SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO

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- 16T3 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. J .V. , Defendant

- Appellant.

________ _______________

Submitted December 5, 2018

– Decided Before Judges Koblitz, Ostrer and Mayer. On appeal from 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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February 5, 20192 A

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Defend ant appeals from his waiver to adult court, arguing the new waiver statute should have been applied in light of his mental health disability

. We agree, and reverse and remand for a new waiver hearing. On May 1 2 , 2013, defendant was charged in a juvenile delinquency complaint with actions that , if committed by an adult , would constitute first

- degree attempted murder, N.J.S.A.
2C:5

- 1, N.J.S.A. 2C:11

- 3(a) (count one); first

- degree robbery, N.J.S.A . 2C:15

- 1(a)(1) (count two); fourth

- degree unlawful possession of a weapon, N.J.S.A. 2C:39

- 5(d) (count three); and third

- degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39

- 4(d) (count four). On June 4, 2013, the prosecutor filed
a motion t o waive F amily C ourt jurisdiction over the matter and prosecute defendant as an adult pursuant to N.J.S.A. 2A:4A

- 26 and Rule 5:2

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. 1 After a hearing, o n October 23, 2013, the court granted the prosecutor 's waiver application

. Two months later , d efendant was indicted on the same four
counts as the delinquency complaint , and i n October 2014, after a three

- day competency hearing , was deemed competent to stand trial

. Defendant pled guilty to counts one and two of the indictment and , o n September 18, 2015, was sentenced , consistent with the plea agreement, to concurrent terms of eighteen

1 On August 10, 2015, N.J.S.A. 2A:4A

- 26 was repealed and replaced by N.J.S.A. 2A:4A

- 26.1, with an effective date of March 1, 2016. See L. 2015, c. 89.3 A

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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. The following facts are gleaned from defe ndant's waiver hearing and subsequent factual basis at his guilty plea hearing. On the afternoon of May 12, 2013, when defendant was seventeen years old, he walked from his home to the
Passaic train station carrying a knife, with the intention of robbing someone of either a cell phone or money

. Upon arriving at the train station, defendant approached the victim and asked to borrow his cell phone. The victim was startled at first, but saw that defendant was a "kid" and handed his phone to defendant. Defen dant then pretended to make a call, pressing the buttons and holding the phone to his ear while pacing back and forth. After a few moments, defendant walked back to the victim and said he was keeping the phone

. They got into a physical fight, with each claiming the other threw the first punch

. Defendant stabbed the victim nine times. After defendant's arrest, he was brought to the police station, where the
officers learned that defendant was a juvenile

. Defendant' s father came to the police station, and defendant was given his Miranda 2 warnings and agreed to

2 Miranda v. Arizona , 384 U.S. 436 (1966)

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speak with the officers

. The interview was conducted in Spanish with the aid of a Spanish

- speaking police officer, and was video

- taped

. Defendant confessed.
D efendant stated he did not know his birthday, and gave confused or nonsensical responses to some of the Miranda questions

. The prosecutor 's statement of reasons submitted in support of the juvenile waiver motion addressed each of the fifteen factors in the Attorney General Juvenile Waiver Guidelines (Guidelines ) , 3 written in 2000 pursuant to the then

applicable statute, N.J.S.A. 2A:4A

- 26 (f) , directing the Attorney General to

" develop for dissemination to the county prosecutors those guidelines or directives deemed necessary or appropriate to ensure the uniform application of this section throughout the State

. " None of these factors require the prosecutor to consider a juvenile 's mental or learning disabilities

. The prosecutor determined nine
factors support ed the State's waiver motion : (1) "[ n ] ature and circumstances of crime " ; (2) " [ r ] ole of the juvenile "

– noting defendant " carried out a premeditated, unprovoked, vicious attack on an innocent stranger"; (3) "[ g ] rave and serious harm to victim or community "

– noting "[ t ] he victim received over sixty stitches, " had part of his ear severed and re

- attached, leading to

3 Off. of the Att'y Gen., Juvenile Waiver Guidelines , (Mar. 14, 200 0 ), http://www.njdcj.org/agguide/pdfs/AG

- Juvenile

- Waiver

- Guidelines.pdf.5 A

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disfigureme nt, and suffered injury to his vocal cords, affecting his employment

as a n "on

- air radio producer" ; (4) "[ p ] otential for grave and serious harm to victim or community "

