                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2081-12T2


STATE OF NEW JERSEY,

         Plaintiff-Respondent,           APPROVED FOR PUBLICATION

                                                March 20, 2014
    v.
                                              APPELLATE DIVISION
KEENAN OGLETREE, JR.,

          Defendant-Appellant.
_________________________________________________

         Submitted February 25, 2014 – Decided March 20, 2014

         Before Judges Fisher, Espinosa and O'Connor.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,    Camden   County,
         Indictment Nos. 11-11-2674 and 11-11-0139.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (James K. Smith, Jr., Assistant
         Deputy Public Defender, of counsel and on
         the brief).

         John J. Hoffman, Acting Attorney General,
         attorney for respondent (Frank J. Ducoat,
         Deputy Attorney General, of counsel and on
         the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    In   appealing     the   judgments   of     conviction,        defendant

complains only of the trial judge's denial of 246 days of gap-
time credit,1 which represents the time from his incarceration

for   a   violation    of   probation       until   his    sentence     in    these

matters.     The often knotty questions posed by gap-time credit

disputes    require    particular     attention     to    the   details      of   the

sentencing history in all related matters.                To put those details

into perspective, however, we first turn to the statute that

authorizes the award of gap-time credit.

      N.J.S.A. 2C:44-5(b)(2) directs that "[w]hen 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,"    and      notwithstanding        whether      the   judge     imposes

concurrent    or   consecutive      terms,      "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."          In applying the statute here, we

first observe that, on May 19, 2006, defendant was sentenced on

a drug offense2 to a five-year probationary term conditioned upon


1
 The appeal was originally placed on a sentencing calendar, but,
in light of the nature of the argument, we directed that the
parties file briefs and the matter be placed on a plenary
calendar.
2
 Defendant pleaded guilty to third-degree possession with the
intent to distribute a controlled dangerous substance in a
school zone, N.J.S.A. 2C:35-7.



                                        2                                 A-2081-12T2
his serving 120 days in the county jail in Indictment No. 06-01-

0158 ("158").         As a result of a violation of the probationary

term, defendant was sentenced, on January 20, 2012, to a three-

year prison term.

       After   the    original       sentence       in   158,    but    prior    to    the

disposition of defendant's violation of probation (VOP) in that

matter, defendant was charged on November 3, 2011, with first-

degree racketeering and other offenses in Indictment No. 11-11-

0139    ("139"),      and    on    November       30,    2011,   with     third-degree

aggravated assault and other offenses in Indictment No. 11-11-

2674 ("2674").        As noted above, on January 20, 2012, while these

two    indictments     were       pending,       defendant   was   sentenced          to    a

three-year     term    of    imprisonment         for    violating      the    terms       of

probation contained in the 2006 judgment entered in 158.                                   On

September      24,    2012    –    approximately         nine    months       after    the

sentence imposed for the VOP in 158 – defendant pleaded guilty

in 139 to second-degree racketeering, and in 2674 to third-

degree aggravated assault; he was sentenced in the former to an

eight-year prison term, with a four-year parole bar, and in the

latter to a five-year prison term, with a two-year parole bar.

These sentences were ordered to run concurrently with each other

and with the sentence imposed on the VOP in 158.




                                             3                                  A-2081-12T2
       Defendant argues that the trial judge erred in refusing to

award gap-time credit for the period of time from January 20,

2012 (when the term of imprisonment was imposed in 158) through

September 23, 2012 (the day before he was sentenced to terms of

imprisonment in 139 and 2674).

       The Supreme Court has explained that the gap-time credit

permitted         by    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."             State     v.

Hernandez,         208    N.J.    24,    38     (2011).       The       Supreme      Court    has

determined         that    the    law's    primary         purpose      "is     to   avoid    the

manipulation of trial dates to the disadvantage of defendants,"

Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994); see

also Hernandez, supra, 208 N.J. at 38; State v. Carreker, 172

N.J. 100, 105 (2002), and to "counteract any dilatory tactics of

the prosecutor" in pursuing a conviction for another offense

once a defendant has been sentenced on an earlier offense, State

v. Hall, 206 N.J. Super. 547, 550 (App. Div. 1985); see also

Hernandez, supra, 208 N.J. at 38; Carreker, supra, 172 N.J. at

105.        The    Supreme       Court    has       also   recognized         that   "gap-time

credits      are       appropriate       even    in    the    absence      of    evidence      of




                                                 4                                      A-2081-12T2
intentional prosecutorial delay."         Hernandez, supra, 208 N.J. at

38.

      The request for gap-time credit requires a demonstration of

three facts:

           (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); see also Hernandez, supra, 208 N.J.
           at 38; State v. Rippy, 431 N.J. Super. 338,
           349 (App. Div. 2013), certif. denied, __
           N.J. __ (2014).]

The parties' disagreement regarding defendant's entitlement to

gap-time   credit   here   turns    on   their   interpretations   of    the

requirements delineated in Franklin and particularly the manner

in which the parties frame the issue.

      The State acknowledges that the first two factors mentioned

in Franklin have been met and that the issue in dispute "boils

down to the third necessary element, and this question:                  Did

both the offenses [in 139 and 2764] occur prior to imposition of

'the first sentence'"?       In answering that question, the State

would   have   us   find   the     statute   inapplicable   because      the

racketeering and aggravated assault offenses in 139 and 2764

occurred after the underlying offenses for which defendant was




                                     5                             A-2081-12T2
sentenced    to   a   probationary   term   in   158,3   whereas    defendant

argues the racketeering and aggravated assault offenses occurred

before he was sentenced to a three-year prison term for the VOP,

thereby complying with the third Franklin element.                  Defendant

further emphasizes that the focus cannot be on the sentence

imposed in 2006 in 158 because he was not then sentenced to

"imprisonment" and that "imprisonment" was not imposed in that

matter until the January 20, 2012 sentence resulting from the

VOP.

       Even though, as the State urges, defendant was incarcerated

as a condition of probation for 120 days in 2006, defendant

finds support for his more limited interpretation of the word

"imprisonment" as it appears in this context by invoking State

v. O'Connor, 105 N.J. 399, 409 (1987), where the Court held that

"the Legislature intended that 'imprisonment for a term' as a

condition of probation and a sentence of imprisonment be treated

as two distinct and different sentencing alternatives."                    See

also State v. DiAngelo, __ N.J. Super. __ (App. Div. 2014).

Indeed,     defendant   correctly    observes    that    adoption    of    the


3
 139 charged defendant with engaging in racketeering between May
1, 2010 and March 7, 2011; 2764 charged defendant with
committing an aggravated assault on February 8, 2011. All these
offenses occurred after the underlying CDS offenses charged in
158, but both before the VOP that led to a prison term imposed
on January 20, 2012.



                                     6                               A-2081-12T2
State's   broad     interpretation       of   imprisonment   in   the   gap-time

credit    setting    would   lead   to    the   incongruous    result    that    a

probationary term conditioned on even a single day in the county

jail would disqualify an award of gap-time credit, whereas a

probationary term without such a condition would not.                   We agree

with defendant that the State's view would increase the risk of

manipulation, see Booker, supra, 136 N.J. at 260, that N.J.S.A.

2C:44-5(b)(2) was intended to prevent.              Accordingly, we reverse

insofar as the judgments of conviction denied defendant 246 days

of gap-time credit.

    Reversed and remanded for entry of amended judgments of

conviction in conformity with this opinion.                  We do not retain

jurisdiction.




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