                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION


                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3629-15T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,             APPROVED FOR PUBLICATION

                                            November 29, 2017
v.
                                            APPELLATE DIVISION
LEON FAISON,

     Defendant-Appellant.
——————————————————————————————

         Submitted October 17, 2017 – Decided November 29, 2017

         Before Judges Reisner, Hoffman and Gilson.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Indictment No.
         13-11-2820.

         Fusco & Macaluso Partners, LLC, attorneys
         for appellant (Amie E. DiCola, on the
         brief).

         Robert D. Laurino, Acting Essex County
         Prosecutor, attorney for respondent (Stephen
         A.    Pogany,   Special    Deputy   Attorney
         General/Acting Assistant Prosecutor, on the
         brief).

     The opinion of the court was delivered by

HOFFMAN, J.A.D.

     Defendant    Leon   Faison   appeals     from   a   March    18,   2016

judgment of conviction for operating a motor vehicle while his

license was suspended for a second or subsequent driving while
intoxicated       (DWI)    conviction,    N.J.S.A.       2C:40-26(b).       He   also

appeals from a June 19, 2015 order denying his motion to dismiss

the indictment.           For the reasons that follow, we reverse and

remand for further proceedings consistent with this opinion.

                                          I

      In 2010, police charged defendant with DWI on two separate

dates, September 26 and October 16, both times in Bloomfield

Township.     Defendant retained the services of an attorney who

failed to appear in court multiple times.                 This attorney filed a

motion to withdraw as counsel on May 11, 2011; however, on May

24,   2011,   when    defendant    appeared         to   enter   a   plea   to   each

charge,     the    court     instructed       the   withdrawing      attorney1     to

represent defendant, against the wishes of both defendant and

the attorney.        According to defendant, the attorney advised him

to plead guilty to both DWI charges and he reluctantly complied.

Accordingly, the municipal court suspended defendant's license

for two years on the second conviction.

      On August 25, 2012, police charged defendant with DWI and

driving with a suspended license.               Regarding the same incident,

a grand jury indicted defendant in November 2013, charging him


1
  It appears the withdrawing attorney was in the courtroom for
another case; in light of his pending motion to withdraw, it
further appears he was not prepared to represent defendant on
either charge.



                                          2                                 A-3629-15T4
with fourth-degree driving during a period of license suspension

for a second or subsequent DWI conviction, N.J.S.A. 2C:40-26(b).

      On April 3, 2014, defendant filed a petition for post-

conviction relief (PCR) for the two DWI convictions entered on

May   24,   2011.      Ultimately,         on    November   14,    2014,    the     Law

Division    vacated    both        DWI   convictions      after    the    Bloomfield

Municipal Court could not produce a transcript of the May 24,

2011 proceedings, "due to technical errors," and an attempt to

recreate     the    record    proved       unsuccessful.          The    same     order

remanded both charges to the municipal court for trial.

      On February 3, 2015, defendant appeared in municipal court

for trial on the remanded charges.                    After the court dismissed

the September 26, 2010 DWI charge, defendant entered a guilty

plea to the October 16, 2010 DWI charge.

      Thereafter,      defendant         filed    a    motion     to    dismiss     the

indictment    charging       him    with   violating      N.J.S.A.      2C:40-26(b).

After the Law Division denied his motion, defendant stipulated

to a bench trial and the judge found him guilty as charged.

Pursuant to N.J.S.A. 2C:40-26(c), the judge sentenced defendant

to the mandatory minimum 180 days in the county jail, but stayed

his sentence pending this appeal.

      Defendant presents the following argument in support of his

appeal:




                                           3                                A-3629-15T4
              THE COURT SHOULD REVERSE MR. FAISON'S FINAL
              JUDGMENT OF CONVICTION, AND FURTHER REVERSE
              THE DENIAL OF MR. FAISON'S MOTION TO DISMISS
              OR REMAND, AS THE HOLDING OF STATE V.
              SYLVESTER IS INAPPLICABLE TO THE MATTER AT
              HAND   AS    THAT   HOLDING    DICTATES   AN
              UNCONSTITUTIONAL AND UNJUST RESULT WHEN
              APPLIED TO THE FACTS OF THIS MATTER.

                                        II

       "A trial court . . . should not disturb an indictment if

there is some evidence establishing each element of the crime to

make out a prima facie case."           State v. Morrison, 188 N.J. 2, 12

(2006).       However,    the   absence      of   evidence      to    establish     an

element of the charged offense renders an indictment "'palpably

defective' and subject to dismissal."                   Ibid. (citing State v.

Hogan, 144 N.J. 216, 228-29, (1996)).               "[O]ur review of a trial

judge's legal interpretations is de novo."                 State v. Eldakroury,

439 N.J. Super. 304, 309 (App. Div.) (citing State v. Grate, 220

N.J.   317,    329-30    (2015);     State   v.   Drury,    190      N.J.   197,   209

(2007)), certif. denied, 222 N.J. 16 (2015).

       The    sole      issue   on     appeal      is     the     trial      court's

interpretation of the applicable provisions of N.J.S.A. 2C:40-

26, which state:

                b. It shall be a crime of the fourth
              degree to operate a motor vehicle during the
              period of license suspension in violation of
              [N.J.S.A. 39:3-40], if the actor's license
              was suspended or revoked for a second or
              subsequent violation of [N.J.S.A. 39:4-50 or
              N.J.S.A. 39:4-50.4(a)]. A person convicted



                                         4                                   A-3629-15T4
              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] and the provisions of subsection e. of
              [N.J.S.A. 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.

