State v. Njango

• Decision Date: 03 August 2021
• Docket Number: A-79 September Term 2019,084286
• Citation: 255 A.3d 1164,247 N.J. 533
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Paulino NJANGO, a/k/a Paulino Niango, and Paulino Ernesto Njango, Defendant-Appellant.
• Court: New Jersey Supreme Court

247 N.J. 533

255 A.3d 1164

STATE of New Jersey, Plaintiff-Respondent,

v.Paulino NJANGO, a/k/a Paulino Niango, and Paulino Ernesto Njango, Defendant-Appellant.

A-79 September Term 2019

084286

Supreme Court of New Jersey.

Argued March 16, 2021

Reargued April 26, 2021

Decided August 3, 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).

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, 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, 228 A.3d 1266 (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 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, 662 A.2d 367 (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.

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 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 ... 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 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

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, 89 S.Ct. 2072, 23 L.Ed.2d 656 (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, 167 A.3d 652 (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.

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...