NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3997-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LINDSEY M. KRAKOWIAK,
Defendant-Appellant.
Argued May 5, 2025 – Decided May 16, 2025
Before Judges Sabatino, Berdote Byrne and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 09-05- 24.
Keith G. Napolitano Jr. argued the cause for appellant (Levow DWI Law, PC, attorneys; Evan M. Levow, of counsel and on the brief; Keith G. Napolitano Jr., on the brief).
Jonathan E. McMeen, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Sahil K. Kabse, Acting Sussex County Prosecutor, attorney; Jonathan E. McMeen, of counsel and on the brief). PER CURIAM
Defendant Lindsey M. Krakowiak, who pled guilty in 2014 to driving
while intoxicated ("DWI"), appeals the Law Division's 2024 denial of her
petition for post-conviction relief ("PCR"). She claims she was not properly
advised in the 2014 proceeding of the enhanced penalties for a future DWI
conviction. We affirm.
In December 2013, defendant was charged with a DWI, N.J.S.A. 39:4-50.
Defendant was represented by counsel and entered into a plea agreement with
the State. After pleading guilty, she was sentenced to a two-year license
revocation, forty-eight hours in the Intoxicated Driver Resource Center, thirty
days of community service, and assessments and miscellaneous fees. She was
also required to install an ignition interlock device for one year. No appeal was
filed, and no PCR proceedings were brought until the present matter.
More than a decade after her conviction, in February 2024, defendant
brought a PCR petition asserting that she was not advised by counsel nor orally
by the court of the enhanced penalties for any subsequent DWI violations at the
time of her conviction, as required under N.J.S.A. 39:4-50(c). She therefore
sought not to be exposed to any enhanced penalties for a subsequent DWI.
A-3997-23 2 In April 2024, the PCR application was heard in the municipal court. The
municipal court noted that the judge who initially heard the matter in 2014 did
not orally advise defendant of the enhanced penalties upon her conviction, but
also noted that defendant had signed a written document in which she
acknowledged receiving this necessary information.
In May 2024, the municipal court denied the PCR petition, explaining that
defendant, in addition to receiving written notice, "was represented by
competent counsel and arraigned . . . at which point she was advised of her
constitutional rights and the penalties associated with a DWI."
Subsequently in May 2024, defendant appealed the municipal court's PCR
ruling to the Law Division.
In August 2024, the Law Division judge denied the municipal appeal. The
court found that the PCR application was procedurally barred under the five-
year limit of Rule 7:10-2(b)(2) and explained "[t]here's nothing under [State
v. ]Laurick[, 120 N.J. 1 (1990)] [1] or [State v. ]Petrello[, 251 N.J. Super. 476,
1 Laurick, 120 N.J. at 13, held that "an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty. In the context of repeat DWI offenses, this means that the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the
A-3997-23 3 479 (App. Div. 1991)][2] that would have entitled [defendant] to an extension."
The court also noted that there is "nothing in our Constitution that entitles a
defendant to any constitutional right involving a written or oral notice of
enhanced potential sentences in the future, and therefore, there is no due process
requirement for prior notice for a future offense." The court observed that
"Petrello is binding on the [c]ourt [and] that enhanced penalties are appropriate
going forward, whether or not the defendant had previously been advised orally
or in writing of the penalties for a subsequent violation."
This appeal followed. On appeal, defendant raises the following point for
our consideration:
POINT ONE
THE HOLDING IN STATE V. PETRELLO MUST BE OVERTURNED AS IT CLEARLY CONFLICTS WITH THE STATUTORY LANGUAGE OF N.J.S.A. 39:4-50(c).
Having considered this argument in light of the record and the applicable
law, we affirm the PCR denial for two main reasons. First, defendant's claim is
time-barred. Second, even if we were to find cause to relax the time bar,
actual period of incarceration imposed may not exceed that for any counseled DWI convictions." 2 We will discuss Petrello in detail below. A-3997-23 4 Petrello, 251 N.J. Super. at 479, is binding precedent that substantively
precludes defendant's claim.
A single statutory provision frames our discussion. N.J.S.A. 39:4-50(c)
provides, in part, that:
The court shall inform the person convicted that if the person is convicted of personally operating a motor vehicle during the period of license suspension imposed pursuant to subsection (a) of this section, the person shall, upon conviction, be subject to the penalties established in R.S.39:3-40. The person convicted shall be informed orally and in writing. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40 . . . Upon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section.
[(Emphasis added).]
In Petrello, 251 N.J. Super. at 476, we ruled that it was "abundantly clear"
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 . . . whether or not
A-3997-23 5 [the] defendant had previously been advised orally or in writing of the penalties
for a subsequent violation." Id. at 479 (emphasis added).
We found the statute supported this reading, as follows:
The basis for this position is the language in the statute providing that the failure of the court to provide defendant with written notice is not a defense to a subsequent charge, coupled with silence of the statute as to the effect of a failure to so notify the defendant orally. . . . [There is] obvious legislative intent to provide enhanced penalties for each subsequent conviction of the statute. [Reading a strict oral notice requirement in the statute would illogically] 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.
