STATE OF NEW JERSEY v. PAULINO NJANGO

 

(NOTE: The status of this decision is Published.)

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0397-18T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,          APPROVED FOR PUBLICATION

                                            March 5, 2020
v.
                                        APPELLATE DIVISION
PAULINO NJANGO, a/k/a
PAULINO NIANGO, and
PAULINO ERNESTO
NJANGO,

     Defendant-Appellant.
________________________

          Submitted February 24, 2020 – Decided March 5, 2020

          Before Judges Sabatino, Sumners and Geiger.

          On appeal from the Superior Court of New Jersey, Law
          Division, Essex County, Indictment Nos. 06-11-3542
          and 07-09-3244.

          Joseph E. Krakora, Public Defender, attorney for
          appellant (Cody Tyler Mason, Assistant Deputy Public
          Defender, of counsel and on the briefs).

          Theodore N. Stephens II, Acting Essex County
          Prosecutor, attorney for respondent (Barbara A.
          Rosenkrans, Special Deputy Attorney General/Acting
          Assistant Prosecutor, of counsel and on the briefs).

          Appellant filed a pro se supplemental brief.
      The opinion of the court was delivered by

GEIGER, J.A.D.

      This appeal presents the unresolved issue whether prior service credits

may be applied to reduce the mandatory period of parole supervision under the

No Early Release Act (NERA),  N.J.S.A. 2C:43-7.2. For the following reasons

we hold they may not.

      This is the fourth appeal arising from defendant Paulino Njango's

convictions and sentences on two indictments relating to crimes committed in

2006 and 2007. In order to understand the issues raised on appeal, we recount

the pertinent procedural history.

      In November 2006, an Essex County Grand Jury returned Indictment No.

06-11-3542 charging defendant with crimes stemming from a June 23, 2006

incident involving his then mother-in-law, Lydia Lorenzo.     The indictment

charged defendant with first-degree kidnapping,  N.J.S.A. 2C:13-1(b)(1); first-

degree attempted murder,  N.J.S.A. 2C:5-1 and         2C:11-3; second-degree

aggravated assault,  N.J.S.A. 2C:12-1(b)(1); second-degree burglary,  N.J.S.A.

2C:18-2; third-degree terroristic threats,  N.J.S.A. 2C:12-3(a); fourth-degree

unlawful possession of a weapon,  N.J.S.A. 2C:39-5(d); and third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C: 39-4(d).


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      In September 2007, an Essex County Grand Jury returned Indictment No.

07-09-3244, charging defendant with various crimes stemming from a May 23,

2007 incident involving his then estranged wife, Jennie Rosario, that occurred

within one month of defendant's release on bail on the first indictment. The

indictment charged defendant with first-degree kidnapping,  N.J.S.A. 2C:13-

1(b); first-degree attempted murder,  N.J.S.A. 2C:5-1 and 2C:11-3; second-

degree aggravated assault,  N.J.S.A. 2C:12-1(b)(1); third-degree terroristic

threats,  N.J.S.A. 2C:12-3(a); and related weapons charges.

      On September 24, 2007, defendant entered a plea of guilty, pursuant to a

plea agreement, to the charges of kidnapping, attempted murder, burglary, and

unlawful possession of a weapon under Indictment 06-11-3542, and to the

charges of attempted murder, unlawful possession of a weapon, and terroristic

threats under Indictment 07-09-3244. In return, the State agreed to recommend

an aggregate term of incarceration of eighteen years, subject to the eighty-five

percent period of parole ineligibility and mandatory period of parole supervision

imposed by NERA. Defendant was sentenced in accordance with the plea

agreement on November 30, 2007. He did not file a direct appeal from his

conviction or sentence.




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      Defendant subsequently filed a petition for post-conviction relief (PCR)

claiming he was under the influence of prescription medication at the time of

the plea, his counsel was ineffective because he misled defendant about the

terms of the plea, and his counsel failed to adequately inform defendant about

"potential defenses" of insanity,  N.J.S.A. 2C:4-1, or diminished capacity,

 N.J.S.A. 2C:4-2. The petition was denied without an evidentiary hearing on

May 24, 2010.     Defendant appealed.     We reversed and remanded for an

evidentiary hearing to determine if defendant's plea was knowing, intelligent,

and voluntary. State v. Njango, Docket No. A-0073-10 (App. Div. Aug. 6,

2013). Following an evidentiary hearing, the remand court denied defendant's

PCR petition in its entirety. Defendant again appealed.

