NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4473-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
June 4, 2020 v. APPELLATE DIVISION ANDRES I. CHAVARRIA,
Defendant-Appellant. __________________________
Submitted April 27, 2020 – Decided June 4, 2020
Before Judges Messano, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Accusation Nos. 18-10- 0303 and 18-10-0304.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Catlin A. Davis, Deputy Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
VERNOIA, J.A.D. Defendant Andres I. Chavarria pleaded guilty to two counts of fourth -
degree operating a motor vehicle during a period of license suspension or
revocation for a second or subsequent violation of N.J.S.A. 39:4-50, driving
while under the influence (DUI), or N.J.S.A. 39:4-50.4a, refusal to provide a
breath sample. N.J.S.A. 2C:40-26(b). Defendant also pleaded guilty to DUI.
In accordance with his plea agreement, the court sentenced defendant to
an aggregate 360-day custodial sentence, with a 360-day mandatory period of
parole ineligibility, as a condition of serving probation. The sentence was
comprised of consecutive 180-day terms of imprisonment with 180-day
periods of parole ineligibility as a condition of probation for defendant's
convictions under N.J.S.A. 2C:40-26(b). The court also imposed a 180-day
concurrent custodial sentence on the DUI conviction.1
Defendant appeals from his sentence, arguing the probationary portions
of his sentence are illegal because the Criminal Code does not authorize
mandatory periods of parole ineligibility as a condition of probation. He also
contends the court did not consider and find the required factors for imposing
consecutive sentences under State v. Yarbough, 100 N.J. 627 (1985).
Originally argued on the excessive sentencing calendar, the appeal was placed
1 The sentence included other conditions—payment of fines and penalties; a ten-year suspension of defendant's driving privileges; and other mandatory penalties for defendant's DUI conviction—that are not pertinent to this appeal.
A-4473-18T3 2 on a plenary calendar to more fully develop the arguments challenging the
legality of defendant's sentences.
Defendant presents the following arguments for our consideration:
THE SENTENCES IMPOSED UPON DEFENDANT ARE ILLEGAL, AS [N.J.S.A.] 2C:40-26 REQUIRES A SENTENCE OF IMPRISONMENT, PROBATIONARY SENTENCES CANNOT INCLUDE PERIODS OF PAROLE INELIGIBILITY, AND THE CONSECUTIVE TERMS WERE IMPOSED WITHOUT CONSIDERATION OF THE YARBOUGH GUIDELINES[.]
We have carefully considered the record and reject defendant's claim the
Criminal Code does not authorize a sentence of probation conditioned on
service of a term of imprisonment that includes a mandatory period of parole
ineligibility. We agree the court did not expressly address the factors required
for the imposition of consecutive sentences under Yarbough, and we find the
court incorrectly imposed sentences that included consecutive terms of
imprisonment and concurrent terms of probation. We therefore vacate the
court's imposition of consecutive terms of imprisonment and concurrent
probationary terms, and we remand for resentencing.
I.
Defendant contends his sentences are illegal because the Criminal Code
does not authorize a probationary sentence conditioned on service of
imprisonment that includes a mandatory period of parole ineligibility. Our
A-4473-18T3 3 Supreme Court has explained "[t]here are two categories of illegal sentences:
those that exceed the penalties authorized for a particular offense, and those
that are not authorized by law." State v. Hyland, 238 N.J. 135, 145 (2019).
Defendant contends his sentences are within the latter category because "[a]
sentence 'not imposed in accordance with law' includes 'a disposition [not]
authorized by the [Criminal] Code.'" State v. Drake, 444 N.J. Super. 265, 271
(App. Div. 2016) (quoting State v. Murray, 162 N.J. 240, 247 (2000)).
Defendant's argument his sentences are not authorized by the Criminal
Code is based on his interpretation of various statutory provisions. In the first
instance, defendant notes that a conviction under N.J.S.A. 2C:40-26 requires
imposition of a "term of imprisonment" which shall include "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). He contends that, because a term
of imprisonment with a minimum period of parole ineligibility is a required
disposition under N.J.S.A. 2C:40-26, a sentence of imprisonment as a
condition of probation is not an authorized sentence for individuals convicted
of the crime.
