                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-2230-11T1

STATE OF NEW JERSEY,
                                              APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                    February 13, 2014
v.                                              APPELLATE DIVISION

DANIELLE N. DIANGELO,

     Defendant-Appellant.
_______________________________

           Submitted October 17, 2013 - Decided February 13, 2014

           Before Judges Lihotz, Maven and Hoffman.

           On appeal from the Superior Court of New
           Jersey, Law Division, Middlesex County,
           Indictment Nos. 09-10-1914 and 10-11-0332.

           Joseph E. Krakora, Public Defender, attorney
           for appellant (Rochelle Watson, Assistant
           Deputy Public Defender, on the brief).

           Andrew C. Carey, Acting Middlesex County
           Prosecutor, attorney for respondent (Brian
           D. Gillet, Special Deputy Attorney General/
           Acting Assistant Prosecutor, of counsel and
           on the brief; Matthew P. Tallia, on the
           brief).

     The opinion of the court was delivered by

LIHOTZ, J.A.D.

     We   consider    whether   the   scope    of     the   Supreme     Court's

holding announced in State v. Hernandez, 208 N.J. 24 (2011),

addressing   jail    credit   calculations,    extends      to   a    defendant
sentenced      to    a      custodial      term     for    a    violation         of    probation

(VOP).      In      this      matter,      defendant       Danielle          N.    DiAngelo      was

sentenced to a non-custodial probationary term, after conviction

for a third-degree offense.                   While on probation, defendant was

jailed upon arrest for a new offense and did not post bail.

Probation        filed         an     application           to        revoke         defendant's

probationary sentence and impose a custodial term for the prior

conviction, then served defendant with the statement of charges

while    she     was     in    custody.        In    the       subsequent         VOP     hearing,

defendant pled guilty.                  Citing Hernandez, she requested jail

credits    to     reduce       the    custodial          term    imposed          for   the     VOP,

corresponding          to     the    period    of    custody          from    arrest       on    new

charges to the date of sentencing.                       The State argued jail credit

applied only against the sentence on the new charges because

defendant      was       arrested     solely        on    the    new    offenses          and   the

custodial      term      for    the    VOP    was    related      to        and    part    of    the

initial sentence for her prior offense.                           The judge agreed and

concluded the VOP sentence was not a sentence to which Rule

3:21-8 (or the Rule) applied.

    Following our review, we reject the State's argument, which

suggests the terms of defendant's initial probationary sentence

included       incarceration          in      the    event       of     a     VOP,      obviating

consideration of jail credits for time in custody between filing




                                                2                                         A-2230-11T1
VOP charges and imposition of a custodial sentence for violating

probation.     Rather, we conclude the public policy expressed by

the Supreme Court in Hernandez equally applies to VOP sentences.

Following this policy, we determine the issuance of                 the VOP

statement of charges to a defendant held in custody triggers the

right to receive jail credits against the VOP sentence for a

defendant's    period   of     pre-adjudication   custody,   as     well    as

against the new offense, irrespective of whether a VOP summons

or warrant was issued.          Accordingly, the trial court's order

denying defendant's application for jail credits against her VOP

sentence is reversed.

                                      I.

      As a result of an incident occurring on July 17, 2009,

defendant     was   arrested    and   charged   under   Middlesex     County

Indictment No. 09-10-1914.1       On January 20, 2010, she pled guilty

to   third-degree    forgery,    N.J.S.A.   2C:21-1(a)(2),   for    which    a

four-year non-custodial probationary sentence was imposed.

      On August 27, 2010, defendant was arrested for a separate

forgery offense committed during the prior month.2             She waived


1
     Defendant was arrested on August 3, 2009, and posted bail
on August 7, 2009.   The judgment of conviction reflected five
days jail credit.
2
     Defendant was released on bail on October 30, 2010, and the
judgment of conviction reflects sixty-five days jail credit.



                                      3                             A-2230-11T1
indictment and pled guilty to third-degree forgery, as charged

in   Middlesex      County       Accusation       No.     10-11-0332.     She      was

sentenced on this charge on December 20, 2010.                     At sentencing,

defendant also pled guilty to a VOP, related to Indictment 09-

10-1914.

     At the time of sentencing on the Accusation and VOP, the

Middlesex County judge was informed Monmouth County Indictment

10-12-2333    had     been       returned       against     defendant   five     days

earlier.     The Monmouth County indictment, which was based on

events occurring in Millstone between July 22 and July 26, 2010,

charged    defendant      with    three     third-degree      offenses:    forgery,

N.J.S.A. 2C:21-1(a)(2), uttering a forged instrument, N.J.S.A.