[Id. at 478.]
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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-3997-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LINDSEY M. KRAKOWIAK,
Defendant-Appellant.
Argued May 5, 2025 – Decided May 16, 2025
Before Judges Sabatino, Berdote Byrne and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 09-05- 24.
Keith G. Napolitano Jr. argued the cause for appellant (Levow DWI Law, PC, attorneys; Evan M. Levow, of counsel and on the brief; Keith G. Napolitano Jr., on the brief).
Jonathan E. McMeen, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Sahil K. Kabse, Acting Sussex County Prosecutor, attorney; Jonathan E. McMeen, of counsel and on the brief). PER CURIAM
Defendant Lindsey M. Krakowiak, who pled guilty in 2014 to driving
while intoxicated ("DWI"), appeals the Law Division's 2024 denial of her
petition for post-conviction relief ("PCR"). She claims she was not properly
advised in the 2014 proceeding of the enhanced penalties for a future DWI
conviction. We affirm.
In December 2013, defendant was charged with a DWI, N.J.S.A. 39:4-50.
Defendant was represented by counsel and entered into a plea agreement with
the State. After pleading guilty, she was sentenced to a two-year license
revocation, forty-eight hours in the Intoxicated Driver Resource Center, thirty
days of community service, and assessments and miscellaneous fees. She was
also required to install an ignition interlock device for one year. No appeal was
filed, and no PCR proceedings were brought until the present matter.
More than a decade after her conviction, in February 2024, defendant
brought a PCR petition asserting that she was not advised by counsel nor orally
by the court of the enhanced penalties for any subsequent DWI violations at the
time of her conviction, as required under N.J.S.A. 39:4-50(c). She therefore
sought not to be exposed to any enhanced penalties for a subsequent DWI.
A-3997-23 2 In April 2024, the PCR application was heard in the municipal court. The
municipal court noted that the judge who initially heard the matter in 2014 did
not orally advise defendant of the enhanced penalties upon her conviction, but
also noted that defendant had signed a written document in which she
acknowledged receiving this necessary information.
In May 2024, the municipal court denied the PCR petition, explaining that
defendant, in addition to receiving written notice, "was represented by
competent counsel and arraigned . . . at which point she was advised of her
constitutional rights and the penalties associated with a DWI."
Subsequently in May 2024, defendant appealed the municipal court's PCR
ruling to the Law Division.
In August 2024, the Law Division judge denied the municipal appeal. The
court found that the PCR application was procedurally barred under the five-
year limit of Rule 7:10-2(b)(2) and explained "[t]here's nothing under [State
v. ]Laurick[, 120 N.J. 1 (1990)] [1] or [State v. ]Petrello[, 251 N.J. Super. 476,
1 Laurick, 120 N.J. at 13, held that "an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty. In the context of repeat DWI offenses, this means that the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the
A-3997-23 3 479 (App. Div. 1991)][2] that would have entitled [defendant] to an extension."
The court also noted that there is "nothing in our Constitution that entitles a
defendant to any constitutional right involving a written or oral notice of
enhanced potential sentences in the future, and therefore, there is no due process
requirement for prior notice for a future offense." The court observed that
"Petrello is binding on the [c]ourt [and] that enhanced penalties are appropriate
going forward, whether or not the defendant had previously been advised orally
or in writing of the penalties for a subsequent violation."
This appeal followed. On appeal, defendant raises the following point for
our consideration:
POINT ONE
THE HOLDING IN STATE V. PETRELLO MUST BE OVERTURNED AS IT CLEARLY CONFLICTS WITH THE STATUTORY LANGUAGE OF N.J.S.A. 39:4-50(c).
Having considered this argument in light of the record and the applicable
law, we affirm the PCR denial for two main reasons. First, defendant's claim is
time-barred. Second, even if we were to find cause to relax the time bar,
actual period of incarceration imposed may not exceed that for any counseled DWI convictions." 2 We will discuss Petrello in detail below. A-3997-23 4 Petrello, 251 N.J. Super. at 479, is binding precedent that substantively
precludes defendant's claim.
A single statutory provision frames our discussion. N.J.S.A. 39:4-50(c)
provides, in part, that:
The court shall inform the person convicted that if the person is convicted of personally operating a motor vehicle during the period of license suspension imposed pursuant to subsection (a) of this section, the person shall, upon conviction, be subject to the penalties established in R.S.39:3-40. The person convicted shall be informed orally and in writing. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S.39:3-40 . . . Upon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section.
[(Emphasis added).]
In Petrello, 251 N.J. Super. at 476, we ruled that it was "abundantly clear"
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 . . . whether or not
A-3997-23 5 [the] defendant had previously been advised orally or in writing of the penalties
for a subsequent violation." Id. at 479 (emphasis added).
