STATE OF NEW JERSEY , v. ANDRES I. CHAVARRIA

Annotate this Case

(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NOT FOR PUBLICATION WITHOUT THE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-4473-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

June 4, 2020
v.
APPELLATE DIVISION
ANDRES I. CHAVARRIA,

Defendant-Appellant.
__________________________

Submitted April 27, 2020 – Decided June 4, 2020

Before Judges Messano, Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey,
Law Division, Sussex County, Accusation Nos. 18-10-
0303 and 18-10-0304.

Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Catlin A. Davis, Deputy Attorney
General, of counsel and on the brief).

The opinion of the court was delivered by

VERNOIA, J.A.D.
Defendant Andres I. Chavarria pleaded guilty to two counts of fourth -

degree operating a motor vehicle during a period of license suspension or

revocation for a second or subsequent violation of N.J.S.A. 39:4-50, driving

while under the influence (DUI), or N.J.S.A. 39:4-50.4a, refusal to provide a

breath sample. N.J.S.A. 2C:40-26(b). Defendant also pleaded guilty to DUI.

In accordance with his plea agreement, the court sentenced defendant to

an aggregate 360-day custodial sentence, with a 360-day mandatory period of

parole ineligibility, as a condition of serving probation. The sentence was

comprised of consecutive 180-day terms of imprisonment with 180-day

periods of parole ineligibility as a condition of probation for defendant's

convictions under N.J.S.A. 2C:40-26(b). The court also imposed a 180-day

concurrent custodial sentence on the DUI conviction.1

Defendant appeals from his sentence, arguing the probationary portions

of his sentence are illegal because the Criminal Code does not authorize

mandatory periods of parole ineligibility as a condition of probation. He also

contends the court did not consider and find the required factors for imposing

consecutive sentences under State v. Yarbough, 100 N.J. 627 (1985).

Originally argued on the excessive sentencing calendar, the appeal was placed

1
The sentence included other conditions—payment of fines and penalties; a
ten-year suspension of defendant's driving privileges; and other mandatory
penalties for defendant's DUI conviction—that are not pertinent to this appeal.

A-4473-18T3
2
on a plenary calendar to more fully develop the arguments challenging the

legality of defendant's sentences.

Defendant presents the following arguments for our consideration:

THE SENTENCES IMPOSED UPON DEFENDANT
ARE ILLEGAL, AS [ N.J.S.A.] 2C:40-26 REQUIRES
A SENTENCE OF IMPRISONMENT,
PROBATIONARY SENTENCES CANNOT
INCLUDE PERIODS OF PAROLE INELIGIBILITY,
AND THE CONSECUTIVE TERMS WERE
IMPOSED WITHOUT CONSIDERATION OF THE
YARBOUGH GUIDELINES[.]

We have carefully considered the record and reject defendant's claim the

Criminal Code does not authorize a sentence of probation conditioned on

service of a term of imprisonment that includes a mandatory period of parole

ineligibility. We agree the court did not expressly address the factors required

for the imposition of consecutive sentences under Yarbough, and we find the

court incorrectly imposed sentences that included consecutive terms of

imprisonment and concurrent terms of probation. We therefore vacate the

court's imposition of consecutive terms of imprisonment and concurrent

probationary terms, and we remand for resentencing.

Defendant contends his sentences are illegal because the Criminal Code

does not authorize a probationary sentence conditioned on service of

imprisonment that includes a mandatory period of parole ineligibility. Our

A-4473-18T3
3
Supreme Court has explained "[t]here are two categories of illegal sentences:

those that exceed the penalties authorized for a particular offense, and those

that are not authorized by law." State v. Hyland, 238 N.J. 135, 145 (2019).

Defendant contends his sentences are within the latter category because "[a]

sentence 'not imposed in accordance with law' includes 'a disposition [not]

authorized by the [Criminal] Code.'" State v. Drake, 444 N.J. Super. 265, 271

(App. Div. 2016) (quoting State v. Murray, 162 N.J. 240, 247 (2000)).

Defendant's argument his sentences are not authorized by the Criminal

Code is based on his interpretation of various statutory provisions. In the first

instance, defendant notes that a conviction under N.J.S.A. 2C:40-26 requires

imposition of a "term of imprisonment" which shall include "a fixed minimum

sentence of not less than 180 days during which the defendant shall not be

eligible for parole." N.J.S.A. 2C:40-26(c). He contends that, because a term

of imprisonment with a minimum period of parole ineligibility is a required

disposition under N.J.S.A. 2C:40-26, a sentence of imprisonment as a

condition of probation is not an authorized sentence for individuals convicted

of the crime.

