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September 23, 2015


Argued August 25, 2015 Decided

Before Judges Messano and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-26-14.

Robert C. Wolf argued the cause for appellant (Liebling, Malamut, LLC, attorneys; Mr. Wolf, on the brief).

Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Madig, on the brief).


Defendant Stephen C. Jones appeals from the Law Division order of September 18, 2014, that followed his de novo appeal of the sentence imposed by the Winslow Township municipal court on defendant's conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Treating defendant as a second offender, the municipal court judge imposed a two-year license suspension. On appeal, the Law Division judge also concluded that defendant was a second offender and imposed the same term of suspension. However, for reasons explained below, the Law Division judge credited defendant with seven months "for [a] prior suspension served." We granted defendant a stay of the license suspension pending appeal.1

The procedural history requires some explication. On November 18, 2007, defendant was arrested in Winslow Township and charged with numerous offenses, including driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit a breath sample. On December 8, 2008, without counsel, defendant entered a guilty plea in municipal court to both violations.2 Noting it was defendant's first offense for either DWI or refusal, the judge imposed concurrent sentences and suspended defendant's driver's license for a period of seven months. See N.J.S.A. 39:4-50.4a(a) (providing for a period of suspension "not less than seven months or more than one year" for first offense). Defendant apparently served his suspension without incident.

Although the circumstances are not fully set out in the record, defendant was again arrested for DWI in March 2010 in Mount Laurel. In December of that year, he pled guilty and was sentenced as a second offender. His license was suspended for a period of two years. See N.J.S.A. 39:4-50(a)(2). In July 2012, while still serving this suspension, defendant was cited in West Berlin for a violation of N.J.S.A. 39:3-40, driving while his license was suspended. Defendant was indicted by a Camden County grand jury and charged with a violation of N.J.S.A. 2C:40-26(b) (making it a fourth-degree crime, subject to mandatory imprisonment, "to operate a motor vehicle during the period of license suspension . . . if the actor's license was suspended or revoked for a second or subsequent violation of [N.J.S.A.] 39:4-50 or [N.J.S.A.]39:4-50.4a").

In October, however, defendant moved in the Winslow Township municipal court for post-conviction relief. See R. 7:10-2. He argued that his 2008 conviction should be set aside pursuant to State v. Barboza, 115 N.J. 415 (1989), because the factual basis he provided at the time of his plea was inadequate.3 On October 31, 2013, the municipal court judge entered an order vacating defendant's 2008 guilty pleas.4

In June 2014, defendant again appeared, this time with counsel, in the Winslow Township municipal court to resolve the revived 2007 DWI and refusal citations. The prosecutor dismissed the DWI charge; however, defendant pled guilty to the refusal charge. The municipal court judge sentenced defendant as a second offender, based upon his still extant 2010 DWI conviction. The judge suspended defendant's driver's license for a period of two years. N.J.S.A. 39:4-50a(a). Although he originally considered applying seven months' credit to the suspension since defendant's license suspension for the 2008 convictions had been fully served the judge ultimately refused to do so.

On appeal to the Law Division, defendant acknowledged he was a second offender when he appeared for sentencing in the municipal court in 2014. However, he argued that he should have received two years' credit toward the license suspension because he had effectively served a "second-offender" suspension based upon his 2010 DWI conviction. The State argued that defendant was entitled only to seven months' credit.

The Law Division judge concluded that defendant was a second offender and imposed a two-year license suspension. The judge determined, however, that defendant was entitled to seven months' credit toward the two-year suspension because he had previously completed a seven-month suspension on the 2008 offense. This appeal followed.

When defendant filed his appellate brief, he contended that under the unusual procedural history presented and because of actual vindictiveness displayed by the municipal court judge, it was fundamentally unfair to impose any additional license suspension for the 2014 refusal conviction. Although the State took a different position at the Law Division trial, before us, citing Barboza, supra, 115 N.J. at 427, the State agreed that when defendant pled guilty in 2014, he "should have been returned to the position he was in at the time of his original guilty plea in 2008." In other words, the judge should have imposed only a seven-month license suspension at sentencing. The State also conceded before us that defendant should be given credit for the seven-month suspension he had already served in 2008-09. The State consents to a remand for imposition of such sentence.

Although defendant concurs that this is the proper result, he seeks further relief, essentially asking us to declare that he was not a second offender when sentenced by the Law Division. Defendant contends this relief is necessary because of potential future consequences he may face, or that may be faced by other defendants who assert their post-conviction relief rights in municipal court. Defendant acknowledges we would necessarily need to review a judgment of conviction that is not before us, i.e., defendant's 2010 DWI conviction in Mount Laurel. We decline to do so. See State v. Abeskaron, 326 N.J. Super. 110, 117 (App. Div. 1999) ("[C]ourts should not render advisory opinions or exercise jurisdiction in the abstract.").

We reverse the Law Division's order of September 18, 2014, and remand the matter for imposition of a sentence suspending defendant's driver's license for a period of seven months, and giving defendant credit for having already served that suspension.

1 We do not address the other aspects of the sentence imposed because defendant's appeal challenged only the length of the license suspension.

2 Defendant had earlier pled guilty to indictable charges arising from the same incident and was placed on probation in October 2008.

3 Defendant also relied upon State v. Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), where the Court held that an uncounseled DWI "conviction does not constitute a prior offense for purposes of increasing [a] defendant's custodial sentence." State v. Revie, 220 N.J. 126, 128 (2014).

4 In January 2014, the indictment was dismissed pursuant to, what the State characterizes as, a "misunderstanding" of applicable law. Indeed, in State v. Sylvester, 437 N.J. Super. 1, 6 (App. Div. 2014), we rejected as "without merit" the defendant's claim that post-conviction relief in the municipal court voiding a DWI conviction "preclud[ed] the State from relying on th[e] conviction to meet its burden of proof under N.J.S.A. 2C:40-26(b)."

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