                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5844-17T1
                                                                     A-1536-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MATTHEW P. ARLUNA,

     Defendant-Appellant.
_____________________________

                    Submitted November 13, 2019 – Decided December 12, 2019

                    Before Judges Hoffman and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Municipal Appeal No. 18-10,
                    and Indictment No. 17-01-0144.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michelle Erica Friedman, Assistant Deputy
                    Public Defender, of counsel and on the briefs).

                    Mark Musella, Bergen County Prosecutor, attorney for
                    respondent (William P. Miller, Assistant Prosecutor, of
                    counsel and on the brief).

PER CURIAM
      In 2003, defendant appeared without counsel in the Ho-Ho-Kus Municipal

Court and pled guilty to a charge of driving while intoxicated (DWI), N.J.S.A.

39:4-50, resulting in his first DWI conviction. He acquired two more DWI

convictions thereafter. For his third DWI conviction, defendant received a ten-

year suspension of his driver's license in 2008. In 2016, defendant was pulled

over while driving a friend's car. Because his license remained suspended,

defendant was charged with violating N.J.S.A. 2C:40-26(b), operating a motor

vehicle while his license was suspended for a second or subsequent DWI

conviction, a fourth-degree criminal offense.

      On November 15, 2017, a jury found defendant guilty of violating

N.J.S.A. 2C:40-26(b). Prior to sentencing, defendant filed a motion to withdraw

his uncounseled 2003 guilty plea, pursuant to State v. Laurick, 120 N.J. 1

(1990).1 The Ho-Ho-Kus Municipal Court denied the motion and defendant

appealed. On August 15, 2018, following a trial de novo, the Law Division also

denied defendant's motion. On November 9, 2018, the same Law Division judge

sentenced defendant to 364 days in the county jail and three years of probation.


1
  In Laurick, our Supreme Court held "a prior uncounseled DWI conviction may
establish repeat-offender status for purposes of the enhanced penalty provisions
of the DWI laws"; however, "a defendant may not suffer an increased period of
incarceration as a result of . . . an uncounseled DWI conviction." Id. at 16.
(emphasis omitted).
                                                                        A-5844-17T1
                                       2
      Defendant filed appeals challenging both Law Division orders. On April

15, 2019, this court consolidated both appeals.

      Defendant's brief presents the following points of arguments:

      POINT I

         AS APPLIED TO THE PRE-2011 DUI OFFENSES, MR.
         ARLUNA'S    N.J.S.A. 2C:40-26   CONVICTION
         VIOLATES THE EX POST FACTO CLAUSE.

      POINT II

         THE COURT USURPED THE DEFENDANT'S
         DECISION-MAKING AUTHORITY, DECIDING TO
         ISSUE THE CHARGE ON HIS ELECTION NOT TO
         TESTIFY WITHOUT HIS CONSENT.

      POINT III

         THE LAW DIVISION IMPROPERLY AFFIRMED THE
         MUNICIPAL APPEAL AND RELIED UPON THAT
         CONVICTON AT THE TIME OF SENTENCING. THE
         SENTENCING COURT ALSO ERRED IN DOUBLE-
         COUNTING AND IN FINDING THAT MR. ARLUNA
         ATTEMPTED TO MINIMIZE THE SERIOUSNESS OF
         THE OFFENSE.

            A.    The 2003 Guilty Plea is Founded Upon an
                  Inadequate Factual Basis. The Law Division
                  Should Have Vacated That Conviction and
                  Refused to Consider It During Sentencing on the
                  Indicatable Offense.

            B.    The Court's Failure to Advise the Defendant of
                  His Right to a Municipal Public Defender Once
                  He Indicated a Private Attorney Was Cost-

                                                                      A-5844-17T1
                                       3
                    Prohibitive Also Renders the          2003    DUI
                    Conviction and Sentence Invalid.

            C.      The Court's Rationale for Finding Aggravating
                    Factor Nine was Patently Flawed.

      While we conclude that defendant's first two points lack sufficient merit

to warrant extended discussion,2 R. 2:11-3(e)(2), we find that sub points A. and

B. under Point III do have merit, in light of the recent decision of the Supreme

Court in State v. Patel, ___ N.J. ___, ___ (2019) (slip op.). For the reasons that

follow, we vacate the orders under review and remand for further proceedings

consistent with Patel.