2C:21-1(a)(3),      and   theft     by    unlawful      taking,   N.J.S.A.     2C:20-

3(a).3    The Middlesex County judge imposed a sentence continuing

defendant's probation on Indictment 09-10-1914.                     On Accusation

No. 10-11-0332, he imposed a concurrent three-year probationary

term.

     On May 9, 2011, defendant was again arrested on a bench

warrant    regarding      Monmouth       County    Indictment     No.   10-12-2333.




3
     On March 19, 2011 defendant was arrested for possession of
a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), under
Middlesex County Accusation No. 11-06-220.      This charge was
later dismissed when she provided a valid prescription for the
possessed medication.



                                            4                                A-2230-11T1
She   did   not    post   bail   and   remained       incarcerated.        She     pled

guilty to two counts of that indictment.

      On May 23, 2011, while defendant was incarcerated on the

Monmouth     charges,     Middlesex    County       Probation    moved    to    revoke

probation     on     Middlesex       County        Indictment     09-10-1914         and

Accusation     No.     10-11-0332,     in     part     because        defendant      had

violated     probation     for   a   second    time    and    "failed     to    remain

offense-free while under active [p]robation supervision[.]"                           In

addition to commission of new offenses, the statement of charges

identified        additional     reasons      to     revoke     the     probationary

sentence.4     The VOP summary stated defendant was "entitled to a

total number of 5 day[s] [j]ail [c]redit for 09-10-01914-I and

65 days [j]ail [c]redit for 10-11-00332-A."                     On June 30, 2011,

defendant pled guilty to violating the terms of her probation

imposed on Indictment 09-10-1914 and Accusation 10-11-0332.

      Defendant also pled guilty on August 5, 2011, to two of the

three Monmouth County charges and was sentenced to three years

in prison on each conviction, to be served "concurrent to each

other and concurrent" to the sentence on Middlesex Indictment

No. 09-10-1914 and Accusation 10-11-0332.                 She was awarded jail


4
     These reasons were defendant's failure to: report as
required, provide documentation of drug and alcohol evaluations,
verify employment, provide drug screens, and pay the balance of
ordered fines.



                                         5                                     A-2230-11T1
credit   against   the   sentence   imposed   on   the   Monmouth    County

convictions for the custodial periods of March 23 to April 5,

2011, and May 9 to August 4, 2011, a total of 102 days.

     During the VOP sentencings, held on September 8, 2011, the

State requested imposition of a custodial term.            The VOP judge

agreed, terminated defendant's probation, and sentenced her to a

three-year   custodial     term     for   each     conviction,      to    run

concurrently with each other, and concurrently to her Monmouth

County sentences.

     In addition to the jail credits identified on the prior

judgment of convictions, defendant requested additional credit

from May 23, 2011, when the Middlesex VOP was filed, to August

5, 2011, when she began serving the Monmouth County sentence.5

The judge rejected this request and limited jail credits on

Indictment 09-10-1914 to 37 days for time served from August 3

to August 7, 2009, and August 27 to September 27, 2010; and, on

Accusation 10-11-0332, to 65 days for the period in custody from

August 27 to October 30, 2010.6      Defendant appealed.


5
     Defendant further argued she was entitled to thirty-four
days of gap-time credit.
6
     We understand defendant was released from custody on
December 11, 2010.   Although an award of jail credits at this
juncture would not affect defendant's time in custody, the
appeal should not be treated as moot and dismissed because the
issue is of public importance and bound to recur time and again
                                                    (continued)


                                    6                               A-2230-11T1
      Initially, this matter was included on our October 16, 2012

Excessive Sentencing Oral Argument calendar.                   See R. 2:9-11.       We

ordered the matter relisted after full briefing, to address the

impact of Hernandez on the calculation of jail credits related

to a VOP sentence, asking:

            (1) whether the period "between arrest and
            the imposition of a sentence," Rule 3:21-8,
            includes any part of the period from (a)
            incarceration   on    a   new  charge,   after
            imposition   of   the   initial   probationary
            sentence,   and  (b)    re-sentence  after   a
            violation of probation; and if so (2) when
            accumulation of re-sentence jail credits,
            while in custody on new charges, shall be
            deemed to occur[.]

