STATE OF NEW JERSEY v. FRANCIS STINE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4637-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS STINE,

Defendant-Appellant.

________________________________

October 4, 2010

 

Submitted: May 5, 2010 Decided:

 

Before Judges C.L. Miniman and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-30-08-Y08.

 

Jeffrey M. Russo, attorney for appellant.

 

Thomas S. Ferguson, Warren County Prosecu tor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Francis Stine appeals from the sentences imposed following his plea of guilty to driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50, and DWI with a minor in the vehi cle, contrary to N.J.S.A. 39:4-50.15(b). Defendant was sen tenced in the municipal court as a second offender under N.J.S.A. 39:4-50 and received a loss of driving privileges for two years, fines and costs totaling $1014, thirty days of com munity service, a two-day term in jail, and forty-eight hours at the Intoxi cated Driver's Resource Center (IDRC). On the N.J.S.A. 39:4-50.15(b) offense, he was sentenced to a consecutive six-month loss of driving privileges, fines and costs totaling $433, five days of community service, and a forty-five day jail term. On de novo review in the Law Division, the judge imposed the same sentence that the municipal judge imposed. We now affirm in part and remand for de novo resentencing.

I.

On November 27, 1979, defendant was charged with allowing a drunk driver to operate a motor vehicle, contrary to N.J.S.A. 39:4-50. He was convicted after a bench trial on March 3, 1980. On December 8, 1984, defendant was charged with operating a motor vehicle while intoxicated, also contrary to N.J.S.A. 39:4-50. He pled guilty on February 28, 1985, and was sentenced as a second offender in the municipal court to forty-eight hours in jail, thirty days of community service, and a two-year loss of driving privileges. He was ordered to pay a $750 fine, $20 in court costs, and a $100 DWI surcharge. However, on June 11, 1985, the Law Division judge on de novo review disagreed with that sentence, concluding that defendant should be sentenced as a first offender because, as defendant argued, the DWI-allowing conviction should not be bundled with the DWI conviction to determine the number of offenses. Defendant was sentenced to twelve hours in an IDRC, a six-month loss of driving privileges, and was ordered to pay a $350 fine and $20 in court costs. Neither party appealed this decision.

On January 21, 2008, defendant was arrested by Green wich Township Patrolman Sean McLaughlin and charged with DWI, contrary to N.J.S.A. 39:4-50; DWI with his ten-year-old son in his vehicle, a disorderly persons offense under N.J.S.A. 39:4-50.15(b); refusal to submit to alcohol testing, contrary to N.J.S.A. 39:4-50.4a; failure to maintain lane, contrary to N.J.S.A. 39:4-88(b); careless driving, contrary to N.J.S.A. 39:4-97; and three charges of failure to exhibit his driver's license, registration, and insurance card, all contrary to N.J.S.A. 39:3-29.

Defendant pled guilty to the charges of DWI and DWI with a minor on October 20, 2008. He admitted drinking six beers before operating his vehicle while his wife and son were passen gers. Defendant argued that the municipal judge was bound by the June 11, 1985, Law Division determination that he was a first offender. Therefore, he contended he should again be sentenced as a first offender pursuant to the step-down provision of N.J.S.A. 39:4-50, since more than ten years had elapsed since his December 8, 1984, offense. The judge concluded that he was not bound by the June 11, 1985, sentence, which he considered erroneous, and determined to sentence defendant as a step-down second offender. Defendant further contended that no jail time should be imposed on the disorderly persons offense because he had no criminal record, but the judge disagreed.

On the DWI charge, the judge sentenced defendant to two days in jail, forty-eight hours in an IDRC, 30 days of community service, and a two-year loss of driving privileges, and ordered defendant to pay a $656 fine, $33 in court costs, a $50 Violent Crimes Compensation Board (VCCB) surcharge, a $75 Safe Neighborhood fine, and two $100 driving-enforcement surcharges.

On the disorderly persons offense of DWI with a minor, the judge sentenced defendant to forty-five days in jail, five days of community service, and a six-month consecutive loss of driv ing privileges, and ordered defendant to pay a $400 fine and $33 court costs.

