SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 4475

- 19 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. ROBERT J. GARDNER , JR., a/k/a ROBERT J. GARDNER, Defendant

- Appellant

.

__ _ _______________________

Submitted January 24, 2022

– Decided February 25 , 2022 Before Judges Sabatino and Natali. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 17

- 09

- 0754, 17

- 10

- 0821, and 18

- 03

- 0189. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Denny, Assistant Deputy Public Defender, of counsel and on the brief). Andrew J. Bruck , Acting Attorney General , attorney for respondent (Lila B. Leonard, Deputy Attorney General, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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In this appeal, defendant challenges three J udgments of C onviction (JOCs ) , enter ed in accordance with a negotiated plea agreement, for which he was sentenced to consecutive 365

- day custodial terms, with 180 days of parole ineligibility. Th o se sentences were also ordered to run consecutive ly to an aggregate thirteen

- year sente nce imposed after defendant was convicted by a jury of second

- degree manslaughter , fourth

- degree assault by auto and third

degree possession of a controlled dangerous substance (CDS). Defendant argue s he entered the plea agreement based upo n misadvi c e from his defense counsel, the State, and the court regarding the effect of his jail and gap

- time credits

. He also contend s a remand is appropriate because the court fail ed to address substantively the factors enunciated in State v. Yarbough , 10 0 N.J. 627 , 643

- 44 (1985), and did not consider recently enacted mitigating
factor fourteen. Defendant specifically argue s : POINT I
AS [D E FENDANT] WAS INCORRECTLY INFORMED THAT THE APPLICATION OF JAIL CREDITS IN THIS CASE WOULD RESULT IN A TIME

- SERVED SENTENCE, [ HE ] MUST BE GIVEN THE OPPORTUNITY TO BE RESENTENCED, RENEGOTIATE THE PLEA AGREEMENT, OR WITHDRAW HIS GUILTY PLEA AND PROCEED TO TRIAL.3 A

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- 19 P OINT II A REMAND FOR RESENTENCING IS REQUIRED, BECAUSE NO YARBOUGH ANALYSIS WAS CONDUCTED BEFORE THE IMPOSITION OF FOUR CONSECUTIVE SENTENCES.
POINT III THE LAW REQUIRING SENTENCING MITIGATION FOR YOUTHFUL DEFENDANTS DEMANDS RETROACTIVE APPLICATION BE CAUSE THE LEGLISLATURE INTENDED IT, THE NEW LAW IS AMELIORATIVE IN NATURE, THE SAVINGS STATUE IS INAPPLICABLE, AND FUNDAMENTAL FAIRNESS REQUIRES RETROACTIVITY.
A. The Legislature Intended Retroactive Application.
B. The Savings Statute Does Not Preclude Retroactive Application of Ameliorative Legislative Changes, Like the One at Issue Here.
C. Retroactive Application of the Mitigating Factor Is Required as a Matter of Fundamental Fairness, and to Effectuate the Remedial Purpose of the Sentencing Commission’s Efforts Regarding Juvenile Sentencing.
Defendant did not move before the court in the first instance to withdraw his guilty plea based on the misadvic e noted , but the State concedes a remand is appropriate for the court to evaluate whether defendant's misunderstanding impacted his decision to plead guilty. We agree with the parties that a remand4 A

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is necessary under the circumstances for the court in the first instance to determine if it should accept or reject defendant's plea after considering
defendant's reasonable expectations. If the court concludes defendant should be permitted to withdraw his plea, defendant may elect to proceed to trial or attemp t to renegotiate his plea.
R egardless of the court's decision on the plea issue, we conclude defendant's sentence should be vacated and the matter remanded for resentencing because the court failed to engage in the necessary analysis mandated by Yarbough , nor did it consider the overall fairness of defendant's consecutive sentence s in accordance with State v. Torres , 246 N.J. 246, 271 (2021). Finally, we conclude that at any resentencing , the court should apply youth mitigating factor fourteen