      While the appeal of the denial of his PCR petition was pending, defendant

filed a pro se motion to correct an illegal sentence under  N.J.S.A. 2C:44-5(h).

The trial court denied the motion. A few weeks later, defendant filed a similar

motion to correct an illegal sentence under  N.J.S.A. 2C:44-5.1. The court also

denied that motion. Defendant appealed the denial of both motions.

      On appeal, defendant contended his sentences were illegal under  N.J.S.A.

2C:44-5(h) and 2C:44-5.1. Specifically, defendant noted

            he pled guilty to offenses in the 2007 indictment
            committed while on bail for crimes charged in the 2006

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            indictment and  N.J.S.A. 2C:44-5(h) mandates that
            sentences for crimes committed while on bail must be
            consecutive unless the trial court makes a "serious
            injustice finding in consideration of the character and
            condition of the defendant that would override a need
            to deter." As the trial court did not make such a finding,
            defendant contends that his sentence does not comply
            with the law and must be vacated. Additionally,
            defendant argues that  N.J.S.A. 2C:44-5.1 requires a
            mandatory extended term where, as here, crimes were
            committed while defendant was out on bail.

            [State v. Njango, Docket No. A-1400-12 (App. Div.
            Apr. 14, 2015) (slip op. at 2).]

      We reversed and remanded for further proceedings to "address the

condition under which concurrent sentences may be given for crimes committed

on bail under N.J.S.A. 2C:44-5(h)." Id. at 4. Because the offenses in the second

indictment occurred while defendant was on bail from the first indictment, there

must be consecutive terms imposed if convicted and sentenced on both

indictments "unless the court, in consideration of the character and conditions

of the defendant, finds that imposition of consecutive sentences would be a

serious injustice which overrides the need to deter such conduct by others."

 N.J.S.A. 2C:44-5(h). Therefore, "[i]f the court cannot justify a concurrent

sentence in compliance with the statute, then the plea, which was based upon

concurrent sentences, must be vacated and the charges reinstated." Njango, slip

op. at 4 (citing State v. Moore,  377 N.J. Super. 445, 452 (App. Div. 2005)).

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      On remand, the trial court did not address the reasons it imposed

concurrent sentences because a successor plea agreement was reached on August

19, 2015. On the first indictment, defendant pled guilty to first-degree attempted

murder; second-degree burglary; and fourth-degree possession of a weapon, in

return for the State's recommendation for imposition of a ten-year NERA term.

On the second indictment, defendant pled guilty to second-degree aggravated

assault; fourth-degree unlawful possession of a weapon; and third-degree

terroristic threats, in return for the State's recommendation for imposition of a

consecutive eight-year NERA term. At resentencing, the court accepted the

sentencing recommendations but denied defendant's motion seeking application

of prior service credits to both consecutive sentences for the time he served when

the sentences ran concurrently. The court only awarded the time served of 2619

days (approximately seven-and-a-half years) under the concurrent sentences to

the first of the consecutive sentences imposed. Defendant appealed.

      We concluded that failing to award defendant prior service credit from the

two vacated concurrent sentences to both consecutive terms violated defendant's
 Fifth Amendment rights. State v. Njango, Docket No. A-3004-15 (App. Div.

Feb. 1, 2017) (slip op. at 3). Accordingly, we reversed and remanded for the

"entry of an amended judgment of conviction awarding defendant full service


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credits on both indictments." Id. at 4. The Supreme Court denied the State's

petition for certification, State v. Njango,  230 N.J. 363 (2017), and the State's

motion for reconsideration.

