                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4120-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

C.H.J., Jr.,

     Defendant-Appellant.
_________________________

                    Submitted September 23, 2019 – Decided October 15, 2019

                    Before Judges Sumners and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 06-12-1827.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Katherine Marie Caola, Assistant Deputy
                    Public Defender, on the brief).

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel; William Kyle Meighan,
                    Senior Assistant Prosecutor, on the brief).

PER CURIAM
        After a bench trial, defendant C.H.J., Jr.1 was found not guilty by reason

of insanity of eight offenses arising from an incident where he resisted arrest

and seriously harmed one police officer and attempted to injure two others. He

appeals from an order imposing twenty-three years, or until November 13, 2031,

as the maximum period he shall remain on Krol2 supervisory status. After

reviewing the record against the applicable legal principles, we affirm in part,

vacate in part, and remand for further proceedings.

                                         I.

        The following facts are relevant to our review. On May 19, 2006, two

emergency psychiatric workers were attempting to evaluate defendant at his

home. Defendant, who was not taking his prescribed medication, refused to

speak with the workers and slammed the door on them.              Concluding that

defendant needed to be transported to the Kimball Medical Center for an

evaluation, they contacted the police for assistance.

        Officers Richard Mazza, Robert Maccaquano, and Michael Terranova of

the Manchester Police Department responded and entered defendant's residence.

When they approached defendant, he appeared angry and yelled obscenities at


1
    We use initials to preserve defendant's confidentiality. R. 1:38-3(f)(2).
2
    State v. Krol, 68 N.J. 236 (1975).
                                                                           A-4120-17T2
                                         2
them. The officers attempted to engage defendant in the hopes of calming him

down but he instead grabbed a bottle and brandished it like a club.

      After defendant failed to respond to Mazza's direction to drop the bottle,

he pepper-sprayed defendant in the head and facial areas. The pepper spray did

not have the desired effect of incapacitating defendant, however.         Instead,

defendant became further enraged, and charged Terranova, who also deployed

pepper spray that similarly did not appear to affect defendant.

      Defendant then struck Terranova three times with the bottle, the last strike

to the head being so violent that the bottle broke. During the altercation,

defendant and Terranova fell to the ground with defendant still holding the

broken bottle.   When Mazza attempted to remove the broken bottle from

defendant's hand, defendant kicked at Mazza and Maccaquano. Eventually,

Maccaquano, Mazza and Terranova were able to subdue defendant, remove the

broken bottle from his hand, and handcuff him. As a result of the altercation,

Terranova sustained a laceration to the back of his head that required eighteen

stitches, a deep bone bruise to his elbow, and a concussion.

      Defendant was charged in an eight-count indictment with third-degree

resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count one); two counts of third-

degree aggravated assault on a police officer for allegedly striking Mazza and


                                                                           A-4120-17T2
                                        3
Maccaquano, contrary to N.J.S.A. 2C:12-1(b)(5)(a) (counts two and three); one

count of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5)(a)

(count four); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-

1(b)(1) (count five), and third-degree aggravated assault, contrary to N.J.S.A.

2C:12-1(b)(2) (count six). Counts four through six all relate to defendant's

assault of Terranova. Defendant was also charged with third-degree possession

of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4 (count

seven), and fourth-degree unlawful possession of weapon, contrary to N.J.S.A.

2C:39-5(d) (count eight).

      Defendant contends that he remained in custody until August 5, 2006,

accruing seventy-nine days of jail credits. Prior to the bench trial, the State and

defendant, through counsel, executed a pretrial            memorandum.         The

memorandum stated that, if convicted, defendant faced a maximum sentence of

ten years, with an 85% period of parole ineligibility pursuant to the No Early

Release Act. In addition, the memorandum contained the State's plea offer that

if defendant pleaded guilty to the second-degree aggravated assault charge, it

would recommend a seven-year period of imprisonment, subject to an 85%

period of parole ineligibility pursuant to the No Early Release Act. Finally, the




                                                                           A-4120-17T2
                                        4
memorandum acknowledged that the parties agreed to a bench trial and

defendant had plead not guilty by reason of insanity.

      At the conclusion of the bench trial, and after considering the testimony

of a defense expert, the court determined that defendant committed all of the

offenses alleged in the indictment, but found defendant not guilty by reason of

insanity. In a conforming November 13, 2008 order memorializing that verdict,

the court also placed defendant into custody, subject to an evaluation at Ann

Klein Forensic Center. It does not appear from the record, however, that the

court addressed the maximum period of Krol supervision at the time it entered

the November 13, 2008 order. Nor does the record contain any subsequent court

orders indicating if defendant was committed to a mental health facility, or

conditionally released.

