State of New Jersey v. Mark Lowery

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3058-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK LOWERY,

Defendant-Appellant.

________________________

Submitted April 29, 2025 – Decided July 21, 2025

Before Judges Smith and Vanek.

On appeal from the Superior Court of New Jersey, Law

Division, Atlantic County, Municipal Appeal No. 9-23.

Levow DWI Law, PC, attorneys for appellant (Evan M.

Levow, of counsel and on the brief; Keith G.

Napolitano, Jr., on the brief).

William E. Reynolds, Atlantic County Prosecutor,

attorney for respondent (Matthew T. Mills, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Mark Lowery entered a conditional guilty plea to driving while

intoxicated (DWI) in violation of N.J.S.A. 39:4-50. Because the judge

determined this was defendant's fourth DWI conviction, his sentence included a

mandatory 180-day term of imprisonment. Defendant appeals his sentence,

arguing that the State failed to sufficiently prove his prior out-of-state

convictions. Alternatively, he argues that, because two of the prior convictions

were uncounseled, he is entitled to relief under Laurick1 and should have been

sentenced as a third offender. We affirm.

I.

In the early morning of July 30, 2021, defendant was driving when Somers

Point Police Department Officer John Conover stopped him for making an

illegal left-hand turn. After approaching defendant's car, Officer Conover

smelled alcohol on defendant's breath, observed that his eyes were bloodshot

and watery, and noticed him swaying. When asked to perform standard sobriety

tests, defendant became antagonistic and used profanity, refusing to take the

1

State v. Laurick, 120 N.J. 1, 11 (1990) (holding that prior uncounseled

convictions for DWI cannot be used to enhance a custodial sentence for a second

or subsequent DWI offense where defendant was unaware of right to counsel or

right to be appointed counsel if indigent), abrogated by Nichols v. United States,

511 U.S. 738, 742 n.7, 748-49 (1994).

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tests. Defendant later admitted to drinking six beers prior to operating his

vehicle that day.

Defendant was charged with DWI, N.J.S.A. 39:4-50; refusal to submit to

a test, N.J.S.A. 39:4-50.4(a); and two other motor vehicle violations. On July

18, 2023, defendant pled guilty in the Somers Point Municipal Court to violating

N.J.S.A. 39:4-50, on the condition that he could challenge the sentence for a

lack of proofs. After the plea colloquy, the judge found defendant had supplied

an adequate "factual basis for a State v. Johnson [2] prosecution and conviction"

and had entered an intelligent, knowing, and voluntary guilty plea in accordance

with Rule 7:6-2.

At sentencing, the State proffered a "triple-[I]" report 3 showing defendant

had four prior DWI convictions: two in July 2001, one in April 2004, and one

2

42 N.J. 146, 166-67 (1964). (finding that a defendant being unable to safely

drive a vehicle is not a necessary proof for N.J.S.A. 39:4-50, which can be

established by showing consumption of a "considerable amount of [alcohol]

within a relatively short period of time").

3

"Triple-I" stands for the "Interstate Identification Index," a system that "ties

computerized criminal history record files of the FBI and the centralized files

maintained by each . . . participating state into a national system." Interstate

Identification Index (III) National Fingerprint File (NFF), Fed. Bureau of

Investigation, https://www.fbi.gov/file-repository/iii-nff-map-103123.pdf/view

(last visited July 10, 2025). Pennsylvania is a Triple-I-participating state

jurisdiction. Ibid.

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in July 2004. All of the convictions were in Pennsylvania. Defendant

maintained that since the report was not a certified driving abstract, the State

had not met its burden to demonstrate he had prior convictions. Defendant also

asserted that, of the five alleged prior convictions, he had been uncounseled for

three and was thus entitled to a sentence without jail time under Laurick. When

the judge noted defendant failed to show that he had not been offered counsel

for the prior convictions or, alternatively, to attach certifications from court

administrators stating the records of the prior conviction proceedings were lost,

defendant argued he had received "limited information" from the administrators

he had contacted and it was not his burden to establish the judge's requested

proofs.

The judge rejected both arguments and, after determining that defendant's

first DWI did not constitute a crime, 4 sentenced defendant as a fourth offender.

Accordingly, the judge sentenced defendant to 180 days in county jail,

4

Our reading of Pennsylvania law reveals this statement to be inaccurate.

Defendant's first DWI was a second-degree misdemeanor offense. 75 Pa. Cons.

Stat. § 3731(e)(1) (repealed 2003). Second-degree misdemeanors carry up to

two years' imprisonment as punishment in Pennsylvania. 30 Pa. Cons. Stat. §

923(a)(6). However, as the 180 days' imprisonment mandated by N.J.S.A. 39:4-

50(a)(3) applies to "third or subsequent violation[s]," whether defendant was a

fourth of fifth offender has no bearing on whether his sentence was proper.

