NOT FOR PUBLICATION WITHOUT THE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-4094-19






                   Submitted April 27, 2021 – Decided May 18, 2021

                   Before Judges Haas and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Municipal Appeal No. 19-

                   Law Offices of Jef Henninger, attorney for the
                   appellant (Jonathan Poling, on the briefs).

                   Robert J. Carroll, Acting Morris County Prosecutor,
                   attorney for respondent (Paula Jordao, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, on the

      Defendant Kenneth Kearstan appeals from a Law Division order denying

his petition for post-conviction relief (PCR) and motion to withdraw his guilty

plea. We affirm.


      After being charged with driving while intoxicated (DWI), N.J.S.A. 39:4-

50, leaving the scene of an accident, N.J.S.A. 39:4-129, and failure to report an

accident, N.J.S.A. 39:4-130, defendant entered a conditional guilty plea in the

Washington Township municipal court to the DWI offense. As part of the plea

agreement, the State dismissed the remaining charges.

      Defendant's DWI conviction was based on events that took place on April

18, 2017. At that time, defendant and his wife were in the midst of divorce

proceedings, had been separated for nine months, and he was no longer residing

at the marital home.

      At approximately 5:20 p.m., defendant arrived at his former residence

with damage to his car. Defendant's wife saw the vehicle, called 911, and while

on the phone with the operator, learned that defendant had used a key to unlock

the door to the house and entered the basement without her knowledge. She

reported that defendant had an alcohol issue, and believed he was intoxicated,

as he "smell[ed] a little."

      Specifically, in her statement to the police, defendant's wife told police he

arrived at the house "impaired and slurring his words." When she asked him to

leave, defendant stated he "could not secure a ride." Defendant also told his

wife, "in a slurred voice," that he took a Xanax in the morning.

      A Washington Township police officer, Michael Thompson, arrived at the

residence at approximately 5:50 p.m. to conduct a welfare check. Defendant's

wife met Thompson at the front door and invited him into the home. Thompson

testified at the suppression hearing that prior to entering the home, he too noticed

damage to defendant's vehicle. In his investigation report, Thompson indicated

he heard a "metal popping" sound coming from defendant's car, which was

"indicative of a recently operated motor vehicle." Thompson also observed the

rearview mirror of the vehicle's passenger side was damaged as well as scrapes

to the front passenger side bumper.

      As soon as Thompson entered the home, defendant's wife informed him

that defendant was in the basement and believed he had taken medication and

was intoxicated. She repeatedly stated her concern for defendant's well-being,

but was worried that defendant was in the home, as she had previously informed

him that he was not permitted in the house when inebriated.

      Thompson testified that he stood at the top of the stairs and called down

to defendant to come up from the basement.        When defendant entered the

stairway, he was off balance, staggering, and his pants were falling down.

Thompson stated that he detected an odor of alcohol emanating from defendant ,

that it was clear that defendant was "extremely intoxicated," and that he needed

assistance simply to stand up.

      Thompson also testified that he asked defendant to exit the home so they

could speak outside in order to avoid an altercation between defendant and his

wife and so defendant's children would not witness their interaction. While on

the porch, Thompson began questioning defendant and observed that defendant's

eyes were bloodshot, and his speech slurred. Thompson testified that he again

smelled alcohol emanating from defendant.

      Defendant told Thompson that he had no memory of being involved in an

accident but acknowledged the vehicle was not damaged the previous day. After

initially denying drinking that day, defendant eventually admitted to consuming

three small airplane-sized bottles of alcohol. Defendant also told Thompson that

he did not consume any alcohol after entering the marital home, and Thompson

did not find any alcoholic beverages in the home after checking the basement

and speaking with defendant's wife.

      In light of his observations and defendant's statements, Thompson

attempted to administer standard field sobriety tests. After defendant stated he

was unable to complete the walk-and-turn test, Thompson decided to cease

administering the remainder of the tests out of concern that defendant's

condition would cause him to fall and injure himself.

