STATE OF NEW JERSEY v. GREGORY CLAPPER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2338-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY CLAPPER,

Defendant-Appellant.

_______________________________

A

November 19, 2012

rgued telephonically November 13, 2012 - Decided

 

Before Judges Axelrad and Haas.

 

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 30-11.

 

Stephen M. Pascarella argued the cause for appellant (Pascarella & Associates, P.C., attorneys; Alessandro Rinaldo Di Stefano, on the brief).

 

Meghan M. O'Neill, Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Gregory Clapper pled guilty in the Eagleswood Municipal Court on September 28, 2011 to refusal to submit to a chemical test (refusal), N.J.S.A. 39:4-50.4a, and reckless driving, N.J.S.A. 39:4-96. Defendant had three prior convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50.

The municipal court judge sentenced defendant, as a "third or subsequent offender," to a $1,006 fine, $33 in court costs, a $100 surcharge, forty-eight hours attendance at the Intoxicated Driver Resource Center, a ten-year license revocation, and required him to install an ignition interlock device for one-year, for refusal. The judge sentenced defendant to a $206 fine and $33 in court costs for reckless driving.

Defendant filed an appeal of his sentence to the Law Division, arguing that he should have been sentenced as a first-time offender for refusal. On de novo appeal, the Law Division judge disagreed and again sentenced defendant as "a third or subsequent offender" for refusal, imposing the same sentence as the municipal court judge.

On appeal, defendant raises the following contentions:

I. Under Ciancaglini[,] a prior conviction for DWI cannot be used to enhance the penalties for a subsequent refusal conviction.

 

A. Post-Ciancaglini, any ambiguities in N.J.S.A. 39:4-50.4 are resolved and the plain language of the statute controls.

 

B. There is no statutory cross- reference nor similar expression to suggest a prior DWI conviction enhances a refusal sentence.

 

C. The use of "section" refers only to N.J.S.A. 39:50-4.

 

D. Only foreign convictions enhance a refusal sentence.

 

II. Zeikel explicates Ciancaglini's rule that a prior conviction for DWI does not enhance a subsequent refusal conviction.

 

III. Reliance on Bergwall, Tekel or Fielding to support the stance that a prior DWI enhances a refusal sentence is misplaced.

 

A. In re Bergwall analyzes a statute substantially different from today's N.J.S.A. 39:4-50 and thus is no longer controlling.

 

B. Tekel and Fielding are valid only to support the proposition that DWI and refusals are subject to the same penalties.

 

C. [Ciancaglini] adopts the Disomma panel's dicta.

 

In his reply brief, defendant raises the following arguments:

I. In re Bergwall has no precedential value.

 

a) The statute reviewed by the Bergwall panel, [N.J.S.A.] 39:4- 50.4 was repealed in 1982.

 

b) Disomma, Wilhalme and Tekel clarify that Bergwall is not precedential.

II. The [Bergwall] rule is not derived from In re Bergwall.

 

III. Under the State's reading of [Bergwall,] Defendant-Appellant is either a first offender or no previous refusal enhances a subsequent refusal.

 

a) Under [Bergwall,] Defendant- Appellant is a first offender.

 

b) Under [Bergwall,] no previous refusal enhances a subsequent refusal; an anomalous result.

 

Defendant's arguments concerning his sentence are based upon the Supreme Court's decision in State v. Ciancaglini, 204 N.J. 597 (2011). In Ciancaglini, the defendant had previously been convicted of refusal under N.J.S.A. 39:4-50.4a. Id. at 600. He was subsequently convicted of DWI and the issue was whether, based upon the prior refusal conviction, he should be sentenced as a first or second offender under N.J.S.A. 39:4-50, which provides for enhanced penalties for repeat offenses. Ibid. The defendant relied upon our decision in State v. DiSomma, 262 N.J. Super. 375, 383 (App. Div. 1993), where we held that a conviction for refusal was not a prior violation under the DWI statute, N.J.S.A. 39:4-50.

The Court held that N.J.S.A. 39:4-50 precludes a prior refusal conviction from being used as a sentencing enhancement for a subsequent DWI conviction, explaining:

N.J.S.A. 39:4-50 contains no reference whatsoever to the refusal statute. When listing the penalties for driving while intoxicated, it categorizes them based on being "[f]or the first offense," "[f]or the second violation," and "[f]or a third or subsequent violation." N.J.S.A. 39:4-50(a)(1), (2), (3). Nothing suggests that those references to prior "violations" are meant to refer to anything beyond the DWI convictions in violation of N.J.S.A. 39:4-50, and the Legislature made no relevant amendment to the DWI or refusal statute while otherwise strengthening the latter. Indeed, without any statutory cross-reference, or similar expression, the most natural reading of the statute would suggest that the "prior" violations described in the three subsections of N.J.S.A. 39:4-50 are meant to refer only to the section of Title 39, Chapter 4, in which they are contained, that is N.J.S.A. 39:4-50. Such a reading is consistent with the well-established principle that penal statutes must be strictly construed.

 

[Ciancaglini, supra, 204 N.J. at 610-11.]

 

Thus, the Court ruled that a defendant, who had previously been convicted of refusal, could not be deemed a second offender for purposes of sentencing after committing a subsequent DWI. Rather, the defendant would have to be sentenced as a first offender on the DWI charge.

Like the DWI statute, the refusal statute provides for enhanced penalties for repeat convictions. Thus, N.J.S.A. 39:4-50.4a requires the municipal court to revoke the driving privileges of a person convicted of refusing to submit to a breath test

for not less than seven months or more than one year . . . unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years.

