                        NOT FOR PUBLICATION WITHOUT THE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-2749-14T2


STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

JAMES W. BOLLINGER,
a/k/a JAMES BOLLINGER, JIM
BOLLINGER, JAMES W. J. BOLLINGER,
JAMES W. BOLLINGER, JR.,
JAMES M. BOLLINGER,

          Defendant-Appellant.
_______________________________________________

              Submitted June 28, 2016 – Decided August 31, 2017

              Before Judges Espinosa and Grall.

              On appeal from the Superior Court of New
              Jersey, Law Division, Cape May County,
              Indictment No. 13-10-0973.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Elizabeth C. Jarit, Assistant
              Deputy Public Defender, of counsel and on
              the briefs).

              Christopher S. Porrino, Acting Attorney
              General, attorney for respondent (Carol M.
              Henderson, Assistant Attorney General, of
              counsel and on the brief).
PER CURIAM

    Defendant James W. Bollinger pled guilty to driving during

a period of license suspension in violation of N.J.S.A. 39:3-40,

that was imposed for a second or subsequent violation of

N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4a.   The offense is a

fourth-degree crime, and it requires a sentence of imprisonment

with no fewer than 180 days' parole ineligibility.   N.J.S.A.

2C:40-26(b)-(c).   Defendant entered his plea on December 1,

2014, and was sentenced on January 13, 2015.   The judge

dismissed a count of the indictment charging defendant with the

crime defined in subsection (a) of N.J.S.A. 2C:40-26 and

sentenced him to eighteen months' imprisonment with 215 days'

parole ineligibility.   The judge also awarded 215 days' jail

credits and imposed the appropriate fines, penalties and

assessments.   N.J.S.A. 2C:43-33.1 to -33.3.

    On March 3, 2015, a panel of this court issued an opinion

resolving seven consolidated appeals that raised the question

whether a conviction for N.J.S.A. 2C:40-26(a)-(b) can be

established if "the act of driving occurs beyond the determinate

sentenced term of suspension" imposed for violating N.J.S.A.

39:4-50 or N.J.S.A. 39:4-50.4a, and "while the driver continues

on administrative suspension."   State v. Perry, 439 N.J. Super.

514, 519 (App. Div.), certif. denied, 222 N.J. 306 (2015).

                                 2                         A-2749-14T2
Writing for the panel, Judge Carmen H. Alvarez concluded, "the

statute criminalizes the operation of a motor vehicle only while

the operator is serving the court-imposed term of suspension,

and not thereafter."   Ibid.    The Supreme Court denied

certification on March 3, 2015.        Perry, supra, 222 N.J. at 306.

Understanding we are not bound by Perry and having considered

the State's well-reasoned arguments urging us to take a

different course, we see no reason to deviate from Perry.

    Perry requires a reversal of defendant's guilty plea,

because his factual basis plainly established that his charge

was based on his driving after the term of his license-

suspension for driving while under the influence expired but

before he took the necessary steps to restore his license.        It

is well-settled that a guilty plea requires defendant's

acknowledgement of "facts that constitute the essential elements

of the crime."   State v. Gregory, 220 N.J. 413, 420 (2015).        The

fact that the period of defendant's court ordered suspension had

expired was undisputed.

    Accordingly, we reverse and remand with direction to vacate

the conviction and fines.      Because we are reversing based on the

absence of a factual basis supporting the conviction, it is not

necessary to address the additional points the defendant raises.

Those points are:

                                   3                           A-2749-14T2
POINT I

BECAUSE N.J.S.A. 2C:40-26 DOES NOT APPLY TO
AN INDIVIDUAL WHO DRIVES AFTER HIS COURT-
ORDERED PERIOD OF LICENSE SUSPENSION FOR A
DWI OR REFUSAL OFFENSE HAS LAPSED,
BOLLINGER'S FACTUAL BASIS IS INADEQUATE,
REQUIRING REVERSAL.

    A. PERRY CORRECTLY HELD THAT THE
    PLAIN MEANING OF N.J.S.A. 2C:40-26
    CRIMINALIZES ONLY THE OPERATION OF
    A MOTOR VEHICLE DURING THE COURT-
    IMPOSED PERIOD OF LICENSE
    SUSPENSION.

    B. PERRY CORRECTLY HELD THAT THE
    LEGISLATIVE HISTORY REVEALS THAT
    THE PURPOSE OF THE STATUTE WAS TO
    SPECIFICALLY PUNISH REPETITIVE
    DRUNK DRIVERS WHO FLAUNT THE
    COURT-ORDERED SANCTIONS OF LICENSE
    SUSPENSION IMPOSED AS A RESULT OF
    A DWI OR BREATHALYZER-REFUSAL
    VIOLATION.

    C. PERRY CORRECTLY HELD THAT THE
    RULE OF LENITY REQUIRES THAT
    CRIMINAL STATUTES BE INTERPRETED
    IN THE DEFENDANT'S FAVOR IN ORDER
    TO SAVE THE STATUTE FROM BEING
    UNCONSTITUTIONALLY VAGUE.

    D. PERRY CORRECTLY HELD THAT STATE
    V. ZALTA IS INAPPLICABLE TO
    INTERPRETING N.J.S.A. 2C:40-26.

    E. IN ADDITION, LOOKING AT THE
    STATUTES IN PARI MATERIAL SUPPORTS
    THE PERRY COURT'S CONCLUSION THAT
    THE TERM "PERIOD" OF LICENSE
    SUSPENSION HAS BEEN INTERPRETED AS
    HAVING A DEFINITE LENGTH OF TIME
    WITH LIMITS DEFINED BY A COURT.


                     4                        A-2749-14T2
         F. AN INTERPRETATION OF THE
         STATUTE CRIMINALIZING DRIVING
         UNTIL ONE'S LICENSE HAS BEEN
         ADMINISTRATIVELY RESTORED VIOLATES
         THE CONSTITUTIONAL DOCTRINE OF
         EQUAL PROTECTION.

         G.PURSUANT TO PERRY, BOLLINGER'S
         FACTUAL BASIS DOES NOT SET FORTH A
         CRIME UNDER N.J.S.A. 2C:40-26,
         REQUIRING REVERSAL OF HIS
         CONVICTIONS.

    POINT II

    THE TRIAL COURT COMMITTED NUMEROUS ERRORS AT
    SENTENCING AND IMPOSED AN EXCESSIVE
    SENTENCE, REQUIRING REVERSAL.

         A. THE TRIAL COURT IMPROPERLY
         FOUND AGGRAVATING FACTOR THREE
         BASED ON THE DEFENDANT'S
         ADDICTION.

         B. THE TRIAL COURT FAILED TO
         PROVIDE A STATEMENT OF REASONS FOR
         AGGRAVATING FACTOR NINE.

         C. IMPOSITION OF THE MAXIMUM
         SENTENCE WAS EXCESSIVE, AS THE
         COURT FOUND TWO MITIGATING
         FACTORS, AND FOUND ONLY
         AGGRAVATING FACTORS, THREE, SIX,
         AND NINE.

         D. BECAUSE THE COURT WAS UNDER THE
         MISTAKEN IMPRESSION THAT BOLLINGER
         WOULD BE ELIGIBLE FOR PAROLE
         IMMEDIATELY, A REMAND IS REQUIRED
         FOR RESENTENCING.

Reversed and remanded.




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