STATE OF NEW JERSEY VS. WILLIAM J. THESING (18-19, ATLANTIC COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-1597-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILLIAM J. THESING,

     Defendant-Appellant.
_______________________

                    Submitted January 19, 2021 – Decided February 8, 2021

                    Before Judges Hoffman and Smith.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Municipal Appeal No. 18-
                    19.

                    Kevin Leckerman, attorney for appellant.

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (Nicole L. Campellone, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from the Law Division order denying his petition for

post-conviction relief (PCR) from a conviction for driving while under the

influence (DWI), N.J.S.A. 39:4-50, entered after defendant pled guilty in the

Hamilton Township municipal court in 2010. The order was issued following a

de novo review of the municipal court order denying defendant's PCR petition.

We affirm.

      We derive the following facts from the record. On March 16, 2010,

defendant appeared before the Hamilton Township municipal court and pled

guilty to one count of DWI. Defendant was represented by an attorney at the

hearing. Defendant's attorney waived the reading of the complaint and advised

the court "we're here to retract the previously entered not guilty plea[] and enter

a guilty plea to . . . [DWI]."

      Defendant then pled guilty to DWI, specifically admitting he was "driving

under the influence of alcoholic beverage on the date of October 10th[, 2009]

on the [Atlantic City] [E]xpressway in Hamilton Township."            Defendant's

attorney did not object to the court admitting the alcohol influence report in

evidence. The report showed a truncated blood alcohol reading of .20 and a

mean reading of .2110.       Defendant confirmed his understanding that these

readings were "more than sufficient" to form the basis for a conviction and that


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                                        2
was why he was pleading guilty. The judge then asked defendant if his plea was

"free and voluntary," and he responded, "Yes, it is." The judge then imposed

the minimum fines and penalties for a first offense, 1 including a seven-month

driver's license revocation.

      On June 10, 2019, defendant filed the PCR petition under review, alleging

the Hamilton Township municipal court did not "provide a proper colloquy"

concerning the constitutional rights he was waiving by pleading guilty to DWI.

Specifically, defendant argued the municipal court failed to have defendant

confirm that, "by pleading guilty[,] he would be waiving his right to trial, his

right to remain silent, and his right to confront witnesses"; because of this

failure, his plea was not knowing, intelligent, and voluntary.

      On August 26, 2019, the municipal court denied PCR, finding that

defendant provided an adequate factual basis and entered his plea knowingly

and voluntarily when he pled guilty in 2010. Thereafter, defendant appealed the

denial to the Law Division.

      On November 20, 2019, following oral argument and a de novo review of

the record, the Law Division judge denied defendant's petition, concluding that


1
  Defendant had a prior DWI conviction in 1990. Because his second offense
occurred more than ten years after his first offense, the judge correctly treated
the 2010 conviction as a first offense. See N.J.S.A. 39:4-50(a)(3).
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                                        3
defendant placed an adequate factual basis on the record and that his plea was

knowing and voluntary. The judge found that defendant was "fully aware of the

various rights available to him," noting that he was represented by counsel, this

was not his first court proceeding, and he had a prior DWI in 1990. The judge

explained that he decided the case on the merits, rather than addressing whether

defendant's claim was time barred, because defendant contended that an

improper colloquy regarding the waiver of his rights resulted in an illegal

sentence.

      This appeal followed, with defendant presenting the following argument:

            DEFENDANT’S RIGHT TO DUE PROCESS WAS
            VIOLATED WHEN THE MUNICIPAL COURT
            FAILED TO PROVIDE A PROPER COLLOQUY
            CONCERNING THE CONSTITUTIONAL RIGHTS
            THAT APPELLANT WOULD BE WAIVING PRIOR
            TO PLEADING GUILTY, THUS, THE PLEA WAS
            NOT KNOWING.

      After a careful review of the record and the applicable principles of law,

we reject defendant's arguments and affirm; however, we affirm the denial of

PCR for different reasons than expressed by the trial court. See State v. Heisler,

422 N.J. Super. 399

, 416 (App. Div. 2011) (stating an appellate court is "free to

affirm the trial court's decision on grounds different from those relied upon by

the trial court"). Specifically, we conclude that defendant's petitions is time-


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                                        4
barred because it was filed more than five years from the date of his DWI

conviction in 2010.

      Rule 7:10-2 addresses PCR in the municipal court.         Rule 7:10-2(b)

provides, in relevant part:

            (1) A petition to correct an illegal sentence may
            be filed at any time.

            (2) A petition based on any other grounds 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 in
            filing was due to defendant's excusable neglect.

      "An illegal sentence is one that 'exceeds the maximum penalty provided

in the Code for a particular offense' or a sentence 'not imposed in accordance

with law.'" State v. Murray, 

162 N.J. 240

, 247 (2000). In this case, defendant's

sentence was within the permissible range for DWI. See N.J.S.A. 39:4-50(a).

In fact, the municipal court imposed the minimum sentence. Accordingly, the

sentenced imposed by the municipal court, in 2010, was in accordance with law

and was not an illegal sentence.

      Nor can defendant avail himself of Rule 7:10-2(g), which permits a PCR

petition seeking "relief from an enhanced custodial term based on a prior [DWI]

conviction" to "be filed at any time." That Rule was specifically adopted by the


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                                       5
Court in State v. Patel, 

239 N.J. 424

, 447 (2019), and is limited to PCR petitions

seeking relief under State v. Laurick, 

120 N.J. 1

(1990). In Laurick, the Court

"provided a limited form of post-conviction relief to those defendants who had

not waived their right to counsel and who were not informed by the court of their

right to retain counsel or, if indigent, of their right to assigned counsel without

cost." 

Patel, 239 N.J. at 438

(citing 

Laurick, 120 N.J. at 4

, 16). Here, however,

defendant was represented by counsel at the time of his guilty plea. "[A]

defendant who seeks traditional post-conviction relief to vacate a DWI

conviction – as opposed to Laurick relief – must abide by the general principles

governing post-conviction relief and the five-year time bar in the absence of

excusable neglect." Patel, 

239 N.J. 448

.

      Defendant cites no authority to support his contention that an improper

plea colloquy resulted in an illegal sentence. Because there was no basis for

defendant to assert an illegal sentence argument, and because defendant did not

assert his late filing was due to excusable neglect, his petition should have been

dismissed as untimely, pursuant to Rule 7:10-2(b)(2).

      Affirmed.




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                                        6

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