      On   appeal,   defendant      maintains      she    is    entitled    to   jail

credit against her VOP sentences for time spent in custody from

May   9,   2011,   when     she   was   arrested    on    the    Monmouth    County

offenses or, alternatively, from May 23, 2011, the date the VOP

charges    were    filed,    to   August     4,   2011,   the    day   before     her

sentencing on the Monmouth convictions.                   In a single argument

she states:

            UNDER STATE V. HERNANDEZ, 208 N.J. 24
            (2011), [DEFENDANT], WHO WAS SERVING A
            PROBATIONARY SENTENCE WHEN SHE WAS ARRESTED
            ON A NEW OFFENSE, IS ENTITLED TO JAIL


(continued)
unless and until a decision determines what course should be
taken.   State v. Grecco, 187 N.J. Super. 421, 423 (App. Div.
1982) (citing State v. Allen, 73 N.J. 132, 138-39 (1977)). We
therefore proceed to review the merits.



                                         7                                  A-2230-11T1
           CREDITS AGAINST HER VIOLATION OF PROBATION
           SENTENCES FOR THE ENTIRE PERIOD SHE WAS IN
           PRE[-]SENTENCE CUSTODY ON THE NEW OFFENSE,
           DURING   WHICH   THE  PROBATION  REVOCATION
           CHARGES WERE PENDING.

    The State refutes defendant's claimed entitlement to jail

credits,   except      for    the    period       from    June    30,     2011,     the

acceptance of defendant's VOP guilty plea, to August 4, 2011,

the day prior to sentencing on the Monmouth County convictions,

noting bail would have been considered "consolidated" on the

earlier date.    The State also concedes defendant is entitled to

thirty-four days gap-time credit from August 5 to September 7,

2011, the day before the VOP sentencing.                   Accordingly, we need

to consider only whether jail credit must be awarded against

defendant's VOP sentence for any period from her May 9, 2011

arrest on new charges to June 29, 2011.

                                          II.

    A   challenge      to    an   award    or    denial   of     jail    credits,      as

inconsistent    with    Rule      3:21-8,       constitutes      an     appeal    of   a

sentence "not imposed in accordance with law."                     State v. Rippy,

431 N.J. Super. 338, 347 (App. Div. 2013) (citation and internal

quotation marks omitted).           In our review, we accord no special

deference to a trial judge's "'interpretation of the law and

legal consequences that flow from established facts[.]'"                          State

v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006) (quoting




                                           8                                 A-2230-11T1
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995)).       We review legal issues de novo.

      The   determination     of    a    defendant's      eligibility          for    jail

credits, which in effect reduces the time to be served on a

sentence, is governed by the Rule, as most recently interpreted

by the Court in Hernandez.                Consistent with the dictates of

fundamental    fairness,     Rule       3:21-8     directs     a    "defendant       shall

receive credit on the term of a custodial sentence for any time

served in custody or jail or in a state hospital between arrest

and imposition of sentence."              R. 3:21-8.         Jail credits are so-

called "day-for-day credits."              Hernandez, supra, 208 N.J. at 37

(citing Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App.

Div. 2005), certif. denied, 186 N.J. 606 (2006)).                         "[They] are

applied to the 'front end' of a defendant's sentence, meaning

that he or she is entitled to credit against the sentence for

every day . . . held in custody for that offense prior to

sentencing."       Ibid.

      Prior   to    Hernandez,      when       a   defendant       in   custody      faced

multiple charges, the Rule was interpreted to provide credit

"only for such confinement as is attributable to the arrest or

other detention resulting from the particular offense."                              State

v.   Black,   153    N.J.   438,    456    (1998)      (citations        and   internal

quotation marks omitted).            A defendant sentenced for multiple




                                           9                                    A-2230-11T1
offenses was afforded credit for presentence custody, which was

matched to the criminal offense resulting in confinement.                                See

State v. Carreker, 172 N.J. 100, 115 (2002) (declining credit

against    a    New     Jersey    sentence       as    the    defendant      was   already

serving a New York sentence and a condition of the transfer to

New Jersey for disposition of pending charges was she continue

to serve the New York sentence); State v. Hemphill, 391 N.J.

Super. 67, 70 (App. Div.) (limiting application of jail credits

to the particular offense for which there was confinement or

detention), certif. denied, 192 N.J. 68 (2007).                          Credit for the

same days of confinement could not be awarded against more than

one   sentence;       rather,     credits       were    awarded      only    against     the

imposed    sentence       for    the    offense       causing    defendant's       arrest.