      Defendant was placed under arrest and Thompson and another officer

requested that a first aid squad meet them at police headquarters, as Thompson

was concerned defendant was exhibiting signs of an overdose. Defendant was

subsequently transported to Hackettstown Hospital where he signed a consent

form to draw and test his blood. The test revealed defendant had a blood alcohol

concentration (BAC) of 0.29%, well above the legal limit. The summonses,

however, listed defendant's address as a location in Edison rather than at the

marital home.

      Before the municipal court, defendant moved to suppress the results of his

blood alcohol test and the incriminating statements he made to Thompson

claiming the police violated his Fourth and Fifth Amendment rights under the

United States Constitution and corresponding rights under the New Jersey

Constitution. Specifically, defendant maintained that Thompson improperly

entered his home without consent and failed to administer Miranda1 warnings.

       At the conclusion of the suppression hearing in which Thompson was the

only testifying witness, the municipal court judge denied defendant's motion,

concluding that defendant's wife knowingly and willingly invited the police into

the family home. The judge also concluded that the warrantless entry was

justified under the community-caretaker and emergency-aid doctrines. Finally,

the judge determined that the subsequent questioning of defendant did not

constitute a custodial interrogation warranting Miranda warnings. Instead, the

judge characterized the arresting officer's questioning as similar to the

preliminary, roadside investigation of an individual suspected of drunk driving.

       After denying defendant's motion, the court granted his counsel's request

to briefly adjourn the proceedings to discuss a conditional plea agreement with

a stay of any sentence. Counsel concluded his plea discussions and defendant

indicated to the court he was prepared to plead guilty plea to the DWI charge.

       The court informed defendant that what he "say[s] in court today, should

[he] win [an] appeal, cannot be used against [him] at any subsequent trial."

    See Miranda v. Arizona, 

384 U.S. 436

Defendant did not respond directly to the court's statement, resulting in the court

offering to conduct the plea hearing "another time."

      Defendant stated he was "really confused."        His counsel accordingly

reiterated the court's comment that defendant's statements would not "jeopardize

[his] rights to appeal the decision that the judge made today on the statements

and on the search." Defendant responded "[o]kay," and that he understood his

counsel's statements.

      The court proceeded to elicit from defendant a factual basis. Defendant

admitted he was "operat[ing] a motor vehicle . . . [while] under the influence of

alcohol." He stated he consumed three "airplane type bottles" of vodka before

operating his vehicle, and that his BAC was analyzed at .29%. Defendant also

stated there was no issue with the way the blood test was administered and that

it was "unsafe and improper" for him to operate his vehicle in his state of

impairment on April 18, 2017. He testified that he understood it was his second

offense and that corresponding fines and penalties would follow.          Finally,

defendant told the court he was "entering this plea both knowingly and

voluntarily," and he was satisfied with his counsel's services.

      Based on defendant's testimony, the court found defendant understood the

charges against him and his right to a trial. It also found defendant gave a

sufficient factual basis for the plea, to which he knowingly and voluntarily


      Because this was defendant's second DWI conviction, the court assessed

mandatory fines and penalties, revoked his driving privileges for two years, and

required him to complete forty-eight hours of treatment at the Intoxicated

Driver's Resource Center. Defendant was also obligated to install an ignition

interlock device on his vehicle for one year upon restoration of his driving

privileges. Finally, the court stayed defendant's sentence pending appeal.

      Defendant appealed his conviction to the Law Division. On de novo

review, the Law Division affirmed the municipal court's suppression ruling and

similarly concluded the police did not violate defendant's Fourth or Fifth

Amendment rights. The court imposed the same sentence as the municipal court

and similarly stayed his sentence, but ordered defendant to abstain from using

alcohol, and appear periodically in court for compliance monitoring.

      Defendant appealed and we affirmed. In our unpublished opinion, we

explained that Thompson's initial questioning of defendant was brief, occurred

inside and then outside the home, and took place only after he was expressly

invited into the residence by defendant's wife. State v. Kearstan, No. A-5867-

17 (App. Div. Sept. 20, 2019). Based on those circumstances, we rejected

defendant's claim that the police violated his Fourth or Fifth Amendment rights

and agreed with the trial court that "Thompson had a lawful right to be in the

home based on valid consent obtained from defendant's wife, and appropriately

questioned defendant without the need for Miranda warnings." Kearstan, slip

op. at 7.

      Defendant did not seek further review of his conviction with the Supreme

Court. Instead, he filed a motion to withdraw his guilty plea under State v.

Slater,2 and argued he received ineffective effective assistance of counsel under


198 N.J. 145

(2009). In Slater, the Supreme Court identified the following
four factors for courts to evaluate when considering an application to vacate a
guilty plea: "(1) whether the defendant has asserted a colorable claim of
innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused."

Id. at 150.

"Trial courts should consider and balance all of the factors discussed above in
assessing a motion for withdrawal of a plea. No factor is mandatory; if one is
missing, that does not automatically disqualify or dictate relief."

Id. at 162.

the two-part test detailed in Strickland v. Washington3 and State v. Fritz4

(Strickland/Fritz).     The municipal court heard oral arguments and denied

defendant's application, reinstated his sentence, and directed that he surrender

his driver's license.

       Defendant, thereafter, sought de novo review in the Law Division and

contended that his trial counsel was ineffective for failing to argue that he could

not be convicted of violating N.J.S.A. 39:4-50 as there was no proof he was

operating his car on April 18, 2017 while intoxicated, and that the original

summonses contained an incorrect address for his former residence. He also

sought to withdraw his guilty plea maintaining that he had a colorable claim of


466 U.S. 668

(1984). To establish a prima facie case of ineffective assistance
of counsel, a defendant must prove:

             First, . . . that counsel's performance was deficient.
             This requires showing that counsel made errors so
             serious that counsel was not functioning as the
             "counsel" guaranteed the defendant by the Sixth
             Amendment. Second, the defendant must show that the
             deficient performance prejudiced the defense. This
             requires showing that counsel's errors were so serious
             as to deprive the defendant of a fair trial, a trial whose
             result is reliable.

             [Id. at 687.]

105 N.J. 42

innocence, his plea was not voluntary, and the State would not suffer prejudice

if his plea was vacated.

      During oral argument, and at defendant's counsel's request, Judge Michael

E. Hubner permitted defendant to testify regarding the voluntariness of his guilty

plea. Defendant stated his attorney "basically told [him his] only option was to

do a plea and to move on" and that he only agreed to plead guilty because he

"was very nervous and anxious and . . . really didn't understand the whole

parameters of what would happen going forward."

      Judge Hubner denied defendant's application and memorialized his ruling

in an order and written opinion issued on June 24, 2020. The judge initially

considered defendant's Slater arguments and concluded that under a "totality

analysis of the facts, evidence, and case law," defendant had not asserted a

colorable claim of innocence, 

Slater, 198 N.J. at 150

, as he was satisfied that

defendant operated a motor vehicle contrary to N.J.S.A. 39:4-50 because the

facts circumstantially established defendant operated his car while intoxicated.

      In this regard, the judge noted that: 1) defendant's wife noticed that

defendant smelled of alcohol when he arrived at the marital residence, 2)

defendant admitted to consuming three airplane-sized bottles of alcohol earlier

in the day, 3) his blood alcohol level was nearly four times the legal limit, and

4) he told Thompson that he did not consume any alcohol at the home. Further,

Judge Hubner noted that the record contained no mention that a third party drove

defendant to the residence or that he used public transportation.

      Judge Hubner next considered the "nature and strength of [defendant's]

reasons for withdrawal," 

Slater, 198 N.J. at 150

, and determined that defendant's

proffered bases, including the State's error on the original issuing summonses,

failed to warrant withdrawal of his fully informed plea agreement. Finally, the

judge concluded that the State would not be prejudiced if defendant was

permitted to withdraw his plea.

