NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5501-12T1

APPROVED FOR PUBLICATION STATE OF NEW JERSEY, August 11, 2014 Plaintiff-Respondent, APPELLATE DIVISION v.

ARMANDO CARREON,

Defendant-Appellant.

________________________________

Argued June 4, 2014 – Decided August 11, 2014

Before Judges Waugh,1 Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Cumberland County, Municipal Appeal No. 30-12.

Elizabeth M. Trinidad argued the cause for appellant (Trinidad Law Office, LLC, attorneys; Ms. Trinidad, on the brief).

G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).

1 Judge Waugh did not participate in oral argument. He joins the opinion with counsel's consent. R. 2:13-2(b). The opinion of the court was delivered by

ACCURSO, J.A.D.

This appeal requires us to consider whether a never-

licensed driver may be fined and sentenced to a custodial term

under the penalty provisions of N.J.S.A. 39:3-10. Defendant

Armando Carreon appeals from the (partial) denial of his

petition for post-conviction relief contending that he was

subject to an illegal sentence consisting of a fine and a

custodial term following his guilty plea to driving without a

license, N.J.S.A. 39:3-10. We agree that defendant's sentence

is illegal and thus reverse and remand for resentencing.

Following a traffic stop in 2012, defendant was charged

with failing to stop at a stop sign, N.J.S.A. 39:4-144, and

driving without a license, N.J.S.A. 39:3-10. Represented by the

public defender, defendant pled guilty to unlicensed driving,

and the stop sign violation was dismissed.

Reviewing defendant's abstract and finding that this was

his third conviction for unlicensed driving, the municipal court

judge imposed a $756 fine, $33 in court costs and a ten-day jail

term without a statement of reasons as required by Rule 7:9-

1(c). The judge commented only that defendant "should have been

charged on this occasion with driving while suspended, but he

2 A-5501-12T1 wasn't."2 The judge did not consider the sentencing standards

imposed in State v. Moran,

(2010) (setting

standards to guide the discretion of judges imposing license

suspensions under N.J.S.A. 39:5-31), or suggested in State v.

Henry,

(Law Div. 2010) (employing

the aggravating and mitigating factors found in N.J.S.A. 2C:44-

1(a) and (b) in determining whether a custodial sentence was

appropriate for a third conviction under N.J.S.A. 39:4-50).

Defendant did not seek de novo review of his sentence in

the Law Division. Instead, prior to the date he was to begin

serving his custodial term, he filed a PCR petition in the

municipal court pursuant to Rule 7:10-2(b)(1). Although

defendant's counsel was advised by the municipal court staff

that defendant's petition had been denied, the municipal court

judge refused to issue an order to that effect, despite defense

counsel's efforts to secure one.

2 Although we have not been provided with defendant's driving abstract, which both judges reviewed and relied upon in making their rulings, we can discern no basis for the municipal judge's statement. Defendant's prior violations are noted in the Law Division transcript to have occurred in 2005 and 2008. Apparently, neither conviction was accompanied by the mandatory 180-day suspension order required by N.J.S.A. 39:3-10. The municipal judge noted, however, that defendant "restored" following his conviction for driving under the influence, N.J.S.A. 39:4-50, which accompanied his 2005 conviction for unlicensed driving. Accordingly, we see no basis to conclude that defendant's conduct could support a violation of N.J.S.A. 39:3-40.

3 A-5501-12T1 The Law Division stayed the custodial aspect of defendant's

sentence and considered his PCR petition on the merits.

Although terming the $756 fine as "excessive, not illegal," the

Law Division judge nonetheless granted defendant's petition

limited to a reduction of the fine to the "maximum penalty [of]

$500." The judge rejected defendant's argument that N.J.S.A.

39:3-10 allowed either a mandatory minimum fine of $200 in

defendant's case, or imprisonment, but not both.

Defendant appeals. We stayed the custodial aspect of his

sentence pending our review of the merits of his appeal.

Because we agree that the statute allows a fine or imprisonment

but not both, even for drivers, who, like defendant, have never

been licensed, we now reverse.

The penalty provisions of the unlicensed driver statute

provide as follows:

A person violating this section shall be subject to a fine not exceeding $500 or imprisonment in the county jail for not more than 60 days, but if that person has never been licensed to drive in this State or any other jurisdiction, he shall be subject to a fine of not less than $200 and, in addition, the court shall issue an order to the commission requiring the commission to refuse to issue a license to operate a motor vehicle to the person for a period of not less than 180 days. The penalties provided for by this paragraph shall not be applicable in cases where failure to have actual possession of the operator's license

4 A-5501-12T1 is due to an administrative or technical error by the commission.

[N.J.S.A. 39:3-10.]

