1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Charudutt J. Patel (A-13-18) (081069)

Argued April 23, 2019 -- August 7, 2019

ALBIN, J., writing for the Court.

In State v. Laurick, the Court held that a defendant is not subject to an enhanced 

custodial sentence for a second or subsequent driving while intoxicated (DWI) conviction 

if he was not advised of his right to counsel in an earlier DWI proceeding and entered an 

uncounseled guilty plea or went to trial without counsel. 120 N.J. 1, 16-17 (1990). Here, 

the Court considers the applicable standards for both indigent and non-indigent 

defendants who seek relief from an enhanced custodial sentence for a second or 

subsequent DWI based on a claimed denial of notice of the right to counsel in an earlier 

DWI case.

In 2015, defendant Charudutt Patel was charged in two separate instances with 

DWI. Patel had twice before been convicted of DWI. In 1994, he pled guilty to DWI in 

the Piscataway Municipal Court. In 2010, Patel pled guilty to DWI in the North 

Brunswick Municipal Court. Because of the passage of more than ten years between the 

first and second convictions, Patel was sentenced as a first-time offender. See N.J.S.A. 

39:4-50(a). The two 2015 DWI charges exposed Patel to potential third and fourth DWI 

convictions. Patel claimed that his 1994 conviction in the Piscataway Municipal Court 

was uncounseled and therefore could not be used for custodial enhancement purposes 

pursuant to Laurick. Thus, for Laurick purposes, Patel contended that he stood before the 

court as a second-time offender, and he moved to bar the use of his allegedly uncounseled 

1994 DWI guilty plea to enhance any custodial sentence in the pending DWI cases.

In support of his Laurick motion, Patel filed two certifications averring that he was 

indigent at the time of his 1994 DWI guilty plea, that he appeared in the Piscataway 

Municipal Court without an attorney, and that the municipal court judge did not advise 

him of his right to retain one. Patel did retain an attorney in 2010 to represent him on the 

DWI charge in North Brunswick. In 2016, no documents remained in the Piscataway 

Municipal Court to disprove Patel’s certifications.

The court denied Patel’s Laurick motion. Patel filed a motion for reconsideration 

and a third certification to clarify his earlier certifications. He asserted that in 1994, “the 

Judge never advised me that I had a right to retain an attorney nor did he advise me that I 
2

had a right to an appointed attorney at no charge. Therefore, I simply pled guilty.” The 

court denied the motion for reconsideration, stating that in the absence of municipal court 

records, Patel’s certifications were insufficient to prove that he was denied notice of his 

right to counsel twenty-two years earlier and that, in any event, he should have filed his 

Laurick motion in 2010 when he was charged with his second DWI in North Brunswick.

The Law Division denied Patel’s appeal. He then pled guilty to the third DWI 

incident, in exchange for which other charges, including the fourth DWI charge, were

dropped. The Appellate Division affirmed, and the Court granted Patel’s petition for 

certification. 235 N.J. 337 (2018).

HELD: To secure relief from an enhanced custodial sentence for a subsequent DWI 

conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI 

proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he 

known of his right to counsel, he would have retained a lawyer. A defendant contending 

he was indigent must establish that in the earlier uncounseled DWI proceeding (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. 

Because denial of counsel is a structural defect in the proceeding, to secure relief from an 

enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show 

that the outcome would have been different had he been represented. The Court removes 

the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective 

immediately, to provide the following: “(2) Time Limitations. A petition seeking relief 

under this Rule may be filed at any time.” Here, Patel’s unrebutted certifications 

established that his 1994 plea was uncounseled, and he had no obligation to establish that 

he would not have pled guilty or been convicted at trial had he been represented by 

counsel. The Court therefore reverses the judgment of the Appellate Division and 

remands the matter for proceedings consistent with this opinion.

1. The right to the assistance of counsel is guaranteed to all defendants charged with 

DWI. Knowledge of one’s right to counsel is indispensable to the exercise of that right. 

For that reason, all municipal court judges must “inform the defendant of the right to 

retain counsel or, if indigent, to have counsel assigned pursuant to [Rule 7:3-2(b)].” R.

7:3-2(a). The court also must ask the defendant “whether legal representation is desired” 

and record the response “on the complaint.” Ibid. Because of the singular importance of 

the right to counsel, the denial of counsel is deemed a structural defect in the framework 

of the proceedings -- a defect that cannot be quantitatively assessed and therefore defies a 

harmless error analysis. A defendant denied the right to counsel does not have to 

establish prejudice on direct appeal; prejudice is presumed. (pp. 13-16)

2. In Laurick, the Court held that a prior uncounseled DWI conviction could “not be used 

to increase a defendant’s loss of liberty,” but made clear that there was no impediment to 
3

the use of other collateral consequences of the uncounseled conviction, such as a period 

of license suspension or financial penalties. 120 N.J. at 4. The Court set different 

standards of proof for indigent and non-indigent DWI defendants who sought to bar the 

use of the prior uncounseled DWI conviction for custodial sentence enhancement 

purposes. See id. at 11. The non-indigent defendant must show, like indigent 

defendants, a “lack of notice as well as the absence of knowledge of the right to be 

represented by counsel of one’s choosing,” but must also show “that the lack of notice 

otherwise affected the outcome.” Id. at 11, 17. The Court did not explain its reasons for 

placing a higher burden on non-indigent defendants. In State v. Hrycak, the Court 

“reaffirm[ed] [its] holding in Laurick that an uncounseled DWI conviction may not be 

used to enhance the period of incarceration for a subsequent offense,” restated the 

Laurick formula, and again set different standards for indigent and non-indigent 

defendants as to whether prior uncounseled DWI convictions could be used for custodial 

sentence enhancement purposes. 184 N.J. 351, 354, 362-63 (2005). (pp. 16-21)

3. In State v. Schadewald, the Appellate Division altered the tests for indigent and nonindigent defendants challenging prior uncounseled DWI convictions articulated in 