We found the statute supported this reading, as follows:
The basis for this position is the language in the statute providing that the failure of the court to provide defendant with written notice is not a defense to a subsequent charge, coupled with silence of the statute as to the effect of a failure to so notify the defendant orally. . . . [There is] obvious legislative intent to provide enhanced penalties for each subsequent conviction of the statute. [Reading a strict oral notice requirement in the statute would illogically] 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.
[Id. at 478.]
Several published cases have cited Petrello's holding that a municipal
court's failure to give oral notice does not bar imposition of enhanced DWI
penalties. See, e.g., State v. Scudieri, 469 N.J. Super. 507, 527 (App. Div.
2021); State v. Zeikel, 423 N.J. Super. 34, 43-44 (App. Div. 2011); State v.
Nicolai, 287 N.J. Super. 528, 532 (App. Div. 1996). Our jurisprudence
following Petrello establishes that strict compliance with the oral and written
requirements for enhanced penalty notification might be relaxed provided that
the information is imparted to the defendant.
A-3997-23 6 As a threshold matter, we agree with the municipal court and Law
Division that defendant's PCR petition is time-barred under Rule 7:10-2(b)(2).
Rule 7:10-2(b)(2) instructs that a PCR petition "shall not be accepted for filing
more than five years after entry of the judgment of conviction or imposition of
the sentence sought to be attacked, unless it alleges facts showing that the delay
in filing was due to defendant's excusable neglect." Parallel to this municipal
rule is Rule 3:22-12(a)(1)(A), which includes nearly identical language but in
addition to excusable neglect requires that there be "a reasonable probability
that if the defendant's factual assertions were found to be true enforcement of
the time bar would result in a fundamental injustice."
These statutory time limitations can be relaxed for a defendant filing a
petition challenging a custodial enhancement from a prior uncounseled DWI
conviction. State v. Patel, 239 N.J. 424, 447 (2019); see also State v. Bringhurst,
401 N.J. Super. 421 (App. Div. 2008). Relaxation is generally not justified,
however, where a defendant was represented by counsel. Instead, "a defendant
who seeks traditional post-conviction relief to vacate a DWI conviction—as
opposed to Laurick-relief [meaning relief due a prior uncounseled conviction]—
must abide by the general principles governing post-conviction relief and the
A-3997-23 7 five-year time bar in the absence of excusable neglect. R. 7:10-2(b)(2)." Patel,
239 N.J. at 448 (emphasis added).
Applying these principles, defendant has failed to meet her burden of
establishing excusable neglect. See Bringhurst, 401 N.J. Super. at 437. In
reaching this conclusion, we have considered "the extent and cause of the delay,
the prejudice to the State, and the importance of the petitioner's claim in
determining whether there has been an injustice sufficient to relax the time
limits." State v. Weil, 421 N.J. Super. 121, 129 (App. Div. 2011) (citations
reformatted) (internal quotation marks omitted). We have also "balance[d] the
competing interests of the State in achieving 'finality to pleas and the potential
prejudice to the State and detriment to the public interest occasioned'" by the
eleven-year delay with "defendant's entitlement 'to fairness and protection of
basic rights.'" Id. at 133 (citations omitted) (emphasis added).
Here, defendant was given adequate notice in 2014 of the future enhanced
penalties, as implied by the fact that she was counseled and evidenced by (1) her
receipt of written notice upon conviction and, (2) as the Law Division judge
noted, receipt of oral notice at her first appearance before the later plea hearing.
That there was a singular omission in the court's oral provision of notice at
sentencing does not give rise to excusable neglect because she has not met her
A-3997-23 8 burden of showing she was not noticed of the enhanced penalties and has offered
no other reason to justify relaxing the time bar. She was counseled and so is not
entitled to Laurick-type relief, and she was given written notice and so was
sufficiently informed in accordance with Petrello. Nothing here suggests
defendant will suffer an injustice if she is denied her requested relief.
Second, in addition to being time-barred, defendant's claim also fails on
the merits. Defendant's certified allegation that she was not orally informed
upon her conviction nor by her counsel of the enhanced penalties does not entitle
her to her requested relief. Her 2014 DWI conviction that was accompanied by
written notice justifies the application of enhanced penalties for a subsequent
DWI conviction. Petrello, 251 N.J. Super. at 476.
Defendant's argument is further weakened because her previous DWI
conviction was counseled—and even some uncounseled claims have not
warranted relief. See Bringhurst, 401 N.J. Super. at 437 (holding that an
uncounseled prior DWI conviction alone did not justify relaxing the time bar for
bringing a PCR petition as the defendant failed to establish a prima facie case
of injustice requiring relief).
In sum, defendant has not demonstrated a justification to relax the time
bar and afford her relief in this matter, in which the PCR petition was not filed
A-3997-23 9 until over a decade after the underlying conviction. Moreover, her substantive
claims are of no avail under Petrello, which remains the controlling case law.
Affirmed.
A-3997-23 10