State of New Jersey v. James W. French

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4963-13T1
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
August 25, 2014
v.
APPELLATE DIVISION
JAMES W. FRENCH, a/k/a
JAMES WILLIAMS FRENCH,
Defendant-Respondent.
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Argued August 13, 2014 – Decided August 25, 2014
Before Judges Fuentes, Messano and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Accusation No.
14-04-00115.
Kelly Anne Shelton, Assistant Prosecutor,
argued the cause for appellant (Richard T.
Burke, Warren County Prosecutor, attorney;
Ms. Shelton, of counsel and on the brief).
Michele E. Friedman, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Ms. Friedman, of counsel and on
the brief).
Carol M. Henderson, Assistant Attorney
General, argued the cause for amicus curiae
State of New Jersey (John J. Hoffman, Acting
Attorney General, attorney; Ms. Henderson,
of counsel and on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
The State appeals from what it views as the illegal
sentence of ninety days in jail followed by ninety days in an
inpatient drug rehabilitation program imposed for the fourth-
degree crime of operating a motor vehicle during a period of
license suspension for multiple convictions of driving while
intoxicated (DWI). N.J.S.A. 2C:40-26(b). Defendant James W.
French argues that an inpatient drug program satisfies the
statute because the program is custodial in nature and the
legislative scheme is intended to foster substance abuse
rehabilitation as well as punishment. The State argues that the
statutory sentencing framework of Title 2C requires a mandatory
180-day sentence in jail without parole, which cannot be
satisfied by service in an inpatient rehabilitation program. We
agree with the State that the sentence is illegal and, therefore,
reverse and remand for resentencing.
Defendant pled guilty to an accusation charging the crime
of driving while his license was suspended after multiple drunk
driving convictions at the same time that he pled guilty to
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driving while intoxicated, N.J.S.A. 39:4-50.1 We discern from
the record that defendant has a total of nine prior drunk-
driving convictions, six in New Jersey and three in South
Carolina. He has five prior convictions in New Jersey for
driving during a period of license suspension. Pursuant to a
plea agreement, the State agreed to recommend concurrent
sentencing with 180 days of incarceration and no probation. The
judge sentenced defendant to concurrent 180-day terms, ordering
that he could serve the final 90 days in an inpatient
rehabilitation program. She ordered that if he was not admitted
to a program or did not complete the program, which had to be at
least 90 days long, he would have to serve the full 180 days in
jail. The judge also imposed an additional ten-year license
suspension as well as the other mandatory penalties. We granted
the State's application for an emergent appeal.
An illegal sentence may be corrected at any time before it
is completed. R. 2:10-3; State v. Schubert, 212 N.J. 295, 309-
10 (2012). Parties may not negotiate an illegal sentence, State
v. Smith, 372 N.J. Super. 539, 542 (App. Div. 2004), certif.
denied, 182 N.J. 428 (2005), and a defendant may not accept one
1
He also pled guilty to driving with a broken brake light,
N.J.S.A. 39:3-66. He was stopped for erratic driving and the
faulty driver's-side brake light.
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as part of a plea agreement, State v. Nemeth, 214 N.J. Super.
324, 327 (App. Div. 1986).
In 2009 the Legislature passed a statute, effective August
2011,2 that criminalized the offense of driving with a suspended
license that had been suspended after more than one DWI
conviction. N.J.S.A. 2C:40-26 provides in pertinent part:
b. It shall be a crime of the fourth degree
to operate a motor vehicle during the period
of license suspension . . . if the actor's
license was suspended or revoked for a
second or subsequent violation of [DWI] or
[refusal to submit to a chemical test for
intoxication]. A person convicted of an
offense under this subsection shall be
sentenced by the court to a term of
imprisonment.
c. Notwithstanding the term of imprisonment
provided under N.J.S.A. 2C:43-6 [providing
for a maximum custodial sentence of eighteen
months] and the provisions of subsection e.
of N.J.S.A. 2C:44-1 [the presumption of non-
imprisonment for a first offender convicted
of a fourth-degree crime], if a person is
convicted of a crime under this section the
sentence imposed shall include a fixed
minimum sentence of not less than 180 days
during which the defendant shall not be
eligible for parole.
Defendant pled guilty to a violation of N.J.S.A. 2C:40-26(b).
Although defendant happened to be driving drunk when he was
2
The effective date of the statute was delayed eighteen months
to give the Motor Vehicle Commission an opportunity to "take any
anticipatory administrative action prior to the effective date
necessary for its timely implementation." L. 2009, c. 333, §2.
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arrested, intoxication is not an element of this fourth-degree
crime.
N.J.S.A. 2C:40-26(c) requires the imposition of a mandatory
minimum period of incarceration of 180 days during which the
defendant is not subject to parole. "In making such conduct a
fourth-degree crime, the Legislature stiffened the sanction for
driving with a license suspended or revoked due to multiple
prior DWI or refusal convictions." State v. Carrigan, 428 N.J.