Laurick and Hrycak. See 400 N.J. Super. 350, 354-55 (App. Div. 2007). In that case, the 

Appellate Division held that both indigent and non-indigent defendants must 

“demonstrate that if they had been represented by counsel, they had a defense to the DWI 

charge and the outcome would, in all likelihood, have been different.” Id. at 354. The 

Appellate Division in this case followed the Schadewald paradigm. (pp. 21-22)

4. Schadewald treats equally two classes of similarly situated defendants. That being 

said, Schadewald is in clear conflict with the holdings in both Laurick and Hrycak and 

arguably imposes an unduly burdensome standard by requiring that indigent and nonindigent defendants prove that the outcome would have been different had they been 

represented by counsel. Denial of counsel -- here the denial of the opportunity to retain 

counsel or secure appointed counsel -- is a structural defect in the proceedings, not 

quantifiable by any traditional measurement and therefore not typically susceptible to a 

harmless-error analysis. And when 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 nonindigent 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. (pp. 22-24)

5. The Court adopts the standards reprinted in the HELD paragraph above and notes that 

the defendant has the burden of proving that his prior uncounseled DWI conviction was 

based on the municipal court’s failure to advise him of his right to counsel. If municipal 

courts retain the records mandated by New Jersey court rules and jurisprudence, 

determining whether there was compliance with the notice requirements should not be 

difficult. The defendant must secure the relevant documents to establish a violation of 

the notice requirement. In the absence of documentary evidence or witnesses with a 
4

recollection, the defendant is in a position to do no more than file an affidavit averring 

that he was not advised of his right to counsel and did not know that he could retain 

counsel. The defendant who claims he was indigent at the time of the prior proceeding 

should attest that he was not advised and did not know of his right to appointed counsel, 

and was unable to afford an attorney. In future cases, he also should attach to his 

affidavit or certification documents that would establish his indigence. (pp. 24-25)

6. In the present case, the Piscataway Municipal Court has indicated that no record 

remains of whether Patel’s 1994 DWI guilty plea was uncounseled or whether Patel was 

given notice of his right to counsel and, if indigent, the right to appointed counsel. Patel 

filed three certifications in the Piscataway Municipal Court in support of his application 

to bar the use of his 1994 DWI conviction to enhance his custodial term. Patel has made 

clear in his certifications that had he been advised of his right to counsel, he would have 

sought the assistance of counsel -- preferably appointed counsel -- and, if he had 

resources, retained counsel. Patel’s assertions -- like those of the defendant in Laurick --

have gone unrebutted. See Laurick, 120 N.J. at 6. Patel has satisfied his burden of 

showing that his prior uncounseled DWI conviction was caused by the municipal court’s 

failure to advise him of his right to counsel. (pp. 26-27)

7. The current court rules provide that a petition for Laurick relief “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.” R. 7:10-2(g)(2); R. 7:10-2(b)(2). In the 

present case, Patel submits that he sought relief from his prior uncounseled conviction at 

the only time that it made sense to do so and that therefore any “delay” should be deemed 

excusable. State v. Bringhurst, 401 N.J. Super. 421 (App. Div. 2008), supports this point. 

The Bringhurst court reasoned that because “a second or subsequent [DWI] conviction 

may occur at any time in the future, it would be illogical to apply the Rule’s five-year 

time limit mechanistically to deny all [Laurick] applications.” Id. at 433. That logic 

accords with recommendations by the Municipal Court Practice Committee to allow a 

Laurick petition to be filed at any time. The Court now adopts the language proposed by 

the Committee and amends in part Rule 7:10-2(g), effective immediately, to provide:

“(2) Time Limitations. A petition seeking relief under this 

Rule may be filed at any time.”

(pp. 27-31)

The judgment of the Appellate Division is REVERSED and the matter is 

REMANDED for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, 

FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s 

opinion.
1

SUPREME COURT OF NEW JERSEY

A-13 September Term 2018

081069

State of New Jersey,

Plaintiff-Respondent,

v.

Charudutt J. Patel,

Defendant-Appellant.

On certification to Superior Court, 

Appellate Division.

Argued

April 23, 2019

Decided

August 7, 2019

Victor A. Rotolo argued the cause for appellant (Rotolo 

Karch Law, attorneys; Victor A. Rotolo, E. Carr Cornog, 

III, William E. Reutelhuber, and Matthew R. Marotta, on 

the briefs).

Patrick F. Galdieri, II, Assistant Prosecutor, argued the 

cause for respondent (Andrew C. Carey, Middlesex 

County Prosecutor, attorney; Patrick F. Galdieri, II, of 

counsel and on the briefs).

Lila B. Leonard, Deputy Attorney General, argued the 

cause for amicus curiae Attorney General of New Jersey 

(Gurbir S. Grewal, Attorney General, attorney; Lila B. 

Leonard, of counsel and on the brief).
2

JUSTICE ALBIN delivered the opinion of the Court.

Every defendant charged with driving while intoxicated (DWI), N.J.S.A. 

39:4-50, is guaranteed the right to retain counsel or, if indigent, the right to 

appointed counsel in municipal court.

1 State v. Hrycak, 184 N.J. 351, 362 

(2005). In a DWI case, the guiding hand of counsel is essential to safeguard 

fundamental rights in our adversarial system of justice, such as the right to a 

fair plea or trial proceeding.

To ensure the efficient administration of justice in our municipal courts,

judges are directed to “inform the defendant of the right to retain counsel or, if 

indigent, to have counsel assigned.” R. 7:3-2(a); see also Hrycak, 184 N.J. at 

362. Judges are also required to ask the defendant “whether legal 

representation is desired” and to have the response “recorded on the 

complaint.” R. 7:3-2(a).