Defendant also relies on N.J.S.A. 2C:43-2, which "enumerates the

available sentencing alternatives" under the Criminal Code. State v. O'Connor,

105 N.J. 399, 406 (1987). He argues that because N.J.S.A. 2C:40-26 mandates

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a sentence of imprisonment, the only enumerated sentencing alternative

available under N.J.S.A. 2C:43-2 is imposition of a term of imprisonment

under subsection (b)(3). In pertinent part, N.J.S.A. 2C:43-2(b)(3) provides, as

an authorized sentencing alternative, for "imprisonment for a term authorized

by . . . [N.J.S.A.] 2C:43-6."

Defendant acknowledges subsection (b)(2) of N.J.S.A. 2C:43-2

authorizes imposition of a sentence of up to 364 days of imprisonment as a

condition of probation for a criminal conviction. He claims, however, N.J.S.A.

2C:43-2(b)(2) does not authorize the sentences imposed by the court because

he was sentenced to terms of "imprisonment" under N.J.S.A. 2C:43-6.

Defendant contends that "by mandating the imposition[] of 'a term of

imprisonment' and a period of parole ineligibility, . . . the Legislature intended

one convicted of a [ N.J.S.A.] 2C:40-26 offense to be sentenced to

imprisonment pursuant to [ N.J.S.A.] 2C:43-2(b)(3), and that the probationary

sentencing option set forth in [ N.J.S.A.] 2C:43-2(b)(2) is not available."

Defendant's arguments require an interpretation of the Criminal Code's

sentencing provisions. "'Questions related to statutory interpretation are legal

ones.' Thus, '[w]e review such decisions de novo, "unconstrained by deference

to the decisions of the trial court . . . ."'" State v. Rodriguez, 238 N.J. 105, 113

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(2019) (first quoting State v. S.B., 230 N.J. 62, 67 (2017), then quoting State

v. Grate, 220 N.J. 317, 329 (2015)).

Our review begins with the plain language of the statutes, "which is the

'best indicator' of legislative intent," ibid. (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)), and, in conducting the analysis, "[a] statute's plain

language must be construed 'in context with related provisions so as to give

sense to the legislation as a whole,'" ibid. (quoting Spade v. Select Comfort

Corp., 232 N.J. 504, 515 (2018)). "Unless it is 'inconsistent with the manifest

intent of the legislature,' or 'another or different meaning is expressly

indicated,' we ascribe to the Legislature's words and phrases 'their generally

accepted meaning, according to the approved usage of the language.'" Ibid.

(quoting Finkelman v. Nat'l Football League, 236 N.J. 280, 289 (2019)).

Where, as here, "the plain language leads to a clear and unambiguous

result, . . . our interpretative process is over." Id. at 114 (quoting Johnson v.

Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)).

In construing the pertinent statutes, we follow the Court's lead in

Rodriguez, and we "begin our application of the canons of statutory

construction with" N.J.S.A. 2C:43-2, "the Criminal Code's provision

governing, generally, the imposition of sentences." Rodriguez, 238 N.J. at
114; see also State v. Crawford, 379 N.J. Super. 250, 258 (App. Div. 2005).

A-4473-18T3
6 N.J.S.A. 2C:43-2(a) states that "[e]xcept as otherwise provided by" the

Criminal Code, "all persons convicted of an offense or offenses shall be

sentenced in accordance" with N.J.S.A. 2C:43-2(b).

N.J.S.A. 2C:43-2(b) lists the available sentencing alternatives, and it

also makes clear imposition of the delineated alternatives is subject to two

exceptions. The statute states that, "[e]xcept as provided in subsection

[(a)] . . . and subject to the applicable provisions of the" Criminal Code, a

court "may sentence" a defendant pursuant to seven specified sentencing

alternatives. N.J.S.A. 2C:43-2(b). Pertinent to this appeal, the alternatives

include placing a defendant "on probation and, in the case of a person

convicted of a crime, to imprisonment for a term fixed by the court not

exceeding 364 days to be served as a condition of probation[.]" N.J.S.A.