Super. 609, 613 (App. Div.), certif. denied, 213 N.J. 539(2013). Because the Legislature placed this offense within the
criminal code, upgrading a motor vehicle violation to a crime,
we must review the sentence imposed pursuant to the provisions
of Title 2C and not those of Title 39, which governs motor
vehicle offenses.
Title 39 permits the judge in a third or subsequent DWI
sentence to suspend the last half of the required 180-day term
of imprisonment to allow the defendant to enter a "drug or
alcohol inpatient rehabilitation program[.]" N.J.S.A. 39:4-
50(a)(3). The prior Title 39 sanctions for driving during a
period of license suspension after multiple DWI convictions
included a mandatory jail term of between ten and ninety days.
N.J.S.A. 39:3-40(f)(2). No suspension of the jail sentence to
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enter a program was permitted for this offense even under Title
39.
We have stated when disapproving the use of commutation
credits to reduce a thirty-year mandatory minimum sentence for a
murder conviction that "[t]he use of the term 'not eligible for
parole' in a sentencing statute unquestionably denotes a
mandatory minimum sentence." Merola v. Dep't of Corr., 285 N.J.
Super. 501, 507 (App. Div. 1995), certif. denied, 143 N.J. 519(1996). Title 2C does not allow a judge sentencing discretion
to impose a lesser period of incarceration when a mandatory
minimum term is required, absent specific language to that
effect. State v. Lopez, 395 N.J. Super. 98, 107-08 (App. Div.)
(reversing the sentence of a defendant who received a kidnapping
sentence of seven years' imprisonment with an eighty-five
percent parole disqualifier, less than the statutorily required
twenty-five year term without the possibility of parole, because
"when the Legislature has enacted a mandatory minimum term for
the commission of a crime, the 'courts have no power' to impose
a sentence that, in length or form, is different from that
plainly provided in the statute" (citing State v. Des Marets, 92
N.J. 62, 64-65 (1983)), certif. denied, 192 N.J. 596 (2007). In
Des Marets, Chief Justice Wilentz opined:
We do not pass on the wisdom of this
legislation's mandatory . . . imprisonment
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term or the wisdom of its imposition on the
offenses covered. That is a matter solely
for the Legislature to decide. Once the
Legislature has made that decision, and has
made it within constitutional bounds, our
sole function is to carry it out. Judges
have no business imposing their views of
"enlightened" sentencing on society,
including notions of discretionary,
individualized treatment, when the
Legislature has so clearly opted for
mandatory prison terms for all offenders.
It may be that the Legislature is more
enlightened than the judges. Our clear
obligation is to give full effect to the
legislative intent, whether we agree or not.
[Des Marets, supra, 92 N.J. at 65-66(footnote and citation omitted).]
Defendant argues that State v. Kyc, 261 N.J. Super. 104(App. Div. 1992), certif. denied, 133 N.J. 436 (1993),
inferentially permits a judge to sentence a defendant to an
inpatient rehabilitation program in lieu of jail. In Kyc,
however, we held only that a defendant who absconded from a
"Pre-Parole Home Confinement Program" was still in the custody
of the Department of Corrections and could therefore be charged
with the crime of escape, N.J.S.A. 2C:29-5(a). Id. at 106-110.
We did not hold that a judge may impose a sentence of an
inpatient program when mandatory minimum incarceration is
statutorily required.
We must interpret a statute based on its plain meaning.
State v. Drury, 190 N.J. 197, 209 (2007). When the Legislature
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intends an exception to a mandatory minimum sentence for a
fourth-degree crime, specific language allows the judge to waive
the parole disqualifier under the circumstances set forth in the
exception. See N.J.S.A. 2C:43-6.5(c) (granting the court
discretion under certain limited circumstances to waive or
reduce the mandatory minimum term for a public employee
convicted of certain crimes, including fourth-degree crimes for
which a one-year mandatory minimum would ordinarily apply); see
also N.J.S.A. 2C:35-14(b)(3) (permitting a sentence of "special
probation" for persons convicted pursuant to N.J.S.A. 2C:35-7,
of distribution or possession with intent to distribute drugs in
a school zone, who would otherwise be subject to a mandatory
minimum period of incarceration).
N.J.S.A. 2C:40-26(b) is not the only fourth-degree crime
that requires, without exception, a mandatory minimum period of
incarceration. Fourth-degree reckless endangerment, N.J.S.A.
2C:12-2(b)(2), requires a mandatory minimum term of imprisonment
of not less than six months when the offense is committed by
surreptitiously inducing a person to ingest poisonous or
intoxicating food or drink.
Defendant was sentenced to an illegal sentence in two ways.
First, and most significantly, no discretion exists in Title 2C
to replace half of the mandatory 180 days of incarceration with
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a non-jail rehabilitation program. Second, a sentence to an
inpatient rehabilitative program is not authorized by Title 2C
except as a condition of probation. N.J.S.A. 2C:45-1(b)(1)-(14)
(listing the conditions of probation a judge may require of a
defendant).
Reversed and remanded for resentencing. We do not retain
jurisdiction.
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