                NOT FOR PUBLICATION WITHOUT THE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, 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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