State v. Sweeney

• Decision Date: 22 July 1983
• Citation: 190 N.J.Super. 516,464 A.2d 1150
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. James T. SWEENEY, Sr., Defendant-Respondent. STATE of New Jersey, Plaintiff-Appellant, v. Terrence BUCKLEY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 516

190 N.J.Super. 516

464 A.2d 1150

STATE of New Jersey, Plaintiff-Appellant, v. James T. SWEENEY, Sr., Defendant-Respondent.

STATE of New Jersey, Plaintiff-Appellant, v. Terrence BUCKLEY, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted June 1, 1983.

Decided July 22, 1983.

[464 A.2d 1151] Alvin G. Shpeen, Gloucester County Prosecutor, Atty. for plaintiff-appellant (Lawrence Magid, Asst. County Prosecutor, of counsel and on the brief).

Donald C. Brown, Woodbury, attorney for defendant-respondent.

No brief was filed by defendant-respondent Buckley.

Before Judges MATTHEWS, ANTELL and FRANCIS.

PER CURIAM.

These are virtually identical appeals arising from convictions for violations of N.J.S.A. 39:4-50. The State appeals in both cases. Since the legal issue involved in each case is the same, we consolidate them for the purposes of this opinion.

AS TO SWEENEY

Defendant was given a summons on March 8, 1982 for driving while under the influence of an intoxicating beverage. The case was heard in the Westville Municipal Court on July 14, 1982 where defendant was represented by counsel.

After testimony, the municipal judge concluded that defendant was guilty as charged, and further found that defendant had a prior offense and, therefore, found defendant guilty as a second offender and sentenced him to a fine of $500 plus $15 court costs and a revocation of his driving privileges for three years. Defendant was also placed on probation for one year and he was also required to give community service for the hourly equivalent of 30 days. The municipal judge also permitted defendant to reapply to the court for reinstatement of his driving privileges at the end of two years, if he had proof of sobriety.

Defendant thereafter appealed to the Law Division. The appeal was heard de novo before Judge Bullock who also found defendant guilty of driving under the influence. He also found that it was a second offense but raised the issue, sua sponte, as to whether or not defendant was represented by counsel on his prior conviction.

Because he found there was no proof that defendant was represented by counsel at the prior proceedings he decided to sentence defendant as a first offender. He therefore sentenced defendant to six months revocation of his driving privileges together with a fine of $250 and costs of $15.

AS TO BUCKLEY

Terrence Buckley was arrested for driving under the influence of alcohol. He was tried and found guilty of driving under the influence in violation of N.J.S.A. 39:4-50 in the Harrison and South Harrison Townships Intermunicipal Court. Defendant was represented by counsel at that proceeding.

At sentencing the prosecutor informed the judge that defendant had a prior offense in 1968 and a prior offense in 1980. The prosecutor and defendant's attorney agreed that under the provisions of and for the purpose of sentencing under N.J.S.A. 39:4-50, the current violation was defendant's second offense. The judge imposed a fine of $500 with $15 court costs on defendant and revoked his driver's license for two years. Defendant was placed on probation for one year and he was sentenced to do 30 days of community service.

Defendant had a de novo hearing before Judge Bullock in the Law Division, Gloucester County. He was again represented by counsel. The judge found defendant guilty of driving while under the influence. The judge raised a question, however, concerning the sentencing of defendant as a second offender. He was informed by defendant's counsel that the basis for finding that defendant was a second offender was an abstract from the Department of Motor Vehicles which indicated that Mr. Buckely had a previous offense.

The judge noted that there was nothing in the record to indicate that defendant had been represented by counsel at the time of his prior conviction, and refused to sentence defendant as a second offender under N.J.S.A. 39:4-50. Defendant was sentenced as a first offender, and received a $250 fine with $15 court costs. Defendant's license was revoked for six months.

The issue is identical in both cases. The convictions are not being challenged; the State challenges the sentences imposed on Sweeney and Buckley.

We conclude that the Law Division judge erred in both of these cases by not considering the prior conviction of each of the defendants for sentencing purposes under N.J.S.A. 39:4-50. Of primary importance is the fact that the sentences imposed on these defendants by the municipal court judge did not involve a custodial sentence. Both defendants were sentenced to, among other things, probationary terms and terms of community service. Neither defendant was sentenced to jail. Thus, these defendants had no right to counsel under the Sixth and Fourteenth Amendments to the federal Constitution.

