Argued June 4, 2014
Approved for Publication August 11, 2014.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Cumberland County, Municipal Appeal No. 30-12.
Elizabeth M. Trinidad argued the cause for appellant ( Trinidad Law Office, LLC, attorneys; Ms. Trinidad, on the brief).
G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent ( Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).
Before Judges WAUGH, NUGENT and ACCURSO.
[437 N.J.Super. 83] ACCURSO, J.A.D.
This appeal requires us to consider whether a never-licensed driver may be fined and sentenced to a custodial term under the penalty provisions of N.J.S.A. 39:3-10. Defendant Armando Carreon appeals from the (partial) denial of his petition for post-conviction relief contending that he was subject to an illegal sentence consisting of a fine and a custodial term following his guilty plea to driving without a license, N.J.S.A. 39:3-10. We agree that defendant's sentence is illegal and thus reverse and remand for resentencing.
Following a traffic stop in 2012, defendant was charged with failing to stop at a stop sign, N.J.S.A. 39:4-144, and driving without a license, N.J.S.A. 39:3-10. Represented by the public defender, defendant pled guilty to unlicensed driving, and the stop sign violation was dismissed.
Reviewing defendant's abstract and finding that this was his third conviction for unlicensed driving, the municipal court judge imposed a $756 fine, $33 in court costs and a ten-day jail term without a statement of reasons as required by Rule 7:9-1(c). The judge commented only that defendant " should have been charged on this occasion with driving while suspended, but he wasn't."  [437 N.J.Super. 84] The judge did not
consider the sentencing standards imposed in State v. Moran, 202 N.J. 311, 328-30, 997 A.2d 210 (2010) (setting standards to guide the discretion of judges imposing license suspensions under N.J.S.A. 39:5-31), or suggested in State v. Henry, 418 N.J.Super. 481, 490-97, 14 A.3d 750 (Law Div. 2010) (employing the aggravating and mitigating factors found in N.J.S.A. 2C:44-1(a) and (b) in determining whether a custodial sentence was appropriate for a third conviction under N.J.S.A. 39:4-50).
Defendant did not seek de novo review of his sentence in the Law Division. Instead, prior to the date he was to begin serving his custodial term, he filed a PCR petition in the municipal court pursuant to Rule 7:10-2(b)(1). Although defendant's counsel was advised by the municipal court staff that defendant's petition had been denied, the municipal court ...