Repeat DWI offenders are subject to enhanced custodial sentences, 

license suspensions, and financial penalties. N.J.S.A. 39:4-50(a)(2)-(3). We 

held in State v. Laurick that a defendant is not subject to an enhanced custodial

sentence for a second or subsequent DWI conviction if he was not advised of 

 

1

 “‘Indigent defendant’ means a person who is entitled to be represented by a 

municipal public defender . . . and does not have the present financial ability to 

secure competent legal representation . . . .” N.J.S.A. 2B:24-2.
3

his right to counsel in an earlier DWI proceeding and entered an uncounseled 

guilty plea or went to trial without counsel. 120 N.J. 1, 16-17 (1990). Under 

this special form of relief, the defendant is not relieved of enhanced financial

and administrative penalties. Id. at 16.

Since Laurick, our courts have struggled to establish clear standards for 

both indigent and non-indigent defendants who seek relief from an enhanced 

custodial sentence for a second or subsequent DWI based on a claimed denial 

of notice of the right to counsel in an earlier DWI case. To receive this special 

form of relief from an uncounseled prior DWI conviction, we have imposed 

different standards on indigent and non-indigent DWI defendants. See Hrycak, 

184 N.J. at 363. Only uncounseled non-indigent defendants are required to

show that the outcome would have been different if counsel had been retained. 

Ibid. We can find no justification for such an asymmetrical approach.

The present case provides us with the opportunity to give clearer 

guidance to indigent and non-indigent DWI defendants who face an enhanced 

custodial sentence based on an earlier uncounseled DWI conviction. We now 

hold that to secure relief from an enhanced custodial sentence for a subsequent

DWI conviction, a non-indigent defendant must establish that in the earlier

uncounseled DWI proceeding, (1) he was not advised or did not know of his 

right to counsel and (2) had he known of his right to counsel, he would have 
4

retained a lawyer. A defendant contending he was indigent must establish

that in the earlier uncounseled DWI proceeding (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. Because denial of counsel is a structural defect in the 

proceeding, to secure relief from an enhanced custodial sentence, neither an 

indigent nor a non-indigent defendant must show that the outcome would have 

been different had he been represented.

I.

A.

In 2015, defendant Charudutt Patel was charged in two separate 

instances with DWI -- in Tewksbury Township in January and in Hillsborough 

Township five months later. The assignment judge of the vicinage

consolidated both cases for disposition in the Tewksbury Municipal Court.

Patel had twice before been convicted of DWI. In 1994, he pled guilty 

to DWI in the Piscataway Municipal Court.

2

 As a consequence of his guilty 

 

2 According to a police report, a Piscataway Township patrol officer found 

Patel asleep in his car with the engine running in a restaurant parking lot 

located within 100 feet of a police department drunk-driving checkpoint. In 

Patel’s car were two bags containing four beers. Patel was transported to 

police headquarters, where a breathalyzer test was administered. Two tests
5

plea, his license was suspended for six months, and he was fined $495. In 

2010, Patel pled guilty to DWI in the North Brunswick Municipal Court. 

Because of the passage of more than ten years between the first and second

convictions, Patel was sentenced as a first-time offender to serve twelve hours 

at an Intoxicated Driver Resource Center and fined $764. See N.J.S.A. 39:4-

50(a) (providing that, for sentencing purposes, a second DWI conviction is 

treated as a first DWI conviction if more than ten years have passed between 

the first and second offenses). Additionally, Patel received a three-month 

license suspension.

The two 2015 DWI charges exposed Patel to potential third and fourth 

DWI convictions. For a third and subsequent DWI conviction, Patel faced a 

180-day term of imprisonment, a ten-year license suspension, and significant 

financial and administrative penalties. Patel claimed that his 1994 conviction 

in the Piscataway Municipal Court was uncounseled and therefore could not be 

used for custodial enhancement purposes pursuant to Laurick, 120 N.J. at 4 

(holding that “a prior DWI conviction that was uncounseled in violation of 

court policy may not be used to increase a defendant’s loss of liberty”). Thus, 

 

revealed that Patel’s blood alcohol content (BAC) measured at .13 percent and 

.12 percent.
6

for Laurick purposes, Patel contended that he stood before the Tewksbury

Municipal Court as a second-time offender.

In 2016, Patel filed a Laurick motion in the Piscataway Municipal Court 

to bar the use of his allegedly uncounseled 1994 DWI guilty plea to enhance 

any custodial sentence in the pending DWI cases in the Tewksbury Municipal 

Court. See R. 7:10-2(g)(1) (“A post-conviction petition to obtain relief from 

an enhanced custodial term based on a prior conviction shall be brought in the

court where the prior conviction was entered.”). In support of his Laurick

motion, Patel filed two certifications in which he made the following

averments. At the time of his 1994 DWI guilty plea, Patel was a twenty-eightyear-old recent immigrant from India, having moved to the United States four 

years earlier. He lived with his wife in an apartment, was unemployed, “and 

had no money to . . . hire an attorney.” His wife paid the rent, and they “were 

barely scraping by.” He appeared in the Piscataway Municipal Court without 

an attorney, and the municipal court judge did not advise him of his right to

retain one. Patel did retain an attorney in 2010 to represent him on the DWI 

charge in North Brunswick.

In 2016, no documents remained in the Piscataway Municipal Court to 

disprove Patel’s certifications. In a handwritten note, the municipal court 

administrator advised that “[a]fter 15 years all DWI files are sent for 
7

destruction. No transcripts are available.” Through counsel, Patel asserted to 

the present Piscataway Municipal Court judge that in 1994, without the advice 

of counsel, he “just assumed that he had to plead guilty” to the DWI charge.

The court denied Patel’s Laurick motion. In doing so, it explained that

not only had Patel failed to present a claim of innocence to the 1994 DWI 

charge, but also that the State would suffer undue prejudice because of the age 

of the case and the destruction of documents. The court added that there 

remained several unknowns: whether Patel consulted with an attorney and 

whether the 1994 municipal court judge advised him of his right to counsel.

Patel filed a motion for reconsideration and a third certification to clarify

his earlier certifications. He asserted that in 1994, “the Judge never advised 

me that I had a right to retain an attorney nor did he advise me that I had a 

right to an appointed attorney at no charge. Therefore, I simply pled guilty.” 