      Defendant asserts he was released from prison on May 10, 2017, after

applying the 660 days of jail credit on the first indictment and 2692 days of prior

service credits on both indictments. Due to the inherent passage of time that

elapsed while three appeals and remand proceedings were pending, defendant

spent more than one year longer in prison than he should have due to the

sentencing court's misapplication of the prior service credits. This resulted in

defendant remaining in prison beyond the correct initial parole eligibility and

max-out dates. Defendant is still serving the parole supervision mandated by

NERA.

      Defendant filed a second petition for PCR. He claimed the court's failure

to award him prior service credits on the second indictment violated the terms

of his plea agreement and his expectations. As a remedy, defendant argued a

credit for the extra time he served in prison should be applied against his period

of parole supervision. In the alternative, he sought to withdraw from his plea

agreement.




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      The PCR court issued an August 6, 2018 order and oral decision denying

the petition without an evidentiary hearing. It stated that although the extra time

defendant spent in custody was "unfortunate," it is "not time that can be given

back." The court concluded the prior service credit error did not "undermine the

plea agreement," noting that "neither the Appellate Court nor the Trial Court

found that there was any violation of the terms of the plea agreement." The

court determined that setting aside the plea agreement "doesn't solve any

problem." The court held that it could not grant any relief to defendant because

the sentence was not illegal. This appeal followed.

      Defendant raises the following point:

            DEFENDANT'S SENTENCE IS ILLEGAL AND THE
            TERMS AND EXPECTATIONS FOR HIS PLEA
            WERE    NOT   MET   BECAUSE   HE    WAS
            INCARCERATED     AND   DENIED    PAROLE
            ELIGIBILITY FOR    LONGER THAN THE
            SENTENCE AND PLEA PERMITTED.        THE
            MATTER SHOULD BE REMANDED FOR THE
            PARTIES TO CRAFT AN APPROPRIATE REMEDY
            OR TO ALLOW DEFENDANT TO WITHDRAW HIS
            PLEA.

In a pro se supplemental brief, defendant raises the following additional point:

            DEFENDANT IS ENTITLED TO HAVE PLEA
            ENFORCED BY APPLYING PRIOR SERVICE
            CREDITS AND ADDITIONAL [ONE] YEAR
            [SEVEN] MONTHS UNLAWFULLY CONFINED TO
            HIS PAROLE AS A REMEDY.

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      Although it acknowledges that defendant spent more time in prison

because of the failure to award him the prior service credits on both indictments,

the State opposes crediting the extra time against the mandatory parole

supervision mandated by NERA.           It also opposes allowing defendant to

withdraw from his guilty plea.

      We are guided by certain well-established legal principles.             When

sentencing a defendant on a NERA offense, in addition to imposing the required

eighty-five percent period of parole ineligibility, the trial court must also impose

a five-year term of parole supervision for a first-degree crime, or a three-year

term of parole supervision for a second-degree crime, which

            shall commence upon the completion of the sentence of
            incarceration imposed by the court pursuant to
            [N.J.S.A. 2C:43-7.2(a)] unless the defendant is serving
            a sentence of incarceration for another crime at the time
            he completes the sentence of incarceration imposed
            pursuant to [N.J.S.A. 2C:43-7.2(a)], in which case the
            term of parole supervision shall commence
            immediately upon the defendant's release from
            incarceration.

            [N.J.S.A. 2C:43-7.2(c).]

      In State v. Friedman, the Court noted the Legislature's objective in

requiring mandatory parole supervision for NERA offenses was "to protect the

public from the risk posed by the release of violent offenders from


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incarceration." 1  209 N.J. 102, 120 (2012). The Court held that periods of

mandatory parole supervision on consecutive NERA sentences likewise run

consecutively. Ibid. The Court found that running such mandatory parole

supervision consecutively was "more consonant with the Legislature's

objective" in enacting NERA. Ibid.

      The sentencing and parole supervision requirements imposed by NERA

are mandatory. State v. Ramsey,  415 N.J. Super. 257, 271-72 (App. Div. 2010);

State v. Kearns,  393 N.J. Super. 107, 113 (App. Div. 2007). Failure to impose

the statutory period of parole ineligibility and parole supervision renders the

sentence illegal. Kearns,  393 N.J. Super. at 113.

