                                NOT FOR PUBLICATION WITHOUT THE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.




                                                                            A-0101-16T3
                                          2
      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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                                          3
      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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                                        4
       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
                                       5
            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)).


                                                                           A-0101-16T3
                                        6
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.




                                                                            A-0101-16T3
                                         7
      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.




                                                                           A-0101-16T3
                                         8
      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


                                                                           A-0101-16T3
                                        9
sentencing judge. Although the sentence was lengthy, it was not manifestly

excessive.

      Affirmed.




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