No inpatient in lieu of jail for 2c:40-26
SUPERIOR COURT OF NEW JERSEY
STATE OF NEW JERSEY,
ANGEL M. SANTOS,
Defendant-Appellant. NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
STATE OF NEW JERSEY,
TOMMIE JONES, a/k/a DARRELL
BUTLER BULLDOG JONES, THOMAS
JONES, TOMMY J. JONES,
STATE OF NEW JERSEY,
MARK A. POINDEXTER,
Argued (A-6166-12) February 3, 2015
March 5, 2015Submitted (A-0594-13) and (A-1153-13) February 3, 2015 - Decided
Before Judges Reisner and Higbee.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County(A-6166-12), Indictment No. 12-12-00453; Atlantic County (A-0594-13), IndictmentNo. 13-01-00064; and Monmouth County (A-1153-13), Indictment No. 13-04-00705.
Frank M. Gennaro, Designated Counsel, argued the cause for appellant Angel M. Santos in A-6166-12 (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, on the brief).
Carol M. Henderson, Assistant Attorney General, argued the cause for respondent State of New Jersey in A-6166-12 (John J. Hoffman, Acting Attorney General, attorney; Ms. Henderson, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Tommie Jones in A-0594-13 (Mark P. Stalford, Designated Counsel, on the brief).
James P. McClain, Atlantic County Prosecutor, attorney for respondent State of New Jersey in A-0594-13 (John Santoliquido, Assistant Prosecutor, of counsel and on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant Mark A. Poindexter in A-1153-13 (Frank M. Gennaro, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey in A-1153-13 (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).
In these three appeals, which we have consolidated for purposes of this opinion, defendants Angel Santos, Tommie Jones, and Mark A. Poindexter pled guilty to violating N.J.S.A. 2C:40-26(b), and now appeal from the 180-day jail term the court imposed pursuant to N.J.S.A. 2C:40-26(c). We affirm the sentence in each case.
For clarity of the record, we briefly set forth the relevant facts pertaining to each defendant.
State v. Santos
Prior to the instant case, defendant Santos had been convicted twice of driving while intoxicated (DWI). Due to those convictions, his license was suspended as of January 30, 2012. On that date, Santos was operating his vehicle when he was hit from behind. Santos did not report the accident, but the other driver did. Santos left the scene, picked up his wife from their residence, and then returned to the scene.
On December 18, 2012, a grand jury returned an indictment charging Santos, pursuant to N.J.S.A. 2C:40-26(b), with operating a motor vehicle while his license was suspended for a second or subsequent DWI violation. He pled guilty to that charge on May 6, 2013 before Judge N. Peter Conforti. The court informed Santos that the driving with a suspended license charge carried with it a sentence of a mandatory 180 days of incarceration.
On July 26, 2013, Judge Conforti sentenced Santos to 180 days of imprisonment and a $100 fine for failure to report the accident. The issue of whether the jail sentence could be served by house arrest was not raised at the time of that hearing. On August 13, 2013, Judge Stuart A. Minkowitz heard defendant's motion to stay his sentence pending appeal. Defense counsel argued that Santos should be able to serve his 180 day sentence in a home detention program and asked the court for a stay of the sentence pending appeal of that issue. Judge Minkowitz stayed the sentence pending appeal, finding that the issue raised was novel, and that Santos would suffer hardship if his sentence were not stayed pending appeal.
State v. Jones
On March 18, 2012, Atlantic City police officers found that defendant Jones' vehicle was unregistered while randomly checking license plates. When the officers stopped the vehicle, they found that Jones was driving with a suspended license and later mailed him a summons charging him pursuant to N.J.S.A. 2C:40-26(b).
On June 4, 2013, Jones pled guilty to operating a vehicle on March 18, 2012 while his license was suspended due to a second or subsequent DWI conviction. Defense counsel reserved the right to argue that Jones' sentence be served in a home detention program.
The issue of whether the 180 day mandatory sentence could be served in a home detention program was argued at sentencing on September 6, 2013. Judge Michael A. Donio found that the issue was novel, and interpreted it as mandating incarceration. The judge imposed a sentence of 18 months' probation and 180 days incarceration, the latter stayed pending appeal.
State v. Poindexter
On November 5, 2012, defendant Poindexter was operating a motor vehicle with a suspended license. His license was suspended due to a second or subsequent DWI conviction. He was indicted on one count of violating N.J.S.A. 2C:40-26(b). Poindexter pled guilty on June 25, 2013 before Judge Ronald Lee Reisner. On October 4, 2013, Judge Reisner sentenced Poindexter to one year probation and 180 days mandatory incarceration. Defense counsel requested a stay of incarceration pending appeal, arguing that the statute could be interpreted as allowing for the service of the sentence in home detention. The judge found that the Legislature intended the 180 day sentence to be served in jail, and denied a stay pending appeal.
b. It shall be a crime of the fourth degree 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 [DWI] or [refusal to submit to chemical test for intoxication]. A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.
c. Notwithstanding the term of imprisonment provided under N.J.S.A. 2C:43-6 [maximum custodial sentence of eighteen months] and the provisions of subsection e. of N.J.S.A. 2C:44-1 [presumption of non-imprisonment for first-time offender convicted of fourth-degree crime], if a person is convicted of a crime under this section the sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.
In State v. French, 437 N.J. Super. 333, 334 (App. Div. 2014), we held that because the statute mandates a sentence of incarceration without parole, a sentence to a drug treatment program instead of incarceration was not permitted. These defendants seek to distinguish French, arguing that French does not preclude them from serving their sentences in home detention programs. Jones also argues that French does not preclude him from serving his sentence in a day reporting program.
We addressed and rejected those very arguments in our most recent opinion in State v. Harris, ___ N.J. Super. ___ (App. Div. 2015). In Harris, we concluded that in N.J.S.A. 2C:40-26(c), the Legislature clearly signaled its intent that repeat DWI offenders who continue to drive while their licenses are suspended must be incarcerated for not less than 180 days. Id. at ___ (slip. op. at 11-12); see State v. Carrigan, 428 N.J. Super. 609, 614 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013) (tracing the statute's legislative history). Consistent with the unambiguous terms of the statute, and for the public's protection, that means such defendants cannot be sentenced to alternatives that allow them to be out of jail during the mandatory 180 day period. Id. at ___ (slip op. at 11-12). Following French and Harris, we affirm the sentences imposed in these three cases.
The sentence imposed on Poindexter was not stayed. The sentences imposed on Santos and Jones cases were stayed, and those stays must now be vacated. The Santos and Jones cases are each remanded to the trial court for the entry, within two weeks of the date of this opinion, of an order vacating the stay of sentence.
Affirmed in Poindexter; affirmed in part, remanded in part in Santos and Jones.
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