May 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANCIS SCHWENDIMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 66-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 defendant's license for ten years, and imposed appropriate fines and penalties.
On appeal to the Law Division, defendant raised the same contentions.*fn1 Without conceding the 1998 statute applied, the State argued that community service was discretionary under the 1998 version of N.J.S.A. 39:4-50. The Law Division judge ordered further briefing and reserved decision.
In his written opinion, dated April 9, 2008, the judge noted that defendant's ex post facto argument must fail because "the gravity of the punishment" defendant now faced was increased "by the persistence of [his] own unlawful conduct," citing State v. Phillips, 154 N.J. Super. 112, 120 (Law Div. 1977), aff'd. 169 N.J. Super. 452 (App. Div. 1979). He continued, "[I]t would clearly make bad law on bad facts to conclude that because  all [of] [defendant's] convictions between 1998 and 2007 came before he was convicted on his first, that he should be treated as a first offender upon his present conviction."*fn2 The judge concluded "there [wa]s no sound basis to alter the sentence imposed by the municipal judge." He required defendant to commence service of the balance of his custodial sentence, 166 days, one week later, and ordered a prior stay of the sentence to be vacated. This appeal ensued.*fn3
In 1998, in relevant part, N.J.S.A. 39:4-50 provided that
For a third or subsequent violation, a person shall be subject to a fine of $1,000.00, and shall be sentenced to imprisonment for a term of not less than 180 days, except that the court may lower such term for each day, not exceeding 90 days, served performing community service in such form and on such terms as the court shall deem appropriate under the circumstances[.] [Prior version N.J.S.A. 39:4-50(a)(3) (emphasis added).]
It further provided that
A court that imposes a term of imprisonment under this section may sentence the person so convicted to the county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center or other facility approved by the chief of the Intoxicated Driving Program Unit in the Department of Health... provided that for a third or subsequent offense a person shall not serve a term of imprisonment at an Intoxicated Driver Resource Center[.]
The statute currently provides that for [A] third or subsequent violation, a person shall be subject to a fine of $1,000.00, and shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program[.] [N.J.S.A. 39:4-50(a)(3) (emphasis added).]
The option of serving the entire custodial portion of the sentence in a rehabilitative facility is limited to first and second offenders. These changes were enacted January 20, 2004 as part of "Michael's Law." L. 2003, c. 315, § 2.*fn4
Defendant first contends that applying the sentencing provisions of the statute as it currently exists violated the ex post facto clauses of the United States Constitution and our State Constitution. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. We need not conduct an exhaustive review of this area of the law because we agree with defendant that both the municipal court judge and the Law Division judge were required to sentence defendant in accordance with the provisions of N.J.S.A. 39:4-50(a)(3) as it existed at the time of the offense.
In State v. Kotsev, 396 N.J. Super. 389, 390-91 (App. Div.), certif. denied, 193 N.J. 276 (2007), we considered whether the defendant, convicted of DWI for the third time in 2005 for an offense committed in 1993, could be sentenced to the Sheriff's Labor Assistance Program. After noting such a sentencing alternative did not exist under the 1993 version of N.J.S.A. 39:4-50, we concluded, "[j]ust as the 1993 DWI statute applies to defendant, so do the sentencing options available at that time." Id. at 391 (citing N.J.S.A. 1:1-15; State v. Chambers, 377 N.J. Super. 365, 372 (App. Div. 2005).*fn5 We affirmed the defendant's sentence to ninety days in the county jail, and ninety days of community service as provided for in the 1993 version of N.J.S.A. 39:4-50(a)(3). Id. at 392 (aff'g State v. Kotsev, 396 N.J. Super. 58 (Law Div. 2005)).
The cases cited by the Law Division judge are distinguishable. In State v. Guiendon, 113 N.J. Super. 361, 363-64 (App. Div. 1971), we rejected the defendant's contention that he could not be sentenced as a second DWI offender because the arrest on his second offense took place before his conviction on the first. See also State v. Petrello, 251 N.J. Super. 476, 479 (App. Div. 1991) ("[i]t is abundantly clear  that the enhanced penalties of N.J.S.A. 39:4-50 must be imposed at sentencing on entry of a second drunk-driving conviction, regardless of the order in which the violations occurred"). However, defendant does not argue he is not subject to sentencing as a fourth DWI offender in this case. He only contends that the penalty now mandated for such an offense is harsher than it was when he committed the offense. Thus, Guiendon is inapposite.