      According to defendant, nearly ten years later, at an April 11, 2017 Krol

review hearing, "it was discussed that [defendant's] maximum supervisory

period was never set." The parties submitted written positions regarding the

appropriate maximum supervisory period and in an August 8, 2017 order, the

court established defendant's maximum supervisory term at twenty-three years,

which would expire on November 13, 2031.




                                                                       A-4120-17T2
                                       5
        In a written opinion that accompanied the court's August 8, 2017 order,

the court relied on N.J.S.A. 2C:4-8(b)(3), and identified the maximum sentences

for all of the offenses for which defendant was found not guilty by reason of

insanity. The court then merged counts four and six into count five, because

those charges "substantively encompass[ed] the same offense," and count eight

into count seven, "as a lesser included offense." Accordingly, after merger, the

court concluded that the "maximum period of imprisonment that could have

been imposed, as an ordinary term of imprisonment," see N.J.S.A. 2C:4-8(b)(3),

for the remaining merged counts one, two, three, five and seven, totaled twenty-

three years.

        Defendant moved for reconsideration. After hearing oral arguments, the

court issued a May 15, 2018 order and accompanying written opinion that denied

defendant's motion and confirmed the court's August 8, 2017 order, thereby

maintaining defendant's maximum period of Krol review until November 13,

2031.

        In reaching its conclusion, the court also addressed the appropriate

maximum supervisory term under N.J.S.A. 2C:4-8(b)(2), and noted that a court

"may choose to use the maximum or minimum sentence term for the crime, or

whatever other time frame it finds appropriate after balancing the individual's


                                                                        A-4120-17T2
                                       6
liberty interests against both the individual and the public safety interests. " In

exercising his discretion, the judge stated that he "considered the offenses in

which [defendant] was found not guilty by reason of insanity, as well as his

history of non-compliance as emphasized by the State" and applied the

maximum term for each offense, after merger.

      The judge also rejected defendant's request that the court apply

concurrent, as opposed to consecutive, terms when computing defendant's

maximum supervisory term. The court, after citing the factors in State v.

Yarbough, 100 N.J. 627 (1985), and relying on our decision in State v. Russo,

243 N.J. Super. 383 (App. Div. 1990), concluded that applying consecutive

sentences was appropriate because despite the fact that defendant's conduct

involved a single period of aberrant behavior, defendant's "conduct involved

multiple police office[r] victims and separate acts of aggravated assault and

weapons offenses."

      Finally, the court rejected defendant's argument that his maximum

supervisory period should be limited to ten years, consistent with the ten -year

sentence provided in the pretrial memorandum. The court concluded that even

though the pretrial memorandum "was prepared for the purposes of a[] [not

guilty by reason of insanity trial], nothing in the [pretrial] [m]emorandum


                                                                           A-4120-17T2
                                        7
indicates that [the trial judge], or the parties, intended the [m]aximum [s]entence

if [c]onvicted time period of ten years to establish [defendant's] [m]aximum

[s]upervisory [t]erm under Krol."

      On appeal, defendant raises the following points for our consideration:

            POINT I

            THE       PRETRIAL       MEMORANDUM
            DEMONSTRATES     THE   TRIAL   COURT'S
            INTENTION TO APPLY ORDINARY PRINCIPLES
            OF SENTENCING.

            POINT II

            ORDINARY PRINCIPLES OF SENTENCING
            REQUIRES THE IMPOSITION OF A TEN [-] YEAR
            MAXIMUM PERIOD OF KROL SUPERVISION.

                   A.   Merger Must Occur As a Matter of
                   Law.

                   B.   N.J.S.A.      2C:44-5      Requires
                   Imposition of Concurrent Sentences.

                   C.    [Rule] 3:21-8 Requires All Available
                   Jail Credits Be Applied.

      In his first point, defendant concedes the applicability of N.J.S.A. 2C:4 -

8(b)(3) and states that "[i]t is understood that Krol supervision is the maximum

ordinary aggregate term the defendant would have received if convicted of the

offenses charged, taking into account usual principles of sentencing."           He


                                                                           A-4120-17T2
                                        8
maintains, however, that because the court did not establish the maximum

supervisory period at sentencing as required by N.J.S.A. 2C:4-8, that the "best

remedy is to set a maximum period of supervision within the terms of the pretrial

memorandum," which would support a ten-year maximum supervisory period.