See   In   re     Hinsinger,      180    N.J.    Super.       491,   499     (App.    Div.)

(noting     Rule      3:21-8     "only     applies       to     confinement        directly

attributable       to    the     particular       offense       giving      rise    to   the

initial    incarceration"),            certif.    denied,       88   N.J.    494   (1981);

State v. Marnin, 108 N.J. Super. 442, 444 (App. Div.) ("But time

spent in custody is required to be credited only against the

sentence    on     the   charge    which     brought         about   that    custody."),

certif. denied, 55 N.J. 598 (1970); State v. Allen, 155 N.J.

Super.     582,    585    (App.    Div.)     (declining         to   credit    sentences

imposed for offenses in different counties, explaining "to give




                                            10                                     A-2230-11T1
.   .   .     credit      .    .   .    in    both     counties      would      bestow       .    .   .

impermissible          double          credit"),       certif.      denied,          77    N.J.    472

(1978), disapproved by Hernandez, supra, 208 N.J. at 49.

        In     some     instances,            credit     was       discretionary,            awarded

"'based        on     considerations            of     fairness,         justice          and     fair

dealings.'"          Hernandez, supra, 208 N.J. at 37 (quoting Hemphill,

supra, 391 N.J. Super. at 70 (granting credit for confinement in

Scotland       while      awaiting        extradition         on   New    Jersey          charges)).

See also State v. Grate, 311 N.J. Super. 456, 458-59 (App. Div.

1998)        (applying         jail      credits       even     though         the    defendant's

incarceration was "not directly a consequence of the arrest" but

"was nevertheless fairly attributable to the indictment on which

he was eventually sentenced").

        In    Hernandez,           the       Court     sought      to     resolve          questions

surrounding         the       accrual     of    jail    credits         "for    time       spent      in

presentence custody on multiple charges" after noting the denial

of jail credits caused an inequity, particularly among indigent

defendants unable to post bail, who remained in pre-adjudication

custody on multiple offenses.                    Hernandez, supra, 208 N.J. at 45.

"[T]he       Court     reasoned         that    uniformity         in    the    award       of    jail

credits is required to avoid sentencing disparity and provide

equal treatment."               Rippy, supra, 431 N.J. Super. at 347 (citing

Hernandez, supra, 208 N.J. at 49).                              The application of Rule




                                                 11                                         A-2230-11T1
3:21-8,     as    expressed     in     Hernandez,          intends    to     eliminate

inconsistencies       in     sentences        by    assuring       the      real     time

consequence of a sentence is not dependent upon which charge is

resolved    first,     whether       charges       are   embodied     in     a     single

indictment or multiple indictments, or on factors subject to the

application of discretion or possible manipulation.                         Hernandez,

supra, 208 N.J. at 48-49.

       Concluding the language of the Rule was clear, the Court

held    "defendants     are    entitled        to    precisely       what    the      Rule

provides:     credits against all sentences 'for any time served in

custody[,] in jail or in a state hospital between arrest and the

imposition of sentence' on each case."                     Id. at 28 (quoting R.

3:21-8).     Thus, the Court held the Rule mandates a defendant

receives    jail    credit     for    time    spent      in    presentence       custody

against     all    sentences     imposed       on    all      convictions.          Ibid.

Concisely, presentence credit begins upon arrest until the first

sentencing.       Id. at 50.     "[O]nce the first sentence is imposed,

a defendant awaiting imposition of another sentence accrues no

more jail credit under Rule 3:21-8."                Ibid.

       Hernandez did not specifically address the question here

presented: that is, whether a defendant, initially arrested and

held on one charge, who is then served with a VOP for committing

that new offense, may receive jail credits not only against the




                                         12                                      A-2230-11T1
sentence imposed for the new offense, but also for any custodial

term imposed for the VOP.           We acknowledge neither the statutory

scheme governing probationary sentences nor Rule 3:21-8 cedes a

direct answer to this question.

      "A [VOP] is the vehicle by which the probation officer

brings   a    probationer       before   the       court   for    non-compliance."

