NOT FOR PUBLICATION WITHOUT THE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, 437 N.J. Super. 333 (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:40-26a. 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 French, supra, 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. French, supra, 437 N.J. Super. at 334. 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. Ibid. 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." Id. at 336. 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. Id. at 335-39.
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." French, supra, 437 N.J. Super. at 335 (citing R.
13 A-3591-12T1
2:10-3; State v. Schubert, 212 N.J. 295, 309-10 (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, 212 N.J. at 313.]
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