STATE OF NEW JERSEY VS. PAULINO NJANGO (06-11-3542 AND 07-09-3244, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
A-0397-18T3
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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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