Defendant appealed both sentences, seeking de novo review in the Law Division. On May 12, 2009, the Law Division judge issued a written decision in which he noted that our Supreme Court in State v. Kashi, 180 N.J. 45, 48 (2004), held that N.J.S.A. 39:4-50 "is 'one offense that may be proved by alternative evidential methods,'" making defendant a third offender. He concluded that the 1985 Law Division decision "is immaterial to these proceedings for it has no affect [sic] upon the actual number of violations committed by the defendant." He found "beyond a reasonable doubt that the defendant should be sentenced as a second-offender and that the sentence imposed by the Greenwich Township Municipal Court was neither punitive, nor irrational. It is an appropriate sentence and should be immediately enforced."

As to the disorderly persons offense of DWI with a minor, he found aggravating factor (3),1 because "defendant's previous convictions for drunk driving indicate that it is very likely that the defendant will commit a similar crime in the future." He also found aggravating factor (9),2 because "[d]runk driving imposes a danger to fellow motorists on the road as well as to pedestrians who may be within the realm of danger," and inferen tially, defendant and others must be deterred from drunk driv ing. He also found mitigating factor (7),3 because defendant had no prior criminal record. He concluded: "The court finds that the aggravating factors . . . outweigh the mitigating factors and, again, the municipal court judge was not unduly punitive, under the circumstances, and that the sentence was appropriate." The judge subsequently denied a stay pending appeal.

II.

Defendant appealed and sought an emergent stay andbail pendingappeal. Wedenied bothapplications holding as follows:

There is no presumption against imprisonment because, although the N.J.S.A. 39:4-50.15 offense is a disorderly persons offense, see N.J.S.A. 2C:1-4b, c, it is one that had as an element a second DWI as to which a minimum mandatory custodial sentence was imposed. In any event, even if a first DWI offender, defendant pled guilty not-withstanding the State's 60 day custodial recommendation on the DWI with a minor, and was not sentenced to "imprisonment" within the meaning of N.J.S.A. 2C:44-1e. See State v. Hartye, 105 N.J. 411, 418-20 (1987) and State v. O'Connor, 105 N.J. 399, 408-09 (1987).

Defendantraises thefollowing issues for our consideration:

POINT ONE THE APPELLANT SHOULD HAVE BEEN SENTENCED AS A FIRST OFFENDER BECAUSE MORE THAN TEN (10) YEARS HAD ELAPSED BETWEEN HIS FIRST AND SECOND CONVICTIONS FOR DRIVING WHILE INTOXICATED.

 

POINT TWO THE TRIAL COURT FAILED TO APPLY THE PRESUMPTION OF NON-INCARCERATION WHICH RESULTED IN THE APPELLANT ERRONEOUSLY RECEIVING A FORTY-FIVE DAYS CUSTODIAL SENTENCE.

The scope of our review in this case is limited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division conducts a trial de novo on the record developed in the municipal court, pursuant to Rule 3:23-8. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The Law Division judge is bound to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted); State v. Locurto, 157 N.J. 463, 472-74 (1999). The Law Division judge then finds the facts anew and reaches his or her own independent conclusions. Johnson, supra, 42 N.J. at 157. If the judge finds the defendant guilty, he determines the aggravating and mitigating factors and imposes sentence anew. State v. Moran, 202 N.J. 311, 325 (2010); State v. States, 44 N.J. 285, 293-94 (1965) (citations omitted); see also State v. L.V., 410 N.J. Super. 90, 108 (App. Div. 2009) (noting that "[i]n sentencing, consideration of aggravating and mitigating factors must be part of the deliberative process" (citations omitted)), certif. denied, 201 N.J. 156 (2010). Thus, it is not the function of the Law Division judge to "affirm" or "reverse" the municipal judge's determinations. State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004).

Before addressing the issues raised by defendant, we note that the Law Division judge misconceived his function on appeal from the municipal court judgment. De novo review requires a fresh determination of the issues based on the record below, with due regard being given to the municipal judge's credibility determinations, of which there were none here. Thus, the judge should have imposed his own sentence on defendant, not reviewed and affirmed the municipal sentence. This misconception of his role requires us to remand this matter for resentencing.

III.

