Opinion
DOCKET NO. A-5924-13T3
11-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN A. PARMELEE, Defendant-Appellant.
Bruce H. Sherman argued the cause for appellant (Sherman Law Offices, attorneys; Mr. Sherman and Joshua D. Sherman, on the brief). Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Hamett, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 15-14. Bruce H. Sherman argued the cause for appellant (Sherman Law Offices, attorneys; Mr. Sherman and Joshua D. Sherman, on the brief). Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Hamett, of counsel and on the brief). PER CURIAM
Defendant, Brian A. Parmelee, appeals from the August 14, 2014 judgment of the Law Division entered after a trial de novo, finding him guilty of careless driving, N.J.S.A. 39:4-97, failure to observe a signal, N.J.S.A. 39:4-81, and failure to keep right, N.J.S.A. 39:4-88(a). The judge sentenced defendant to a two-year suspension of his driver's license plus the appropriate fines and costs.
Defendant appeals and raises the following arguments:
POINT I
THE SUSPENSION OF DEFENDANT'S LICENSE IS INCONSISTENT WITH STATE v. PALMA, 219 N.J. 584 (2014) BECAUSE THE SENTENCE ENHANCER PROVISIONS OF N.J.S.A. 39:5-31 ARE INAPPLICABLE OR, IN THE ALTERNATIVE, THE FACTORS OUTLINED IN STATE v. MORAN, 202 N.J. 311 (2010) DO NOT JUSTIFY A LICENSE SUSPENSION.
POINT II
THE MUNICIPAL COURT RECORD UPON WHICH TRIAL DE NOVO WAS CONDUCTED WAS INSUFFICIENT TO SUPPORT THE SENTENCE OF A TWO-YEAR DRIVER'S LICENSE SUSPENSION.
POINT III
THE LAW DIVISION BASED ITS DECISION ON AN INADEQUATE RECORD AND MISAPPLIED THE STANDARDS IN STATE v. MORAN, 202 N.J. 311 (2010) AND STATE v. PALMA, 219 N.J. 584 (2014) WHEN IT IMPOSED THE TWO-YEAR LOSS OF LICENSE.
POINT IV
THE SENTENCE OF THE SUPERIOR COURT VACATING THE CONCURRENCY OF THE LICENSE SUSPENSIONS(S) IMPOSED BY THE MUNICIPAL COURT AND THAT OF THE MOTOR VEHICLE COMMISSION WAS AN ILLEGAL SENTENCE IN THAT
IT WAS MORE SEVERE THAN THAT IMPOSED BY THE MUNICIPAL COURT.We have considered these arguments in light of the record and applicable law and find that they lack merit.
The facts are not disputed. On the afternoon of December 12, 2013, defendant drove through a red light and struck a car being driven by Mark Pietropola. Pietropola was seriously injured and taken to a hospital where he later died as a result of the injuries he sustained in the crash.
Defendant was charged with careless driving, failure to observe a signal, and failure to keep right. On March 19, 2014, defendant, represented by counsel, pled guilty to those charges in municipal court. After defendant provided a very brief factual basis for the pleas, the municipal judge proceeded to sentencing. Fred Pietropola, the victim's father, addressed the court and described learning of his son's accident, rushing to the hospital, and waiting with his son for seven or eight hours until he died. Pietropola asked the judge to impose the maximum penalties allowable. Defendant apologized "for what happened that day" and said he was "truly sorry."
Pursuant to State v. Moran, 202 N.J. 311 (2010), the municipal judge made findings regarding the nature and circumstances surrounding the accident, defendant's driving record, defendant's most recent infractions, defendant's character and attitude, the likelihood of these circumstances to recur, the potential for economic hardship if defendant's license were suspended, and the need for personal deterrence. The municipal judge suspended defendant's driver's license for a period of two years on the careless driving conviction and imposed fines and costs that are not challenged on appeal. The judge also ordered that defendant's suspension was to be "concurrent with any suspension the Division of Motor Vehicles [imposes.]"
Defendant appealed and the Law Division conducted a de novo review on August 14, 2014. Prior to oral argument, the Motor Vehicle Commission (MVC) notified defendant that it intended to impose a twenty-eight month license suspension unless defendant requested a hearing. Defendant's counsel notified the MVC in writing that defendant did not accept the proposed suspension and requested a hearing.
The Law Division judge weighed the Moran factors anew and independently determined that the two-year driver's license suspension was appropriate. However, the judge vacated the portion of the municipal court's sentence that provided that any suspension by the MVC would run concurrently to the suspension imposed by the court. After a settlement conference, defendant and the MVC agreed to a 180-day suspension which is not before us on this appeal.
