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State v. Schwendiman

May 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANCIS SCHWENDIMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 66-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 11, 2009

Before Judges Axelrad and Messano.

Defendant Francis Schwendiman appeals from the sentence imposed after the de novo trial in the Law Division following his guilty plea in the Evesham Township municipal court to driving while intoxicated (DWI). He raises two points for our consideration.

POINT I [THE LAW DIVISION JUDGE] ERRED IN FAILING TO APPLY THE APPLICABLE SENTENCING PROVISIONS OF N.J.S.A. 39:4-50 AS THEY STOOD IN 1998 AT THE TIME OF DEFENDANT['S] [] OFFENSE, THEREBY VIOLATING THE CONSTITUTIONAL PROHIBITION AGAINST THE EX POST FACTO APPLICATION OF NEWER, HARSHER LAWS WITH RESPECT TO PRIOR OFFENSES.

POINT II THE [LAW DIVISION JUDGE] ERRED IN FAILING TO EXERCISE [HIS] INDEPENDENT JUDGMENT IN IMPOSING SENTENCE AGAINST DEFENDANT[] [] AND, THEREFORE, ABUSED [HIS] DISCRETION IN IMPOSING [ ] SENTENCE AGAINST DEFENDANT[].

A. THE [LAW DIVISION JUDGE] FAILED TO EXERCISE [HIS] INDEPENDENT JUDGMENT IN IMPOSING SENTENCE.

B. THE [LAW DIVISION JUDGE] ABUSED [HIS] DISCRETION IN IMPOSING SENTENCE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The facts and procedural history are undisputed. Defendant was arrested on May 6, 1998 in Evesham Township and charged with DWI and other motor vehicle offenses. Defendant appeared in court on May 14, but failed to appear thereafter. He contends he believed the charge was disposed of, but, it clearly was not because a warrant issued for his arrest based upon his non-appearance at the next scheduled date. Despite defendant's conviction of DWI on three subsequent occasions, in 1999, 2001, and 2004, the arrest warrant was never executed and the charges in Evesham Township remained open.

Apparently during a motor vehicle stop, the 1998 open warrant surfaced, and, on April 12, 2007, defendant appeared in the municipal court on the charges. After some interim court appearances, on August 9, 2007, defendant pled guilty to DWI, acknowledging that the prosecutor's recitation of the events as contained in the 1998 police report was accurate. Defendant argued that the judge was free to impose sentence in accordance with N.J.S.A. 39:4-50 as it existed in 1998, i.e., when the offense occurred. Specifically, defense counsel contended that defendant could be sentenced, as a fourth offender, to "90 days in-patient alcohol or drug rehab and 90 days community service." He further argued that defendant had not committed an offense since 2004, had a job, supported his family, and had remained sober. Citing the "ex post facto clause," defense counsel maintained defendant should be sentenced "under the statute as it was written at the time."

The municipal court judge concluded that "there's no discretion," and she had "to impose 180 days in the County Jail." She further stated, "I'm not going to allow community service," though she did agree to "allow [defendant] to serve day, per day in the drug rehab" if he was admitted. She suspended ...


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