. I. We discuss the complex procedural history to provide context for our opinion. In 2017 and 2018, defendant was charged in three separate indictments,
Nos. 17

- 09

- 0754, 17

- 10

- 0821, and 18

- 03

- 0189 (the 2017 and 2018 indictments) , with fourth

- degree operating a motor vehicle during a period of a second or subsequent license suspension, under N.J.S.A. 2C:40

- 26 (b)

. He was also charged with related motor vehicle offenses for operating a vehicle under the5 A

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influence of liquor or drugs, N.J.S.A. 39:4

- 50, driving af ter a driver's license was suspended or revoked, N.J.S.A. 39:3

- 40, driving without a license, N.J.S.A. 39:3

- 10, reckless driving, N.J.S.A. 39:4

- 6, unsafe lane change, N.J.S.A. 39:4

- 88(b), operating a motor vehicle, person who has consumed alcohol while und er age, N.J.S.A. 39:4

- 50.14, and failure to install an interlock device, N.J.S.A. 39:4

- 50.19(a). Defendant pled guilty to the 2017 and 2018 indictments . As part of that plea agreement, the State agreed to dismiss the various motor vehicle offenses,

as w ell a n earlier charge of third

- degree CDS possession alleged in a separate
indictment , No. 16

- 03

- 203. At the plea hearing , the State indicated that it was its " understanding that although we are asking for consecutive sentences it [ha s ] come to the State's attention today that [defendant] has a substantial amount of credits, approximately 800 days, and will be entitled to all lawful application of those credits against these three Indictments." Defense counsel agreed but clarified
that up to that date defendant had accrued "799 days of credit . . . on each one." He further indicated that he and defendant had "discussed [the plea] at length," and that it was his "understanding that, essentially, [defendant] would be finished serving thes e sentences on each of these, even though the State's plea6 A

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offer or the agreement

. . . states that the sentences are to run consecutive, I believe." Defendant concurred that this was his understanding of the plea agreement. Between the aforementioned p lea and his sentencing on those indictments , defendant was sentenced on additional charges after an October 2019 jury trial

. As noted, t h os e convictions included second

- degree manslaughter, N.J.S.A.
2C:11

- 4 ( b ) (1) , fourth

- degree assault by auto, N.J.S.A. 2 C:12

- 1 (c) (2) , and third

degree possession of a CDS, N.J.S.A. 2C:35

- 10 (a) (1). For the manslaughter conviction, defendant received a nine

- year term of imprisonment with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43

- 7.2. With respect to the assault c onviction , defendant received a 365

- day
sentence , and for the possession conviction , a flat three

- year sentence . All sentences were ordered to run consecutive ly , and the court awarded 821 days of jail credit s. Three months l ater, on March 2, 2020, defendant was sentenced on the 2017 and 2018 indictments

. The court sentence d defendant in accordance with the plea agreement , and applied relevant aggravating and mitigating factors, even though all parties had agreed that defendant had already served his sentence under the plea agreement. Defense counsel represented to the court that he7 A

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understood defendant accrued 916 days of jail credit and t he p rosecutor and the judge both agreed , as reflected by the following colloquy :

DEFENSE COUNSEL: So the . . . presentence report would say 827 days jail credit, plus 59. We also calculated, I believe, another 30 days?
THE COURT: I calculated 30 . . .
PROSECUTOR: It's right around there, 29, 30, yes.
THE COURT: I'm ready to hear from Counsel if they think my math is incorrect.
DEFENSE COUNSEL: I think that's correct. That would give us 916 days credit. The judge and defense counsel next addressed how those credits would be applied t o t he consecutive sentences, and defense counsel stated his belief that defendant was entitled to 916 days on each consecutive count . The judge clarified, "Or it would give h im 180, plus 180, plus 180 against the 96

– 916.
Correct? Is that your argument? He wouldn't get 916 against each 180

. . . . So it would be 180 times four against the 916. Is that

– is that your position?"
Defense responded in the affirmative and further contended , e ven if defendant

was " maxed out on each of these fourth

- degree offenses it would be [eighteen] months. Then he still would

– he'd be maxed out there."8 A

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The court and the parties confirmed defendant's counsel's understa nding

as exhibited by the following exchang e:

THE COURT: 724 days is what he would have done under the four 180

– 180

- day sentences. Is that correct?
PROSECUTOR: That is correct.
THE COURT: And he's done 916 days to date.
PROSECUTOR: That is correct. THE COURT: Okay.
PROSECUTOR: So, either way, it's applied . . . he would reach the max on

– THE COURT: He's completed the time

– PROSECUTOR: Yes. THE COURT:

– for these matters in which I am going to sentence him today. As noted, t he court then sentenced defendant in accordance with his negotiated plea to identical sentences for each of the 2017 and 2018 indictments : 365 days incarceration, with 180 days pa role ineligibility , with applicable fines and penalties . The court ordered the se sentence s to run consecutive ly to each other and to defendant's 2019 sentences related to his trial convictions. On March 19, 2020, Rachel Fromhold of the New Jersey DOC wrote to
the c our t and request ed clarification with respect to defendant's jail credits9 A

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related to the 2017 and 2018 indictments . She expressed concern that defendant had been awarded "duplicate jai l credits " for September 7, 2017 to December 5, 2019. She therefore suggested the DOC would remove jail credits for this time period from defendant's sentence on the 2017 and 2018 indictments

. She also concluded that credits issued for August 2 , 2017 to August 8, 2017 had been mistakenly applied to one of these indictments , as the applicable offense did not occur until August 17, 2017. Upon receipt of the DOC's letter, the court discussed the issue with the prosecutor and defendant' s trial counsel. The court explained to counsel that she "felt constrained by " State v. C.H. , 228 N.J. 111 (2017), and would "grant any motion to vacate [defendant's] guilty plea , " so that plea negotiations could "begin anew" or the matter would be set for trial

. As noted , d efendant did not file a motion to vacate his guilty plea , but instead filed a notice of appeal. The
matter was assigned to the E xcessive S e ntencing O ral A rgument calendar and later transferred to the plenary calendar on our order.
II. In his first point, defendant argues that he entered his plea with respect to the 2017 and 2018 indictments based upon an incorrect belief that he had accrued sufficient jail credits to result in a time

- served sentence . He therefore10 A

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maintains that he must be resentenced and permitted to renegotiate or withdraw from his plea , as the correct sentence "far exceed[s]" defendant's expectations

. Criminal defendants are entitled to receive credit for time served while in custody awaiting sentencing or while ser ving a sentence on charges unrelated to those for which they are being sentenced. See R. 3:21

- 8; N.J.S.A. 2C:44

- 5(b)(2). Depending on their custodial status, defendants are entitled either to jail credits or gap

- time credits. See State v. Hernandez , 208 N.J. 24, 36 (2011) (first citing R. 3:21

- 8; then citing N.J.S.A. 2C:44

- 5(b)(2)). The award of jail and gap

time credit raises issues of law subject to de novo review. See State v. DiAngelo , 434 N.J. Super. 443, 451 (App. Div. 2014) (reviewing award of jail credits de novo); State v. L.H. , 206 N.J. 528, 543 (2011) (reviewing award of gap

- time credits de novo). A defendant is awarded jail credits "for any time served in custody in jail ... between arrest and the imposition of sentence." R. 3:21

- 8(a); see also DiAngelo , 434 N.J. Super. at 451. " Jail credits are ' day

- for

- day credits '" that accrue from the time a defendant is placed in custody for an offense until she or he is sentenced for that offense. C.H. , 228 N.J. at 117 (quoting Hernandez , 208
N.J. a t 37); accord State v. McNeal , 237 N.J. 494, 499 (2019) . Those credits apply to the " front

- end " of a sentence. McNeal , 237 N.J. at 499 (citing C.H. ,11 A

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228 N.J. at 117, 121). As such, they reduce the minimum mandatory term a defendant must serve before beco ming eligible for parole. Ibid. (citing C.H. , 228 N.J. at 117, 121)

