State v. Harris

• Decision Date: 04 February 2015
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. John D. HARRIS, III, a/k/a 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.
• Court: New Jersey Superior Court — Appellate Division

439 N.J.Super. 150

106 A.3d 1265

STATE of New Jersey, Plaintiff–Appellant,

v.John D. HARRIS, III, a/k/a 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.

Superior Court of New Jersey, Appellate Division.

Submitted Jan. 27, 2015

Decided Feb. 4, 2015

Reversed and remanded. 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, Camden, of counsel and on the briefs; David W. Sufrin, Camden, 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, Atlantic City, 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).

Before Judges REISNER, KOBLITZ and HAAS.

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:40–26b. 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, 98 A.3d 603 (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.

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 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 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 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 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.

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...