Submitted and Argued arch 5, 2018
appeal from Superior Court of New Jersey, Law Division,
Camden County, Indictment Nos. 14-01-0102, 14-04-1027,
14-07-2144, 13-04-1127, 15-04-1025, 13-11-3315.
Magid, Assistant Prosecutor, argued the cause for appellant
(Mary Eva Colalillo, Camden County Prosecutor, attorney;
Jason Magid, of counsel and on the briefs).
J. Persiano, attorney for respondent Rene M. Rodriguez.
Marissa J. Costello argued the cause for respondents Eric L.
Lowers and Stephen E. Nolan (Costello & Whitmore,
attorneys; Marissa J. Costello, on the briefs).
V. Oddo argued the cause for respondent Courtney D. Swiderski
(Dubois, Sheehan, Hamilton, Levin & Weissman LLC,
attorneys; Mark V. Oddo, on the brief).
Michele E. Friedman, Assistant Deputy Public Defender, argued
the cause for amicus curiae Office of the Public Defender
(Joseph E. Krakora, Public Defender, attorney; Michele E.
Friedman, of counsel and on the briefs).
Jennifer E. Kmieciak, Deputy Attorney General, argued the
cause for amicus curiae Office of the Attorney General
(Gurbir S. Grewal, Attorney General, attorney; Carol M.
Henderson, Assistant Attorney General, of counsel and on the
Judges Sabatino, Ostrer and Rose.
defendant in these five back-to-back appeals by the State was
convicted of fourth-degree operating a motor vehicle during a
period of license suspension. N.J.S.A. 2C:40-26. The statute
prescribes a sentence of a "fixed minimum" term of
at least 180 days without parole eligibility. N.J.S.A.
2C:40-26(c). We must decide whether the trial court exceeded
its authority by ordering that defendants serve such
sentences intermittently, under N.J.S.A. 2C:43-2(b)(7). The
State contends the intermittent sentences are illegal. It
argues a minimum period of parole ineligibility precludes an
intermittent sentence. Having reviewed the plain language of
the two statutes and the pertinent case law, we disagree.
to satisfy the mandated term of days, a defendant must serve
continuous twenty-four-hour periods to satisfy each day of
the 180-day mandated term. We therefore modify the sentences
of Eric L. Lowers in A-5146-15 and Stephen E. Nolan in
A-5147-15; remand for the trial court to reconsider the
sentence of Courtney D. Swiderski in A-5160-15; and reverse
the sentences of Rene M. Rodriguez in A-5077-15 and Elizabeth
A. Colon in A-5078-15, who were sentenced only to nights, and
remand those matters for resentencing.
defendants pleaded guilty to violating N.J.S.A. 2C:40-26(b).
Appearing before the same judge, they admitted they drove a
motor vehicle while their licenses were suspended for a
second or subsequent conviction of driving while under the
influence (DUI), N.J.S.A. 39:4-50. A fifth defendant pleaded
guilty to violating N.J.S.A. 2C:40-26(a). She admitted
driving a motor vehicle while her license was suspended for
DUI. It evidently was the second time she did so during that
court initially sentenced three defendants - Rene Rodriguez,
Eric Lowers and Courtney Swiderski - to serve their 180-day
term in a treatment program or home detention. However, we
reversed those sentences in light of State v.
Harris, 439 N.J.Super. 150 (App. Div. 2015) and
State v. French, 437 N.J.Super. 333 (App. Div.
2014), and remanded for resentencing. State v.
Rodriguez, No. A-2541-14 (App. Div. July 29, 2015) (ESOA
calendar); State v. Lowers, No. A-4260-13 (App. Div.