2C:43-2(b)(2). "This is referred to as a split sentence, and the custodial term

[of imprisonment] must be served in a county jail, whereas a sentence of

imprisonment [exceeding 364 days] must be served in a state correctional

facility."2 Crawford, 379 N.J. Super. at 258 (citing State v. Hartye, 105 N.J.
411, 419 (1987)).

2 N.J.S.A. 2C:43-2(b)(2) is subject to the general exceptions set forth in
subsection (b) and also to an additional exception not at issue here. More
specifically, N.J.S.A. 2C:43-2(b)(2) states that "[e]xcept as provided in
subsection [(g)]," a defendant may be placed on probation. Subsection (g)

A-4473-18T3
7
N.J.S.A. 2C:43-2(b) includes another sentencing alternative pertinent

here. As noted, subsection (b)(3) provides for a sentence "[t]o imprisonment

for a term authorized by . . . N.J.S.A. 2C:43-6."3 The statute prescribes the

ordinary terms of imprisonment for the different degrees of crimes under the

Criminal Code, N.J.S.A. 2C:43-6(a)(1) to (4), and it details the standards for

imposition of periods of parole ineligibility "[a]s part of a sentence for any

crime," N.J.S.A. 2C:43-6(b).4

Defendant challenges the sentences imposed for his convictions for

violating N.J.S.A. 2C:40-26(b), a fourth-degree crime. The authorized

ordinary term of imprisonment for a fourth-degree crime is up to eighteen

months. N.J.S.A. 2C:43-6(a)(4). N.J.S.A. 2C:40-26, however, provides that

"[n]otwithstanding the term of imprisonment provided under N.J.S.A. 2C:43- -

(continued)
prohibits imposition of a probationary sentence for defendants convicted of
"any offense enumerated in" N.J.S.A. 2C:43-6.4(a). N.J.S.A. 2C:43-2(g).
3 N.J.S.A. 2C:43-2(b)(3) also provides for sentences of imprisonment for a
term authorized by N.J.S.A. 2C:11-3 (defining sentences for homicide
convictions); N.J.S.A. 2C:43-5 (providing for sentencing of young adult
offenders); N.J.S.A. 2C:43-7 (defining requirements for extended-term
sentences); N.J.S.A. 2C:43-8 (defining sentences for disorderly persons and
petty disorderly persons offenses); and N.J.S.A. 2C:44-5 (defining
requirements for sentences for multiple offenses). We do not address these
provisions because defendant does not argue they apply here.
4 N.J.S.A. 2C:43-6 includes other provisions related to sentencing that are not
relevant to the issues presented on appeal. See N.J.S.A. 2C:43-6(c) to (i).

A-4473-18T3
8
6," a person convicted of the offense must receive "a fixed minimum sentence

of not less than 180 days during which the defendant shall not be eligible for

parole." N.J.S.A. 2C:40-26(c). In other words, a conviction under N.J.S.A.

2C:40-26 requires imposition of a minimum 180-day period of imprisonment

with a 180-day minimum period of parole ineligibility, independent of the

authority to impose parole ineligibility periods under N.J.S.A. 2C:43-6(b).

"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. French, 437 N.J. Super. 333, 337

(App. Div. 2014) (citing State v. Lopez, 395 N.J. Super. 98, 107-08 (App. Div.

2007)). Indeed, "[a] sentence with a mandatory period of parole ineligibility

cannot be reduced below the statutorily mandated parole ineligibility term."

State v. Kearns, 393 N.J. Super. 107, 111 (App. Div. 2007) (citing State v.

Mendel, 212 N.J. Super. 110, 112-13 (App. Div. 1986)).

For each of defendant's criminal convictions, the court imposed a term of

imprisonment in precise compliance with the requirements of N.J.S.A. 2C:40- -

26(c). The court sentenced defendant for each conviction to a 180-day term of

imprisonment subject to the requirement that he serve 180 days without

eligibility for parole. See N.J.S.A. 2C:40-26(c). Defendant's aggregate

A-4473-18T3
9
sentence totaled 360 days, all of which is to be served without parole

eligibility.

