                                NOT FOR PUBLICATION WITHOUT THE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).

                                                                         A-0101-16T3
                                        3
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.
                                                                          A-0101-16T3
                                        4
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




                                                                          A-0101-16T3
                                        5
[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."


                                                                           A-0101-16T3
                                          6
      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
                                        7
             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).
                                                                       A-0101-16T3
                                       8
"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
                                        9
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:


                                                                          A-0101-16T3
                                       10
            [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.




                                                                         A-0101-16T3
                                       11
      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.


                                                                            A-0101-16T3
                                        12
      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
                                      13
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").


                                                                         A-0101-16T3
                                       14
      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.




                                                                            A-0101-16T3
                                        15