      Alternatively, in his second point defendant argues that ordinary

principles of sentencing support a ten-year maximum supervisory period.

Specifically, he maintains that the court improperly applied merger principles

and incorrectly determined that the merged offenses should run consecutively.

      We disagree with defendant's arguments that the court was bound by the

pretrial memorandum in establishing the maximum supervisory term and that

the court incorrectly merged the offenses when computing the potential

maximum supervisory period of twenty-three years. We cannot conclude on the

current record, however, if the court properly exercised its discretion when

determining that the merged charges should run consecutively, because the court

did not make the necessary findings as to each separate offense.

                                       II.

      "An acquittal on grounds of insanity, unlike a simple acquittal, does not

automatically free . . . the criminal defendant." State v. Krol, 68 N.J. 236, 243




                                                                         A-4120-17T2
                                       9
(1975). Rather, after a defendant is acquitted by reason of insanity, the court

may dispose of the defendant in three ways:

            (1) If the court finds that the defendant may be released
            without danger to the community or himself without
            supervision, the court shall so release the defendant; or

            (2) If the court finds that the defendant may be released
            without danger to the community or to himself under
            supervision or under conditions, the court shall so
            order; or

            (3) If the court finds that the defendant cannot be
            released with or without supervision or conditions
            without posing a danger to the community or to himself,
            it shall commit the defendant to a mental health facility
            approved for this purpose by the Commissioner of
            Human Services to be treated as a person civilly
            committed. In all proceedings conducted pursuant to
            this section and pursuant to section [N.J.S.A.] 2C:4-6
            concerning a defendant who lacks the fitness to
            proceed, including any periodic review proceeding, the
            prosecuting attorney shall have the right to appear and
            be heard. The defendant's continued commitment,
            under the law governing civil commitment, shall be
            established by a preponderance of the evidence, during
            the maximum period of imprisonment that could have
            been imposed, as an ordinary term of imprisonment, for
            any charge on which the defendant has been acquitted
            by reason of insanity. Expiration of that maximum
            period of imprisonment shall be calculated by crediting
            the defendant with any time spent in confinement for
            the charge or charges on which the defendant has been
            acquitted by reason of insanity.

            [N.J.S.A. 2C:4-8(b).]


                                                                        A-4120-17T2
                                      10
      In the typical criminal sentencing setting, when reviewing a trial court's

sentencing decision, we afford great deference to a sentencing judge's decision.

State v. Bieniek, 200 N.J. 601, 608–09 (2010). "The role of appellate courts in

reviewing sentences is to determine: (1) whether the exercise of discretion by

the sentencing court was based upon findings of fact grounded in competent,

reasonably credible evidence; (2) whether the sentencing court applied the

correct legal principles in exercising its discretion; and (3) whether the

application of the facts to the law was such a clear error of judgement that it

shocks the conscience." State v. Megargel, 143 N.J. 484, 493 (1996) (citing

State v. Roth, 95 N.J. 334, 363-65 (1984)). We are also "bound to affirm a

sentence, even if [we] would have arrived at a different result, as long as the

trial court properly identifies and balances aggravating and mitigating factors

that are supported by competent credible evidence in the record." State v.

O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Jarbath, 114 N.J. 393, 400–

01 (1989)).

      In sentencing a defendant found not guilty by reason of insanity, however,

"a trial court should determine the probable maximum ordinary aggregate terms

that defendant would have received if convicted of the offenses charged, taking

into account usual principles of sentencing." In re Commitment of W.K., 159


                                                                        A-4120-17T2
                                      11
N.J. 1, 6 (1999).     "The 'usual principles of sentencing' do not include

consideration of the aggravating and mitigating factors in establishing the term

of commitment because N.J.S.A. 2C:4-8(b)(3) establishes the maximum term,

subject to periodic review." In re Commitment of M.M., 377 N.J. Super. 71, 78

(App. Div. 2005). Accordingly, while the trial court has discretion to decide a

defendant's maximum supervisory date, its decision must be based on usual

principles of sentencing, limited to a consideration of concurrent and

consecutive sentencing criteria. Ibid.

