State v. Paulino Njango (084286) (Essex County & Statewide) ( 2021 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Paulino Njango (A-79-19) (084286)
Argued March 16, 2021 -- Reargued April 26, 2021 -- Decided August 3, 2021
ALBIN, J., writing for a unanimous Court.
The issue in this case is whether defendant Paulino Njango, whose time in prison
exceeded the permissible custodial term authorized by his sentence, is entitled to have the
excess prison time he served -- known as service credits -- reduce the period of parole
supervision he must serve under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In 2007, in accordance with a plea agreement with the State, Njango pled guilty to
certain counts in a 2006 indictment and a 2007 indictment. In November 2007, the trial
court imposed concurrent sentences on all of the charges to which Njango pled guilty in
the two indictments. Njango’s overall sentence was an eighteen-year NERA term --
meaning that he was parole-ineligible until he completed eighty-five percent of that
eighteen-year term -- followed by a five-year period of parole supervision.
Njango filed a petition for post-conviction relief (PCR), which was denied. He
also filed a motion to correct an illegal sentence, in which he advanced the surprising
argument that the trial court should have imposed consecutive sentences rather than
concurrent sentences under N.J.S.A. 2C:44-5(h). The trial court found the statute
inapplicable in light of the plea agreement, but the Appellate Division reversed because
the sentencing court had not made the “serious injustice” finding necessary to justify its
decision not to impose consecutive sentences for the offenses defendant committed while
released on bail.
The State and Njango entered into a superseding plea agreement in August 2015.
In accordance with the new agreement, Njango pled guilty to certain offenses from both
the 2006 and 2007 indictments. The court sentenced Njango on the 2006 indictment to
an overall ten-year NERA term (subject to a five-year period of parole supervision) to run
consecutive to the sentences imposed on the 2007 indictment. On the 2007 indictment,
the court imposed an overall eight-year NERA term (subject to a three-year period of
parole supervision). Njango’s aggregate sentence was an eighteen-year term, with a
fifteen-year, three-month, and eighteen-day parole disqualifier pursuant to NERA. He
also was subject to an eight-year period of parole supervision after completing the
custodial portion of his sentence. See N.J.S.A. 2C:43-7.2(c).
1
The court rejected Njango’s request to credit him for the time served on each
offense during the period the sentences on those offenses ran concurrently. Instead, the
court applied Njango’s total 2,692 days (approximately seven-and-a-half years) of prior
service credits to the front-end of his aggregate eighteen-year sentence. In a February
2017 decision, the Appellate Division reversed, determining that Njango should be
credited for the time he simultaneously served on the two indictments. The Court denied
the State’s petition for certification challenging that decision. On remand, the trial court
awarded Njango 2,692 days of service credits on both indictments. The next day, Njango
was released from prison.
Njango filed a PCR petition, claiming that had he received the proper number of
service credits at the time of his second sentencing, he should have been immediately
released from prison. He maintained that, as a result of the second sentencing court’s
error, he served an additional one year and seven months in prison. As a remedy, he
sought to have the period of parole supervision reduced by the excess time he served in
prison or, alternatively, to withdraw his plea. The PCR court denied the motion and the
Appellate Division affirmed, holding “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.” 463 N.J. Super. 1, 10 (App. Div. 2020).
The Court granted certification. 243 N.J. 264 (2020).
HELD: The mandatory period of parole supervision imposed under NERA is part of a
unitary sentence that is penal in nature. The State has kept Njango in prison for more
than a year beyond his release date. Without credit for the excess prison time, Njango
would serve more time in the custody of the Department of Corrections than authorized
by his sentence. Under the fundamental fairness doctrine -- an integral part of the due
process guarantee of the New Jersey Constitution -- the excess time Njango erroneously
served in prison must be credited to reduce the period of his parole supervision.