Adult    Violation         of   Probation         Guidelines     and    Procedures,

Directive #7-08 (issued April 7, 2008), 1-2 (Guidelines).7                       Prior

to   completion       or   discharge   of     a   probationary     sentence,        when

Probation has probable cause to believe a defendant disregarded

the conditions of a probationary sentence by committing a new

offense, a defendant may be arrested and held pending a hearing

on the charges stated in the VOP.                 N.J.S.A. 2C:45-3(a)(2).            See

also State v. Wilkins, 230 N.J. Super. 261, 264 (App. Div.)

(holding a defendant may be found to have violated probation by

engaging     in   a   new   offense    even       before   conviction    of     a    new

crime), certif. denied, 117 N.J. 84 (1989).                    The court may order

a defendant held "without bail, pending a determination of the

charge[.]"        N.J.S.A.      2C:45-3(a)(3).         "[T]he     issuance      of    an

arrest warrant or a summons cannot occur as a result of a mere

whim, but instead must be precipitated by the preparation of


7
    Available at http://www.judiciary.state.nj.us/directive/2008/
dir_7_08a.pdf.



                                         13                                   A-2230-11T1
underlying documentation that would support the conclusion that

there is probable cause to believe defendant has violated the

terms of his [or her] probation."            State v. Nellom, 178 N.J.

192, 200-01 (2003).      "Each of those initiatives is intended to

notify [the] defendant that he [or she] is being charged with

violating probation and to bring him or her before the court."

Id. at 199.

    "With respect to a defendant who violates a probationary

condition,    the    initial    question    is   whether      the    violation

justifies revocation of probation.            Some violations are more

serious    than   others."     State   v.   Baylass,   114    N.J.   169,   175

(1989).    Once a court determines "the defendant has inexcusably

failed to comply with a substantial requirement imposed as a

condition of the order or if he has been convicted of another

offense, [the court] may revoke the suspension or probation and

sentence or resentence the defendant," N.J.S.A. 2C:45-3(a)(4),

imposing "any sentence that might have been imposed originally

for the offense of which he was convicted."                  N.J.S.A. 2C:45-

3(b).     "Thus, a probation violation, although it has no bearing

on the original sentence, may affect the later 'in-out' decision

whether to incarcerate the defendant."           Baylass, supra, 114 N.J.

at 174.




                                       14                             A-2230-11T1
    The State argues jail credits, as authorized by the Rule,

are not triggered under the facts of this case.                     Noting the Rule

grants jail credit for custodial time "between arrest and the

imposition of sentence," the State contends a VOP sentence is

merely a continuation of a previously imposed sentence, not a

newly imposed sentence, making the Rule inapplicable.                      Further,

the State maintains defendant's confinement was unrelated to her

VOP charges because she was neither arrested nor detained for

violating    probation.        Because    defendant     was    incarcerated      for

commission    of   a    new   third-degree      offense       and    received   jail

credits against that conviction for the time held, no additional

credit is warranted.          We examine these separate issues in more

detail.

    The State first contends a custodial term imposed following

conviction for a VOP is merely "a resentence," which is legally

distinguishable        from   the   imposition     of    an    initial     sentence

following conviction, as referenced in Rule 3:21-8.                     Drawing an

analogy to a parole violation, the State, cites Black, supra,

153 N.J. at 461, to suggest a VOP sentence is merely part of the

initial sentence to which jail credits do not apply.

    Upon conviction of a VOP, our courts have referred to the

imposition    of   "a     resentence,"        likely    in    keeping    with    the

phraseology used by the Legislature in N.J.S.A. 2C:45-3(a)(4)




                                         15                                A-2230-11T1
(authorizing the court to "revoke the suspension or probation

and    sentence    or    resentence       the      defendant"        (emphasis       added)).

The term "resentence" also reflects the principle that "'the

sentence imposed after revocation of probation should be viewed

as focusing on the original offense rather than on the violation

of probation as a separate offense.'"                      State ex rel. C.V., 201

N.J. 281, 297 (2010) (quoting State v. Ryan, 86 N.J. 1, 8, cert.

denied, 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981)).

       Despite the label, we disagree that a sentence imposed once

probation is revoked is analogous to a violation of parole.

Drawing on the Court's discussion in Hernandez, we conclude the

time    spent     by     a   probationer           who    is    in    custody        awaiting

adjudication for a VOP is not analogous to a defendant arrested

and held for a parole violation.