Patel added, “Had I known that I could have had an attorney appointed for me 

at no charge I would have taken advantage of that option.”

The court denied the motion for reconsideration, stating that in the 

absence of municipal court records, Patel’s certifications were insufficient to

prove that he was denied notice of his right to counsel twenty-two years earlier 

and that, in any event, he should have filed his Laurick motion in 2010 when 

he was charged with his second DWI in North Brunswick.
8

B.

Patel appealed to the Middlesex County, Law Division. In denying the

appeal, the court stated that Patel was not entitled to relief because his 

certifications did not assert that he had a viable defense to the 1994 DWI 

charge and because he did not establish that the outcome would have been 

different if he had the benefit of counsel.

C.

In December 2016, Patel pled guilty in Tewksbury Municipal Court to 

the Tewksbury DWI charge. The court sentenced Patel, as a third-time 

offender, to 180 days in the county jail, suspended his license for ten years, 

and imposed the requisite fines and administrative penalties. See N.J.S.A. 

39:4-50(a)(3). The remaining charges, including the Hillsborough DWI 

charge, were dismissed. The court stayed the custodial portion of the sentence 

pending Patel’s appeal.

D.

The Appellate Division affirmed, finding that the Law Division

“correctly determined [that Patel] failed to sustain his burden of establishing 

entitlement to Laurick relief.” The court held that Patel had the obligation of 

“showing he had a defense to the DWI charge or in all likelihood the result 
9

would have been different if he had counsel for his 1994 DWI proceeding,” 

citing State v. Schadewald, 400 N.J. Super. 350, 354-55 (App. Div. 2007). It 

concluded that Patel’s certifications were “bereft of any evidence” 

demonstrating “that the result of the 1994 DWI proceeding would have been 

different if he had received proper notice of his right to counsel.” Having 

rejected Patel’s appeal on that basis, the Appellate Division, relying on Rule

7:10-2(g)(2)’s five-year bar, declined to address “whether [Patel’s] 

certifications [were] sufficient to establish he was indigent at the time of the 

1994 DWI proceeding, or whether [Patel] sufficiently demonstrated excusable 

neglect under Rule 7:10-2(b)(2) to permit the filing of his petition more than

sixteen years after the Rule’s five-year time limit.”

E.

We granted Patel’s petition for certification. 235 N.J. 337 (2018). We

also granted the New Jersey Attorney General’s motion to participate as 

amicus curiae.

II.

A.

Patel contends that, under Laurick and Hrycak, a defendant challenging 

an enhanced custodial sentence to a DWI conviction based on a prior 

uncounseled DWI conviction, secured while he was indigent, need prove only 
10

that he was not given notice of his right to counsel and to the assignment of 

counsel if unable to afford an attorney. He submits that an indigent defendant 

is not required to establish that “he had a defense to the DWI charge, and that 

the outcome would have in all likelihood been different,” citing Laurick and 

Hrycak. Given the precedents of this Court, he argues that the decisions by the 

Appellate Division and Law Division in this case, and the Appellate Division 

decisions in Schadewald, 400 N.J. Super. at 354-55, and State v. Bringhurst, 

401 N.J. Super. 421, 435 (App. Div. 2008), are in error.

Patel submits, moreover, that he had no reason to pursue a Laurick

petition in 2010 -- the time of his second DWI conviction -- because the 

passage of more than ten years between his first and second DWI convictions 

allowed him to be sentenced as a first-time offender. He also notes that by 

2010, the Piscataway Municipal Court’s records had already been destroyed

pursuant to the judiciary’s retention policy. Last, he argues that the five-year 

time bar of Rule 7:10-2(g)(2) -- a rule adopted in 2009 -- should not apply 

retroactively to his uncounseled 1994 DWI conviction because Laurick, 

decided in 1990, placed no time constraints on relief from an improper 

sentence enhancement.

B.
11

The State acknowledges that, under Laurick, the standard for obtaining

relief is less onerous for indigent defendants than non-indigent defendants 

because the indigent defendant need only prove that he did not receive notice 

of the right to assignment of counsel, he was not appointed assigned counsel, 

and he did not waive the right to counsel, citing Hrycak, 184 N.J. at 363. 

Nevertheless, the State maintains that Patel did not make a sufficient showing 

to the Piscataway Municipal Court that he was indigent when he entered his 

1994 guilty plea. The State points out that an “indigent defendant” entitled to 

the representation by a municipal public defender is one who “does not have 

the present financial ability to secure competent legal representation,” quoting 

N.J.S.A. 2B:24-2. According to the State, Patel’s claims of indigence were

“self-serving, unsubstantiated, and conclusory” because he did not submit 

relevant financial documents, such as “tax returns, unemployment records, and 

bank statements.”

The State contends that the absence of adequate proof of indigence 

required Patel to satisfy the additional burden of showing that “his 1994 guilty 

plea wrought a miscarriage of justice,” and that he failed to do so. In the 

State’s view, “[t]he police records demonstrate that even if [Patel] were 

represented by counsel, he still would have been found guilty of DWI.”
12

Last, the State argues that Patel failed to demonstrate excusable neglect 

or some other justifiable reason for relaxing the five-year time bar of Rules

7:10-2(g)(2) and (b)(2), and therefore he is foreclosed from attacking a twentytwo-year-old municipal court conviction.

C.

Disagreeing with both Patel and the State, the Attorney General claims

that Laurick did not impose different requirements for relief for indigent and 

non-indigent defendants. The Attorney General posits that Laurick

“recognized that both indigent and non-indigent defendants must show that the

lack of notice of their respective rights resulted in a miscarriage of justice.” 

(emphasis added). In the Attorney General’s view, relieving indigent 

defendants but not non-indigent defendants of the requirement of showing a 

miscarriage of justice “would deprive non-indigent defendants of equal 

protection of the law, and would thus be untenable.” Otherwise, the Attorney 

General concurs with the arguments advanced by the State that Patel is not 

entitled to Laurick relief.

