STATE OF NEW JERSEY v. JASON ROSEVELT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON ROSEVELT,

Defendant-Appellant.

___________________________

February 14, 2014

Submitted February 5, 2014 Decided

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-09-0957.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for third-degree eluding, N.J.S.A. 2C:29-2b; driving while under the influence (DUI), N.J.S.A. 39:4-50; and driving while on a revoked license, N.J.S.A. 39:3-40. We remand.

In May 2012, defendant pled guilty to these offenses anticipating that he would be sentenced to drug court and receive an aggregate one-year suspension of his driver's license. Defendant filled out plea papers that reflect "[a]ll [license] suspensions are [to be] concurrent." At the plea hearing, defense counsel represented without objection that the license suspensions for all three offenses "are intended to be concurrent," and the judge said "[o]kay."

In June 2012, the judge discussed with counsel for the first time whether to run the license suspensions consecutively. After a limited discussion and without the filing of legal briefs, the judge explained that she would run the suspensions consecutively pursuant to her interpretation of N.J.S.A. 39:5-30d, which states that

[a] suspension issued pursuant to this act shall not run concurrently with any other suspension issued pursuant to law. A licensee may apply to the director for reinstatement of his license following the period of suspension issued.

Defense counsel objected to a consecutive license suspension and maintained that the judge was misapplying the statute. Because she was unwilling to follow the plea agreement and sentence defendant to a concurrent license suspension, the judge suggested to counsel that they renegotiate the plea deal. Defense counsel rejected that suggestion and the judge suspended defendant's license for one year on the eluding conviction, consecutive to a one-year suspension on the driving on a revoked license conviction and a seven-month suspension on the DUI conviction. The aggregate suspension is two years and seven months.1

Defendant appealed from these convictions, arguing that the consecutive nature of the license suspensions was excessive. The parties appeared before us on our excessive sentencing oral argument (ESOA) calendar. Defense counsel contended that defendant was pressured to accept the consecutive suspensions. After defense counsel stated that the parties negotiated for a concurrent license suspension, the following colloquy occurred:

Court: It's in the plea agreement.

Defense counsel: I know, the plea form.

Court: [I]t's [in] the plea transcript too.

Defense counsel: Eventually they undo that.

Court: Not just the [plea] form. It's in the plea colloquy.

Defense counsel: Right, but they undo it at sentencing.

. . . .

I think that was under the pressure of the judge[.] [T]he defendant really wanted drug court. He didn't want to go to State [p]rison. He wanted the drug court program. And when you're in that position, you say, you know, anything the judge wants that's reasonable, you say yes to because if you want to get into drug court, this is your one time. So I'm asking for a remand.

[(Emphasis added).]

The assistant prosecutor also requested a remand to correct the JOC to reflect the one-year license suspension on the eluding conviction. Although we indicated that a remand would also necessitate a full legal briefing and oral argument before the judge, we removed the appeal from our ESOA calendar and allowed the parties to brief the issue before us.

On appeal, defendant argues that

THE COURT ERRED IN RULING THAT N.J.S.A. 39:5-30D REQUIRED THE COURT TO IMPOSE CONSECUTIVE AND NOT CONCURRENT DRIVER'S LICENSE SUSPENSIONS.

We have thoroughly reviewed the record and defendant's argument on appeal and now remand in accordance with defense counsel's request at ESOA. We do so primarily for two reasons: (1) before us on our ESOA calendar, defense counsel contended that defendant felt pressured to proceed to sentencing; and (2) the parties never fully briefed and argued the issue of consecutive or concurrent sentences before the judge.

On remand, the parties may renegotiate the plea agreement in its entirety, as suggested by the judge. If the parties are unwilling to reach a new plea agreement, then defendant may move to set aside the plea if warranted. If defendant chooses not to seek a vacation of his plea agreement, then the judge is directed to schedule a briefing and oral argument regarding the applicability of N.J.S.A. 39:5-30d and whether the suspension of defendant's license is to be concurrent or consecutive. We do not retain jurisdiction.

1 The judgment of conviction (JOC) does not accurately reflect these consecutive sentences. On remand, the parties are directed to address whether an amendment to the JOC is warranted.