Our review here is limited and we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). We review the evidence to determine whether there is sufficient support for the Law Division's de novo finding. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (194). Our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 39:5-31 permits "the director or any magistrate before whom any hearing under [N. J.S.A. 39:1-1 to 39:5G-2] is had" to "revoke the license of any person to drive a motor vehicle" if that person is found "guilty of such willful violation of any of the provisions of this subtitle as shall, in the discretion of the magistrate, justify such revocation." License revocation under the "sentencing enhancer" provision of N.J.S.A. 39:5-31 is limited to cases of "willful violation."
In State v. Moran, the Court identified the appropriate factors to be considered when sentencing a person convicted of reckless driving, N.J.S.A. 39:4-96. Moran, supra, 202 N.J. at 328-29. In State v. Palma, 219 N.J. 584 (2014), the Court held that "the Moran factors provide the appropriate guidance and should be followed in . . . cases involving sentencing pursuant to the careless driving statute." Palma, supra, 219 N.J. at 587-88.
In Palma, the defendant struck a pedestrian crossing a street with her SUV and dragged the victim under the vehicle. Id. at 588. After the victim was freed by emergency personnel, she was transported to the hospital and died from her injuries two months later. Ibid.
The defendant pled guilty to careless driving in municipal court and was sentenced to a fifteen-day term in the county jail to be served on weekends, a ninety-day license suspension, and fines and costs. Id. at 589. Defendant appealed only the custodial sentence to the Law Division. On de novo review, the Law Division judge imposed the same sentence. Ibid.
On appeal, we vacated the custodial sentence and held that the Moran factors "are equally apt in determining whether to impose a custodial sentence in this matter, which involves a conviction for careless driving." State v. Palma, 426 N.J. Super. 510, 518 (App. Div. 2012), aff'd, 219 N.J. 584 (2014).
In extending the Moran holding to sentencings for careless driving, the Court noted the need for sentencing guidance because all careless driving situations are not the same and the application of the Moran factors will "promote the goals of predictability and elimination of disparity[.]" Palma, supra, 219 N.J. at 596.
Defendant now relies on the following language from Palma in arguing that the sentencing enhancer provision cannot be applied to careless driving cases:
We are mindful that this case differs from Moran in two respects. First, this is a careless driving case. Therefore, the N.J.S.A. 39:5-31 sentencing enhancer for a willful violation of reckless driving does not apply. Second, here defendant challenges a custodial sentence, not a license suspension. The holding in Moran introduced the concept of using certain enumerated factors or principles when imposing a consequence of magnitude in a motor vehicle conviction case. We conclude that holding should be extended to include sentencing for careless driving, which carries a potential custodial term.
[Id. at 595 (emphasis added).]
At the outset, we note that the defendant in Palma appealed only her custodial term and did not challenge the ninety-day license suspension. Id. at 589. Thus, the issue of Palma's license suspension was not before the Court. Moreover, the Court specifically noted that custodial sentences and license suspensions would still be permissible sanctions in careless driving cases if, after the application of the Moran factors, such sentences were warranted:
We conclude that holding should be extended to include sentencing for careless driving, which carries a potential custodial term. As a result, municipal court and Law Division judges should consider the factors outlined in Moran when they decide whether to impose a license suspension and/or a custodial sentence.
[Id. at 595].
This holding is consistent with N.J.S.A. 39:5-31 which permits the revocation of a driver's license where there is "willful violation of any of the provisions of this subtitle . . . ." N.J.S.A. 39:5-31. The careless-driving statute, N.J.S.A. 39:4-97, is within the subtitle and thus eligible for sentence enhancement under this section.
We therefore reject defendant's argument that the Court's decision in Palma in any way suggests that the license suspension provision contained in N.J.S.A. 39:5-31 should not be applied in careless driving cases.
Defendant argues alternatively, that when the Moran factors are applied here, a two-year license suspension is not warranted. We disagree.
The Law Division judge discussed each of the Moran factors and made specific findings that support his sentence. The judge attached great weight to the first factor, the nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage. The judge noted it is "chillingly clear" that defendant's violation of the traffic law directly caused the "greatest harm possible[,]" the death of Mark Pietropola.
