                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3591-12T1
                                              A-4003-12T1
                                              A-5957-12T1
                                              A-6112-12T1
                                              A-0162-13T1
                                              A-1523-13T1
STATE OF NEW JERSEY,

         Plaintiff-Appellant,
                                         APPROVED FOR PUBLICATION
v.
                                            February 4, 2015
JOHN D. HARRIS, III, a/k/a                 APPELLATE DIVISION
JOHN DANIEL HARRIS,

          Defendant-Respondent.
______________________________________

STATE OF NEW JERSEY,

         Plaintiff-Appellant,

v.

SABRINA KING, a/k/a SABRINA J. KING,
CARTER KING SABRINA, KING SABRINA,
CARTER SABRINA, CARTER SABRINA J.,

          Defendant-Respondent.
_______________________________________

STATE OF NEW JERSEY,

         Plaintiff-Appellant,

v.

ROBERT M. KACZAK,

          Defendant-Respondent.
_______________________________________
STATE OF NEW JERSEY,

         Plaintiff-Appellant,

v.

KRISTIN L. MITCHELL, a/k/a
KRISTIN GOTWALD,

          Defendant-Respondent.
_______________________________________

STATE OF NEW JERSEY,

         Plaintiff-Appellant,

v.

WILLIAM HANGSTORFER, a/k/a
HANK T. HANGSTORFER, WILLIAM T.
HANGSTORFER, WILLIAM T. HANGSTORFER,

          Defendant-Respondent.
________________________________________

STATE OF NEW JERSEY,

         Plaintiff-Appellant,

v.

MANDI FILER,

          Defendant-Respondent.
________________________________________

         Submitted January 27, 2015 – Decided February 4, 2015

         Before Judges Reisner, Koblitz and Haas.

         On appeal from Superior Court of New Jersey,
         Law Division, Camden County, Indictment Nos.
         12-07-1859, 12-09-2381, 12-10-2567, 12-07-
         1801, 13-01-0237, 12-08-2234 and 13-03-0984.




                                2                       A-3591-12T1
            Mary    Eva    Colalillo,   Camden   County
            Prosecutor, attorney for appellant (Jason
            Magid, Assistant Prosecutor, of counsel and
            on the briefs).

            Joseph E. Krakora, Public Defender, attorney
            for respondent John D. Harris, III (Marcia
            Blum, Assistant Deputy Public Defender, of
            counsel and on the briefs).

            Zucker Steinberg & Wixted, P.A., attorneys
            for respondent Sabrina King (Jeffrey C.
            Zucker, of counsel and on the briefs; David
            W. Sufrin, on the briefs).

            John A. Ferzetti,           attorney     for   respondent
            Robert Kaczak.

            Respondent Kristin L. Mitchell has not filed
            a brief.

            Jacobs and Barbone, P.A., attorneys for
            respondent William Hangstorfer (Louis M.
            Barbone, on the briefs).

            Joseph E. Krakora, Public Defender, attorney
            for respondent Mandi Filer (Stefan Van Jura,
            Assistant Deputy Public Defender, of counsel
            and on the briefs).

            The opinion of the court was delivered by

HAAS, J.A.D.

    In these back-to-back appeals, consolidated for the purpose

of this opinion, defendants John Harris, III, Robert Kaczak,

Kristin   Mitchell,      William    Hangstorfer,       and    Mandi   Filer    were

convicted   of     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-




                                         3                               A-3591-12T1
26b.    Defendant Sabrina King was convicted of two counts of the

fourth-degree crime of operating a motor vehicle during a period

of license suspension after having been previously convicted of

driving while her license was suspended for a first DWI offense,

N.J.S.A. 2C:40-26a.             The trial court sentenced each defendant to

180    days    in     a    correctional        facility,      but   ordered    that     the

sentences be served in either a home detention or community

service program instead of jail.1

       The State appeals, arguing that the statutory sentencing

framework of Title 2C requires a mandatory 180-day sentence in

jail    without       parole          for    these    offenses,     which     cannot     be

satisfied by service in either a home detention or community

service     program.            For    the    reasons   set    forth   in   our    recent

decision in State v. French, 437 N.J. Super. 333 (App. Div.