As noted, an authorized sentence under N.J.S.A. 2C:43-2(b)(2) for

conviction of a crime includes "imprisonment for a term fixed by the court not

exceeding 364 days . . . as a condition of probation." Here, defendant's

separate sentences for each conviction under N.J.S.A. 2C:40-26, and his

aggregate sentence, fall within the parameters of the permissible term of

imprisonment under N.J.S.A. 2C:43-2(b)(2) for a split sentence. Thus,

defendant's sentences are expressly authorized by N.J.S.A. 2C:43-2(b)(2)'s

plain language, and they are not illegal. See Hyland, 238 N.J. at 145.

Moreover, the periods of parole ineligibility the court imposed are required by

N.J.S.A. 2C:40-26(c). See State v. Pimentel, 461 N.J. Super. 468, 475 (App.

Div. 2019) (noting N.J.S.A. 2C:40-26 "prescribes a mandatory minimum jail

sentence of 180 days").

Defendant ignores the plain language of N.J.S.A. 2C:43-2(b)(2), and he

contends the statute does not authorize a split sentence where the term of

imprisonment imposed includes a mandatory period of parole ineligibility. We

reject that argument because the statute does not include such a limitation, and

"[i]t is not our job to engraft requirements [on a statute] that the Legislature

did not include. It is our role to enforce the legislative intent as expressed

A-4473-18T3
10
through the words used by the Legislature." Lippman v. Ethicon, Inc., 222 N.J. 362, 388 (2015).

We are also not persuaded by defendant's claim the split sentences

imposed are illegal because they are not expressly authorized by the Criminal

Code. Defendant asserts there is no statutory provision permitting a split

sentence that includes a term of imprisonment subject to a mandatory period of

parole disqualification, and, for that reason, his sentences are illegal.

The enumerated sentencing alternatives listed in N.J.S.A. 2C:43-2(b)

must be applied "except as provided in subsection [(a)]," and subsection (a)

includes a more general exception. N.J.S.A. 2C:43-2(a) requires sentencing in

accordance with the seven enumerated sentencing alternatives, "[e]xcept as

otherwise provided by" the Criminal Code. In other words, the enumerated

sentencing alternatives are authorized and must be employed in sentencing

unless the Criminal Code provides otherwise.

As we have explained, defendant was sentenced in exacting compliance

with N.J.S.A. 2C:43-2(b)(2)'s plain language, and the Criminal Code does not

"otherwise provide[]" that a split sentence cannot include a period of parole

ineligibility. Indeed, defendant does not identify any statutory provision

barring imposition of a period of parole ineligibility on the term of

imprisonment imposed as part of a split sentence. Again, if the Legislature

A-4473-18T3
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intended to prohibit a split sentence that included a term of imprisonment

subject to a mandatory period of parole ineligibility, it would have "otherwise

provided" for such an exception in the Criminal Code. It did not, and we

cannot find or rely upon that which is not there. See Lippman, 222 N.J. at 388.

In Rodriguez, the Court determined an intermittent custodial sentence

imposed pursuant to subsection (b)(7) of N.J.S.A. 2C:43-2 was not an

authorized sentence of imprisonment for a conviction under N.J.S.A. 2C:40-

26(c). 238 N.J. at 117. The Court discussed the differences between an

intermittent sentence of imprisonment and a sentence of imprisonment subject

to a period of parole ineligibility, and it found service of an intermittent

sentence under N.J.S.A. 2C:43-2(b)(7) is inconsistent with, and does not meet

the requirements of, the period of parole ineligibility mandated under N.J.S.A.

2C:40-26(c). Id. at 114-19. We have similarly held a sentence that is

inconsistent with service of a mandatory period of parole ineligibility is an

unauthorized and illegal sentence. See French, 437 N.J. Super. at 338 (holding

"no discretion exists in Title 2C to replace half of the mandatory 180 days of

incarceration with a non-jail rehabilitation program"); State v. Harris, 439 N.J.

Super. 150, 160 (App. Div. 2015) (holding "[b]ecause N.J.S.A. 2C:40- -26(c)

requires a 'fixed minimum sentence of not less than 180 days' without parole

A-4473-18T3
12
eligibility for violations of N.J.S.A. 2C:40-26(b), a sentence to a non-custodial

'alternative program,' instead of jail, is plainly illegal").

In Rodriguez, the Court reasoned that an intermittent sentence under

N.J.S.A. 2C:43-2(b)(7) is not authorized for a conviction under N.J.S.A.