      We reject defendant's reliance on the pretrial memorandum as dispositive

on the issue of defendant's maximum supervisory term. First, the ten-year

maximum term noted in the pretrial memorandum merely referred to the possible

maximum period of incarceration defendant faced if he was convicted, and was

provided in the context of plea negotiations. Second, and in that regard, the

pretrial memorandum merely memorialized the final plea offer, which was

rejected by defendant.     See R. 3:9-3(g).     No provision of the pretrial

memorandum provided that if defendant was found not guilty by reason of

insanity, his maximum supervisory term would mirror the plea offer. Rather, in

such circumstances, the maximum supervisory period is governed by N.J.S.A.

2C:4-8, which considers defendant's interests and any danger defendant's


                                                                        A-4120-17T2
                                         12
release, with or without conditions, poses to the community.        It would be

inimical to that statutory regime, and to public safety, to condition any release

from a supervisory term based solely on an agreement between the parties.

      We also reject defendant's claim that the court erred when merging the

indictable offenses. "Merger stems from the well-settled principle that 'an

accused [who] has committed only one offense . . . cannot be punished as if for

two.'" State v. Cole, 120 N.J. 321, 325–26 (1990) (quoting State v. Miller, 108

N.J. 112, 116 (1987)). Sentencing judges should take a flexible approach to the

merger of offenses. State v. Davis, 68 N.J. 69, 81 (1975). Further, N.J.S.A.

2C:1–8 provides for merger of offenses to avoid impermissible multiple

convictions for the same conduct and sets forth a series of factors to guide a

court in determining whether to bar multiple convictions for conduct that

constitutes more than one offense. In particular, N.J.S.A. 2C:1–8(d) calls for

merger when one offense is established by proof of the same or less than all the

facts required to establish the commission of another offense charged. See State

v. Mirault, 92 N.J. 492, 502–03 (1983); see also State v. Davis, 68 N.J. at 81.

      Here, the court merged counts four and six into count five, because those

charges "substantively encompass[ed] the same offense," and count eight into

count seven, "as a lesser included offense." Accordingly, after merger, the court


                                                                         A-4120-17T2
                                      13
concluded that "maximum period of imprisonment that could have been

imposed, as an ordinary term of imprisonment," N.J.S.A. 2C:4-8(b)(3),3 for

counts one, two, three, five and seven, totaled twenty-three years. We discern

no error from these determinations.

      Defendant challenges the court's merger determination by claiming that

counts two and three are not supported by the sentencing court's findings. We

disagree.   The sentencing court determined that the State established all

elements of the crimes beyond a reasonable doubt. As to counts two and three,

the court specifically found in its November 13, 2008 oral decision that during

the incident, defendant was kicking his legs at Mazza and Maccaquano, which

fully supports the court's legal conclusions memorialized in the November 13,

2008 order related to counts two and three, which were amended from third-

degree to fourth-degree offenses. See N.J.S.A. 2C:12-1(b)(5).

                                      III.

      As noted, after concluding that the maximum sentence should apply for

each offense and applying merging principles, the court also determined that the


3
   We note that in the May 15, 2018 written opinion and order, the court also
considered the propriety of applying maximum terms for each offense under
N.J.S.A. 2C:4-8(b)(2). Defendant has not challenged those findings on appeal
and we conclude in any event that the court did not abuse its discretion as its
legal conclusions were supported by the record.
                                                                        A-4120-17T2
                                      14
sentences should run consecutively, as opposed to concurrently. The court's

factual findings, however, did not address the propriety of applying consecutive

sentences to each separate offense, and specifically the resisting arrest charge

and merged weapons offenses. Accordingly, we vacate the court's August 8,

2017 and May 15, 2018 orders, and remand for additional factual findings.

      "When multiple sentences of imprisonment are imposed on a defendant

for more than one offense, . . . such multiple sentences shall run concurrently or

consecutively as the court determines at the time of sentence . . . ." N.J.S.A.

2C:44-5. In determining whether sentences for multiple offenses should run

concurrently or consecutively, the trial court applies these criteria:

            (1) there can be no free crimes in a system for which
            the punishment shall fit the crime;

            (2) the reasons for imposing either a consecutive or
            concurrent sentence should be separately stated in the
            sentencing decision;

            (3) some reasons to be considered by the sentencing
            court should include facts relating to the crimes,
            including whether or not:

                   (a) the crimes and their objectives were
                   predominantly independent of each other;

                   (b) the crimes involved separate acts of
                   violence or threats of violence;



                                                                          A-4120-17T2
                                       15
                  (c) the crimes were committed at different
                  times or separate places, rather than being
                  committed so closely in time and place as
                  to indicate a single period of aberrant
                  behavior;

                  (d) any of the crimes involved multiple
                  victims;

                  (e) the convictions for which the sentences
                  are to be imposed are numerous;

            (4) there should be no double counting of aggravating
            factors;

            (5) successive terms for the same offense should not
            ordinarily be equal to the punishment for the first
            offense; and

            (6) there should be an overall outer limit on the
            cumulation of consecutive sentences for multiple
            offenses not to exceed the sum of the longest terms
            (including an extended term, if eligible) that could be
            imposed for the two most serious offenses.