2014), we agree with the State that defendants' sentences are

illegal and, therefore, reverse and remand for resentencing.

                                               I.

       We     begin       our    analysis      with     a   brief    summary      of    the

circumstances giving rise to each defendant's conviction.




1
  The court sentenced King to two consecutive 180-day terms, with
each to be served in a home detention program rather than jail.



                                                4                                 A-3591-12T1
                                         A.

    Defendant       John     Harris,    III        pled    guilty      to    a     one-count

indictment charging the crime of driving while his license was

suspended       after   multiple       DWI       convictions          in    violation        of

N.J.S.A. 2C:40-26b.          Pursuant to the plea agreement, the State

recommended that the judge sentence Harris to 180 days in the

county jail, and it objected to permitting Harris to serve that

term in the "HEDS"2 program.             Nevertheless, the judge sentenced

Harris to 180 days in jail, but ordered that defendant could

serve that sentence in HEDS.                     The judge assessed appropriate

fines     and    penalties,     and     dismissed          several         motor      vehicle

summonses.       The judge also granted the State's motion for a stay

of the sentence pending appeal.

                                         B.

    Defendant       Robert     Kaczak        pled       guilty    to       one     count     of

violating N.J.S.A. 2C:40-26b.             This was an "open plea," but the

prosecutor      represented     that    the        State    would      seek       a   180-day

sentence    to    the   county     jail,         and    would    oppose          defendant's

request    that    he   be    permitted          to    serve    the    sentence         in   an

alternate program.           The judge sentenced Kaczak to 180 days in


2
  "HEDS" refers to the county's "Home Electronic Detention
System," which has been described to us as a home detention
program, where the defendant wears an electronic device to
monitor his or her location.



                                             5                                        A-3591-12T1
the county jail, but stated that he could serve the sentence in

HEDS   "if   [he]    qualifies   and     follows    [the]    rules     of   [the]

program."    The judge assessed appropriate fines and penalties,

and granted the State's motion to stay the sentence pending

appeal.

                                       C.

       Defendant    Kristin   Mitchell      pled   guilty   to   one   count    of

violating N.J.S.A. 2C:40-26b.          Pursuant to a plea agreement, the

State agreed to recommend a sentence of probation, plus 180 days

in jail.     The State advised defendant and the judge that it

would oppose a sentence to an alternate program.                       The judge

sentenced Mitchell to 180 days in the county jail to be served

in HEDS, assessed appropriate fines and penalties in connection

with this offense, and granted the State's motion to stay the

sentence pending appeal.3

       Mitchell also agreed to plead guilty to a motor vehicle

summons charging her with a violation of driving while license

suspended, N.J.S.A. 39:3-40.           The prosecutor advised the judge

that, in return for Mitchell's plea to this violation, the State

would recommend that the judge impose a $500 fine, $33 in court

costs, and a three-month license suspension to run concurrent to

3
  Mitchell's judgment of conviction incorrectly states that she
was convicted of N.J.S.A. 2C:40-26a, instead of N.J.S.A. 2C:40-
26b.



                                       6                                 A-3591-12T1
a suspension Mitchell was already serving in connection with an

unrelated matter.     The judge accepted this recommendation and

sentenced Mitchell in accordance with the plea agreement.            The

judge also stayed this portion of Mitchell's sentence pending

appeal.

                                  D.

    Defendant William Hangstorfer pled guilty to one count of

violating N.J.S.A. 2C:40-26b.     This was an "open plea," but the

prosecutor represented that the State would recommend that the

judge sentence Hangstorfer to probation, plus no more than the

180-day minimum period of incarceration required under N.J.S.A.

2C:40-26c.   The State also made clear that it would object to

the sentence being served in a "program" instead of the county

jail.

