                                NOT FOR PUBLICATION WITHOUT THE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-0330-17T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

K.W.A.,1

     Defendant-Appellant.
_______________________

                   Argued October 11, 2018 – Decided October 23, 2018

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Bergen County, Municipal Appeal No. 010-
                   08-17.

                   Kenneth M. Ralph argued the cause for appellant
                   (Bruno & Ferraro, attorneys; Kenneth M. Ralph, of
                   counsel and on the brief).

                   William P. Miller, Special Deputy Attorney General/
                   Acting Assistant Prosecutor, argued the cause for
                   respondent (Dennis Calo, Acting Bergen County

1
   We use initials to protect the identity of the purported victim of domestic
violence. R. 1:38-3(c)(12).
            Prosecutor, attorney; William P. Miller, of counsel and
            on the brief).

PER CURIAM

      Defendant K.W.A. appeals from the September 5, 2017 Law Division

order denying de novo his petition for post-conviction relief (PCR), filed

pursuant to Rule 7:10-2(c)(1). Defendant pled guilty in municipal court without

counsel to the disorderly persons offense of domestic-violence-related simple

assault, N.J.S.A. 2C:12-1(a)(1).2 The court imposed a $500 fine, $33 in court

costs and other mandatory financial penalties. Later, defendant discovered that

the State was seeking to forfeit his gun and firearms purchaser identification

card permit.3 Because the municipal court judge failed to ensure that defendant

knowingly and intelligently waived his right to counsel, we reverse.

      Eight days after his arrest for domestic violence assault, on December 1,

2016, defendant appeared in Ridgewood Municipal Court for the first time.




2
  N.J.S.A. 2C:12-(1)(a) reads: "Simple assault. A person is guilty of assault if
he:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury
to another"
3
  The purported victim did not appear on the return date of the domestic violence
cross-complaints, which were dismissed five days after defendant pled guilty in
municipal court.
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                                       2
Defendant was not given the first appearance information, as required by Rule

7:3-2. Rule 7:3-2(a) states that at a first appearance:

            The judge shall inform the defendant of the right to
            retain counsel or, if indigent, to have counsel assigned
            pursuant to paragraph (b) of this rule. The defendant
            shall be specifically asked whether legal representation
            is desired and defendant's response shall be recorded on
            the complaint.

      Without any on-the-record explanation of his right to counsel, and before

being informed of the possible sanctions, defendant told the municipal court that

he wished to waive his right to counsel. The total exchange regarding waiver of

counsel was the judge's inquiry: "Mr. A[], you don’t have an attorney. Are you

waiving your right to have an attorney today?" to which defendant said, "Yes

sir." After this exchange, the municipal judge explained what rights defendant

was giving up by pleading guilty.

      With regard to the waiver of counsel prior to trial, Rule 7:8-10 states:

            In all cases other than parking cases, a request by a
            defendant to proceed to trial without an attorney shall
            not be granted until the judge is satisfied from an
            inquiry on the record that the defendant has knowingly
            and voluntarily waived the right to counsel following
            an explanation by the judge of the range of penal
            consequences and an advisement that the defendant
            may have defenses and that there are dangers and
            disadvantages inherent in defending oneself.

            [Emphasis added.]

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                                        3
        The judge accepted the waiver of counsel before explaining the "range of

penal consequences" and never advised defendant that he "may have defenses

and that there are dangers and disadvantages inherent in defending oneself."

Ibid.   Rule 7:6-2(a)(1) requires, "Prior to accepting a guilty plea when an

unrepresented defendant faces a consequence of magnitude, the judge shall

make a finding on the record that the court is satisfied that the defendant's waiver

of the right to counsel is knowing and intelligent." In State v. Abbondanzo, we

stated, when reversing a municipal conviction: "A searching and painstaking

inquiry must be made by a trial judge before he [or she] can conclude there has

been an intelligent and competent waiver of counsel." 201 N.J. Super. 181, 184

(App. Div. 1985). "When the trial court analyzes a defendant's responses to its

examination, it should 'indulge [in] every reasonable presumption against

waiver.'" State v. King, 210 N.J. 2, 19 (2012) (quoting State v. Gallagher, 274

N.J.Super. 285, 295 (App.Div.1994)). Such a searching inquiry did not happen

here.

