NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0203-14T1
APPROVED FOR PUBLICATION
STATE OF NEW JERSEY,
June 17, 2016
Plaintiff-Respondent,
APPELLATE DIVISION
v.
MATTHEW J. WALTERS,
Defendant-Appellant.
___________________________________
Submitted January 19, 2016 – Decided June 17, 2016
Before Judges Messano, Simonelli and
Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Indictment
No. 14-01-0074.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jennifer L. Gottschalk,
Designated Counsel, on the brief).
Robert L. Taylor, Cape May County Prosecutor,
attorney for respondent (Gretchen A.
Pickering, Assistant Prosecutor, of counsel
and on the brief).
The opinion of the court was delivered by
SUMNERS, JR., J.A.D.
The issue before us is whether a defendant is entitled to
receive gap-time credits for a sentence of imprisonment imposed
following a Title 39 motor vehicle violation. Defendant Matthew
J. Walters appeals from the Law Division order that removed gap-
time credit from a previously-entered judgment of conviction
(JOC), the judge concluding that gap-time credit cannot be
awarded for a sentence imposed on a Title 39 violation. Having
considered the parties' arguments and applicable law, we
reverse.
We discern the following facts from the record. On
November 16, 2013, while driving in Somers Point, defendant was
arrested and charged with driving while intoxicated (DWI),
N.J.S.A. 39:4-50.
Thereafter, on November 24, 2013, defendant was a passenger
in a vehicle when he got into a physical altercation with the
driver, causing the vehicle, with two children in the back seat,
to crash into the concrete center barrier. Defendant was
arrested that day and remained incarcerated throughout the
subsequent proceedings. As a result of the incident, defendant
was charged on January 21, 2014, under Cape May County
Indictment No. 14-01-0074, with second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count one), and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count
two). He was also charged with violating his non-custodial
probationary sentence for a 2013 conviction for fourth-degree
shoplifting, N.J.S.A. 2C:20-11(b)(1).
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On February 18, 2014, and before resolution of Indictment
No. 14-01-0074, defendant pled guilty to DWI in Somers Point
Municipal Court. He was sentenced that day and began serving
180 days in the county jail, where he was already incarcerated
since his November 24 arrest.
On April 3, 2014, defendant pled guilty to an amended
charge of third-degree aggravated assault on Indictment No. 14-
01-0074 and violation of probation for the 2013 shoplifting
conviction; count two of the indictment was dismissed pursuant
to the plea agreement. On May 23, 2014, he was sentenced in
accordance with the plea agreement to a three-year term of
imprisonment, to run concurrently with a 365-day sentence for
violation of probation. Defendant received jail credit of
eighty-six days and gap-time credit of ninety-four days, based
upon his custodial DWI sentence which had already been served.
On the probation violation, he received jail credit of ninety-
two days and no gap-time credit was awarded.
At sentencing, the State voiced no objection to the jail
credits, and agreed that defendant was only entitled to gap-time
credit on the sentence imposed for the aggravated assault.
However, on May 27, 2014, the State moved for reconsideration of
the JOC awarding gap-time credit, arguing that defendant had
failed to notify the State of his intention to argue for gap-
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time credit at sentencing, and further, that gap-time credit
should not be awarded based on the sentence imposed for a Title
39 motor vehicle violation.
On August 12, 2014, after considering argument, the court
issued an oral decision revoking defendant's gap-time credit.
The court held that under State v. French, 313 N.J. Super. 457,
466 (Law Div. 1997), defendant was not entitled to gap-time
credit because the prior custodial sentence for DWI was imposed
for a motor vehicle violation in municipal court, and defendant
served his sentence in the county jail, rather than state
prison. This appeal followed.1
On appeal, defendant argues the following point:
POINT I
THE SENTENCING COURT ERRED WHEN IT REMOVED
THE GAP-TIME CREDITS FOR THE TIME SERVED ON
THE DWI CONVICTION THAT IT HAD ORIGINALLY
AWARDED DEFENDANT.
Defendant contends that he satisfies the requirements of
N.J.S.A. 2C:44-5(b)(2) and should receive gap-time credit even
though the sentence was for a motor vehicle violation. Thus, he
maintains that the trial court erred in finding that a person
can only receive gap-time credit for a custodial sentence
1
We removed the appeal from our Excessive Sentence Oral Argument
(ESOA) calendar, gave the parties the opportunity to file briefs,
and listed the appeal on our plenary calendar.
4 A-0203-14T1
imposed for a violation of the New Jersey Code of Criminal
Justice (Criminal Code), N.J.S.A. 2C:1-1 to -104-9. We agree.
The award of jail credits raises issues of law that we
review de novo. State v. Hernandez, 208 N.J. 24, 48-49 (2011)
("[T]here is no room for discretion in either granting or
denying [jail] credits."). The gap-time provision in our
Criminal Code deals with sentences of imprisonment imposed at
different times. N.J.S.A. 2C:44-5(b)(2) provides, in relevant
part:
When a defendant who has previously been
sentenced to imprisonment is subsequently
sentenced to another term for an offense
committed prior to the former sentence,
other than an offense committed while in
custody:
. . . .
(2) Whether the court determines that the
terms shall run concurrently or
consecutively, the defendant shall be
credited with time served in imprisonment on
the prior sentence in determining the
permissible aggregate length of the term or
terms remaining to be served. . . .
[N.J.S.A. 2C:44-5(b)(2).]