. The defendant in C.H. was originally senten ced to consecutive prison terms under two separate indictment s and receiv ed a four

- year term on one indictment and a ten

- year term on the other , both subject to NERA

. Defendant argued his jail credit should have been applied to his sentence for each indictment , irrespective of the consecutive nature of the sentences. C.H. , 228
N.J. at 114

- 16

. The trial court refused to apply to each sentence the jail credits earned while the defendant was in custody awaiting trial on both indictments , but we remanded for resentencing, concluding that defenda nt was entitled to double jail credits

. Id. at 113

. Our Supreme Court reversed, holding that the
trial court had properly applied the jail credits only against the ten

- year term. Id. at 121. In doing so, the Court limited its holding in Hernandez to the extent it had been interpreted to require such double credits. C.H. , 228 N.J. at 123. The
C ourt explained that " double credit should not be awarded where a defendant is sentenced to consecutive sentences under separate indictments and re ceives the optimal benefits of jail credit for time spent in pre - sentence custody." Id. at 123.12 A

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Here, d efendant was not entitled to additional jail credit s for the three indictments and the motor vehicle summons to which he pled guilty , as he had previously benefited from th ose same jail credit s as they were appli ed to his 2019 trial convictions

. As noted, however, d efendant contend s that the misrepresentation and misapplication regarding his jail credits induced him to enter the plea with respect to the 2017 and 2018 indictments.

" A guilty plea may be accepted as part of a plea bargain when the court is assured that the defendant enters into the plea knowingly, intelligently and voluntarily. " State v. Johnson , 182 N.J. 232, 236 (2005) (citing R. 3:9

- 2). " For a plea to be knowing, intelligent and voluntary, the defendant must understand the nature of the charge and the consequences of the plea. " Ibid. Although a court is not responsible for informing a defendant of all consequences flo wing from a guilty plea, at a minimum the court must ensure that the defendant is made fully aware of those " consequences that are ' direct ' or ' penal. '" Ibid. (quoting State v. Howard , 110 N.J. 113, 122 (1988)). If a defendant can demonstrate that his plea is based on misinformation that induced him to plead guilty, he will be permitted to withdraw his plea. S tate

v. Taylor , 80 N.J. 353, 365 (1979); see also State v. Bellamy , 178 N.J. 127, 134 (2003). Any such misunderstanding or " mistaken belief " on the part of a13 A

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defendant must be “a material factor in the decision to plead guilty. " State v. Kiett , 121 N.J. 483, 490 (1990). Thus, " [c]larity as to the direct and penal consequences of a defendant's guilty plea promotes the binding resolution of charge s because it serves to ensure that a defendant's ' expectations [are] reasonably grounded in the terms of the plea bargain. '" Johnson , 182 N.J. at 237 (quoting State v. Marzolf , 79 N.J. 167, 183 (1979)). Our Supreme Court has affirmed that "an incorrect ca lculation of a defendant's jail credits may impact the voluntariness of the guilty plea , " State v. McNeal , 237 N.J. 494, 499 (2019) , and a defendant is " entitled to withdraw a guilty plea if the court imposes a harsher sentence than that contemplated by th e plea agreement , " Bellamy , 178 N.J. at 135

. We have similarly recognized that "a defendant's misunderstanding of credits may affect his understanding of the maximum exposure" and therefore a " guilty plea based on this misunderstanding may fail to satisfy the constitutional requirement that a plea be voluntarily, intelligently and knowingly entered, at least where the denial of the expected credits results in the imposition of a sentence longer in duration than the maximum contemplated. " S tate v. A levras , 213 N.J. Super. 331, 338 (App. Div. 1986).14 A

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The State urges us to limit any remand solely to permit the court to make factual findings and determine whether the misunderstanding of defendant' s jail and gap