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suspended his driving privileges for eight years, ordered an ignition interlock

for four years upon defendant regaining driving privileges, and imposed

requisite penalties and costs. As part of the plea agreement, the judge dismissed

the refusal charge at the State's request with the State reserving the right to

resentence defendant on the refusal if the prior convictions were found to be

"not part of the case." The judge suspended the jail sentence pending appeal.

Defendant appealed to the Law Division. On June 5, 2024, the Law

Division judge, denying defendant's appeal, found "that the record from the

Interstate Identification Index [was] adequate to establish prior offenses, and

that if there are Laurick applications to be made, that they need to be made to

the [c]ourts [that convicted defendant before] . . . ." Defendant requested a stay

of sentencing pending appeal to this court. The Law Division denied the request

for a stay, then imposed the same sentence given by the municipal court.

Defendant appeals.

II.

"We review a sentence under an abuse of discretion standard." State v.

Morente-Dubon, 474 N.J. Super. 197, 208 (App. Div. 2022). This deferential

standard only applies if "the trial judge follow[ed] the [Criminal] Code and the

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basic precepts that channel sentencing discretion." State v. Trinidad, 241 N.J.

425, 453 (2020) (quoting State v. Case, 220 N.J. 49, 65 (2014)).

Generally, we defer to the sentencing court's factual findings and should

not "second-guess" it. Case, 220 N.J. at 65. However, "[w]e give no 'special

deference' to the Law Division's 'interpretation of the law and the legal

consequences that flow from established facts.'" State v. Zeikel, 423 N.J. Super.

34, 40-41 (App. Div. 2011) (quoting Manalapan Realty, L.P. v. Manalapan Twp.

Comm., 140 N.J. 366, 378 (1995)). To the extent the municipal and trial courts

here "made factual determinations regarding the nature" of defendant's

Pennsylvania convictions, our review is de novo because the courts "did not take

any testimony but relied solely upon the same documentary record" available on

appeal. Id. at 41.

III.

A.

Defendant first argues that the State did not meet its burden under N.J.S.A.

2B:25-5.1 because the Triple-I report "was not a certified abstract of

[defendant's] Pennsylvania driving history." Therefore, he claims the report

"should not have served as the requisite proof of prior driving infractions from

a foreign jurisdiction." We disagree and consider the applicable principles.

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"Repeat DWI offenders are subject to enhanced custodial sentences,

license suspensions, and financial penalties." State v. Patel, 239 N.J. 424, 428

(2019) (citing N.J.S.A. 39:4-50(a)(2) to (3)). Accordingly, "[b]y statute,

municipal prosecutors must review a defendant's prior driving history in order

to determine whether a DWI represents their first or subsequent offense before

recommending whether [sentencing] enhancements may apply." State v. Zingis,

259 N.J. 1, 17 (2024).

N.J.S.A. 2B:25-5.1 provides in pertinent part:

Whenever a person is charged with a violation of . . .

[N.J.S.A.] 39:4-50, . . . a municipal prosecutor shall

contact the New Jersey Motor Vehicle Commission by

electronic or other means, for the purpose of obtaining

an abstract of the person's driving record. In every such

case, the prosecutor shall:

a. Determine, on the basis of the record, if

the person shall be charged with enhanced

penalties as a repeat offender; and

b. Transmit the abstract to the appropriate

municipal court judge prior to the

imposition of sentence.

Municipal judges are required to review the driving records of defendants

prior to sentencing them for violations of N.J.S.A. 39:4‑50. Admin. Off. of the

Cts., Admin. Directive #10-04, Requirement to Review a Defendant's "Certified

Driver Abstract" Prior to Sentencing for Driving While Intoxicated And Other

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Motor Vehicle Offenses with Graduated Penalties 1 (Aug. 31, 2004). Because

out-of-state convictions of DWI laws that are "substantially similar" qualify as

prior convictions for purposes of sentencing enhancement, 5 the directive reads

in part:

In the case of an out-of-state driver, the judge, before

sentencing, should examine both the defendant’s New

Jersey Certified Driver Abstract and the defendant’s

driving record for the licensing state. The judge should

request that the prosecutor obtain and provide the court

with the defendant’s driving record from the licensing

state as soon as possible. If, however, the prosecutor

has not provided the out-of-state driving record by the

scheduled court date, the judge should proceed with

sentencing the defendant without the out-of-state

driving record. In such instances, however, before

imposing sentence, the judge should on the record

require the prosecutor to provide the out-of-state

driving record when it is obtained. When a defendant

is sentenced in the absence of the out-of-state driving

record and the prosecutor later provides the court with

sufficient proof that the defendant should have been

sentenced to an enhanced penalty by virtue of an out-

of-state conviction, the court shall require the

defendant to appear for re-sentencing.

[Id. at 2.]

5

N.J.S.A. 39:4-50(a).

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Sentencing judges are also cautioned that "[i]t is inappropriate . . . to rely

on the representations of the prosecutor, defense counsel, or defendant as to the

defendant's driving record." Id. at 1.

