NOT FOR PUBLICATION WITHOUT THE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-0101-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.V.,
Defendant-Appellant.
________________________
Submitted December 5, 2018 – Decided February 5, 2019
Remanded by the Supreme Court June 11, 2020.
Resubmitted June 12, 2020 – Decided July 2, 2020
Before Judges Koblitz, Ostrer and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 13-12-1177.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Carol M. Henderson, Assistant Attorney
General, of counsel and on the brief).
PER CURIAM
Our Supreme Court remanded this matter on June 11, 2020 for our
consideration of defendant's claim of an excessive sentence. He is serving
concurrent terms of eighteen years in prison, subject to an eighty-five percent
parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2,
after he pled guilty to first-degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and
N.J.S.A. 2C:11-3(a)(1), and first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1).
State v. J.V., ___ N.J. ___, ___ (2020) (slip op. at 6, 21). Defendant was
seventeen years old when he stabbed the victim nine times and stole his cell
phone. Id. at 3. Given our limited standard of review, we affirm the sentence.
After waiver to adult court and prior to defendant's guilty plea, the court
conducted a three-day competency hearing. The court determined defendant
was competent, stating: "There is no doubt that [defendant] is an impaired
individual. There is no doubt that he is functioning in the borderline to mild
mental retardation range." The court decided that "though, obviously limited,
[defendant] [did] have a basic and legally adequate understanding" of the
proceedings, standards, and consequences, and was therefore competent to stand
trial.
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The same court that conducted the competency hearing sentenced
defendant, finding that aggravating factors one, two, three, and nine applied.
N.J.S.A. 2C:44-1(a)(1), (2), (3) and (9). The court also found mitigating factor
seven. N.J.S.A. 2C:44-1(b)(7). The court began by noting that the attack in this
case "really [stood] out . . . . for its brutality." With respect to aggravating factor
one, the nature and circumstances of the event, the court noted that defendant
attacked the victim after the victim "graciously lent him his phone," and that
defendant stabbed the victim nine times, causing serious, penetrative injuries
and long-lasting physical and emotional pain. The victim suffered permanent
nerve damage impairing his ability to perform his job. The court found
defendant had planned the attack by virtue of bringing his knife from home. In
light of the "brutal and very life-threatening injuries," the court found the attack
was "brutal," "heinous," and "depraved," as compared to other attempted
murders, and therefore aggravating factor one applied. N.J.S.A. 2C:44-1 (a)(1).
As to aggravating factor two, the gravity of the harm inflicted upon the
victim, the court again noted the victim's extensive physical injuries, as well as
the emotional damage detailed in his victim impact statement, and his statement
at the sentencing hearing explaining that he now lives in constant fear of
strangers and has limited mobility and functioning.
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With regard to aggravating factor three, the risk of committing another
offense, the court noted that the vicious, premeditated nature of the attack gave
it "great concern, if he was capable of this, that there is a substantial risk of
[defendant] committing another offense." The court also acknowledged
defendant's limited mental functioning and emotional issues, and found that "to
the extent that [those characteristics] contributed to his behavior, if [they] did,
then that would be part of the risk."
For aggravating factor nine, the need for deterrence, the court found it
"almost [did not] have to be said, but, of course, there[was] a need to deter . . .
[defendant] specifically and . . . anyone else who would think of committing
such an offense."
Turning to the mitigating factors, the court found factor seven, no prior
record, applied. In light of the unprovoked and violent nature of the attack, the
court accorded this factor "very little weight." The court also found defendant's
"very young" age at the time of the attack, along with his "learning disabilities,
borderline functioning, [and] depression" to be a mitigating factor "to some
extent." The court explained that, although defendant's mental and emotional
limitations are not his fault, they may also have contributed to his lack of
appreciation of the risk, which could also be an aggravating factor.
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After thoughtfully analyzing the aggravating and mitigating factors, the
court found "[t]he aggravating factors very substantially outweigh[ed] the
mitigating factors." It imposed the maximum sentence permitted by the plea
agreement: eighteen years in prison with a NERA parole disqualifier, on each
count, to run concurrently.
In this remand, defendant's remaining excessive sentence arguments are:
THE MATTER SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE SENTENCE IS
MANIFESTLY EXCESSIVE AND UNDULY
PUNITIVE.
A. THE SENTENCE IMPOSED AGAINST THIS
JUVENILE OFFENDER IS UNCONSTITUTIONAL,
BECAUSE IT DOES NOT TAKE INTO ACCOUNT
THE FACTORS SET FORTH UNDER MILLER V.
ALABAMA.[1] MOREOVER, THE COURT ABUSED
ITS DISCRETION IN ASCRIBING "VERY LITTLE
WEIGHT" TO J.V.'S UNBLEMISHED RECORD
AND STATUS AS A YOUTHFUL OFFENDER.
B. THE COURT IMPROPERLY RELIED ON J.V.'S
EMOTIONAL AND PSYCHOLOGICAL
LIMITATIONS AS A BASIS FOR
SIMULTANEOUSLY FINDING AGGRAVATING
FACTOR THREE, AND WEIGHING THOSE SAME
DEFICIENCIES IN MITIGATION TO "SOME
EXTENT."