In his first point on appeal, defendant contends that he should have been sentenced as a first offender because his 1985 conviction was found to be a first offense on appeal to the Law Division, and twenty-three years had elapsed since that conviction. He urges that the 1985 judgment is binding under principles of res judicata, collateral estoppel, due process, and fundamental fairness. He infers from the 1985 sentence that the Law Division judge adopted his arguments and construed N.J.S.A. 39:4-50 as containing separate offenses and that DWI allowing convictions were not to be treated as a prior DWI conviction for DWI sentencing purposes. He contends that this Law Division judge erred in finding that the 1985 judgment was immaterial to sentencing on the 2008 DWI.

N.J.S.A. 39:4-50 has been amended sixteen times since defendant's 1984 DWI offense.4 The statute in effect at the time of an offense governs the determination of guilt and the sentence imposed. State v. Kostev, 396 N.J. Super. 389, 391 (App. Div.) (citing N.J.S.A. 1:1-15; State v. Chambers, 377 N.J. Super. 365, 372 (App. Div. 2005)), certif. denied, 193 N.J. 276 (2007); State v. Nagle, 226 N.J. Super. 513, 516 (App. Div. 1988) (citing Skulski v. Nolan, 68 N.J. 179, 202 (1975)). Furthermore, Supreme Court and Appellate Division cases construing and applying a statute that have been decided prior to an offense must be applied by the Law Division to the determination of guilt and the imposition of sentence, as such cases are binding on the trial court. State v. Johnson, 230 N.J. Super. 583, 591 (App. Div. 1989) (finding that the "trial judge was obliged to follow the mandates of the New Jersey Code of Criminal Justice as interpreted and implemented by the decisions of our Supreme Court in deciding the sentence to be imposed"); see also Severns v. Concord Chem. Co., 373 N.J. Super. 368, 374 (App. Div. 2004) ("Trial courts are bound by decisions of the Appellate Division and, of course, by decisions of the Supreme Court, that apply to the facts in the case under consideration.").

By 1985, we had considered the issue of prior convictions under N.J.S.A. 39:4-50 on a number of occasions. State v. Sweeney, 190 N.J. Super. 516, 519-20 (App. Div. 1983) (reversing trial judge who sua sponte raised issue respecting earlier violation of right to counsel on first offense as precluding sentencing defendant as a second offender for a subsequent DWI because there was no violation of the right to counsel when defendant had not received a custodial sentence for the first offense); State v. Culbertson, 156 N.J. Super. 167, 170-71 (App. Div. 1978) (conviction of lesser-included offense of impaired driving constituted a first offense for sentencing purposes upon conviction of DWI after the statute was amended to delete impaired driving); State v. McGrew, 127 N.J. Super. 327, 329 (App. Div. 1974) (where first conviction did not result in a custodial sentence, there was no right to counsel at that time that arguably might preclude sentencing defendant as a second offender upon conviction for a subsequent offense); State v. Sturn, 119 N.J. Super. 80, 83 (App. Div.) (when statute contained a lesser-included offense of impaired driving, a prior conviction of DWI under the former statute was a first offense, and a subsequent conviction of impaired driving was a second offense for sentencing purposes), certif. denied, 61 N.J. 157 (1972); State v. Guiendon, 113 N.J. Super. 361, 363-64 (App. Div. 1971) (rejecting defendant's argument that he could not be treated as a second offender where the second offense occurred before he was tried and convicted of DWI for the first offense; statutory language provided increased sentence "for a subsequent violation"). None of these cases addressed the issue presented to the Law Division judge on de novo review of defendant's second conviction under N.J.S.A. 39:4-50 for DWI on December 8, 1984.

The statute at that time provided:

(a) A person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood, shall be subject:

(1) For the first offense, to a fine of not less than $250.00 nor more than $400.00 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day . . . .

 

(2) For a second violation, a person shall be subject to a fine of not less than $500.00 nor more than $1,000.00, and shall be ordered by the court to perform community service for a period of 30 days . . . , and shall be sentenced to imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, nor more than 90 days . . . .

 

(3) For a third or subsequent violation, a person shall be subject to a fine of $1,000.00, and shall be sentenced to imprisonment for a term of not less than 180 days . . . .

 

[L. 1984, c. 243, 1.]