 

Defendant asks that we apply Ciancaglini to his situation, which is the inverse of what occurred in that case. Here, defendant was sentenced as a "third or subsequent offender" on his refusal conviction, even though his three prior convictions were for DWI. He argues that his three prior DWI convictions should not be used to treat him as "third or subsequent offender" for purposes of sentencing him on the refusal.

We reject this contention because Ciancaglini is not applicable to a case where, as here, prior DWIs are used to enhance the sentence on a refusal. Rather, this case is controlled by the Court's decision in In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J. Super. 431, 436 (App. Div. 1980) (Lora, P.J.A.D., dissenting).

In Bergwall, the defendant had been convicted of refusal after previously having been convicted of DWI. 173 N.J. Super. at 432. The issue presented, which is the precise question in this appeal, was whether he should be sentenced as a first or repeat offender for the refusal. The Court answered this question by adopting the dissenting Appellate Division opinion of Judge Lora. Bergwall, supra, 85 N.J. at 382. By adopting the dissent, the Court relied on the specific language of N.J.S.A. 39:4-50.4a:

[R]evocation . . . for refusing . . . shall be for 90 days unless the refusal was in connection with a subsequent offense of this section, in which case, the revocation period shall be for 1 year.

 

[Bergwall, supra, 173 N.J. Super. at 432.]

 

Although the majority of the Appellate Division panel had adopted the argument now raised by defendant here, that a prior DWI conviction may not enhance a subsequent refusal conviction, Judge Lora opined that the statutory language of the refusal statute was insensible under the majority's interpretation "since a refusal can not be 'in connection with' another refusal. Rather, it can only be 'in connection with' an arrest for drinking-driving and a request to take the breath test." Id. at 437. Judge Lora looked to legislative history, which indicated that this was, in fact, the Legislature's intent. Id. at 438-39.

While N.J.S.A. 39:4-50.4a has been amended several times since the Court's decision in 1981, it still contains language that is nearly identical to the language at issue in Bergwall. The penalty is now between seven months and one year "unless the refusal was in connection with a second offense under this section . . . or unless the refusal was in connection with a third or subsequent offense under this section." Despite the Legislature's amendment of the refusal statute's repeat offender provision after the Court interpreted it in Bergwall, the Legislature has left the pertinent language unchanged.1 The Legislature's inaction is indicative of its agreement with the Court's interpretation. See State v. Fielding, 290 N.J. Super. 191, 193-94 (App. Div. 1996) (noting that "legislative retention of judicially construed language signals an agreement with the language, as construed").

Since Bergwall, we have consistently interpreted N.J.S.A. 39:4-50.4a as requiring that a prior DWI conviction be deemed a prior violation for purposes of the enhanced refusal penalty. See, e.g., Fielding, supra, 290 N.J. Super. at 193-94 (a defendant previously convicted of DWI must receive an enhanced suspension for a subsequent refusal conviction); State v. Tekel, 281 N.J. Super. 502, 505 (App. Div. 1995) (same); State v. Wilhalme, 206 N.J. Super. 359, 362 (App. Div. 1985), certif. denied, 104 N.J. 398 (1986) (amendments to the refusal statute since Bergwall demonstrated Legislature's intent to "leave the operation of the enhanced penalty provision unchanged" for refusal convictions where the defendant has previously been convicted of DWI).

Just as significantly, the Court's decision in Ciancaglini includes a footnote suggesting the Court still adheres to Bergwall's interpretation of N.J.S.A. 39:4-50.4a. We recognize that, in dicta in DiSomma, supra, 262 N.J. Super. at 381-82, a panel of this court questioned the continued validity of Bergwall. However, the Supreme Court discussed both DiSomma and Bergwall in Ciancaglini. Despite the Court's reliance on DiSomma's reasoning with respect to the DWI statute, the Court did not approve of the dicta addressing the refusal statute or question the continued validity of the holding in Bergwall. 204 N.J. at 609-10 n. 10.

Indeed, the Court specifically noted that "although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4 are part of a statutory complex designed to rid the highways of drunk drivers and to make our roads safer, each is a separate section (each referring to 'this section') with a different, albeit related, purpose, and each has different elements." Id. at 606. On the one hand, N.J.S.A. 39:4-50 contains no reference to the refusal statute and the Court found that "[n]othing suggests that [references in the statute] to prior 'violations' are meant to refer to anything beyond DWI convictions in violation of N.J.S.A. 39:4-50." Id. at 610.

On the other hand, however, the Court cited Judge Lora's analysis of N.J.S.A. 39:4-50.4 in Bergwall with approval. Id. at 610 n. 10. Judge Lora ruled that the phrase "in connection with a subsequent offense" in N.J.S.A. 39:4-50.4 had to refer to a prior DWI conviction and not to a prior refusal conviction, "because 'a refusal cannot be 'in connection with' another refusal. Rather, it can only be 'in connection with' an arrest for drinking-driving and a request to take the breath test.'" Ibid. (citing Bergwall, supra, 173 N.J. Super. at 437). By accepting Judge Lora's analysis of N.J.S.A. 39:4-50.4, the Court held that a DWI conviction does qualify as a prior offense under the refusal statute. Ibid. Thus, the Court's holding in Ciancaglini concerning the DWI statute does not apply in this matter, which concerns the separate and distinct refusal statute.

Under the circumstances of this case, defendant's reliance upon Ciancaglini is misplaced. Because we are bound by the Court's decision in Bergwall, we affirm the decision of the Law Division.

Affirmed.

1 The only difference in the phrase deemed determinative in Bergwall and the present version is a substitution of the phrase "under this section" for the phrase "of this section."