– noting the attack was committed against a stranger, in broad daylight, in a public spa ce; (5) "[ u ] se or possession of a weapon "

– referring to the kitchen knife; (6) "[ n ] eed to deter juvenile and others from committing similar crimes "

– citing the "brutal nature of [ the ] attack" and the need to send a message to others; (7) "[ n ] eed for longer term of incarceration permissible for adults " ; (8) "[ l ] ikelihood of conviction or need for [ g ] rand [ j ] ury investigation "

– citing three witness identifications, the evidence collected from defendant's person, and defendant's confession; and (9) " victim's request for waiver. " The prosecutor determined six factors did not apply to defendant's case : (1) death of the victim; (2) "[ s ] eriousness of prior adjudications of delinquency " ; (3) "[ p ] rior waiver and conviction " ; (4) "[ g ] ang involvement " ; (5) " history of physical violence indicating substantial danger to others " ; and (6) "[ i ] n cases with codefendants, waiver would avoid injustice. " Th e prosecutor argued that the Guideline s factors supported waiver , an d the F amily P art judge agreed

. Defense counsel then moved for bail, stating that defendant "ha [ s ] an IQ of6 A

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[fifty

- eight]," has been "in a special school most his life," and attempted suicide "at least" six times while being held at the juvenile detention center

. Later, a t the conclu sion of a three

- day competency hearing , t he Criminal
Part judge stated: "[t]here 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." However, she ultimately found defendant, "though , obviously limited, does have a basic and legally adequate understanding" of the proceedings, standards, and consequences, and was therefore competent to stand trial

. When sentencing defendant, the judge found aggravati ng factors one, two, three, and nine, and mitigating factor seven. N.J.S.A. 2C:44

- 1

. The judge gave reasons for each factor found.
For aggravating factor three, risk of committing another offense, the judge noted the vicious, premeditated nature of the attack gave her "great concern, if [defendant] was capable of this, that there is a substantial risk of committing another offense." The judge also acknowledged defendant's limited mental functioning and emoti onal issues, and found that " [ t ] o the extent [those characteristics] contributed to his behavior, if it did, then that would be part of the risk."7 A

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Turning to the mitigating factors, the judge found factor seven, no prior record, applied. In light of th e harm to the victim , the judge accorded this factor "very little weight." The judge also explained :

The difficulties he has had in the past with learning disabilities, borderline functioning, depression, to some extent is a mitigating factor and I think sometimes the same information can be an aggravating factor because it contributes to risk and can be a mitigating factor because he didn’t ask for these other issues. So to some extent, that is a mitigating factor. Defendant raises the following issues:
POINT I : THIS COURT SHOULD REVERSE THE ORDER WAIVING JURISDICTION TO ADULT COURT AND REMAND THE MAT TER FOR A NEW HEARING BECAUSE J.V. IS ENTITLED TO PIPELINE RETROACTIVE APPLICATION OF N.J.S.A. 2A:4A

- 26.1(c)(3). MOREOVER, EVEN UNDER THE FORMER STATUTE, N.J.S.A. 2A:4A

26, THE PROSECUTOR ABUSED HER DISCRETION IN SEEKING WAIVER, THUS WARRANTING REVERSAL O F THE WAIVER ORDER. A. IN ACCORDANCE WITH RECENT CASE LAW, THE COURT SHOULD FIND THAT N.J.S.A. 2A:4A

26.1( c )(3) APPLIES RETROACTIVELY IN THIS CASE, AND REMAND THE MATTER FOR A NEW WAIVER HEARING.
B. EVEN UNDER N.J.S.A. 2A:4A

- 26, THE OLDER WAIVER STATUTE, THE PROSECUTOR ABUSED HER DISCRETION BY OVEREMPHASIZING THE8 A

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POINT II : THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
A. T HE SENTENCE IMPOSED AGAINST THIS JUVENILE OFFENDER IS UNCONSTITUTIONAL, BECAUSE IT DOES NOT TAKE INTO ACCOUNT THE FACTORS SET FORTH UNDER MILLER V. ALABAMA