    The judge sentenced Hangstorfer to two years of probation

and 180 days in jail.    However, the judge ruled that Hangstorfer

could serve his sentence in "[a]lternative programs, such as

HED[S] or CSLS,4 . . . if [he] qualifies and follows [the] rules

of [the] program."      The judge imposed appropriate fines and

penalties,   and    dismissed   several   associated   motor   vehicle

4
   "CSLS" refers to the "County Supplemental Labor Service
Program."    Individuals in this program report to a central
location each day and are then sent to work at various sites.
They return home after the completion of their daily assignment.




                                   7                           A-3591-12T1
summonses.     The judge granted the State's motion for a stay of

the sentence pending appeal.

                                       E.

     Defendant Mandi Filer pled guilty to one count of violating

N.J.S.A. 2C:40-26b.       The State agreed to recommend a sentence of

180 days in the county jail and advised Filer and the judge that

it would object to any sentence to a "program."                      The judge

sentenced Filer to 180 days in the county jail, "to be served in

CSLS, weekends, if accepted."              The judge assessed appropriate

fines and penalties.5      The judge granted the State's motion for a

stay of the sentence pending appeal.

                                       F.

     Defendant Sabrina King pled guilty to two separate one-

count     indictments,    each     charging    her    with    a   violation     of

N.J.S.A. 2C:40-26a.        Although the parties agreed that King's

pending    motor     vehicle     summonses    would   be     remanded    to    the

municipal court for disposition, this was an "open plea."                       At

sentencing,    the    State      opposed     King's   request     that   she    be

permitted to serve her sentence in the HEDS program.                     However,

the judge granted that request and imposed consecutive 180-day


5
  Filer also pled guilty to several motor vehicle offenses, but
the sentences she received for those offenses are not at issue
on appeal.




                                       8                                 A-3591-12T1
terms in the county jail on each count, to be served in HEDS.

The judge assessed appropriate fines and penalties.6                    The judge

granted   the     State's   motion      to    stay   these      sentences   pending

appeal.   The judge also stated that, if the sentences were later

determined to be illegal, he would likely modify them so that

King's 180-day jail terms on each count would run concurrently,

rather than consecutively, to each other.

      When King filed her appellate brief in this matter, she

claimed   that,    in   spite    of   the     stay   of   the    sentence   pending

appeal, "she is presently serving her sentence pursuant to the

terms of" the HEDS program.             The State investigated this claim

and   discovered    that,     without    the    prosecutor's       knowledge,       the

county department of corrections had permitted King to complete

her   sentence     on   the     first    of    her    two    convictions       as     a

participant in HEDS.        The department advised the prosecutor that

it was not aware of the judge's order staying the sentences, or

the fact that King had been sentenced to two consecutive 180-day

terms.    According to the State, King has not participated in

HEDS for the second of her two convictions.




6
  One of the two judgments of conviction incorrectly states that
King pled guilty to N.J.S.A. 2C:40-26b, rather than N.J.S.A.
2C:40-26a.



                                         9                                  A-3591-12T1
                                II.

    Citing our decision in French, supra, the State argues that

defendants' sentences to either the HEDS or CSLS programs were

illegal.   We agree.

    N.J.S.A. 2C:40-26 provides:

           a.   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  first
                violation of [DWI] or [refusal to
                submit    to    a   chemical    test   for
                intoxication,] . . . and the actor had
                previously been convicted of [driving
                while license suspended] while under
                suspension     for   that    first   [DWI]
                offense.     A person convicted of an
                offense under this subsection shall be
                sentenced by the court to a term of
                imprisonment.

           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



                                 10                          A-3591-12T1
                    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.

       In French, the defendant pled guilty to a violation of

N.J.S.A. 2C:40-26b and the judge sentenced him to ninety days in

jail followed by ninety days in an inpatient drug rehabilitation

program.      French, supra, 437 N.J. Super. at 334.                          The State

argued that the portion of the sentence permitting the defendant

to serve ninety days in an alternate program, as opposed to

jail, was illegal.            Ibid.      We noted that "N.J.S.A. 2C:40-26c

requires the imposition of a mandatory period of incarceration

of   180    days    during    which      the    defendant    is    not    subject      to

parole."     Id. at 336.          In view of this clear language, we held

that    a   defendant       convicted     of     N.J.S.A.     2C:40-26b        must     be

sentenced to 180 days in jail without parole, with no sentencing

alternative available.            Id. at 335-39.