We begin, as the canons of construction counsel, with what is

clear from the plain meaning of the text. State ex rel. K.O.,

(2014). Here the text makes obvious that the

statute mandates either fine or imprisonment - but not both -

for violators who have previously been licensed to drive in New

Jersey or elsewhere. The question is how that first clause

relates to the penalty provided in the second, "but if" clause

for drivers who have never been licensed here or elsewhere.

Defendant argues that the "but if" clause plainly subjects

the never-licensed violator to a minimum $200 fine, but only in

the event the judge chooses to fine instead of imprison. He

contends, in effect, that the "but if" clause circumscribes, but

does not override, the overarching design to penalize those

driving without a license with a fine or imprisonment but not

both.

The State contends that the $200 fine, like the 180-day

"suspension" is mandatory for all never-licensed drivers

convicted under the statute. It argues that never-licensed

drivers are subject to a fine or imprisonment and a minimum $200

fine and 180-day period in which they may not be issued a

license. The State, however, allows that there is some relation

5 A-5501-12T1 between the first and second clauses because it agrees with

plaintiff that the maximum fine for a never-licensed driver is

$500.

Defendant contends that the State's reading of the statute,

adopted by the Law Division judge, is illogical. He reasons

that if the maximum fine for a never-licensed driver "relates

back" to the first clause as the State concedes, then so

logically must the minimum fine. The State counters that the

logical import of defendant's argument, in light of the plain

language which directs that never-licensed drivers "shall" be

subject to a minimum fine, would prevent a judge from ever

imposing a custodial sentence, thus defeating the Legislature's

clear intention to enhance the statutory penalty for never-

licensed violators.

The proper interpretation of a statute is a question of law

that we review de novo. McGovern v. Rutgers,

, 107-

08 (2012). Our goal, of course, is to determine and effect the

Legislature's intent. See

. We

begin with the words of the statute, which we are to give their

ordinary meaning and construe in a common-sense manner.

If the language is unclear or ambiguous, "or if the

Legislature's intention is otherwise uncertain," we may resort

"to extrinsic aids to 'assist us in our understanding of the

6 A-5501-12T1 Legislature's will.'"

at 92 (quoting Pizzullo v. N.J. Mfrs.

Ins. Co.,

(2008)).

The Legislature amended N.J.S.A. 39:3-10 in 1982 to add the

penalty for the never-licensed driver in the clause we interpret

as part of a larger effort to address various penalty provisions

in Title 39.

, c. 45, § 1. With regard to this

provision, the Sponsor's Statement provided: "[t]he bill

establishes a $200.00 minimum fine and a provision for a court

order to the director delaying the issuance of a license for 6

months to anyone who drives and who has never obtained a

license." Sponsor's Statement to S. 904, at 5 (Feb. 1, 1982).

In approving the bill, the Senate Public Safety and Defense

Committee noted that the bill "provides that a person who drives

without ever having obtained a license[] will be fined a minimum

of $200.00." See Senate Public Safety & Defense Committee,

Statement to S. 904 (Feb. 8, 1982). Finally, Governor Kean, in

his signing statement, likewise noted that the statute was

intended to "increase[] penalties for unlicensed driving . . .

[to include a] $200 [fine] if never licensed[.]" Governor's

Signing Statement to S. 321 (1982).

3 The text of this portion of the statute has since been altered only once, to remove the decimal point from the fine ($500.00 to $500 and $200.00 to $200). See L. 1998, c. 108, § 1.

7 A-5501-12T1 Although the statute is mentioned in many opinions, the

penalty provision appears never to have been construed. In

State v. Handy,

(Atl. Cty. Ct. 1962),

the county court distinguished the statute from the more serious

violation of driving on a suspended license, N.J.S.A. 39:3-40.

The court observed that "[i]n violating N.J.S.A. 39:3-10 the

offender signifies his possible inaptitude to drive a motor

vehicle, and circumvents the licensing authority, regulations,

and fees of this State," whereas by "violating N.J.S.A. 39:3-40

the offender asserts his defiance of public sanctions imposed

for community safety."

Accordingly, neither prior

precedent nor the spare legislative history provides guidance in

resolving the meaning of the amendment enhancing the penalty for

never-licensed drivers.

