Opinion
DOCKET NO. A-4893-07T1
01-09-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEE BLUMETTI, Defendant-Appellant.
Damaris M. Solomon, attorney for appellant. Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Harris.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Municipal Appeal No. 4731.
Damaris M. Solomon, attorney for appellant.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Senior Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Lee Blumetti, a thrice-convicted drunk driver, was erroneously sentenced by the Hawthorne municipal court as a second offender to a two-year loss of her driving privileges. Almost twenty months into the service of that sanction the State detected the court's sentencing gaffe and sought to impose the mandatory minimum driver's license suspension of ten years pursuant to N.J.S.A. 39:4-50(a)(3). Blumetti appeals from the Law Division's judgment that implemented the State's request. We affirm.
The penalty for a third drunk driving conviction requires that a person must "forfeit his right to operate a motor vehicle over the highways of this State for 10 years."
The facts are not in dispute. In September 1986, Blumetti was convicted of drunk driving in Seaside Heights. At that time, she was not counseled by an attorney. Thereafter, in October 2000, Blumetti was once again convicted of drunk driving in Wayne, which was likewise uncounseled. Finally, on February 6, 2006, in Hawthorne, Blumetti pled guilty to, and was convicted a third time of, drunk driving, but had the assistance of defense counsel at the proceeding.
Blumetti concedes that in Hawthorne she should have been sentenced as a third-time offender, pursuant to State v. Burroughs, 349 N.J. Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002). However, for reasons that are not readily apparent from the record, the Hawthorne municipal judge stated, "I'll sentence her as a second offender, but for purposes of incarceration I'll sentence her as a first offender, because [of State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990),)]." Along with several other punishments, the judge suspended Blumetti's driving privileges for two years, warning her that if convicted of a third offense, she would be "subject to a license revocation for ten years in addition to jail time. And now [she's] been represented by counsel so Laurick is not going to apply." Neither the State nor Blumetti appealed this conviction and sentence, and by all accounts Blumetti acceded to its terms and conditions.
See also State v. Enright, 416 N.J. Super. 391, 405-06 (App. Div. 2010) (adhering to Burroughs), certif. denied, 205 N.J. 183 (2011).
The New Jersey Supreme Court has held "an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty. In the context of repeat [driving while intoxicated] offenses," enhanced administrative penalties and fines for a third-time drunk driver are to be imposed, however the maximum jail sentence that can be imposed on a third-time offender with one prior uncounseled conviction is the maximum jail sentence that could be imposed for a second time offender. Laurick, supra, 120 N.J. at 16. This is referred to as a "step-down" sentence. See State v. Schadewald, 400 N.J. Super. 350, 353 (App. Div. 2007).
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Twenty months elapsed before the next event occurred in the matter. On October 12, 2007, a deputy attorney general in Trenton wrote a letter to an assistant Passaic County prosecutor indicating, "[i]t has come to our attention that the sentence imposed in [State v. Lee C. Blumetti] does not appear to comport with the prescribed sentencing options in the relevant statute." The letter requested that the assistant prosecutor contact the local prosecutor in Hawthorne "to determine the reasons for this deviation."
Eleven days later, the assistant prosecutor wrote a letter to the Hawthorne prosecutor forwarding the deputy attorney general's correspondence and noting, "I presume they are wondering why the license suspension was for two, rather than ten, years."
Independent of these executive department exchanges, on November 2, 2007, the Hawthorne municipal court administrator wrote a letter directly to Blumetti, indicating that the administrator was advised by
the Division of Motor Vehicles that there was an error in the disposition . . . on February 6, 2006. . . . According to [the Division of Motor Vehicle's] records, the offense . . . should have been considered a third offense rather than a second offence. It will therefore be necessary for you to return to court so that this matter can be resolved.The letter further advised Blumetti that the matter was being transferred to the Clifton municipal court because the current Hawthorne municipal court judge was the former prosecutor who participated in her February 6, 2006 plea arrangement. Accordingly, the hearing was scheduled for November 30, 2007.
On December 6, 2007, Blumetti's attorney objected to the proceedings by letter, arguing that the municipal court's exercise of jurisdiction over his client was improper, notwithstanding recognizing that "perhaps Ms. Blumetti was sentenced incorrectly." The Clifton municipal prosecutor responded on December 17, 2007, with what the record describes as "a formal notice of motion to amend an illegal sentence." We have not been provided with a copy of the municipal prosecutor's "formal notice of motion."
Three weeks later, on January 8, 2008, the matter was heard by the municipal court. After considering the arguments set forth by defense counsel and the municipal prosecutor, the municipal court determined the following:
Here the defendant is still serving her sentence. The matter has been brought to the Court's attention initially by the Attorney General and then that directive apparently filtered down through the County Prosecutor's Office back to the level of the local prosecutor who has now moved before the Court to correct what was — concededly is an illegal sentence.
I think the Prosecutor's Office is within its bounds to come before this Court and ask to sentence — that the sentence be reconsidered especially because the defendant is still serving the sentence. It was not a matter where the defendant's license was reinstated and — or she was released from jail and now is being sent back to jail.
So although I understand the defense's arguments and the frustration perhaps of the defendant, I am going to grant the motion by the State and I'm going to direct that the defendant be re-sentenced which I will do in this court.
. . . .
I'm going to re-sentence her. I think the only change that has to be made is — well, two changes. It would be a ten-year . . . license [suspension] as mandated by the statute and it [is a] 1,000-dollar fine for a third offense.
. . . .
I'm not going to do anything with the jail sentence. That stays. The Hawthorne [municipal court] recognized the [Laurick] argument and the State is not seeking to have the defendant sentenced to any jail time.
