NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

On November 23, 2003, defendant Michael J. Colello was arrested for driving while intoxicated (DWI), N.J.S.A. 39:4-50; failure to wear a seatbelt, N.J.S.A. 39:3-76.2f; and careless driving, N.J.S.A. 39:4-97. On December 3, 2003, defendant's counsel sent a letter of representation to the Paramus municipal court, asking that a not guilty plea be entered on defendant's behalf and requesting discovery.1

On February 2, 2004, new counsel appeared for defendant and substituted for initial counsel. New counsel acknowledged receiving discovery from initial counsel and that defendant knew and understood the charges against him. New counsel also moved to suppress evidence. That motion was either denied or withdrawn.

On February 9, 2004, defendant appeared with new counsel and pled guilty to DWI pursuant to a plea agreement. In return, the State agreed to dismiss the remaining charges. Defendant was sentenced to a six-month suspension of his driving privileges along with fines, surcharges, costs, and twelve hours at an Intoxicated Driving Resource Center. No appeal was filed from this conviction.

On January 10, 2013, defendant pled guilty to DWI in Bergen County municipal court. This was defendant's third DWI conviction. The Bergen municipal judge stayed the imposition of the mandatory 180-day sentence pending the resolution of defendant's petition for post-conviction relief (PCR) in Paramus Municipal Court.

In the Paramus matter, defendant, represented by a third attorney (PCR counsel), filed a petition for PCR alleging ineffective assistance of counsel in the 2004 matter. He sought to vacate the February 9, 2004 DWI conviction. In the alternative, he sought Laurick2 relief preventing the 2004 DWI conviction from being considered to enhance his most recent DWI charge as a third-time offender. On April 15, 2013, after hearing oral argument, the Paramus municipal court denied defendant's petition.

Current counsel then substituted for PCR counsel and appealed to the Law Division. At oral argument, current counsel conceded that the petition was not filed within the five-year limitation period set by Rule 3:22-12(a)(1), but presented no proof of excusable neglect.

Counsel abandoned the Laurick argument made by PCR counsel. He then noted that the Paramus municipal PCR judge, in his April 15, 2013 decision, referenced notes in the court file indicating that discovery was mailed by the court to defendant's then-counsel. Counsel claimed this was a violation of Rule 7:7-7, which addresses discovery procedures in municipal court. Counsel further noted that the court file apparently included a copy of defendant's driving abstract and a Miranda3 rights statement signed by defendant. Counsel argued that this was a violation of the separation of powers "because there [should be] no relationship between a municipal prosecutor and a court." Without referencing any supporting authority, counsel claimed that possession of defendant's driving abstract and a Miranda rights waiver form by the municipal plea judge "prejudices the defendant's plea." He then asked rhetorically, "How could it not?" Based on these passing references to two items of discovery in the court file, counsel argued that defendant's guilty plea was tainted and his sentence illegal.

Counsel then argued that in 2004, defendant pled guilty to DWI pursuant to a plea agreement whereby the State agreed to dismiss the remaining charges of failure to wear a seatbelt and careless driving. He claimed the plea agreement violated Guideline Four of the Appendix to Part VII of the New Jersey Court Rules. Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII at 2547 (2015).

After de novo review, Judge Eugene H. Austin denied defendant's PCR petition in an order entered on August 14, 2013. Judge Austin found that the plea agreement was appropriate under Guideline Four because the summonses for failure to wear a seatbelt and careless driving were collateral charges. The judge also found that the municipal court's access to discovery did not taint the proceedings. Lastly, the judge found that the PCR matter was procedurally time-barred because it was not brought within the required five-year timeframe.

On appeal, defendant raises one point:

We find no merit to defendant's argument and affirm substantially for the reasons expressed by Judge Austin in his oral opinion of August 14, 2013. R. 2:11-3(e)(2). We add only the following brief comments.

Defendant does not explain how the municipal judge's mere access to a Miranda rights form and defendant's driving abstract tainted the 2004 proceedings and rendered his sentence illegal. Comments made by the municipal PCR judge indicate that in 2004, a motion to suppress was filed by defendant's plea counsel. This may explain why the Miranda form was found in the court file. Driving abstracts are routinely presented to municipal judges in DWI cases. They are of critical importance, where, as here, there have been prior DWI convictions. See State v. Solarski, 374 N.J.Super. 176, 178-79 (App. Div. 2005) (explaining how the courts use driving abstracts to determine the appropriate sentence for a DWI conviction). In addition, defendant has failed to allege, let alone prove, that he suffered prejudice from the mere presence of those two documents in the court file.

Defendant's argument that the plea agreement violates Guideline Four also lacks merit. The Guidelines are clear that "[n]othing contained in these limitations shall prohibit the judge from considering a plea agreement as to the collateral charges arising out of the same factual transaction. . . ." Guidelines, supra, Appendix to Part VII at 2548. The two dismissed charges were clearly collateral and related to the same general factual setting.

Affirmed. If defendant's sentence continues to be stayed, that stay is vacated as of the filing date of our opinion.