STATE OF NEW JERSEY VS. LEON FAISONÂ (13-11-2820, ESSEX COUNTY AND STATEWIDE), A-3629-15T4

Background

In 2010 Faison pleaded guilty in municipal court to two DWI charges (Sept. 26 and Oct. 16) after counsel who had sought to withdraw nonetheless represented him; both convictions led to a two-year license suspension.
In Aug. 2012 Faison was charged with DWI while driving during the period of license suspension; a grand jury later indicted him under N.J.S.A. 2C:40-26(b) (fourth-degree offense for operating during a suspension imposed for a second or subsequent DWI).
In Nov. 2014 the Law Division vacated both 2010 DWI convictions on PCR because the municipal court could not produce a transcript of the plea proceeding; the cases were remanded to municipal court for trial.
At retrial in Feb. 2015 the municipal court dismissed the Sept. 26 charge and Faison pled guilty to the Oct. 16, 2010 DWI — leaving him with only one prior DWI conviction when tried on the 2012 indictment.
The Law Division denied Faison’s motion to dismiss the indictment charging a second-or-subsequent suspension offense; the judge convicted him under N.J.S.A. 2C:40-26(b) and imposed the statutory minimum 180-day jail term (stayed pending appeal).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved the element that Faison’s license suspension was based on a second or subsequent DWI conviction	The State argued the license was suspended on the date of the offense and thus the statute applied	Faison argued one of the prior DWI convictions had been vacated and not reinstated, so he did not have a second DWI conviction when charged	Reversed: conviction under N.J.S.A. 2C:40-26(b) cannot stand because the State could not prove a second prior DWI conviction at the time of the offense
Whether Sylvester requires affirmance despite vacation of a prior DWI	The State relied on Sylvester, which affirmed conviction where prior vacated conviction had been re-entered before trial	Faison distinguished Sylvester because his vacated conviction was not later reinstated; only one prior DWI remained	Court distinguished Sylvester and found it inapplicable where the prior conviction was vacated and not reinstated
Whether Laurick permits enhanced incarceration based on an uncounseled prior DWI	The State would treat prior plea as establishing repeat-offender status	Faison relied on Laurick to argue an uncounseled or ineffectively represented prior plea cannot increase incarceration	Court cited Laurick principles: enhanced incarceration cannot rest on an invalid/uncounseled (or effectively invalid) prior conviction; treating vacated prior as basis for mandatory 180 days would be miscarriage of justice
Remedy: appropriate conviction/sentence if 2C:40-26(b) reversed	N/A	Faison conceded he may be guilty of the lesser traffic offense (N.J.S.A. 39:3-40)	Court remanded for sentencing on the N.J.S.A. 39:3-40 conviction (assumed merged before), and reversed the 2C:40-26(b) conviction and sentence

Key Cases Cited

State v. Sylvester, 437 N.J. Super. 1 (App. Div.) (affirming conviction under N.J.S.A. 2C:40-26(b) where prior vacated conviction had been reinstated before trial)
State v. Laurick, 120 N.J. 1 (1990) (prior uncounseled DWI may establish repeat-offender status but cannot increase period of incarceration if it was uncounseled or caused miscarriage of justice)
State v. Morrison, 188 N.J. 2 (2006) (indictment survives unless it is palpably defective for failure to allege elements)