2C:40-26 because N.J.S.A. 2C:40-26(c) "otherwise provide[s]" for service of a

mandatory period of parole ineligibility. 238 N.J. at 117. Here, unlike in

Rodriguez, there is no Criminal Code provision that "otherwise provides" for a

sentence that is inconsistent with imposition of a split sentence for a p erson

convicted of violating N.J.S.A. 2C:40-26. Imposition of the parole

ineligibility period required under N.J.S.A. 2C:40-26(c) is not inconsistent

with imposition of a split sentence. The period of parole ineligibility merely

defines the manner in which the term of imprisonment that is imposed as a

condition of probation will be served. The plain language of N.J.S.A. 2C:43- -

2(b)(2) imposes only one condition related to the permissible term of

imprisonment for a split sentence; it must be 364 days or less. Defendant's

sentences, individually and in the aggregate, satisfy that condition, and they

are therefore authorized by N.J.S.A. 2C:43-2(b)(2).

Defendant also contends he could not be sentenced in accordance with

N.J.S.A. 2C:43-2(b)(2) because the court imposed a term of "imprisonment" in

accordance with N.J.S.A. 2C:43-6. He relies on Hartye, where the Court

A-4473-18T3
13
considered whether a term of imprisonment as a condition of probation could

be imposed when, due to the defendant's lack of a prior conviction of an

offense, the presumption of non-incarceration under N.J.S.A. 2C:44-1(e)

applied. 105 N.J. at 418-20. In its analysis, the Court in Hartye explained that

"a sentence of imprisonment under N.J.S.A. 2C:43-2(b)(3) was intended by the

Legislature to be different and distinct from a prison term imposed as a

condition of probation under N.J.S.A. 2C:43-2(b)(2)." Id. at 419.

The Court recognized that both subsections (b)(2) and (b)(3) of N.J.S.A.

2C:43-2 provide for imposition of terms of "imprisonment," and it noted

differences between the imprisonment authorized in each subsection. Id. at

418-19. For example, the Court explained that a term of imprisonment under

subsection (b)(3) "must be served in a state correctional facility," whereas the

custodial portion of a split sentence under subsection (b)(2) may only be

served in the county jail. 5 Id. at 419; see also O'Connor, 105 N.J. at 409

5
The Court noted an additional difference between imprisonment under
N.J.S.A. 2C:43-2(b)(2) and (b)(3). Id. at 419. The Court explained that
"unlike a state prison term, the custodial element of a probationary sentence
may commence at any time during the probationary period, and may be
reduced on defendant's motion at any time before the sentence of probation has
expired." Ibid. (citations omitted). These differences are irrelevant to our
consideration of the legality of defendant's sentences because, as noted,
defendant's sentences render him ineligible to serve a state prison term, and the
Court in Hartye was not required to, and did not, address sentences that
included mandatory periods of parole ineligibility.

A-4473-18T3
14
(explaining the distinction between imprisonment under N.J.S.A. 2C:43-

2(b)(2) and (b)(3) is that "a term of imprisonment as a condition of probation

must be served in a county jail, while in the majority of cases a sentence of

imprisonment [under subsection (b)(3)] must be served in a state correctional

facility").

Measured against those standards, the custodial portion of defendant's

sentence, including imposition of the period of parole ineligibility, falls within

the imprisonment authorized by N.J.S.A. 2C:43-2(b)(2) and clearly outside the

imprisonment authorized by N.J.S.A. 2C:43-2(b)(3). Defendant's aggregate

sentence is less than 364 days, so he will serve the sentence in the county jail

and not in a state prison facility. Compare N.J.S.A. 2C:43-10(a) (providing

sentences of imprisonment of one year or greater shall be served in the custody

of the Commissioner of the Department of Corrections) with N.J.S.A. 2C:43-

10(c) (providing, in pertinent part, sentences of imprisonment of less than one

year shall be served in the county jail).

The Court in Hartye also stated that "a defendant sentenced to a prison

term as a condition of probation may not be exposed to the parole ineligibility

term authorized by N.J.S.A. 2C:43-6(b)." 105 N.J. at 419. In support of that

declaration, the Court cites State v. Guzman, 199 N.J. Super. 346 (Law Div.

1985), where the trial court explained its imposition of a custodial term that

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included a period of parole ineligibility under N.J.S.A. 2C:43-6(b). Ibid. The

court in Guzman did not impose a split sentence, but it noted that under the

circumstances presented, "no ineligibility term could be imposed on

imprisonment as a condition of probation," "as no sentence [was] imposed

under N.J.S.A. 2C:43-6 or any other section of the [Criminal] Code

authorizing or requiring same." 199 N.J. Super. at 349 n.1.

