STATE OF NEW JERSEY v. PAULINO NJANGO

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAULINO NJANGO,

Defendant-Appellant.

_________________________________

February 1, 2017

Submitted January 18, 2017 Decided

Before Judges Koblitz and Sumners.

On appeal from 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 (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Paulino Njango is currently serving consecutive prison terms pursuant to plea agreements for two indictments after we vacated his previous concurrent sentences for the indictments and remanded for resentencing or vacation of his pleas. On remand, the trial court denied defendant's motion to apply prior service credit from the time he served when the sentences ran concurrently for both of his consecutive sentences. In a single-point argument, defendant states

DEFENDANT IS ENTITLED TO PRIOR-SERVICE CREDITS AGAINST THE SENTENCE ON EACH INDICTMENT BECAUSE DURING THE RELEVANT PERIOD, HE WAS SERVING CONCURRENT TERMS OF IMPRISONMENT, SIMULTANEOUSLY IN SATISFACTION OF BOTH EIGHTEEN-YEAR NERA TERMS.

Having considered the parties' arguments in light of the record and applicable law, we reverse the trial court's decision not to award prior service credit to both of his sentences and remand for further proceedings.

I.

We need not detail the events or extensive procedural history of defendant's crimes, as they were sufficiently recounted in our two prior unpublished decisions, State v. Njango, No. A-0072-10 (App. Div. Aug. 6, 2013) and State v. Njango, No. A-1400-12 (App. Div. Apr. 14, 2015). A brief summary will suffice to illuminate the issues raised in this appeal.

In November 2007, in accordance with guilty pleas for two separate indictments, defendant was sentenced to two concurrent eighteen-year prison terms on two separate indictments, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. While defendant's second appeal of his post-conviction relief (PCR) petition was pending before us, defendant filed two pro se motions to correct an illegal sentence under N.J.S.A. 2C:44-5(h) and 2C:44-5.1, respectively, which the trial court subsequently denied. State v. Njango, supra, slip op. at 4 (April 14, 2015). We then reversed the denial regarding N.J.S.A. 2C:44-5(h),1 and remanded for further proceedings so that the court could address, the reasons for defendant's concurrent sentence for crimes committed on bail under that statue. Id. at 8. Alternatively, if the court could not "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." Ibid.

Upon remand, the court did not address the reasons for its concurrent sentences for the two indictments because on August 19, 2015, another plea agreement was reached. In the first indictment, defendant pled guilty to first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree burglary, N.J.S.A. 2C:18-2; and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d), in return for the State's recommendation for imposition of a ten-year prison term, subject to NERA. As to the second indictment, defendant pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a), in return for the State's recommendation for imposition of a consecutive eight-year prison term, subject to NERA.

After explaining the terms of defendant's new consecutive sentences under the guilty pleas, the court asked defendant when he expected to be eligible for parole. Although defendant's response, "immediately, Your Honor[,]" was an indication of his belief that he was entitled to apply prior service credit from the vacated concurrent sentences to both of the new consecutive sentences, there was no discussion of the merits of his declaration.

At resentencing, on October 1, 2015, the court accepted the sentencing recommendations but denied defendant's motion seeking application of prior service credits to both of the consecutive sentences. 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.

In its decision,2 the court determined that prior service credits are not jail credits, which is how defendant referered to them. It pointed out that jail credit is for custodial time in jail or in a state hospital after arrest and prior to imposition of sentence, and is controlled by State v. Hernandez, 208 N.J. 24 (2011) and Rule 3:21-8. The court recognized that prior service credits are awarded when an "earlier conviction is reversed on direct or collateral appeal . . . [which is the] time span from the date of the sentencing until the conviction is vacated after appeal[.]" Citing Richardson v. Nickolopoulos, 110 N.J. 241, 248 (1988), the court found that granting defendant the relief he sought would undercut the purpose of consecutive sentences because N.J.S.A. 2C:44-5(e)(2), "require[ed] that consecutive terms be added to arrive at 'an aggregate term to be served equally to the sum of all terms.'"

The court further reasoned that since the prior service was earned when the two sentences ran concurrently, such service merged, and should only be applied to the first of the newly imposed consecutive sentences. The court also noted that to grant defendant's request would undermine the court's intent and objective in sentencing. This appeal ensued.

