Argued August 13, 2014
Approved for Publication August 25, 2014.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Accusation No. 14-04-00115.
Kelly Anne Shelton, Assistant Prosecutor, argued the cause for appellant ( Richard T. Burke, Warren County Prosecutor, attorney; Ms. Shelton, of counsel and on the brief).
Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for respondent ( Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the brief).
Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae State of New Jersey ( John J. Hoffman, Acting Attorney General, attorney; Ms. Henderson, of counsel and on the brief).
The opinion of the court was delivered by KOBLITZ, J.A.D. Before Judges FUENTES, MESSANO and KOBLITZ.
[437 N.J.Super. 334] KOBLITZ, J.A.D.
The State appeals from what it views as the illegal sentence of ninety days in jail followed by ninety days in an inpatient drug rehabilitation program imposed for the fourth-degree crime of operating a motor vehicle during a period of license suspension for multiple convictions of driving while intoxicated (DWI). N.J.S.A. 2C:40-26(b). Defendant James W. French argues that an inpatient drug program satisfies the statute because the program is custodial in nature and the legislative scheme is intended to foster substance abuse rehabilitation as well as punishment. The State argues that the statutory sentencing framework of Title 2C requires a mandatory 180-day sentence in jail without parole, which cannot be satisfied by service in an inpatient rehabilitation program. We agree with the State that the sentence is illegal and, therefore, reverse and remand for resentencing.
[437 N.J.Super. 335] Defendant pled guilty to an accusation charging the crime of driving while his license was suspended after multiple drunk driving convictions at the same time that he pled guilty to driving while intoxicated, N.J.S.A. 39:4-50. We discern from the record that defendant has a total of nine prior drunk-driving convictions, six in New Jersey and three in South Carolina. He has five prior convictions in New Jersey for driving during a period of license suspension. Pursuant to a plea agreement, the State agreed to recommend concurrent sentencing with 180 days of incarceration and no probation. The judge sentenced defendant to concurrent 180-day terms, ordering that he could serve the final 90 days in an inpatient rehabilitation program. She ordered that if he was not admitted to a program or did not complete the program, which had to be at least 90 days long, he would have to serve the full 180 days in jail. The judge also imposed an additional ten-year license suspension as well as the other mandatory penalties. We granted the State's application for an emergent appeal.
An illegal sentence may be corrected at any time before it is completed. R. 2:10-3; State v. Schubert, 212 N.J. 295, 309-10, 53 A.3d 1210 (2012). Parties may not negotiate an illegal sentence, State v. Smith, 372 N.J.Super. 539, 542, 859 A.2d 1229 (App.Div. 2004), certif. denied, 182 N.J. 428, 866 A.2d 984 (2005), and a defendant may not accept one as part of a plea agreement, State v. Nemeth, 214 N.J.Super. 324, 327, 519 A.2d 367 (App.Div. 1986).
In 2009 the Legislature passed a statute, effective August 2011, ...