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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5352-07T45352-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELIZABETH L. WALTON,
Defendant-Appellant.
Submitted April 21, 2009 - Decided
Before Judges Wefing and Yannotti.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County,
Municipal Appeal No. 29-08.
Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel; Mr. Levow
and Michael B. Mankowski, on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J.
Lipari, Assistant County Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Elizabeth L. Walton appeals from a judgment entered by the trial court on June 6, 2008, denying her
petition for post-conviction relief. For the reasons that follow, we affirm.
This appeal arises from the following facts. On October 12, 2006, defendant was arrested and charged with driving
while intoxicated (DWI), reckless driving and failure to maintain lane. On January 8, 2007, defendant pled guilty to
the DWI charge. The other charges were dismissed on the motion of the municipal prosecutor.
The municipal court informed defendant of the sentence that would be imposed by reason of her DWI conviction.
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a5352-07.opn.html
Defendant's driving privileges would be suspended for seven months. She would be fined $306 and required to
spend twelve hours at a Intoxicated Drivers Resource Center. In addition, the court would impose a DWI surcharge,
a Violent Crimes Compensation Board assessment, and an assessment for the Safe Neighborhood Services Fund.
Defendant also would be required to pay court costs.
The municipal court stayed the sentence pending the Supreme Court's decision regarding the use of results from
the Alcotest breathalyzer testing systems in DWI matters. See State v. Chun, 194 N.J. 54, 67-68 (2008) (noting that
the matter had been remanded to a Special Master in January 2006 and the sentences of all first-time DWI offenders
were stayed if their cases involved the use of Alcotest results). The municipal court informed defendant that once
the Supreme Court decided Chun, she would "have to come back . . . and resolve everything on the record[.]"
Thereafter, defendant was charged with DWI on March 21, 2007 and April 14, 2007. In March 2008, shortly before
those matters were scheduled to be heard, defendant filed a petition for post-conviction relief in the municipal
court. Defendant alleged, among other things, that, when she entered her plea on January 8, 2007, she had not
been advised of the enhanced penalties that could be imposed for a second, third or subsequent DWI conviction.
Defendant sought an order barring the imposition of enhanced penalties mandated by N.J.S.A. 39:4-50 in the event
she were to plead guilty or be found guilty of DWI in the pending matters.
The municipal court considered the petition on March 14, 2008. The municipal court denied the petition, noting in
its decision on the record that since defendant's sentence had been stayed, it had anticipated that defendant would
return to court after the stay was lifted. The court stated that, at that time, defendant would have been advised of
the penalties that could be imposed upon a subsequent DWI conviction. The municipal court entered an order
dated March 14, 2008, denying the petition.
Defendant filed a de novo appeal to the Law Division. The court considered the appeal on May 27, 2008, and placed
its decision on the record on that date. The court determined that the enhanced penalties under N.J.S.A. 39:4-50 for
second, third and subsequent DWI convictions must be imposed regardless of whether defendant was advised of
the statutory penalties prior to commiting any subsequent violations of the statute. The court entered an order
dated June 6, 2008, denying defendant's petition. This appeal followed.
On appeal, defendant argues that her right to due process of law was violated because, at the time she entered her
plea to DWI on January 8, 2007, the municipal court failed to provide her with oral or written notice of the penalties
that could be imposed for a subsequent DWI conviction. Defendant therefore maintains that the sentence imposed
as a result of her plea is an illegal sentence that cannot be used for the purpose of imposing enhanced penalties for
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a5352-07.opn.html
a second, third or subsequent DWI conviction. We disagree.
251 N.J. Super. 476 (App. Div. 1991) is instructive. In that case, the defendant was charged with DWI and, before that
charge was resolved, the defendant was charged with and pled guilty to a subsequent DWI charge. Id. at 477. After
the defendant pled guilty to the first charge, he was sentenced to enhanced penalties under N.J.S.A. 39:4-50
because it was his second DWI conviction. Ibid. The defendant argued that he was not subject to the enhanced
penalties as a second offender because, "at the time of the commission of the offense leading to the second
conviction, he had not then received the mandated oral advice by the court of the penalties for a second, third or
subsequent violation." Id. at 478.
We rejected that contention, noting that, were we to accept the defendant's argument, we would be frustrating
"the obvious legislative intent to provide enhanced penalties for each subsequent conviction of the statute." Ibid.
We stated that this interpretation of the statute would "reward the defendant who intentionally or negligently fails
to appear in court and subsequently violates the statute because he could not then be sentenced as a subsequent
offender." Ibid. We accordingly held that
the enhanced penalties of N.J.S.A. 39:4-50 must be imposed at sentencing on entry of a
second drunk-driving conviction, regardless of the order in which the violations
occurred and whether or not defendant had previously been advised orally or in
writing of the penalties for a subsequent violation.
[Id. at 479.]
The principle enunciated in Petrello applies in this case. The penalties mandated by N.J.S.A. 39:4-50 must be
imposed upon any second, third or subsequent conviction under the DWI statute, notwithstanding the fact that,
when defendant entered her plea to the initial charge of DWI, she was not informed of the enhanced penalties that
could be imposed pursuant to the statute.
Affirmed.
(continued)
(continued)
7
A-5352-07T4
May 11, 2009
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