NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3591-12T1 A-4003-12T1 A-5957-12T1 A-6112-12T1 A-0162-13T1 A-1523-13T1 STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION v. February 4, 2015 JOHN D. HARRIS, III, a/k/a APPELLATE DIVISION JOHN DANIEL HARRIS,

Defendant-Respondent. ______________________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SABRINA KING, a/k/a SABRINA J. KING, CARTER KING SABRINA, KING SABRINA, CARTER SABRINA, CARTER SABRINA J.,

Defendant-Respondent. _______________________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROBERT M. KACZAK,

Defendant-Respondent. _______________________________________ STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KRISTIN L. MITCHELL, a/k/a KRISTIN GOTWALD,

Defendant-Respondent. _______________________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM HANGSTORFER, a/k/a HANK T. HANGSTORFER, WILLIAM T. HANGSTORFER, WILLIAM T. HANGSTORFER,

Defendant-Respondent. ________________________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MANDI FILER,

Defendant-Respondent. ________________________________________

Submitted January 27, 2015 – Decided February 4, 2015

Before Judges Reisner, Koblitz and Haas.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 12-07-1859, 12-09-2381, 12-10-2567, 12-07- 1801, 13-01-0237, 12-08-2234 and 13-03-0984.

2 A-3591-12T1 Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Jason Magid, Assistant Prosecutor, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, attorney for respondent John D. Harris, III (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the briefs).

Zucker Steinberg & Wixted, P.A., attorneys for respondent Sabrina King (Jeffrey C. Zucker, of counsel and on the briefs; David W. Sufrin, on the briefs).

John A. Ferzetti, attorney for respondent Robert Kaczak.

Respondent Kristin L. Mitchell has not filed a brief.

Jacobs and Barbone, P.A., attorneys for respondent William Hangstorfer (Louis M. Barbone, on the briefs).

Joseph E. Krakora, Public Defender, attorney for respondent Mandi Filer (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the briefs).

The opinion of the court was delivered by

HAAS, J.A.D.

In these back-to-back appeals, consolidated for the purpose

of this opinion, defendants John Harris, III, Robert Kaczak,

Kristin Mitchell, William Hangstorfer, and Mandi Filer were

convicted of the fourth-degree crime of operating a motor

vehicle during a period of license suspension for multiple

convictions of driving while intoxicated (DWI), N.J.S.A. 2C:40-

3 A-3591-12T1 26b. Defendant Sabrina King was convicted of two counts of the

fourth-degree crime of operating a motor vehicle during a period

of license suspension after having been previously convicted of

driving while her license was suspended for a first DWI offense,

N.J.S.A. 2C:40-26a. The trial court sentenced each defendant to

180 days in a correctional facility, but ordered that the

sentences be served in either a home detention or community

service program instead of jail.1

The State appeals, arguing that the statutory sentencing

framework of Title 2C requires a mandatory 180-day sentence in

jail without parole for these offenses, which cannot be

satisfied by service in either a home detention or community

service program. For the reasons set forth in our recent

decision in State v. French,

(App. Div.

2014), we agree with the State that defendants' sentences are

illegal and, therefore, reverse and remand for resentencing.

I.

We begin our analysis with a brief summary of the

circumstances giving rise to each defendant's conviction.

1 The court sentenced King to two consecutive 180-day terms, with each to be served in a home detention program rather than jail.

4 A-3591-12T1 A.

Defendant John Harris, III pled guilty to a one-count

indictment charging the crime of driving while his license was

suspended after multiple DWI convictions in violation of

N.J.S.A. 2C:40-26b. Pursuant to the plea agreement, the State

recommended that the judge sentence Harris to 180 days in the

county jail, and it objected to permitting Harris to serve that

term in the "HEDS"2 program. Nevertheless, the judge sentenced

Harris to 180 days in jail, but ordered that defendant could

serve that sentence in HEDS. The judge assessed appropriate

fines and penalties, and dismissed several motor vehicle

summonses. The judge also granted the State's motion for a stay

of the sentence pending appeal.

B.

Defendant Robert Kaczak pled guilty to one count of

violating N.J.S.A. 2C:40-26b. This was an "open plea," but the

prosecutor represented that the State would seek a 180-day

sentence to the county jail, and would oppose defendant's

request that he be permitted to serve the sentence in an

alternate program. The judge sentenced Kaczak to 180 days in

2 "HEDS" refers to the county's "Home Electronic Detention System," which has been described to us as a home detention program, where the defendant wears an electronic device to monitor his or her location.