        When defendant first filed his PCR petition in municipal court on

February 27, 2017, only three months after the guilty plea, the prosecutor

certified that defendant, in his discussion with her prior to his guilty plea,

represented that "as long as the penalty for the assault charge was just a fine, he


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                                         4
wished to proceed without counsel." She certified she told "court personnel"

what defendant had told her and did not participate in the court hearing. She

thus did not place a plea agreement on the record, as would be required if

defendant entered into such an agreement. R. 7:6-2(d).

      With neither defense counsel nor the prosecutor participating, defendant's

factual basis was somewhat tentative.

            Defendant: Well I did pull her out of the car, but from
            pulling her out of the car when she tripped, it lunged
            me forward with her, which caused her to hit her head
            on the car.

            The judge:     Well, you put the whole motion in
            progress—

            Defendant: Correct—

            The judge: —is that right?

            Defendant: Yes sir.

            The judge: Did you grab her?

            Defendant: Yes sir. That’s why I'm pleading guilty.

            The judge: You know, did you grab her inappropriately
            sir?

            Defendant: Yes sir. That's why I'm pleading guilty.

            The judge: Did you pull her from the front seat of her
            vehicle?


                                                                       A-0330-17T3
                                        5
             Defendant: Yes sir.

             The judge: All right, and you assaulted her as you were
             doing that; is that right?

             Defendant: Yes sir.

The judge then said:

             I accept the guilty plea. I believe that are you (sic)
             entering the plea knowingly and intelligently. Has (sic)
             waived your right for counsel. You've waived your
             right for a trial. Is there anything you want to tell me
             before I impose a penalty?

      The purported victim then told the judge that she did not want defendant

to "get into trouble" and that they were both at fault. Although at the scene the

purported victim claimed defendant had slapped her, the police report reflects

that defendant showed the police a security videotape that confirmed his version

of the interaction.

      Defendant did not appeal directly from his conviction and the State argues,

pursuant to Rule 3:22-3, that his complaint of deprivation of counsel could have

been raised on direct appeal and therefore should not be considered as a basis

for PCR.    The application of Rule 3:22-3, however, "is not an inflexible

command." State v. Franklin, 184 N.J. 516, 528 (2005). Courts may consider

procedurally non-compliant petitions for PCR.         When the "constitutional

problem presented is of sufficient import to call for relaxation of the rules we

                                                                        A-0330-17T3
                                        6
may consider the question on its merits." Ibid. (quoting State v. Johns, 111 N.J.

Super. 574, 576 (App. Div. 1970)). To penalize defendant for not filing a direct

appeal when he was deprived of his constitutional right to legal counsel would

be unduly harsh, especially when defendant filed his PCR application only three

months after the guilty plea.       Defendant's right to counsel when facing

consequences of magnitude is fundamental. U.S. Const. amend. VI; N.J. Const.

art. I, ¶ 10; State v. Rodriguez, 58 N.J. 281, 295 (1971); State v. Hermanns, 278

N.J.Super. 19, 29-30 (App.Div.1994) (finding a fine is a consequence of

magnitude triggering the right to counsel); R. 7:3-2.

      "Under the two-court rule, appellate courts ordinarily should not

undertake to alter concurrent findings of facts and credibility determinations

made by two lower courts absent a very obvious and exceptional showing of

error." State v. Locurto, 157 N.J. 463, 474 (1999). This issue, however, is not

a matter of the credibility of a witness. The municipal court found at the PCR

argument that, based on the record, defendant waived the right to counsel

"knowingly and intelligently." The Law Division found de novo, based on the

transcript of the municipal proceedings, that defendant "knowingly and

voluntarily waived his right to counsel . . . ."




                                                                        A-0330-17T3
                                         7
      We are bound to uphold the Law Division's findings if supported by

sufficient credible evidence in the record. State v. Reece, 222 N.J. 154, 166

(2015). "Occasionally, however, a trial court's findings may be so clearly

mistaken 'that the interests of justice demand intervention and correction.'" State

v. Kuropchak, 221 N.J. 368, 383 (2015) (quoting State v. Johnson, 42 N.J. 146,

162 (1964)). And “a reviewing court owes no deference to the trial court in

deciding matters of law.” State v. Mann, 203 N.J. 328, 337 (2010).

      Defendant gave up his right to counsel before the possible sanctions were

explained to him on the record, and without a discussion of the benefits of

counsel, or his right to appointed counsel if indigent. Because the record does

not support the finding that defendant, facing consequences of magnitude,

knowingly and voluntarily waived his right to counsel in municipal court, we

reverse and remand for further proceedings consistent with this opinion. We do

not retain jurisdiction.

      Reversed.




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