       "Parole     is    a   period      of   supervised         release       by    which    a

prisoner is allowed to serve the final portion of his sentence

outside    the    gates      of    the   institution           on    certain    terms      and

conditions,       in    order     to   prepare      for    his      eventual    return       to

society."      Black, supra, 153 N.J. at 447 (citations and internal

quotation marks omitted).              When "a parolee is taken into custody

on a parole warrant, the confinement is attributable to the

original offense on which the parole was granted and not to any

offense   or     offenses       committed      during      the      parolee's       release."




                                              16                                     A-2230-11T1
Id.   at    461.         Consequently,            confinement        pursuant     to    the

revocation     of       parole,       even       if    revocation       resulted       from

commission of a new offense, is time served "only against the

original sentence" because imprisonment was "attributable only

to the parole violation."                   Id. at 456.         Jail credits do not

apply because confinement was "time accrued after imposition of

a custodial sentence."              Hernandez, supra, 208 N.J. at 44-45.

      A sentence imposed following conviction for a VOP is not a

continuation       of        the    initial       sentence      and     Black     is    not

controlling.            We    conclude       a     custodial        sentence     following

conviction for a VOP is a separate sentence falling within the

parameters of the phrase "imposition of sentence" as used in

Rule 3:21-8.

      The   decision         to    sentence      a    probationer      to   imprisonment

after conviction of a VOP is the result of distinct proceedings.

Baylass, supra, 114 N.J. at 172-76.                       A sentencing judge must

identify and weigh aggravating and mitigating factors at the

probation    violation             hearing       to   determine       the      appropriate

sentence.     State v. Molina, 114 N.J. 181, 183 (1989) (citing

Baylass, supra, 114 N.J. at 173).                      In this process, whether a

custodial     sentence             should     be      imposed        requires      a    new

determination,          not        merely        ordering       a     custodial        term




                                             17                                   A-2230-11T1
predetermined at the time of             the initial sentencing for the

underlying offense.

     In a different context, the Court concluded a trial court

was mistaken in believing that upon sentencing for a VOP it was

bound to impose a parole disqualifier, waived by the prosecutor

upon imposition of the initial probationary sentence.                          State v.

Peters, 129 N.J. 210, 216-17 (1992); State v. Vasquez, 129 N.J.

189, 195 (1992).      The Court made clear, a "defendant did not at

the time of pleading guilty to the underlying offense waive the

right to appeal the prosecutor's attempt to apply the parole

ineligibility term to [the] defendant's sentence on violation of

his probation."      Vasquez, supra, 129 N.J. at 195.                This approach

highlights   the      originality       of    the        exercise        of    judicial

discretion, as guided by the Code of Criminal Justice, when

entering a sentence on a VOP conviction.                 Therefore, in our view

such a sentencing is like any other.8

     Hernandez      provides    a     more   basic       reason     to    reject         the

State's   position    that     jail    credits      do    not     apply       to     a   VOP

sentence.     The    Court's     analysis     emphasized          the     defendant's


8
     Although inapplicable to this matter, we are aware this
court has drawn a distinction in the consequences upon
resentencing for violation of the terms of special probation,
authorized by N.J.S.A. 2C:35-14. See State v. Bishop, 429 N.J.
Super. 533, 541-42 (App. Div.), certif. granted, 216 N.J. 14
(2013).



                                        18                                         A-2230-11T1
"custodial status."            Hernandez, supra, 208 N.J. at 47.                   ("Ms.

Hernandez should be entitled to jail credit . . . for the time

she spent in custody between her . . . arrest and the date

sentence was imposed . . . (at which time her custodial status

changed by virtue of the fact she began to serve a sentence).").

Thus,      Hernandez    clarifies     that      "imposition   of    sentence"        set

forth      in   the    Rule   means   a    "custodial      sentence,"        which    by

definition would exclude a non-custodial probationary one.                           Id.

at   36.        See   also    State   v.   Towey,    114    N.J.   69,   86       (1989)

(explaining "the thrust of [Rule 3:21-8] is to restrict credit

to   'custodial'       confinements,       either    in    jail    or   in    a   state

hospital" which were involuntary, thus excluding a defendant's

voluntary admission to a treatment hospital); Hernandez, supra,

208 N.J. at 42 (discussing Towey's holding, stating "we held the

defendant's hospital confinement was not custodial within the

meaning and requirements of [Rule 3:21-8])."