. [ 4 ] MOREOVER, THE COURT ABUSED ITS DISCRETION IN ASCRIBING "VERY LITTLE WEIGHT" TO J.V.'S UNBLEMISH ED RECORD AND STATUS AS A YOUTHFUL OFFENDER.
B. TH E 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 EXTE NT." C. GIVEN THAT A REMAND IS WARRANTED, THE COURT SHOULD ORDER THAT A PSYCHOLOGICAL EXAMINATION BE CONDUCTED PRIOR TO THE RESENTENCING HEARING. Juvenile waiver decisions are reviewed for abuse of discretion. State i n the I nterest of V.A. , 212 N.J. 1, 25 (2012). The reviewing court looks to

4 567 U.S. 460 (2012)

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"whether the correct legal standard has been applied, whether inappropriate factors have been considered, and whether the exercise of discretion constitute[s] a clear error of judgment in all of the ci rcumstances." State i n the
Interest o f J.F. , 446 N.J. Super. 39, 51

- 52 (App. Div. 2016) (quoting State v.
R.G.D. , 108 N.J. 1, 15 (1987)). In conducting this analysis, the court must make sure that "findings of fact [were] grounded in competent, reasonabl y credible evidence, [and] . . . correct legal principles [were] applied

. . . ." State in the Interest of A.D. , 212 N.J. 200, 215 (2012) (quoting R.G.D. , 108 N.J. at 15). Defendant argues the matter must be remanded for a new wai ver hearing in light of t he 2015 repeal and replacement of the juvenile waiver statute

. Defendant asserts the portion s of the new waiver statute at issue here

– N.J.S.A.
2A:4A

- 26.1 (b) , 2A:4A 26.1 (c)(3) (e) and (j)

– require the prosecutor to consider
his eligibility for special education, as well as mental health concerns, before seeking waiver . The new statute also directs the prosecutor to consider evidence presented by the accused and the court with regard to these factors

. Thus,
defendant may not ha ve be en subject to adult sentencing consequences if waiver had been considered under the new framework. He argues the new statute is ameli orative, and therefore must apply retroactively

. Defendant relies on J.F. ,10 A

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where we held a different subsection of the new waiver statute appl ied retroactively.
No published opinion address es whether N.J.S.A. 2A:4A

- 26.1(c)(3)

– the portion of the juvenile waiver statute at issue here

– should be applied retroactively. T wo recent published opinions address the retro activity of other
sections of the statute

. In June 2016, we held Section (c)(1) of the new juvenile waiver statute, which raised the minimum waiver age from fourteen to fifteen, applied retroactively. See J.F. , 446 N.J. Super. at 55

- 56 . In that case, the State appealed from the trial court's denial of a waiver motion for a juvenile who was fourteen years old at the time of the offense. Id. at 41. The waiver hearing was held on August 13, 2015

– after the enactment of the new juvenile waiver statute, but before its stated effective date. Id. at 52

- 53. The trial court found the juvenile sufficiently proved a probability of rehabilitation under the version of the juvenile waiver statute in effect at the time of the waiver hearing, whic h was
N.J.S.A. 2A:4A

- 26. Id. at 42. On appeal, we affirmed for the substantive reasons provided by the trial court, but also held that the amended juvenile waiver statute should apply retroactively, barring defendant from being waived
into adult court ba sed on his age. Id. at 42. In so holding, the majority found:11 A

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- 16T3 [t]he revised waiver statute was intended to ameliorate the punitive sentencing previously meted out to adolescent offenders after waiver. The legislative action was also intended to address the treatment needs of children. The increase in the minimum waiver age is part of that emphasis on rehabilitation rather than punishment, a part of the effort to ensure that children do not become prey to adult inmates nor suffer the many societal conseq uences of an adult criminal record. [ Id. at 55.] In finding Section (c)(1) to be ameliorative for the purposes of retroactivity, we explained that "a waiver to adult court is part of the extended process of determining the severity of the sentence that will be doled out after a determination that the juvenile has committed an offense." Id. at 58. Two months after J.F. was decided, ou r Supreme Court briefly addressed the question of retroactivity of the new juvenile waiver statute, but declined to
conduct a "full

- blown retroactivity analysis." State i n the I nterest o f N.H. , 226
N.J. 242, 249 (2016) . In N.H. , the State appealed from a trial court's ruling that defendant was entitled to full discovery before the waiver hearing. Id. at 247. The initial decision was issued before the adoption of the new juvenile waiver
statute. Id. at 245

- 47. By the time the appeal made its way to the Supreme Court, however, the new statute had taken effect.12 A

