State v. Rodriguez, DOCKET NO. A–5077–15T3

• Decision Date: 12 April 2018
• Docket Number: DOCKET NO. A–5077–15T3,A–5078–15T3,A–5147–15T3,A–5160–15T3,A–5146–15T3
• Citation: 454 N.J.Super. 214,185 A.3d 221
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Rene M. RODRIGUEZ, Defendant–Respondent. State of New Jersey, Plaintiff–Appellant, v. Elizabeth A. Colon, Defendant–Respondent. State of New Jersey, Plaintiff–Appellant, v. Eric L. Lowers, Defendant–Respondent. State of New Jersey, Plaintiff–Appellant, v. Stephen E. Nolan, Defendant–Respondent. State of New Jersey, Plaintiff–Appellant, v. Courtney D. Swiderski, Defendant–Respondent.
• Court: New Jersey Superior Court — Appellate Division

454 N.J.Super. 214

185 A.3d 221

STATE of New Jersey, Plaintiff–Appellant,

v.Rene M. RODRIGUEZ, Defendant–Respondent.

State of New Jersey, Plaintiff–Appellant,

v.Elizabeth A. Colon, Defendant–Respondent.

State of New Jersey, Plaintiff–Appellant,

v.Eric L. Lowers, Defendant–Respondent.

State of New Jersey, Plaintiff–Appellant,

v.Stephen E. Nolan, Defendant–Respondent.

State of New Jersey, Plaintiff–Appellant,

v.Courtney D. Swiderski, Defendant–Respondent.

DOCKET NO. A–5077–15T3

A–5078–15T3

A–5146–15T3

A–5147–15T3

A–5160–15T3

Superior Court of New Jersey, Appellate Division.

Submitted A–5077–15/A–5078–15 and Argued A–5146–15/A–5147–15/A–5160–15 March 5, 2018

Decided April 12, 2018

Jason Magid, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney; Jason Magid, of counsel and on the briefs).

Mario J. Persiano, Hainesport, attorney for respondent Rene M. Rodriguez.

Marissa J. Costello argued the cause for respondents Eric L. Lowers and Stephen E. Nolan (Costello & Whitmore, attorneys; Marissa J. Costello, on the briefs).

Mark V. Oddo argued the cause for respondent Courtney D. Swiderski (Dubois, Sheehan, Hamilton, Levin & Weissman LLC, attorneys; Mark V. Oddo, on the brief).

Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Michele E. Friedman, of counsel and on the briefs).

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for amicus curiae Office of the Attorney General (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, Assistant Attorney General, of counsel and on the briefs).

Before Judges Sabatino, Ostrer and Rose.

The opinion of the court was delivered by

OSTRER, J.A.D.

Each defendant in these five back-to-back appeals by the State was convicted of fourth-degree operating a motor vehicle during a period of license suspension. N.J.S.A. 2C:40–26. The statute prescribes a sentence of a "fixed minimum" term of at least 180 days without parole eligibility. N.J.S.A. 2C:40–26(c). We must decide whether the trial court exceeded its authority by ordering that defendants serve such sentences intermittently, under N.J.S.A. 2C:43–2(b)(7). The State contends the intermittent sentences are illegal. It argues a minimum period of parole ineligibility precludes an intermittent sentence. Having reviewed the plain language of the two statutes and the pertinent case law, we disagree.

However, to satisfy the mandated term of days, a defendant must serve continuous twenty-four-hour periods to satisfy each day of the 180–day mandated term. We therefore modify the sentences of Eric L. Lowers in A–5146–15 and Stephen E. Nolan in A–5147–15; remand for the trial court to reconsider the sentence of Courtney D. Swiderski in A–5160–15; and reverse the sentences of Rene M. Rodriguez in A–5077–15 and Elizabeth A. Colon in A–5078–15, who were sentenced only to nights, and remand those matters for resentencing.

I.

Four defendants pleaded guilty to violating N.J.S.A. 2C:40–26(b). Appearing before the same judge, they admitted they drove a motor vehicle while their licenses were suspended for a second or subsequent conviction of driving while under the influence (DUI), N.J.S.A. 39:4–50. A fifth defendant pleaded guilty to violating N.J.S.A. 2C:40–26(a). She admitted driving a motor vehicle while her license was suspended for DUI. It evidently was the second time she did so during that suspension.

The court initially sentenced three defendants—Rene Rodriguez, Eric Lowers and Courtney Swiderski—to serve their 180–day term in a treatment program or home detention.¹ However, we reversed those sentences in light of State v. Harris, 439 N.J. Super. 150, 106 A.3d 1265 (App. Div. 2015) and State v. French, 437 N.J. Super. 333, 98 A.3d 603 (App. Div. 2014), and remanded for resentencing. State v. Rodriguez, No. A–2541–14 (App. Div. July 29, 2015) (ESOA calendar); State v. Lowers, No. A–4260–13 (App. Div. June 22, 2015) (ESOA calendar); State v. Swiderski, No. A–2496–14 (App. Div. July 29, 2015) (ESOA calendar).