Thus, the court did not suggest a split sentence could not include a

period of parole ineligibility during a period of imprisonment imposed as a

condition of probation. To the contrary, the court stated only that it could not

impose a period of parole ineligibility because it was sentencing defendant to a

county jail term of 364 days imprisonment and the Criminal Code did not

otherwise authorize or require imposition of a period of parole ineligibility on

the term of imprisonment imposed.

Here, the periods of parole ineligibility imposed as conditions of

defendant's imprisonment do not fall within the Hartye proscription. 105 N.J.

at 419. The trial court did not sentence defendant to a term of imprisonment at

a state correctional facility in accordance with N.J.S.A. 2C:43-2(b)(3) or

impose a period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b).

Instead, the court imposed a county jail sentence as authorized by N.J.S.A.

2C:43-2(b)(2) and imposed a parole ineligibility period solely as mandated by

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16 N.J.S.A. 2C:40-26(c).6 In addition, as implicitly recognized by the court in

Guzman, where, as here, a period of parole ineligibility is authorized or

required by another provision of the Criminal Code, imprisonment that

includes a parole ineligibility period may be imposed as a condition of

probation under N.J.S.A. 2C:43-2(b)(2). 199 N.J. Super. at 349 n.1.

We also observe that our Supreme Court has, in another context, directly

approved imposition of a split sentence under N.J.S.A. 2C:43-2(b)(2) that

included imprisonment and a period of parole ineligibility. In State v. Pineda,

the defendant pleaded guilty to death by auto, N.J.S.A. 2C:11-5(b), and he was

sentenced to a four-year custodial term, subject to a 270-day period of parole

ineligibility.7 119 N.J. 621, 622 (1990). At that time, the death by auto

6
As the State correctly notes, if defendant's sentences on each of his
convictions for violating N.J.S.A. 2C:40-26 were imposed pursuant to N.J.S.A.
2C:43-6, they would be illegal sentences. On each conviction, the court
sentenced defendant to 180-days imprisonment with a 180-day period of parole
ineligibility. Under N.J.S.A. 2C:43-6(b), however, a period of parole
ineligibility may not exceed fifty percent of the ordinary term imposed. If
defendant had been sentenced under N.J.S.A. 2C:43-6(b), the court would have
been required to impose a 360-day sentence on each of the N.J.S.A. 2C:40-26
convictions in order to impose the mandatory 180-day periods of parole
ineligibility. The court, however, did not run afoul of the limitation contained
in N.J.S.A. 2C:43-6(b) because it imposed the period of parole ineligibility in
accordance with N.J.S.A. 2C:40-26(c).
7 N.J.S.A. 2C:11-5 was amended in 1995. L. 1995, c. 285, §§ 1, 2. In
relevant part, the amendment renamed the crime "vehicular homicide,"

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17
statute, N.J.S.A. 2C:11-5(b), mandated either imposition of a 270-day period

of incarceration or 270 days of community service as part of any sentence

imposed for a conviction. Id. at 624.

On the defendant's direct appeal, we interpreted N.J.S.A. 2C:11-5(b) "to

mean that the sentencing judge must deprive a defendant of his liberty for at

least 270 days by imprisonment without parole, community related service or a

split sentence combining the two." State v. Pineda, 227 N.J. Super. 245, 250

(App. Div. 1988). The Court rejected our interpretation and directed that a

court sentencing a defendant under N.J.S.A. 2C:11-5(b) must first determine if

imprisonment is appropriate and, if so, decide the ordinary term of

imprisonment to be imposed. Pineda, 119 N.J. at 626. Where a term of

imprisonment is imposed, the Court required imposition of the 270-day period

of parole ineligibility provided in N.J.S.A. 2C:11-5(b). Id. at 627.

More pertinent here, the Court also directed that, where the trial court

concludes a probationary sentence is appropriate, "it must condition that term

on a 270-day period of community service or of incarceration without parole

eligibility." Ibid. (emphasis added). Thus, the Court permitted and approved a

split sentence under N.J.S.A. 2C:43-2(b)(2) that includes imprisonment and a

(continued)
changed the degree of the crime to a second-degree offense, and amended the
sentencing provisions of the prior version of the statute. Ibid.