                                             I

      On May 2, 2003, police pulled over defendant and cited him for DWI, in

violation of N.J.S.A. 39:4-50, and failure to observe traffic lanes, in violation of

N.J.S.A. 39:4-88.     Prior to entering his plea, defendant signed a "Notice of

Motion to Enter a Plea Agreement," which indicated the State recommended the

minimum sentence for his DWI charge, and the citation for failure to observe


2
   Regarding Point I, defendant failed to raise his ex post facto argument in the
trial court. In addition, this court previously addressed and rejected this
argument. See State v. Carrigan, 428 N.J. Super. 609, 612 (App. Div. 2012).
Regarding Point II, defendant did not object to the election-not-to-testify
instruction; in fact, defense counsel referenced the instruction in his closing
argument. Following our review of these arguments, we find no plain error. R.
2:10-2.
                                                                            A-5844-17T1
                                         4
traffic lanes would be merged and dismissed.       Defendant also signed the

"Intoxicated Driver Penalty Provisions Court Order" which outlined the

penalties imposed by the court. The "Defendant Information" section of the

order stated defendant was charged with DWI based on a .17 and .18 blood

alcohol content (BAC).

     On June 4, 2003, defendant appeared without counsel before the Ho-Ho-

Kus Municipal Court, where the following colloquy occurred:

           Judge: Let[']s get right to the case here. One charge is
           being dismissed. [The DWI] charge you've indicated
           that you wish to plead guilty to it.

           Defendant: Yes.

           Judge: [The DWI] charge is a charge that carries with
           it rather severe penalties[. Therefore,] you have the
           absolute right to an attorney to represent your interest
           in that particular case.

           Defendant: Yes.

           Judge: Do you understand that?

           Defendant: Yes.

                 ....

           Judge: Do you have any problem understanding what I
           just told you?

           Defendant: No.


                                                                      A-5844-17T1
                                      5
            Judge: Do you wish to proceed in this matter with or
            without an attorney?

            Defendant: Without.

            Judge: Why?

            Defendant: Because I can convey to you what happened
            without going through a [$1500] attorney.

            Judge: [T]hat's a very fair comment, and I don’t mean
            it in any other way. But just so you understand, I have
            to be careful, obviously, when people represent
            themselves, you know, again, only because there are
            certain rights that they may or may not know about or
            have, and I understand that.

            Defendant: Yes.

      The judge explained to defendant the consequences of pleading guilty to

DWI and outlined the consequences of repeated offenses; however, at no point

did the judge advise defendant he was entitled to court-appointed counsel, if he

could not afford an attorney. After discussing the consequences of his DWI and

the consequences of subsequent offenses, the following additional exchange

occurred:

            Judge: I'm not saying that to scare you but to again let
            you know what the penalties are and to make sure that
            you are proceeding and know what you're doing.

            Defendant: Yes.
            Judge: All right. You still wish to proceed?


                                                                        A-5844-17T1
                                       6
             Defendant: Yes.

             Judge: Okay. I am satisfied you know what you're
             doing. Again, I'm not trying to be a wise guy, I just
             want you to understand I'm kind of careful when it
             comes to those things[.]

             Defendant: I understand.

      Defendant then testified that, prior to police pulling him over, he went to

a bar with some friends, "had a shot" that "was 190 proof" and drank a beer.

Defendant then added that the shot was "probably what put me over the limit."

The judge stated, "I'm satisfied that you do, in fact, know what you did. You

also are quite aware of the ramifications and penalties. . . ."

      The judge then accepted defendant's guilty plea, found him guilty of DWI,

and merged the charge of failure to observe traffic lanes. As part of defendant's

sentence, the judge suspended his license for 180 days. In 2007, defendant was

convicted of his second DWI. In 2008, defendant was convicted of his third

DWI. As part of the sentence imposed for his third DWI, the court suspended

his license for ten years.

      On January 22, 2016, defendant was pulled over by a police officer in the

Borough of Waldwick for having an unclear license plate, in violation of

N.J.S.A. 39:3-33.    The owner of the vehicle was a passenger.        Defendant

provided the officer with a license issued "for identification purposes only";

                                                                         A-5844-17T1
                                         7
eventually, defendant admitted he did not have a valid driver's license.

