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No Relief for Defendant Seeking to Withdraw Uncounseled DWI Guilty Plea

Michael Panichella was charged with driving while intoxicated (DWI) for the third time in April 2010 after already having two convictions on his record. As the third conviction requires a minimum of a 180 day jail sentence, he filed a petition for post-conviction relief to withdraw his first guilty plea, on record back in 1986. State v. Panichella, Jan. 22, 2014 WL 243132, 1.

Panichella entered his first guilty plea without the benefit of any legal representation. In State v. Laurick, the New Jersey Supreme Court decided that, “absent a waiver of the right to counsel, an uncounseled DWI plea cannot be used to enhance the period of incarceration for future DWI convictions…” Id. at 2, quoting State v. Laurick, 120 N.J. 1 (1990).

The Pittsgrove municipal judge would not allow Panichella to withdraw his first guilty plea and also rejected his petition that the first conviction be ineligible for consideration of the enhanced sentence caused by a third conviction. Id.

Panichella appealed to the Superior Court of NJ in Camden County. The judge there reversed the decision of the municipal judge and found that “the record did not reflect whether or not he was advised that [an attorney] would be appointed for him if he were indigent.” Id. Therefore, the judge granted Panichella’s petition and ordered that the first conviction could not be used for sentencing. Id.

The case was appealed to the Appellate Division which found that Panichella did not satisfy the three requirements required to take advantage of a Laurick application. These three requirements were determined to be,

“1. Indigent defendants must establish that they were not given notice of their right to counsel and advised that counsel would be provided for them if they could not afford one.
2. Non-indigent defendants must establish that they were not advised of their right to counsel and that they were unaware of such right at the time they entered the uncounseled pleas.
3. Defendants who establish that there were not adequately noticed of their right to counsel must then 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 3.

Applying these requirements, the Court determined that while Panichella was unable to afford an attorney he never avowed that he was not told of his right to have one appointed for him and that lacked any real defense to the 1986 conviction. Id. at 3.

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