A prosecution for driving under the influence of alcohol is in the nature of a quasi-criminal offense. State v. DiCarlo, 67 N.J. 321, 327, 338 A.2d 809 (1975); State v. Lanish, 103 N.J.Super. 441, 443, 247 A.2d 492 (1968), aff'd o.b. 54 N.J. 93, 253 A.2d 545 (1969). While imprisonment is an authorized penalty under N.J.S.A. 39:4-50, even for a first offense, such a penalty is not mandatory, even for a second offense. Neither defendant was sentenced to imprisonment and, therefore, the federal Constitution does not bar the use of a prior conviction for driving under the influence for the purpose of imposing an enhanced noncustodial sentence upon a second conviction for driving under the influence. See Scott v. Illinois, 440 U.S. 367, 373-374, 99 S.Ct. 1158, 1161-1162, 59 L.Ed.2d 383 (1979). In Scott, the Supreme Court held that "the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." Id. at 373-374, 99 S.Ct. at 1161-1162.

Defendant Sweeney relies on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), for the proposition that a constitutionally valid uncounseled conviction for driving under the influence of alcohol may not be used to subject a defendant to an enhanced noncustodial sentence upon a second conviction for driving under the influence of alcohol. Baldasar does not stand for such a broad proposition and does not present a bar to the sentences imposed by the municipal court judge in these cases since no prison terms were imposed on these defendants.

Baldasar involved criminal proceedings and the cases before us are not, strictly speaking, criminal proceedings. See State v. Di Carlo, 67 N.J. at 327, 338 A.2d 809; State v. Macuk, 57 N.J. 1, 9-10, 268 A.2d 1 (1970); State v. Roth, 154 N.J.Super. 363, 366, 381 A.2d 406 (App.Div.1977). Moreover, the defendant in Baldasar was sentenced as a felon to a substantial prison term. Neither defendant in the present cases was sentenced to a custodial term by the municipal courts. Thus, the factual settings in these cases are decidedly different from Baldasar.

In Baldasar defendant had been convicted of misdemeanor theft in Cook County Circuit Court in May 1975. Defendant was not represented by counsel at that proceeding and he did not formally waive any right to counsel. Defendant was fined $159 and sentenced to one year of probation. In November 1975, defendant was charged with stealing a $29 shower head and was convicted of that charge by a jury. He was sentenced to prison for one to three years as a felon under an Illinois statute which provided:

[T]heft "not from the person" of property worth less than $150 is a misdemeanor punishable by not more than a year of imprisonment and a fine of not more than $1,000. Ill.Rev.Stat., ch. 38, §§ 16-1(e)(1), 1005-8-3(a)(1), 1005-9-1(a)(2) (1975). A second conviction for the same offense, however, may be treated as a felony with a prison term of one to three years. § 1005-8-1(b)(5). [446 U.S. at 223, 100 S.Ct. at 1585]

Defendant appealed his sentence claiming that his first uncounseled conviction could not be used for enhanced sentencing purposes. The Illinois Appellate Court affirmed the sentence and the Supreme Court of Illinois denied leave to appeal. The United States Supreme Court granted certiorari and reversed and remanded the case to the Illinois Appellate Court.

There was no majority opinion in Baldasar. Justice Stewart authored an opinion, joined by Justices Brennan and Stevens, which relied on the Supreme Court's decision in Scott. He considered that the defendant's increased prison term, resulting from his prior uncounseled conviction, was a violation of the constitutional rule announced in Scott. 446 U.S. at 224, 100 S.Ct. at 1586.

Justice Marshall wrote a concurring opinion, also joined by Justices Brennan and Stevens in which he expressed the view that, as a result of Scott, defendant Baldasar's prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction. Baldasar v. Illinois, 446 U.S. at 225-226, 100 S.Ct. at 1586-1587. Justice Marshall wrote that even though Baldasar's prior conviction was constitutionally valid (since no prison term was imposed), it was "not valid for all purposes." Id. at 226, 100 S.Ct. at 1587. He was concerned by the fact that only because of the prior uncounseled conviction, defendant received a sentence that could have resulted in imprisonment for two years in excess of the prison term that could otherwise have been imposed on the most recent conviction. Id.

He concluded that a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat-offender statute. Id. at 228, 100 S.Ct. at 1588.

None of the views expressed by the justices precludes using the present defendants'...