Ultimately, each defendant pleaded guilty based on the court's promise of a sentence that would allow each defendant to serve 180 days intermittently, over the State's objection. Three defendants—Stephen Nolan, Eric Lowers and Courtney Swiderski—specifically reserved the right to withdraw their guilty pleas if their intermittent sentences were invalidated.

Rene Rodriguez pleaded guilty to two separate indictments charging violations of N.J.S.A. 2C:40–26(b). The first charged a violation on July 11, 2012, in Pennsauken; the second on November 16, 2013, in Cherry Hill.² They were the second and third times he was caught driving while his license was suspended. Rodriguez had three DUI convictions, the last in 2010.

Rodriguez was fifty-five years old when sentenced. The court found that his lack of a prior criminal record and his amenability to probation outweighed the risk of his reoffending and the need to deter. See N.J.S.A. 2C:44–1(b)(7), (10) (mitigating factors); N.J.S.A. 2C:44–1(a)(3), (9) (aggravating factors). The court sentenced Rodriguez to two concurrent terms of two years of probation, conditioned on service of concurrent 180–day parole-ineligible terms of imprisonment, to be served "at night[ ] on ... Monday, Tuesday, Wednesday and Thursday of each week." The court found that the sentence would accommodate his work schedule and promote his success on probation. Rodriguez reportedly had worked for a computer service firm for sixteen years. The court did not specify when Rodriguez was required to report to the jail each night, or when he would be released each morning. However, he evidently would not be required to serve any continuous twenty-four-hour period in custody. Also, the court did not specify how each nightly stint would count toward the 180–day minimum.

In Elizabeth Colon's plea allocution, she admitted that she had been previously convicted of DUI.³ Like Rodriguez, Colon was sentenced to two years of probation, conditioned upon service of the 180–day jail term "at night on Monday, Tuesday, Wednesday and Thursday of each week." Colon had worked at a frozen dessert shop for eleven years. She was a manager, but still earned a very modest income. She was twenty-eight years old at sentencing. She had three prior municipal court convictions for loitering, disorderly conduct and breach of the peace, the last in 2013. The court found the likelihood she would respond affirmatively to probationary treatment outweighed the slight risk she would reoffend, and the need to deter. See N.J.S.A. 2C:44–1(b)(10) (mitigating factor); N.J.S.A. 2C:44–1(a)(3), (9) (aggravating factors). As in Rodriguez's sentencing, the court did not expressly address how each nightly stint would count toward the 180–day minimum.

Eric Lowers had three prior DUI convictions.⁴ The last was in 2005. According to his presentence report, he had one municipal court conviction from 1997 that resulted in a fine (although the court stated he had three municipal court convictions). Forty-six years old at sentencing, Lowers lived with his wife and one child. He paid child support for another. Two adult children lived outside the home. Employed for sixteen years as a heavy equipment operator through a local union, he currently worked at a Philadelphia refinery. He was his household's principal breadwinner. He also assisted his ailing grandmother during the week.

The court sentenced Lowers to serve his 180–day term from Friday evening until Sunday evening of each week. No probation was imposed. The court found that his lack of a prior criminal history or his law-abiding behavior for a substantial period of time, and his character and attitude outweighed the risk he would reoffend and the need to deter. See N.J.S.A. 2C:44–1(b)(7), (9) (mitigating factors); N.J.S.A. 2C:44–1(b)(3), (9) (aggravating factors). The court noted that the intermittent sentence would enable Lowers to maintain his employment and to continue to support those who depended on him.

Stephen Nolan had at least three DUI convictions, according to his attorney. He was in his early fifties when he entered his guilty plea. He had a high school education, and earned a very modest income working for a printing company. He was the sole support of his wife and son. He and his wife were in poor health. His attorney stated that if he were sentenced to a continuous term, he would lose his job and health insurance, and his family would be forced to turn to public assistance.

Consistent with Nolan's request, the court sentenced him to serve his 180–day parole-ineligible term from Friday evening to Sunday evening each week. No probation was imposed. The court explained that an intermittent sentence would allow defendant to keep his job and his health insurance. The court found his lack of a prior criminal record and his character and attitude outweighed the risk of reoffending and the need to deter. See N.J.S.A. 2C:44–1(b)(7), (9) (mitigating factors); N.J.S.A. 2C:44–1(a)(3), (9) (aggravating factors).

Courtney Swiderski, thirty-four years old at sentencing, had two prior DUI convictions. In accord with her plea agreement, her imprisonment was a condition of a two-year term of probation. She was sentenced to serve her 180–day term on Saturdays and Sundays. The court found that her lack of a criminal record, her character and attitude, and her amenability to probationary treatment outweighed the risk of her reoffending and the need to deter. See N.J.S.A. 2C:44–1(b)(7), (9), (10) (mitigating factors); N.J.S.A. 2C:44–1(b)(3), (9) (aggravating factors). The court found an intermittent sentence would enable her to preserve her long-term employment as a medical receptionist, and to enhance her prospects for success on probation.

In each of the five cases, the trial court stayed service of the sentence pending appeal.

II.

On appeal, the State, by the Camden County Prosec...