SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1857- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. KATHLEEN GANSER, Defendant-Appellant.

_______________________

Submitted March 13, 2024

– Decided April 9, 2024 Before Judges Accurso and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 7 -21. Levow Dwi Law, PC, attorneys for appellant (Evan M. Levow, of counsel and on the brief; Keith G. Napolitano, Jr., on the brief). William Reynolds, Atlantic County Prosecutor, attorney for respondent (Matthew T. Mills, Assistan t Prosecutor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1857

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Defendant Kathleen Ganser appeals from a Law Divis ion order entered after a de novo review of the Atlantic City Municip al Court's denial of a post

conviction relief (PCR) petition challenging her 2005 conviction for driving while intoxicated (DWI). We affirm the court's ord er denying the petition because it was untimely filed under Rule 7:10 -2(b)(2) and is otherwise barred under Rule 7 :10 -2(d).
I. In November 2004, defendant was charged with DWI , N.J.S.A. 39:4- 50 , and DWI in a school zone , N.J.S.A. 39:4-50(g), and other motor vehicle offenses. On January 26, 2005, defendant appeared w ith counsel in the Atlantic City Municipal Court and pleaded guilty to DWI and DWI in a school zone

. During the plea proceeding, the court questioned defendant ab out her decision to plead guilty and the facts supporting h er plea. Defendant testified she had discussed the matter with her counsel and w as satisfied with his services. Defendant admitted operating a motor vehicle on Nov ember 12, 2004 in a school zone in Atlantic City after drinking two cans of be er. Defendant further acknowledged she operated the motor vehicle while " under the influence of those beers." Based on defendant's testimony, the court found she had3 A- 1857

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voluntarily entered the plea and the plea was suppo rted by an adequate factual basis. Following its acceptance of defendant's plea, the court dismissed two charges against defendant for "disregard of a red s ignal," as well as charges for refusal to take a chemical breath test, careless dr iving, reckless driving , and failure to produce an insurance card. The court merged the DWI- in -a-schoolzone charge with defendant's DWI conviction for pur poses of sentencing. Defendant's counsel addressed the court concerning def endant 's sentence, acknowledging defendant had pleaded guilty to her t hird DWI offense and requesting the court "to be as lenient as possible within the confines of the statute." The State noted defendant's conviction w as for a third DWI offense and asserted the court should consider that fact in its assessment of risk defendant poses to public safety. The court sentenced defendant as a third-time offe nder to a ten-year loss of her driver's license and 180 days in jail. The court also imposed mandatory fines and penalties. Defendant 's appeal from her conviction was rejected after

a de novo review by the Law Division. Later in 2005, plaintiff filed her first PCR petit ion claiming she was entitled to resentencing because one of her prior D WI convictions, which had4 A- 1857

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supported defendant's sentence as a third-time offe nder, had been vacated. The Law Division entered a May 18 , 2005 order granting the PCR petition and remanding defendant's DWI conviction to the Atlanti c City Municipal Court for resentencing. More than sixteen years later, in 2021, defendant filed her second PCR petition with the Atlantic City Municipal Court. Defendant sought vacatur of her 2005 DWI conviction, arguing she had entered he r plea to the offense without knowledge of "her constitutional rights" and without providing "a proper factual basis" for the offense. Defendant further claimed she timely filed the peti tion. More particularly, she asserted the five-year limit for filing a PCR p etition under Rule 7:10 -2(b)(2) was inapplicable because she sought relief under Ru le 7:10 -2(b)(1) from an illegal sentence. Sh e also averred th e petition was timely even if it ha d been filed beyond the five-year time limit because s he demonstrated excusable neglect for not filing it within the time limit. S ee R. 7:10 -2(b). She claimed there was excusable neglect for the late filing bec ause "she was not advised she had defenses to the DWI" and she had not been "prop erly advised of her constitutional rights" until she had "obtained coun sel in this matter." In an October 21, 2 021 order, the municipal court denied defendant's PCR petition.5 A- 1857

