NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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).

2 A-0203-14T1 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-

3 A-0203-14T1 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,

(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,

(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."

. 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.'"

(alteration in the original) (quoting State

v. Franklin,

(2003)). If these three facts

are established, "the sentencing court is obligated to award

gap-time credits[.]"

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,

(2012). We begin with the statutory language.

"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,

(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,

(2015)

(quoting McCann v. Clerk of Jersey City,

(2001)). In addition, we strictly construe a penal statute.

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,

. 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.

. 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.

.

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.,

(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,

. 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,

(1990). Hammond limits application of principles of liability

under the Criminal Code to Title 39 offenses.

.

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.

.

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.,

(2011). However, the absence of intentional prosecutorial delay

by the State is not dispositive of the defendant's entitlement

to gap-time credits.

(citing

). 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,

(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.

10 A-0203-14T1