Although the Legislature oftentimes uses "or" and "and"

interchangeably and whether they are conjunctive or disjunctive

"'depends primarily upon the legislative intent,'" Pine Belt

Chevrolet v. Jersey Cent. Power & Light Co.,

(1993) (quoting Howard v. Harwood's Rest. Co.,

(1957)), here no one disputes, as it relates to previously

licensed drivers, that the provision is plainly disjunctive: a

judge may fine such offenders or sentence them to the county

jail but may not do both. See State v. Duva,

A-5501-12T1 418, 421 (Law Div. 1983) (noting that "the word 'or' carries

with it natural disjunctive import"). The difficulty arises out

of the second clause "but if that person has never been licensed

. . . he shall be subject to a fine of not less than $200," or,

more specifically, the relation of that clause to the

disjunctive provision of the statute's first clause. N.J.S.A.

39:3-10.

We think it apparent from the plain language that the

Legislature intended to guarantee a minimum sentence of a $200

fine and a six-month suspension in which no license may issue

for such never-licensed drivers. With regard to whether such

drivers may additionally be sentenced to jail, however, the

statute is susceptible to two possible interpretations.

One is the one adopted by the Law Division that such

drivers must always receive a fine of at least $200 and a

six-month suspension and may also receive up to sixty days in

the county jail. The strength of that interpretation is that

the Legislature's use of "but" rather than "and" suggests that

the second clause is meant to be an exception to the first

clause, and that "shall" suggests a mandatory fine. Its

weakness is the acceptance that the fine is capped at the $500

of the first clause, suggesting that the overarching design of

fine or imprisonment holds for never-licensed drivers as well.

9 A-5501-12T1 The other interpretation is the one urged by defendant,

that the "but if" clause creates only a minimum fine in the

event the judge imposes a fine rather than imprisonment in the

county jail. The strength of that interpretation is that it

accounts for the entirety of both clauses. Emphasizing that the

clause states only that never-licensed drivers "shall be subject

to" a $200 minimum fine, which shall be capped at $500, and that

never-licensed drivers are not "subject to" a fine "and" a

suspension, but that the suspension is "in addition" to the

minimum fine to which such drivers are subject, defendant argues

that the "but if" clause modifies but does not supplant the fine

or jail alternatives of the first clause. The interpretation's

weakness is that if "shall" is mandatory and a judge may not

impose a fine and jail on a never-licensed driver, then the

never-licensed driver may never be sentenced to jail, a result

clearly not intended by the Legislature.

Both interpretations are plainly reasonable ones. Indeed,

they have an almost Escher-like quality in that viewing the

statute from the perspective of one of them makes it hard to

readily admit the plausibility of the other. We are persuaded,

however, that viewing the "but if" clause as circumscribing, but

not overriding, the overarching design of the statute to

penalize those driving without a license with a fine or

10 A-5501-12T1 imprisonment but not both, best effectuates the Legislature's

intent in amending the statute to impose a harsher penalty on

never-licensed drivers.

First, viewing the statute in this way harmonizes both

clauses and gives effect to all of the words the Legislature

employed. See

(noting that the

rules of statutory construction require deference to the words

chosen by the Legislature). It reads the statute to provide

both a minimum sentence and a maximum fine while preserving

judicial discretion for a harsher custodial term for both

unlicensed and never-licensed drivers. Our construction thus

addresses the logical inconsistencies raised by the parties,

effects the intent of the Legislature, to the extent it can be

discerned, and preserves the discretion of the sentencing judge

to impose either a fine or jail time within the limits of the

statute.

We note also that while we would not wish to overemphasize

internal consistency in a title as vast and so often amended as

, nevertheless, when the Legislature intends fine or

imprisonment, or both, for a motor vehicle offense, it often

says so plainly. See, e.g., N.J.S.A. 39:4-96 (reckless

driving); N.J.S.A. 39:4-36b (failure to yield to a pedestrian);

N.J.S.A. 39:4-49 (tampering with vehicle).

11 A-5501-12T1 Finally, our construction appears in keeping with the

popular understanding and practical interpretation of the

statute in the municipal courts since its amendment in 1982.

See 24 New Jersey Practice, Motor Vehicle Law and Practice,

§ 2.103 at 67-68 (Robert Ramsay) (rev. 3d ed. 2001). That long

understanding unchallenged by litigation is entitled to some

deference. See N.J. Ass'n on Corr. v. Lan,

(1979) ("'Like all precedents, where contemporaneous and

practical interpretation has stood unchallenged for a

considerable length of time it will be regarded as of great

importance in arriving at the proper construction of a

statute.'") (quoting 2A Sutherland, Statutes & Statutory Constr.

§ 49.07, 251-52 (4th ed. 1973)).

We reverse defendant's sentence and remand to the Law

Division for resentencing. Should the Law Division judge

consider imposing a custodial term rather than a fine, he shall

apply the standards enunciated in

,

and Henry, supra,

. We do not retain

jurisdiction.

Reversed and remanded.

12 A-5501-12T1