            [State v. Yarbough, 100 N.J. 627, 643-44, (1985)]

      A sentencing court applies these factors qualitatively, not quantitatively.

State v. Carey, 168 N.J. 413, 427 (2001). Thus, a court may impose consecutive

sentences "even though a majority of the Yarbough factors support concurrent

sentences." Id. at 427–28; see, e.g., State v. Molina, 168 N.J. 436, 442 (2001)

(finding consecutive sentences were warranted despite the presence of only one

Yarbough factor).    Concurrent sentences are not mandated even where the

                                                                         A-4120-17T2
                                      16
crimes are connected by a "'unity of specific purpose[,]' . . . were somewhat

interdependent of one another, and were committed within a short period of time

of one another." State v. Swint, 328 N.J. Super. 236, 264 (App. Div. 2000).

      We acknowledge that "trial judges have discretion to decide if sentences

should run concurrently or consecutively," and "[w]hen a sentencing court

properly evaluates the Yarbough factors in light of the record, the court's

decision will not normally be disturbed on appeal." State v. Miller, 205 N.J.

109, 128-29 (2011). However, "[w]hen trial courts impose 'either a concurrent

or consecutive sentence, '[t]he focus should be on the fairness of the overall

sentence,' and [the trial courts] should articulate their reasons for their decisions

with specific reference to the Yarbough factors." State v. Soto, 385 N.J. Super.

247, 256 (App. Div. 2006) (quoting State v. Abdullah, 184 N.J. 497, 515

(2005)). "'[A] statement of reasons is a necessary prerequisite for adequate

appellate review of sentencing decisions . . . [in order to] determine whether the

trial court's imposition of consecutive sentences was a valid exercise of

discretion.'" Ibid. (quoting State v. Miller, 108 N.J. at 122). "Failure to provide

reasons for the imposition of a consecutive sentence may compel a remand for

resentencing." Ibid. (citing Miller, 108 N.J. at 122).




                                                                             A-4120-17T2
                                        17
      Here, in imposing consecutive sentences, the court acknowledged that

"defendant's offenses were committed so closely in time and place as to indicate

a single period of aberrant behavior," but that because defendant's "conduct

involved multiple police officer victims and separate acts of aggravated assault

and weapons offenses," consecutive sentences were appropriate. The court did

not, however, specifically address the propriety of applying consecutive

sentences to the resisting arrest charge in count one, or the merged weapons

offenses, and we cannot discern from the record or the court's findings the basis

to impose consecutive sentences on those charges in light of the fact that the

underlying conduct giving rise to those offenses does not appear independent

from the aggravated assault charges to which defendant received three

consecutive sentences toward his maximum supervisory term. On remand, the

court shall reconsider its decision to apply consecutive sentencing to the

resisting arrest and weapons offenses, and to the extent the court concludes

consecutive sentences are appropriate, it must consider and weigh the Yarbough

factors.

                                      IV.

      Finally, both the State and defendant agree that defendant is entitled to

credits for those periods when he was incarcerated or institutionalized, thereby


                                                                         A-4120-17T2
                                      18
reducing his maximum supervisory period. See N.J.S.A. 2C:4-8(b)(3); R. 3:21-

8. According to defendant, he was taken into custody and later involuntarily

committed during which time he accrued seventy-nine days of credits toward

his Krol maximum period of supervision. As the record is incomplete as to the

period of defendant's incarceration or institutionalization, the court on remand

shall conduct further proceedings, as necessary, sufficient to address and

establish the appropriate credits to be applied against defendant 's maximum

supervisory period.

      After carefully reviewing the record and the briefs, we conclude that

defendant's remaining arguments are "without sufficient merit to warrant

discussion in a written opinion." R. 2:11-3(e)(2).

      Affirmed in part, vacated in part and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




                                                                        A-4120-17T2
                                      19
