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State v. Rodriguez

Supreme Court of New Jersey

May 21, 2019

State of New Jersey, Plaintiff,
v.
Rene M. Rodriguez, Defendant. State of New Jersey, Plaintiff,
v.
Elizabeth A. Colon, Defendant. State of New Jersey, Plaintiff-Appellant,
v.
Eric L. Lowers, Defendant-Respondent. State of New Jersey, Plaintiff-Appellant,
v.
Stephen E. Nolan, Defendant-Respondent. State of New Jersey, Plaintiff-Appellant,
v.
Courtney D. Swiderski, Defendant-Respondent.

          Argued March 12, 2019

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 454 N.J.Super. 214 (App. Div. 2018).

          Jason Magid, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney; Jason Magid, of counsel and on the brief).

          Marissa J. Costello argued the cause for respondents Eric L. Lowers and Stephen E. Nolan (Costello & Whitmore, attorneys, Marissa J. Costello, on the letter brief).

          Mark V. Oddo argued the cause for respondent Courtney D. Swiderski (DuBois, Sheehan, Hamilton, Levin & Weissman, attorneys; Mark V. Oddo, on the letter brief).

          Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, of counsel and on the brief).

          Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Michele E. Friedman, of counsel and on the brief).

          SOLOMON, J., writing for the Court.

         In these consolidated appeals, defendants were convicted of fourth-degree operating a motor vehicle during a period of license suspension for driving while intoxicated (DWI) under N.J.S.A. 2C:40-26. The issue presented is whether N.J.S.A. 2C:40-26(c) -- which prescribes a "fixed minimum" sentence of at least 180 days without parole eligibility -- overrides N.J.S.A. 2C:43-2(b)(7)'s general sentencing option, which allows a court to impose a sentence that is served "at night or on weekends with liberty to work or to participate in training or educational programs," unless otherwise provided.

         All five defendants -- Rene Rodriguez, Elizabeth Colon, Eric Lowers, Stephen Nolan, and Courtney Swiderski -- appeared before the same judge and were sentenced to 180 days in the county jail, to be served intermittently. Rodriguez and Colon were ordered to serve their sentences four nights per week, while Lowers, Nolan, and Swiderski were ordered to serve their sentences on weekends.

         In a consolidated opinion, the Appellate Division held that the sentencing court did not exceed its authority by imposing intermittent sentences. 454 N.J.Super. 214, 218 (App. Div. 2018). However, the panel held that defendants "must serve continuous twenty-four-hour periods [in jail] to satisfy each day of the 180-day mandated term." Ibid. The panel reasoned that an intermittent sentence does not violate the parole ineligibility term or "reduce the total time of confinement." Id. at 224-25. The panel also pointed out that N.J.S.A. 2C:40-26(c) contains no language requiring that days be served consecutively. Id. at 226. The panel reasoned that intermittent sentences would have a greater deterrent effect and relied on the rule of lenity. Id. at 231-32.

         The Court granted the State's petition for certification. 234 N.J. 314 (2018).

         HELD: An individual sentenced to a fixed minimum term of parole ineligibility under N.J.S.A. 2C:40-26(c) may not serve his or her sentence intermittently at night or on weekends pursuant to N.J.S.A. 2C:43-2(b)(7).

          1. The Criminal Code allows imposition of a sentence of imprisonment to be served "at night or on weekends" unless the Criminal Code provides otherwise. N.J.S.A. 2C:43-2(a), (b)(7). N.J.S.A. 2C:40-26 makes it a crime of the fourth degree to either: (a) operate a motor vehicle, for the second time, during a period of license suspension for a DWI; or (b) operate a motor vehicle with a suspended license for a second or subsequent DWI. It specifically provides that an individual convicted under either of those subsections shall be sentenced to a "fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole." N.J.S.A. 2C:40-26(c) (emphases added). The issue is whether that provision counts as providing "otherwise" within the meaning of N.J.S.A. 2C:43-2. (pp. 12-14)

         2. Sentencing requirements for those guilty of the most serious crimes are contained in three statutory provisions calling for mandatory periods of parole ineligibility: N.J.S.A. 2C:43-7.2(a) (for individuals convicted of certain violent offenses under the No Early Release Act (NERA)); N.J.S.A. 2C:43-6(c) and (d) (for those who arm themselves before going forth to commit crimes under the Graves Act); and N.J.S.A. 2C:43-6(f) (for those convicted of certain controlled dangerous substance (CDS) offenses). On the other hand, when the Legislature wishes to leave the imposition of a period of parole ineligibility to the discretion of the sentencing judge, it has generally done so by clearly indicating that the court may waive the parole disqualifier or by silence. (pp. 14-16)

         3. Because mandatory fixed periods of parole ineligibility apply to the most dangerous offenders, the Legislature chose N.J.S.A. 2C:40-26's language -- which mirrors that of the NERA, Graves Act, and CDS-offense sentencing provisions cited above -- to serve as a bar to release, even intermittently, during the period of parole ineligibility. A finding to the contrary could allow offenders sentenced under NERA, the Graves Act, or for the most serious CDS offenses to serve their periods of parole ineligibility on nights or weekends. That is a result the Legislature could not have intended. What's more, the prohibition of parole necessarily dictates the prohibition of intermittent sentencing. The Court disagrees that the Legislature's omission of the term "consecutive days" in N.J.S.A. 2C:40-26(c) evinces a legislative intent to permit intermittent sentences. The Court does not address the Appellate Division's mandate that defendants serve their intermittent sentences in twenty-four-hour continuous periods and does not resort to extrinsic aids or consider the rule of lenity because N.J.S.A. 2C:40-26(c)'s language in this context is clear. (pp. 16-19)

         The judgment of the Appellate Division is REVERSED and the Court remands for resentencing as to Colon and remands with leave to file motions to vacate their guilty pleas as to Lowers, Nolan, and Swiderski.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S opinion.

          OPINION

          SOLOMON, JUSTICE

         In these consolidated appeals, defendants were convicted of fourth-degree operating a motor vehicle during a period of license suspension for driving while intoxicated (DWI) under N.J.S.A. 2C:40-26. Their sentences were each to be served intermittently on nights or weekends pursuant to N.J.S.A. 2C:43-2(b)(7), which allows a court to impose a sentence that is served "at night or on weekends with liberty to work or to participate in training or educational programs," unless otherwise provided.

         The issue presented in this appeal is whether N.J.S.A. 2C:40-26(c) --which prescribes a "fixed minimum" sentence of at least 180 days without parole eligibility -- overrides N.J.S.A. 2C:43-2(b)(7)'s general sentencing option. Relying on the language chosen by the Legislature in enacting New Jersey's Code of Criminal Justice (the Criminal Code or Title 2C), we conclude that an individual sentenced to a fixed minimum term of parole ineligibility under N.J.S.A. 2C:40-26(c) may not serve his or her sentence ...


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