5 A-3591-12T1 the county jail, but stated that he could serve the sentence in

HEDS "if [he] qualifies and follows [the] rules of [the]

program." The judge assessed appropriate fines and penalties,

and granted the State's motion to stay the sentence pending

appeal.

C.

Defendant Kristin Mitchell pled guilty to one count of

violating N.J.S.A. 2C:40-26b. Pursuant to a plea agreement, the

State agreed to recommend a sentence of probation, plus 180 days

in jail. The State advised defendant and the judge that it

would oppose a sentence to an alternate program. The judge

sentenced Mitchell to 180 days in the county jail to be served

in HEDS, assessed appropriate fines and penalties in connection

with this offense, and granted the State's motion to stay the

sentence pending appeal.3

Mitchell also agreed to plead guilty to a motor vehicle

summons charging her with a violation of driving while license

suspended, N.J.S.A. 39:3-40. The prosecutor advised the judge

that, in return for Mitchell's plea to this violation, the State

would recommend that the judge impose a $500 fine, $33 in court

costs, and a three-month license suspension to run concurrent to

3 Mitchell's judgment of conviction incorrectly states that she was convicted of N.J.S.A. 2C:40-26a, instead of N.J.S.A. 2C:40- 26b.

6 A-3591-12T1 a suspension Mitchell was already serving in connection with an

unrelated matter. The judge accepted this recommendation and

sentenced Mitchell in accordance with the plea agreement. The

judge also stayed this portion of Mitchell's sentence pending

appeal.

D.

Defendant William Hangstorfer pled guilty to one count of

violating N.J.S.A. 2C:40-26b. This was an "open plea," but the

prosecutor represented that the State would recommend that the

judge sentence Hangstorfer to probation, plus no more than the

180-day minimum period of incarceration required under N.J.S.A.

2C:40-26c. The State also made clear that it would object to

the sentence being served in a "program" instead of the county

jail.

The judge sentenced Hangstorfer to two years of probation

and 180 days in jail. However, the judge ruled that Hangstorfer

could serve his sentence in "[a]lternative programs, such as

HED[S] or CSLS,4 . . . if [he] qualifies and follows [the] rules

of [the] program." The judge imposed appropriate fines and

penalties, and dismissed several associated motor vehicle

4 "CSLS" refers to the "County Supplemental Labor Service Program." Individuals in this program report to a central location each day and are then sent to work at various sites. They return home after the completion of their daily assignment.

7 A-3591-12T1 summonses. The judge granted the State's motion for a stay of

the sentence pending appeal.

E.

Defendant Mandi Filer pled guilty to one count of violating

N.J.S.A. 2C:40-26b. The State agreed to recommend a sentence of

180 days in the county jail and advised Filer and the judge that

it would object to any sentence to a "program." The judge

sentenced Filer to 180 days in the county jail, "to be served in

CSLS, weekends, if accepted." The judge assessed appropriate

fines and penalties.5 The judge granted the State's motion for a

stay of the sentence pending appeal.

F.

Defendant Sabrina King pled guilty to two separate one-

count indictments, each charging her with a violation of

N.J.S.A. 2C:4-26a. Although the parties agreed that King's

pending motor vehicle summonses would be remanded to the

municipal court for disposition, this was an "open plea." At

sentencing, the State opposed King's request that she be

permitted to serve her sentence in the HEDS program. However,

the judge granted that request and imposed consecutive 180-day

5 Filer also pled guilty to several motor vehicle offenses, but the sentences she received for those offenses are not at issue on appeal.

8 A-3591-12T1 terms in the county jail on each count, to be served in HEDS.

The judge assessed appropriate fines and penalties.6 The judge

granted the State's motion to stay these sentences pending

appeal. The judge also stated that, if the sentences were later

determined to be illegal, he would likely modify them so that

King's 180-day jail terms on each count would run concurrently,

rather than consecutively, to each other.