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In addressing the retroactivity question, the Court noted there were "no material differences between the parts of the newly enacted and prior statutes which are releva nt to this appeal." Id. at 249. Neither version of the statute addressed the extent of discovery to be provided before the waiver hearing. Id. at 253. The Court held that "[a]s a seventeen

- year - old charged with very serious acts, [defendant] is covered under both versions of the law. Statutory revisions about the process for the waiver decision do not alter existing law in a material way either. They are largely procedural in nature and encompass prior practice." Id. at 249. The Court addressed Sect ion (c)(3)'s list of factors to be considered in the waiver decision, and noted that "[t]he new waiver law appears to have adopted parts of the Guidelines and case law," id. at 250, and "encompass and expand upon the factors listed in the Guidelines." Id. at 252. Focusing on the discovery issue, the Court explained that "the waiver of a juvenile to adult court 'is the single most serious act that the juvenile court can perform.'" Id. at 252 (quoting R.G.D. , 108 N.J. at 4

- 5). Given the "critical
nature" of this proceeding, the Court held that due process required defendant to be provided with full discovery before the hearing, absent certain extenuating circumstances. Id. at 256. The Court directed that, on remand, the waiver hearing should proceed in accordance with the new waiver statute. Id. at 249.13 A

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More recently, we decided the case of an individual who had been waived to adult court and sentenced more than thirty years ago , stating:

[T] he waiver law was not only the same at the time defendant committed the offense, but also at the time of his waiver, conviction, and sentencing. There is no evidence the Legislature intended the waiver statute to reach concluded cases which have already passed thro ugh the proverbial "pipeline." Therefore, our application of the savings statute in C.F.

— which we also relied upon in J.F.

— has its limits, as demonstrated by this case, in which defendant's direct appeal has long since been concluded. [ State v. Bass , 457 N.J. Super. 1, 11

- 12 (App. Div. 2018). ] Here, the question is whether the new juvenile statute should be applied to a situation where the defendant was not yet sentenced when the statute was enacted. The waiver statute is ameliorative and thus subject to retroactive application

. S ee J.F. , 446 N.J. Super. at 55

- 56

. Any change in the waiver process may affect the severity of the outcome for the juvenile

. Moreover, there is no apparent reason why ret roactive application of Section (c)(3) would constitute a manifest injustice

– nor does the State make such an argument here. Recently, we analyzed the purpose and goals of the savings statute , N.J.S.A. 1:1

- 15 , and held that "we look to the date an offense was committed in determining whether a new law, which discharges, releases or affects an offense, should be14 A

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applied to that offense, but we look to the date a penalty was incurred to determine whether a new law should discharge, release or affect the penalty for
the offens e." State in the Interest of C.F ., 444 N.J. Super. 179, 188

- 89 (App. Div. 2016) (emphasis omitted). Here defendant was sentenced after the enactment of the more lenient waiver statute. It is undisputed that defendant has

a mental disability which is inc luded in two important factors in the new waiver
statute , but is not relevant under the old one.
W e remand for reconsideration of waiver by the F amily P art judge, after giving defendant an opportunity to present evidence to the prosecutor about the waiver factors concerning his mental health and special education classification , as permitted under our new waiver statute. N.J.S.A. 2A:4A

- 26.1(c)(3)(e) and (j). It is in line with the retroactivity we deemed appropriate in J.F. 446 N.J. Super. at 59; cf. N.H ., 226 N.J. at 256 (directing that full discovery be provided to a juvenile prior to a waiver hearing ). We do not intend by this remand to infer that waiver is or is not the correct outcome

. U nder these circumstances , defendant should be given the benefi t of the new procedures, especially in light of the serious consequences waiver entails. See N.H. , 226 N.J. at 253 (referring to the "critical nature of waiver hearings").15 A

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Reversed and remanded for the prosecutor to determine if the State wishes to proceed with a waiver hearing under the new statute. In the event of an adult conviction, defendant's mental health deficits may only be used in mitigation , and not aggravation of his sentence, absent convincing expert testimony that defendant's menta l health interferes with deterrence

. See State v. Nayee , 192 N.J. 475 (2007) ( remanding by order for the defendant's mental health to be considered under mitigating factor four in light of State v. Nataluk , 316 N.J. Super. 336, 349 (App. Div. 1998) , which states that a defendant's mental health problems could be considered a mitigating factor even if a jury rejected the defendant's insanity defense )

. Reversed and remand ed for further proceedings in conformity with this opinion. We do not retain jurisdiction.