State of New Jersey v. Charles Wheatley

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5026-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. November 21, 2016

APPELLATE DIVISION
CHARLES WHEATLEY,

Defendant-Appellant.

Submitted November 10, 2016 – Decided November 21, 2016

Before Judges Simonelli, Carroll and Gooden
Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Ocean County,
Municipal Appeal No. 01-15.

Marshall, Bonus, Proetta & Oliver, attorneys
for appellant (Jeff Thakker, of counsel;
Stephen F. McGuckin, on the briefs).

Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Supervising Assistant Prosecutor, of counsel;
O. Nicholas Monaco, Assistant Prosecutor, on
the brief).

The opinion of the court was delivered by

CARROLL, J.A.D.

Defendant Charles Wheatley pled guilty in the Manchester

Township Municipal Court to driving while intoxicated (DWI),

N.J.S.A. 39:4-50(a), pursuant to a plea agreement by which
related charges of reckless driving, N.J.S.A. 39:4-96, and

failure to maintain a lane of vehicular travel, N.J.S.A. 39:4-

88(b), were dismissed. The narrow issue presented in this

appeal is whether the heightened penalties contained in N.J.S.A.

39:4-50(a)(2), applicable upon conviction of a second DWI

offense under N.J.S.A. 39:4-50(a), may be imposed where

defendant's predicate "first offense" occurred within a school

zone as defined by N.J.S.A. 39:4-50(g), but the second DWI

offense did not.

The procedural history and factual background underlying

this appeal are undisputed. In 2007, defendant was convicted in

Delran Township of DWI in a school zone in violation of N.J.S.A.

39:4-50(g).1 Defendant was arrested and charged by the

Manchester Police in the instant matter on May 5, 2014. On

January 14, 2015, defendant pled guilty in the Manchester

Township Municipal Court under subsection (a) of the DWI

statute, N.J.S.A. 39:4-50. The municipal court rejected

defendant's contention that because he was previously convicted

under subsection (g) of the DWI statute, he should be sentenced

as a first offender under subsection (a). Consequently, the

1
The record on appeal does not include a copy of the summons or
the plea and sentencing transcripts. No explanation has been
given for the absence of this documentation. However, in their
respective briefs the parties agree upon the accuracy of this
prior history.

2 A-5026-14T1
municipal court sentenced defendant as a second offender

consistent with the penalties prescribed by N.J.S.A. 39:4-

50(a)(2). Specifically, the municipal court suspended

defendant's license for two years; ordered him to serve forty-

eight hours in the Intoxicated Driver Resource Center, perform

thirty days of community service, and place an interlock device

on his car; and imposed applicable fines, penalties, and court

costs. The municipal court stayed the sentence pending appeal.

The Law Division, on de novo review, similarly held that

the second-offense penalties of subsection (a) applied to

defendant's current DWI conviction. The court imposed anew the

sentence that the municipal court imposed, and continued the

stay of defendant's sentence pending this appeal.

Defendant presents the following arguments in his appeal:

POINT I

SUBSECTIONS "(g)" AND "(a)" OF N.J.S.A.
39:4-50 REPRESENT SEPARATE AND DISTINCT
OFFENSES, BASED ON THE PLAIN LANGUAGE OF THE
STATUTE, THE LEGISLATIVE HISTORY, THE
PRINCIPLES OF LENITY, AND THE SUPREME
COURT'S DECISION IN STATE V. REINER[, 180
N.J. 307 (2004)]; [DEFENDANT] WAS A FIRST-
TIME N.J.S.A. 39:4-50(a) [OFFENDER] AND
COULD ONLY HAVE BEEN CONVICTED AND SENTENCED
ACCORDINGLY.

POINT II

IT WAS NOT ESTABLISHED THAT THE MANCHESTER
MUNICIPAL COURT HAD JURISDICTION OVER THIS

3 A-5026-14T1
 MATTER; THE CONVICTION IS VOID. (Not Raised
Below).

Our role on appeal after a trial de novo under Rule 3:23 is

to determine whether there is sufficient credible evidence in

the record supporting the Law Division's decision. State v.

Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, we

do not independently assess the evidence. State v. Locurto, 157

N.J. 463, 471 (1999). However, we review de novo the trial

court's legal conclusions that flow from established facts.

State v. Handy, 206 N.J. 39, 45 (2011).

Pertinent to this appeal, N.J.S.A. 39:4-50 provides in

relevant part:

Except as provided in subsection (g) of
this section, a person who operates a motor
vehicle while under the influence of
intoxicating liquor . . . with a blood
alcohol concentration of 0.08% or more . . .
shall be subject:

(1) For the first offense:

(i) if the person's blood alcohol
concentration is 0.08% or higher but less
than 0.10% . . . to a fine of not less than
$250 nor more than $400 and a period of
detainment of not less than 12 hours nor
more than 48 hours spent during two
consecutive days of not less than six hours
each day and served as prescribed by the
program requirements of the Intoxicated
Driver Resource Centers . . . and, in the
discretion of the court, a term of
imprisonment of not more than 30 days and
[suspension of driving privileges] for a
period of three months[.]