1. The Court does not reach the question, addressed on reargument, of whether defendant
is entitled to service credits on each count for which he was sentenced, or whether the
principles of State v. C.H., 228 N.J. 111 (2017), apply. In C.H., the Court determined
that, pursuant to Rule 3:21-8, the defendant was not entitled to the double counting of
pre-sentence jail credits “for time simultaneously spent in custody” on charges in two
separate indictments for which he received consecutive sentences. Id. at 118, 121. The
Court’s denial of certification as to the 2017 Appellate Division decision should not be
read as a determination or commentary on the merits of that decision. See State v.
Hodge, 105 N.J. 518, 519 (1986). Nevertheless, Njango had an expectation of finality in
that prior determination, and the Court thus confines its discussion to whether the excess
time Njango served in prison can offset the time he must serve under parole supervision
pursuant to NERA. The Court reviews the parties’ arguments on that issue. (pp. 11-15)
2
2. Based on the Appellate Division’s 2017 decision, Njango served at least one year and
seven months in prison beyond his release date. From the State’s public-safety
perspective, one year and seven months of prison surely is the equivalent of the same
period under parole supervision. A defendant is in the custody of the Department of
Corrections when serving a term of imprisonment under NERA. And, while serving a
NERA period of parole supervision, the defendant remains “in the legal custody of the
Commissioner of the Department of Corrections, and shall be supervised by the Division
of Parole of the State Parole Board as if on parole.” N.J.S.A. 30:4-123.51b(a). Under
New Jersey jurisprudence, parole is “in legal effect imprisonment” and therefore
punishment. Riley v. State Parole Bd., 219 N.J. 270, 288 (2014). Accordingly, if Njango
does not receive service credits for the excess time served in prison, he will remain in the
custody of the Department of Corrections for a year and seven months beyond the
maximum sentence imposed by the trial court. (pp. 15-18)
3. The Court has “construed the expansive language of Article I, Paragraph 1 [of the
New Jersey Constitution] to embrace the fundamental guarantee of due process.”
Jamgochian v. State Parole Bd., 196 N.J. 222, 239 (2008). An “integral part” of that
guarantee of due process is the doctrine of fundamental fairness, which “serves to protect
citizens generally against unjust and arbitrary governmental action, and specifically
against government procedures that tend to operate arbitrarily.” Doe v. Poritz, 142 N.J.
1, 108 (1995) (emphasis omitted). (pp. 18-20)
4. No persuasive reason has been advanced to explain why Njango’s serving an extra one
year and seven months in prison -- when he should have been serving that time on parole
supervision -- should not be credited towards his parole supervision period. The
objective of parole supervision -- to protect the public from the risk from violent
offenders -- was certainly satisfied when he was mistakenly or erroneously incarcerated
beyond the prescribed time for his release. If Njango were incarcerated for a violation of
his parole supervision, he would be entitled to use his excess service credits to reduce his
custodial time and therefore the overall period of his parole supervision. That a
defendant who violates parole can benefit from excess service credits while a defendant
who complies with parole cannot is an absurd result that the Legislature could not have
had in mind. The fundamental fairness doctrine is intended to provide a remedy for
inequitable and arbitrary decisionmaking. See ibid. Here, notions of fundamental
fairness compel conforming NERA to the State Constitution in a way that the Legislature
would likely have intended. Njango’s eight-year period of parole supervision must be
reduced by the excess time he served in prison (pp. 20-22)
REVERSED and REMANDED to the Parole Board.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
ALBIN’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-79 September Term 2019
084286
State of New Jersey,
Plaintiff-Respondent,
v.
Paulino Njango, a/k/a
Paulino Niango, and
Paulino Ernesto Njango,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
463 N.J. Super. 1 (App. Div. 2020).
Argued Decided
March 16, 2021 August 3, 2021
Reargued
April 26, 2021
Cody T. Mason, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Cody T. Mason, of counsel and on
the briefs).
Barbara A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause for
respondent (Theodore N. Stephens, II, Acting Essex
County Prosecutor, attorney; Barbara A. Rosenkrans, of
counsel and on the briefs, and Frank J. Ducoat, Special
Deputy Attorney General/Acting Assistant Prosecutor, on
the briefs).