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mandatory period of parole ineligibility. 8 We discern no basis to reach a

different conclusion here.

We are also mindful that N.J.S.A. 2C:40-26 was enacted in 2009 and

became effective on August 1, 2011, L. 2009, c. 333, § 1, long after N.J.S.A.

2C:43-2(b)(2) was enacted in 1979 as part of the Criminal Code. L. 1979, c.

178, § 82. We may therefore properly assume the Legislature was fully aware

of the requirements for imposition of a split sentence under N.J.S.A. 2C:43-

2(b)(2) when it established the sentencing paradigm set forth in N.J.S.A.

2C:40-26(c). See In re Expungement Petition of J.S., 223 N.J. 54, 75 (2015)

(explaining the Legislature "is presumed to have been 'thoroughly conversant

with its own [prior] legislation and the judicial construction of its statutes'"

(quoting Nebesne v. Crocetti, 194 N.J. Super. 278, 281 (App. Div. 1984))).

In enacting N.J.S.A. 2C:40-26, the Legislature required imposition of a

minimum 180-day custodial sentence with a 180-day period of parole

ineligibility for those convicted of the offense. The Legislature mandated that

8
Although not presented in the context of challenges to the legality of split
sentences that include imprisonment subject to parole ineligibility terms, we
have affirmed the imposition of such split sentences imposed under N.J.S.A.
2C:43-2(b)(2). See, e.g., Pimentel, 461 N.J. Super. at 493 (affirming
imposition of a one-year period of probation conditioned on imprisonment for
"six months" in the county jail for a conviction under N.J.S.A. 2C:40-26);
State v. Sylvester, 437 N.J. Super. 1, 2-3 (App. Div. 2014) (affirming a split
sentence of a three-year probationary term conditioned on imprisonment for
180 days on a conviction for violating N.J.S.A. 2C:40-26(b)).

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19
minimum custodial sentence of imprisonment with full knowledge the plain

language of N.J.S.A. 2C:43-2(b)(2) authorized imposition of imprisonment as

a condition of probation. If the Legislature intended to exempt sentences of

imprisonment imposed under N.J.S.A. 2C:40-26(c) from those permitted by

N.J.S.A. 2C:43-2(b)(2) as a condition of probation, it would have done so

directly. Instead, the Legislature let the plain language of N.J.S.A. 2C:43-

2(b)(2) define the terms of imprisonment that may be imposed as a condition

of probation, and, as noted, a sentence that is less than 364 days that includes a

mandatory period of parole ineligibility imposed under N.J.S.A. 2C:40-26(c) is

therefore authorized and legal.

While we conclude the plain language of N.J.S.A. 2C:43-2(b)(2)

authorizes defendant's custodial sentences as a condition of his probation, we

also observe a probationary sentence conditioned on service of the mandatory

period of parole ineligibility is consistent with the Legislature's

"criminaliz[ation] [of] the act of driving while one's license is suspended for a

second or subsequent [DUI] conviction" as part of its "arsenal of deterrence."

State v. Rizzitello, 447 N.J. Super. 301, 315 (App. Div. 2016). Those

convicted of a violation of N.J.S.A. 2C:40-26(b) have previously had their

driver's licenses suspended on at least two occasions, yet they choose to

continue to operate motor vehicles at the risk of being convicted of a fourth-

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20
degree crime and sentenced to a minimum 180 days of imprisonment. Indeed,

here, defendant not only drove while on suspension in violation of N.J.S.A.

2C:40-26, he did so on one occasion while under the influence.

"This court has acknowledged the escalating penalties imposed by the

Legislature in an attempt to deter chronic drunk drivers," Pimentel, 461 N.J.

Super. at 488, and N.J.S.A. 2C:40-26 serves that purpose by imposing "a

mandatory period of 'imprisonment' for [the] offense," thereby protecting the

"public safety" by ensuring, at least during a defendant's term of

imprisonment, that he or she does not "continue[] to drive despite the license

suspension," Harris, 439 N.J. Super. at 160.

The need to deter a defendant who has a history of DUI or refusal

offenses from driving while suspended in violation of N.J.S.A. 2C:40-26 does

not end with a release after a 180-day minimum mandatory sentence. It is

wholly consistent with "the State's strong policy objective of deterring repeat

drunk driving offenders," Pimentel, 461 N.J. Super. at 488, to require

defendants who are convicted of violating N.J.S.A. 2C:40-26 to obtain the

benefit of probation supervision following release from imprisonment.