Defendant also relies on N.J.S.A. 2C:43-2, which "enumerates the
available sentencing alternatives" under the Criminal Code. State v. O'Connor,
105 N.J. 399, 406 (1987). He argues that because N.J.S.A. 2C:40-26 mandates
A-4473-18T3 4 a sentence of imprisonment, the only enumerated sentencing alternative
available under N.J.S.A. 2C:43-2 is imposition of a term of imprisonment
under subsection (b)(3). In pertinent part, N.J.S.A. 2C:43-2(b)(3) provides, as
an authorized sentencing alternative, for "imprisonment for a term authorized
by . . . [N.J.S.A.] 2C:43-6."
Defendant acknowledges subsection (b)(2) of N.J.S.A. 2C:43-2
authorizes imposition of a sentence of up to 364 days of imprisonment as a
condition of probation for a criminal conviction. He claims, however, N.J.S.A.
2C:43-2(b)(2) does not authorize the sentences imposed by the court because
he was sentenced to terms of "imprisonment" under N.J.S.A. 2C:43-6.
Defendant contends that "by mandating the imposition[] of 'a term of
imprisonment' and a period of parole ineligibility, . . . the Legislature intended
one convicted of a [N.J.S.A.] 2C:40-26 offense to be sentenced to
imprisonment pursuant to [N.J.S.A.] 2C:43-2(b)(3), and that the probationary
sentencing option set forth in [N.J.S.A.] 2C:43-2(b)(2) is not available."
Defendant's arguments require an interpretation of the Criminal Code's
sentencing provisions. "'Questions related to statutory interpretation are legal
ones.' Thus, '[w]e review such decisions de novo, "unconstrained by deference
to the decisions of the trial court . . . ."'" State v. Rodriguez, 238 N.J. 105, 113
A-4473-18T3 5 (2019) (first quoting State v. S.B., 230 N.J. 62, 67 (2017), then quoting State
v. Grate, 220 N.J. 317, 329 (2015)).
Our review begins with the plain language of the statutes, "which is the
'best indicator' of legislative intent," ibid. (quoting DiProspero v. Penn, 183
N.J. 477, 492 (2005)), and, in conducting the analysis, "[a] statute's plain
language must be construed 'in context with related provisions so as to give
sense to the legislation as a whole,'" ibid. (quoting Spade v. Select Comfort
Corp., 232 N.J. 504, 515 (2018)). "Unless it is 'inconsistent with the manifest
intent of the legislature,' or 'another or different meaning is expressly
indicated,' we ascribe to the Legislature's words and phrases 'their generally
accepted meaning, according to the approved usage of the language.'" Ibid.
(quoting Finkelman v. Nat'l Football League, 236 N.J. 280, 289 (2019)).
Where, as here, "the plain language leads to a clear and unambiguous
result, . . . our interpretative process is over." Id. at 114 (quoting Johnson v.
Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)).
In construing the pertinent statutes, we follow the Court's lead in
Rodriguez, and we "begin our application of the canons of statutory
construction with" N.J.S.A. 2C:43-2, "the Criminal Code's provision
governing, generally, the imposition of sentences." Rodriguez, 238 N.J. at
114; see also State v. Crawford, 379 N.J. Super. 250, 258 (App. Div. 2005).
A-4473-18T3 6 N.J.S.A. 2C:43-2(a) states that "[e]xcept as otherwise provided by" the
Criminal Code, "all persons convicted of an offense or offenses shall be
sentenced in accordance" with N.J.S.A. 2C:43-2(b).
N.J.S.A. 2C:43-2(b) lists the available sentencing alternatives, and it
also makes clear imposition of the delineated alternatives is subject to two
exceptions. The statute states that, "[e]xcept as provided in subsection
[(a)] . . . and subject to the applicable provisions of the" Criminal Code, a
court "may sentence" a defendant pursuant to seven specified sentencing
alternatives. N.J.S.A. 2C:43-2(b). Pertinent to this appeal, the alternatives
include placing a defendant "on probation and, in the case of a person
convicted of a crime, to imprisonment for a term fixed by the court not
exceeding 364 days to be served as a condition of probation[.]" N.J.S.A.
2C:43-2(b)(2). "This is referred to as a split sentence, and the custodial term
[of imprisonment] must be served in a county jail, whereas a sentence of
imprisonment [exceeding 364 days] must be served in a state correctional
facility."2 Crawford, 379 N.J. Super. at 258 (citing State v. Hartye, 105 N.J.
