State v. Hrycak

• Decision Date: 20 July 2005
• Citation: 184 N.J. 351,877 A.2d 1209
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Olga HRYCAK, Defendant-Appellant.
• Court: New Jersey Supreme Court

877 A.2d 1209

184 N.J. 351

STATE of New Jersey, Plaintiff-Respondent, v. Olga HRYCAK, Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 3, 2005.

Decided July 20, 2005.

Michael P. Hrycak argued the cause for appellant.

James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Wayne J. Forrest, Somerset County Prosecutor, attorney).

Justice WALLACE, JR. delivered the opinion of the Court.

This case involves the maximum jail sentence that may be imposed on a third-time offender under the Driving While Intoxicated (DWI) statute, N.J.S.A. 39:4-50, when one of the prior convictions was uncounseled. The Municipal Court sentenced defendant as a third-time offender and imposed a ninety-day county jail sentence with ninety days of community service. The Superior Court, Law Division imposed the same sentence and the Appellate Division affirmed in an unpublished opinion.

We held in State v. Laurick, 120 N.J. 1, 16, 575 A.2d 1340 (1990), cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed.2d 413 (1990), the maximum jail sentence that could be imposed on a third-time offender of the DWI statute with one prior uncounseled conviction was the maximum jail sentence that could be imposed for a second-time offender, i.e. ninety days, but that the enhanced administrative penalties and fines for a third-time offender should be imposed. Subsequent to our decision in Laurick, the United States Supreme Court held that an uncounseled prior conviction "may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment." Nichols v. United States, 511 U.S. 738, 746-47, 114 S.Ct. 1921, 1927, 128 L.Ed. 2d 745, 754 (1994).

We granted defendant's petition for certification to reconsider our decision in Laurick. We now reaffirm our holding in Laurick that an uncounseled DWI conviction may not be used to enhance the period of incarceration for a subsequent offense. Supra, 120 N.J. at 16, 575 A.2d 1340. We reverse and remand for a determination of whether defendant's first DWI conviction was uncounseled, and if so, the maximum jail sentence that may be imposed shall not exceed the maximum jail sentence permitted for a second-time DWI offender.

I.

Defendant was charged with DWI, in violation of N.J.S.A. 39:4-50, on September 28, 2002. She also had been convicted of DWI on two prior occasions. Defendant's first DWI offense occurred on May 18, 1990. She pled guilty and on August 20, 1990, received the following sentence: $250 fine, $25 court costs, $100 surcharge, 12 to 48 hours at the Intoxicated Resource Center, and a six-month suspension of her driving privileges. Defendant's second DWI offense occurred on January 16, 1999. She pled guilty, and because she claimed her first offense was uncounseled, she moved before the Municipal Court to limit any period of incarceration to that of a first-time offender in accordance with the holding in Laurick, supra, 120 N.J. 1, 575 A.2d 1340. The trial court granted her motion and sentenced defendant as a first-time offender without any period of incarceration.

In the present case, for her third DWI conviction, defendant moved to be sentenced as a second-time offender. Defendant informed the court that on the occasion of her second DWI conviction, based on her Laurick application, she was sentenced as a first-time offender. Defendant also argued that because more than ten years had passed between her first conviction in 1990 and this one in 2002, she should be treated as a second-time offender under the statute. The Municipal Court disagreed and sentenced defendant as a third-time offender. Her sentence encompassed ninety days in jail with ninety days of community service, $1002 fine, $200 DWI surcharge, $75 Safe Neighborhood Program penalty, $50 Violent Crimes Compensation Board penalty, a ten-year suspension of her driving privilege, and $30 in court costs.

On de novo appeal to the Law Division, the court concluded that defendant should be sentenced as a third-time offender and imposed the same sentence as the Municipal Court. The Law Division stayed imposition of sentence for twenty days to permit defendant to perfect her appeal. The Appellate Division granted defendant's motion to stay the jail portion of her sentence, but later, in an unpublished opinion, affirmed the judgment. The panel concluded that "[d]efendant's combined ninety-day jail sentence and ninety-day community service obligation, an optional sentence for third-time offenders under the then existing provisions of N.J.S.A. 39:4-50(a)(3), did not represent a greater period of incarceration than that which could have been imposed had she been a second-time offender." Although not raised before the trial court, the panel found that the record was devoid of any proofs to establish defendant's claim that her first DWI conviction was uncounseled or that the lack of counsel played any role in her decision to plead guilty. The panel also rejected defendant's arguments that the more than ten-year lapse between convictions required second-time offender treatment and that the administrative penalties should be limited to those for a second-time offender. We granted defendant's petition for certification. 181 N.J. 285, 854 A.2d 919 (2004).

