STATE OF NEW JERSEY VS. J v. (13-12-1177, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
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
Defendant 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 12, 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 to waive Family Court jurisdiction over the matter and prosecute
defendant as an adult pursuant to N.J.S.A. 2A:4A-26 and Rule 5:2-2.1
After a hearing, on October 23, 2013, the court granted the prosecutor's
waiver application. Two months later, defendant was indicted on the same four
counts as the delinquency complaint, and in 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, on 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On August 10, 2015, N.J.S.A. 2A:4A-26 was repealed and replaced by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.
A-0101-16T3
2
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 defendant'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. Defendant 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 Miranda2 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.
Defendant 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 supported 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, 2000),
http://www.njdcj.org/agguide/pdfs/AG-Juvenile-Waiver-Guidelines.pdf.
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disfigurement, and suffered injury to his vocal cords, affecting his employment
as an "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 space; (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." The prosecutor argued that
the Guidelines factors supported waiver, and the Family Part judge agreed.
Defense counsel then moved for bail, stating that defendant "ha[s] an IQ of
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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, at the conclusion of a three-day competency hearing, the 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 aggravating 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 emotional 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."
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Turning to the mitigating factors, the judge found factor seven, no prior
record, applied. In light of the 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 MATTER 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 OF 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 THE
A-0101-16T3
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PURPORTED "PREMEDITATED" NATURE OF THE
VIOLENT ASSAULT.
POINT II: 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.[4] 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
PSYCHOLOGICAL EXAMINATION BE
CONDUCTED PRIOR TO THE RESENTENCING
HEARING.
Juvenile waiver decisions are reviewed for abuse of discretion. State in
the Interest 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 circumstances." State in the
Interest of 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 waiver hearing
in light of the 2015 repeal and replacement of the juvenile waiver statute.
Defendant asserts the portions 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 have been subject to adult sentencing consequences if waiver
had been considered under the new framework. He argues the new statute is
ameliorative, and therefore must apply retroactively. Defendant relies on J.F.,
A-0101-16T3
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where we held a different subsection of the new waiver statute applied
retroactively.
No published opinion addresses 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. Two recent published opinions address the retroactivity 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 based on his age. Id. at 42. In so holding, the majority found:
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[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 consequences 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, our Supreme Court briefly addressed
the question of retroactivity of the new juvenile waiver statute, but declined to
conduct a "full-blown retroactivity analysis." State in the Interest of 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.
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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 relevant 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 Section (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.
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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
through 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. See 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 retroactive 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 be
A-0101-16T3
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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 offense." 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 included in two important factors in the new waiver
statute, but is not relevant under the old one.
We remand for reconsideration of waiver by the Family Part 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. Under these circumstances,
defendant should be given the benefit 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").
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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 mental 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 remanded for further proceedings in conformity with this
opinion. We do not retain jurisdiction.
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