State of New Jersey v. Armando Carreon ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5501-12T1
APPROVED FOR PUBLICATION
STATE OF NEW JERSEY,
August 11, 2014
Plaintiff-Respondent,
APPELLATE DIVISION
v.
ARMANDO CARREON,
Defendant-Appellant.
________________________________
Argued June 4, 2014 – Decided August 11, 2014
Before Judges Waugh,1 Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Criminal Part, Cumberland
County, Municipal Appeal No. 30-12.
Elizabeth M. Trinidad argued the cause for
appellant (Trinidad Law Office, LLC,
attorneys; Ms. Trinidad, on the brief).
G. Harrison Walters, Assistant Prosecutor,
argued the cause for respondent (Jennifer
Webb-McRae, Cumberland County Prosecutor,
attorney; Mr. Walters, of counsel and on the
brief).
1
Judge Waugh did not participate in oral argument. He joins the
opinion with counsel's consent. R. 2:13-2(b).
The opinion of the court was delivered by
ACCURSO, J.A.D.
This appeal requires us to consider whether a never-
licensed driver may be fined and sentenced to a custodial term
under the penalty provisions of N.J.S.A. 39:3-10. Defendant
Armando Carreon appeals from the (partial) denial of his
petition for post-conviction relief contending that he was
subject to an illegal sentence consisting of a fine and a
custodial term following his guilty plea to driving without a
license, N.J.S.A. 39:3-10. We agree that defendant's sentence
is illegal and thus reverse and remand for resentencing.
Following a traffic stop in 2012, defendant was charged
with failing to stop at a stop sign, N.J.S.A. 39:4-144, and
driving without a license, N.J.S.A. 39:3-10. Represented by the
public defender, defendant pled guilty to unlicensed driving,
and the stop sign violation was dismissed.
Reviewing defendant's abstract and finding that this was
his third conviction for unlicensed driving, the municipal court
judge imposed a $756 fine, $33 in court costs and a ten-day jail
term without a statement of reasons as required by Rule 7:9-
1(c). The judge commented only that defendant "should have been
charged on this occasion with driving while suspended, but he
2 A-5501-12T1
wasn't."2 The judge did not consider the sentencing standards
imposed in State v. Moran, 202 N.J. 311, 328-30 (2010) (setting
standards to guide the discretion of judges imposing license
suspensions under N.J.S.A. 39:5-31), or suggested in State v.
Henry, 418 N.J. Super. 481, 490-97 (Law Div. 2010) (employing
the aggravating and mitigating factors found in N.J.S.A. 2C:44-
1(a) and (b) in determining whether a custodial sentence was
appropriate for a third conviction under N.J.S.A. 39:4-50).
Defendant did not seek de novo review of his sentence in
the Law Division. Instead, prior to the date he was to begin
serving his custodial term, he filed a PCR petition in the
municipal court pursuant to Rule 7:10-2(b)(1). Although
defendant's counsel was advised by the municipal court staff
that defendant's petition had been denied, the municipal court
judge refused to issue an order to that effect, despite defense
counsel's efforts to secure one.
2
Although we have not been provided with defendant's driving
abstract, which both judges reviewed and relied upon in making
their rulings, we can discern no basis for the municipal judge's
statement. Defendant's prior violations are noted in the Law
Division transcript to have occurred in 2005 and 2008.
Apparently, neither conviction was accompanied by the mandatory
180-day suspension order required by N.J.S.A. 39:3-10. The
municipal judge noted, however, that defendant "restored"
following his conviction for driving under the influence,
N.J.S.A. 39:4-50, which accompanied his 2005 conviction for
unlicensed driving. Accordingly, we see no basis to conclude
that defendant's conduct could support a violation of N.J.S.A.
39:3-40.
3 A-5501-12T1
The Law Division stayed the custodial aspect of defendant's
sentence and considered his PCR petition on the merits.
Although terming the $756 fine as "excessive, not illegal," the
Law Division judge nonetheless granted defendant's petition
limited to a reduction of the fine to the "maximum penalty [of]
$500." The judge rejected defendant's argument that N.J.S.A.
39:3-10 allowed either a mandatory minimum fine of $200 in
defendant's case, or imprisonment, but not both.
Defendant appeals. We stayed the custodial aspect of his
sentence pending our review of the merits of his appeal.
Because we agree that the statute allows a fine or imprisonment
but not both, even for drivers, who, like defendant, have never
been licensed, we now reverse.
The penalty provisions of the unlicensed driver statute
provide as follows:
A person violating this section shall
be subject to a fine not exceeding $500 or
imprisonment in the county jail for not more
than 60 days, but if that person has never
been licensed to drive in this State or any
other jurisdiction, he shall be subject to a
fine of not less than $200 and, in addition,
the court shall issue an order to the
commission requiring the commission to
refuse to issue a license to operate a motor
vehicle to the person for a period of not
less than 180 days. The penalties provided
for by this paragraph shall not be
applicable in cases where failure to have
actual possession of the operator's license
4 A-5501-12T1
is due to an administrative or technical
error by the commission.
[N.J.S.A. 39:3-10.]
We begin, as the canons of construction counsel, with what is
clear from the plain meaning of the text. State ex rel. K.O.,
217 N.J. 83, 91 (2014). Here the text makes obvious that the
statute mandates either fine or imprisonment - but not both -
for violators who have previously been licensed to drive in New
Jersey or elsewhere. The question is how that first clause
relates to the penalty provided in the second, "but if" clause
for drivers who have never been licensed here or elsewhere.
Defendant argues that the "but if" clause plainly subjects
the never-licensed violator to a minimum $200 fine, but only in
the event the judge chooses to fine instead of imprison. He
contends, in effect, that the "but if" clause circumscribes, but
does not override, the overarching design to penalize those
driving without a license with a fine or imprisonment but not
both.
The State contends that the $200 fine, like the 180-day
"suspension" is mandatory for all never-licensed drivers
convicted under the statute. It argues that never-licensed
drivers are subject to a fine or imprisonment and a minimum $200
fine and 180-day period in which they may not be issued a
license. The State, however, allows that there is some relation
5 A-5501-12T1
between the first and second clauses because it agrees with
plaintiff that the maximum fine for a never-licensed driver is
$500.
Defendant contends that the State's reading of the statute,
adopted by the Law Division judge, is illogical. He reasons
that if the maximum fine for a never-licensed driver "relates
back" to the first clause as the State concedes, then so
logically must the minimum fine. The State counters that the
logical import of defendant's argument, in light of the plain
language which directs that never-licensed drivers "shall" be
subject to a minimum fine, would prevent a judge from ever
imposing a custodial sentence, thus defeating the Legislature's
clear intention to enhance the statutory penalty for never-
licensed violators.
The proper interpretation of a statute is a question of law
that we review de novo. McGovern v. Rutgers, 211 N.J. 94, 107-
08 (2012). Our goal, of course, is to determine and effect the
Legislature's intent. See K.O., supra, 217 N.J. at 91. We
begin with the words of the statute, which we are to give their
ordinary meaning and construe in a common-sense manner. Ibid.
If the language is unclear or ambiguous, "or if the
Legislature's intention is otherwise uncertain," we may resort
"to extrinsic aids to 'assist us in our understanding of the
6 A-5501-12T1
Legislature's will.'" Id. at 92 (quoting Pizzullo v. N.J. Mfrs.
Ins. Co., 196 N.J. 251, 264 (2008)).
The Legislature amended N.J.S.A. 39:3-10 in 1982 to add the
penalty for the never-licensed driver in the clause we interpret
as part of a larger effort to address various penalty provisions
in Title 39.3 L. 1982, c. 45, § 1. With regard to this
provision, the Sponsor's Statement provided: "[t]he bill
establishes a $200.00 minimum fine and a provision for a court
order to the director delaying the issuance of a license for 6
months to anyone who drives and who has never obtained a
license." Sponsor's Statement to S. 904, at 5 (Feb. 1, 1982).
In approving the bill, the Senate Public Safety and Defense
Committee noted that the bill "provides that a person who drives
without ever having obtained a license[] will be fined a minimum
of $200.00." See Senate Public Safety & Defense Committee,
Statement to S. 904 (Feb. 8, 1982). Finally, Governor Kean, in
his signing statement, likewise noted that the statute was
intended to "increase[] penalties for unlicensed driving . . .
[to include a] $200 [fine] if never licensed[.]" Governor's
Signing Statement to S. 321 (1982).
3
The text of this portion of the statute has since been altered
only once, to remove the decimal point from the fine ($500.00 to
$500 and $200.00 to $200). See L. 1998, c. 108, § 1.
7 A-5501-12T1
Although the statute is mentioned in many opinions, the
penalty provision appears never to have been construed. In
State v. Handy, 74 N.J. Super. 294, 299 (Atl. Cty. Ct. 1962),
the county court distinguished the statute from the more serious
violation of driving on a suspended license, N.J.S.A. 39:3-40.
The court observed that "[i]n violating N.J.S.A. 39:3-10 the
offender signifies his possible inaptitude to drive a motor
vehicle, and circumvents the licensing authority, regulations,
and fees of this State," whereas by "violating N.J.S.A. 39:3-40
the offender asserts his defiance of public sanctions imposed
for community safety." Ibid. Accordingly, neither prior
precedent nor the spare legislative history provides guidance in
resolving the meaning of the amendment enhancing the penalty for
never-licensed drivers.
Although the Legislature oftentimes uses "or" and "and"
interchangeably and whether they are conjunctive or disjunctive
"'depends primarily upon the legislative intent,'" Pine Belt
Chevrolet v. Jersey Cent. Power & Light Co., 132 N.J. 564, 578
(1993) (quoting Howard v. Harwood's Rest. Co., 25 N.J. 72, 88
(1957)), here no one disputes, as it relates to previously
licensed drivers, that the provision is plainly disjunctive: a
judge may fine such offenders or sentence them to the county
jail but may not do both. See State v. Duva, 192 N.J. Super.
