However, to satisfy the mandated term of days, a defendant must serve continuous twenty-four-hour periods to satisfy each
I.
Four 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 suspension.
The 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.
Ultimately, 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 were invalidated.
Rene 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.
Rodriguez 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) (aggravаting 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
In Elizabeth Colon's plea allocution, she admitted that she had been previously convicted of DUI.
Eric Lowers had three prior DUI convictions.
The 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 wоuld 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.
Stephen 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
Consistent 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
Courtney Swiderski, thirty-four years old at sentencing, had two prior DUI convictiоns. In accord with her plea agreement, her imprisonment was a condition of a two-year term of probation. She was sentenced to serve her 180-day term on Saturdays and Sundays. The court found that her lack of a criminal record, her character and attitude, and her amenability to probationary treatment outweighed the risk of her reoffending and the need to deter. See N.J.S.A. 2C:44-1(b)(7), (9), (10) (mitigating factors); N.J.S.A. 2C:44-1(b)(3), (9) (aggravating factors). The court found an intermittent sentence would enable her to preserve her long-term employment as a medical receptionist, and to enhance her prospects for success on probаtion.
In each of the five cases, the trial court stayed service of the sentence pending appeal.
II.
On appeal, the State, by the Camden County Prosecutor, contends that N.J.S.A. 2C:40-26 implicitly mandates a continuous term, and supersedes the more general authorization in N.J.S.A. 2C:43-2(b)(7) for intermittent sentences. Both the State and the Attorney General, as amicus curiae, analogize intermittent periods of release to parole, which N.J.S.A. 2C:40-26 prohibits during the minimum 180-day term. The State and the Attorney General argue that an intermittent sentence fails to fulfill the Legislature's punitive purpose in enacting N.J.S.A. 2C:40-26.
Defendants
III.
The Code of Criminal Justice provides that the general authority to impose intermittent sentences must yield to specific sentencing provisions to the contrary. N.J.S.A. 2C:43-2. The crux of this appeal is whether such contrary provisions include the mandate of a 180-day parole-ineligible term for fourth-degree driving while suspended, N.J.S.A. 2C:40-26.
The power to impose intermittent sentences is found in the section authorizing various sentencing dispositions. N.J.S.A. 2C:43-2. Among other options, a court may sentence a defendant "[t]o imprisonment at night or on weekends with liberty to
Thus, we must examine the mandatory 180-day sentencing provision for fourth-degree driving while suspended, to determine if it is incompatible with an intermittent sentence. The mandatory sentencing provision expressly supersedes "the term of imprisonment provided under N.J.S.[A.] 2C:43-6"-which prescribes a prison term of zero to eighteen months for a fourth-degree offense-and "the provisions of subsection е. of N.J.S.[A.] 2C:44-1"-which establish a presumption of non-incarceration for most
We are obliged to give effect to the Legislature's intent. State v. Harper,
Turning to the statutory language, we find no basis for the argument that an intermittent sentence under N.J.S.A. 2C:43-2(b)(7) violates the parole ineligibility term mandated by N.J.S.A. 2C:40-26. Simply put, periodic release under an intermittent sentence is not parole.
The essential nature of parole is release from custody before a prisoner has completed his or her imposed term, subject to conditions that, if satisfied, will reduce the prisoner's total period of confinement. "Parole is a period of supervised release 'by which a prisoner is allowed to serve the final portion of his
Parole may reduce real time in custody for a flat sentence by as much as two-thirds, not counting commutation time and work credits that may further reduce the parole eligibility term.
By contrast, periods of release during service of an intermittent sentence do not reduce the total time of confinement. Rather, they simply interrupt the days of custody. As our late, esteemed colleague noted while sitting in the trial court, "The duration of [a] custodial term remains the same whether it is served consecutively or on weekends." State v. Silva,
Furthermore, the State's and the Attorney General's intermittent-release-is-like-parole argument fails because an intermittent
We also reject the contention that implicit in the mandate of a 180-day sentence is the requirement that the days be served without interruption. The statute does not say so expressly. By contrast, in multiple other provisions, the Legislature expressly stated when a period of days shall be "consecutive days." See, e.g., N.J.S.A. 2C:7-2(a)(2) ; N.J.S.A. 2C:46-2(a)(2) ; N.J.S.A. 2C:43-8.1 ; see also N.J.S.A. 2A:4A-43(c)(1) (disposition of delinquency cases).
"A person convicted of an offense under ... [ N.J.S.A. 2C:40-26(a) or -26(b) ] shall be sentenced by the court to a term of imprisonment." N.J.S.A. 2C:40-26(a), -26(b). According to the State, "term of imprisonment" implies uninterrupted service. The State's argument proves too much. If "term" were read to mean an uninterrupted period of time, then even the general provision that fourth-degree offenders shall receive a "specific term" not more than "18 months," N.J.S.A. 2C:43-6(a)(4), would preclude intermittent sentences. Thus, not even the least serious criminal offender would be eligible for an intermittent sentence under the Code. We reject such an interpretation.
