STATE OF NEW JERSEY v. KENNETH HERZIG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3583-05T13583-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

KENNETH HERZIG,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 27, 2006 - Decided November 15, 2006

Before Judges Winkelstein and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal: 47-09-05.

Tanya N. Helfand, attorney for appellant (Jacqueline F. Pivawer, on the brief).

David J. Weaver, Sussex County Prosecuter, attorney for respondent (Robin M. Lawrie, Assistant Prosecutor, of counsel and on brief).

PER CURIAM

Having pled guilty to two charges of driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, defendant, William Herzig, appeals from the sentences imposed. After careful consideration of the record, and applying appropriate legal standards, we affirm.

Defendant was previously convicted of DWI in 1988. On April 17, 2005, he was arrested in Franklin Borough and charged with DWI and other motor vehicle offenses. On April 27, he was again arrested in Franklin Borough and again charged with DWI and other motor vehicle offenses.

On August 8, all matters were listed before the municipal court judge for the entry of defendant's pleas of guilty to both DWI charges. Defendant moved in limine to be sentenced as a first offender for each offense. He argued it had been more than ten years since his last offense and he should be treated as a first offender for sentencing purposes on the April 17 offense pursuant to N.J.S.A. 39:4-50(a). He further argued because he was pleading guilty to both charges in a single court proceeding, his sentence for the April 27 offense should also be as a first offender because he had not previously been convicted of an offense before the entry of the two pleas. Ibid.

The municipal court judge disagreed and concluded defendant was entitled to be sentenced as a first offender on the April 17 offense but as a third offender on the April 27 offense. Defendant then attempted to conditionally plead guilty to both DWI offenses preserving the sentencing issue for appeal. After he was unable to provide a factual basis for the guilty plea to the April 17 offense, the court scheduled both matters for trial on August 22.

On that date, before trial commenced, defendant entered conditional guilty pleas to both DWI offenses. He admitted driving on the evening of April 17 after consuming alcohol; he did not contest the results of a breathalyzer test that revealed his blood alcohol level (BAC) to be .248. He also admitted driving on April 27 after consuming alcohol; he did not contest the results of breathalyzer tests that revealed his BAC to be .14 and .13.

Concluding that more than ten years had passed since defendant's prior conviction for DWI, the municipal court judge sentenced defendant for the April 17 offense as a first offender pursuant to N.J.S.A. 39:4-50(a)(1)ii. He imposed a seven-month license suspension, ordered attendance at an intoxicated driver resource center for twelve hours, imposed a $300 fine and the appropriate mandatory fees, surcharges and penalties. For the April 27 offense, the judge sentenced defendant as a third offender pursuant to N.J.S.A. 39:4-50(a)3. He suspended defendant's license for ten years concurrent with the prior suspension, imposed a sentence to the Sussex County Jail of 180 days, half of which could be served in an alcohol rehabilitation program, a $1000 fine, and the appropriate mandatory fees, surcharges and penalties. The judge stayed all aspects of the sentences with the exception of the license suspension.

Defendant appealed his sentences to the Superior Court. On February 10, 2006, the Law Division judge considered defendant's arguments which were essentially those pressed before the municipal court. The Law Division judge affirmed the sentences imposed upon defendant, vacated the stay of defendant's incarceration, and ordered his surrender one week later.

In this appeal, defendant advances the same challenges to his sentences as he did before the municipal court judge and the Law Division judge.

POINT I

THERE MUST BE A SEQUENTIAL PRIOR CONVICTION FOR A SECOND D.W.I. OFFENSE AT THE TIME THE ENHANCED SENTENCE IS IMPOSED FOR A THIRD CONVICTION. THE ENTRY OF SIMULTANEOUS GUILTY PLEAS CANNOT BE CONSTRUED AS CREATING A PRIOR SECOND CONVICTION.

POINT II

IF SIMULTANEOUS CONVICTIONS UNDER THE CRIMINAL CODE DO NOT CONSTITUTE A PREDICATE CONVICTION, THIS PRINCIPLE SHOULD ALSO BE APPLIED TO D.W.I. OFFENSES.

POINT III

SIMULTANEOUS CONVICTIONS ARE NOT PRIOR CONVICTIONS TO SERVE AS THE BASIS FOR ENHANCED SENTENCING FOR BOTH PUNITIVE STATUTES AND REHABILITATIVE STATUTES.

POINT IV

SENTENCING DEFENDANT AS A THIRD OFFENDER IS A DISPROPORTIONATE[LY] EXCESSIVE SENTENCE.

In State v. Burroughs, 349 N.J. Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002), we interpreted the enhanced penalty provisions for repeat offenders pursuant to N.J.S.A. 39:4-50(a). The statute provides,

A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

[N.J.S.A. 39:4-50(a).]