When King filed her appellate brief in this matter, she

claimed that, in spite of the stay of the sentence pending

appeal, "she is presently serving her sentence pursuant to the

terms of" the HEDS program. The State investigated this claim

and discovered that, without the prosecutor's knowledge, the

county department of corrections had permitted King to complete

her sentence on the first of her two convictions as a

participant in HEDS. The department advised the prosecutor that

it was not aware of the judge's order staying the sentences, or

the fact that King had been sentenced to two consecutive 180-day

terms. According to the State, King has not participated in

HEDS for the second of her two convictions.

6 One of the two judgments of conviction incorrectly states that King pled guilty to N.J.S.A. 2C:40-26b, rather than N.J.S.A. 2C:40-26a.

9 A-3591-12T1 II.

Citing our decision in

the State argues that

defendants' sentences to either the HEDS or CSLS programs were

illegal. We agree.

N.J.S.A. 2C:40-26 provides:

a. 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 first violation of [DWI] or [refusal to submit to a chemical test for intoxication,] . . . and the actor had previously been convicted of [driving while license suspended] while under suspension for that first [DWI] offense. A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.

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 a 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 [providing for a maximum custodial sentence of eighteen months] and the provisions of subsection e. of N.J.S.A. 2C:44-1 [the presumption of non-imprisonment for a first offender convicted of a fourth-degree crime], if

10 A-3591-12T1 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 French, the defendant pled guilty to a violation of

N.J.S.A. 2C:40-26b and the judge sentenced him to ninety days in

jail followed by ninety days in an inpatient drug rehabilitation

program.

. The State

argued that the portion of the sentence permitting the defendant

to serve ninety days in an alternate program, as opposed to

jail, was illegal.

We noted that "N.J.S.A. 2C:40-26c

requires the imposition of a mandatory period of incarceration

of 180 days during which the defendant is not subject to

parole."

. In view of this clear language, we held

that a defendant convicted of N.J.S.A. 2C:40-26b must be

sentenced to 180 days in jail without parole, with no sentencing

alternative available.

.

The Legislature's purpose in requiring a mandatory period

of "imprisonment" for this offense, with no possibility of

parole, is also clear. Alternatives to jail, like the inpatient

drug rehabilitation program involved in French, or the home

detention and community service programs at issue here, do not

protect the public in the same way as incarceration. This

public safety consideration is especially relevant in the case

11 A-3591-12T1 of a defendant who loses his or her driving privileges for DWI,

but then continues to drive despite the license suspension.

Because N.J.S.A. 2C:40-26c requires a "fixed minimum

sentence of not less than 180 days" without parole eligibility

for violations of N.J.S.A. 2C:40-26b, a sentence to a non-

custodial "alternative program," instead of jail, is plainly

illegal. We therefore reverse the sentences imposed upon

Harris, Kaczak, Mitchell, Hangstorfer, and Filer, who were

convicted of violating N.J.S.A. 2C:40-26b, and remand to the Law

Division to resentence each defendant to 180 days to be served

in jail without eligibility for parole.

For these same reasons, we also conclude that King's

sentences to HEDS for her two convictions under N.J.S.A. 2C:40-

26a were illegal. Although the defendant in French was

convicted of violating 2C:40-26b, rather than N.J.S.A. 2C:40-

26a, the latter section also makes clear that a person convicted

under that provision "shall be sentenced by the court to a term

of imprisonment[,]" and N.J.S.A. 2C:40-26c requires a mandatory

180-day jail term. Thus, our ruling in French plainly applies

to defendants, like King, who are convicted of violating

N.J.S.A. 2C:40-26a. Accordingly, we reverse King's sentences on

both of her convictions and remand to the Law Division for

12 A-3591-12T1 resentencing in accordance with the following specific

instructions.

A question has arisen on appeal as to whether King

completed at least one of her two sentences during the pendency

of this matter and, if so, whether she can now be resentenced.

In her appellate brief, King claimed she was "presently serving

her sentence pursuant to the terms of" the HEDS program. In its

reply brief, the State pointed out that both of King's sentences

were stayed pending appeal. The State asserts that, until King

filed her appellate brief, it was unaware that the county

corrections department had permitted King to enter the program

in violation of that stay.

The State represents that King "completed her sentence" on

the first of her two convictions in the HEDS program but,

because the county department of corrections did not know King

had a second conviction, she did not complete any portion of the

consecutive sentence she received for her second conviction. In

a supplemental brief concerning the impact of our decision in

French on her sentences, King does not directly address the

State's contentions on this point, except to state that "her

jail sentence was completed and was served on house arrest."