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Defendant appealed to the Law Division, which heard argument and issued a written decision and order finding the pet ition deficient because defendant had failed to provide the records of the proceedings from her appeal of the 2005 DWI conviction as required under Rule 7:10 -2(f)(2)(C). The court also determined defendant's sentence for the 2005 c onviction was not illegal and, as a result, the petition was untimely under R ule 7:10 -2(b)(2) because it was filed more than five years after her conviction and she failed to demonstrate excusable neglect for the late filing

. This appeal followed. On appeal, defendant offers the following arguments for our consideration:

POINT I IT WOULD BE A MANIFEST INJUSTICE TO DENY [DEFENDANT]'S PETITION FOR RELIEF BY REQUIRING THE PRODUCTION OF DOCUMENTS WHICH DO NOT EXIST. POINT II THE PETITION FOR POST[-]CONVICTION RELIEF IS NOT TIME-BARRED BECAUSE THE PLEA WAS ILLEGAL.
II. Our scope of review is limited to whether the find ings of the Law Division judge "could reasonably have been reached on suffic ient credible evidence6 A- 1857

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present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We review the Law Division's legal conclusions de novo, witho ut affording any special deference to the "trial court's interpretation of t he law and the legal consequences that flow from established facts." Ma nalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Thus , "[t]he standard of review of a trial court's denial of a motion to vacate a g uilty plea for lack of an adequate factual basis is de novo." State v. Tate, 220 N.J. 393, 403-04 (2015). Defendant argues the court erred by finding her pe tition was untimely because Rule 7:10 -2(b)(1) provides that "[a] petition to correct an illegal sentence may be filed at any time." Defendant cont ends the sentence for the 2005 DWI conviction is illegal because she did not provide an adequate fa ctual basis for the plea. She claims the factual basis f or her plea was inadequate because although she testified she was "under the i nfluence of" alcohol while operating a motor vehicle, she had not testified sh e suffered from "a substantial deterioration or diminution of [her] mental faculti es or physical capabilities" as a result of being under the influence. In a prosecution for DWI, the State has the burden of proving the defendant was "under the influence" of a substance identified in the statute while operating a motor vehicle. State v. Olenowski, 255 N.J. 529, 549 (2023). Thus ,7 A- 1857

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being "under the influence," as that term has been defined under N.J.S.A. 39:4- 50, is an essential element of a DWI offense. "'[G]enerally speaking,' '[t]he language "under the influence" used in [N.J.S.A. 39 :4- 50] . . . means a substantial deterioration or diminution of the ment al faculties or physical capabilities of a person whether it be due to intox icating liquor, narcotic, hallucinogenic or habit-producing drugs .' " Id. at 548- 49 (first alteration added ) (quoting State v. Tamburro, 68 N.J. 414, 420-21 (19 75)); see also State v. Bealor, 187 N.J. 574, 589 (2006) (quoting Tamburro, 68 N.J. at 421) (noting "under the influence" under N.J.S.A. 39:4-50 has be en defined as "a condition which so affects the judgment or control of a motor vehicle operator as to make it improper for [her] to drive on the highway"). Rule 7: 6-2(a)(1) provides in part that a municipal court " shall

not . . . accept a plea without first . . . determinin g . . . there is a factual basis for the plea." See also Maida v. Kuskin, 221 N.J. 112, 123 (2015). "A factual basis for a plea must include either an admission or the acknowledgement of facts that meet 'the essential elements of the'" offense. Tat e, 220 N.J. at 406 (quoting State ex. rel. T.M., 166 N.J. 319, 333 (2001)) ; see also State v. Sainz, 107 N.J. 283, 293 (1987) ("The factual basis for a guilty plea mu st obviously include8 A- 1857

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defendant's admission of guilt of the crime or the acknowledgement of facts constituting the essential elements of the crime.")

