                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-2045-16T4


STATE OF NEW JERSEY,

     Plaintiff-Respondent,                APPROVED FOR PUBLICATION

v.                                               July 10, 2018

                                               APPELLATE DIVISION
JAMES T. DOUGHERTY,

     Defendant-Appellant.
________________________________

          Argued April 11, 2018 – Decided July 10, 2018

          Before Judges Alvarez, Nugent, and Currier.

          On appeal from Superior Court of New Jersey,
          Law Division, Burlington County, Indictment
          No. 16-04-0407.

          Joseph P.    Grimes   argued   the    cause    for
          appellant.

          Jennifer E. Kmieciak, Deputy Attorney General,
          argued the cause for respondent (Gurbir S.
          Grewal, Attorney General, attorney; Carol M.
          Henderson, Assistant Attorney General, of
          counsel and on the brief).

     The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

     Drivers commit a fourth-degree crime if they operate a motor

vehicle during a period of license suspension for a second or

subsequent motor vehicle violation of driving while intoxicated
(DWI), N.J.S.A. 39:4-50, or refusal to submit to a breath test

(refusal), N.J.S.A. 39:4-50.4(a).              N.J.S.A. 2C:40-26(b).       When

defendant   James    T.    Dougherty     was   arrested   and   charged    with

violating N.J.S.A. 2C:40-26(b), he had one prior DWI conviction,

one prior refusal conviction, and his license was suspended for

the refusal.      He contends 2C:40-26(b) requires convictions of the

same two predicate violations, either two convictions for driving

while intoxicated, or two convictions for refusal, not one of

each. Based on the plain language of the statute, we conclude the

two predicate violations may consist of one prior DWI and one

prior   refusal    conviction.       Hence,     we   affirm   the   denial    of

defendant's    motion     to   dismiss   the    indictment,   his   subsequent

conviction, and vacate the Law Division judge's stay of his

sentence.

     Defendant was convicted on August 19, 2015, of DWI, and on

November 9, 2015, of refusal.1           On December 19, 2015, during the

seven-month refusal suspension,2 police stopped defendant while he

was operating a motor vehicle.               A grand jury indicted him for



1
   The refusal arrest took place on February 4, 2009. The DWI
arrest occurred on February 23, 2009. The record does not explain
the reason for the more than six-year delay between arrests and
convictions.
2
    The record does not indicate the length of suspension imposed
on the DWI.

                                         2                             A-2045-16T4
driving while suspended, and after the judge denied his motion to

dismiss the indictment, defendant entered a conditional guilty

plea.   The court sentenced him on December 15, 2016, to the

statutory minimum of 180 days incarceration and stayed the service

of the jail time pending the outcome of this appeal.

     Defendant raises the following points:

          i.   Point One: A charge of [DWI] or Refusal
          cannot be used to enhance the penalties of the
          other

          ii. All methods of statutory construction
          including the Rule of Lenity in criminal cases
          supports appellant's interpretation of the
          DW[I] statute and requires reversal

     Defendant's arguments on appeal raise issues of law, which

we review de novo.      State v. Grate, 220 N.J. 317, 329 (2015)

(citing State v. Drury, 190 N.J. 197, 209 (2007)) (holding that

on appeal legal issues are reviewed "de novo, unconstrained by

deference to the decisions of the trial court").

     N.J.S.A. 2C:40-26(b) reads:        "[i]t 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. 39:4-50.4a]."

     Relying   on   State   v.   Ciancaglini,   204   N.J.   597   (2011),

defendant argues the reference in N.J.S.A. 2C:40-26(b) to a second


                                    3                              A-2045-16T4
or subsequent violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4a

means a single conviction under each section of the Motor Vehicle

Code does not suffice for prosecution.      We disagree that the

opinion supports defendant's interpretation of the statute.

     Ciancaglini holds a "[d]efendant's refusal conviction cannot

be considered a prior DWI violation for enhancement purposes" when

a defendant is being sentenced for a violation of the DWI statute.

204 N.J. at 612.   Ciancaglini focuses only on N.J.S.A. 39:4-50.

     In State v. Frye, 217 N.J. 566 (2014), the Court again

addressed the interplay between DWI and refusal convictions for

sentencing purposes, this time in the context of the refusal

statute.   Frye reaffirmed the doctrine established in In re

Bergwall, 85 N.J. 382 (1981).   Based on the language of N.J.S.A.

39:4-50.4a, the Bergwall Court had held a prior DWI conviction

enhances the sentence for a conviction for refusal.    85 N.J. at

383 (citing In re Bergwall, 173 N.J. Super. 431, 436 (App. Div.

1980) (Lora, P.J.A.D., dissenting)). The defendant in Frye argued:

"the Court's decision in Ciancaglini supports the proposition

that, for sentencing purposes, the refusal and DWI statutes are

separate and distinct" and that as a result a prior DWI could no

longer be used to enhance a refusal penalty.   217 N.J. at 573.

     Contrary to that defendant's suggestion that     Ciancaglini

controlled the outcome, in Frye, the Court examined the "plain

                                4                          A-2045-16T4
language of the refusal statute" and the legislative history of

the subsequent amendments, concluding the enactments were all

designed to discourage drivers from refusing to submit to alcohol

breath testing in order to avoid more serious penalties under the

DWI statute.   The Court again held that prior DWI convictions must

be included as prior convictions when a defendant is sentenced for

refusal.   Id. at 575-82.      A "strong public policy" mandated the

continuing viability of Bergwall because of the societal interest

in addressing the harm inflicted by drunken drivers.         Id. at 582.

