NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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
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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 264 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.
7 A-2081-12T2