The facts in Burroughs were as follows. The defendant, previously convicted of DWI in 1982, faced sentencing for a second DWI conviction in 1998. Burroughs, supra, 349 N.J. Super. at 226. At that time, he was sentenced as a first offender, the second offense having occurred more than ten years after the first. Ibid. He was convicted again in 2000 and the court ordered him sentenced as a third offender. Id. at 226-27.

On appeal, the defendant argued that he should be sentenced as a second offender because his first offense had essentially been forgiven and erased for purposes of sentencing. Id. at 226. We concluded that the leniency provided by the "step-down" provisions of the statute was a one-time reward for good conduct and that the defendant "ha[d] received his reward for good conduct and [was] entitled to no further consideration." Id. at 227.

Defendant argues Burroughs is distinguishable because in that case the events that gave rise to the second and third convictions were separated by two years; here, they were separated by only ten days. Further, in Burroughs, the sentences were imposed sequentially, that is, on different dates, years apart; here, defendant was sentenced for the two convictions on the same day.

The first distinction does not compel a different result from Burroughs. Although the events supporting defendant's two DWI convictions were separated by only ten days, they are not one offense for sentencing purposes under N.J.S.A. 39:4-50. In State v. Costello, 224 N.J. Super. 157 (App. Div.), certif. denied, 111 N.J. 596 (1988), we determined the trial court erred in convicting the defendant of only one continuing offense when he had been arrested twice for DWI within hours of each other on the same evening. Id. at 160; see also State v. Metcalf, 166 N.J. Super. 46, 47-48 (App. Div. 1979) (enhanced second offender penalties were still appropriate even though the second offense was only hours after the first).

Defendant next argues that the enhanced third offender penalties under N.J.S.A. 39:4-50(a)3 are not triggered because he pled guilty and was sentenced on both offenses in the same proceeding. In support, defendant cites our decision in State v. Owens, 381 N.J. Super. 503 (App. Div. 2005).

In Owens, we concluded that the imposition of the enhanced penalty provisions of N.J.S.A. 2C:43-6f ("A person convicted of . . . distributing [any dangerous substance] on or near school property . . . [under N.J.S.A. 2C:35-7] who has been previously convicted of . . . distributing . . . shall . . . be sentenced by the court to an extended term . . . .") (emphasis added) was illegal when based upon multiple guilty pleas entered in a single court proceeding. Id. at 512. In construing the statutory language, we said, "There is no ambiguity that would bring a person who pleads guilty to two charges on the same day, in the same proceeding and pursuant to one agreement, within the terms of a provision that applies to one who 'has been previously convicted.'" Id. at 513.

However, defendant's reliance on Owens is misplaced for two reasons. First, defendant cites no authority for the proposition that the principles underlying the sentencing provisions of New Jersey's Criminal Code, N.J.S.A. 2C:1-1 to 104-9, apply to the sentencing scheme of our motor vehicle laws. To the contrary, in State v. Hammond, 118 N.J. 306 (1990), the Supreme Court concluded that the provisions of the Code did not apply to motor vehicle offenses. "The legislative history of the Code . . . indicates that the Code provisions were not intended to apply to motor vehicle offenses." Id. at 311-12.

Second, defendant's argument ignores the plain language of N.J.S.A. 39:4-50(a) that provides, "[I]f a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes." Here, defendant's third offense occurred ten days after his second offense. Therefore, he was not entitled to any step-down in sentencing.

Defendant argues that his sentence for the April 27 offense should not be for a "third conviction" because he pled guilty to both the April 17 and April 27 offenses in the same court proceeding. We reject this suggestion because it would essentially reward defendant, who acknowledged two separate drunk driving offenses, with a sentence appropriate for only one violation of the statute. This is inconsistent with the recognized primary purpose of our DWI statutes. In State v. Tischio, 107 N.J. 504, 512 (1987), the Court noted, "The primary purpose behind New Jersey's drunk-driving statutes is to curb the senseless havoc and destruction caused by intoxicated drivers." See also State v. Petrello, 251 N.J. Super. 476, 479 (App. Div. 1991) (enhanced repeat offender penalties reflect the deterrence orientation of the drunk driving statutes).

Lastly, we note that defendant's entire argument arises because of the fortuitous fact that both arrests occurred in the same municipality. Every municipal court has limited jurisdiction "over cases arising within the territory of that municipality." N.J.S.A. 2B:12-16. Had defendant's arrests for the two offenses been in two different municipalities, his guilty pleas could not have been entered at a single court proceeding. There certainly can be no legislative or public policy served by sentencing defendant as a first offender based upon such happenstance.

We consider the balance of defendant's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

9

A-3583-05T1

 

November 15, 2006