Significant Burden Must be Overcome for Success on Post Conviction Relief
A defendant charged and convicted of a 2nd or subsequent New Jersey DWI may wish to file a Petition for Post Conviction Relief (PCR) for a number of reasons. One such reason was raised during the trial of Karen Weil (State v. Weil). Ms. Weil, plead guilty to a 3rd DWI and applied for PCR (post trial), which was subsequently denied. Post Conviction Relief in this case was requested because the defendant believed that she had sustained a “substantial denial in the conviction proceedings of [her] rights under the Constitution of the United States or the Constitution or laws of New Jersey” (R. 7:10-2) stemming from a prior (first) DWI conviction in 1994.
Defendant, Karen Weil filed a “Laurick” application for Post Conviction Relief (State v. Laurick). A defendant who has sustained a prior un-counseled DWI conviction could be entitled to a step down in the jail sentence associated with a 3rd DWI conviction. For a 3rd DWI conviction there is a mandatory jail term of not less than 180 days. If Ms. Weil’s “Laurick” application were successful, she would only be required to serve a jail sentence affiliated with a 2nd offense DWI which is not less than 48 consecutive hours nor more than 90 days.
As shown by Ms. Weil’s case, a step down for a Post Conviction Relief “Laurick” application is not easy. Ms. Weil claimed that she could not remember whether or not she was represented by a public defender in her 1994 DWI conviction but she specifically recalls not being represented by private counsel. Since it had been 16 years since the initial DWI conviction, the court could not provide records or court transcripts. The only information available was a copy of the back of the summons, which indicated that Ms. Weil paid a $50.00 public defender fee. The defendant argued that this information alone was not enough to establish that she was in fact represented by counsel and is entitled to relief due to the facts that all other records were not available.
The State argued that Ms. Weil needed to establish a prima facie case and the court agreed. As to the delay, New Jersey Municipal Court Rules state that there is a less than stringent five-year time limit for filing a PCR petition. Ms. Weil had in fact waited for 16 years and did not convince the court that it was not a result of her neglect.
Defendants who file a Laurick PCR application are charged with the burden of proof and must overcome a few hurdles, which the New Jersey Supreme Court has articulated in the progeny of State v. Laurick. Before getting to the two-tiered analysis of Laurick, a defendant must first prove that he or she did not receive notice of a right to counsel in a DWI proceeding. After establishing that no notice was given, the defendant must show two things: (1) unaware that he or she was entitled to counsel and (2) if the defendant was considered to be indigent (could not afford private counsel) then he must show that he would have derived a benefit from notice that he was entitled to a public defender. If the defendant was non-indigent and could afford private counsel, the defendant needs to show that the lack of notice affected the outcome of the case. Defendant, Karen Weil was not able to meet the significant burden of the test, therefore, her conviction was affirmed and no PCR was granted.
Call Villani & DeLuca for Questions about Post Conviction Relief (PCR)
If you are facing a 2nd or subsequent DWI, DUI, or Refusal charge in New Jersey and you believe you were un-counseled or had no knowledge that you were entitled to counsel, you might be eligible for Post Conviction Relief. Contact experienced New Jersey DWI attorney Carmine R. Villani, of Villani & DeLuca, P.C. today for a free initial consultation. Call 732-965-3350 today!
SOURCE:
State v. Weil, Docket No. A-5999-09T4, Superior Court of New Jersey, Appellate Division,
Argued: June 2, 2011, Decided: July 5, 2011.