      Parole is fundamentally different than imprisonment. NERA drastically

changed parole requirements, imposing an eighty-five percent period of parole

ineligibility for certain first and second-degree crimes. Cannel, N.J. Criminal

Code Annotated, cmt. 3 on  N.J.S.A. 2C:43-7.2 (2019). "In addition, [eighty-


1
   In reaching this conclusion, the Court noted that the Report of the Study
Commission on Parole (1996) "expressed its concern that the fifteen percent that
remained of the original custodial term following the release of an inmate
sentenced pursuant to NERA might not be an adequate deterrent to prevent the
offender from returning to violent crime. It thus stressed the need for post -
release monitoring and supervision." Friedman,  209 N.J. at 119. "After this
potential problem was recognized, the bill was amended to provide for
mandatory fixed periods of parole supervision for NERA offenders." Id. at 119-
20.
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five percent] of the maximum sentence imposed usually will be more than the

sentence reduced by credits." Ibid. For that reason, the Legislature imposed the

mandatory parole supervision period required by  N.J.S.A. 2C:43-7.2(c). Ibid.

"This provision . . . is 'unique and radically different' from the general parole

statute,  N.J.S.A. 30:4-123.45 to .95."     Friedman,  209 N.J. at 116 (citation

omitted).

      As we explained in Salvador v. Dep't of Corrections, "the Legislature has

spoken in clear and unambiguous terms that a person convicted of a NERA

offense must serve a five-year term of parole supervision."  378 N.J. Super. 467,

469 (App. Div. 2005). NERA imposes "mandatory fixed periods of parole

supervision." Friedman,  209 N.J. at 119-20. Accordingly, credits earned by

inmates may not be applied towards the period of parole supervision. Salvador,

 378 N.J. Super. at 469.

      If a defendant violates a condition of a term of parole supervision under

NERA, he or she "may be returned to custody not only for the balance of the

original custodial term, but for the remaining length of the parole supervisory

period." Friedman,  209 N.J. at 116; see also  N.J.S.A. 30:4-123.51b(a). This

can result in the defendant remaining imprisoned beyond the completion of the

underlying prison term. Cannel, cmt. 3 on  N.J.S.A. 2C:43-7.2.


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      We conclude that mandatory periods of parole supervision imposed under

NERA cannot be reduced by prior service credits, even where the defendant was

imprisoned longer than he should have been due to a failure to properly award

such credit. Defendant cannot trade unused prior service credit for mandatory

parole supervision time on a NERA offense.          To rule otherwise would be

contrary to the Legislature's purpose in enacting the mandatory parole

supervisory period.

      We are also convinced that defendant should not be permitted , at this late

date, to withdraw from his guilty plea. Defendant did not move to withdraw his

plea when the sentencing court determined in October 2015 that it would not

apply the prior service credit to both indictments. Defendant's decision not to

withdraw his plea at the time of sentencing suggests that he sought to both obtain

the benefit of the favorable plea agreement while repudiating the application of

prior service credit to only the first indictment. Moreover, "[t]he subsequent

accrual of additional jail credit that makes the risk of going to trial more

palatable is not a valid reason for setting aside a guilty plea." State v. Williams,

 458 N.J. Super. 274, 282 (App. Div. 2019).

      The trial court properly imposed the mandatory periods of parole

ineligibility and parole supervision at his final resentencing. His sentence did


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not violate NERA. Rather, defendant was not awarded proper prior service

credit. Although defendant claims that his expectations were not met, allowing

him to withdraw his guilty plea—which would reinstate all his original

charges—will not serve to remedy this situation. Indeed, as recognized by

counsel, it could result in conviction of additional crimes and a longer prison

sentence. See North Carolina v. Pearce,  395 U.S. 711, 719 (1969) ("Long-

established constitutional doctrine makes clear that . . . the guarantee against

double jeopardy imposes no restrictions upon the length of a sentence imposed

upon reconviction."), overruled on other grounds by Alabama v. Smith,  490 U.S. 794 (1989). Defendant's remedy, if any, is not in the Criminal Part. See ibid.

(noting "there is no way the years he spent in prison can be returned to him").

      Affirmed.




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