Blumetti appealed to the Law Division, which agreed with the municipal court determination to lengthen the driver's license suspension and increase the fine. The court echoed the municipal court's decision, finding the following:
Although this defendant was nearing comple[tion] of the February 6, 2006, sentence, she had not in fact finished serving that portion of the sentence related to the suspension of driving privileges. In my view the license revocation issue and the length of same was properly before the Clifton [m]unicipal [c]ourt. This issue appeared to have been raised by the Hawthorne [m]unicipal [c]ourt albeit after being notified that there was a problem by the State to the Attorney General's correspondence with the Prosecutor's OfficeThis appeal followed.
here in Passaic County, and the Prosecutor's Office subsequent notification to the court.
. . . .
I think the [c]ourt below still had jurisdiction, because . . . there was no appeal taken from the February 6 matter, so, therefore, the matter was either in limbo or still at the [m]unicipal [c]ourt level.
Rule 7:9-4(a) provides that "[t]he [municipal] court, in its discretion, may reduce or change a sentence, either on its own motion or on the motion of a defendant, which may be either oral or written, at any time during which the [municipal] court retains jurisdiction over the matter." Notwithstanding the executive department's communications of October and November 2007, we are satisfied that the Hawthorne court administrator's November 2, 2007 communication to Blumetti, which scheduled a hearing to consider the propriety of her sentence, was the functional equivalent of the court's own motion pursuant to Rule 7:9-4. Thus, as long as "the [municipal] court retain[ed] jurisdiction over the matter," the re-sentencing was a valid exercise of judicial authority. We conclude that the court did retain and exercise proper jurisdiction, and its imposition of the mandatory sentence for a third driving while intoxicated offense is unassailable.
Our role is to give effect to the following public policies:
• A person, whose guilt is established, is not to escape punishment because a court committed an error in passing the sentence. See Bozza v. United States, 330 U.S. 160, 166-67, 67 S. Ct. 645, 649, 91 L. Ed. 818, 822 (1947) ("The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.").In order to harmonize these pivotal principles, we conclude that even in the absence of an express rule permitting a sentencing correction such as occurred here, the public interest was fully satisfied by the congruent decisions of the municipal court and Law Division. "What is involved here is the judicial obligation to enforce a legislatively mandated sentence. When the Legislature imposes minimum penalties for certain offenses, the judiciary must enforce that mandate." State v. Nicolai, 287 N.J. Super. 528, 531 (App. Div. 1996).
• The Legislature's primary purpose behind the drunk driving laws has been "to curb the senseless havoc and destruction caused by intoxicated drivers." State v. Marquez, 202 N.J. 485, 496 (2010) (quoting State v. Tischio, 107 N.J. 504, 512 (1987)).
It is well established that an illegal sentence may be addressed and corrected at any time. State v. Tavares, 286 N.J. Super. 610, 617 (App. Div.), certif. denied, 144 N.J. 376 (1996); see also State v. Kirk, 243 N.J. Super. 636, 643 (App. Div. 1990) (holding that "so long as the issue of defendant's sentence is properly before the court, the court may correct an illegal sentence, even by increasing the term" thereof). "Indeed, an illegal sentence may be increased to conform to the dictates of a statute." Nicolai, supra, 287 N.J. Super. at 531 (citation omitted).
"Regardless of whether a sentence is illegal because it exceeds the statutory maximum penalty authorized for such an offense or because it was not imposed in accordance with law, it may be corrected at any time before it is completed." State v. Murray, 162 N.J. 240, 247 (2000). Courts have "the inherent power to correct an illegal sentence even though there is no rule expressly authorizing it." State v. Horton, 331 N.J. Super. 92, 97 (App. Div. 2000) (citations omitted).
When the Hawthorne municipal court invoked its inherent authority to correct an illegal sentence, which was later fortified by the State's motion, Blumetti had not yet fulfilled the totality of the penal consequences that were imposed upon her in February 2006. Although she had less than sixty days to go before her license was scheduled to be restored under the parameters of the illegal sentence, she had no vested right in perpetuating that illegality, and no reasonably objective expectation of finality. We may empathize with her subjective impression, but "[t]he Constitution does not require us to treat sentencing as a game in which a misplay by a judge means immunity for an offender." Nicolai, supra, 287 N.J. Super. at 531.
"Clarity as to the direct and penal consequences of a defendant's guilty plea promotes the binding resolution of charges because it serves to ensure that a defendant's 'expectations [are] reasonably grounded in the terms of the plea bargain.'" State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. Marzolf, 79 N.J. 167, 183 (1979)). A "guilty plea must be made voluntarily, knowingly, and intelligently." State v. Howard, 110 N.J. 113, 122 (1988) (citations omitted); see also Johnson, supra, 182 N.J. at 236 (holding a court may only accept a plea when made voluntarily, knowingly, and intelligently). "For a plea to be knowing, intelligent and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." Ibid.
"[A] guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid. Even misinformation about a collateral consequence may vitiate a guilty plea if the consequence is a material element of the plea." State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) (citations omitted); see also State v. Nemeth, 214 N.J. Super. 324, 327, (App. Div. 1986) ("[T]here can be no plea bargain to an illegal sentence."). The period of mandatory driver's license suspension is a critical piece of information in deciding whether to plead guilty. A defendant must be told the worst possible outcome. See State v. Kovack, 91 N.J. 476, 483 (1982).
The spare record before us does not clearly demonstrate that Blumetti pled guilty because she erroneously believed she was subject only to the driver's license suspension applicable to a second offense. Accordingly, our decision is without prejudice to Blumetti's right to move to vacate her plea in a timely fashion. See Nicolai, supra, 287 N.J. Super. at 533. Nothing in this opinion shall be interpreted as requiring a particular outcome if Blumetti so moves.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION