                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4963-13T1

STATE OF NEW JERSEY,

     Plaintiff-Appellant,            APPROVED FOR PUBLICATION

                                         August 25, 2014
v.
                                        APPELLATE DIVISION
JAMES W. FRENCH, a/k/a
JAMES WILLIAMS FRENCH,

     Defendant-Respondent.

————————————————————————————————————————————————————————————————

         Argued August 13, 2014 – Decided August 25, 2014

         Before Judges Fuentes, Messano and Koblitz.

         On appeal from Superior Court of New Jersey,
         Law Division, Warren County, Accusation No.
         14-04-00115.

         Kelly Anne Shelton, Assistant Prosecutor,
         argued the cause for appellant (Richard T.
         Burke, Warren County Prosecutor, attorney;
         Ms. Shelton, of counsel and on the brief).

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

         Carol   M.  Henderson,   Assistant  Attorney
         General, argued the cause for amicus curiae
         State of New Jersey (John J. Hoffman, Acting
         Attorney General, attorney; Ms. Henderson,
         of counsel and on the brief).
    The opinion of the court was delivered by

KOBLITZ, J.A.D.

    The     State    appeals     from   what    it     views        as     the   illegal

sentence of ninety days in jail followed by ninety days in an

inpatient drug rehabilitation program imposed for the fourth-

degree crime of operating a motor vehicle during a period of

license   suspension       for   multiple    convictions       of        driving    while

intoxicated (DWI).          N.J.S.A. 2C:40-26(b).             Defendant James W.

French    argues    that    an   inpatient     drug    program           satisfies     the

statute   because     the   program     is   custodial        in    nature       and   the

legislative    scheme       is   intended      to     foster       substance        abuse

rehabilitation as well as punishment.                The State argues that the

statutory sentencing framework of Title 2C requires a mandatory

180-day    sentence    in    jail     without       parole,        which    cannot      be

satisfied by service in an inpatient rehabilitation program.                             We

agree with the State that the sentence is illegal and, therefore,

reverse and remand for resentencing.

    Defendant pled guilty to an accusation charging the crime

of driving while his license was suspended after multiple drunk

driving convictions at the same time that he pled guilty to




                                        2                                        A-4963-13T1
driving while intoxicated, N.J.S.A. 39:4-50.1                              We discern from

the    record   that    defendant        has       a   total     of   nine    prior      drunk-

driving      convictions,      six    in     New       Jersey     and      three    in   South

Carolina.       He    has   five     prior         convictions        in   New     Jersey   for

driving during a period of license suspension.                               Pursuant to a

plea    agreement,      the     State       agreed          to   recommend         concurrent

sentencing with 180 days of incarceration and no probation.                                 The

judge sentenced defendant to concurrent 180-day terms, ordering

that    he    could    serve       the     final       90      days     in   an     inpatient

rehabilitation program.            She ordered that if he was not admitted

to a program or did not complete the program, which had to be at

least 90 days long, he would have to serve the full 180 days in

jail.     The judge also imposed an additional ten-year license

suspension as well as the other mandatory penalties.                               We granted

the State's application for an emergent appeal.

       An illegal sentence may be corrected at any time before it

is completed.         R. 2:10-3; State v. Schubert, 212 N.J. 295, 309-

10 (2012).      Parties may not negotiate an illegal sentence, State

v. Smith, 372 N.J. Super. 539, 542 (App. Div. 2004), certif.

denied, 182 N.J. 428 (2005), and a defendant may not accept one




1
  He also pled guilty to driving with a broken brake light,
N.J.S.A. 39:3-66.   He was stopped for erratic driving and the
faulty driver's-side brake light.



                                               3                                      A-4963-13T1
as part of a plea agreement, State v. Nemeth, 214 N.J. Super.

324, 327 (App. Div. 1986).

    In 2009 the Legislature passed a statute, effective August

2011,2 that criminalized the offense of driving with a suspended

license   that   had   been   suspended   after   more   than   one   DWI

conviction.   N.J.S.A. 2C:40-26 provides in pertinent part:

          b. It shall be a crime of the fourth degree
          to operate a motor vehicle during the period
          of license suspension . . . if the actor's
          license was suspended or revoked for a
          second or subsequent violation of [DWI] or
          [refusal to submit to a chemical test for
          intoxication].   A person convicted of an
          offense under this subsection shall be
          sentenced by the court to a term of
          imprisonment.

          c. Notwithstanding the term of imprisonment
          provided under N.J.S.A. 2C:43-6 [providing
          for a maximum custodial sentence of eighteen
          months] and the provisions of subsection e.
          of N.J.S.A. 2C:44-1 [the presumption of non-
          imprisonment for a first offender convicted
          of a fourth-degree crime], if a person is
          convicted of a crime under this section the
          sentence imposed shall include a fixed
          minimum sentence of not less than 180 days
          during which the defendant shall not be
          eligible for parole.

Defendant pled guilty to a violation of N.J.S.A. 2C:40-26(b).

Although defendant happened to be driving drunk when he was


2
  The effective date of the statute was delayed eighteen months
to give the Motor Vehicle Commission an opportunity to "take any
anticipatory administrative action prior to the effective date
necessary for its timely implementation." L. 2009, c. 333, §2.



                                   4                            A-4963-13T1
arrested, intoxication is not an element of this fourth-degree

crime.

      N.J.S.A. 2C:40-26(c) requires the imposition of a mandatory

minimum period of incarceration of 180 days during which the

defendant is not subject to parole.                  "In making such conduct a

fourth-degree crime, the Legislature stiffened the sanction for

driving with a license suspended or revoked due to multiple

prior DWI or refusal convictions."                 State v. Carrigan, 428 N.J.