411, 419 (1987)).
2 N.J.S.A. 2C:43-2(b)(2) is subject to the general exceptions set forth in subsection (b) and also to an additional exception not at issue here. More specifically, N.J.S.A. 2C:43-2(b)(2) states that "[e]xcept as provided in subsection [(g)]," a defendant may be placed on probation. Subsection (g)
A-4473-18T3 7 N.J.S.A. 2C:43-2(b) includes another sentencing alternative pertinent
here. As noted, subsection (b)(3) provides for a sentence "[t]o imprisonment
for a term authorized by . . . N.J.S.A. 2C:43-6."3 The statute prescribes the
ordinary terms of imprisonment for the different degrees of crimes under the
Criminal Code, N.J.S.A. 2C:43-6(a)(1) to (4), and it details the standards for
imposition of periods of parole ineligibility "[a]s part of a sentence for any
crime," N.J.S.A. 2C:43-6(b).4
Defendant challenges the sentences imposed for his convictions for
violating N.J.S.A. 2C:40-26(b), a fourth-degree crime. The authorized
ordinary term of imprisonment for a fourth-degree crime is up to eighteen
months. N.J.S.A. 2C:43-6(a)(4). N.J.S.A. 2C:40-26, however, provides that
"[n]otwithstanding the term of imprisonment provided under N.J.S.A. 2C:43 -
(continued) prohibits imposition of a probationary sentence for defendants convicted of "any offense enumerated in" N.J.S.A. 2C:43-6.4(a). N.J.S.A. 2C:43-2(g). 3 N.J.S.A. 2C:43-2(b)(3) also provides for sentences of imprisonment for a term authorized by N.J.S.A. 2C:11-3 (defining sentences for homicide convictions); N.J.S.A. 2C:43-5 (providing for sentencing of young adult offenders); N.J.S.A. 2C:43-7 (defining requirements for extended-term sentences); N.J.S.A. 2C:43-8 (defining sentences for disorderly persons and petty disorderly persons offenses); and N.J.S.A. 2C:44-5 (defining requirements for sentences for multiple offenses). We do not address these provisions because defendant does not argue they apply here. 4 N.J.S.A. 2C:43-6 includes other provisions related to sentencing that are not relevant to the issues presented on appeal. See N.J.S.A. 2C:43-6(c) to (i).
A-4473-18T3 8 6," a person convicted of the offense must receive "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). In other words, a conviction under N.J.S.A.
2C:40-26 requires imposition of a minimum 180-day period of imprisonment
with a 180-day minimum period of parole ineligibility, independent of the
authority to impose parole ineligibility periods under N.J.S.A. 2C:43-6(b).
"Title 2C does not allow a judge sentencing discretion to impose a lesser
period of incarceration when a mandatory minimum term is required, absent
specific language to that effect." State v. French, 437 N.J. Super. 333, 337
(App. Div. 2014) (citing State v. Lopez, 395 N.J. Super. 98, 107-08 (App. Div.
2007)). Indeed, "[a] sentence with a mandatory period of parole ineligibility
cannot be reduced below the statutorily mandated parole ineligibility term."
State v. Kearns, 393 N.J. Super. 107, 111 (App. Div. 2007) (citing State v.
Mendel, 212 N.J. Super. 110, 112-13 (App. Div. 1986)).
For each of defendant's criminal convictions, the court imposed a term of
imprisonment in precise compliance with the requirements of N.J.S.A. 2C:40 -
26(c). The court sentenced defendant for each conviction to a 180-day term of
imprisonment subject to the requirement that he serve 180 days without
eligibility for parole. See N.J.S.A. 2C:40-26(c). Defendant's aggregate
A-4473-18T3 9 sentence totaled 360 days, all of which is to be served without parole
eligibility.
As noted, an authorized sentence under N.J.S.A. 2C:43-2(b)(2) for
conviction of a crime includes "imprisonment for a term fixed by the court not
exceeding 364 days . . . as a condition of probation." Here, defendant's
separate sentences for each conviction under N.J.S.A. 2C:40-26, and his
aggregate sentence, fall within the parameters of the permissible term of
imprisonment under N.J.S.A. 2C:43-2(b)(2) for a split sentence. Thus,
defendant's sentences are expressly authorized by N.J.S.A. 2C:43-2(b)(2)'s
plain language, and they are not illegal. See Hyland, 238 N.J. at 145.
Moreover, the periods of parole ineligibility the court imposed are required by
N.J.S.A. 2C:40-26(c). See State v. Pimentel, 461 N.J. Super. 468, 475 (App.
Div. 2019) (noting N.J.S.A. 2C:40-26 "prescribes a mandatory minimum jail
sentence of 180 days").
Defendant ignores the plain language of N.J.S.A. 2C:43-2(b)(2), and he
contends the statute does not authorize a split sentence where the term of
imprisonment imposed includes a mandatory period of parole ineligibility. We
reject that argument because the statute does not include such a limitation, and
"[i]t is not our job to engraft requirements [on a statute] that the Legislature
did not include. It is our role to enforce the legislative intent as expressed
A-4473-18T3 10 through the words used by the Legislature." Lippman v. Ethicon, Inc., 222
N.J. 362, 388 (2015).
We are also not persuaded by defendant's claim the split sentences
imposed are illegal because they are not expressly authorized by the Criminal
Code. Defendant asserts there is no statutory provision permitting a split
sentence that includes a term of imprisonment subject to a mandatory period of
parole disqualification, and, for that reason, his sentences are illegal.
The enumerated sentencing alternatives listed in N.J.S.A. 2C:43-2(b)
must be applied "except as provided in subsection [(a)]," and subsection (a)
includes a more general exception. N.J.S.A. 2C:43-2(a) requires sentencing in
accordance with the seven enumerated sentencing alternatives, "[e]xcept as
otherwise provided by" the Criminal Code. In other words, the enumerated
sentencing alternatives are authorized and must be employed in sentencing
unless the Criminal Code provides otherwise.
As we have explained, defendant was sentenced in exacting compliance
with N.J.S.A. 2C:43-2(b)(2)'s plain language, and the Criminal Code does not
"otherwise provide[]" that a split sentence cannot include a period of parole
ineligibility. Indeed, defendant does not identify any statutory provision
barring imposition of a period of parole ineligibility on the term of
imprisonment imposed as part of a split sentence. Again, if the Legislature
A-4473-18T3 11 intended to prohibit a split sentence that included a term of imprisonment
subject to a mandatory period of parole ineligibility, it would have "otherwise
provided" for such an exception in the Criminal Code. It did not, and we
cannot find or rely upon that which is not there. See Lippman, 222 N.J. at 388.
In Rodriguez, the Court determined an intermittent custodial sentence
imposed pursuant to subsection (b)(7) of N.J.S.A. 2C:43-2 was not an
authorized sentence of imprisonment for a conviction under N.J.S.A. 2C:40-
26(c). 238 N.J. at 117. The Court discussed the differences between an
intermittent sentence of imprisonment and a sentence of imprisonment subject
to a period of parole ineligibility, and it found service of an intermittent
sentence under N.J.S.A. 2C:43-2(b)(7) is inconsistent with, and does not meet
the requirements of, the period of parole ineligibility mandated under N.J.S.A.
2C:40-26(c). Id. at 114-19. We have similarly held a sentence that is
inconsistent with service of a mandatory period of parole ineligibility is an
unauthorized and illegal sentence. See French, 437 N.J. Super. at 338 (holding
"no discretion exists in Title 2C to replace half of the mandatory 180 days of
incarceration with a non-jail rehabilitation program"); State v. Harris, 439 N.J.
Super. 150, 160 (App. Div. 2015) (holding "[b]ecause N.J.S.A. 2C:40 -26(c)
requires a 'fixed minimum sentence of not less than 180 days' without parole
A-4473-18T3 12 eligibility for violations of N.J.S.A. 2C:40-26(b), a sentence to a non-custodial
'alternative program,' instead of jail, is plainly illegal").
In Rodriguez, the Court reasoned that an intermittent sentence under
N.J.S.A. 2C:43-2(b)(7) is not authorized for a conviction under N.J.S.A.