III.

A.

The parties and courts in this case have varied interpretations of the 

governing case law. We review issues of law de novo and owe no deference to 
13

the interpretive conclusions of either the Appellate Division or Law Division. 

State v. Quaker Valley Farms, LLC, 235 N.J. 37, 55 (2018). Factual findings 

made by the trial court are entitled to deference provided they are supported by 

“sufficient credible evidence in the record.” Willingboro Mall, Ltd. v. 240/242 

Franklin Ave., LLC, 215 N.J. 242, 253 (2013) (quoting Brunson v. Affinity 

Fed. Credit Union, 199 N.J. 381, 397 (2009)). Only when those findings are 

“clearly mistaken” will we intervene in the interests of justice. State v. S.S., 

229 N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 425 (2014)).

B.

The right to the assistance of counsel is guaranteed to all defendants 

charged with DWI. State v. Stein, 225 N.J. 582, 594 (2016); R. 7:3-2(a). 

Indigent defendants facing imprisonment or other consequences of magnitude

are also guaranteed the appointment of counsel without cost “as a matter of 

simple justice.” Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971); see also R.

7:3-2(b). We granted that right to indigent defendants through “the exercise of 

[our] supervisory jurisdiction over procedures in New Jersey courts.” Laurick, 

120 N.J. at 8 (citing Rodriguez, 58 N.J. at 294); see also N.J. Const. art. VI, § 

2, ¶ 3 (“The Supreme Court shall make rules governing the administration of 

all courts in the State and, subject to the law, the practice and procedure in all 

such courts.”). In doing so, we recognized that “considerations of fairness 
14

dictate that appropriate steps be taken to protect unrepresented indigent 

defendants against injustices which may result from their inability to cope 

fairly with municipal court charges against them.” Rodriguez, 58 N.J. at 294.

Knowledge of one’s right to counsel is indispensable to the exercise of 

that right. For that reason, all municipal court judges must “inform the

defendant of the right to retain counsel or, if indigent, to have counsel assigned 

pursuant to [Rule 7:3-2(b)].” R. 7:3-2(a). The court also must ask the 

defendant “whether legal representation is desired” and record the response 

“on the complaint.” Ibid. 

The assistance of counsel is essential to a fair proceeding in our 

adversarial system of justice. See United States v. Gonzalez-Lopez, 548 U.S. 

140, 147 (2006) (“[R]epresentation by counsel ‘is critical to the ability of the 

adversarial system to produce just results.’” (quoting Strickland v. 

Washington, 466 U.S. 668, 685 (1984))). “[T]he untrained defendant is in no 

position to defend himself . . . even where there are no complexities,” 

Rodriguez, 58 N.J. at 295, and “[w]ithout the guiding hand of counsel, an 

innocent defendant may lose his freedom because he does not know how to 

establish his innocence,” State v. Sugar, 84 N.J. 1, 16 (1980). Because of the 

singular importance of the right to counsel, the denial of counsel is deemed a 

structural defect in the framework of the proceedings -- a defect that cannot be 
15

quantitatively assessed and therefore defies a harmless error analysis. 

Gonzalez-Lopez, 548 U.S. at 148-49; see also State v. Gonzalez, 114 N.J. 592, 

608 (1989) (holding on direct appeal that the defendant’s “conviction must be 

reversed . . . because the defendant was not adequately advised of his right to 

counsel”). A defendant denied the right to counsel does not have to establish 

prejudice on direct appeal; prejudice is presumed. See Gonzalez-Lopez, 548 

U.S. at 148-49; see also State v. McCombs, 81 N.J. 373, 375 (1979).

C.

Defendants charged with DWI are guaranteed the right to counsel 

because the penalties for a DWI conviction constitute consequences of 

magnitude. See Rodriguez, 58 N.J. at 295. Progressive penalties apply to 

defendants convicted of a second and subsequent DWI violation. See N.J.S.A. 

39:4-50(a)(1)-(3). A first-time offender is subject to a period of license 

suspension of up to a year depending in part on his BAC level, a potential term 

of imprisonment of thirty days, a fine between $250 and $500, and other 

penalties. N.J.S.A. 39:4-50(a)(1). A second-time offender is subject to a 

period of license suspension of two years, a term of imprisonment of two to 

ninety days, a fine between $500 and $1000, and other penalties. N.J.S.A. 

39:4-50(a)(2). A third-time or subsequent offender is subject to a period of 

license suspension of ten years, a mandatory term of imprisonment of 180 days 
16

(which may be lowered by as many as 90 days served in an inpatient drug or 

alcohol rehabilitation program), a fine of $1000, and other penalties. N.J.S.A. 

39:4-50(a)(3).

D.

In light of our discussion of the importance of the right to counsel and 

the severity of progressive DWI penalties, we turn to the central cases --

Laurick and Hrycak -- that govern enhanced custodial sentences based on prior 

uncounseled convictions.

In Laurick, the issue was whether a defendant convicted of a second or 

subsequent DWI could have his sentence enhanced by an earlier uncounseled 

DWI conviction. 120 N.J. at 4. In that case, we provided a limited form of 

post-conviction relief to those defendants who had not waived their right to 

counsel and who were not informed by the court of their right to retain counsel 

or, if indigent, of their right to assigned counsel without cost. Id. at 4, 16. We 

held that a prior uncounseled DWI conviction could “not be used to increase a

defendant’s loss of liberty.” Id. at 4. We made clear, however, that under this 

special form of post-conviction relief there was no impediment to the use of

other collateral consequences of the uncounseled conviction, such as a period 

of license suspension or financial penalties. Ibid. The remedy for those other 

collateral consequences, we stated, “should follow our usual principles for 
17

affording post-conviction relief” -- the “showing of a denial of fundamental 

justice or other miscarriage of justice.” Id. at 4-5.

In Laurick, the defendant pled guilty to a second DWI in municipal 

court. Id. at 6. He claimed, however, that five years earlier, during the 

proceeding when he pled guilty to the first DWI, “he had been unrepresented 

by counsel, unaware of his right to counsel, and uninformed of that right by 

the previous judge.” Ibid. No proofs were presented to rebut defendant’s 

claim that the earlier “court had failed to advise him of the right to appointed 

or retained counsel.” Ibid. We held that, on the record before us, the 

defendant could only be sentenced to a custodial term as a first-time offender 

but was subject to all other collateral consequences as a second-time offender.3

Id. at 17.

 

3 The 2007-2009 Report of the Municipal Court Practice Committee explained 

the distinction between Laurick collateral relief and traditional post-conviction 

relief:

The nature of the relief sought in a Laurick application 

is qualitatively different than the relief sought in a 

conventional post-conviction relief proceeding. In the 

latter category of applications, the relief sought is a 

vacating of the conviction. In a Laurick application, 

the conviction is left in place, however it may not be 

used to enhance the custodial component of a sentence 

related to a future conviction for a violation of the same 

statute.
18

In reaching that determination, the Court set different standards of proof 

for indigent and non-indigent DWI defendants who sought to bar the use of the

prior uncounseled DWI conviction for custodial sentence enhancement 

purposes. See id. at 11. The indigent defendant need only show that his 

earlier DWI guilty plea “was a product of an absence of notice of the right to 

assignment of counsel and non-assignment of such counsel without waiver.” 

Ibid. In contrast, the non-indigent defendant must show “lack of notice as well 

as the absence of knowledge of the right to be represented by counsel of one’s 

choosing” and “show in addition that the lack of notice otherwise affected the 

outcome.” Id. at 11, 17. The Court did not explain its reasons for placing a 

higher burden on non-indigent defendants.

Importantly, going forward, to ensure that evidence of right-to-counsel 

notices would be retained by municipal courts, the Court directed that “the 

hard-copy judgment of conviction in DWI cases should contain a notation by 

the municipal court that the Rodriguez notice has been given and counsel 

waived.” Id. at 12. The Court, moreover, indicated that the “notation will 

 

[Mun. Ct. Practice Comm., 2007-2009 Report 27 

(2009).]

In Laurick, we did not bar the defendant from seeking full post-conviction 

relief from the court of original jurisdiction in the earlier DWI case. 120 N.J. 

at 17.
19

have presumptive correctness.”

4

 Ibid. Last, the Court noted that “postconviction relief from the effect of prior convictions should normally be 

sought in the court of original jurisdiction.” Id. at 17.

The right-to-counsel principles articulated in Laurick were essentially 

grounded in state law, particularly the landmark decision in Rodriguez. Id. at 

7-8. We discoursed, however, on the plurality decision in Baldasar v. Illinois,

446 U.S. 222 (1980), in which four members of the United States Supreme 

Court held that an uncounseled misdemeanor conviction could not be used to

enhance punishment by “convert[ing] a subsequent misdemeanor into a felony 

with a prison term.” Laurick, 120 N.J. at 14 (alteration in original) (quoting 

Baldasar, 446 U.S. at 222 (1980)). We expressed “genuine doubt” about the 

future course that the United States Supreme Court might take in this area, but 

decided to adopt the “core value” of the Baldasar plurality opinion -- “that an 

uncounseled conviction without waiver of the right to counsel is invalid for the 

purpose of increasing a defendant’s loss of liberty.” Id. at 16.

In Nichols v. United States, 511 U.S. 738 (1994), the United States 

Supreme Court overruled the plurality opinion in Baldasar and “held that an 

 

4 The Court also expressed hope that, in the future, the judiciary’s 

computerized records would “permit storage of daily docket information for 

longer periods of time without space or storage problems” and that those 

records could be readily retrieved. Ibid.
20

uncounseled prior conviction ‘may be relied upon to enhance the sentence for 

a subsequent offense, even though that sentence entails imprisonment.’” See

Hrycak, 184 N.J. at 354 (quoting Nichols, 511 U.S. at 746-47). In light of the 

Nichols decision, we granted certification in Hrycak “to reconsider our 

decision in Laurick.” Ibid.

In Hrycak, we “reaffirm[ed] our holding in Laurick that an uncounseled 

DWI conviction may not be used to enhance the period of incarceration for a 

subsequent offense.” Ibid. (citing Laurick, 120 N.J. at 16). We explained that

-- “wholly apart from the rationale in Baldasar” -- our decision in Laurick

relied on Rodriguez, which “emphasized our long held view that criminal 

defendants have a right to counsel.” Id. at 360 (citing Rodriguez, 58 N.J. at 

285).

We restated the Laurick formula in Hrycak and again set different 

standards for indigent and non-indigent defendants when determining whether

prior uncounseled DWI convictions could be used for custodial sentence

enhancement purposes. Id. at 363. According to Hrycak, the threshold issue 

for both indigent and non-indigent defendants is whether they satisfied their 

burden of proving that they were not advised of their right to counsel in the 

prior DWI proceeding. Ibid. The defendant who was indigent at the time of 

the prior proceeding must establish that the uncounseled “DWI conviction was 
21

a product of an absence of notice of the right to assignment of counsel and 

non-assignment of such counsel without waiver.” Ibid. (quoting Laurick, 120 

N.J. at 11). In contrast, the defendant who was non-indigent must show not 

only that his prior uncounseled DWI conviction was based on a “lack of notice 

as well as the absence of knowledge of the right to be represented by counsel 

of one’s choosing,” but also “that the absence of such counsel had an impact 

on the guilt or innocence of the accused or otherwise ‘wrought a miscarriage 

of justice for the individual defendant.’” Ibid. (quoting Laurick, 120 N.J. at 

11).

E.

In Schadewald, the Appellate Division altered the tests for indigent and 

non-indigent defendants challenging prior uncounseled DWI convictions 

articulated in Laurick and Hrycak. See 400 N.J. Super. at 354-55. In that 

case, the Appellate Division held that both indigent and non-indigent 

defendants must “demonstrate that if they had been represented by counsel, 

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

likelihood, have been different.” Id. at 354; accord Bringhurst, 401 N.J. Super. 

at 435. To prove “that the outcome would have been different if the defendant 

had the benefit of counsel before pleading guilty,” the Appellate Division 

suggested that the defendant could submit “[p]olice reports, witness 
22

statements, insurance investigations and the like.” Schadewald, 400 N.J. 

Super. at 354-55. The Appellate Division in this case followed the 

Schadewald paradigm.

Schadewald treats equally two classes of similarly situated defendants. 

That being said, Schadewald is in clear conflict with the holdings in both 

Laurick and Hrycak.

The Attorney General has questioned whether treating indigent 

defendants differently from non-indigent defendants raises equal protection 

concerns. That is a legitimate question when there is no justifiable basis for 

the different classifications. The Attorney General urges us to follow 

Schadewald. But Schadewald arguably imposes an unduly burdensome 

standard by requiring that indigent and non-indigent defendants prove that the 

outcome would have been different had they been represented by counsel.

As discussed earlier, the denial of counsel -- here the denial of the 

opportunity to retain counsel or secure appointed counsel -- is a structural 

defect in the proceedings, not quantifiable by any traditional measurement and 

therefore not typically susceptible to a harmless-error analysis. The role of 

counsel is to ensure the reliability of the proceedings and a just outcome. See

Hrycak, 184 N.J. at 363 (“We are convinced that a prior uncounseled DWI 

conviction of an indigent is not sufficiently reliable to permit increased jail 
23

sanctions under the enhancement statute.”); see also State v. Hayes, 205 N.J. 

522, 541 (2011) (“Where a defendant in practice has been denied the right to 

be represented by counsel . . . we can have no confidence in the uncounseled 

proceedings below.”).

Additionally, attempting to determine whether the defendant could have 

presented a viable defense had he been represented by counsel cannot be 

discerned merely by reviewing police reports or witness statements. In the 

typical DWI case, an attorney will consider whether the police officer had

reasonable suspicion to conduct the motor vehicle stop, see State v. Amelio, 

197 N.J. 207, 210-11 (2008); whether the officer had probable cause to obtain

a breath sample, see State v. Chun, 194 N.J. 54, 79 (2008); whether the 

breathalyzer result was reliable, see State v. Kuropchak, 221 N.J. 368, 384-85 

(2015); and whether a video or audio recording of the stop differs from the 

officer’s police report, see Stein, 225 N.J. at 596.

What defense might have been mounted had Patel been represented in 

1994 is a matter of sheer speculation at this point. Our jurisprudence, 

however, tells us that the assistance of counsel is vital to an adversarial 

proceeding and the reliability of the outcome. See Hayes, 205 N.J. at 541; 

Hrycak, 184 N.J. at 363.
24

For these reasons, when 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.

IV.

A.

We now clarify the standard for indigent and non-indigent defendants 

who challenge a custodial enhancement from a prior uncounseled DWI 

conviction. A defendant who was non-indigent at the time of the earlier 

uncounseled DWI proceeding must establish that (1) he was not advised or did 

not know of his right to counsel and (2) had he known of his right to counsel, 

he would have retained a lawyer. A defendant contending he was indigent in 

the earlier uncounseled DWI proceeding must establish 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.

The defendant has the burden of proving that his prior uncounseled DWI 

conviction was based on the municipal court’s failure to advise him of his right 
25

to counsel. If municipal courts retain the records mandated by our rules and 

jurisprudence, determining whether there was compliance with the notice 

requirements should not be difficult. See R. 7:3-2(a) (“The defendant shall be 

specifically asked whether legal representation is desired and defendant’s 

response shall be recorded on the complaint.”); Laurick, 120 N.J. at 12 (“[T]he 

hard-copy judgment of conviction in DWI cases should contain a notation by 

the municipal court that the Rodriguez notice has been given and counsel 

waived.”).

The defendant must secure the relevant court documents or the

electronic recording or transcript of the proceeding to establish a violation of 

the notice requirement. In the absence of documentary evidence or witnesses 

with a recollection, the defendant is in a position to do no more than file an 

affidavit or certification averring that he was not advised of his right to 

counsel and did not know that he could retain counsel. The defendant who 

claims he was indigent at the time of the prior proceeding should attest that he 

was not advised and did not know of his right to appointed counsel, and was 

unable to afford an attorney. In future cases, he also should attach to his

affidavit or certification relevant documents -- bank statements or other 

financial documents that would establish his indigence in accordance with the 

standards set forth in N.J.S.A. 2A:158A-14 and N.J.S.A. 2B:24-9.
26

B.

In the present case, the Piscataway Municipal Court has indicated that no 

record remains of whether Patel’s 1994 DWI guilty plea was uncounseled or 

whether Patel was given notice of his right to counsel and, if indigent, the right 

to appointed counsel. Patel filed three certifications in the Piscataway 

Municipal Court in support of his application to bar the use of his 1994 DWI 

conviction to enhance his custodial term. He attested that the court never 

advised him of his right to retain an attorney or, if indigent, his right to an 

appointed attorney at no charge; that had he known that he had the right to an 

appointed attorney, he “would have taken advantage of that option”; that at the 

time he appeared in court he was unemployed, “barely scraping by,” and had 

no money to hire a lawyer; and that he entered his guilty plea without the 

assistance of counsel.

Patel has made clear in his certifications that had he been advised of his 

right to counsel, he would have sought the assistance of counsel -- preferably 

appointed counsel -- and, if he had resources, retained counsel. Patel’s 

assertions -- like those of the defendant in Laurick -- have gone unrebutted. 

See Laurick, 120 N.J. at 6. Patel has satisfied his burden of showing that his 

prior uncounseled DWI conviction was caused by the municipal court’s failure 

to advise him of his right to counsel.
27

Still, Patel must vault the five-year time bar imposed by Rules 7:10-

2(g)(2) and (b)(2) for a “Petition to Obtain Relief from an Enhanced Custodial 

Term Based on a Prior Conviction.” See R. 7:10-2(g).