. The "principal purpose" of the requirement that a d efendant provide a factual basis for a plea "is to 'protect a defendan t who is in the position of pleading voluntarily with an understanding of the n ature of the charge but without realizing that [her] conduct does not actually fall within the charge.'" Tate, 220 N.J. at 406 (quoting State v. Barboza, 11 5 N.J. 415, 421 (1989)). In determining if there was an adequate factual basis, courts may consider "'all surrounding circumstances[,]' " id. at 408 (quoti ng Barboza, 115 N.J. at 422; Sainz, 107 N.J. at 293), as established by "the act ual facts, spoken or acknowledged, at the plea colloquy[,] " ibid. The State does not challenge defendant's claim the re was an inadequate factual basis for her plea of guilty to DWI. That is, the State does not argue defendant's admissions during the plea proceeding that she consumed two beers and operated her vehicle while "under the influence " established a sufficient factual basis for a DWI conviction under Rule 7: 6-2(a)(1) and N.J.S.A. 39 :4 -50. We therefore do not address or decide that issue. See Arsenis v. Borough of Bernardsville, 476 N.J. Super. 195, 204 n.3 (App. D iv. 2023) (finding appellate9 A- 1857

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review is limited to the contentions that are suppo rted by arguments in the parties' briefs). The State instead argues that even if the factual bas is presented in support of the plea was insufficient, the court correctly d enied the PCR petition as untimely under Rule 7:10 -2(b)(2). The State argues the petition was untime l y under the Rule because it was filed more than five years after defendant's 2005 DWI conviction. Defendant claims the five-year tim e limit for the filing of a PCR petition under Rule 7:10 -2(b)(2) is inapplicable because the lack of an adequate factual basis for her plea rendered her se ntence illegal and Rule 7:10

- 2(b)(1) provides that "[a] petition to correct an i llegal sentence may be filed at any time." We reject defendant's claim because it is based on the inaccurate premise that her sentence for the 2005 conviction is illega l because she did not provide an adequate factual basis for her plea. Defendant ignores that not every deficiency in the taking of a factual basis for a p lea renders the resulting sentence illegal. State v. D.D.M., 140 N.J. 83, 95 (1995). "[A] n inadequate factual basis does not necessarily entit le a defendant to relief upon a collateral attack of a conviction." State v. Belton, 452 N.J. Super. 528, 540 (App. Div. 2017). It is only under "extra ordinary circumstances" that10 A- 1857

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"a court's improper acceptance of a guilty plea may c onstitute an illegal sentence" for purposes of its determination of the timeliness of a PCR petition. State v. Mitchell, 126 N.J. 565, 577 (1992); D.D.M. , 140 N.J. at 95. Thus, "[f]or a guilty plea to be illegal in that sense, . . . it s acceptance must implicate constitutional issues." Mitchell, 126 N.J. at 577. It is only where the failure to obtain an adequate factual basis "rises to constitutional dimensions" that the resulting "sent ence [is] rendered illegal." State v. Pena, 301 N.J. Super. 158, 163 (App. Div. 1997) (citing Mitchell, 126
N.J. at 577 ) ; see also D.D.M., 140 N.J. at 96. A factual basis for a plea "is constitutionally required . . . when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not und erstand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on [her] own." Belton , 452 N.J. Super. at 540-41 (quoting McCarthy v. United States, 394 U.S. 459, 467 (1969)) ; see also Barboza, 115 N.J. at 421 n.1 (explaining "[a] factual basis is not constitut ionally required unless the defendant accompanies the plea with a claim of inno cence"). The record presented in support of defendant's PCR petition does not include a claim of innocence contemporaneous to her 2005 plea or otherwise. To the contrary, the record shows defendant pleaded guilty in 2005 to DWI for11 A- 1857

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the third time while represented by counsel whom she testified provided services with which she was satisfied. Indeed, defendant's PCR petition does not assert a claim plea counsel was ineffective by failing to fully apprise her of the consequences of her plea or "the nature of the law as it applie[d] to the facts of [her] case." Belton, 452 N.J. Super. at 541. Under the circumstances presented , the purported lack of an adequate factual basis for defendant's plea was not of const itutional significance and did not result in an illegal sentence. See, e.g. , D.D.M., 140 N.J. at 95- 96 (finding "the trial court's failure to spell out the factual basis of [the] defendant's plea did not, under the circumstances, constitute an imprope r acceptance of the plea" such that the defendant's sentence was illegal). T he Law Division therefore correctly rejected defendant's claim her petition co uld be filed at any time under Rule 7:10 -2(b)(1) because she sought PCR from an illegal sen tence. Defendant's sentence was not illegal and, as a result, defendan t was required to file her PCR petition within the five-year time limit set forth in Rule 7:10 -2(b)(2). As the Law Division correctly determined, defendant's fail ure to do so required the denial of her PCR petition as untimely. We also find no support in the record supporting de fendant's conclusory assertion there was excusable neglect for the sixte en-year delay in filing her12 A- 1857