II.

Defendant contends that the Appellate Division decision conflicts with an earlier decision in State v. Latona, 307 N.J.Super. 387, 389, 704 A.2d 1045 (App.Div.), certif. denied, 154 N.J. 607, 713 A.2d 498 (1998), that expressly adhered to this Court's holding in Laurick limiting the jail sentence for a third-time offender with a prior uncounseled conviction to the period of incarceration for a second-time offender. Further, defendant argues that the Appellate Division erred in concluding that her ninety-day jail term combined with ninety days community service did not exceed the maximum period of incarceration for a second-time offender. Defendant also urges us to conclude that the Appellate Division mistakenly read Nichols, supra, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745, to abrogate this Court's decision in Laurick.

Contrary to defendant, the State argues that defendant was properly sentenced as a third-time offender. At oral argument the State asserted that we should follow Nichols and conclude that an uncounseled DWI conviction may be used to enhance defendant's jail sentence. Further, the State argues that Laurick requires defendant to prove that her conviction was uncounseled, and she failed to do so.

III.

This case affords us the opportunity to review our decision in Laurick and determine anew whether we should continue to follow its principles or, in light of the United States Supreme Court's decision in Nichols, take a different path. Before addressing that issue, we briefly summarize the relevant DWI statute.

A.

Our DWI laws provide for progressively enhanced penalties for repeat offenders. Although N.J.S.A. 39:4-50 has been amended, the version of the statute in effect at the time of defendant's conviction in this case provided for sanctions for a first-time DWI offender of a fine between $250 and $400, detainment between twelve and forty-eight hours at an Intoxicated Driver Resource Center, suspension of driving privilege for a period between six months and one year, and up to thirty days imprisonment. N.J.S.A. 39:4-50(a)(1). For a second-time offender, the penalties increased to provide a fine between $500 and $1,000, a thirty-day period of community service, a two-year suspension of driving privilege, and imprisonment between forty-eight consecutive hours and ninety days. N.J.S.A. 39:4-50(a)(2). For a third-time offender, the penalties further increased to provide that

a person shall be subject to a fine of $1,000.00, and shall be sentenced to imprisonment for a term of not less than 180 days, except that the court may lower such term for each day, not exceeding 90 days, served performing community service in such form and on such terms as the court shall deem appropriate under the circumstances and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for 10 years.

[N.J.S.A. 39:4-50(a)(3).]

B.

We turn now to discuss Laurick, and the weight we should accord to Nichols. In Laurick, we held that absent waiver of counsel, a prior uncounseled conviction

is invalid for the purpose of increasing a defendant's loss of liberty. In the context of repeat DWI offenses, this means that the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the actual period of incarceration imposed may not exceed that for any counseled DWI convictions. For example, a third-offender with one prior uncounseled conviction could not be sentenced to more than ninety days' imprisonment.

[Supra, 120 N.J. at 16, 575 A.2d 1340.]

In reaching that conclusion, we canvassed the development of the United States Supreme Court doctrine concerning the use of uncounseled convictions. We noted the holding in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that "there is a sixth-amendment right to counsel in [all] felony cases[,]" but pointed out that for misdemeanor offenses there is a right to counsel "only if the conviction results in imprisonment." Id. at 7, 575 A.2d 1340 (citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)). In particular, we agreed with the Appellate Division that following Gideon, "the Court consistently held that because an uncounseled felony conviction was constitutionally invalid — and therefore void — it could not be put to other uses in court." Id. at 13-14, 575 A.2d 1340 (quoting State v. H.G.G., 202 N.J.Super. 267, 274, 494 A.2d 841 (App.Div.1985)). The holdings were contrasted with Argersinger, supra, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, where the Supreme Court disallowed imprisonment for an...