V.

Our current court rules provide that a petition for Laurick relief “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.” R. 7:10-2(g)(2); R. 7:10-2(b)(2).

In the present case, Patel submits that he sought relief from his prior 

uncounseled conviction at the only time that it made sense to do so. When 

Patel pled guilty to DWI in 2010 in the North Brunswick Municipal Court -- a 

second DWI conviction -- he was sentenced as a first-time offender because 

his first DWI conviction occurred more than ten years earlier. See N.J.S.A. 

39:4-50(a). Patel would not have received any benefit then by challenging his 

1994 uncounseled conviction in the Piscataway Municipal Court. Even if 

successful, he still would have been sentenced as a first-time offender in the 

North Brunswick Municipal Court. Indeed, the Piscataway Municipal Court 

might have wondered why Patel was wasting his time and the court’s resources 

by bringing a meaningless challenge. Additionally, had Patel sought 
28

information about his uncounseled conviction, he probably would have learned 

that relevant information had already had been purged from the municipal 

court records due to the judiciary’s retention policy. See State of New Jersey 

Judiciary, Recs. Retention Schedule (Mar. 16, 2001).

In short, Patel filed his petition for Laurick relief when it mattered and 

therefore any “delay” should be deemed excusable.

Bringhurst supports this point. There the Appellate Division observed 

that “given the nature of a Laurick petition, a defendant may routinely 

demonstrate that any petition filed beyond the five-year limit was not the 

product of neglect or some other disqualifying reason, and thus, should not be 

automatically time-barred.” 401 N.J. Super. at 424. As the Bringhurst court 

recognized, “[t]he fact that a prior DWI conviction may have been 

uncounseled would, in and of itself, be of no moment unless and until there 

was a subsequent DWI conviction.” Id. at 432-33. It reasoned that because “a 

second or subsequent [DWI] conviction may occur at any time in the future, it 

would be illogical to apply the Rule’s five-year time limit mechanistically to 

deny all [Laurick] applications.” Id. at 433. The Appellate Division 

concluded that it could “discern no reason why the Supreme Court would have 

explicitly recognized the Laurick-styled PCR petition on the one hand, and at 
29

the same time deny its relief where ‘the extent and cause of the delay’ was not 

occasioned by the defendant.” Ibid.

Importantly, the Bringhurst court referenced the 2004-2007 Report of 

the Supreme Court’s Committee on Municipal Court Practice, which 

recommended a rule that would have allowed a Laurick petition to be filed at 

any time. Id. at 430.

In its 2007-2009 Report, the Municipal Court Practice Committee again

recommended a rule without a five-year time limit for Laurick petitions, citing 

Bringhurst. Mun. Ct. Practice Comm., 2007-2009 Report 27 (2009). As the 

Committee explained, a defendant has “no grounds for filing [a Laurick]

petition . . . unless or until [he] has been arrested for a [second or subsequent] 

violation of the [DWI] statute.” Ibid.

We are persuaded that there is wisdom to the previous recommendations 

of the Municipal Court Practice Committee, as well as the reasoning of 

Bringhurst, for the removal of the five-year limitation on Laurick petitions. 

We therefore accept the recommendation in the Committee’s 2007-2009 

Report for a rule eliminating any time limitation for filing a Laurick petition. 

We adopt the language originally proposed by the Committee and now amend 

in part Rule 7:10-2(g) to provide the following: “(2) Time Limitations. A 

petition seeking relief under this Rule may be filed at any time.” Typically, 
30

we would refer a proposed rule change to the appropriate Court committee. 

State v. Robinson, 229 N.J. 44, 74 (2017). Here, however, the Municipal 

Court Practice Committee has twice recommended this rule change, and 

therefore a referral is unnecessary. Accordingly, our adoption of the new rule

is effective immediately pursuant to “the Court’s authority under Article VI, 

Section 2, Paragraph 3 of the State Constitution to make rules that govern the 

administration of the court system.” See ibid.

To be clear, a defendant who seeks traditional post-conviction relief to 

vacate a DWI conviction -- as opposed to Laurick relief -- must abide by the 

general principles governing post-conviction relief and the five-year time bar

in the absence of excusable neglect. R. 7:10-2(b)(2). The five-year time bar is 

appropriate for traditional post-conviction relief because, if a defendant 

reasonably believes that he has been wrongly convicted as a result of the 

denial of counsel, he should challenge that conviction as early as possible

rather than sit on his rights “until it is too late for a court to render justice.” 

See State v. Mitchell, 126 N.J. 565, 576 (1992). As we have explained, courts 

“should consider 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. Milne, 178 N.J. 

486, 492 (2004) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).
31

VI.

In summary, when facing a second or subsequent DWI conviction, an 

indigent or non-indigent defendant may file a petition for post-conviction 

relief to bar the use of a prior uncounseled DWI conviction as a predicate

conviction for increasing a term of incarceration. This form of post-conviction 

relief does not prohibit the imposition of enhanced financial or administrative 

penalties, such as a period of license suspension. By “uncounseled” we mean 

an unrepresented defendant who was not advised by the municipal court of his 

right to retain counsel or, if indigent, of his right to appointed counsel without 

cost; who otherwise did not know of his right to counsel in the proceeding and

did not waive that right; and who, if properly advised of his rights, would have 

secured counsel or accepted appointed counsel. The defendant has the burden 

of proving he was uncounseled, but is not required to establish that the 

outcome would have been different had he been represented.

Although his certifications were far from ideal, Patel carried his burden 

of presenting sufficient proof -- unrebutted by the State -- that his 1994 guilty

plea was uncounseled, whether he was indigent or non-indigent. Patel had no 

obligation to establish that he would not have pled guilty or been convicted at 

trial had he been represented by counsel.
32

Accordingly, we reverse the judgment of the Appellate Division and 

remand this matter to the Tewksbury Municipal Court for proceedings 

consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, 

FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s 

opinion.