NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4705-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES C. ALLEN, a/k/a JIMMY,
and JAMES C. ALLEN, JR.,
Defendant-Appellant.
____________________________
Submitted June 15, 2020 – Decided June 26, 2020
Before Judges Fisher and Fasciale.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 10-01-0027.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson David Harkov, Designated
Counsel, on the brief).
Francis A. Koch, Sussex County Prosecutor, attorney
for respondent (Shaina Brenner, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant appeals from an April 17, 2019 order denying his petition for
post-conviction relief (PCR), which challenged his sentence as illegal for failure
to award gap-time credit.1 Without conducting an evidentiary hearing, the PCR
judge denied the petition—not squarely on the merits of whether the sentence
was illegal for failure to award gap-time credits—but rather by concluding that
the petition was time-barred under Rule 3:22-12, that plea counsel was not
ineffective for seeking gap-time credits at sentencing, and, determinatively, that
the gap-time issue was moot because defendant served his NERA sentence and
was on parole by the time he filed the petition.2 Having considered the legality
of the sentence de novo, we reverse.
Defendant first unsuccessfully sought gap-time credit at sentencing.
Then, after our Supreme Court denied certification, but before the filing of the
1
In 2013, defendant pled guilty to second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1) and received a ten-year prison sentence subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. In January 2014, we upheld the
conviction on our excessive sentence oral argument calendar, rejecting
defendant's sole contention that the sentencing judge double counted
aggravating factors, and our Supreme Court denied certification in July 2014.
State v. Allen, 218 N.J. 530 (2014). Defendant did not file the petition until he
was on parole after serving the NERA portion of his sentence.
2
Defendant did not challenge the PCR judge's determination that plea counsel
rendered effective assistance of counsel by vigorously arguing at sentencing that
defendant was entitled to gap-time credit. The effectiveness of plea counsel is
not an issue on appeal.
A-4705-18T2
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petition, defendant made numerous additional attempts to amend the judgment
of conviction (JOC) to include 277 days of gap-time credit. Initially, he
succeeded in having the motion judge amend the JOC after a senior probation
officer recommended awarding the additional credit. The motion judge then
vacated the amended JOC because he entered it without notice to the State.
Thereafter, defendant filed multiple motions seeking to correct what he believed
was an illegal sentence. The motion judge rejected defendant's contention,
denied his motions, and in January 2018, entered an amended JOC reflecting no
gap-time credit. Defendant filed his PCR petition in May 2018.
On appeal, defendant argues:
POINT I
THE TIME BAR OF R[ULE] 3:22-12 SHOULD NOT
BE APPLIED TO DEFENDANT'S PETITION FOR
[PCR] BECAUSE 1) IT DOES NOT APPLY TO AN
ILLEGAL SENTENCE, 2) THE JUDGMENT IN
QUESTION WAS FILED ON JANUARY 17, 2018, 3)
TWO YEARS OF DELAYS WERE DUE TO
INEFFICIENCIES IN THE COURT SYSTEM, AND
4) THE [FORTY-DAY] DEADLINE WAS ONLY
MISSED BY ONE MONTH[.]
POINT II
DEFENDANT'S SENTENCE WAS ILLEGAL
BECAUSE IT FAILED TO ALLOCATE TO HIM THE
277 DAYS OF GAP-TIME HE WAS EN[T]ITLED TO
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AND THE [PCR JUDGE] ERRED WHEN [HE]
FAILED TO CORRECT THIS ERROR[.]
An argument pertaining to gap-time credit presents questions of the
sentence's legality, which may be raised—like here—by filing a PCR petition.
See State v. Shabazz, 263 N.J. Super. 246, 251 (App. Div. 1993) (permitting a
defendant to challenge a sentence's legality through a PCR petition). Of course,
an illegal sentence may be corrected at any time and is not time-barred by Rule
3:22-12. State v. Acevedo, 205 N.J. 40, 47 n.4 (2011).
N.J.S.A. 2C:44-5(b) governs gap-time credit for prison sentences imposed
at different times. In particular, the statute addresses situations in which 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." N.J.S.A.
2C:44-5(b)(2) provides: "Whether the [judge] determines that the terms shall
run concurrently or consecutively, the defendant shall be credited with ti me
served in imprisonment on the prior sentence in determining the permissible
aggregate length of the term or terms remaining to be served[.]" See also State
v. Hernandez, 208 N.J. 24, 38 (2011), overruled in part on other grounds, State
v. C.H., 228 N.J. 111, 123 (2017).
A-4705-18T2
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Thus, this statute "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." Ibid. Our Supreme
Court has said that a defendant is 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." State v. Franklin, 175
N.J. 456, 462 (2003). If the defendant satisfies those requirements, the
sentencing judge must award gap-time credit. Booker v. N.J. State Parole Bd.,
136 N.J. 257, 261 (1994). The imposition of gap-time credit is not subject to
whether a defendant received a NERA sentence or whether it will protect a
defendant from parole violations.
The parties and judges involved in this case touched upon whether the
requested gap-credit was moot given the NERA sentence. Gap-time credits do
not affect a period of parole ineligibility but may otherwise affect the actual date
of parole eligibility. Id. at 263-65. Gap-time credits will not reduce the period
of parole ineligibility imposed by NERA. See Hernandez, 208 N.J. at 41. But
here, the question is not whether the gap-time credit affected defendant's NERA
sentence—or for that matter—whether the gap-time credit impacted a potential
A-4705-18T2
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parole violation while defendant served his three-year period of parole
supervision. Instead, the legal issue is whether defendant satisfied the statute's
elements and case law. Such a question requires an analysis of the three
statutory requirements, which the judge failed to do. In turn, we will perform
this analysis as our review is de novo.
First, it is undisputed that defendant has been sentenced "previously to a
term of imprisonment." Franklin, 175 N.J. at 462. That is, he committed a
separate weapons offense and received an eighteen-month sentence
commencing on November 7, 2008. He served 277 days—from November 7,
2008 to May 1, 2010, the date he was released from prison for the weapons
conviction. Thus, he met the first statutory requirement.
Second, it is also clear that defendant was "sentenced subsequently to
another term." Ibid. On January 21, 2010, the State charged defendant with
first-degree attempted murder, N.J.S.A. 2C:5-l(a)(l) and N.J.S.A. 2C:11-3;
second-degree aggravated assault, N.J.S.A. 2C:12-l(b)(l); and third-degree
endangering an injured victim, N.J.S.A. 2C:12-l.2(a). He pled guilty to the
aggravated assault charge, and on March 28, 2013, defendant received a ten-
year prison term, subject to NERA. Thus, he met the second statutory
requirement.
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Third, "both offenses occurred prior to the imposition of the first
sentence." Ibid. That is, the weapons offense occurred before November 7,
2008. The aggravated assault occurred either on November 7, 2008 (before the
judge sentenced him on the weapons charge), or before November 7, 2008.
Although police did not arrest defendant for committing the aggravated assault
until July 2009, it is undisputed that the aggravated assault "occurred prior to
the imposition of the first sentence." Ibid. Thus, defendant satisfied the third
statutory requirement.
Accordingly, under N.J.S.A. 2C:44-5(b), defendant's sentence was illegal
because he was entitled to 277 days of gap-time credit from November 7, 2008
to May 1, 2010. The questions of what impact the gap credit may have had on
his release date—if any—and whether the gap credit will affect any subsequent
parole violation is not before us and are not relevant factors under the statute.
Reversed and remanded. We direct that the judge enter an amended JOC
reflecting defendant is entitled to 277 days in gap-time credit from November 7,
2008 to May 1, 2010. We do not retain jurisdiction.
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