Probation supervision provides access to resources to address issues related to

alcohol and substance abuse, see N.J.S.A. 2C:45-1(b)(1) to (14), and provides

continuing deterrence because a violation of probation may result in a

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21
defendant's resentencing to a period of imprisonment. The Legislature's

decision to allow split sentences for those convicted of violating N.J.S.A.

2C:40-26 is therefore not only supported by the plain language of N.J.S.A.

2C:43-2(b)(2), it is also consistent with the policies underlying N.J.S.A.

2C:40-26.

In sum, the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes the split

sentences imposed by the court on defendant's convictions for violating

N.J.S.A. 2C:40-26(b). The court imposed a custodial term of a length—360

days—that qualifies as a term of imprisonment permitting imposition of a split

sentence, N.J.S.A. 2C:43-2(b)(2), and defendant fails to identify any other

statute within the Criminal Code that otherwise provides the term of

imprisonment for a split sentence may not include a mandatory period of

parole ineligibility. We therefore reject defendant's claim the split sentence is

unauthorized or illegal.

II.

Defendant next argues the court improperly imposed consecutive

custodial terms for his N.J.S.A. 2C:40-26(b) convictions without considering

the factors set forth in Yarbough. Defendant requests a remand for

resentencing because the court did not provide a separate statement of reasons

for imposing consecutive sentences and, he contends, consecutive sentences

A-4473-18T3
22
are not warranted. The State claims the consecutive sentences should be

affirmed because the Yarbough factors supporting imposition of consecutive

sentences are self-evident. The State, however, requests a remand for

correction of the judgment of conviction because the court stated at sentencing

the probationary terms would run consecutively, but the judgment of

conviction provides the terms shall be served concurrently.

As we have explained, we affirm the court's imposition of the mandatory

minimum 180-days terms of imprisonment as a condition of probation on each

of defendant's convictions for violating N.J.S.A. 2C:40-26. However, for two

reasons, we are constrained to vacate the consecutive sentences of

imprisonment and probationary terms, and remand for resentencing.

First, the Court in Yarbough established the factors a trial court must

consider in determining whether to impose consecutive sentences. 100 N.J. at
643-44. A court must "articulate [its] reasons" for imposing consecutive

sentences "with specific reference to the Yarbough factors." State v. Abdullah,

184 N.J. 497, 515 (2005). "'[A] statement of reasons is a necessary

prerequisite for adequate appellate review of sentencing decisions . . . [in order

to] determine whether the trial court's imposition of consecutive sentences was

a valid exercise of discretion.'" State v. Soto, 385 N.J. Super. 247, 256 (App.

Div. 2006) (quoting State v. Miller, 108 N.J. 112, 122 (1987)). Here, the

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23
court's imposition of consecutive sentences is untethered to any findings of the

Yarbough factors. See id. at 256 ("Failure to provide reasons for the

imposition of a consecutive sentence may compel a remand for

resentencing.").

Second, based on our review of the record, we cannot discern the precise

manner the court intended the probationary terms to run. We therefore reject

the State's claim a remand for an amendment of the judgment of conviction is

all that is required to address the court's imposition of the probationary terms

of defendant's split sentences. The judgment of conviction provides the

custodial portions of the split sentences shall be served consecutively and the

probationary terms shall be served concurrently. The Criminal Code, however,

"does not permit, for multiple offenses, sentences that are partially consecutive

and partially concurrent." State v. Rogers, 124 N.J. 113, 120 (1991).

On remand, the court shall address and make findings under Yarbough

supporting its determination whether to impose concurrent or consecutive

sentences for the mandatory terms of imprisonment for defendant's convictions

under N.J.S.A. 2C:40-26. In its determination concerning the imposition of

probationary terms for defendant's split sentences, the court shall: consider it

cannot impose sentences that are partially consecutive and partially

concurrent; precisely define when any probationary terms imposed shall begin

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24
and end; and address and make findings concerning the imposition of

sentences for multiple offenses under N.J.S.A. 2C:44-5(f).

Affirmed in part, vacated in part, and remanded for further proceedings

in accordance with this opinion. We do not retain jurisdiction.

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