We reject defendant's contention that the judge did not make explicit findings that the careless driving here was sufficiently aggravated to warrant a license suspension under N.J.S.A. 39:5-31. The judge noted that the careless driving here resulted in a death, and the judge found it "chillingly clear" that defendant's traffic violations "directly" caused the victim's death. The findings were sufficient. --------
As to the second and third factors, defendant's driving record and whether he was infraction-free for a substantial period before the most recent violation, the court found that, given defendant's age of thirty-nine, he had presumably been driving approximately twenty years, and his record was "far from exemplary[.]" Relying on defendant's driver's abstract, the judge found "no point" violations in 2011 and 2012, but also noted a 1999 improper passing offense (four points), a 1998 careless driving offense (two points), a 1996 speeding offense (four points), and a 1995 speeding offense (two points). The court found that defendant's driving record "demands significant weight, and certainly strongly suggests the substantial risk that defendant would commit another violation[.]"
In considering the fourth factor, defendant's character and attitude, the court found that defendant's explanation of his conduct "provides scant support for this factor." The judge perceived defendant's inability to offer a satisfactory explanation for his careless driving as "cavalier or matter of fact[,]" and concluded the "court certainly can not [sic] conclude this factor in any way supports the defendant . . . . If anything, this court is fearful of future violations under the totality of these circumstances."
As to the fifth factor, the likelihood of these circumstances to recur, the court was "unable to arrive at such a conclusion and so attaches little or no weight to this factor."
Defendant presented an affidavit explaining why license revocation would result in excessive hardship, and the judge recognized that "a license to drive in this state is nearly a necessity as it is the primary means that most people use to travel to work and carry out life's daily chores." However, the court was unconvinced that license revocation would result in defendant's loss of employment or mortgage foreclosure.
Finally, the judge determined that, because of defendant's "history of violations" and his failure to present a plausible explanation for this most recent violation, there is "a need for deterrence under these circumstances."
The judge found no substantial mitigating factors, and that the aggravating factors outweighed any mitigating factors. Guided by the decision in Moran, the judge examined other motor vehicle statutes that impose mandatory license suspension to determine the appropriate length of suspension in this case.
In support of the two-year sentence, the judge cited N.J.S.A. 39:5-30a, allowing for suspension up to three years for habitual offenders of any provision of the title; N.J.S.A. 39:5-30.13, allowing for suspension up to two years for persons under the age of seventeen with a drug conviction; and N.J.S.A. 39:3-40, allowing for suspension up to two years for driving with a suspended license and no insurance.
While we review the Law Division's legal interpretations and determinations de novo, we do not "weigh the evidence, assess the credibility of witnesses, or make conclusion about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). The record reflects that the judge carefully considered each of the Moran factors and we are satisfied that the evidence adequately supports his findings.
Defendant also contends that the judge imposed a more severe sentence than the municipal court when he vacated the concurrency portion of the municipal court's sentence.
N.J.S.A. 39:5-30d provides in relevant part, "[a] suspension issued pursuant to this act shall not run concurrently with any other suspension issued pursuant to law. . . ." This statute limits the MVC's authority to impose sentences concurrent to those imposed by the court, but is not a limitation on the court's authority to impose sentences concurrent to those of the MVC. Bean v. Strelecki, 101 N.J. Super. 310 (App. Div.) certif. denied, 52 N.J. 491 (1968).
Bean involved a six-month license suspension imposed by the MVC following a prior court-imposed two-year suspension. Id. at 313. We analyzed the language of N.J.S.A. 39:4-50.4 and found that the Director of the MVC had no discretion in the matter and "could only impose a suspension consecutive to the court imposed two-year revocation." Id. at 314.
Defendant's argument is moot because, at the time the concurrency portion was vacated by the judge, no suspension had been imposed by the MVC. Prior to the de novo hearing, defendant received notice of the proposed suspension, but he contested it and ultimately resolved it by agreeing to a reduced six-month suspension on September 23, 2014.
Therefore, when the judge vacated the concurrency portion of the municipal sentence, no MVC suspension had actually been imposed. In fact, the judge noted that it would be "inappropriate to order a sentence to be concurrent to a sentence that has not been imposed."
We are satisfied that the judge did not affect the length of the suspension in any way by vacating the concurrency element; the two-year suspension that he upheld was the only suspension that existed at that time.
Moreover, the judge's decision to vacate the concurrency element of the sentence is consistent with a correct application of the provision of N.J.S.A. 39:5-30d. The MVC's subsequent six-month sentence, which was agreed to by defendant, represents an appropriate exercise of its authority to suspend driving privileges and has no bearing on whether the judge's sentence was illegally severe.
We find defendant's remaining arguments lack sufficient merit to warrant any discussion in our opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION