whether
by means of creating some form of "defense," or by entitling a defendant to
withdraw his guilty plea under the guise of a manifest injustice. Clearly it does
not. Even accepting that defendant was not properly apprised at the 2012 plea
colloquy of the mandatory jail term that must be imposed upon a third DWI
conviction,7 he is not entitled to avoid that enhanced sentence.
We emphasize that defendant does not argue on appeal that the failure to
comply with the statutory notice requirement constitutes a defense to the
imposition of enhanced punishment. Nor does defendant argue that N.J.S.A.
39:4-50(c) authorizes the remedy of vacating a guilty plea if a court does not
comply with the statutory requirement to provide notice of future consequences
7
We note, as did the Law Division judge who first heard defendant's municipal
court appeal, that defendant is no stranger to the potential penalties of repeat
DWI offenses, having also been convicted in 1995. Nothing in the record before
us indicates that the court in 1995 failed to advise defendant of the consequences
of a second and third or subsequent DWI offense.
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orally and in writing. Conspicuously, defendant makes no mention at all of the
trial court's statutory obligation to provide notice of enhanced punishment in the
event of future convictions. Rather, defendant contends the failure to apprise
him of the consequences of a future DWI offense constitutes a violation of due
process and Rule 7:6-2(a), which generally requires "that the plea is made
voluntarily with understanding of the nature of the charge and the consequences
of the plea . . . ."
Defendant cites no authority, however, for the proposition that a defendant
is somehow immune from a recidivist penalty enhancement statute if he is not
expressly warned about it at the time he is convicted and sentenced for an earlier
offense. We resolutely reject that proposition and hearken back to the age-old
maxim: "ignorantia juris neminem excusat." See State v. Benny, 20 N.J. 238,
256 (1955). Specifically, in this instance, ignorance of a recidivism statute is
no defense to its administration.
In State v. Zeikel, we recognized that "[r]ecidivist statutes have withstood
due process attacks as long as they require the government to prove each element
that enhances the sentence." 423 N.J. Super. 34, 43 (App. Div. 2011). In that
case, the defendant argued he would have preserved evidence that he had a
0.06% BAC level in a prior conviction as a defense to enhanced sentencing for
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a subsequent offense. Id. at 41–42. We rejected that argument, concluding
that "[i]f a repeat offender has no constitutional right to written or oral notice of
enhanced potential sentences in the future, there is also no due process
requirement of prior notice of a potential defense for a future offense." Id. at
44.
We likewise reject defendant's argument that the failure to warn him about
the consequences of committing a future DWI violation somehow renders a
guilty plea defective and subject to being vacated if a defendant recidivates. In
practical effect, defendant's contention would have us reward an offender for
committing a new offense by vacating a guilty plea conviction that was perfectly
valid at the time it was entered. As we have noted, Rule 7:6-2(b)—as well as
its Superior Court counterpart, Rule 3:9-2—requires that a defendant understand
the consequences of a guilty plea. The fatal flaw in defendant's argument is that
it ignores the critical distinction between direct and collateral consequences to
a guilty plea. In State v. Bellamy, our Supreme Court explained that "a trial
court's duty to ensure that a defendant understands the consequences of a plea
generally extends only to those consequences that are direct, or penal, and not
to those that are collateral." 178 N.J. 127, 134 (2003) (emphasis added)
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(internal quotation marks omitted) (quoting State v. Howard, 110 N.J. 113, 122
(1988)).
In this instance, defendant's eligibility for enhanced punishment as a
three-time DWI offender does not "automatically flow" from his 2012
conviction. Id. at 138. It arises instead from his own subsequent misconduct.
In other words, the mandatory six-month jail term defendant now faces is a
collateral consequence of his 2012 guilty plea because it depends on the
commission of new unlawful conduct which, in this instance, occurred six years
after the 2012 guilty plea and sentencing. We add that defendant has failed to
show that he would not have pled guilty in 2012 had he known of the potential
consequences of a subsequent offense. See State v. Howard, 110 N.J. at 123("[T]he plea will not be vacated if knowledge of the consequences would not
have made any difference in the defendant's decision to plead.") (citing State v.
Taylor, 80 N.J. 353, 363 (1979)). Indeed, any such argument would be
implausible.
As we have noted, the Legislature clearly intended to provide enhanced
penalties for each subsequent DWI conviction. That intent would be frustrated
were we to permit a defendant to escape enhanced punishment because he was
not expressly told about the recidivism feature codified in N.J.S.A. 2C:39 -50.
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See Petrello, 251 N.J. Super. at 479. The same is true if we rely on general
principles of due process and Rule 7:6-2(b) as defendant urges us to do. In this
case, the remedy granted by the reconsideration motion judge constitutes an
inappropriate windfall to a repeat offender—one that comes at the expense of
the safety of the motoring public.
We thus conclude defendant has failed to establish that he has suffered a
manifest injustice to justify vacating an otherwise valid DWI guilty plea.
Indeed, in these circumstances, it would be a manifest injustice to allow
defendant to evade enhanced punishment for his third DWI conviction. We
therefore reverse the Law Division order granting defendant's motion for
reconsideration and vacating his 2012 DWI conviction. We remand with
instructions to expeditiously vacate the stay of the enhanced sentence that was
imposed on defendant's third DWI conviction.
Reversed and remanded. We do not retain jurisdiction.
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