SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3440-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

MARGARET AUSTIN, 

a/k/a MARGARET A. AUSTIN, 

 Defendant-Appellant. 

____________________________

Submitted September 12, 2024 – Decided September 17, 2024 

Before Judges Mawla and Vinci. 

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Municipal Appeal No. 

23-2.

The Law Office of Nicholas A. Moschella, Jr., LLC, 

attorneys for appellant (Nicholas A. Moschella, Jr., on 

the brief). 

John P. McDonald, Somerset County Prosecutor, 

attorney for respondent (Terence J. Ford, Assistant

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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-3440-22

 Defendant Margaret Austin appeals from a June 1, 2023 order denying her 

petition for post-conviction relief (PCR). We affirm. 

 In 2015, defendant was arrested for driving while intoxicated (DWI). She 

appeared before a municipal court judge, pled guilty to the offense, and was 

subsequently sentenced. At the plea hearing, the State placed on the record that 

defendant's blood alcohol concentration was 0.05%, and she was unable to safely 

operate a motor vehicle because of alcohol and prescription medication in her 

system. The State noted defense counsel had provided evidence showing 

defendant had a valid prescription at the time of the offense. 

 The municipal court judge addressed defendant directly and she admitted 

she consumed an "[a]irplane miniature [size bottle] of alcohol[,]" which affected 

her ability to operate a motor vehicle. Defendant told the judge, she: understood 

she was pleading guilty to a DWI; had an opportunity to discuss her plea with 

defense counsel who "[t]horoughly" answered all of her questions; was satisfied 

with her attorney's services and advice; and was entering the plea freely, 

knowingly, and voluntarily.

 In 2021, defendant was charged with a new DWI offense. In 2022, she 

filed her PCR petition asking the municipal court to vacate her 2015 plea, 

claiming there was an insufficient factual basis and ineffective assistance of 
3 A-3440-22

counsel. The municipal court denied the petition and defendant appealed. Judge 

Jonathan W. Romankow heard the appeal and denied it in a written opinion. 

 Defendant argued there was excusable neglect for her failure to file the 

PCR petition within the five-year time-period required by Rule 7:10-2. She 

asked the court to relax the time-period because her due process rights would be 

violated if the plea stood because there was an insufficient factual basis. She 

claimed the municipal judge failed to address: the elements of the DWI offense, 

the probity of field sobriety tests, the amount of alcohol she ingested, and 

whether it impaired her ability to operate a vehicle. Also, defense counsel was 

ineffective because defendant had inadequate time to meet with her to discuss 

the defense before entering the plea, which rendered the plea invalid since it was 

not entered knowingly or intelligently. And for the first time, defendant argued 

her plea was invalid because the municipal judge failed to place her under oath 

before accepting her plea. 

 Judge Romankow found defendant had "not presented any facts, 

explanation, reason or excuse whatsoever as to why she waited almost seven 

years to file the PCR" petition. Defendant alleged no facts showing "she would 

suffer an injustice . . . a serious question about her guilt, or the propriety of the 
4 A-3440-22

sentence she received . . . ." The petition's bare allegations were not grounds to 

overcome or relax the time limitations in Rule 7:10-2(b)(2). 

Notwithstanding the procedural bar, the judge reached the merits of 

defendant's petition. He rejected her claim there was an inadequate factual basis 

for the plea and carefully recited the evidence adduced by the State, as well as 

defendant's colloquy with the municipal judge, which "encompassed all the 

essential elements of DWI." Defendant's admissions that she had consumed 

alcohol prior to operating a vehicle and that her ability to operate a vehicle was 

affected by the alcohol and prescription drugs in her system "was all that was 

necessary to support a valid guilty plea to DWI." The claim the municipal judge 

erred because he did not place defendant under oath was not raised in the 

municipal court and was barred by Rule 7:10-2(d)(1). The argument was also 

rejected because an oath was not required by Rule 7:6-2(a)(1), and defendant 

"failed to provide any facts, argument, caselaw, or anything else to support her 

contention that the absence of an oath should result in her guilty plea being 

vacated." 

 Defendant failed to present a prima facie case of ineffective assistance of 

counsel because the claim she did not have enough time to meet with her 

attorney to discuss her defense was based on "bald assertions, with no evidential 
5 A-3440-22

support . . . ." The judge pointed out defendant had not certified to "specific 

facts to support her claim." Her "allegations [were] belied by the plea transcript, 

which reflect[ed] that she discussed the plea with her attorney, that her attorney 

thoroughly answered all of her questions, and that she was satisfied with her 

attorney's services." 

 Defendant raises the following points on appeal: 

POINT ONE 

THE TRIAL COURT IMPROPERLY RULED THE 

PETITION FOR [PCR] WAS UNTIMELY AND 

FAILED TO ENGAGE IN THE APPROPRIATE 

ANALYSIS AS REQUIRED BY STATE V. 

SLATER,[1] et. al. 

POINT TWO 

THE COURT INCORRECTLY RULED THE 

ORIGINAL GUILTY PLEA OF DEFENDANT WAS 

SUPPORTED BY AN ADEQUATE FACTUAL 

BASIS. 

POINT THREE 

DEFENDANT MADE A PRIMA FACIE SHOWING 

OF INEFFECTIVE ASSISTANCE OF COUNSEL. 

To establish a PCR claim of ineffective assistance of counsel, a defendant 

must satisfy the two-pronged test formulated in Strickland v. Washington, 466 

1

 198 N.J. 145 (2009). 
6 A-3440-22

U.S. 668, 687 (1984), and adopted by the Supreme Court of New Jersey in State 

v. Fritz, 105 N.J. 42, 58 (1987). A prima facie case is established by first 

"showing that counsel made errors so serious that counsel was not functioning 

as the 'counsel' guaranteed . . . by the Sixth Amendment," and then proving they 

suffered prejudice due to counsel's deficient performance. Strickland, 466 U.S. 

at 687; see also Fritz, 105 N.J. at 52. 

To demonstrate "prejudice after having entered a guilty plea, a defendant 

must prove 'that there is a reasonable probability that, but for counsel's errors, 

[they] would not have pled guilty and would have insisted on going to trial.'" 

State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nunez-Valdez, 200 

N.J. 129, 139 (2009)). A defendant must show that, "had [they] been properly 

advised, it would have been rational for [them] to decline the plea offer and 

insist on going to trial and, in fact, that [they] probably would have done so." 

State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011). 

A defendant must "do more than make bald assertions that [they were] 

denied the effective assistance of counsel" to establish a prima facie claim. State 

v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). There must be a 

"reasonable probability" the deficient performance affected the outcome of the 

proceeding. Fritz, 105 N.J. at 58. 
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A PCR court's decision to proceed without an evidentiary hearing is 

reviewed for an abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401 

(App. Div. 2013). We review the legal conclusions of a PCR court de novo. 

State v. Harris, 181 N.J. 391, 419 (2004). 

Having considered defendant's arguments and the record pursuant to these 

principles, we affirm substantially for the reasons set forth in Judge Romankow's 

thorough and well-written opinion. The judge correctly determined defendant 

did not establish a prima facie claim of ineffective assistance of counsel or 

grounds to vacate the plea. The record indisputably shows the plea proceeding 

and the plea itself were valid, and we are unconvinced there was either an 

injustice or violation of defendant's rights to warrant our intervention. The 

arguments raised on appeal lack sufficient merit to warrant further discussion in 

a written opinion. R. 2:11-3(e)(2). 

Affirmed.