Gap time credit sometimes
available if jail for traffic violation STATE
v. WALTERS
Defendant-Appellant.
___________________________________
SUPERIOR COURT OF NEW
JERSEY
APPELLATE DIVISION
DOCKET NO. A-0
APPROVED FOR PUBLICATION
June 17, 2016
APPELLATE DIVISION
Submitted January 19,
2016 – Decided
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).
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-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 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 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 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.
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.
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 [1140] in every case 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
[15] 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.
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.