We are persuaded that "term of imprisonment" means simply a period of imprisonment, which does not preclude an intermittent period. See Silva,
Nor does the use of the word "fixed" imply an uninterrupted sentence. See N.J.S.A. 2C:40-26(c) (requiring custodial term for fourth-degree driving while suspended
The Legislаture tellingly chose to define the sentence in terms of 180 days, not six months, or half-a-year. A day is "[a]ny 24-hour period; the time it takes the earth to revolve once on its axis." Black's Law Dictionary 479 (10th ed. 2014). Thus, any continuous twenty-four-hour period of custody satisfies a day's imprisonment. By contrast, a month is "[a]ny time period approximating 30 days," id. at 1161, or the "period extending from a date in one calendar month to the corresponding date in the following month," The American Heritage Dictionary 812 (2d College ed. 1985). Had the Legislature defined the sentence in terms of months, one could make a stronger argument that the Legislature intended the days be served consecutively in groups of at least thirty. The Legislaturе did not.
However, the plain meaning of a "day" precludes counting a nightly stint of say, twelve hours, as one of the 180 days requ
The Public Defender conceded at oral argument that a defendant sentenced to nights pursuant to N.J.S.A. 2C:43-2(b)(7)
We recognize that a mandatory minimum sentence substantially restricts a court's sentencing discretion. A judge may not reduce a mandatory minimum sentence nor "impose a sentence that, in length or form, is different from that plainly provided in the statute." State v. Lopez,
Under N.J.S.A. 2C:40-26 in particular, we held that the statute did not allow for service of the sentence in an inpatient drug rehabilitation program, French,
However, an intermittent sentence under N.J.S.A. 2C:43-2(b)(7) does not vary the length of the sentence provided by
Although we find no ambiguity in N.J.S.A. 2C:40-26, relating to the permissibility of intermittent sentences, the State and the
The State contends that the Legislature's overriding intent was simply to get recidivists off the road. However, we have found no evidence in the legislative history-nor does the State or the Attorney General point to any-that the Legislature so intended, lеt alone that it contemplated taking a driver off the road for 180 continuous days, as opposed to 180 non-continuous days. Had the Legislature's focus been separating offenders from vehicles, non-jail custodial alternatives such as inpatient treatment may have been acceptable. Notably, N.J.S.A. 2C:40-26 does not impose a period of license suspension in addition to the custodial sentence.
We acknowledge that the sponsor of the bill that added N.J.S.A. 2C:46-20 to the Code equated the mandated 180-day
Finally, even if the State's and the Attorney General's readings of N.J.S.A. 2C:40-26(c) were plausible, they at most leave us with an ambiguous penal enactment, because the contrary reading is no less plausible. As discussed above, extrinsiс legislative materials do not address the interpretative issue before us. Therefore, the rule of lenity would compel us to reject the State's and Attorney General's construction of N.J.S.A. 2C:40-26(c). Compare Rosado,
Based on the foregoing analysis, we are constrained to reverse and remand the sentences of Rene Rodriguez and Elizabeth Colon, as N.J.S.A. 2C:46-20(c) precludes a partial-day, nights-only sentence under N.J.S.A. 2C:43-2(b)(7). As for Eric Lowers and Stephen Nolan, we modify their sentences to provide that the commencement of their service on Friday evening, shall not occur at a time earlier in the day than their release on Sunday evening, to assure credit for two days. We remand for reconsideration of the sentence of Courtney Swiderski, who was sentenced to imprisonment
We close with brief observations about intermittent sentences and the Legislature's efforts to address "the scourge of intoxicated driving ...." State v. Denelsbeck,
It is not for us to question or endorse the Legislature's policy judgment. We respect it. We are mindful of the devastating toll that impaired driving exacts upon society. We also acknowledge the erosion of the enforcement scheme that results from persons driving while suspended. That is
However, the Legislature added N.J.S.A. 2C:46-20 to a Code that, since the Code's enactment in 1978, has authorized intermittent sentences. L. 1978, c. 95. Although not included in the original proposed revision of the New Jersey criminal law, see I The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission § 2C:43-2 (1971), the Legislature found it appropriate to include intermittent sentencing as a sentencing option. In so doing, it followed other states that, in one form or another, have authorized such dispositions. Nicolette Parisi, Part-Time Imprisonment: The Legal and Practical Issues of Periodic Confinement, 63 Judicature 385 (1980) (surveying various state laws on intermittent sentencing); see also Model Penal Code and Commentaries § 6.02 n.28 (Am. Law Inst. 1985) (noting that Illinois and Michigan, like New Jersey, revised their criminal laws,
Intermittent sentences may preserve the deterrent and rehabilitative effect of a custodial sentence, while enabling an offender to continue to be employed, and avoid the financial and emotional burden that would result if he or she could not. See Silva,
We also need not decide here whether an intermittent sentence is "easier time" or "harder time" than a continuous one. We presume that depends on the offender's personality and situation. See John M. Castellano, Practice Insights,
In sum, the Legislature has provided intermittent sentencing as an option to sentencing courts. We decline to find that it chose to preclude that sentencing option in N.J.S.A. 2C:40-26 absent a clear expression of the intent do so.