      The Law Division judge relied on State v. Sylvester, 437

N.J. Super. 1 (App. Div. 2014), in finding defendant guilty of

driving     while    his   license    was       suspended     for     a    second      or

subsequent DWI conviction.             However, we         hold the case under

review distinguishable from Sylvester.               We therefore reverse and

remand for further proceedings.

      In      Sylvester,    the      defendant       had      three       prior       DWI

convictions.        Id. at 3.     Upon her third DWI conviction in 2011,

the   court    suspended    the    defendant's      license        for    two    years. 2

Ibid.       In    2012,    while     the       defendant's     license          remained

suspended, she operated a motor vehicle and was indicted for

violating      N.J.S.A.    2C:40-26(b).          Ibid.       The    defendant       then

successfully filed for PCR regarding her 2011 DWI conviction,


2
  Because defendant's second DWI conviction occurred more than
ten years before her third conviction, the court treated the
third conviction as a second conviction for sentencing purposes.
See N.J.S.A. 39:4-50(a)(3).



                                           5                                    A-3629-15T4
and the court vacated that conviction.                   Ibid.      However, before

the defendant went to trial on the N.J.S.A. 2C:40-26(b) charge,

she again plead guilty to the 2011 DWI charge, and the court

once again suspended her license for two years.                     Ibid.

      At her trial, the defendant argued she was not guilty of

violating N.J.S.A. 2C:40-26(b), asserting her license was not

validly suspended at the time of the alleged offense because the

conviction was subsequently vacated.                 Id. at 4.      The trial court

rejected    this     argument      and   reasoned       that   on    the     date   the

defendant drove, her license was suspended and she was aware of

the   suspension.          Ibid.         The    court    therefore         denied   the

defendant's       motion   to   dismiss        the   indictment      and    found   her

guilty of violating N.J.S.A. 2C:40-26(b), and we affirmed.                          Id.

at 7-8.

      The facts here are distinguishable from Sylvester because,

by the time of defendant's trial on the N.J.S.A. 2C:40-26(b)

charge, he had only one prior DWI conviction.                       Here, defendant

initially plead guilty to two DWI charges.                          Like    Sylvester,

defendant obtained PCR, vacating his DWI convictions.                         However,

unlike Sylvester, defendant was not re-convicted of both DWI

charges; the court dismissed one and he plead guilty to the

other.      Therefore,     at   the      time    the    Law    Division      convicted

defendant    of    violating    N.J.S.A.        2C:40-26(b),        his    second   DWI




                                          6                                   A-3629-15T4
conviction had been vacated.            Accordingly, the State could not

prove an element of the crime charged — a second DWI conviction

— a prerequisite to the mandatory 180-day incarceration period

imposed by N.J.S.A. 2C:40-26(b) and (c).

     Our holding is consistent with State v. Laurick, 120 N.J.

1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d

413 (1990), where our Supreme Court held "a prior uncounseled

DWI conviction may establish repeat-offender status for purposes

of the enhanced penalty provisions of the DWI laws"; however, "a

defendant may not suffer an increased period of incarceration as

a result of . . . an uncounseled DWI conviction."                   The court

provided guidance for future cases, stating that unless the lack

of counsel results in a "miscarriage of justice," the court

should not grant relief.         Id. at 10.

     Here,    we   conclude      that   convicting    defendant    of   driving

while suspended for a second or subsequent DWI conviction when

he   only    has   one   prior    DWI    conviction    would   constitute        a

miscarriage of justice.           Furthermore, 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."                   See Laurick,

supra, 120 N.J. at 16.        Although counsel technically represented

defendant, the representation was allegedly ineffective, and the




                                        7                               A-3629-15T4
Law Division later vacated both convictions and the municipal

court then dismissed one of the two prior DWI charges.

    Although we concluded, under the facts of Sylvester, that

Laurick applied only to N.J.S.A. 39:3-40 and did not extend to

N.J.S.A. 2C:40-26, Sylvester, supra, 437 N.J. Super. at 7, we

find the facts under review markedly different.                         Here, defendant

initially entered guilty pleas to both DWI charges.                              However,

the Law Division vacated those pleas and the municipal court

dismissed     one    of    the     charges,        resulting       in    only    one     DWI

conviction at the time the Law Division found him guilty of

driving      while   suspended       for       a    second     or       subsequent       DWI

conviction.     By contrast, in Sylvester, the defendant re-entered

her guilty plea to the DWI charge at a later date.                              Id. at 3.

As a result, she had the same number of prior DWI convictions at

the time the court found her guilty of violating N.J.S.A. 2C:40-

26(b) as she had on the date of her offense.                            Because one of

defendant's two prior DWI convictions was vacated and not later

reinstated, we reverse defendant's conviction for driving while

suspended     for    a    second    or   subsequent          DWI    conviction         under

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

    We note the Law Division also found defendant guilty of the

lesser charge of driving while suspended under N.J.S.A. 39:3-40.

While   we    have   not   been     provided       with   defendant's           sentencing




                                           8                                      A-3629-15T4
transcript,   we   assume   the   judge   merged   the   N.J.S.A.   39:3-40

conviction into the N.J.S.A. 2C:40-26(b) conviction.                 Before

us, defendant concedes "he should be made subject to [N.J.S.A.

39:3-40] given the dismissal of his previous DWI and the State's

inability to prove every element of N.J.S.A. 2C:40-26(b)."                 We

agree and therefore remand for the Law Division to sentence

defendant on the N.J.S.A. 39:3-40 conviction.

    Reversed and remanded.        We do not retain jurisdiction.




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