                                NOT FOR PUBLICATION WITHOUT THE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-0612-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEPHEN WALTON,

     Defendant-Appellant.
_________________________

                    Submitted October 22, 2019 – Decided November 1, 2019

                    Before Judges Hoffman and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Municipal Appeal No. 18-
                    008.

                    Terry Webb, attorney for appellant.

                    Fredric M. Knapp, Morris County Prosecutor, attorney
                    for respondent (Kimberly Lauren Tolentino, Assistant
                    Prosecutor, and John McNamara, Jr., Chief Assistant
                    Prosecutor, on the briefs).

PER CURIAM
      Defendant Stephen Walton appeals from a Law Division order, entered

after de novo review of the decision of the Randolph Municipal Court, denying

his application for post-conviction relief (PCR) from a 1985 conviction for

driving while intoxicated (DWI), N.J.S.A. 39:4-50, under State v. Laurick, 120

N.J. 1 (1990). Based on our Supreme Court's recent decision in State v. Patel,

___ N.J. ___, ___ (2019) (slip op.) and the reasons that follow, we vacate the

order under review and remand for further proceedings consistent with Patel.

                                        I.

      On July 15, 1985, police charged defendant with his first DWI. On August

22, 1985, defendant appeared in the Randolph Municipal Court and pleaded

guilty to his first DWI conviction.          At the time, according to his PCR

certification and a limited municipal court record, defendant was not represented

by counsel nor was he advised of his right to counsel, or that counsel would be

provided for him if he could not afford it. In addition, he claims he was indigent

and homeless at the time of his initial DWI proceedings.

      According to his New Jersey Motor Vehicle abstract, defendant was

convicted of a second DWI on December 28, 1988, and a third on January 17,

1990. Following his third DWI conviction, defendant received the mandatory

warnings regarding penalties for any subsequent convictions of DWI.


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                                        2
      On March 11, 2017, police in Morristown charged defendant with a fourth

DWI. This resulted in defendant filing a motion for PCR in the Randolph

Municipal Court, seeking Laurick relief. See Laurick, 120 N.J. at 16. The

motion sought an order directing defendant's first DWI conviction "not be used

in subsequent proceedings as defendant was not represented by counsel." The

municipal court judge denied defendant's motion. Defendant then appealed to

the Law Division.

      On June 26, 2018, the Law Division judge heard argument on defendant's

appeal. The judge first found that Laurick required relaxation of the PCR time-

bar under Rule 7:10-2(b)(2). Next, based on defendant's certification and the

record before him, the judge found defendant did not have counsel present at the

time of his first plea to DWI nor did the court advise defendant of his right to

have counsel appointed for him. The judge also assumed defendant's indigent

status during the 1985 DWI proceedings based on defendant's certification.

Nevertheless, the judge concluded defendant did not satisfy his burden under

applicable law because his petition failed to "set forth any allegation that

defendant had a defense to the DWI charge and the outcome would in all

likelihood have been different if he had representation," citing our decision in

State v. Bringhurst, 401 N.J. Super. 421 (App. Div. 2008).


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                                       3
        Defendant filed a motion for reconsideration, which the Law Division

judge denied on September 27, 2019. This appeal followed.

        Defendant presents the following point of argument:

        POINT I
              [DEFENDANT'S] PRIOR UNCOUNSELED DWI CONVICTION
              SHOULD NOT BE USED TO ENHANCE THE PENALTY OF HIS
              SUBSEQUENT DWI CONVICTION PURSUANT TO LAURICK
              AND LONGSTANDING NEW JERSEY LEGAL TRADITION OF
              PROTECTING THE RIGHTS OF INDIGENTS.

                                         II.

        Defendant argues the Law Division erred by denying his request for PCR. He

contends his certification established his first DWI conviction was secured while he

was indigent and the municipal court did not advise him of – nor did he understand

– the full panoply of rights regarding representation by counsel. While we are

convinced the Law Division judge correctly denied PCR based upon the applicable

law at the time, after his decision, our Supreme Court decided State v. Patel, ___

N.J. ___, ___ (2019) (slip op.) 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



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                                         4
             different had they been given the opportunity to retain
             counsel or secure appointed counsel.

             [Patel, slip op. at 24.]

      In a supplemental brief addressing Patel, the State concedes we should accord

pipeline retroactivity to the Court's decision.         The prospective-retroactive

application inquiry involves two-steps. First, we address "whether the decision

constitutes a 'new rule', that is, whether it 'breaks new ground or imposes a new

obligation on the State or the Federal Government . . . [or] if the result was not

dictated by precedent existing at the time the defendant's conviction became final.'"

State v. Johnson, 166 N.J. 523, 546 (2001) (alteration in original) (quoting State v.

Knight, 145 N.J. 233, 250-51 (1996)). Stated otherwise, a decision is deemed a new

rule for retroactivity purposes if there is a "sudden and generally unanticipated

repudiation of long-standing practice." State v. Afanador, 151 N.J. 41, 58 (1997)

(citing State v. Cupe, 289 N.J. Super. 1, 12 (App. Div. 1996)). Here, the Court's

decision in Patel substantively changed the standard for those seeking relief under

Laurick, therefore, we conclude the decision constitutes a new rule.

      Second, when a decision sets forth a new rule, three factors are considered in

determining whether to give the rule retroactive effect: "'(1) the purpose of the rule

and whether it would be furthered by a retroactive application, (2) the degree of

reliance placed on the old rule by those who administered it, and (3) the effect a

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                                          5
retroactive application would have on the administration of justice.'" Johnson, 166

N.J. at 546-47 (quoting State v. Nash, 64 N.J. 464, 471 (1974)). If the weight of

these factors warrants the retroactive application of a new rule, we can apply it in

one of four ways:

             "(1) purely prospectively . . . to cases in which the
             operative facts arise after the new rule has been
             announced; (2) in future cases and in the case in which the
             rule is announced, but not in any other litigation that is
             pending or has reached final judgment at the time the new
             rule is set forth; (3) pipeline retroactivity, rendering it
             applicable in all future cases, the case in which the rule is
             announced, and any cases still on direct appeal; and (4)
             complete retroactive effect . . . to all cases."

             [State v. Henderson, 208 N.J. 208, 301-02 (2011) (internal
             quotations omitted) (citing Knight, 145 N.J. at 249).]

Because defendant's appeal remained pending when the Court decided Patel,

pipeline retroactivity entitles defendant to have his PCR application decided under

the new standards adopted therein. Since defendant's appeal involves direct review

of an adverse determination of a Laurick petition, we decline to address whether

retroactive application to collateral matters is appropriate in every case. See State

v. Dock, 205 N.J. 237, 243 (2011).

      The State now urges this court

             to remand this matter back to the Law Division so that
             the parties may fully now address whether the
             defendant met his burden as now established by Patel

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                                          6
             to demonstrate that (1) he was not advised and did not
             know of his right to appointed counsel, (2) he was
             entitled to the appointment of counsel under the
             applicable financial means test, R. 7:3-2(b), and (3) had
             he been properly informed of his rights, he would have
             accepted appointed counsel.

       Defendant's supplemental brief requests that we reverse the decision of the

Law Division and grant Laurick relief, because defendant already established his

burden under Patel. However, since the Law Division judge assumed, for the

purpose of his decision, that defendant had demonstrated his indigent status, we

agree with the State that a remand to the Law Division is appropriate so that the

parties can fully address all relevant issues with the guidance provided by the Court

in Patel.

       Vacated and remanded. We do not retain jurisdiction.




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