C. GIVEN THAT A REMAND IS WARRANTED,
THE COURT SHOULD ORDER THAT A
1
567 U.S. 460 (2012).
A-0101-16T3
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PSYCHOLOGICAL EXAMINATION BE
CONDUCTED PRIOR TO THE RESENTENCING
HEARING.
Our review of a trial court's sentencing determination is "deferential."
State v. Lawless, 214 N.J. 594, 606 (2013). We are "bound to affirm a sentence,
even if [we] would have arrived at a different result, as long as the trial court
properly identifie[d] and balance[d] aggravating and mitigating factors that
[were] supported by competent credible evidence in the record." Ibid. (quoting
State v. Natale, 184 N.J. 458, 489 (2005)). We may only vacate a sentence
where: (1) "the sentencing guidelines[] were violated"; (2) the aggravating or
mitigating factors were not "based upon competent credible evidence in the
record"; or (3) "even though the court sentenced in accordance with the
guidelines, nevertheless the application of the guidelines to the facts of th[e]
case makes the sentence clearly unreasonable so as to shock the judicial
conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
"A sentence imposed pursuant to a plea agreement is presumed to be
reasonable because a defendant voluntarily '[waived] . . . his right to a trial in
return for the reduction or dismissal of certain charges, recommendations as to
sentence and the like.'" State v. Fuentes, 217 N.J. 57, 70-71 (2014) (alterations
in original) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div. 1980)).
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However, "[e]ven a sentence recommended as part of a plea agreement . . . may
be vacated if it does not comport with the sentencing provisions of our Code of
Criminal Justice." Id. at 71.
Defendant first argues that his sentence violated the Eighth Amendment
prohibition against cruel and unusual punishment because the court did not take
into consideration special concerns connected with defendant's youth when
imposing "a very lengthy term of incarceration." State v. Zuber, 227 N.J. 422,
451 (2017) (remanding for resentencing two matters where the juveniles would
not be eligible for parole until the ages of seventy-two and eighty-five); see
Miller, 567 U.S. at 477-78 (identifying five factors a court should consider when
determining whether to sentence a juvenile to life without parole) . Defendant
was two months short of eighteen years old when he committed these crimes.
He was sentenced to eighteen years with an eighty-five percent parole
ineligibility. Thus, he will not be eligible for parole for fifteen years and three
months, when he is approximately thirty-three years old. While this is a long
sentence, it is not the "practical equivalent of life [in prison] without parole,"
Zuber, 227 N.J. at 429, and the court was not obligated to consider the special
factors set forth in Miller, 567 U.S. at 477-78.
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Defendant also argues that the sentencing court erred by finding his
intellectual and emotional challenges constituted both an aggravating and a
mitigating factor. Defendant relies on State v. Nataluk, 316 N.J. Super. 336
(App. Div. 1998) and State v. Nayee, 192 N.J. 475 (2007).
In Nataluk, the sentencing judge found the jury's rejection of the insanity
defense precluded a finding that defendant's diminished mental capacity could
be a mitigating factor. 316 N.J. at 349. We rejected this reasoning, noting that
the State's own expert did not dispute that defendant suffered from "mental
problems." Ibid. We held that the rejection of the insanity defense was not "the
equivalent of a conclusion that defendant did not suffer from any mental disease
or defect." Ibid.
In Nayee, our Supreme Court summarily remanded the matter for
resentencing where the trial court "refus[ed] to consider the record before it in
respect of defendant's mental illness as a mitigating factor." Nayee, 192 N.J. at
475. Likewise, in State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002),
we disapproved of the trial court's refusal to find mitigating factors based on the
"highly relevant" expert reports indicating defendant suffered from post -
traumatic stress disorder, as well other conditions.
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Our Supreme Court held in Fuentes that, although it is not impossible for
seemingly contradictory aggravating and mitigating factors to apply at the same
time, such an occurrence would be "exceptional" and "rare." 217 N.J. at 80
(declining to categorically preclude a simultaneous finding of aggravating factor
nine, the specific need to deter, and mitigating factor eight, the crime resulted
from circumstances unlikely to recur). If the sentencing court does apply
conflicting factors it must "explain how it reconciles those two findings," giving
"greater detail [to] its assessment of the weight assigned to each aggravating and
mitigating factor, and its balancing of those statutory factors as they apply to
defendant." Id. at 81.
Here, the court held an extensive competency hearing and was well-
informed and commented with specificity on defendant's mental health disorder
and learning disabilities. The court found those conditions mitigating, while
also expressing concern that defendant's emotional problems might have
contributed to the viciousness of the attack and increase the risk of defendant
reoffending. These concerns are not logically inconsistent.
Finally, defendant seeks a psychological evaluation upon remand for
resentencing. We do not remand for resentencing, and a further mental health
evaluation is unnecessary given the extensive competency hearing held by the
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sentencing judge. Although the sentence was lengthy, it was not manifestly
excessive.
Affirmed.
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