      Having found a VOP sentence falls within the bounds of a

sentence to which Rule 3:21-8 applies, entitling a defendant to

jail credit for pre-adjudication confinement, we next consider

the State's second argument that defendant was not arrested or

confined for a VOP, precluding accrual of jail credits.                           Noting

no detainer was lodged with the statement of VOP charges, the

State      advocates     jail    credit      were   properly       denied     because




                                           19                                 A-2230-11T1
"[d]efendant was 'in custody' . . . because of her Monmouth

County arrest, not her Middlesex County VOP[.]"

    The   State's   position    embraces     the        fact    that   probation

violations   vary   in   severity    such        that     the    treatment        of

violations   differs.     The   filing      of    a     VOP     is   not    always

accompanied by an arrest warrant.          We confine our review to a

defendant who is in custody after commission of another criminal

offense while on probation, and against whom a summons for a VOP

has been issued rather than an arrest warrant.

    When a defendant commits a new offense while on probation:

          (1) The court may summon the defendant to
          appear before it or may issue a warrant for
          his arrest;

          (2) A probation officer or peace officer,
          upon request of the chief probation officer
          or   otherwise  having probable   cause  to
          believe that the defendant has failed to
          comply with a requirement imposed as a
          condition of the order or that he has
          committed another offense, may arrest him
          without a warrant;

          (3) The court, if there is probable cause to
          believe that the defendant has committed
          another offense or if he has been held to
          answer therefor, may commit him without
          bail, pending a determination of the charge
          by the court having jurisdiction thereof[.]

          [N.J.S.A. 2C:45-3(a) (emphasis added).]

    The Guidelines also state: "If a determination is made to

file a VOP because of a new arrest, the probation officer shall




                                    20                                     A-2230-11T1
request the Superior Court to issue a warrant or a summons to

appear     .    .    .     prior    to     the    expiration         of    the    term     of

supervision."            Guidelines, supra, at 5.              Further, the Guidelines

direct a VOP must be filed when a probationer commits a new

first or second degree offense, and filed "in most cases" when a

probationer is arrested for a third or fourth degree offense.

Ibid.

     Despite the ideal expressed by N.J.S.A. 2C:45-1(a) and the

Guidelines          to      achieve       consistent           probation        supervision

strategies, these provisions allow discretionary decisions on

whether the probationer should be arrested pending review of the

alleged    VOP.           Moreover,      caseload       efficiencies       among    county

probation       departments        may     vary     the       treatment    of    similarly

situated       probationers        charged       with        violating    the    terms    of

probation.

     The       Court       identified      uniformity          and   equality      as    the

paramount       goals       to     be    achieved         in    criminal        sentencing.

Hernandez, supra, 208 N.J. at 48-49.                      These goals are necessary

to   maintain        fundamental         fairness       in     the   treatment     of    all

defendants.         More specifically, the Court directed jail credits

               must be consistently applied to promote
               uniformity in sentencing; there is no room
               for discretion in either granting or denying
               credits.      Both   can  promote    sentence
               disparity based on the lack of uniformity in
               exercising    discretion.       Thus,    such



                                             21                                    A-2230-11T1
            discretion avoids the very equal protection
            the Rule was designed to promote.

            [Ibid.]

This is especially true for the "'presumably innocent but poor

defendant' who could not make bail or conditions of pre-trial

release."    Id. at 36 (quoting Richardson v. Nickolopoulos, 110

N.J. 241, 249 n. 2 (1988)).

       Hernandez examined two instances where the defendants were

held on multiple offenses, one where charges arose in the same

county,   and   the   other   where   charges     originated   in   different

counties.    Hernandez, supra, 208 N.J. at 28-30.              As the Court

expounded:

            In this context[,] it is inconceivable that
            two   defendants  sentenced   to   the  same
            sentences for the same crimes in two
            different counties should actually serve
            different amounts of real time depending
            only on the sequence and timing of the
            imposition of sentence. . . .    Neither the
            Code of Criminal Justice nor our rules of
            procedure contemplate that the real time a
            defendant is to serve in custody should turn
            on which case a prosecutor or court decides
            to move first.

            [Id. at 46-47.]

This   pronouncement    makes    clear     that   the   overarching     public

policy must be to provide consistency in awarding jail credits

to achieve fairness in sentencing to all.




                                      22                              A-2230-11T1
       When viewed in such a light, we are hard-pressed to agree

that    application     of    jail    credits       among    defendants      similarly

situated should vary because Probation requested a warrant or

detainer for one, but only served a statement of charges to

another.       Hernandez       directs       such     sentencing       disparity       be

eliminated.     Id. at 48-49.

