                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0861-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL A. KONECNY,

     Defendant-Appellant.
____________________________

                   Argued December 12, 2019 – Decided August 20, 2020

                   Before Judges Alverez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 17-07-
                   0941, Accusation Nos. 18-04-0504 and 18-04-0505.

                   Albert P. Mollo argued the cause for appellant.

                   Maura Kathryn Tully, Assistant Prosecutor, argued the
                   cause for respondent (Christopher J. Gramiccioni,
                   Monmouth County Prosecutor, attorney; Maura
                   Kathryn Tully, of counsel and on the brief).

PER CURIAM
      Defendant Michael Konecny appeals his October 23, 2018 sentence for

fourth-degree operating a motor vehicle during a period of license suspension,

N.J.S.A. 2C:40-26(b). He contends based on State v. Laurick, 120 N.J. 1

(1990)1, the 180-day custodial portion of the sentence is improper.

                                     I.

      In 1986 and 1999, defendant was convicted of driving while under the

influence, N.J.S.A. 39:4-50. He was convicted in 2016 of refusing to submit to

testing, N.J.S.A. 39:4-50.4a, and his driver's license was suspended for two

years. While his license was suspended, he was stopped three separate times for

driving with a suspended license. These included an April 6, 2017 stop in

Allenhurst, an April 25, 2017 stop in Keansburg, and another stop in Keansburg

on March 20, 2018. On April 16, 2018, defendant pleaded guilty to three charges

of operating a motor vehicle during a period of license suspension, N.J.S.A.

2C:40-26(b). For each offense, defendant acknowledged that at the time he

operated his vehicle, he knew his license was suspended.

      Defendant filed petitions for post-conviction relief (PCR) regarding the

1999 DWI and 2016 refusal conviction alleging ineffective assistance of


1
 An uncounseled prior driving while under the influence (DWI) conviction may
not be used to increase a defendant's custodial term for a second or subsequent
DWI. Laurick, 120 N.J. at 17.
                                                                       A-0861-18T3
                                          2
counsel, and seeking relief under Laurick. He did not seek PCR relief for the

1986 DWI conviction.

        In July 2018—after pleading guilty to operating a motor vehicle while

suspended, but prior to sentencing—he was granted PCR relief for the 1999 DWI

and the 2016 refusal. 2 Both orders provided the "conviction may not be used to

enhance any subsequent conviction of N.J.S.A 39:3-40 or N.J.S.A. 2C:40-26

pursuant to [Laurick]."

        On October 23, 2018, defendant was sentenced on the driving while

suspended offenses to concurrent terms of two years' probation and 180 days in

jail in the Monmouth County Correctional Institution (MCCI) with 180 days of

parole ineligibility on each offense, plus appropriate fines and penalties. Other

motor vehicle charges stemming from these offenses were dismissed.

        The trial judge rejected defendant's request that he apply Laurick on the

N.J.S.A. 2C:40-26(b) charges. He found Laurick was "inapplicable" because

"there is a distinction between an enhanced sentence under [a] Title 39 offense

such as a 39:4-50 or a 39:3-40 as opposed to a mandatory minimum sentence

under 2C:40-26." N.J.S.A. 2C:40-26 was a "mandatory minimum sentence,"

and not an "enhanced sentence." The court provided defendant the opportunity


2
    Transcripts of those proceedings were not provided to us.
                                                                         A-0861-18T3
                                        3
"to request to vacate the plea agreement so that he could go back to municipal

court and attempt to vacate the prior convictions" but defendant declined to do

so, seeking only relief related to Laurick.

      The trial court denied a stay of the custodial sentence and bail, but we

granted an emergent stay of the jail sentence on October 26, 2018, remanding

the case for the limited purpose of setting the conditions of bail pending appeal .