1
Jennifer E. Kmieciak, Deputy Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Andrew J. Bruck, Acting Attorney General,
attorney; Jennifer E. Kmieciak, of counsel and on the
briefs).
JUSTICE ALBIN delivered the opinion of the Court.
The issue in this case is whether defendant Paulino Njango, whose time
in prison exceeded the permissible custodial term authorized by his sentence,
is entitled to have the excess prison time he served -- known as service credits
-- reduce the period of parole supervision he must serve under the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.
The post-conviction relief court found that the excess time Njango
served in custody was “unfortunate” but could not “be given back.” The
Appellate Division affirmed, determining that the period of Njango’s NERA
parole supervision could not be reduced, even though “[Njango] was
imprisoned longer than he should have been due to a failure to properly award ”
him prior service credits. State v. Njango, 463 N.J. Super. 1, 10 (App. Div.
2020).
We now reverse. The mandatory period of parole supervision imposed
under NERA is part of a unitary sentence that is penal in nature. Njango was
sentenced to an aggregate eighteen-year custodial term and, upon his release
2
from prison, ordered to serve an aggregate eight-year period of parole
supervision. During the entirety of Njango’s prison sentence and his period of
parole supervision, he has been in the custody of the Department of
Corrections. The State has kept Njango in prison for more than a year beyond
his release date. Without credit for the excess prison time, Njango would
serve more time in the custody of the Department of Corrections than
authorized by his sentence.
We do not agree that relief cannot be granted to Njango. The
fundamental fairness doctrine is an integral part of the due process guarantee
of Article I, Paragraph 1 of the New Jersey Constitution, which protects
against arbitrary and unjust government action. See Doe v. Poritz, 142 N.J. 1,
108 (1995). We hold that the excess time that Njango erroneously served in
prison must be credited to reduce the period of his parole supervision.
We remand to the New Jersey Parole Board for a calculation of the
excess time Njango served in prison and a credit toward his period of parole
supervision.
I.
A.
We begin by recounting the pertinent parts of the strange and tortuous
procedural path this case has taken to reach this Court.
3
On September 24, 2007, in accordance with a plea agreement with the
State, Njango pled guilty to certain counts in two separate indictments, which
we will call the 2006 and 2007 indictments. In the 2006 indictment, Njango
pled guilty to first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree
attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree
burglary, N.J.S.A. 2C:18-2; and fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d). Those charges relate to crimes Njango
committed against his ex-mother-in-law in June 2006.
In the 2007 indictment, Njango pled guilty to first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; 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). Those charges relate to crimes Njango
committed against his ex-wife in May 2007 while he was released on bail for
the charges in the 2006 indictment.
On November 30, 2007, the trial court imposed concurrent sentences on
all of the charges to which Njango pled guilty in the two indictments. Njango
--
was sentenced on the attempted murder charges in the two indictments and on
the kidnapping charge in the 2006 indictment to concurrent eighteen-year
terms of imprisonment, subject to NERA, which rendered Njango parole-
ineligible until he completed eighty-five percent of that sentence. As part of
4
that NERA sentence, the court “ordered [Njango] to serve a 5 year term of
parole supervision which term shall begin as soon as defendant completes the
sentence of incarceration.” ---
See N.J.S.A. 2C:43-7.2(c).
In addition, the court imposed an eighteen-month term for unlawful
possession of a weapon and merged the burglary charge on the 2006
indictment and an eighteen-month term for unlawful possession of a weapon
and a five-year term for terroristic threats on the 2007 indictment. Njango was
also ordered to pay fines and penalties, and all remaining charges in the two
indictments were dismissed. Njango’s overall sentence was an eighteen-year
NERA term with a five-year period of parole supervision.
B.
Njango filed a petition for post-conviction relief (PCR), claiming that he
was “under the influence of prescription medication at the time of the plea”
and ineffectively assisted by counsel. His petition was ultimately denied.
