Here, we conclude that convicting defendant of driving while suspended for a second or subsequent DWI conviction when he only has one prior DWI conviction would constitute a miscarriage of justice. Furthermore, sentencing defendant to the minimum imprisonment of 180 days under N.J.S.A. 2C:40-26(c) would bring about “an increased period of incarceration as a result of an uncounseled DWI conviction.” Although counsel technically represented defendant, the representation was allegedly ineffective, and the Law Division later vacated both convictions and the municipal court then dismissed one of the two prior DWI charges.
This is a strange use of the term “allegedly” by the Court. It implies that the panel takes issue with the Municipal Court’s ruling, even though that issue is not before the Court.
The Appellate Division continued: Although we concluded, under the facts of Sylvester, that Laurick applied only to N.J.S.A. 39:3-40 and did not extend to N.J.S.A. 2C:40-26, we find the facts under review markedly different. Here, defendant initially entered guilty pleas to both DWI charges. However, the Law Division vacated those pleas and the municipal court dismissed one of the charges, resulting in only one DWI conviction at the time the Law Division found him guilty of driving while suspended for a second or subsequent DWI conviction. By contrast, in Sylvester, the defendant re-entered her guilty plea to the DWI charge at a later date. As a result, she had the same number of prior DWI convictions at the time the court found her guilty of violating N.J.S.A. 2C:40-26(b)as she had on the date of her offense. Because one of defendant’s two prior DWI convictions was vacated and not later reinstated, we reverse defendant’s conviction for driving while suspended for a second or subsequent DWI conviction.
We note the Law Division also found defendant guilty of the lesser charge of driving while suspended. While we have not been provided with defendant’s sentencing transcript, we assume the judge merged the conviction into the N.J.S.A. 2C:40-26(b) conviction. Before us, defendant concedes “he should be made subject to N.J.S.A. 39:3-40 given the dismissal of his previous DWI and the State’s inability to prove every element of N.J.S.A. 2C:40-26(b).” We agree and therefore remand for the Law Division to sentence defendant.