      On appeal, defendant raises these issues:

            SENTENCING APPELLANT TO IMPRISONMENT
            OF 180 DAYS UNDER N.J.S.A. 2C:40-26 WOULD
            BRING ABOUT AN INCREASED PERIOD OF
            INCARCERATION AS A RESULT OF AN
            UNCOUNSELED DWI CONVICTION

            1. The Meaning of State v. Laurick

            2. The Appellate Division Has Extended Laurick Relief
            to N.J.S.A. 2C:40-26

                   a. State v. Faison

                   b. Distinguishing State v. Sylvester

                                        II.

      We review a judge's sentencing decision under an abuse of discretion

standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We give deference "to the

factual findings of the trial court so long as those findings are supported by

sufficient evidence in the record." State v. Zalcberg, 232 N.J. 335, 344 (2018)

                                                                           A-0861-18T3
                                              4
(quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). However, our review of

"purely legal conclusions" is plenary. State v. Goodman, 415 N.J. Super. 210,

225 (App. Div. 2010). That said, "the judiciary has no power . . . to mete out a

punishment in excess of that prescribed by the Legislature, or to lessen or reduce

a sentence where the Legislature has provided a mandatory penalty." State v.

Bausch, 83 N.J. 425, 433 (1980) (citations omitted).       This is a legal issue

requiring our de novo review.

      On April 16, 2018, defendant pleaded guilty to three separate violations

of driving during a period of suspension under N.J.S.A. 2C:40-26(b). The

statute provides:

            b. It shall be a crime of the fourth degree to operate a
            motor vehicle during the period of license suspension
            in violation of R.S.39:3-40, if the actor's license was
            suspended or revoked for a second or subsequent
            violation of R.S.39:4-50 or section 2 of P.L.1981, c.
            512 (C.39:4-50.4a). A person convicted of an offense
            under this subsection shall be sentenced by the court to
            a term of imprisonment.

            [N.J.S.A. 2C:40-26(b).]


There is no question this statute applied. Defendant was operating a motor

vehicle while his license was suspended. And, the suspension was for a "second




                                                                          A-0861-18T3
                                        5
or subsequent violation" of N.J.S.A. 39:4-50 (DWI) or N.J.S.A. 39:4-50.4a

(refusal).

       A person convicted under N.J.S.A. 2C:40-26 is subject to a minimum

period of incarceration. The statute provides:

             c. Notwithstanding the term of imprisonment provided
             under N.J.S.2C:43-6 and the provisions of subsection e.
             of N.J.S.2C:44-1, 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.

             [N.J.S.A. 2C:40-26(c).]

Subsection c applies whether the conviction is under subsection a3 of the statute,

which does not require a second violation of the DWI statute, or subsection b,



3
    N.J.S.A. 2C:40-26(a) provides:

             a. It shall be a crime of the fourth degree to operate a
             motor vehicle during the period of license suspension
             in violation of R.S.39:3-40, if the actor's license was
             suspended or revoked for a first violation of R.S.39:4-
             50 or section 2 of P.L.1981, c. 512 (C.39:4-50.4a) and
             the actor had previously been convicted of violating
             R.S.39:3-40 while under suspension for that first
             offense. A person convicted of an offense under this
             subsection shall be sentenced by the court to a term of
             imprisonment.



                                                                          A-0861-18T3
                                        6
which does require a second or subsequent violation.              The period of

incarceration is not enhanced because of the second DWI conviction; it is the

same minimum period under subsection a or b of the statute.

      While defendant challenges his sentence to a 180-day custodial term, he

does not appeal his underlying convictions for violating N.J.S.A. 2C:40 -26(b).

We do not agree with defendant that Laurick applies in this context. "The only

constitutional limit [on enhanced penalties] is that a defendant may not suffer

an increased period of incarceration as a result of a Rodriquez4 violation that led

to an uncounseled DWI conviction." Laurick, 120 N.J. at 17. However, there

was "no constitutional impediment to the use of the prior uncounseled DWI

conviction to establish repeat-offender status under DWI laws."          Id. at 4.

Laurick is a DWI case; it did not involve a conviction under N.J.S.A. 2C:40-26

for operating while suspended.

      Defendant's argument here is that since his DWI convictions were

uncounseled, they cannot be used in any context involving a loss of liberty.

However, the Court expressly observed in Laurick that "[t]he significance of the

ruling lies in the progressively enhanced penalties that second and third



4
  Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) (providing for a right to
counsel when a defendant is exposed to a "consequence of magnitude").
                                                                           A-0861-18T3
                                        7
offenders receive under our drunk driving laws[,]" citing to N.J.S.A. 39:4-50.

Laurick, 120 N.J. at 5. There is no indication the case included statutes such as

N.J.S.A. 2C:40-26 that required a minimum sentence. In fact, N.J.S.A. 2C:40-

26 was not effective until 2009. See L. 200, c. 333, § 1. There is no basis for

expanding the scope of Laurick to a conviction under N.J.S.A. 2C:40-26(b).

      Defendant's reliance on State v. Faison is misplaced. 452 N.J. Super. 390

(App. Div. 2017). In Faison, the defendant pleaded guilty to two DWIs but both

were vacated following PCR petitions. Id. at 392. Defendant then was re-

convicted of only one DWI. Ibid. The court further found the State could not

prove a violation of N.J.S.A. 2C:40-26(b) because the defendant only had one

DWI conviction, not the required two or more. Id. at 394. The court found a

conviction under N.J.S.A. 2C:40-26(b) would constitute a "miscarriage of

justice[,]" adding that "sentencing defendant to the minimum imprisonment of

180 days under N.J.S.A. 2C:40-26(c) would bring about 'an increased period of

incarceration as a result of . . . an uncounseled DWI conviction.'" Id. at 395

(alteration in original) (quoting Laurick, 120 N.J. at 16).

      This case differs from Faison. Defendant's convictions for DWI were not

vacated by the PCR orders. These multiple DWI convictions supported his

conviction under N.J.S.A. 2C:40-26(b). Faison's statement about sentencing the


                                                                         A-0861-18T3
                                        8
defendant to an increased period of incarceration was a reference to

incarceration when the statutory elements were not present.

      In State v. Sylvester, 437 N.J. Super. 1, 3 (App. Div. 2014), the defendant

had three DWI convictions and based on the 2011 conviction, her license was

suspended for two years. The 2011 DWI was vacated based on a PCR petition.

Ibid. However, she pleaded guilty to the 2011 DWI once again and her license

was suspended. Ibid. She was indicted in 2012 under N.J.S.A. 2C:40-26(b) for

operating a motor vehicle while suspended. Ibid. We rejected as "without

merit" the argument that her conviction was "voided . . . ab initio, thus

precluding the State from relying on this conviction to meet its burden of proof

. . . ." Id. at 6. When she was arrested, she had to know her license was

suspended.    Ibid.   We also rejected her argument that Laurick applied,

concluding "[t]he Court's remedy in Laurick applied only to the custodial term

required for repeat offenders in a DWI conviction under N.J.S.A. 39:4-50." Id.

at 7. It was inapplicable in Sylvester because there the defendant "was convicted

of . . . violating N.J.S.A. 2C:40-26b." Ibid. There was no basis to dismiss the

indictment because she had at least two DWIs.

      This defendant's driver's license was suspended for two years based on his

conviction in 2016 for refusing to take a breathalyzer test. See N.J.S.A. 39:4-


                                                                         A-0861-18T3
                                       9
50.4a. This was his third DWI related conviction. His license was suspended

when he was stopped on April 6, 2017, in Allenhurst, on April 25, 2017, in

Keansburg and on March 20, 2018, again in Keansburg. All the elements of the

statute were satisfied.   Defendant was, therefore, properly convicted under

N.J.S.A. 2C:40-26(b), and the mandatory period of incarceration applies.

      In light of our decision, we vacate the October 26, 2018 order staying the

mandatory custodial term ordered by the trial court. Defendant must report

within ten days from the date of this opinion to serve his sentence.

      Affirmed.




                                                                        A-0861-18T3
                                      10
