                                NOT FOR PUBLICATION WITHOUT THE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.
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                                        2
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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                                       3
            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
                                       4
      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
                                         5
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.


                                                                          A-4705-18T2
                                          6
      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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