"Gap-time credit" is so called because N.J.S.A. 2C:44-5(b)
"awards a defendant who is given two separate sentences on two
different dates credit toward the second sentence for the time
spent in custody since he or she began serving the first
sentence." Hernandez, supra, 208 N.J. at 38. A defendant is
5 A-0203-14T1
entitled to gap-time credit when: "'(1) the defendant has been
sentenced previously to a term of imprisonment; (2) the
defendant is sentenced subsequently to another term; and (3)
both offenses occurred prior to the imposition of the first
sentence.'" Ibid. (alteration in the original) (quoting State
v. Franklin, 175 N.J. 456, 462 (2003)). If these three facts
are established, "the sentencing court is obligated to award
gap-time credits[.]" Ibid.
The trial judge granted the State's motion for
reconsideration of the award of gap-time credit accepting that
credit should not be given for a sentence imposed under Title
39. She found that gap-time credit is earned only for a term of
imprisonment imposed as part of a sentence for conviction of an
"offense" under the Criminal Code. We disagree.
The principles governing statutory interpretation are well-
settled. Our goal is to determine and effectuate the
Legislature's intent. See, e.g., In re Kollman, 210 N.J. 557,
568 (2012). We begin with the statutory language. Ibid. "We
ascribe to the statutory words their ordinary meaning and
significance, and read them in context with related provisions
so as to give sense to the legislation as a whole." DiProspero
v. Penn, 183 N.J. 477, 492 (2005) (citations omitted). "When
that language 'clearly reveals the meaning of the statute, the
6 A-0203-14T1
court's sole function is to enforce the statute in accordance
with those terms.'" State v. Olivero, 221 N.J. 632, 639 (2015)
(quoting McCann v. Clerk of Jersey City, 167 N.J. 311, 320
(2001)). In addition, we strictly construe a penal statute.
Ibid. Here, nothing in the language or statutory scheme of
N.J.S.A. 2C:44-5(b) supports the conclusion that a defendant
must be convicted for a Criminal Code offense to receive gap-
time credits.
We find guidance in Franklin, where our Supreme Court held
that a juvenile incarcerated pursuant to the Juvenile Code,
N.J.S.A. 2A:4A-20 to -48, is entitled to gap-time credits
pursuant to N.J.S.A. 2C:44-5(b). Franklin, supra, 175 N.J. at
469. In analyzing the Juvenile Code, the Court reasoned that
juveniles are entitled to the same rights as adults and a
juvenile's "incarceration" under the Juvenile Code is no
different than an adult's "imprisonment" under the Criminal
Code. Id. at 464-68. Thus, despite the absence of gap-time
credit and the lack of any reference to N.J.S.A. 2C:44-5(b) in
the Juvenile Code, a juvenile sentenced to a custodial sentence
under the Juvenile Code is eligible for gap-time credit because
the statute requires only that a defendant be imprisoned. Id.
at 464, 469.
7 A-0203-14T1
Here, defendant was convicted of a Title 39 violation.
Like the Juvenile Code, Title 39 is silent as to gap-time
credits, and N.J.S.A. 2C:44-5(b), in turn, makes no reference to
Title 39 violations. The gap-time statute only requires that a
defendant be "previously . . . sentenced to imprisonment," prior
to the imposition of a subsequent sentence of imprisonment for
an offense under the Criminal Code. N.J.S.A. 2C:44-5(b). As
was the juvenile in Franklin, defendant is eligible for gap-time
credit.
In reaching this conclusion, we reject the trial court's
finding, and the State's argument here, that French requires
gap-time credits be denied to defendant. We must first note
that the decision is a Law Division case, and we are not bound
by its holding. S & R Assocs. v. Lynn Realty Corp., 338 N.J.
Super. 350, 355 (App. Div. 2001). Nevertheless, French held
that incarceration in a state prison, regardless of the court
imposing the sentence, satisfies the definition of
"imprisonment" for purposes of gap-time credits under N.J.S.A.
2C:44-5(b). French, supra, 313 N.J. Super. at 467. It did not
address the situation here, where defendant was serving a
custodial term in a county jail imposed by a municipal court for
a Title 39 violation. Thus, French was misapplied by the trial
court.
8 A-0203-14T1
We also disagree with the State's argument that gap-time
credit is not earned because DWI is not an "offense" as defined
by the Criminal Code. See State v. Hammond, 118 N.J. 306, 307
(1990). Hammond limits application of principles of liability
under the Criminal Code to Title 39 offenses. Id. at 312-13.
However, by its very terms, N.J.S.A. 2C:44-5(b)(2) does not
require that the "previous[] . . . sentence[] to imprisonment"
be a sentence based upon the conviction of an offense under the
Criminal Code. Only the "subsequent[] sentence[] to another
term" must be "for an offense." N.J.S.A. 2C:44-5(b). Since
defendant meets the three-prong requirements of N.J.S.A. 2C:44-
5(b)(2), he is entitled to receive gap-time credits. Franklin,
supra, 175 N.J. at 462.
Lastly, we recognize that the overall purpose of the
statute is "to avoid manipulation of trial dates to the
disadvantage of defendants and to put defendants in the same
position that they would have been had the two offenses been
tried at the same time." State v. L.H., 206 N.J. 528, 529
(2011). However, the absence of intentional prosecutorial delay
by the State is not dispositive of the defendant's entitlement
to gap-time credits. Hernandez, supra, 208 N.J. at 38 (citing
Franklin, supra, 175 N.J. at 463-64). As a matter of practice,
courts do not engage in fact-finding proceedings in every case
9 A-0203-14T1
to determine whether or not prosecutorial manipulation has
occurred. See, e.g., State v. Ruiz, 355 N.J. Super. 237, 245
(Law Div. 2002). As noted, defendant is entitled to gap-time
credit because he satisfied the three prongs of N.J.S.A. 2C:44-
5(b)(2).
Reversed. The matter is remanded to the Law Division for
amendment of the judgment of conviction to reflect the proper
award of gap-time credits.
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