On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal Nos. 11-11 and 12-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On our own motion, we consolidate two appeals filed by William Hill and Camilla A. Toft. Both involve the interpretation of the second or subsequent offender provision for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a.
Hill pled guilty on September 24, 2008 to refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and was sentenced by the municipal judge to a $1006 fine, $33 in court costs, a $100 surcharge, twelve hours of attendance at the Intoxicated Driver Resource Center (IDRC), and a ten-year suspension of driving privileges. Hill had three prior driving while intoxicated (DWI), N.J.S.A. 39:4-50, convictions from 2000, 2001, and 2002. On May 4, 2011, he moved to correct an illegal sentence, asserting he should have been sentenced as a first-time offender. Both the municipal court and the Law Division denied his application.
Toft was sentenced by the municipal judge on November 24, 2009 as a third-time offender to a $1006 fine, $33 in court costs, a $100 DWI surcharge, forty-eight hours of attendance at the IDRC, and a mandatory ten-year suspension of driving privileges. She had two prior convictions: DWI in 1994 and refusal in 2002. Toft filed a motion for post-conviction relief (PCR) with the municipal court and moved to withdraw her guilty plea on the grounds that the refusal sentence was illegal as she should have been sentenced as a second-time offender. The municipal judge denied the motion, and Toft appealed to the Law Division. This appeal arises from the Law Division's denial of Toft's petition for PCR.
I. BECAUSE THE SUPREME COURT HELD BREATH TEST REFUSAL AND DWI TO BE INDEPENDENT OFFENSES, THIS COURT SHOULD SENTENCE DEFENDANT AS A FIRST OFFENDER UNDER THE REFUSAL STATUTE AND DISREGARD PRIOR DWI OFFENSES FOR PURPOSES OF SENTENCE ENHANCEMENT BEYOND FIRST OFFENDER STATUS.
Defendant Toft raises the following points:
I. DEFENDANT'S 2009 SENTENCE AS A THIRD REFUSAL OFFENDER IS ILLEGAL BECAUSE A PRIOR DWI CONVICTION OR CHARGE MAY NOT BE USED TO ENHANCE A SUBSEQUENT REFUSAL CONVICTION.
II. EVEN IF A PRIOR DWI ENHANCES A LATER REFUSAL, DEFENDANT IS A SECOND REFUSAL OFFENDER BECAUSE SHE IS ENTITLED TO THE STEP-DOWN IN N.J.S.A. 39:4-50(a)(3).
Defendants' arguments concerning the legality of their sentences rest on the Supreme Court's recent decision in State v. Ciancaglini, 204 N.J. 597 (2011). As these appeals are governed by In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J. Super. 431, 436 (App. Div. 1980) (Lora, P.J.A.D., ...