2C:40-26 because N.J.S.A. 2C:40-26(c) "otherwise provide[s]" for service of a
mandatory period of parole ineligibility. 238 N.J. at 117. Here, unlike in
Rodriguez, there is no Criminal Code provision that "otherwise provides" for a
sentence that is inconsistent with imposition of a split sentence for a p erson
convicted of violating N.J.S.A. 2C:40-26. Imposition of the parole
ineligibility period required under N.J.S.A. 2C:40-26(c) is not inconsistent
with imposition of a split sentence. The period of parole ineligibility merely
defines the manner in which the term of imprisonment that is imposed as a
condition of probation will be served. The plain language of N.J.S.A. 2C:43 -
2(b)(2) imposes only one condition related to the permissible term of
imprisonment for a split sentence; it must be 364 days or less. Defendant's
sentences, individually and in the aggregate, satisfy that condition, and they
are therefore authorized by N.J.S.A. 2C:43-2(b)(2).
Defendant also contends he could not be sentenced in accordance with
N.J.S.A. 2C:43-2(b)(2) because the court imposed a term of "imprisonment" in
accordance with N.J.S.A. 2C:43-6. He relies on Hartye, where the Court
A-4473-18T3 13 considered whether a term of imprisonment as a condition of probation could
be imposed when, due to the defendant's lack of a prior conviction of an
offense, the presumption of non-incarceration under N.J.S.A. 2C:44-1(e)
applied. 105 N.J. at 418-20. In its analysis, the Court in Hartye explained that
"a sentence of imprisonment under N.J.S.A. 2C:43-2(b)(3) was intended by the
Legislature to be different and distinct from a prison term imposed as a
condition of probation under N.J.S.A. 2C:43-2(b)(2)." Id. at 419.
The Court recognized that both subsections (b)(2) and (b)(3) of N.J.S.A.
2C:43-2 provide for imposition of terms of "imprisonment," and it noted
differences between the imprisonment authorized in each subsection. Id. at
418-19. For example, the Court explained that a term of imprisonment under
subsection (b)(3) "must be served in a state correctional facility," whereas the
custodial portion of a split sentence under subsection (b)(2) may only be
served in the county jail. 5 Id. at 419; see also O'Connor, 105 N.J. at 409
5 The Court noted an additional difference between imprisonment under N.J.S.A. 2C:43-2(b)(2) and (b)(3). Id. at 419. The Court explained that "unlike a state prison term, the custodial element of a probationary sentence may commence at any time during the probationary period, and may be reduced on defendant's motion at any time before the sentence of probation has expired." Ibid. (citations omitted). These differences are irrelevant to our consideration of the legality of defendant's sentences because, as noted, defendant's sentences render him ineligible to serve a state prison term, and the Court in Hartye was not required to, and did not, address sentences that included mandatory periods of parole ineligibility.
A-4473-18T3 14 (explaining the distinction between imprisonment under N.J.S.A. 2C:43-
2(b)(2) and (b)(3) is that "a term of imprisonment as a condition of probation
must be served in a county jail, while in the majority of cases a sentence of
imprisonment [under subsection (b)(3)] must be served in a state correctional
facility").
Measured against those standards, the custodial portion of defendant's
sentence, including imposition of the period of parole ineligibility, falls within
the imprisonment authorized by N.J.S.A. 2C:43-2(b)(2) and clearly outside the
imprisonment authorized by N.J.S.A. 2C:43-2(b)(3). Defendant's aggregate
sentence is less than 364 days, so he will serve the sentence in the county jail
and not in a state prison facility. Compare N.J.S.A. 2C:43-10(a) (providing
sentences of imprisonment of one year or greater shall be served in the custody
of the Commissioner of the Department of Corrections) with N.J.S.A. 2C:43-
10(c) (providing, in pertinent part, sentences of imprisonment of less than one
year shall be served in the county jail).
The Court in Hartye also stated that "a defendant sentenced to a prison
term as a condition of probation may not be exposed to the parole ineligibility
term authorized by N.J.S.A. 2C:43-6(b)." 105 N.J. at 419. In support of that
declaration, the Court cites State v. Guzman, 199 N.J. Super. 346 (Law Div.
1985), where the trial court explained its imposition of a custodial term that
A-4473-18T3 15 included a period of parole ineligibility under N.J.S.A. 2C:43-6(b). Ibid. The
court in Guzman did not impose a split sentence, but it noted that under the
circumstances presented, "no ineligibility term could be imposed on
imprisonment as a condition of probation," "as no sentence [was] imposed
under N.J.S.A. 2C:43-6 or any other section of the [Criminal] Code
authorizing or requiring same." 199 N.J. Super. at 349 n.1.