II.

Defendant contends that under State v. Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014), prior service credit is for time actually served on a sentence for a conviction that was reversed. He argues that since he initially was serving concurrent sentences, the time served on the prior sentences should be applied to both of the new sentences even though they are being served consecutively. Defendant asserts that the trial court's decision therefore violates his Fifth Amendment rights prohibiting double jeopardy of multiple punishments for the same offense, as articulated in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989).

Defendant contends that Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 70 (App. Div. 1998), also supports his entitlement to credit for time served on the vacated concurrent sentences, on his new consecutive sentences. In the context of parole eligibility dates, Curry determined that failing to give the defendant credit for the prior time he served was "ignoring the credit he earned on the reversed conviction and treating it as if it never existed." Ibid. In addition, defendant points out that when he filed his motion, the State did not cross-move to restructure the plea agreement on the grounds that the plea terms were misunderstood.

In opposition, the State argues that defendant received the entirety of his prior service credit when the court applied it to the first of his two new consecutive sentences. The State contends the fact that defendant's prior time was served on the concurrent sentences does not allow him to apply credit to both of his new consecutive sentences because to do so would result in an unwarranted windfall that he did not earn, thereby enabling him to be eligible for parole significantly earlier. The State claims that when renegotiating defendant's plea and sentences to conform to N.J.S.A. 2C:44-5(h), it was not contemplated that defendant would be able to apply almost seven-and-a-half years of prior service credit to the new consecutive sentences.

While we appreciate the State's position, we conclude defendant's argument is persuasive. During defendant's initial period of incarceration, he was "simultaneously serving time . . . on sentences that were running concurrently." State v. De Rosa, 332 N.J. Super. 426, 433 (App Div. 2000). Thus, credit should be given to defendant for the time he served on both concurrent sentences. To conclude otherwise would ignore the concurrent time that he served on the two indictments. See Curry, supra, 309 N.J. Super. at 70.

Moreover, we find instructive defendant's reliance on the United States Supreme Court's decision in Pearce. There, the defendant pled guilty to four charges of burglary, was sentenced, and received, in the aggregate, a ten-year term of imprisonment. Pearce, supra, 395 U.S. at 714-16, 89 S. Ct. at 2074-76, 23 L. Ed. 2d at 662-64. His convictions were later vacated when a court determined that he had not been afforded his constitutional right to counsel. Ibid. After retrial, he was convicted and sentenced, in the aggregate, to a twenty-five-year term of imprisonment. Ibid. When not afforded any credit for the time spent in prison on the original sentence, the defendant brought a habeas corpus proceeding in federal district court, alleging the state trial court erred when it failed to give him credit for the time previously spent in prison and for imposing a more severe sentence upon retrial. Ibid.

The Court concluded that for any "sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence." Pearce, supra, 395 U.S. at 716-17, 89 S. Ct. at 2076, 23 L. Ed. 2d at 664. Citing Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the Court noted, "the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment[,]" and is a guarantee that "protects against multiple punishments for the same offense . . . [and] is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured." Pearce, supra, 395 U.S. at 717, 89 S. Ct. at 2076, 23 L. Ed. 2d at 664-65.

The Court further elaborated

We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully "credited" in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned -- by subtracting them from whatever new sentence is imposed.

[Id. at 718-19, 89 S. Ct. at 2077, 23 L. Ed. 2d at 665-66.]

We therefore conclude that failing to award defendant prior service credit from the two vacated concurrent sentences to both of the resentenced consecutive terms would violate defendant's Fifth Amendment rights. Needless to say, this consideration outweighs the concerns expressed by the trial court and argued by the State, that defendant's relief was not contemplated when the plea was negotiated and approved. Moreover, we are mindful that at his plea hearing, defendant forewarned of his position that he was entitled to apply prior service credit to both of the consecutive sentences, when in response to the court's inquiry he stated he would immediately be eligible for parole.

Reversed and remanded for the immediate entry of an amended judgment of conviction awarding defendant full service credits on both indictments. We do not retain jurisdiction.

1 Since 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).

2 The court read into the record the written decision that was provided to the parties.