Defendant also admitted to drinking one beer before driving his passenger's

vehicle. A dispatcher ran defendant's license and informed the officer his

license was suspended for DWI. On January 30, 2017, a grand jury returned an

indictment charging defendant with violating N.J.S.A. 2C:40-26(b). Following

a trial, on November 15, 2017, a jury found defendant guilty of the charge.

      Prior to his sentencing hearing, defendant filed a motion in the Ho -Ho-

Kus Municipal Court, seeking to withdraw his 2003 guilty plea, after his counsel

reviewed a transcript of defendant's 2003 plea hearing. The municipal court

judge denied the motion, but acknowledged "the [c]ourt[,] in a self-critical

analysis[,] could have done a better job on the issues of the right to appeal and

operation of the motor vehicle." The judge who denied the motion was the same

judge who accepted defendant's guilty plea in 2003.

      Defendant then filed an appeal from the denial of his motion to withdraw

his 2003 guilty plea. Defendant's appeal was heard by the same judge who

presided at defendant's trial on the N.J.S.A. 2C:40-26(b) charge. Following a

trial de novo, the judge denied the motion. Even though defendant did not state

he was drunk, the judge found defendant knew he was over the legal limit

because he received an order notifying him that he had a .17 and .18 BAC at the


                                                                         A-5844-17T1
                                       8
time of his arrest. The judge further noted defendant's "extraordinary delay" in

bringing his application and the "equities weigh[ed] heavily against [him]"

because he failed to argue he was innocent of the DWI. Lastly, the judge found

withdrawing his plea agreement would create an "unfair prejudice" to the State

and an unfair advantage to defendant because the underlying offense occurred

over fifteen years prior.

      On November 9, 2018, the same Law Division judge presided at

defendant's sentencing hearing. The judge found aggravating factors three,

N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); six, N.J.S.A. 2C:44-1(a)(6)

(criminal history and seriousness of conviction); and nine, N.J.S.A. 2C:44 -

1(a)(9) (deterrence). The judge found that defendant's admitted drinking –

although not being drunk – and driving, after having three prior DWIs, made his

conduct "outrageous, and . . . heighten[ed] the need to deter" him. He further

found defendant's sentencing memo "attempt[ed] to minimize the seriousness of

this offense by arguing that there was nobody else on the road. Even if that's

true the argument highlights the fact that defendant simply doesn't understand

the seriousness of this offense, and the need to deter this defendant in particular

is extremely strong."




                                                                           A-5844-17T1
                                        9
      The judge found mitigating factors ten, N.J.S.A. 2C:44-1(b)(10)

(probation); and eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment would entail

excessive hardship). The judge then sentenced defendant to 364 days in the

Bergen County Jail and three years of probation. The judge ordered defendant

to surrender on March 1, 2019, "or within [seventy-two hours] of denial of a

stay by the Appellate Division." No motion for a stay was filed, and defendant

began serving his jail sentence on March 18, 2019.

                                            II

      While we are convinced the Law Division judge correctly denied

defendant's motion to withdraw his uncounseled 2003 guilty plea, based upon

the applicable law at the time, after his decision, our Supreme Court decided

Patel on August 7, 2019. Relevant to this appeal, the Court held:

            [W]hen notice of the right to counsel is not given in
            DWI cases, to obtain the special form of relief
            recognized in Laurick, neither indigent nor non-
            indigent defendants should be required to establish that
            the outcome of the proceeding would have been
            different had they been given the opportunity to retain
            counsel or secure appointed counsel.

            [Patel, slip op. at 33.]




                                                                       A-5844-17T1
                                       10
Before Patel, the Court had ruled in Laurick that unless the lack of counsel

results in a "miscarriage of justice," the court should not grant relief. 120 N.J.

at 10.

         A remand to the Law Division is required so that the court can reconsider

the orders under review and fully address all relevant issues, with the guidance

provided by the Court in Patel. The Law Division shall immediately enter an

order for defendant's release from the county jail pending the court's further

consideration of these orders.

         Vacated and remanded. We do not retain jurisdiction.




                                                                          A-5844-17T1
                                        11
