Opinion
DOCKET NO. A-1400-12T1
04-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAULINO NJANGO, Defendant-Appellant.
Paulino Njango, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-11-3542 and 07-09-3244. Paulino Njango, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, on the statement in lieu of brief). PER CURIAM
Pursuant to a plea agreement, defendant Paulino Njango pled guilty to several charges under two separate indictments. As recommended in the plea agreement, the trial court sentenced defendant to two eighteen-year terms of incarceration to run concurrently, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals the denial of two motions he made claiming his sentence was illegal because it did not comply with certain sentencing statutes. Having reviewed the record in light of the applicable law, we reverse and remand for further proceedings.
I.
The record reveals the following facts. On November 15, 2006, an Essex County Grand Jury issued an indictment charging defendant with various crimes resulting from a June 23, 2006 attack on his mother-in-law. 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) (the 2006 indictment).
On April 24, 2007, defendant posted bail and was released from jail. Within a month, defendant attacked his estranged wife. On September 19, 2007, an Essex County Grand Jury indicted defendant on several charges, including 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); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and related weapons charges (the 2007 indictment).
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 the 2006 indictment, and to the charges of attempted murder, unlawful possession of a weapon, and terroristic threats under the 2007 indictment. As part of the agreement, the State recommended an aggregate term of incarceration of eighteen years for each indictment, subject to NERA, with the sentences to run concurrently. On November 30, 2007, the trial court sentenced defendant in accordance with the plea agreement.
On August 6, 2009, defendant filed a motion for post-conviction relief (PCR). The trial court denied defendant's PCR without an evidentiary hearing on May 24, 2010. On August 6, 2013, this court reversed and remanded one of defendant's claims for the purpose of holding an evidentiary hearing. State v. Njango, No. A-0073-10 (App. Div. Aug. 6, 2013) (slip op. at 10, 12). Following an evidentiary hearing, the trial court denied defendant's PCR in its entirety.
While defendant's appeal of his PCR petition was pending, he filed a pro se motion to correct an illegal sentence under N.J.S.A. 2C:44-5(h). On May 24, 2012, the trial court denied defendant's motion. In its written decision, the trial court reasoned that N.J.S.A. 2C:44-5(h) was "inapplicable because of the plea you entered into."
A few weeks later, defendant filed a similar motion, arguing that his sentence was illegal under N.J.S.A. 2C:44-5.1. In an August 1, 2012 written decision, the trial court again denied defendant's motion, holding that defendant was not serving an illegal sentence. The trial court reasoned that, as defendant pled guilty, he was appropriately sentenced according to the plea agreement. Defendant appealed both denials.
This appeal was initially denied without prejudice because of defendant's then-pending appeal on his PCR petition. Subsequently, after the appeal was resolved, this court granted defendant's motion to reinstate this appeal.
II.
On appeal, defendant contends that his sentence is illegal under N.J.S.A. 2C:44-5h and 2C:44-5.1. Specifically, defendant notes that he pled guilty to offenses in the 2007 indictment committed while on bail for crimes charged in the 2006 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.
We are guided by well-established principles in our review of the trial court's sentencing decision. We apply a deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We may not substitute our judgment for a sentencing court. State v. O'Donnell, 117 N.J. 210, 215 (1989). We may, however, correct an illegal sentence. See State v. Horton, 331 N.J. Super. 92, 97 (App. Div. 2000) (noting that appellate courts are granted such authority "even though there is no rule expressly authorizing [this]."). An illegal sentence may be corrected at any time so long as the sentence has not been completely served. State v. Schubert, 212 N.J. 295, 309 (2012).
An illegal sentence is one that is contrary to the Code of Criminal Justice or constitutional principles. State v. Acevedo, 205 N.J. 40, 45 (2011); State v. Veney, 327 N.J. Super. 458, 462 (App. Div. 2000) (citing State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989)). It is fundamental that parties may not negotiate an illegal sentence. State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014) (citing State v. Smith, 372 N.J. Super. 539, 542 (App. Div. 2004), certif. denied, 182 N.J. 428 (2005)), certif. denied, ___ N.J. ___ (2015). Moreover, a defendant may not accept an illegal sentence as part of a plea bargain. Ibid. (citing State v. Nemeth, 214 N.J. Super. 324, 327 (App. Div. 1986)). Additionally, a concurrent sentence is illegal if the Code mandates a consecutive sentence for a particular crime. State v. Moore, 377 N.J. Super. 445, 449-50 (App. Div.), certif. denied, 185 N.J. 267 (2005).
Defendant first contends that his sentence is illegal under N.J.S.A. 2C:44-5.1(a), which provides in pertinent part:
[a] person who has been convicted . . . [of] a crime under [N. J.S.A.] 2C:11-3; . . . [N. J.S.A.] 2C:13-1; . . . [N. J.S.A.] 2C:18-2 if the burglary is a crime of the second degree . . . or a crime of the first, second or third degree under subsection b of [N.J.S.A.] 2C:12-1; shall be sentenced to an extended term of imprisonment pursuant to the provisions of [N. J.S.A.] 2C:43-7 . . . if, at the time of the commission of the crime, the defendant was released on bail or on his own recognizance for one of the enumerated crimes and was convicted of that crime.Moreover, N.J.S.A. 2C:44-5.1(b) states that the court shall not impose the extended term "unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed." (emphasis added).
No notice was given and no such hearing occurred here. Consequently, based on the record before us, defendant's sentence was not an illegal sentence under N.J.S.A. 2C:44-5.1 as, absent notice and a hearing, the statute does not require imposition of an extended term. As such, we find defendant's argument on this point to be meritless.
Next, defendant asserts that his sentence is illegal under N.J.S.A. 2C:44-5(h), which provides:
[w]hen a defendant is sentenced to imprisonment for an offense committed while released, with or without bail, pending disposition of a previous offense, the term of imprisonment shall run consecutively to any sentence of imprisonment imposed for the previous offense, 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.
Here, N.J.S.A. 2C:44-5(h) is applicable since defendant was sentenced to crimes he committed while on bail. In order for a concurrent sentence to be legal under the statute, the sentencing court had to make the prescribed findings. However, the record does not contain any findings that the exception to consecutive sentences was appropriate. Rather, the sentencing judge simply reviewed the mitigating factors and accepted the recommendation in the plea agreement for concurrent sentences without making the requisite finding under N.J.S.A. 2C:44-5(h).
Despite any plea agreement recommendations, a judge must still make independent analysis and address all sentencing criteria. See State v. Friedman, 209 N.J. 102, 112 (2012); see also State v. Lebra, 357 N.J. Super. 500, 512-15 (App. Div. 2003) (ordering that the defendant be resentenced as the trial court did not abide by the sentencing guidelines). For example, in Moore, we reversed a conviction where the sentencing judge failed to make a finding required by the Code and merely stated that he was following the terms of the plea agreement. Moore, supra, 377 N.J. Super. at 451-52. Consequently, in the case at bar, we are constrained to vacate the sentence and remand for further proceedings because defendant may have received an illegal sentence. Id. at 450.
As the trial judge did not expressly or implicitly address the condition under which concurrent sentences may be given for crimes committed on bail under N.J.S.A. 2C:44-5(h), we remand to the sentencing court to do so. If 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. Id. at 452.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION