June 7, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WICKEY J. ALLAWAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 9-A-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2007
Before Judges Lefelt and Parrillo.
After being involved in a two-car accident, defendant Wickey Allaway was charged with driving under the influence of liquor (DUI) as a third violation. N.J.S.A. 39:4-50(a)(3). In conjunction with the investigation for this offense, defendant provided two Alcotest breath samples, which registered .18% blood alcohol content. Defendant then entered a conditional guilty plea in North Hunterdon Municipal Court, and appealed to the Law Division. That court remanded the matter back to the municipal court to clarify whether defendant's guilty plea was based solely on the Alcotest. See N.J.S.A. 39:4-50(a)(1)(ii). This appeal challenges the propriety of the Law Division's remand, and we in turn, reverse and remand.
At the time of defendant's DUI trial in municipal court, a separate proceeding challenging the reliability of the Alcotest was pending in the Supreme Court. In conjunction with that challenge, the Court issued an order (the so-called Chun order) allowing continued prosecution of DUI offenses, but specifying that all first-time offenders whose conviction was based in any part on the Alcotest would have their sentences stayed, except when "the public interest requires the immediate execution of the sentence." For repeat offenders such as defendant, the order provided that sentences will be stayed only for those defendants whose convictions were based entirely on Alcotest readings.
Defendant's conditional guilty plea was subject to the outcome of the Alcotest reliability proceeding. The court stayed the sentence "up to 20 days" pending appeal. Defendant thereafter appealed to the Law Division, which remanded to the municipal court for clarification as, according to the Law Division judge, it was unclear whether the plea was based entirely on the Alcotest or on the additional evidence that defendant had ingested five to six beers on the day in question. Additionally, defendant was given the option, "if he chooses, to have a trial on the merits." The Law Division judge then stayed the matter "pending disposition by the municipal court."
Instead of returning to the municipal court, however, defendant appealed to this court. He contends that the record below commands application of a Chun stay, that the remand subjects him to double jeopardy, and that the Chun order violates his right to equal protection.
Preliminarily, it is clear that defendant has not appealed from a final judgment of the Law Division. To be appealable as of right, the judgment must be final as to all parties and all issues. See e.g., Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). Because the Law Division merely remanded this matter to the municipal court for further proceedings, the ruling was interlocutory and appealable only upon leave granted pursuant to R. 2:5-6(a). See also R. 2:2-3(b). No such leave was granted and, therefore, this appeal is dismissable on that basis alone. E.g., Hallowell v. Am. Honda Motor Co., 297 N.J. Super. 314, 318 (App. Div. 1997). Nevertheless, because the matter has been fully briefed, orally argued, and easily resolved, we grant leave to appeal at this time and proceed to dispose of this matter on the merits.
Defendant's first argument is that the municipal court record required that a Chun stay be imposed. We disagree and conclude that the remand was unnecessary and constitutes a mistaken exercise in discretion.
Before entering the conditional guilty plea, defendant's counsel requested that the sentence be stayed under Chun or that the judge give defendant "an opportunity to appeal [the Alcotest] if [the court] cannot stay the sentence." In the course of explaining the situation to the judge, counsel referred to defendant being fully aware "of the consequences of this and [to pleading guilty] based on the ALCO test primarily" (emphasis added). Defendant then in the plea colloquy admitted to the .18 Alcotest and to drinking five or six beers in a bar. After defense counsel advised defendant that .08 is drunken driving and .10 is serious drunken driving, he asked "based on that you advised the Court that based on the ALCO test being admissible that you are indeed guilty and you feel that utilizing that as part of your sequella and part of your analysis that you plead guilty to this offense," and defendant answered "[y]es sir." After taking the guilty plea, the municipal court stated "[a]s I indicated I will stay the driver's license suspension and the jail term up to 20 days to allow you an opportunity to take an appeal and to apply to the Superior Court for a stay of those aspects of the sentence pending the outcome of the appeal."
While not a model of clarity, we interpret the conditional plea scenario as revealing that the municipal court judge rejected the Chun stay, opting instead for the normal short stay to allow appeal to superior court. Thus, the court impliedly recognized that defendant's plea was based "primarily," but not solely, on the Alcotest. Consequently, no remand was necessary.
This determination renders defendant's double jeopardy argument moot. However, as we are in effect implementing the Chun order, we briefly address defendant's equal protection argument relating to the order.
The equal protection clause does not require that all persons be treated identically by the state, but that "differences in treatment be justified by an appropriate state interest." Dominick v. Dir., Div. of Taxation, 176 N.J. Super. 121, 128 (App. Div. 1980). First time DUI offenders are not similarly situated to repeat offenders, as their potential sentence varies depending on the Alcotest reading, see N.J.S.A. 39:4-50(a)(1)(i) and (ii), thereby making the Alcotest reliability for first offenders of great significance. For repeat offenders, however, the penalty is the same regardless of the Alcotest reading. N.J.S.A. 39:4-50(a)(2) and (3). Therefore, the statute provides a reasonable basis for the disparate treatment in the Chun order between first offenders and repeat offenders.
Furthermore, the increased risk to the public that repeat offenders present justifies the distinction in the Chun order. If the Alcotest is ultimately found to be unreliable, then even repeat offenders are protected because those whose convictions were based solely on the Alcotest would have received a stay. Consequently, we see no equal protection violation in the Chun order and remand this matter to the Law Division to vacate the stay.
On remand, to the extent defendant can establish that his guilty plea was based on the reasonable expectation of receiving a Chun stay, he shall be given the right to withdraw his guilty plea and proceed to trial in the municipal court.
Reversed and remanded for further proceedings in conformity with this decision. We do not retain jurisdiction.
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