NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 12-07-0449.
J. Vincent Molitor, Assistant Prosecutor, argued the cause for appellant/cross-respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Mr. Molitor, of counsel and on the brief).
James K. Smith, Jr., argued the cause for respondent/cross-appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the briefs).
Before Judges Messano and Sabatino.
This appeal and cross-appeal arise out of defendant's conviction in the Law Division for violating N.J.S.A. 2C:40-26(b), operating a motor vehicle with a license suspended as the result of multiple prior drunk driving offenses. Her conviction of that fourth-degree criminal offense occurred several months after withdrawing her guilty plea in the municipal court to the lesser charge of driving on the suspended list, N.J.S.A. 39:3-40.
Defendant contends that her former counsel, who arranged the plea withdrawal in municipal court, was constitutionally ineffective, because if her plea to the Title 39 violation had not been withdrawn, the State would have been precluded under the Double Jeopardy Clause from prosecuting her for an indictable offense for that same conduct under N.J.S.A. 2C:40-26(b). The State, meanwhile, challenges the legality of the thirty-day jail sentence the Law Division imposed upon defendant for the N.J.S.A. 2C:40-26(b) offense.
For the reasons that follow, we remand this matter to the Law Division to allow defendant to file a petition for post-conviction relief ("PCR"), and to enable a fuller record to be developed exploring the reasons why defendant's former counsel had arranged for the withdrawal of her original municipal plea. In the meantime, with the State's consent, the previously-imposed stay of defendant's jail sentence shall continue, pending completion of the PCR proceedings. Subject to the outcome of those remand proceedings, we further direct that the jail sentence, which defense counsel concedes is illegal, be increased from thirty days to the minimum of 180 days mandated by N.J.S.A. 2C:40-26(c).
We derive the following chronology from the record. Defendant Davi F. Kane was arrested in Ocean City on January 25, 2012 for driving while on the suspended list. Defendant's vehicle had been stopped because she had been talking on a cell phone while driving. There is no contention that she was intoxicated at the time, or was committing a moving violation.
At the time of defendant's motor vehicle stop, she had been serving a ten-year suspension of her driver's license as a result of multiple prior convictions for drunk driving, N.J.S.A. 39:4-50.
On March 22, 2012, defendant, represented by counsel, entered into a plea agreement with the municipal prosecutor, in which she pled guilty to driving while on the suspended list, in violation of N.J.S.A. 39:3-40. A violation of that statute is a non-indictable offense, triggering mandatory imprisonment in the county jail for not less than ten days, but no more than ninety days. Ibid.
The municipal judge sentenced defendant to thirty days in jail, with the ability to serve that time intermittently, under an alternate incarceration program. In addition, the municipal judge imposed a one-year consecutive suspension of ...