      Judge Hubner next addressed defendant's ineffective assistance of counsel

claims and concluded he failed to satisfy the first prong of the two-part

Strickland/Fritz test.     In concluding counsel's performance was not

constitutionally deficient, the judge considered that defendant entered the plea

voluntarily and knowingly, that he expressed satisfaction with his counsel 's

services, and that defendant's counsel moved to suppress defendant's

incriminating statements. Finally, the judge explained that counsel's failure to

raise the operation issue did not amount to deficient performance because there

was "no certainty that such an argument would have been successful" in light of

the circumstantial evidence supporting defendant's operation of his vehicle on

April 18, 2017.


      On appeal, defendant presents the following arguments for our


            POINT I

            The Trial Court Erred in Finding That Defendant Has
            Not Asserted A Colorable Claim of Innocence.

            POINT II

            The Trial Court Erred in Finding That Defendant Has
            Not Met the Burden to Establish Ineffective Assistance
            of Counsel.

            POINT III

            The Trial Court Erred in Finding That an Incorrect
            Address Holds Little Weight.

            POINT IV

            The Trial Court Erred in Finding Defendant Entered
            into The Plea Knowingly and Voluntarily.

      We first address the significant procedural infirmities with respect to

defendant's appeal. We note that the record on appeal does not include a copy

of defendant's PCR petition. See R. 7:10-2. This is not an inconsequential

omission. Rule 2:6-1(a)(1)(I) requires an appellant to include in the appendix

to his brief "such . . . parts of the record . . . as are essential to the proper

consideration of the issues." Because "filed documents in the action bearing on

the issues on appeal are required to be included in the appendix[,] . . . the

[a]ppellate [c]ourt may decline to address issues requiring review of those parts

of the trial record not included in the appendix." Pressler & Verniero, Current

N.J. Court Rules, cmt. 1 on R. 2:6-1 (2021); see also Cmty. Hosp. Group, Inc.

v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 

381 N.J. Super.


, 127 (App. Div. 2005) (noting that an appellate court is not "obliged to

attempt review of an issue when the relevant portions of the record are not


      Further, as we explained in State v. Brewster, Rules 3:22-8 and 3:22-10(c)

"require that the facts a defendant alleges be provided by means of a verified

petition or a supplementary affidavit or certification." 

429 N.J. Super. 387

, 396

(App. Div. 2013); see also State v. Cummings, 

321 N.J. Super. 154

, 170 (App.

Div. 1999). We also note defendant, without seeking to supplement the record,

see R. 2:5-5, included a "[c]ertification . . . in support of appeal" in his

appendix.5 As the certification is dated October 27, 2020, after the court's May

   In general, defendant's certification includes statements related to his plea
similar to those made when he testified at oral argument, and which we address

22, 2020 order, it could not have been presented to the trial court, and it is

improper to submit the certification for our consideration in the first instance.

See Liberty Surplus Ins. v. Nowell Amoroso, P.A., 

189 N.J. 436

, 452 (2007)

("Our appellate courts will not ordinarily consider evidentiary material that is

not in the record below." (citation omitted)).

      Although we could reject defendant's ineffective assistance of counsel

claims based on these procedural infirmities, we nevertheless address

defendant's arguments substantively and find no merit to any of his contentions

and affirm substantially for the reasons stated by Judge Hubner in his June 24,

2020 written decision. We agree with Judge Hubner that the defendant failed to

establish the first prong of the Strickland/Fritz test and similarly failed to carry

his burden under Slater to withdraw his guilty plea. We provide the following

additional comments to amplify our decision.

infra pp. 21-22. He also certified, in part, that he was in the marital residence's
basement on April 18 "working on a house project," and consumed "hidden"
alcohol while there, contrary to Thompson's investigation report and his wife's
statements and observations. Other statements contained in the certification are
inconsistent with the admissions he made before the plea court, such as
operating a motor vehicle while under the influence of alcohol. We also note
that at no point in the record below, or in his certification submitted to us, did
defendant attest that he informed his counsel of these facts.

      A request to withdraw a plea and a petition for PCR based on ineffective

assistance of counsel are "distinct, and governed by different rules of court."

State v. O'Donnell, 

435 N.J. Super. 351

, 368 (App. Div. 2014). "They must be

considered separately."