     The   analysis   in    Ciancaglini   and   Frye   focuses   on     well-

established rules of statutory construction as applied to the

particular law under consideration.       That methodology informs our

discussion.

     In interpreting a statute, the primary goal is, as always,

"to divine and effectuate the Legislature's intent."             State v.

Shelley, 205 N.J. 320, 323 (2011) (citing DiProspero v. Penn, 183

N.J. 477, 492 (2005)); accord State v. Bass, 224 N.J. 285, 322

(2016) (quoting Shelley, 205 N.J. at 323); State v. Gandhi, 201

N.J. 161, 176 (2010).      We consider the enactment's plain language,

viewed in the context of the entire legislative scheme                    that

includes it.    Bass, 224 N.J. at 322; Drury, 190 N.J. at 209;

superceded by statute on other grounds, State v. Livingston, 172

N.J. 209, 217-18 (2002); superceded by statute on other grounds,

                                    5                                 A-2045-16T4
State v. Thomas, 166 N.J. 560, 567 (2001). "Statutory text 'should

be given its ordinary meaning and be construed in a common-sense

manner.'"   State v. Revie, 220 N.J. 126, 132 (2014) (quoting State

in re K.O., 217 N.J. 83, 91 (2014)).

     If, however, the language is ambiguous or lends itself to

more than one reasonable interpretation, we look beyond the literal

language and consider extrinsic factors, such as the statute's

purpose, legislative history, and statutory context to determine

the legislative intent.     State v. McDonald, 211 N.J. 4, 18 (2012);

Gandhi, 201 N.J. at 177, 180-81; Drury, 190 N.J. at 209.

     We must strictly construe any reasonable doubt about the

meaning of a penal statute in favor of a defendant, applying the

rule of lenity.       State v. D.A., 191 N.J. 158, 164 (2007).       The

rule of lenity, however, applies only where the statutory language,

legislative history, and other secondary sources do not resolve

the purported ambiguity.      McDonald, 211 N.J. at 18 (citing State

v. Gelman, 195 N.J. 475, 482 (2008)); Drury, 190 N.J. at 209-10.

     Defendant also argues the relevant language is ambiguous and

triggers the rule of lenity, compelling interpretation of the

statute   requiring    dismissal   of   his   indictment.   Defendant's

starting premise on this issue is that a fair reading of State v.

Olivero, 221 N.J. 632, 639 (2015), and In re Estate of Fisher, 443

N.J. Super. 180, 190-95 (App. Div. 2015), means the word "or" in

                                    6                           A-2045-16T4
the statute should not be interpreted as "either/or," but as "or"

without the "either."    He therefore asserts that he should have

gained the benefit of the rule and his motion to dismiss the

indictment should have been granted.

     The statutory language is not ambiguous.     Even if it were,

the legislative history reveals that DWI and refusal are referred

to interchangeably as predicate convictions.

     "When N.J.S.A. 2C:40-26 was enacted in 2009, L. 2009, c. 333,

§ 1, the Senate intended to lodge 'criminal penalties for persons

whose [drivers'] licenses are suspended for certain drunk driving

offenses and who, while under suspension for those offenses,

unlawfully operate a motor vehicle.'" See State v. Luzhak, 445

N.J. Super. 241, 245-46 (App. Div. 2016) (quoting Senate Law and

Public Safety and Veterans' Affairs Comm. Statement to S. 2939

(Nov. 23, 2009)).   The phrase "certain drunk driving offenses" is

not limited to one category of offense.   It necessarily refers to

more than DWI.   Otherwise it would have said the intent of the law

was to create "criminal penalties for persons whose [drivers']

licenses are suspended for DWI and who, while under suspension for

that offense, unlawfully operate a motor vehicle."

     Additionally, the Sponsor's Statement to S. 2939 (June 15,

2009) explained that N.J.S.A. 2C:40-26(b) made it a fourth-degree

crime for "a person who is convicted of a second or subsequent

                                 7                          A-2045-16T4
driving while intoxicated or refusal offense" to operate a motor

vehicle during a period of license suspension "for that second

offense."     After the specific mention of DWI and refusal, the

language states:    "that second offense[,]" effectively referring

to both types of offenses interchangeably as possibilities.             The

legislative    intent   is   therefore   clear——the   word   "either"    is

imported into the use of "or" in this statute.        Since the statute

is not ambiguous, and the pertinent language does not lend itself

to a different reasonable interpretation, the rule of lenity does

not apply.

     It is noteworthy that the statute, unlike most fourth-degree

crimes, imposes a mandatory 180-day jail sentence.3          That speaks

to the legislative purpose of addressing the problem of drunk

driving by imposing significant sanctions, tailored to maximize

the deterrent impact.

     We affirm defendant's conviction and vacate the stay of the

sentence.




3
    N.J.S.A. 2C:44-1(e) creates a general presumption against
imprisonment for first offenders convicted of fourth-degree
crimes.

                                    8                             A-2045-16T4
