STATE OF NEW JERSEY VS. E.M.B. (19-08-1629, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2676-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
E.M.B.,
Defendant-Appellant.
_______________________
Submitted November 9, 2021 – Decided November 23, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 19-08-1629.
Joseph E. Krakora, Public Defender, attorney for
appellant (Al Glimis, Designated Counsel, on the
briefs).
Cary Shill, Acting Atlantic County Prosecutor, attorney
for respondent (Kristen Pulkstenis, Special Deputy
Attorney General/Acting Assistant Prosecutor, on the
brief).
PER CURIAM
After defendant E.M.B.1 pled guilty to second-degree aggravated assault,
the trial judge sentenced her to five years in prison, subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, and three years of parole supervision
upon release. On appeal, defendant challenges her sentence and raises the
following contentions:
POINT I
DEFENDANT IS ENTITLED TO HAVE THE COURT
CONSIDER HER YOUTH AS A MITIGATING
FACTOR IN ACCORDANCE WITH P.L. 2020,
Chapter 110. DEFENDANT'S SENTENCE SHOULD
BE VACATED AND THE MATTER REMANDED
FOR RESENTENCING.
1. The October 19, 2020, Statutory Amendment
to N.J.S.A. 2C:44-1(b)'s List of Mitigating
Factors.
2. Defendant and Similarly Situated Defendants
Are Entitled To A Remand Under The Provisions
Of The Savings Statute, N.J.S.A. 1:1-15, Because
The Amendment: Pertained To A Mode of
Procedure, The Proceedings On The Indictment
Are Ongoing, And A Remand Is Practicable.
POINT II
THE AMENDMENT TO N.J.S.A. 2C:44-1(b)
SHOULD BE APPLIED TO DEFENDANT'S
PENDING APPEAL UNDER THE TIME-OF-
1
We use initials to preserve confidentiality in accordance with R. 1:38-3(c)(12)
and R. 1:38-3(d)(5).
A-2676-19
2
DECISION RULE, BECAUSE IT WAS AN
AMELIORATIVE REVISION THAT THE
LEGISLATURE ENACTED TO BE EFFECTIVE
IMMEDIATELY.
POINT III
THE SENTENCE SHOULD BE VACATED AND
THE MATTER REMANDED FOR RESENTENCING
BECAUSE THE SENTENCING COURT IGNORED A
MITIGATING FACTOR CLEARLY PRESENT IN
THE RECORD; FAILED TO STATE THE REASONS
FOR THE SENTENCE; AND CONSIDERED IN
AGGRAVATION JUVENILE OFFENSES WHICH
WERE DIVERTED FROM ADJUDICATION.
For the reasons that follow, we vacate defendant's sentence and remand for
resentencing.
During her plea colloquy, defendant admitted stabbing the victim, and
stated she took "full responsibility" for her actions even though she "was under
the influence" and "high" at the time of the offense. In return for her guilty plea,
the State agreed to recommend that the judge sentence defendant to five years
in prison subject to NERA and dismiss other charges pending against her.
At the sentencing hearing, defendant's attorney asked the judge to
sentence defendant "in accordance with the plea agreement." The attorney did
not identify any specific mitigating factors for the judge to consider under
A-2676-19
3
N.J.S.A. 2C:44-1(b). In turn, the prosecutor did not argue for any specific
aggravating factors under N.J.S.A. 2C:44-1(a).
In a very brief oral decision, the judge found aggravating factors three,
N.J.S.A. 2C:44-1(a)(3), and nine, N.J.S.A. 2C:44-1(a)(9), and no mitigating
factors.2 The judge stated that the aggravating factors "preponderate[d] over the
absence of mitigating factors." The judge then imposed the five-year NERA
sentence set forth in the plea agreement.
We employ a deferential standard when reviewing a trial court's
sentencing decision. State v. Grate, 220 N.J. 317, 337 (2015); State v. Fuentes,
217 N.J. 57, 70 (2014). "[A] trial court should identify the relevant aggravating
and mitigating factors, determine which factors are supported by a
preponderance of evidence, balance the relevant factors, and explain how it
arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215
(1989). The court "must qualitatively assess" the factors it finds, and assign
each "its appropriate weight." State v. Case, 220 N.J. 49, 65 (2014).
The court must "explain clearly why an aggravating or mitigating factor
presented by the parties was found or rejected and how the factors were balanced
2
The judge noted that defendant was eighteen years old at the time of the
offense, but stated defendant's "extreme youth" was not a mitigating factor under
N.J.S.A. 2C:44-1(b).