Ibid. A motion to

withdraw a plea may be made after

sentencing "if the movant shows a 'manifest injustice.'"

Ibid. (quoting R. 3:21-

1). "By contrast, a petition for PCR must be filed within five years of the

challenged judgment of conviction, absent excusable neglect where enforcement

of the bar would result in a 'fundamental injustice.'"

Id. at 368-69

(quoting R.

3:22-12(a)). "[C]onsideration of a plea withdrawal request," however, "can and

should begin with proof that before accepting the plea, the trial court followed

the dictates of Rule 3:9-2."

Ibid. (quoting Slater, 198

N.J. at 155).

      We review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion. 

Brewster, 429 N.J. Super. at 401

(citing State v. Marshall, 

148 N.J. 89

, 157-58 (1997)). However, where no

evidentiary hearing was conducted, we "may review the factual inferences the

court has drawn from the documentary record de novo." State v. Blake, 444 N.J.

Super. 285, 294 (App. Div. 2016).

      We will not disturb a trial court's denial of a defendant's request to

withdraw his guilty plea unless there was "an abuse of discretion which renders

the lower court's decision clearly erroneous." State v. Simon, 

161 N.J. 416

, 444

(1999). We review a trial court's Slater analysis under an abuse of discretion

standard "because the trial court is making qualitative assessments about the

nature of a defendant's reasons for moving to withdraw his plea and the strength

of his case and because the court is sometimes making credibility determinations

about witness testimony." State v. Tate, 

220 N.J. 393

, 404 (2015).

      "The withdrawal of a guilty plea is not an 'absolute right,'" 

Simon, 161

N.J. at 444

(citation omitted), and the defendant bears the burden of establishing

a basis for relief. 

Slater, 198 N.J. at 156

. "[F]indings made by the trial court

when accepting the plea, constitute a 'formidable barrier' which defendant must

overcome before he will be allowed to withdraw his plea." 

Simon, 161 N.J. at


(quoting Blackledge v. Allison, 

431 U.S. 63

, 74 (1977)). "That is so because

'[s]olemn declarations in open court carry a strong presumption of verity. '"


(alteration in original)


Blackledge, 431 U.S. at 74


      Additionally, whether a defendant seeks to withdraw a plea before or after

sentencing, "[t]iming matters." 

Slater, 198 N.J. at 160

. Thus, at or before

sentencing, a "defendant shall be permitted to withdraw" a guilty plea if "the

interests of justice would not be served by effectuating the [plea] agreement,"

Rule 3:9-3(e), and, in such cases, "courts are to exercise their discretion liberally

to allow plea withdrawals." 

Slater, 198 N.J. at 156

(citation omitted). Applying

these standards, we discern no reason to reverse the denial of defendant's PCR

petition or his motion to vacate his plea agreement.

      Here, we evaluate the court's denial of defendant's PCR petition under an

abuse of discretion standard and apply de novo review to any factual inferences,

as we do not consider defendant's testimony at oral argument as an evidentiary

hearing regarding the ineffective assistance of counsel claims he asserts before

us.   Applying that standard of review, we agree with Judge Hubner that

defendant's counsel was not constitutionally ineffective for failing to challenge

the State's claim that he was operating a motor vehicle while intoxicated

contrary to N.J.S.A. 39:4-50(a). It is well-settled that the "failure to raise

unsuccessful legal arguments does not constitute ineffective assistance of

counsel." State v. Worlock, 

117 N.J. 596

, 625 (1990) (citing 

Strickland, 466

U.S. at 688


Fritz, 105 N.J. at 52


      A person is deemed to have been driving while intoxicated if that person

"operates a motor vehicle while under the influence of intoxicating liquor,

narcotic, hallucinogenic or habit-producing drug." N.J.S.A. 39:4-50(a). "Actual

operation is not required . . . ." State v. Ebert, 

377 N.J. Super. 1

, 10 (App. Div.

2005). "'Operation' may be prove[n] by actual observation of the defendant

driving while intoxicated," by defendant's admission, or through circumstantial

evidence reflecting circumstances that the defendant was driving while


Id. at 10-11

(citations omitted).