Super.    609,    613    (App.    Div.),        certif.   denied,    213    N.J.    539

(2013).     Because the Legislature placed this offense within the

criminal code, upgrading a motor vehicle violation to a crime,

we must review the sentence imposed pursuant to the provisions

of Title 2C and not those of Title 39, which governs motor

vehicle offenses.

      Title 39 permits the judge in a third or subsequent DWI

sentence to suspend the last half of the required 180-day term

of   imprisonment       to    allow   the   defendant     to    enter   a   "drug   or

alcohol   inpatient          rehabilitation       program[.]"       N.J.S.A.    39:4-

50(a)(3).        The prior Title 39 sanctions for driving during a

period    of   license       suspension     after    multiple     DWI   convictions

included a mandatory jail term of between ten and ninety days.

N.J.S.A. 39:3-40(f)(2).            No suspension of the jail sentence to




                                            5                                A-4963-13T1
enter a program was permitted for this offense even under Title

39.

      We have stated when disapproving the use of commutation

credits to reduce a thirty-year mandatory minimum sentence for a

murder conviction that "[t]he use of the term 'not eligible for

parole'    in     a        sentencing       statute    unquestionably      denotes     a

mandatory minimum sentence."                 Merola v. Dep't of Corr., 285 N.J.

Super. 501, 507 (App. Div. 1995), certif. denied, 143 N.J. 519

(1996).    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. Lopez, 395 N.J. Super. 98, 107-08 (App. Div.)

(reversing the sentence of a defendant who received a kidnapping

sentence    of    seven           years'    imprisonment       with   an   eighty-five

percent parole disqualifier, less than the statutorily required

twenty-five year term without the possibility of parole, because

"when the Legislature has enacted a mandatory minimum term for

the commission of a crime, the 'courts have no power' to impose

a   sentence     that,       in    length    or   form,   is   different    from   that

plainly provided in the statute" (citing State v. Des Marets, 92

N.J. 62, 64-65 (1983)), certif. denied, 192 N.J. 596 (2007).                          In

Des Marets, Chief Justice Wilentz opined:

            We do not pass on the wisdom of this
            legislation's mandatory . . . imprisonment



                                              6                               A-4963-13T1
             term or the wisdom of its imposition on the
             offenses covered.     That is a matter solely
             for the Legislature to decide.         Once the
             Legislature has made that decision, and has
             made it within constitutional bounds, our
             sole function is to carry it out.         Judges
             have no business imposing their views of
             "enlightened"     sentencing     on     society,
             including     notions     of     discretionary,
             individualized      treatment,      when     the
             Legislature   has    so   clearly    opted   for
             mandatory prison terms for all offenders.
             It may be that the Legislature is more
             enlightened than the judges.          Our clear
             obligation is to give full effect to the
             legislative intent, whether we agree or not.

             [Des Marets, supra, 92 N.J.                        at     65-66
             (footnote and citation omitted).]

      Defendant argues that State v. Kyc, 261 N.J. Super. 104

(App.      Div.   1992),    certif.       denied,       133     N.J.     436     (1993),

inferentially permits a judge to sentence a defendant to an

inpatient     rehabilitation          program    in   lieu    of      jail.    In     Kyc,

however, we held only that a defendant who absconded from a

"Pre-Parole Home Confinement Program" was still in the custody

of the Department of Corrections and could therefore be charged

with the crime of escape, N.J.S.A. 2C:29-5(a).                        Id. at 106-110.

We   did    not   hold   that     a   judge     may   impose     a    sentence      of   an

inpatient     program      when       mandatory       minimum        incarceration       is

statutorily required.

      We must interpret a statute based on its plain meaning.

State v. Drury, 190 N.J. 197, 209 (2007).                     When the Legislature




                                           7                                     A-4963-13T1
intends   an    exception     to   a     mandatory     minimum        sentence     for    a

fourth-degree crime, specific language allows the judge to waive

the parole disqualifier under the circumstances set forth in the

exception.        See     N.J.S.A.       2C:43-6.5(c)        (granting       the    court

discretion      under    certain     limited       circumstances        to    waive      or

reduce    the    mandatory     minimum         term    for     a   public      employee

convicted of certain crimes, including fourth-degree crimes for

which a one-year mandatory minimum would ordinarily apply); see

also N.J.S.A. 2C:35-14(b)(3) (permitting a sentence of "special

probation" for persons convicted pursuant to N.J.S.A. 2C:35-7,

of distribution or possession with intent to distribute drugs in

a school zone, who would otherwise be subject to a mandatory

minimum period of incarceration).

    N.J.S.A. 2C:40-26(b) is not the only fourth-degree crime

that requires, without exception, a mandatory minimum period of

incarceration.          Fourth-degree      reckless        endangerment,       N.J.S.A.

2C:12-2(b)(2), requires a mandatory minimum term of imprisonment

of not less than six months when the offense is committed by

surreptitiously         inducing     a    person      to     ingest     poisonous        or

intoxicating food or drink.

    Defendant was sentenced to an illegal sentence in two ways.

First, and most significantly, no discretion exists in Title 2C

to replace half of the mandatory 180 days of incarceration with




                                           8                                     A-4963-13T1
a non-jail rehabilitation program.    Second, a sentence to an

inpatient rehabilitative program is not authorized by Title 2C

except as a condition of probation.   N.J.S.A. 2C:45-1(b)(1)-(14)

(listing the conditions of probation a judge may require of a

defendant).

    Reversed and remanded for resentencing.     We do not retain

jurisdiction.




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