A-2676-19
4
to arrive at the sentence." Id. at 66 (citing Fuentes, 217 N.J. at 73). However,
the court must also consider "mitigating factors that are suggested in the
record[.]" State v. Blackmon, 202 N.J. 283, 297 (2010). Where mitigating
factors "are amply based in the record . . . , they must be found." State v. Dalziel,
182 N.J. 494, 504 (2005). "In short, mitigating factors 'supported by credible
evidence' are required to 'be part of the deliberative process.'" Case, 220 N.J. at
64 (quoting Dalziel, 182 N.J. at 505).
We begin by addressing defendant's contention that the trial judge should
have considered the applicability of mitigating factor four, N.J.S.A. 2C:44-
1(b)(4). This factor permits the court to examine whether "[t]here were
substantial grounds tending to excuse or justify the defendant's conduct, though
failing to establish a defense[.]" Ibid.Here, evidence in the record clearly supported a consideration of
mitigating factor four. As the judge found, defendant suffered from ADHD,
substance abuse, "anger management issues," anxiety, and depression.
Defendant also reported "a significant history of trauma prior to adulthood"
which, according to her presentence report, included two sexual assaults when
she was seventeen years old. However, the judge did not explain the
significance of these findings, refer to mitigating factor four, or explain her
A-2676-19
5
failure to do so. Because the judge did not provide a "qualitative analysis" or
"insight into the sentencing decision" on this issue, we conclude a remand is
required to consider mitigating factor four. See Case, 220 N.J. at 65.
The judge's findings on aggravating factors three and nine are also
lacking. Aggravating factor three permits the sentencing court to consider "[t]he
risk that the defendant will commit another offense[.]" N.J.S.A. 2C:44-1(a)(3).
"A court's findings on the risk of re-offense should 'involve determinations that
go beyond the simple finding of a criminal history and include an evaluation and
judgment about the individual in light of his or her history.'" State v. Locane,
454 N.J. Super. 98, 125 (App. Div. 2018) (quoting State v. Thomas, 188 N.J.
137, 153 (2006)).
In her sentencing decision, however, the judge only referred to defendant's
criminal history. The judge stated defendant had no adult convictions, but had
"juvenile arrests for simple assault and false reports to law enforcement."
Nothing in the record indicates that a court rendered adjudications for these
offenses, and defendant's presentence report states that the juvenile matters were
diverted. The judge's decision does not include the required "evaluation and
judgment" about defendant "in light of . . . her history" in connection with this
factor. Ibid.A-2676-19
6
The judge also did not sufficiently explain her application of aggravating
factor nine, which allows the sentencing judge to consider whether there is a
"need for deterring the defendant and others from violating the law[.]" N.J.S.A.
2C:44-1(a)(9). The need to deter may be established even where the defendant
has no prior criminal record. Fuentes, 217 N.J. at 80.
As with aggravating factor three, the judge must make "determinations
that go beyond the simple finding of a criminal history and include an evaluation
and judgment about the individual in light of his or her history." Thomas, 188
N.J. at 153. Here, however, the judge only referred to defendant's juvenile arrest
record in finding aggravating factor nine, and failed to explain her decision to
apply this factor in light of defendant's history.
Because the judge did not make sufficient findings concerning her
evaluation and application of aggravating factors three and nine, and mitigating
factor four, we must vacate defendant's sentence and remand for express
consideration of these factors. We suggest no opinion as to the judge's ultimate
findings or resultant sentence.
In light of this determination, we need only briefly comment upon
defendant's argument that N.J.S.A. 2C:44-1(b)(14) "should be applied to [her]
pending appeal . . . ." The trial judge sentenced defendant on November 15,
A-2676-19
7
2019. Our Legislature later enacted N.J.S.A. 2C:44-1(b)(14) which, effective
October 19, 2020, allows a sentencing judge to consider a defendant's youth as
a statutory mitigating factor. Defendant argues that this statute should apply to
her retroactively even though she was sentenced prior to its enactment. The
State disagrees.
Because of the unique procedural posture of this case, we need not address
this specific issue. We have vacated defendant's sentence and remanded for
resentencing. As this court recently observed, "[w]hen an appellate court orders
a resentencing, a defendant is ordinarily entitled to a full rehearing." State v.
Bellamy, 468 N.J. Super. 29, 39 (App. Div. 2021) (citing Case, 220 N.J. at 70).
Thus, "[t]he resentencing judge must 'view [the] defendant as [s]he stands before
the court on that day unless the remand order specifies a different and more
limited resentencing proceeding . . . ." Id. at 39-40 (alteration in original)
(quoting State v. Randolph, 210 N.J. 330, 354 (2012)). Because the judge who
will resentence defendant will view her "as [s]he stands before the court on that
day[,]" the judge may consider defendant's arguments concerning her age at the
time she committed the offense involved in this case and apply the new
mitigating factor set forth in N.J.S.A. 2C:44-1(b)(14). Id. at 44 (quoting
Randolph, 210 N.J. at 354).
A-2676-19
8
Vacated and remanded. We do not retain jurisdiction.
A-2676-19
9