      Contrary to defendant's argument, there existed substantial circumstantial

evidence in the record to support the conclusion that defendant operated the

vehicle while intoxicated. Defendant arrived at the marital residence shortly

before his wife called the police. According to Thompson's report, which is

included in the record, defendant admitted to consuming alcohol earlier in the

day, acknowledged there was no alcohol in the home, was observed visibly

intoxicated shortly after he arrived, and reported a BAC well in excess of the

legal limit. Thompson also reported the vehicle exhibited a "metal popping"

noise, suggesting recent operation. Finally, there was no certified statement in

the record, see 

Cummings, 321 N.J. Super. at 170

, to support any inference that

defendant arrived at the house with the assistance of a third-party driver or by

public transportation.

      We also reject defendant's claims that the purported incorrect address on

the summonses supported either withdrawal of his plea under Slater, or post-

conviction relief under the Strickland/Fritz test.          Specifically, defendant

contends the summonses listed an address that "does not exist," and contrary to

that identified on his license and the residence where he was arrested.

      As the Supreme Court has instructed in State v. Cummings, where "[n]o

complaint has been raised concerning that error" and "no prejudice resulting

from it" has been identified, dismissal of the charge is not required. 

184 N.J.


, 90 n.1 (2005). To hold otherwise would place "form over substance," an

approach disfavored in our State. State v. Fisher, 

180 N.J. 462

, 472 (2004); see

also R. 3:7-3(a) ("[E]rror in the citation [to a statute] or its omission shall not be

ground for dismissal of the indictment or accusation or for reversal of a

conviction if the error or omission did not prejudicially mislead the defendant.");

State v. Latorre, 

228 N.J. Super. 314

, 319 (App. Div. 1988) (holding officer's

failure to sign a DWI summons did not deprive the summons of its

effectiveness); State v. Ryfa, 

315 N.J. Super. 376

, 383 (Law Div. 1998)

(concluding traffic complaint that failed to specify the municipality of the

offense was not invalid).

      Here, it does not appear that defendant raised the issue of the purported

inaccurate address listed on the summonses with the municipal court prior to his

conditional plea, preventing the court from issuing corrected charging

documents. In any event, defendant was fully informed of the charges against

him as evidenced by his Miranda challenge to his inculpatory statements, and

the filing of a direct appeal. He suffered no prejudice as a result of the alleged

incorrect address on the summonses.6 As such, any error with regard to the

address listed on the summonses does not warrant relief under Slater or


      Finally, we reject defendant's request for post-conviction relief based on

his claim that his plea was not entered on a voluntary and knowing basis because

his attorney "rushed" him to accept the plea. At his plea hearing, defendant was

given the opportunity to reschedule the sentencing but after conferring with

counsel, and after being assured that his statements at the plea hearing could not

be used against him, provided a detailed factual statement in which he admitted

he operated his vehicle while intoxicated. Defendant also acknowledged that he

entered the plea voluntarily and knowingly.

      As noted, at oral argument, defendant testified that his counsel "told [him

his] only option was to do a plea and to move on" and that he only agreed to

    We note that according to the investigative report, defendant provided
Thompson with his then-current address, which was different from that on his
license. We cannot discern if the police relied upon such information received
from defendant when completing the summonses.
plead guilty because he "was very nervous and anxious" and "didn't understand

the whole parameters of what would happen going forward." Here, in rejecting

defendant's argument, Judge Hubner considered defendant's initial plea colloquy

as well as his testimony at oral argument and determined that defendant entered

a voluntary and knowing plea. We are satisfied from our review of the record

that Judge Hubner's decision was not an abuse of discretion. 

Simon, 161 N.J. at


. As noted, defendant's "[s]olemn declarations in open court [when he

entered his plea] carry a strong presumption of verity," ibid., and require

rejection of his claim that his plea was ill-informed or involuntary, warranting

relief under Slater.

      To the extent we have not addressed defendant's remaining arguments, it

is because we have determined that they lack sufficient merit to warrant further

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



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