"An illegal sentence may be corrected at any time before it

is completed."

(citing R.

13 A-3591-12T1 2:10-3; State v. Schubert,

(2012)). Thus,

a sentence that has been completed cannot ordinarily be

challenged on appeal. However, in Schubert, the Court stated:

If there was some indication in [the] record that either [the] defendant or his attorney had engaged in some effort to mislead the court with respect to [a specific condition of the] defendant's sentence, we would agree that any expectation of finality [the] defendant might have achieved would not be a legitimate one. The record before us contains not a hint, however, of such a devious plot.

[Schubert, supra,

.]

With regard to King's two convictions for violating

N.J.S.A. 2C:40-26a, the State argues that King and her attorney

were fully aware that the sentences to HEDS on both counts had

been stayed pending appeal. The State also argues that King and

her attorney did not reveal that King was in the program until

King filed her responding brief in this appeal. Thus, the State

contends that defendant participated in the program knowing of

the risk that, should her sentences be reversed, she would be

resentenced to 180 days in jail on each conviction, with the

judge determining whether those sentences should be served

concurrently or consecutively.

We conclude that the current record is not sufficient to

enable us to consider the parties' competing contentions on this

point. No documentary evidence has been presented verifying

14 A-3591-12T1 King's attendance in HEDS. There may also be serious factual

disputes concerning King's knowledge of the stay, and her

attorney's and the county correction department's explanations

for permitting her to participate in HEDS in contravention of

that stay. We therefore direct the trial court to consider the

parties' contentions on remand and make a complete factual

record7 concerning them before determining whether King should be

resentenced to 180 days in jail on her first conviction in

accordance with the requirements of N.J.S.A. 2C:40-26c.

With regard to King's second conviction for violating

N.J.S.A. 2C:40-26a, which was to run consecutively to her

conviction on the first count, the trial court shall review the

State's representation that King has not already served her

complete sentence in an alternate program for that conviction.

If the State's representation is correct, the court shall

sentence King to 180 days to be served in jail without

eligibility for parole on this second conviction. If it is not,

and King has already served all or a part of her second sentence

in HEDS, the court shall consider the parties' competing factual

contentions, make a complete record, and determine whether King

should be resentenced to 180 days in jail on her second

7 We leave the question of the necessity of conducting an evidentiary hearing to resolve the parties' factual claims to the discretion of the trial court.

15 A-3591-12T1 conviction in accordance with the requirements of N.J.S.A.

2C:40-26c.

Finally, in Mitchell's case, the State argues that the

sentence the judge imposed for her violation of N.J.S.A. 39:3-40

was illegal. In accordance with the negotiated plea, the judge

imposed a $500 fine, $33 in court costs, and a three-month

license suspension. However, the sentencing statute for this

offense, N.J.S.A. 39:3-40f(2), states that, in addition to the

monetary fines set forth above, the judge "shall" suspend a

defendant's license for a "period of not less than one year or

more than two years," and impose a county jail term of "not less

than 10 days or more than 90 days." Because the judge only

suspended Mitchell's driver's license for three months, and did

not sentence her to any time in jail, the State asserts Mitchell

must be resentenced.8

We agree with the State that N.J.S.A. 39:3-40f(2) requires

a mandatory period of license suspension, together with a county

jail term for this offense. Therefore, Mitchell's sentence for

this motor vehicle violation was illegal. However, we also note

that, during the plea colloquy, the State represented that, in

addition to the mandatory fines, only a three-month license

8 Mitchell's sentence was stayed pending appeal and there is nothing in the record to indicate that Mitchell completed any portion of her sentence for this motor vehicle violation.

16 A-3591-12T1 suspension would be imposed. There was no mention of the

possibility of jail time.

Under these circumstances, we remand this matter to the Law

Division for resentencing on the N.J.S.A. 39:3-40 charge.

Because Mitchell may not have been aware of the mandatory jail

term and the lengthier period of license suspension required by

N.J.S.A. 39:3-40f(2), basic fairness requires that she be

permitted the opportunity to withdraw her guilty plea to this

violation prior to resentencing. On remand, she shall also have

the opportunity to argue that this motor vehicle charge should

merge with her conviction for violating N.J.S.A. 2C:40-26b.

Defendants' sentences are reversed and remanded for

resentencing. We do not retain jurisdiction.

17 A-3591-12T1