       The Legislature's purpose in requiring a mandatory period

of   "imprisonment"         for   this   offense,     with    no   possibility         of

parole, is also clear.            Alternatives to jail, like the inpatient

drug   rehabilitation        program     involved     in    French,      or   the     home

detention and community service programs at issue here, do not

protect     the    public    in   the    same   way   as    incarceration.            This

public safety consideration is especially relevant in the case



                                           11                                   A-3591-12T1
of a defendant who loses his or her driving privileges for DWI,

but then continues to drive despite the license suspension.

       Because       N.J.S.A.     2C:40-26c        requires             a     "fixed         minimum

sentence of not less than 180 days" without parole eligibility

for    violations      of   N.J.S.A.      2C:40-26b,          a    sentence             to   a    non-

custodial      "alternative       program,"       instead         of        jail,       is   plainly

illegal.        We    therefore     reverse        the     sentences               imposed       upon

Harris,      Kaczak,    Mitchell,       Hangstorfer,              and       Filer,        who    were

convicted of violating N.J.S.A. 2C:40-26b, and remand to the Law

Division to resentence each defendant to 180 days to be served

in jail without eligibility for parole.

       For    these    same     reasons,     we        also       conclude          that      King's

sentences to HEDS for her two convictions under N.J.S.A. 2C:40-

26a    were    illegal.          Although        the     defendant            in        French     was

convicted of violating 2C:40-26b, rather than N.J.S.A. 2C:40-

26a, the latter section also makes clear that a person convicted

under that provision "shall be sentenced by the court to a term

of imprisonment[,]" and N.J.S.A. 2C:40-26c requires a mandatory

180-day jail term.            Thus, our ruling in French plainly applies

to     defendants,      like    King,     who      are     convicted               of     violating

N.J.S.A. 2C:40-26a.            Accordingly, we reverse King's sentences on

both    of    her    convictions    and     remand       to   the           Law    Division        for




                                            12                                               A-3591-12T1
resentencing         in    accordance       with       the       following    specific

instructions.

      A    question       has    arisen    on    appeal      as    to    whether     King

completed at least one of her two sentences during the pendency

of this matter and, if so, whether she can now be resentenced.

In her appellate brief, King claimed she was "presently serving

her sentence pursuant to the terms of" the HEDS program.                           In its

reply brief, the State pointed out that both of King's sentences

were stayed pending appeal.               The State asserts that, until King

filed     her   appellate       brief,    it    was    unaware      that   the     county

corrections department had permitted King to enter the program

in violation of that stay.

      The State represents that King "completed her sentence" on

the   first     of   her   two    convictions         in   the    HEDS   program     but,

because the county department of corrections did not know King

had a second conviction, she did not complete any portion of the

consecutive sentence she received for her second conviction.                            In

a supplemental brief concerning the impact of our decision in

French on her sentences, King does not directly address the

State's contentions on this point, except to state that "her

jail sentence was completed and was served on house arrest."

      "An illegal sentence may be corrected at any time before it

is completed."        French, supra, 437 N.J. Super. at 335 (citing R.




                                           13                                    A-3591-12T1
2:10-3; State v. Schubert, 212 N.J. 295, 309-10 (2012)).                    Thus,

a   sentence     that   has    been     completed    cannot   ordinarily        be

challenged on appeal.         However, in Schubert, the Court stated:

            If there was some indication in [the] record
            that either [the] defendant or his attorney
            had engaged in some effort to mislead the
            court with respect to [a specific condition
            of the] defendant's sentence, we would agree
            that any expectation of finality [the]
            defendant might have achieved would not be a
            legitimate one.      The record before us
            contains not a hint, however, of such a
            devious plot.

            [Schubert, supra, 212 N.J. at 313.]