N.J.S.A. 2B:25-5.1 does not mention the words, "certified," or

"certification" at all, simply requiring the prosecutor to obtain "an abstract" from

the New Jersey Motor Vehicle Commission. The plain language of

Administrative Directive #10-04 mentions certification only in connection with

New Jersey driving records. In the directive, the word "certified" appears only

in conjunction with the term, "New Jersey Certified Driver Abstract." A plain

reading of the statute and the directive leads us to reject defendant's argument

that the municipal judge may only consider certified out-of-state driving records

for purposes of sentencing.

We note that a sentencing court's findings must be "grounded in

competent, credible evidence in the record." Case, 220 N.J. at 67. Such

evidence need not precisely adhere to the Rules of Evidence, which "may be

relaxed . . . to admit relevant and trustworthy evidence in the interest of justice"

for "proceedings in a criminal . . . action in which information is presented for

the court's use in exercising a sentencing . . . discretion." N.J.R.E. 101(a)(3)(C);

see also State v. Carey, 232 N.J. Super. 553, 555 (App. Div. 1989) (noting "[t]he

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rules of evidence . . . are relaxed as to the" imposition of sentence phase of

criminal and quasi-criminal matters).

In Carey, we held that a sentencing court properly considered a computer

printout which showed that a defendant was a second offender, despite the

defendant's driver's abstract erroneously listing no prior convictions. 232 N.J.

Super. at 554, 558. We noted that computer-generated material is generally

accepted and used "not only on sentencing matters but as substantive evidence

in criminal civil proceedings[,]" and that the printout was "clear, legible and

understandable as well as reasonably trustworthy." Id. at 555, 556 n.1.

The Triple-I report, like the report in Carey, is sufficiently trustworthy.

The report is an objective, computer-generated report of defendant's criminal

history record which is created by reference to certain federal and state records.

It is clear, legible, and readily understandable. It includes a defendant's name,

date of birth, Social Security number, and other identifying information. As a

Triple-I-participating jurisdiction, Pennsylvania uploaded official records of

defendant's state criminal history into the Triple-I system. These records show

that defendant's Pennsylvania driving record included four DWI convictions.

Since N.J.S.A. 39:4-50(a)(3) clearly requires that a "third or subsequent

violation" compels a defendant to be "sentenced to imprisonment for a term of

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not less than 180 days in a county jail," the status of the current offense as either

the fourth or fifth conviction is irrelevant for sentencing purposes.

We conclude that the trial court properly relied upon the Triple-I report as

sufficient proof of defendant's Pennsylvania convictions and correctly affirmed

the municipal court's use of the report to determine that defendant had four prior

convictions. We discern no error.

B.

Defendant argues in the alternative that he should be sentenced under

Laurick as a third offender "without the imposition of the mandatory 180[-]day

incarceration period," because his two July 2001, convictions were uncounseled.

He contends he is entitled to this relief solely because he "proceeded on a pro se

basis." We are unpersuaded. "Progressive penalties apply to defendants

convicted of a second and subsequent DWI violation." Patel, 239 N.J. at 437

(citing N.J.S.A. 39:4-50(a)(1) to (3)). "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 . . . a fine of $1000, and other penalties." Id. at 437-

38 (citing N.J.S.A. 39:4-50(a)(3)). Pursuant to N.J.S.A. 39:4-50(a),

[a] conviction of a violation of a law of a substantially

similar nature in another jurisdiction, regardless of

whether that jurisdiction is a signatory to the Interstate

Driver License Compact . . . , shall constitute a prior

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conviction under this subsection unless the defendant

can demonstrate by clear and convincing evidence that

the conviction in the other jurisdiction was based

exclusively upon a violation of a proscribed blood

alcohol concentration of less than 0.08 percent.

Our Supreme Court has made clear that "[e]very defendant charged with

[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." Patel, 239 N.J. at 428.

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 State

v. Hrycak, 184 N.J. 351, 362 (2005). 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).

[Ibid. (citation reformatted).]

However, "with the exception 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, there is no constitutional impediment to the use of

the prior uncounseled DWI conviction to establish repeat-offender status under

DWI laws." State v. Schadewald, 400 N.J. Super. 350, 353 (App. Div. 2007)

(emphasis added) (quoting Laurick, 120 N.J. at 4).

A defendant may petition for Laurick relief from prior DWI convictions

pursuant to Rule 7:10-2(g). See Patel, 239 N.J. at 445-46. The rule requires

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that the petition "be brought in the court where the prior conviction was entered."

R. 7:10-2(g)(1).

[T]o 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.

[Patel, 239 N.J. at 429.]

Here, each of defendant's prior DWI convictions were entered in

Pennsylvania. Defendant has not shown that he sought any relief from the

Pennsylvania courts related to his prior convictions.6 It follows that his appeal

fails in its entirety.

Affirmed.

6

The State argues that a defendant can only seek relief under Laurick if their

prior convictions were entered by New Jersey courts. Because defendant never

attempted to comply with Rule 7:10-2(g)(1) by filing a Laurick petition in

Pennsylvania, we do not reach this issue, and we express no opinion on whether

Laurick relief can be sought in other jurisdictions.

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