       Here, defendant's commission of new third-degree offenses

could have subjected her to arrest for violating probation, yet

her    circumstances    of     detention      on    the     new    charges    may    have

mitigated the need to also seek an arrest warrant for the VOPs.

This type of discretionary determination should not preclude her

entitlement    to   jail     credit    on     the    VOP    sentence       because    she

actually was in custody awaiting adjudication on both her new

charge and the VOP.          Ibid.    Under these circumstances, Hernandez

constrains allowing an exercise of a discretion — the request to

arrest    or   detain    for    the    VOP     —    to     impact    the     real    time

consequences of a defendant's sentence.                   Id. at 46-47.9

       Accordingly,     when     a    VOP     statement       of     charges    for     a

commission of a first, second, third or fourth degree offense is


9
     Our determination is limited to defendants held prior to
adjudication.   Certainly, had defendant made bail after being
arrested on the Monmouth County charges prior to issuance of the
VOP statement of charges, which were not accompanied by a
request for an arrest warrant, the issue of awarding jail credit
on the VOP would not arise.



                                         23                                    A-2230-11T1
served on a confined defendant, the statement of charges serves

as the substantial equivalent of an arrest as used in Rule 3:21-

8.    The serving of the statement of charges to a defendant who

is confined triggers the award of jail credits for the period of

pre-adjudication confinement against the VOP sentence and the

sentence for the new offense.              See Hernandez, supra, 208 N.J. at

36 (stating "'Rule 3:21-8 expresses the public policy of the

State    and   should    be     liberally        construed'"    (citing       State    v.

Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974))).                          We stress

the requirement is to award jail credits against sentences for

all charges causing pre-adjudication confinement, and to avoid

parsing custodial credit among charges resulting in confinement.

      As to when the jail credit clock commences, defendant urges

credit     accrue     with    her    arrest      for   the    new    charges.         She

maintains this date provides certainty and insures fundamental

fairness, eliminates the possibility of sentencing disparity.

See   Hernandez,       supra,       208   N.J.    at   48-49.        Defendant       also

contends other events, such as the filing of the statement of

charges, detainer, probation chief's warrant, bench warrant, or

court    order   to    be    held     without      bail,     "are   all   subject     to

vagaries" of negligent delay or willful manipulation.

      We   reject     defendant's         assertion    credit       against    the    VOP

sentence begins upon her arrest on new charges.                           The Court's




                                           24                                  A-2230-11T1
direction in Hernandez that jail credits commence upon arrest,

id. at 47-49, must be viewed in the context of the circumstances

examined.        Ms. Hernandez was denied jail credit against the

sentence      imposed     for    the    conviction        on   charges     causing      her

initial arrest.          Id. at 28-30.          Consequently, the pre-custodial

period     for     which       credit     was     sought       commenced        with    the

defendant's       arrest.         Ibid.          Unlike      Hernandez,    defendant's

request in this case to grant credit upon arrest would include a

period of time preceding the submission of the VOP statement of

charges.      We cannot sanction the award of jail credit prior to

the filing of the VOP charges.

    The       more      appropriate     date      for     credit     against     the    VOP

sentence is the date the VOP statement of charges issued.                                 We

accept this date primarily because VOPs do not automatically

issue, but must be supported by probable cause.                       Wilkins, supra,

230 N.J. Super. at 264 (providing evidence of alleged criminal

conduct, prior to conviction, is sufficient to support VOP).

Therefore, Probation cannot pursue a VOP until and unless it has

probable cause of a defendant's violation of probation.                            We are

satisfied the Guidelines sufficiently direct the timing of the

filing   of      VOPs    to    insure   charges       will     not   be   delayed      once

Probation      learns      a    defendant       has     committed     a   new    offense.

Absent a showing of an abusive exercise of authority, it would




                                            25                                    A-2230-11T1
be unreasonable to grant defendant credit for the custodial time

elapsing prior to the filing of a VOP statement of charges.

    Here, defendant was arrested on the Monmouth County charges

on May 9, 2011.    The statement of charges for the VOP was filed

on May 23, 2011.       Defendant is entitled to seventy-four days

jail credit from May 23 to August 4, 2011, which includes the

period conceded by the State from June 30 to August 4, 2011.

The JOC must be amended to reflect these credits, as well as the

agreed   thirty-four   days   gap-time   credit,   for   August   5   to

September 8, 2011.

    Reversed and remanded.




                                  26                          A-2230-11T1