8 A-5501-12T1
418, 421 (Law Div. 1983) (noting that "the word 'or' carries
with it natural disjunctive import"). The difficulty arises out
of the second clause "but if that person has never been licensed
. . . he shall be subject to a fine of not less than $200," or,
more specifically, the relation of that clause to the
disjunctive provision of the statute's first clause. N.J.S.A.
39:3-10.
We think it apparent from the plain language that the
Legislature intended to guarantee a minimum sentence of a $200
fine and a six-month suspension in which no license may issue
for such never-licensed drivers. With regard to whether such
drivers may additionally be sentenced to jail, however, the
statute is susceptible to two possible interpretations.
One is the one adopted by the Law Division that such
drivers must always receive a fine of at least $200 and a
six-month suspension and may also receive up to sixty days in
the county jail. The strength of that interpretation is that
the Legislature's use of "but" rather than "and" suggests that
the second clause is meant to be an exception to the first
clause, and that "shall" suggests a mandatory fine. Its
weakness is the acceptance that the fine is capped at the $500
of the first clause, suggesting that the overarching design of
fine or imprisonment holds for never-licensed drivers as well.
9 A-5501-12T1
The other interpretation is the one urged by defendant,
that the "but if" clause creates only a minimum fine in the
event the judge imposes a fine rather than imprisonment in the
county jail. The strength of that interpretation is that it
accounts for the entirety of both clauses. Emphasizing that the
clause states only that never-licensed drivers "shall be subject
to" a $200 minimum fine, which shall be capped at $500, and that
never-licensed drivers are not "subject to" a fine "and" a
suspension, but that the suspension is "in addition" to the
minimum fine to which such drivers are subject, defendant argues
that the "but if" clause modifies but does not supplant the fine
or jail alternatives of the first clause. The interpretation's
weakness is that if "shall" is mandatory and a judge may not
impose a fine and jail on a never-licensed driver, then the
never-licensed driver may never be sentenced to jail, a result
clearly not intended by the Legislature.
Both interpretations are plainly reasonable ones. Indeed,
they have an almost Escher-like quality in that viewing the
statute from the perspective of one of them makes it hard to
readily admit the plausibility of the other. We are persuaded,
however, that viewing the "but if" clause as circumscribing, but
not overriding, the overarching design of the statute to
penalize those driving without a license with a fine or
10 A-5501-12T1
imprisonment but not both, best effectuates the Legislature's
intent in amending the statute to impose a harsher penalty on
never-licensed drivers.
First, viewing the statute in this way harmonizes both
clauses and gives effect to all of the words the Legislature
employed. See K.O., supra, 217 N.J. at 94 (noting that the
rules of statutory construction require deference to the words
chosen by the Legislature). It reads the statute to provide
both a minimum sentence and a maximum fine while preserving
judicial discretion for a harsher custodial term for both
unlicensed and never-licensed drivers. Our construction thus
addresses the logical inconsistencies raised by the parties,
effects the intent of the Legislature, to the extent it can be
discerned, and preserves the discretion of the sentencing judge
to impose either a fine or jail time within the limits of the
statute.
We note also that while we would not wish to overemphasize
internal consistency in a title as vast and so often amended as
Title 39, nevertheless, when the Legislature intends fine or
imprisonment, or both, for a motor vehicle offense, it often
says so plainly. See, e.g., N.J.S.A. 39:4-96 (reckless
driving); N.J.S.A. 39:4-36b (failure to yield to a pedestrian);
N.J.S.A. 39:4-49 (tampering with vehicle).
11 A-5501-12T1
Finally, our construction appears in keeping with the
popular understanding and practical interpretation of the
statute in the municipal courts since its amendment in 1982.
See 24 New Jersey Practice, Motor Vehicle Law and Practice,
§ 2.103 at 67-68 (Robert Ramsay) (rev. 3d ed. 2001). That long
understanding unchallenged by litigation is entitled to some
deference. See N.J. Ass'n on Corr. v. Lan, 80 N.J. 199, 215
(1979) ("'Like all precedents, where contemporaneous and
practical interpretation has stood unchallenged for a
considerable length of time it will be regarded as of great
importance in arriving at the proper construction of a
statute.'") (quoting 2A Sutherland, Statutes & Statutory Constr.
§ 49.07, 251-52 (4th ed. 1973)).
We reverse defendant's sentence and remand to the Law
Division for resentencing. Should the Law Division judge
consider imposing a custodial term rather than a fine, he shall
apply the standards enunciated in Moran, supra, 202 N.J. at 328,
and Henry, supra, 418 N.J.Super. at 490-91. We do not retain
jurisdiction.
Reversed and remanded.
12 A-5501-12T1