June 22, 2015) (ESOA calendar); State v. Swiderski,
No. A-2496-14 (App. Div. July 29, 2015) (ESOA calendar).
each defendant pleaded guilty based on the court's
promise of a sentence that would allow each defendant to
serve 180 days intermittently, over the State's
objection. Three defendants - Stephen Nolan, Eric Lowers and
Courtney Swiderski - specifically reserved the right to
withdraw their guilty pleas if their intermittent sentences
Rodriguez pleaded guilty to two separate indictments charging
violations of N.J.S.A. 2C:40-26(b). The first charged a
violation on July 11, 2012, in Pennsauken; the second on
November 16, 2013, in Cherry Hill. They were the second and
third times he was caught driving while his license was
suspended. Rodriguez had three DUI convictions, the last in
was fifty-five years old when sentenced. The court found that
his lack of a prior criminal record and his amenability to
probation outweighed the risk of his reoffending and the need
to deter. See N.J.S.A. 2C:44-1(b)(7), (10) (mitigating
factors); N.J.S.A. 2C:44-1(a)(3), (9) (aggravating factors).
The court sentenced Rodriguez to two concurrent terms of two
years of probation, conditioned on service of concurrent
180-day parole-ineligible terms of imprisonment, to be served
"at night on . . . Monday, Tuesday, Wednesday and
Thursday of each week." The court found that the
sentence would accommodate his work schedule and promote his
success on probation. Rodriguez reportedly had worked for a
computer service firm for sixteen years. The court did not
specify when Rodriguez was required to report to the jail
each night, or when he would be released each morning.
However, he evidently would not be required to serve any
continuous twenty-four-hour period in custody. Also, the
court did not specify how each nightly stint would count
toward the 180-day minimum.
Elizabeth Colon's plea allocution, she admitted that she
had been previously convicted of DUI. Like Rodriguez, Colon was
sentenced to two years of probation, conditioned upon service
of the 180-day jail term "at night on Monday, Tuesday,
Wednesday and Thursday of each week." Colon had worked
at a frozen dessert shop for eleven years. She was a manager,
but still earned a very modest income. She was twenty-eight
years old at sentencing. She had three prior municipal court
convictions for loitering, disorderly conduct and breach of
the peace, the last in 2013. The court found the likelihood
she would respond affirmatively to probationary treatment
outweighed the slight risk she would reoffend, and the need
to deter. See N.J.S.A. 2C:44-1(b)(10) (mitigating factor);
N.J.S.A. 2C:44-1(a)(3), (9) (aggravating factors). As in
Rodriguez's sentencing, the court did not expressly
address how each nightly stint would count toward the 180-day
Lowers had three prior DUI convictions. The last was in
2005. According to his presentence report, he had one
municipal court conviction from 1997 that resulted in a fine
(although the court stated he had three municipal court
convictions). Forty-six years old at sentencing, Lowers lived
with his wife and one child. He paid child support for
another. Two adult children lived outside the home. Employed
for sixteen years as a heavy equipment operator through a
local union, he currently worked at a Philadelphia refinery.
He was his household's principal breadwinner. He also
assisted his ailing grandmother during the week.
court sentenced Lowers to serve his 180-day term from Friday
evening until Sunday evening of each week. No probation was
imposed. The court found that his lack of a prior criminal
history or his law-abiding behavior for a substantial period
of time, and his character and attitude outweighed the risk
he would reoffend and the need to deter. See N.J.S.A.
2C:44-1(b)(7), (9) (mitigating factors); N.J.S.A.
2C:44-1(b)(3), (9) (aggravating factors). The court noted
that the intermittent sentence would enable Lowers to
maintain his employment and to continue to support those who
depended on him.
Nolan had at least three DUI convictions, according to his
attorney. He was in his early fifties when he entered his
guilty plea. He had a high school education, and earned a
very modest income working for a printing company. He was the
sole support of his wife and son. He and his wife were in
poor health. His attorney stated that if he were sentenced to
a continuous term, he would lose his job and health
insurance, and his family would be forced to turn to public
with Nolan's request, the court sentenced him to serve
his 180-day parole-ineligible term from Friday evening to
Sunday evening each week. No probation was imposed. The court
explained that an intermittent sentence would allow defendant
to keep his job and his health insurance. The court found his
lack of a prior criminal record and his character and
attitude outweighed the risk of reoffending and the need ...