The same is true of the judge's reliance upon Phillips. There the issue raised was "whether a defendant convicted for driving a motor vehicle while impaired by the consumption of alcohol (N.J.S.A. 39:4-50(b) of the statute prior to the 1977 amendment) should be deemed to be convicted of a prior violation of the current statute and thus sentenced as a subsequent offender." Phillips, supra, 154 N.J. Super. at 114. The Law Division judge rejected the argument finding "[t]he ground upon which these [enhanced penalties] is bottomed is that punishment is imposed for the second offense only[.]" Id. at 120. Once again, however, in this case, defendant does not contend that his sentence for the current offense should be something other than that required for a "third or subsequent offender."
In short, we agree with defendant that the sentencing options contained in the 1998 version of N.J.S.A. 39:4-50(a)(3) were applicable in this case. However, we do not believe the sentence should be vacated and the matter remanded for re-sentencing, as defendant requests.
We note preliminarily that it is unclear whether the municipal judge sentenced defendant under the 1998 version of the statute or not. Although recognizing that she had no discretion in imposing a 180-day sentence, she specifically stated she was "not going to allow the [c]ommunity [s]ervice," implying she was simply rejecting that option under the facts presented. She then agreed to permit defendant to enter an inpatient rehabilitation program, and agreed to give him a credit for every day he spent there. She did not limit that option to ninety days, as would be required under the current statute. To us, this implies she was permitting defendant to spend the entire 180 days in an inpatient facility, an option only available under the 1998 version of the statute.
Nevertheless, in reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2009). It is clear, based upon the de novo judge's written opinion that he did not believe the 1998 version of the statute was applicable. Nevertheless, we affirm the sentence imposed because it did not represent a mistaken exercise of the trial judge's discretion.
Initially, we reject defendant's contention that the de novo judge failed to exercise his own "independent judgment" at sentence, citing the judge's conclusion in his written opinion that there was "no sound basis to alter" the sentence of the municipal judge. It is axiomatic that the de novo judge's review extends to sentencing and he must himself impose a sentence, rather than simply affirming the one imposed by the municipal court judge. Pressler, Current N.J. Court Rules, comment 5 on R. 3:23-8(e) (2009) (collecting cases). However, we do not take the phrase used by the judge, an experienced jurist, as anything more than a slip of the pen. It is clear from the entire record that the judge was fully aware of the circumstances of the offense, defendant's prior record, and the arguments of defense counsel. Nonetheless, he independently concluded defendant should be sentenced to 180 days in jail for his fourth DWI conviction.
Lastly, defendant argues that the sentence imposed was "excessive." We disagree.
As N.J.S.A. 39:4-50(a)(3) existed in 1998, a mandatory 180-day custodial sentence was required if the defendant was a third or subsequent DWI offender. Whether ninety of those days would be served instead in community service, and the balance in a rehabilitative facility, or whether all 180 days would be spent in such a setting, were specifically discretionary decisions to be made by the judge. In this case, even if the de novo judge believed the sentencing provisions of the 1998 version of the statute did not apply, it is clear to us that he exercised his sentencing discretion by imposing a 180-day custodial sentence. After all, under the current version of the statute, the judge could have exercised his discretion and permitted defendant to serve ninety days of the sentence "in a drug or alcohol inpatient rehabilitation program." N.J.S.A. 39:4-50(a)(3). He chose not to do so.
Moreover, we cannot conclude under the facts presented that imposing a 180-day custodial sentence was excessive. In this case, defendant was involved in a motor vehicle accident to which police responded. The officer found defendant "swaying with bloodshot eyes" as he stood outside his car. During field sobriety tests, defendant "stagger[ed] and spread his legs wide apart for balance." He "almost fell over" while doing the "walk and turn test." All these facts were admitted at the time defendant pled guilty. Additionally, this was defendant's fourth DWI conviction, not his third. And, it was acknowledged that defendant's third DWI conviction, which occurred in Winslow Township in 2004, was mistakenly treated as a second offense, and defendant was sentenced accordingly.
In short, the imposition of a 180-day jail sentence without any community service alternative was not a mistaken exercise of the trial judge's discretion.