 

The Law Division judge who heard defendant's appeal from his second conviction construed N.J.S.A. 39:4-50(a) as setting forth four separate and independent offenses under the statute. He further concluded that those four separate and independent offenses should not be bundled for sentencing purposes under N.J.S.A. 39:4-50(a)(1) to -50(a)(3). The Supreme Court later considered the issue of separate offenses in State v. Hessen, 145 N.J. 441, 454 (1996), albeit in a slightly different context.

There, the defendant allowed a clearly intoxicated driver to drive her car, resulting in a head-on collision with another car, killing the other driver and seriously injuring four other people, including the defendant. Id. at 445. The prosecutor allowed the defendant to plead guilty to the lesser charge of allowing an unlicensed driver to operate a motor vehicle. Ibid.

After reviewing the history of Supreme Court regulation of plea bargaining and rejecting the defendant's claim that those regulations violated the separation of powers provision of the New Jersey Constitution, id. at 446-454, the Court turned to the main issue in the case, "whether the ban on plea bargaining in drunk-driving cases applies to the offense of permitting or allowing an intoxicated person to drive one's car." Id. at 454. The Court noted plea-bargaining Guideline 4, which bans plea agreements in "drunken driving or certain drug offenses" under N.J.S.A. 39:4-50. Id. at 455. The statute, on the other hand, prescribed four types of conduct, including DWI allowing. Ibid. The defendant urged that the ban did not apply to a charge of DWI allowing. Ibid.

The Court rejected that argument, reasoning that "[t]he prefatory description of the offenses covered by the Guideline was not intended to be a definitive substantive description of each of the offenses subject to the plea bargain prohibition." Id. at 456. It determined that carving out an exception for DWI allowing would undermine the important policy behind the prohibition. Ibid.

Moreover, the Legislature clearly viewed a person who allows an intoxicated person to drive as one who contributes to the awful consequences of drunk driving and, therefore, shares the responsibility for those consequences. That person is as blameworthy as the drunk driver--her conduct is included in the drunk-driving statute, N.J.S.A. 39:4-50; it is an offense of equal magnitude to drunk driving; and it is subject to the same punishment that is applicable to an intoxicated driver. The act of unleashing a drunk driver onto the highways creates the very risk to the safety of other drivers and the public that is posed by the intoxicated driver. The Legislature has seen fit to define the offense as one of the same gravity as drunk driving itself and to prescribe identical punishments for both offenses. Those considerations impelled this Court to treat these two types of offenders consistently, subjecting them to identical restrictions in plea bargaining.

 

[Id. at 458-59 (citation omitted).]

 

The Court concluded, "In the eyes of the law, there is no distinction in culpability or punishment between drunk drivers and those who allow the drunk to drive." Id. at 459.

That same year, we decided State v. Nicolai, 287 N.J. Super. 528 (App. Div. 1996). There, the State contended that the Law Division imposed an illegal sentence on the defendant's fourth DWI conviction. Id. at 530. The defendant had been convicted of DWI in 1979, 1980, and 1992. Ibid. On the third offense, the defendant was treated as a second offender because more than ten years had elapsed since his second offense. Ibid. However, on reconsideration of sentence, the municipal court treated the defendant as a first offender. Ibid. In 1995, the defendant was charged with DWI for the fourth time, and the municipal judge treated him as a third offender. Id. at 531. On appeal, the Law Division concluded "that it would be a violation of due process to impose a sentence inconsistent with defendant's reasonable and justifiable expectations." Ibid. We rejected that conclusion. Ibid.

What is involved here is the judicial obli gation to enforce a legislatively mandated sentence. When the Legislature imposes minimum penalties for certain offenses, the judiciary must enforce that mandate. We would frustrate the legislative command if we were to conclude that defendant could avoid the statutorily required minimum sen tence for a third offender merely because the municipal court imposed an illegal pen alty on an earlier conviction and the prose cutor failed to challenge that error by fil ing an appeal. The Constitution does not require us to treat sentencing as a game in which a misplay by a judge means immunity for an offender. An illegal sentence may be corrected at any time. Indeed, an illegal sentence may be increased to conform to the dictates of a statute.