- time credits was a material representation that affected hi s decision to plead guilty. We disagree t h at such a narrow remand is app ropriate under the circumstances. Rather , defendant shall make an appropriate application to the
court in the first instance, an d depending on the court's decision, he may be permitted to withdraw his plea, proceed to trial , or attempt to renegotiate his plea. In the event of any resentencing, the court should comply with the Code of Criminal Justice, including a re consideration o f all relevant aggravating and mitigating factors, as well as the principles discussed in Point I I I.
I I I. In defendant's second point, he argues a remand for resentencing is independently required because the sentencing court did not consider the Yarbough factors before imposing consecutive sentences. We agree. When deciding whether to impose concurrent or consecutive sentences, the court considers the following guidelines established in Yarbough :

(a) the crimes and their objectives were predomi nantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely15 A

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- 19 in time and place as to indicate a singl e period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous. [100 N.J. at 643

- 44.] The se factors are " qualitative, not quantitative; applying them involves mor e than merely counting the factors favoring each alternative outcome. " State v. Cuff , 239 N.J. 321, 348 (2019) (citations omitted ).
O ur Supreme Court recently revisited Yarbough , reiterating that a

" sentencing court's explanation of its evaluation of th e fairness of the overall
sentence is ' a necessary feature in any Yarbough analysis. '" Torres , 246 N.J. at 270 (quoting Cuff , 239 N.J. at 352 (2019)). In addition to engaging in a qualitative analysis of the Yarbough factors, Torres instructs trial judges to provide " [a]n explicit statement, explaining the overall fairness of a sentence imposed on a defendant for multiple offenses in a single proceeding or in multiple sentencing proceedings. " Id. at 268. Torres requires " an explanation for the over all fairness of a sentence by the sentencing court

. . . to 'foster[ ] consistency '" and curtail "' arbitrary or irrational sentencing.' " Id. at 272 (quoting State v. Pierce , 188 N.J. 155, 166

- 67, (2006)).16 A

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Here , the court did not conduct any analysis of the Yarbough factors, nor did it provide an "explicit statement" as to the overall fairness of defendant's consecutive sentence s. Accordingly , we v acate defendant's sentence and remand for the court to address the principles set forth i n Yarbough a n d Torres at any resentencing.
I V

. In his third point, defendant argues he should be resentenced because the court failed to consider new mitigating factor fourteen. Again, w e agree. T he New Jersey Legislature recently revised the sentencing criteria to require sentencing courts to consider a defendant's youthful status in mitigation of any aggravating factor if " defendant was under twenty

- six years of age at the time of the commission of the offense. " L. 2020, c. 110 (eff. Oct. 19, 2020). As such, N.J. S.A. 2C:44

- 1(b)(14) requires courts to consider a defendant's youth as an independent factor in the sentencing calculus. Defendant further argues this factor should apply retroactively. We need not reach th e retroactivity argument, however, as there exis ts an independent basis for defendant to be resentenced , which requires the resentencing judge to "view defendant as he stands before the court on that day." State v. Randolph , 210 N.J. 330, 354 (2012).17 A

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In State v. Bellamy , 468 N.J. Super. 29 , 45 (App. Div. 2021), we remanded for resentencing to permit the sentencing court to consider previously undisclosed reports from the Division of Child Protection and Permanency records and reconsider the aggravating and mitigating factors before a new judge. Absent this independent basis to remand and resentence defendant, however, we held that the new mitigating factor would not apply retroactively

. Id. at 48. B ecause t he defendant in Be llamy had " yet to incur a penalty , " she

was entitled to application o f the new mitigating factor at her resentencing. Id.
at 45. The Bellamy court also limited its holding regarding the retroactive effect of the new mitigating factor, emphasizing " cases in the pipeline in which a youthful defendant was sentenced before October 19, 2020 " are not to be

" automatically entitled to a reconsideration based on the enactment of this statute alone. " Bellamy , 468 N.J. Super at 47

– 48. Here, as noted, a remand is required for the court to conduct a Yarbough and Torres analysis. The refore , at
any resentencing , the court must sentence defendant as he stands before it and apply youth mitigating factor fourteen. Reversed and remanded for further proceedings consistent with this opinion.