Thus, the court did not suggest a split sentence could not include a
period of parole ineligibility during a period of imprisonment imposed as a
condition of probation. To the contrary, the court stated only that it could not
impose a period of parole ineligibility because it was sentencing defendant to a
county jail term of 364 days imprisonment and the Criminal Code did not
otherwise authorize or require imposition of a period of parole ineligibility on
the term of imprisonment imposed.
Here, the periods of parole ineligibility imposed as conditions of
defendant's imprisonment do not fall within the Hartye proscription. 105 N.J.
at 419. The trial court did not sentence defendant to a term of imprisonment at
a state correctional facility in accordance with N.J.S.A. 2C:43-2(b)(3) or
impose a period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b).
Instead, the court imposed a county jail sentence as authorized by N.J.S.A.
2C:43-2(b)(2) and imposed a parole ineligibility period solely as mandated by
A-4473-18T3 16 N.J.S.A. 2C:40-26(c).6 In addition, as implicitly recognized by the court in
Guzman, where, as here, a period of parole ineligibility is authorized or
required by another provision of the Criminal Code, imprisonment that
includes a parole ineligibility period may be imposed as a condition of
probation under N.J.S.A. 2C:43-2(b)(2). 199 N.J. Super. at 349 n.1.
We also observe that our Supreme Court has, in another context, directly
approved imposition of a split sentence under N.J.S.A. 2C:43-2(b)(2) that
included imprisonment and a period of parole ineligibility. In State v. Pineda,
the defendant pleaded guilty to death by auto, N.J.S.A. 2C:11-5(b), and he was
sentenced to a four-year custodial term, subject to a 270-day period of parole
ineligibility.7 119 N.J. 621, 622 (1990). At that time, the death by auto
6 As the State correctly notes, if defendant's sentences on each of his convictions for violating N.J.S.A. 2C:40-26 were imposed pursuant to N.J.S.A. 2C:43-6, they would be illegal sentences. On each conviction, the court sentenced defendant to 180-days imprisonment with a 180-day period of parole ineligibility. Under N.J.S.A. 2C:43-6(b), however, a period of parole ineligibility may not exceed fifty percent of the ordinary term imposed. If defendant had been sentenced under N.J.S.A. 2C:43-6(b), the court would have been required to impose a 360-day sentence on each of the N.J.S.A. 2C:40-26 convictions in order to impose the mandatory 180-day periods of parole ineligibility. The court, however, did not run afoul of the limitation contained in N.J.S.A. 2C:43-6(b) because it imposed the period of parole ineligibility in accordance with N.J.S.A. 2C:40-26(c). 7 N.J.S.A. 2C:11-5 was amended in 1995. L. 1995, c. 285, §§ 1, 2. In relevant part, the amendment renamed the crime "vehicular homicide,"
A-4473-18T3 17 statute, N.J.S.A. 2C:11-5(b), mandated either imposition of a 270-day period
of incarceration or 270 days of community service as part of any sentence
imposed for a conviction. Id. at 624.
On the defendant's direct appeal, we interpreted N.J.S.A. 2C:11-5(b) "to
mean that the sentencing judge must deprive a defendant of his liberty for at
least 270 days by imprisonment without parole, community related service or a
split sentence combining the two." State v. Pineda, 227 N.J. Super. 245, 250
(App. Div. 1988). The Court rejected our interpretation and directed that a
court sentencing a defendant under N.J.S.A. 2C:11-5(b) must first determine if
imprisonment is appropriate and, if so, decide the ordinary term of
imprisonment to be imposed. Pineda, 119 N.J. at 626. Where a term of
imprisonment is imposed, the Court required imposition of the 270-day period
of parole ineligibility provided in N.J.S.A. 2C:11-5(b). Id. at 627.
More pertinent here, the Court also directed that, where the trial court
concludes a probationary sentence is appropriate, "it must condition that term
on a 270-day period of community service or of incarceration without parole
eligibility." Ibid. (emphasis added). Thus, the Court permitted and approved a
split sentence under N.J.S.A. 2C:43-2(b)(2) that includes imprisonment and a
(continued) changed the degree of the crime to a second-degree offense, and amended the sentencing provisions of the prior version of the statute. Ibid.
A-4473-18T3 18 mandatory period of parole ineligibility. 8 We discern no basis to reach a
different conclusion here.
We are also mindful that N.J.S.A. 2C:40-26 was enacted in 2009 and
became effective on August 1, 2011, L. 2009, c. 333, § 1, long after N.J.S.A.
2C:43-2(b)(2) was enacted in 1979 as part of the Criminal Code. L. 1979, c.
178, § 82. We may therefore properly assume the Legislature was fully aware
of the requirements for imposition of a split sentence under N.J.S.A. 2C:43-
2(b)(2) when it established the sentencing paradigm set forth in N.J.S.A.
2C:40-26(c). See In re Expungement Petition of J.S., 223 N.J. 54, 75 (2015)
(explaining the Legislature "is presumed to have been 'thoroughly conversant
with its own [prior] legislation and the judicial construction of its statutes'"
(quoting Nebesne v. Crocetti, 194 N.J. Super. 278, 281 (App. Div. 1984))).
In enacting N.J.S.A. 2C:40-26, the Legislature required imposition of a
minimum 180-day custodial sentence with a 180-day period of parole
ineligibility for those convicted of the offense. The Legislature mandated that
8 Although not presented in the context of challenges to the legality of split sentences that include imprisonment subject to parole ineligibility terms, we have affirmed the imposition of such split sentences imposed under N.J.S.A. 2C:43-2(b)(2). See, e.g., Pimentel, 461 N.J. Super. at 493 (affirming imposition of a one-year period of probation conditioned on imprisonment for "six months" in the county jail for a conviction under N.J.S.A. 2C:40-26); State v. Sylvester, 437 N.J. Super. 1, 2-3 (App. Div. 2014) (affirming a split sentence of a three-year probationary term conditioned on imprisonment for 180 days on a conviction for violating N.J.S.A. 2C:40-26(b)).
A-4473-18T3 19 minimum custodial sentence of imprisonment with full knowledge the plain
language of N.J.S.A. 2C:43-2(b)(2) authorized imposition of imprisonment as
a condition of probation. If the Legislature intended to exempt sentences of
imprisonment imposed under N.J.S.A. 2C:40-26(c) from those permitted by
N.J.S.A. 2C:43-2(b)(2) as a condition of probation, it would have done so
directly. Instead, the Legislature let the plain language of N.J.S.A. 2C:43-
2(b)(2) define the terms of imprisonment that may be imposed as a condition
of probation, and, as noted, a sentence that is less than 364 days that includes a
mandatory period of parole ineligibility imposed under N.J.S.A. 2C:40-26(c) is
therefore authorized and legal.
While we conclude the plain language of N.J.S.A. 2C:43-2(b)(2)
authorizes defendant's custodial sentences as a condition of his probation, we
also observe a probationary sentence conditioned on service of the mandatory
period of parole ineligibility is consistent with the Legislature's
"criminaliz[ation] [of] the act of driving while one's license is suspended for a
second or subsequent [DUI] conviction" as part of its "arsenal of deterrence."
State v. Rizzitello, 447 N.J. Super. 301, 315 (App. Div. 2016). Those
convicted of a violation of N.J.S.A. 2C:40-26(b) have previously had their
driver's licenses suspended on at least two occasions, yet they choose to
continue to operate motor vehicles at the risk of being convicted of a fourth-
A-4473-18T3 20 degree crime and sentenced to a minimum 180 days of imprisonment. Indeed,
here, defendant not only drove while on suspension in violation of N.J.S.A.
2C:40-26, he did so on one occasion while under the influence.
"This court has acknowledged the escalating penalties imposed by the
Legislature in an attempt to deter chronic drunk drivers," Pimentel, 461 N.J.
Super. at 488, and N.J.S.A. 2C:40-26 serves that purpose by imposing "a
mandatory period of 'imprisonment' for [the] offense," thereby protecting the
"public safety" by ensuring, at least during a defendant's term of
imprisonment, that he or she does not "continue[] to drive despite the license
suspension," Harris, 439 N.J. Super. at 160.
The need to deter a defendant who has a history of DUI or refusal
offenses from driving while suspended in violation of N.J.S.A. 2C:40-26 does
not end with a release after a 180-day minimum mandatory sentence. It is
wholly consistent with "the State's strong policy objective of deterring repeat
drunk driving offenders," Pimentel, 461 N.J. Super. at 488, to require
defendants who are convicted of violating N.J.S.A. 2C:40-26 to obtain the
benefit of probation supervision following release from imprisonment.