 

We find no basis for the Law Division's statement that a sentence in accordance with the mandatory penalties provided by N.J.S.A. 39:4-50(a)(3) would conflict with defen dant's justifiable expectations. No defen dant can claim a legitimate expectation of finality in a sentence below the statutorily mandated minimum. In any event, the sen tence at issue here is not the one imposed in 1992. No one seeks to compel defendant at this late date to serve the sentence that should have been imposed on that conviction. Defendant has already benefited [sic] from the mistake made on that occasion, but he has no vested right in perpetuating that illegality.

 

[Id. at 531-32 (citations omitted).]

 

In 2006 the Supreme Court considered the four ways by which N.J.S.A. 39:4-50 could be violated. Kashi, supra, 180 N.J. at 47-48. The Court quoted the manner in which it had broken out the statute into four parts and held that it no longer subscribed to the notion that the statute contained four separate offenses. Ibid. Instead, it concluded that "N.J.S.A. 39:4-50(a) creates one offense that may be proved by alternative evidential methods." Id. at 48. It supported this conclusion with the language of the statute providing penalties for the "first offense," "second violation," and "third or subsequent violation" rather than to the single offense of DWI. Ibid.

In light of Kashi, Hesson and Nicolai, we are satisfied that the judge imposing the sentence for defendant's 1985 conviction misconstrued the statute when he treated that conviction as a first offense for sentencing purposes. We also conclude that no principles of res judicata, collateral estoppel, due process, and fundamental fairness bind the courts to perpetuate that mistake when sentencing defendant for his third offense under N.J.S.A. 39:4-50(a). The judge handling defendant's third offense in 2008 did not modify the 1985 illegal sentence; rather, he properly applied the law as it existed in 2008 to defendant's third offense under the statute, recognizing that all four methods of violating the statute constituted but one offense for sentencing purposes.

IV.

Weturn to defendant's claim that the Law Division failed to apply the presumption of non-incarceration in N.J.S.A. 2C:44-1 to his conviction for violating N.J.S.A. 39:4-50.15(b), DWI with a minor. He urges that a violation of N.J.S.A. 39:4-50.15(b) is a disorderly persons offense subject to N.J.S.A. 2C:44-1, requiring consideration of aggravating and mitigating factors and presumptions of incarceration and non-incarceration. He contends that he had no prior disorderly person or criminal convictions and, as a first-time offender, was entitled to the presumption of non-incarceration contained in N.J.S.A. 2C:44-1(e). He urges that State v. Gardner, 113 N.J. 510 (1989), held that the presumption of incarceration may only be overcome "by a standard that is higher than 'clear and convincing' evidence that incarceration is necessary." Id. at 517-18. He urges that the record is devoid of any such evidence and that the sentence imposed for this offense "violate[d] fundamental Due Process, the statutory scheme with respect to sentencing, and well-established case law."

We addressed and resolved this issue when defendant sought a stay of his custodial sentence after he filed his appeal. N.J.S.A. 39:4-50.15(b) provides: "A parent or guardian who is convicted of a violation of [N.J.S.A.] 39:4-50 and who, at the time of the violation, has a minor as a passenger in the motor vehicle is guilty of a disorderly persons offense." Subsection (c) then provides:

In addition to the penalties otherwise prescribed by law, a person who is convicted under subsection b. of this section shall forfeit the right to operate a motor vehicle . . . for a period of not more than six months and shall be ordered to perform community service for a period of not more than five days.

 

[N.J.S.A. 39:4-50.15(c).]

 

Defendant has not demonstrated any error in our determination that he was not entitled to a stay of the custodial sentence. Additionally, the issue is moot as his sentence was served in full long ago.

Affirmed in part and remanded for de novo resentencing.

 

1 N.J.S.A. 2C:44-1a(3).

2 N.J.S.A. 2C:44-1a(9).

3 N.J.S.A. 2C:44-1b(7).

4 L. 1984, c. 243, 1; L. 1986, c. 126, 1; L. 1993, c. 296, 6; L. 1994, c. 184, 1; L. 1995, c. 243, 1; L. 1997, c. 277 1; L. 1999, c. 185, 4; L. 1999, c. 417, 7; L. 2000, c. 83, 1; L. 2000, c. 117, 1; L. 2001, c. 12, 1; L. 2002, c. 34, 17; L. 2003, c. 314, 2; L. 2003, c. 315, 2; L. 2004, c. 8, 2 and L. 2009, c. 201, 1.