Reversed and remanded as to Rodriguez and Colon; modified as to Lowers and Nolan; and remanded for reconsideration as to Swiderski. We do not retain jurisdiction. We stay our decision for thirty days, to enable a party to seek any relief from the Supreme Court.
Notes
Rene Rodriguez, Eric Lowers, and Stephen Nolan also pleaded guilty to violating N.J.S.A. 39:3-40. The sentences for the Title 39 violations were ultimately merged into the sentences for the fourth-degree crimes, but the mandatory penalties survived.
The sеcond indictment included a drug possession charge, which was dismissed as part of his plea agreement.
Colon's indictment charged a violation of N.J.S.A. 2C:40-26(b), which requires at least two prior DUI convictions. Colon only admitted to one. Although her indictment was not formally amended, her judgment of conviction stated she was convicted of N.J.S.A. 2C:40-26(a), which requires only one DUI, but two or more instances of driving while suspended for that DUI. However, in her allocution, Colon did not mention a prior instance of driving while suspended. We note the record on appeal does not include any defendant's driver abstract, which would indicate each defendant's prior motor vehicle violations. However, the trial court apparently possessed the abstracts, based on the references to them in the sentencing hearings.
In his allocution to the fourth-degree offense, Lowers admitted the offense was committed on January 2, 2013. However, the indictment stated that offense occurred on October 5 of the preceding year. In a later allocution to violating N.J.S.A. 39:3-40, he admitted he was driving on October 5. Defendant had six prior convictions for driving while on the revoked list, the last one in 1999, but none while suspended for DUI.
Defendant Colon has not filed a brief.
For example, with such credits, a first-time offender sentenced to a flat three-year term is eligible for parole after nine months. See New Jersey Parole Board, Parole Eligibility Basic Calculations at 17 (2002) (parole eligibility table for first-time offenders).
We recognize the Parole Act expressly states that such credits shall not reduce a mandatory minimum sentence. See N.J.S.A. 30:4-123.51 ; see also N.J.A.C. 10A:9-5.2 ; N.J.A.C. 10A:31-23.1.
Elsewhere in the Code, "to fix" may be used to create an immutable term. See, e.g., N.J.S.A. 2C:43-7.2 (stating that a court "shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole"). Or, it may not. See, e.g., N.J.S.A. 2C:43-6(a) (noting that regular flat sentences "shall be fixed by the court" for the periods specified). We are aware of only one other section of the Code, N.J.S.A. 2C:14-6, which uses the phrase "fixed minimum sentence."
We recognize, by an alternative definition, a day is the twenty-four-hour period beginning at midnight. See A Dictionary of Modern Legal Usage 247 (2d ed. 1995) (stating that a day is "the period of 24 hours, beginning at the stroke of midnight"). Similarly, a month may be the period beginning on the first of any of the twelve months, and a year as the period beginning on January 1st. However, it would be absurd to conclude, in interpreting the statutes before us, that a sentence in days, months, or years, must begin at 12:01 a.m.; on the first day of the month; or on the first day of January, respectively.
To demonstrate the asserted unfairness of an intermittent sentence, the State contended in oral argument that partial days must count as a full day, using the counting mechanism for jail credits. R. 3:21-8(a) (stating that a "defendant shall receive credit on the term of a custodial sentence for any time served in custody ... between arrest and the imposition of sentence"); see also State v. C.H.,
The allowance of partial day credit pre-dates enactment of the Code in 1978, L. 1978, c. 95. See L. 1969, c. 146, § 1, codified at N.J.S.A. 2A:8-30.1 (allowing fractional credit of intermittent sentences for offenses punishable by imprisonment for thirty days or less), repealed by L. 1993, c. 293, § 6.
In State v. Kotsev,
In Luthe, we rejected defendant's argument that the trial court's refusal to consider "alternative sentencing options" denied her equal protection.
The references to weekend sentences in Kotsev and Luthe are dicta. They also pertain to a different violation of a different statute with a different legislative history, and did not discuss N.J.S.A. 2C:43-2(b)(7). The decisions do not persuade us that weekend sentences under N.J.S.A. 2C:43-2(b)(7) are non-custodial dispositions. Notably, neither the State nor the Attorney General rely on Kotsev or Luthe in their briefs before us.
As part of Courtney Swiderski's plea agreement, the State dismissed the N.J.S.A. 39:3-40 charge against her, which would have mandated a license suspension period, if convicted. Evidently, Elizabeth Colon was not charged with violating N.J.S.A. 39:3-40. The State did not seek her license suspension under N.J.S.A. 2C:43-2(c).