While that PCR petition was pending, Njango filed a motion to correct
an illegal sentence and advanced the surprising argument that the trial court
should have imposed consecutive sentences rather than concurrent sentences
under N.J.S.A. 2C:44-5(h). That statute provides that when a defendant
commits an offense while released on bail for a prior offense, sentences of
imprisonment for the offenses “shall run consecutively . . . unless the court . . .
5
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).
The trial court found the statute inapplicable because Njango’s sentence
was imposed pursuant to a plea agreement, but the Appellate Division reversed
because the sentencing court had not made the “serious injustice” finding
necessary to justify concurrent terms of imprisonment. The Appellate Division
remanded to the sentencing court either to justify the imposition of concurrent
sentences or to vacate the plea agreement and reinstate the charges.
The trial court never addressed the remand issue because the State and
Njango entered into a superseding plea agreement in August 2015. In
accordance with the new agreement, Njango pled guilty to the first-degree
attempted murder, second-degree burglary, and fourth-degree unlawful
possession of a weapon charges in the 2006 indictment, and to the second-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), fourth-degree unlawful
possession of a weapon, and third-degree terroristic threats charges in the 2007
indictment. The court sentenced Njango on the 2006 indictment to a ten-year
NERA term for attempted murder (subject to a five-year period of parole
supervision), a concurrent ten-year term for burglary, and to a concurrent
eighteen-month term for unlawful possession of a weapon all to run
6
consecutive to the sentences imposed on the 2007 indictment. On the 2007
indictment, the court imposed an eight-year NERA term for aggravated assault
(subject to a three-year period of parole supervision), a concurrent term of
eighteen months for unlawful possession of a weapon, and a concurrent term
of five years for terroristic threats. Fines and penalties were imposed, and all
remaining charges were dismissed.
Njango’s aggregate sentence was an eighteen-year term, with a fifteen-
year, three-month, and eighteen-day parole disqualifier pursuant to NERA. He
also was subject to an eight-year period of parole supervision after completing
the custodial portion of his sentence. See N.J.S.A. 2C:43-7.2(c). The court
rejected Njango’s request to credit him for the time served on each offense
during the period the sentences on those offenses ran concurrently. Instead,
the court applied Njango’s total 2,692 days (approximately seven-and-a-half
years) of prior service credits to the front-end of his aggregate eighteen-year
sentence. 1
1
Defendant was also awarded 660 days of jail credit. Service credits are
awarded to a defendant for time served on a custodial sentence following the
entry of a judgment of conviction. Jail credits are awarded to a defendant for
time served in custody prior to the entry of a judgment of conviction. See
State v. C.H., 228 N.J. 111, 117 (2017).
7
On February 1, 2017, the Appellate Division reversed “the trial court’s
decision not to award prior service credit” on the concurrent sentences
imposed on the two indictments at the first sentencing. In determining that
Njango should be credited for the time he simultaneously served on the two
indictments, the Appellate Division looked to North Carolina v. Pearce, which
held that the Fifth Amendment guarantee against double jeopardy “requires
that credit must be given for punishment already endured” and that
“punishment already exacted must be fully ‘credited’ in imposing sentence
upon a new conviction for the same offense,” 395 U.S. 711, 717, 718-19
(1969). From Pearce, the Appellate Division reasoned “that failing to award
[Njango] prior service credit from the two vacated concurrent sentences to
both of the resentenced consecutive terms would violate [his] Fifth
Amendment rights.”
We denied the State’s petition for certification. 230 N.J. 363 (2017).
On May 9, 2017, the trial court amended the judgments of conviction and
awarded Njango 2,692 days of service credits on both indictments. The next
day, Njango was released from prison. We later denied the State’s motion for
reconsideration of our order denying certification.
8
C.