     With      regard   to    King's     two    convictions   for   violating

N.J.S.A. 2C:40-26a, the State argues that King and her attorney

were fully aware that the sentences to HEDS on both counts had

been stayed pending appeal.           The State also argues that King and

her attorney did not reveal that King was in the program until

King filed her responding brief in this appeal.               Thus, the State

contends that defendant participated in the program knowing of

the risk that, should her sentences be reversed, she would be

resentenced to 180 days in jail on each conviction, with the

judge    determining    whether       those    sentences   should   be    served

concurrently or consecutively.

     We conclude that the current record is not sufficient to

enable us to consider the parties' competing contentions on this

point.      No documentary evidence has been presented verifying



                                        14                               A-3591-12T1
King's attendance in HEDS.                     There may also be serious factual

disputes     concerning          King's        knowledge          of    the      stay,    and      her

attorney's and the county correction department's explanations

for permitting her to participate in HEDS in contravention of

that stay.        We therefore direct the trial court to consider the

parties'     contentions          on     remand       and       make    a     complete       factual

record7 concerning them before determining whether King should be

resentenced       to   180       days    in    jail       on    her    first      conviction        in

accordance with the requirements of N.J.S.A. 2C:40-26c.

      With      regard      to    King's       second          conviction        for     violating

N.J.S.A.     2C:40-26a,          which        was    to     run       consecutively           to   her

conviction on the first count, the trial court shall review the

State's    representation           that       King       has    not    already        served      her

complete sentence in an alternate program for that conviction.

If   the   State's       representation              is     correct,        the       court     shall

sentence        King   to    180        days    to     be       served      in    jail       without

eligibility for parole on this second conviction.                                 If it is not,

and King has already served all or a part of her second sentence

in HEDS, the court shall consider the parties' competing factual

contentions, make a complete record, and determine whether King

should     be    resentenced           to     180    days       in     jail      on    her     second

7
  We leave the question of the necessity of conducting an
evidentiary hearing to resolve the parties' factual claims to
the discretion of the trial court.



                                                15                                           A-3591-12T1
conviction          in    accordance         with      the   requirements        of   N.J.S.A.

2C:40-26c.

     Finally,            in    Mitchell's      case,     the    State    argues       that   the

sentence the judge imposed for her violation of N.J.S.A. 39:3-40

was illegal.             In accordance with the negotiated plea, the judge

imposed    a    $500          fine,    $33   in     court    costs,    and   a   three-month

license suspension.                   However, the sentencing statute for this

offense, N.J.S.A. 39:3-40f(2), states that, in addition to the

monetary fines set forth above, the judge "shall" suspend a

defendant's license for a "period of not less than one year or

more than two years," and impose a county jail term of "not less

than 10 days or more than 90 days."                             Because the judge only

suspended Mitchell's driver's license for three months, and did

not sentence her to any time in jail, the State asserts Mitchell

must be resentenced.8

     We agree with the State that N.J.S.A. 39:3-40f(2) requires

a mandatory period of license suspension, together with a county

jail term for this offense.                    Therefore, Mitchell's sentence for

this motor vehicle violation was illegal.                           However, we also note

that, during the plea colloquy, the State represented that, in

addition       to    the       mandatory     fines,      only   a     three-month      license

8
  Mitchell's sentence was stayed pending appeal and there is
nothing in the record to indicate that Mitchell completed any
portion of her sentence for this motor vehicle violation.



                                                  16                                   A-3591-12T1
suspension    would   be    imposed.           There   was   no    mention   of    the

possibility of jail time.

    Under these circumstances, we remand this matter to the Law

Division     for   resentencing      on        the   N.J.S.A.     39:3-40    charge.

Because Mitchell may not have been aware of the mandatory jail

term and the lengthier period of license suspension required by

N.J.S.A.     39:3-40f(2),    basic     fairness        requires      that    she    be

permitted the opportunity to withdraw her guilty plea to this

violation prior to resentencing.               On remand, she shall also have

the opportunity to argue that this motor vehicle charge should

merge with her conviction for violating N.J.S.A. 2C:40-26b.

    Defendants'       sentences      are        reversed     and     remanded      for

resentencing.      We do not retain jurisdiction.




                                          17                                 A-3591-12T1