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2021 PCR petition. The five-year time bar under the Rules governing th e filing of PCR petitions "should be relaxed only 'under exc eptional circumstances' because '[a]s time passes, justice becomes more elu sive and the necessity for preserving finality and certainty of judgments incr eases.'" State v. Goodwin , 173 N.J. 583, 594 (2002) (alteration in original) (quoting State v. Afanador, 151
N.J. 41, 52 (1997) ). In determining whether excusable neglect justifies relaxation of the time bar for PCR petitions set forth in Rule 3:22 -12(a)(2), we "' 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. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009) (quoting Afanador, 151 N.J. at 52 ). More than "a plausible explanation for [the defendant's] failure to file a timely PCR petiti on" is required. Ibid. We apply the same standards for determining the timeliness of a PCR petition under Rule 7:10 -2(b)(2). See, e.g., State v. Weil, 4 21 N.J. Super. 121, 128

- 29 (App. Div. 2011). Defendant argues there was excusable neglect for he r long delay in filing the 2021 petition because she was unaware of the pu rported inadequacy of her 2005 plea until she "obtained counsel in this matte r." That conclusory claim is13 A- 1857

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insufficient to establish excusable neglect such th at it permits the filing of her petition eleven years beyond the time permitted und er Rule 7:10 -2(b)(2). It is well established that a defendant's ignorance of th e law and applicable rules does not constitute excusable neglect for the belated filing o f a PCR petition , State v. Merola, 365 N.J. Super. 203, 218 (L. Div. 2002), af f'd o.b., 365 N.J. Super. 82 (App. Div. 2003), and ignorance of the law is all t hat defendant claims here. We also affirm the denial of defendant's petition b ecause it is barred under Rule 7:10 -2(d). The Rule provides in part that a "defendant is barred from asserting" in a PCR petition challenging a municipa l court conviction "any grounds for relief not raised in a prior" PCR petit ion filed under Rule 7:10 -2 unless the court finds: "the grounds for relief no t previously asserted could not reasonably have been raised in any prior proceeding "; "enforcement of the bar would result in fundamental injustice" ; or "denial of relief would be contrary to the Constitution of the United States or of New Jer sey." R. 7:10 -2(d)(1)(A)-(C). Defendant filed a prior PCR petition in 2005, seeki ng relief from her sentence as a third-time DWI offender because she h ad obtained vacatur of one of her prior convictions. Thus , defendant is barred from assert ing in her 2021 PCR petition any grounds for relief she could have asserted in her 2005 PCR petition unless her 2021 claims fell within the one of the three exceptions to the14 A- 1857

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bar under Rule 7:10 -2(d)(1). Defendant did not offer any facts in her PCR petition supporting an application of any of the Ru le's exceptions, and we otherwise find none in the record presented to the Law Division. We therefore find defendant's 2021 petition is also barred under Rule 7:10-2(d) because the claim supporting her 2021 petition could have, and should have, been timely asserted in her 2005 petition. Because we affirm the Law Division's order based on our determination defendant's petition was untimely filed under Rule 7:10 -2(b)(2), and otherwise barred under Rule 7:10 -2(d), it is unnecessary to address or decide defen dant's claim the court erred by denying the petition becau se defendant failed to include the records from her 2005 appeal from her sentence to the Law Division as required under Rule 7:10 -2(f)(2)(C). To the extent we have not expressly addressed any of defendant's remaining arguments, w e have fully considered them and determined they are without sufficient mer it to warrant further discussion. R. 2:11 -3(e)(1)(E). Affirmed.