Njango filed a PCR petition, claiming that had he received the proper
number of service credits at the time of his second sentencing, he should have
been immediately released from prison. He maintained that, as a result of the
second sentencing court’s error, he served an additional one year and seven
months in prison. 2 As a remedy, he sought to have the period of parole
supervision reduced by the excess time he served in prison or, alternatively, to
withdraw his plea.
The PCR court stated, “[T]hat the defendant had to spend more time in
custody is unfortunate, but it is sometimes the nature of appeals. And that’s
not time that can be given back.” The court noted that the calculation of
service credits is a matter for the Department of Corrections and the Parole
Board and that further review must be sought in the Appellate Division.
Determining that Njango’s sentence was not illegal, the court denied Njango’s
petition.
2
The one year-and-seven-month period covers the time between Njango’s
October 1, 2015 sentencing and his release from prison on May 10, 2017, after
the Appellate Division awarded the service credits due to him.
9
D.
The Appellate Division affirmed the PCR court, holding “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.” Njango, 463
N.J. Super. at 10. The Appellate Division emphasized that NERA’s imposition
of a five-year period of parole supervision for a first-degree crime and three-
year period of parole supervision for a second-degree crime is “mandatory,”
citing N.J.S.A. 2C:43-7.2(c). Id. at 8-9. The court asserted that “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 incarceration.’” Id. at 9 (quoting State v. Friedman, 209 N.J.
102, 120 (2012)). It reasoned that allowing a defendant to “trade unused prior
service credit for mandatory parole supervision time on a NERA offense . . .
would be contrary to the Legislature’s purpose in enacting the mandatory
parole supervisory period.” Id. at 10.
The Appellate Division also rejected Njango’s bid to withdraw his guilty
plea “at this late date,” stating that he had not sought to do so when the
sentencing court ruled against his request to apply service credits to both
indictments and that a plea withdrawal would not “remedy [the] situation.” Id.10
at 10-11. Last, the Appellate Division found no merit in Njango’s double
jeopardy argument, explaining that “there is no way the years he spent in
prison can be returned to him.” Id. at 11 (quoting Pearce, 395 U.S. at 719).
E.
We granted Njango’s petition for certification, which framed the
“question presented” as “[w]hether prior service credits for time that a person
was wrongfully imprisoned beyond the term of incarceratio n may be applied to
periods of parole supervision required under the No Early Release Act.” See
243 N.J. 264 (2020). We also granted the motion of the New Jersey Attorney
General to participate as amicus curiae.
After we heard argument on the question presented, we requested
supplemental briefing to address “whether defendant is entitled to service
credits on each count for which he was sentenced, or whether the principles of
State v. C.H., 228 N.J. 111 (2017) apply.” 3 The case was then re-argued.
Despite the fine presentations on re-argument, we will not revisit the
Appellate Division’s decision, issued four years ago, which granted Njango
service credits for the time he simultaneously served on the two indictments
3
In C.H., we determined that, pursuant to Rule 3:21-8, the defendant was not
entitled to the double counting of pre-sentence jail credits “for time
simultaneously spent in custody” on charges in two separate indictments for
which he received consecutive sentences. 228 N.J. at 118, 121.
11
while the sentences ran concurrently -- a decision resulting in Njango’s release
from prison and the commencement of his parole supervision. To be sure, our
denial of certification as well as our denial of the motion for reconsideration
should not be read as a determination or commentary on the merits of that
prior Appellate Division decision. Our jurisprudence makes clear that the
denial of a petition for certification is not an expression of approval or
disapproval of an opinion or judgment of the Appellate Division. State v.
Hodge, 105 N.J. 518, 519 (1986). Nevertheless, Njango had an expectation of
finality in that Appellate Division determination.
Accordingly, we view the Appellate Division’s 2017 ruling as the law of
this case. See State v. K.P.S., 221 N.J. 266, 276-77 (2015). “The law-of-the-
case doctrine is a non-binding rule intended to prevent relitigation of a
previously resolved issue in the same case.” Id. at 276 (emphasis and
quotation omitted). The doctrine is “guided by the ‘fundamental legal
principle . . . that once an issue has been fully and fairly litigated, it ordinarily
is not subject to relitigation between the same parties either in the same or in
subsequent litigation,’” id. at 277 (omission in original) (emphasis omitted)
(quoting Morris Cnty. Fair Hous. Council v. Boonton Township, 209 N.J.
