APPELLATE DIVISION
DOCKET NO. A-5871-98T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOAN MARTIN,
Defendant-Appellant.
___________________________________
Submitted November 28, 2000 - Decided
December 14, 2000
Before Judges Pressler, Kestin and
Alley.
On appeal from the Superior Court of
New Jersey,
Law Division, Criminal Part, Middlesex County,
MAM-39-99.
Greggory M. Marootian, attorney for
appellant.
Glenn Berman, Middlesex County
Prosecutor,
attorney for respondent (John N. Shaughnessy,
Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered
by
KESTIN, J.A.D.
Defendant was charged with violating N.J.S.A. 39:3-40, driving with a suspended driver's license; and N.J.S.A. 39:3-29, failure to have driver's credentials in her possession. The August 4, 1998 verbatim record in the South Brunswick Municipal Court discloses that, after representations from counsel for both the State and defendant, the court regarded a plea of guilty to the first charge to have been entered, and proceeded to "merge" the second charge into it. Defendant was then sentenced, as mandatory upon conviction for a third offense, N.J.S.A. 39:3-40c, to a ten-day jail term and a $1,000 fine. The trial court provided that the jail term would be served on work release and that the fine would be discharged on a payment plan ordered by the court. Costs in the amount of $30 were also assessed.
On October 1, 1998, defendant moved in the municipal court to
vacate the guilty plea and for other relief including the
suppression of evidence. The motion to vacate was denied after oral
argument on April 13, 1999. The court ordered defendant to begin
serving her jail term on May 14, 1999, unless defendant filed an
appeal with the Law Division from that denial, in which event the
jail term would be stayed.
On May 13, 1999, defendant filed a motion in the Law Division to
enlarge the time to appeal beyond the twenty-day time period
provided by R. 3:23-2. The motion was returnable on June 1,
1999, and oral argument was heard on that date from counsel for
defendant alone. The motion was denied in an order entered on June
9. On June 1, however, the Law Division judge had stayed the jail
term for an additional thirty days in recognition of defendant's
expressed intention to apply to the municipal court for post-
conviction relief based, presumably, on prior counsel's assertedly
inadequate representation and the substantive issues raised.
On appeal, defendant raises a single issue: that the Law
Division misapplied its discretion "in denying Martin a right to
file an appeal out of time in light of her lack of notice of her
appellate rights." We reverse and remand for this and other reasons.
The State, sua sponte, concedes one of those other
reasons. In accepting and entering defendant's guilty plea, the
municipal court judge elicited no factual basis as is required by
R. 7:6- 2(a)(1). See State v. Gale,
226 N.J. Super. 699
(Law Div. 1988). In fact, until the terms of the work release aspect
of the sentence were discussed, the court did not address defendant
at all. Thus, there was no opportunity for defendant to depict the
following scenario as her version of the circumstances of her
arrest, which she sets forth in her brief on appeal:
Martin, a[n] African[-]American [f]emale, . . . was standing
by her car near her house when she was approached by a South
Brunswick Police Officer. The Officer told her that they were
investigating a report of a stolen green Honda Accord. Martin told
the Officer she was Joan (Martin) after the Officer indicated that
the Honda she was standing next to, was registered to Joan Martin
who had a suspended New Jersey driver's license. Martin's arrest
followed.
According to this version, defendant was not operating the vehicle
at the time. Manifestly, if these facts had been recounted to the
trial court as a circumstantial predicate for defendant's plea,
there would have been no factual basis to sustain a charge of
driving with a suspended license. The error grounded on this
account, however, is only alluded to by defendant in the context of
the one issue she raises on appeal. We also note in this connection
that the summonses which were issued describe the location of the
offenses as "S/B RTE 27/DELAR", (Da 1) which we take to denote
southbound Route 27 at a particular location, an indication that the
issuing police officer may have thought defendant was operating the
motor vehicle at the time. Nevertheless, that recitation alone
provided no adequate basis upon which to adjudicate guilt.
We also regard the structure of the disposition in municipal
court to have been defective. It is inappropriate to order merger of
one charged offense to which no plea of guilty has been entered with
another in respect of which a guilty plea has been entered. Merger
occurs, not of charges but rather of convictions, when there are two
or more convictions which, by the standards of State v. Dillihay,
127 N.J. 42
(1992) and State v. Gonzalez,
123 N.J. 462
(1991), must be treated as one for the purposes of sentencing.
Finally, we come to the issue which defendant does raise
directly: that in disposing of the matter the municipal court judge
did not advise defendant of her right to appeal and the time
requirements for doing so. The verbatim record verifies that this
lapse occurred. The only point at which appeal was mentioned at all
in the municipal court was near the close of the proceedings on
defendant's motion to withdraw her plea when the trial judge
indicated he would stay the sentence pending defendant's appeal of
his order denying the relief sought on that occasion.
The then-articulated basis for the motion to vacate the guilty
plea was advanced by defendant's newly retained counsel at the time.
He argued that defendant should have went to trial on this matter.
She had nothing to lose. But an issue of operation and also an issue
of why the officer stopped her is a big issue that should __ was not
addressed at the previous hearing. And under those circumstances, I
think it would be injustice for her to be committed to the Work
House for something that possibly the State couldn't prove at the
time.
Neither the procedural flaw emphasized by plaintiff in this appeal,
nor any of the others we discern, was mentioned to the municipal
court at argument on the motion to vacate the guilty plea, although
plaintiff herself alluded to her lack of knowledge of the jail term
provided for a third offender. The municipal court judge denied the
motion to vacate the plea, inter alia, on the ground
that defendant had been represented by counsel at the
plea/sentencing proceeding and could not be deemed to have been
coerced or misled.
With respect to the issue plaintiff subsumes in this appeal, the
omission to advise defendant with regard to her right to appeal and
the applicable time frame was another departure from fundamental
requirements, the dictates of the Rules of Court, and common
practice that should not have occurred. See R.
7:14-1(c); cf. R. 3:21-4(h).
Although the only issue directly before us in this appeal is the correctness of the Law Division's disposition of defendant's motion for leave to appeal out of time, we regard the errors made in the municipal court to be so clear and so fundamentally flawed as to require, beyond question, that the judgment of conviction entered therein be vacated and the matter remanded for a new trial. We so order.
Reversed and remanded to the South Brunswick Municipal Court.