4 A-5026-14T1
 . . . .

(2) For a second violation, a person
shall be subject to a fine of not less than
$500 nor more than $1000, and . . .
community service for a period of 30 days .
. . [and] imprisonment for a term of not
less than 48 consecutive hours . . . nor
more than 90 days, and [suspension of
driving privileges] for a period of two
years . . . .

However, when the violation of N.J.S.A. 39:4-50 occurs in

any one of three areas designated as a school zone, subsection

(g) of the statute prescribes harsher penalties. Specifically,

in such instances,

[t]he convicted person shall: for a first
offense, be fined not less than $500 or more
than $800, be imprisoned for not more than
60 days and have his license . . . suspended
for a period of not less than one year or
more than two years; for a second offense,
be fined not less than $1,000 or more than
$2,000, perform community service for a
period of 60 days, be imprisoned for not
less than 96 consecutive hours . . . nor
more than 180 days . . . and have his
license . . . suspended for a period of four
years[.]2

[N.J.S.A. 39:4-50(g)(3).]

Relying on Reiner, supra, defendant renews his argument

that because he was previously convicted under subsection (g) of

N.J.S.A. 39:4-50 and not subsection (a), he must therefore now

2
Both subsections (a) and (g) provide additionally increased
penalties for a third or subsequent offense.

5 A-5026-14T1
be sentenced as a first offender under N.J.S.A. 39:4-50(a). For

the reasons that follow, we find defendant's reliance on Reiner

inapposite.

In Reiner, the defendant had previously been convicted of

DWI under subsection (a) when he was thereafter convicted of DWI

in a school zone under subsection (g). Reiner, supra, 180 N.J.

at 309-11. The issue before the Court was whether defendant

should be sentenced as a second offender pursuant to subsection

(g), even though he had no prior convictions for DWI in a school

zone. Ibid. The Court found that the ambiguities in the

language of the statute, and the inconclusive legislative

history when the DWI statute was amended in 1999 to add

subsection (g), compelled it "to construe the statute strictly,

against the State and in favor of the defendant." Id. at 318.

Because the penalties for a second offender under subsection (g)

were approximately twice those applicable to a second offender

under subsection (a), the Court held that subsection (g) is "a

separate offense that requires other subsection (g) convictions

for repeat status to attach." Ibid.

Importantly, however, the Court noted "the anomalous

sentencing that would result" on remand were the defendant to be

sanctioned only as a first offender under subsection (g),

because the penalties for that offense were significantly less

6 A-5026-14T1
severe than the penalties for a second subsection (a) offense.

Id. at 319. Consequently, the Court concluded that "the trial

court should sentence defendant in accordance with the

heightened penalties that apply as a consequence of being a

second-time offender under subsection (a). We believe that that

application fulfills the legislative intent with regard to the

punishment of repeat DWI offenders." Id. at 319-20.

The factual scenario of the present case is the converse of

that addressed by the Court in Reiner. Unlike Reiner, here

defendant was first convicted of the school zone offense and

then the general DWI offense. Both subsections of the DWI

statute require the same elements of proof, except that the

State must additionally prove the offense occurred in a school

zone in order to establish a violation of subsection (g), with

its attendant harsher penalties. In effect, then, although

Reiner deemed them to be separate offenses, subsection (a) is a

lesser-included offense of subsection (g). In the related

context of our Criminal Code, N.J.S.A. 2C:1-8d(1) explains that

an offense is included when "[i]t is established by proof of the

same or less than all the facts required to establish the

commission of the offense charged[.]"

Thus, when defendant was convicted of DWI in a school zone

in Delran in 2007, the State necessarily established all the

7 A-5026-14T1
elements necessary to sustain not only a subsection (g)

violation but also a subsection (a) violation. Subsequently,

when defendant pled guilty to N.J.S.A. 39:4-50(a) in Manchester

Township in 2015, the same basic elements of the conventional

DWI statute were again established. As the Law Division judge

aptly noted, "defendant's conviction for DWI contrary to

subsection (a) is a second conviction for the same generally

pr[o]scribed conduct, DWI." Analogizing this matter to Reiner,

we believe that the heightened penalties that apply as a

consequence of being a second, rather than a first, offender

under subsection (a) "fulfill[] the legislative intent with

regard to the punishment of repeat DWI offenders." Reiner,

supra, 180 N.J. at 320. Accordingly, the heightened penalties

applicable to a second offender pursuant to N.J.S.A. 39:4-

50(a)(2) were properly imposed.

Defendant's remaining argument that it was not established

that the Manchester Municipal Court had jurisdiction over this

matter, raised for the first time in this appeal, lacks

sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed. The stay of the sentence is vacated and the

matter is remanded to the Law Division for imposition of

sentence.

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