Probation supervision provides access to resources to address issues related to
alcohol and substance abuse, see N.J.S.A. 2C:45-1(b)(1) to (14), and provides
continuing deterrence because a violation of probation may result in a
A-4473-18T3 21 defendant's resentencing to a period of imprisonment. The Legislature's
decision to allow split sentences for those convicted of violating N.J.S.A.
2C:40-26 is therefore not only supported by the plain language of N.J.S.A.
2C:43-2(b)(2), it is also consistent with the policies underlying N.J.S.A.
2C:40-26.
In sum, the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes the split
sentences imposed by the court on defendant's convictions for violating
N.J.S.A. 2C:40-26(b). The court imposed a custodial term of a length—360
days—that qualifies as a term of imprisonment permitting imposition of a split
sentence, N.J.S.A. 2C:43-2(b)(2), and defendant fails to identify any other
statute within the Criminal Code that otherwise provides the term of
imprisonment for a split sentence may not include a mandatory period of
parole ineligibility. We therefore reject defendant's claim the split sentence is
unauthorized or illegal.
II.
Defendant next argues the court improperly imposed consecutive
custodial terms for his N.J.S.A. 2C:40-26(b) convictions without considering
the factors set forth in Yarbough. Defendant requests a remand for
resentencing because the court did not provide a separate statement of reasons
for imposing consecutive sentences and, he contends, consecutive sentences
A-4473-18T3 22 are not warranted. The State claims the consecutive sentences should be
affirmed because the Yarbough factors supporting imposition of consecutive
sentences are self-evident. The State, however, requests a remand for
correction of the judgment of conviction because the court stated at sentencing
the probationary terms would run consecutively, but the judgment of
conviction provides the terms shall be served concurrently.
As we have explained, we affirm the court's imposition of the mandatory
minimum 180-days terms of imprisonment as a condition of probation on each
of defendant's convictions for violating N.J.S.A. 2C:40-26. However, for two
reasons, we are constrained to vacate the consecutive sentences of
imprisonment and probationary terms, and remand for resentencing.
First, the Court in Yarbough established the factors a trial court must
consider in determining whether to impose consecutive sentences. 100 N.J. at
643-44. A court must "articulate [its] reasons" for imposing consecutive
sentences "with specific reference to the Yarbough factors." State v. Abdullah,
184 N.J. 497, 515 (2005). "'[A] statement of reasons is a necessary
prerequisite for adequate appellate review of sentencing decisions . . . [in order
to] determine whether the trial court's imposition of consecutive sentences was
a valid exercise of discretion.'" State v. Soto, 385 N.J. Super. 247, 256 (App.
Div. 2006) (quoting State v. Miller, 108 N.J. 112, 122 (1987)). Here, the
A-4473-18T3 23 court's imposition of consecutive sentences is untethered to any findings of the
Yarbough factors. See id. at 256 ("Failure to provide reasons for the
imposition of a consecutive sentence may compel a remand for
resentencing.").
Second, based on our review of the record, we cannot discern the precise
manner the court intended the probationary terms to run. We therefore reject
the State's claim a remand for an amendment of the judgment of conviction is
all that is required to address the court's imposition of the probationary terms
of defendant's split sentences. The judgment of conviction provides the
custodial portions of the split sentences shall be served consecutively and the
probationary terms shall be served concurrently. The Criminal Code, however,
"does not permit, for multiple offenses, sentences that are partially consecutive
and partially concurrent." State v. Rogers, 124 N.J. 113, 120 (1991).
On remand, the court shall address and make findings under Yarbough
supporting its determination whether to impose concurrent or consecutive
sentences for the mandatory terms of imprisonment for defendant's convictions
under N.J.S.A. 2C:40-26. In its determination concerning the imposition of
probationary terms for defendant's split sentences, the court shall: consider it
cannot impose sentences that are partially consecutive and partially
concurrent; precisely define when any probationary terms imposed shall begin
A-4473-18T3 24 and end; and address and make findings concerning the imposition of
sentences for multiple offenses under N.J.S.A. 2C:44-5(f).
Affirmed in part, vacated in part, and remanded for further proceedings
in accordance with this opinion. We do not retain jurisdiction.
A-4473-18T3 25