STATE OF NEW JERSEY VS. ANDRES I. CHAVARRIA (18-10-0303 AND 18-10-0304, SUSSEX COUNTY AND STATEWIDE) (A-4473-18T3)
Defendant pleaded guilty to two counts of violating N.J.S.A. 2C:40-26(b) by driving 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, or N.J.S.A. 39:4-50a, refusal to provide a breath sample. The court sentenced defendant on each count to a 180-day term of imprisonment with a 180-day period of parole ineligibility as a condition of serving a two-year probationary term. The court ordered the custodial terms to be served consecutively and the probationary terms to be served concurrently.
Defendant argued his sentences are illegal because the Criminal Code does not authorize a spilt sentence with a term of imprisonment that includes a mandatory period of parole ineligibility. The court disagreed, finding the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes sentences including terms of incarceration as a condition of probation, with the only limitation being the term of incarceration may not exceed 364 days. The court finds that because defendant's individual and aggregate custodial sentences require less than 364 days of imprisonment as a condition of probation, they are authorized by N.J.S.A. 2C:43-2(b)(2) even though the terms of imprisonment include mandatory periods of parole ineligibility.
The court also determined the sentencing court erred by failing to make findings supporting its imposition of consecutive sentences, see State v. Yarbough,100 N.J. 627 (1985), and by imposing sentences that were both consecutive and concurrent, see State v. Rogers, 124 N.J. 113 (1991). The court remanded for resentencing.