Super. 393, 444 n.16 (Law Div. 1985)).
12
With that approach in mind, we will confine our discussion to the issue
on which we originally granted certification -- whether the excess time Njango
served in prison can offset the time he must serve under parole supervision
pursuant to NERA.
II.
A.
Njango argues that the Appellate Division’s determination that he is not
entitled to apply his service credits -- the excess time he served in prison -- to
reduce the remaining portion of his eight-year period of parole supervision
violates the double jeopardy principles of the United States and New Jersey
Constitutions. Njango maintains that parole supervision “is a component of,
and not separate from,” an overall NERA sentence. Because NERA parole is
punishment, akin to imprisonment, Njango reasons NERA parole extends the
period of his punishment. If his excess prison time does not reduce his period
of parole supervision, Njango asserts that the time he will have served in
prison and on parole supervision will exceed the maximum permissible limit of
his sentence. He insists that whatever the Legislature’s intent may be, it
“cannot override the constitution.” Denying him the right to apply the service
credits accumulated on his first sentence toward his second sentence, he
asserts, contravenes the double jeopardy prohibition against receiving
13
“multiple punishments for the same offense,” quoting State v. Miles, 229 N.J.
83, 92 (2017) (citing, in turn, Pearce, 395 U.S. at 717).
B.
The State and the Attorney General (collectively, the State) advance
many of the same arguments in urging this Court to affirm the Appellate
Division. The State explains that Njango “spent more time incarcerated
because of the appellate process -- and no other reason,” and that “[t]he
criminal justice system can’t provide a remedy.” The State contends that,
under N.J.S.A. 2C:43-7.2(c), “the mandatory period of parole supervision [for
a NERA offense] does not commence until the defendant’s release from
incarceration” and that Njango cannot apply “unused prior-service credits to
reduce [a] mandatory supervision period” without contravening the plain
language of the statute and the Legislature’s intent.
The State emphasizes that parole supervision begins when a defendant is
actually released from prison -- “not some hypothetical date he should have
been freed.” The State also posits that incarceration serves a different purpose
from mandatory parole supervision, which is intended to monitor and
supervise released offenders for public safety and rehabilitative purposes.
Additionally, the State claims that reducing Njango’s eight -year period of
supervised release “would shatter the expectations of the State and the trial
14
court.” In its view, Njango received double service credits, and such a
windfall does not implicate double jeopardy concerns.
III.
A.
We accept this case as it has come to us, from a determination by the
Appellate Division in 2017 that the trial court mistakenly denied Njango
service credits toward his second sentence. Based on that decision, Njango
served at least one year and seven months in prison beyond his release date. 4
Had he been timely released from prison, he would have completed one year
and seven months of parole supervision. From the State’s public-safety
perspective, one year and seven months of prison surely is the equivalent of
the same period under parole supervision.
The question is whether, within the constitutional framework of our
system of justice, there is no remedy -- as the State asserts -- for the time
Njango should not have spent in prison. We begin with a review of the
relevant provisions of the No Early Release Act.
4
We note here that Njango also claims that at the time of sentencing, he had
already served approximately an extra 1.3 years beyond the point at which he
should have been paroled. We are not in a position to pass judgment on the
accuracy of his calculation. That calculation must be made by the New Jersey
State Parole Board and/or the Department of Corrections.
15
N.J.S.A. 2C:43-7.2(a) provides that a court sentencing a defendant to a
term of incarceration for a first- or second-degree crime enumerated in
subsection (d) “shall fix a minimum term of 85% of the sentence imposed,
during which the defendant shall not be eligible for parole.” The eighty-five
percent period of parole ineligibility is known as a NERA sentence. Among
the crimes enumerated in subsection (d) of N.J.S.A. 2C:43-7.2 are first-degree
attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; and second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1) -- crimes to which Njango pled
guilty.
N.J.S.A. 2C:43-7.2(c) further provides that a court meting out a NERA
sentence “shall also impose a five-year term of parole supervision if the
defendant is being sentenced for a crime of the first degree, or a three-year
term of parole supervision if the defendant is being sentenced for a crime of
the second degree.” Under subsection (c), a defendant’s NERA parole
supervision begins
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
subsection (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).]
16
A defendant is in the custody of the Department of Corrections when
serving a term of imprisonment under NERA. Ibid.; N.J.S.A. 30:4-123.51b(a).
While serving a NERA period of parole supervision, the defendant remains “in
the legal custody of the Commissioner of the Department of Corrections, and
shall be supervised by the Division of Parole of the State Parole Board as if on
parole.” N.J.S.A. 30:4-123.51b(a); see also N.J.S.A. 2C:43-7.2(c). If a
defendant fails to abide by the conditions of his parole, the board panel has the
authority to “revoke [his] release status and return [him] to custody for the
remainder of the term” or until he again becomes eligible for release. N.J.S.A.
30:4-123.51b(a).
B.
Under our jurisprudence, parole is “in legal effect imprisonment” and
therefore punishment. Riley v. State Parole Bd., 219 N.J. 270, 288 (2014)
(quoting Anderson v. Corall, 263 U.S. 193, 196 (1923)); see also State v.
Rosado, 131 N.J. 423, 428 (1993) (“[P]arole is the legal equivalent of
imprisonment . . . .”). We have described NERA’s mandatory period of parole
supervision as having a “penal impact” and a “penal consequence” to a plea to
a NERA offense. State v. Johnson, 182 N.J. 232, 240 (2005). Indeed, one of
the “harsh consequences” of the mandatory period of parole supervision is that
a parole violation “could subject defendant to additional incarceration for a
17
length of time that could make the custodial sentence, in the aggregate, far
exceed the original sentence imposed as part of the plea bargain.” Ibid.As noted, a defendant who is imprisoned for a NERA offense remains in
the custody of the Department of Corrections when placed on NERA parole
supervision. Accordingly, if Njango does not receive service credits for the
excess time served in prison, he will remain in the custody of the Department
of Corrections for a year and seven months beyond the maximum sentence
imposed by the trial court. Clearly, the Legislature did not contemplate
whether a defendant wrongly or mistakenly compelled to remain in prison
beyond his prescribed sentence should be mandated to serve the entire period
of parole supervision without a remedy. The arbitrary government
decisionmaking that has denied Njango a remedy for a wrong is addressed by
the fundamental fairness doctrine.
C.
The fundamental fairness doctrine finds its source in Article I, Paragraph
1 of the New Jersey Constitution, which “sets forth the first principles of our
governmental charter -- that every person possesses the ‘unalienable rights’ to
enjoy life, liberty, and property, and to pursue happiness.” Lewis v. Harris,
188 N.J. 415, 442 (2006). Despite the absence of the phrase due process in
that paragraph, this Court has “construed the expansive language of Article I,
18
Paragraph 1 to embrace the fundamental guarantee of due process.”
Jamgochian v. State Parole Bd., 196 N.J. 222, 239 (2008).
An “integral part” of that guarantee of due process is the doctrine of
fundamental fairness. See State v. Shaw, 241 N.J. 223, 239 (2020) (quoting
State v. Saavedra, 222 N.J. 39, 67 (2015)); see also State v. Abbati, 99 N.J.
418, 429 (1985). The doctrine “serves to protect citizens generally against
unjust and arbitrary governmental action, and specifically against government
procedures that tend to operate arbitrarily.” Doe, 142 N.J. at 108 (emphasis
omitted) (quoting State v. Ramseur, 106 N.J. 123, 377 (1987) (Handler, J.,
dissenting)). The “one common denominator” in our fundamental fairness
jurisprudence is “that someone was being subjected to potentially unfair
treatment and there was no explicit statutory or constitutional protection to be
invoked.” Id. at 109. The fundamental fairness doctrine “promotes the values
of ‘fairness and fulfillment of reasonable expectations in the light of the
constitutional and common law goals.’” State v. Vega-Larregui, 246 N.J. 94,
132 (2021) (quoting Saavedra, 222 N.J. at 68). We apply the fundamental
fairness doctrine “‘sparingly’ and only where the ‘interests involved are especially
compelling.’” Saavedra, 222 N.J. at 67 (quoting Doe, 142 N.J. at 108).
“Because we have, from time to time, construed Article I, Paragraph 1 to
provide more due process protections than those afforded under the United
19
States Constitution,” Jamgochian, 196 N.J. at 239, we will rely on the
fundamental fairness doctrine to resolve the issue before us.
IV.
At Njango’s second sentencing, the trial court imposed an aggregate
eighteen-year NERA term to be followed by an aggregate eight-year
mandatory period of parole supervision. That unitary sentence placed Njango
in the custody of the Department of Corrections for a maximum of twenty-six
years. The failure of the PCR court and the Appellate Division to credit
Njango with the excess prison time served, in effect, has extended Njango’s
period in the custody of the Department of Corrections to twenty-seven years
and seven months. That means that Njango’s actual sentence now exceeds the
sentence imposed by the trial court.
Although the Appellate Division is correct that “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 incarceration,’” Njango, 463 N.J. Super. at 9 (quoting Friedman, 209 N.J.
at 120), the NERA term of incarceration serves precisely the same objective.
As noted earlier, “parole is the legal equivalent of imprisonment,”
Rosado, 131 N.J. at 428, and NERA’s mandatory period of parole supervision
is deemed a “penal consequence” of a NERA offense, Johnson, 182 N.J. at
20
240. Parole supervision constitutes a loss of liberty of a kind, if not to the
degree of incarceration. No persuasive reason has been advanced to explain
why Njango’s serving an extra one year and seven months in prison -- when he
should have been serving that time on parole supervision -- should not be
credited towards his overall sentence, in particular the parole supervision
period. The objective of parole supervision -- to protect the public from the
risk from violent offenders -- was certainly satisfied when he was mistakenly
or erroneously incarcerated beyond the prescribed time for his release. See
Njango, 463 N.J. Super. at 9.
As pointed out by Njango, if he were incarcerated for a violation of his
parole supervision, he would be entitled to use his excess service credits to
reduce his custodial time and therefore the overall period of his parole
supervision. That a defendant who violates parole can benefit from excess
service credits while a defendant who complies with parole cannot is an absurd
result that the Legislature could not have had in mind.
We must construe a statute, such as NERA, in a commonsense way “so
that its reach does not exceed its constitutional limits.” See State v. Garron,
177 N.J. 147, 172 (2003). The fundamental fairness doctrine is intended to
provide a remedy for the inequitable and arbitrary decisionmaking that, in this
case, has resulted in a year-and-seven-month loss of liberty for which the State
21
will not give Njango credit toward his eight-year mandatory period of parole
supervision. See Doe, 142 N.J. at 108. Here, notions of fundamental fairness
compel us to conform NERA to our State Constitution in a way that the
Legislature would likely have intended. See State v. Natale, 184 N.J. 458, 485
(2005).
Accordingly, we conclude that Njango’s eight-year period of parole
supervision must be reduced by the excess time he served in prison.
V.
For the reasons expressed, we reverse the judgment of the Appellate
Division. We remand to the New Jersey State Parole Board to calculate the
excess time Njango served in prison and to credit that time toward the
remaining period of his parole supervision.5 The Parole Board will conduct --
consistent with this opinion -- any proceedings that may be necessary.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
ALBIN’s opinion.
5
We do not suggest that the Parole Board may not rely on or be assisted by
the Department of Corrections in making the appropriate calculation.
22