                        NOT FOR PUBLICATION WITHOUT THE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-3008-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARKITA A. NORRIS, a/k/a MARKITA
ANITA NORRIS and MAKITA A.
NORRIS,

        Defendant-Appellant.

_______________________________

              Submitted February 27, 2017 – Decided            May 15, 2017

              Before Judges Sabatino, Nugent and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 10-
              07-0774.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Rochelle Watson, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Cynthia L. Ritter,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant Markita A. Norris appeals from her judgment of

conviction on resentencing for murder and attempted murder.         We

previously affirmed defendant's convictions, State v. Markita A.

Norris, No. A-1561-12 (App. Div. Nov. 30, 2015), certif. denied,

226 N.J. 213 (2016), but remanded for resentencing.   Id. (slip op.

at 2).

     On remand, after finding one less aggravating factor on the

murder count, and two fewer aggravating factors on the attempted

murder count, the court imposed the same consecutive sentences it

had previously imposed.1   The court did not explain why, on remand,

the elimination of the most serious aggravating factors it had

considered in its original sentence did not affect the resentence.

For this and the reasons that follow, we are constrained to remand

again for further sentencing proceedings.    In doing so, we reject


1    The aggravating factors set forth in N.J.S.A. 2C:44-1(a),
relevant to this appeal, include: (1) The nature and circumstances
of the offense, and the role of the actor therein, including
whether or not it was committed in an especially heinous, cruel,
or depraved manner; (2) The gravity and seriousness of harm
inflicted on the victim, including whether or not the defendant
knew or reasonably should have known that the victim of the offense
was particularly vulnerable or incapable of resistance due to
advanced age, ill-health, or extreme youth, or was for any other
reason substantially incapable of exercising normal physical or
mental power of resistance; (3) The risk that the defendant will
commit another offense; (6) The extent of the defendant's prior
criminal record and the seriousness of the offenses of which he
has been convicted; and, (9) The need for deterring the defendant
and others from violating the law.


                                  2                          A-3008-15T5
defendant's suggestion that the sentencing was a product of the

sentencing court's intransigence.

      The facts underlying defendant's conviction are detailed in

our previous opinion and need not be repeated in their entirety.

Rather, we recount the facts relevant to defendant's sentence.

The State established at trial that following a fundraiser at the

Black United Fund in Plainfield, defendant and her uncle instigated

a verbal altercation with the surviving victim and the decedent.

Id. (slip op. at 3-4).              During the verbal altercation, defendant's

uncle punched the surviving victim, and a fight ensued.                        Id. (slip

op.   at   4).         Although      the   trial    witnesses     were   not    entirely

consistent        as    to    the    sequence      of   events,    their    testimony,

considered collectively, established that while defendant's uncle

fought with the surviving victim, defendant stabbed the surviving

victim twice in the left arm and once in the back.                       The surviving

victim suffered a collapsed lung and other injuries.                           Id. (slip

op. at 4-5, 8).

      The testimony of witnesses also established that defendant

fought     with    and       stabbed   the   decedent,     who    collapsed      on   the

sidewalk.         Defendant walked away but returned and kicked the

victim,     once       or    repeatedly,     according      to    differing      witness

accounts.     Id. (slip op. at 5-8).               After stabbing the decedent and

then attacking him a second time, defendant danced in the middle

                                             3                                   A-3008-15T5
of the street before she and her uncle drove away in his car.      Id.

(slip op. at 5).     The autopsy revealed the cause of decedent's

death to be multiple stab wounds to the chest, abdomen, and right

arm.    Id. (slip op. at 8).

       When the trial court sentenced defendant the first time, the

court did not distinguish between the aggravated assault and murder

counts when it considered aggravating and mitigating factors.      The

court explained the basis for finding aggravating factors one and

two:

            In this matter, supporting those factors, by
            the facts on this case, the [c]ourt finds the
            cruel manner in the attack as this person
            attacked two individuals, both separately, two
            separate victims with a knife, one of which
            she was having a dispute, and then when
            finishing with one, turned her attentions to
            the other, stabbing one from the back.

            Next, the excessive force.        There were
            multiple stab wounds involved in this case.

            Next supporting factor, the brutal and
            senseless nature. The victims were attacked
            in this matter after a fund raiser dance. This
            was at a place in Plainfield called the BUF.
            It was there for a youth sports night. This
            whole incident appeared to occur due to a bump
            on the dance floor, it spilled over to the
            streets outside, after people were leaving.
            Brutal and senseless.

            Overall, the nature of this case is horrific,
            the acts depraved, and the dancing over the
            victim uncalled for, showing this [c]ourt a
            lack of remorse, and in a review of the papers,


                                  4                           A-3008-15T5
         the [c]ourt believes        demonstrates   lack   of
         remorse in this case.

         [Id. (slip op. at 27-28).]

    In our opinion affirming defendant's convictions, we remanded

for resentencing, explaining:

         There are several problems with the trial
         court's finding of factors one and two.
         First, the trial court's opinion does not
         include for each factor "a distinct analysis
         of the offense for which the court sentences
         the defendant."  State v. Lawless, 214 N.J.
         594, 600 (2013).

         Second, the trial court referred to the
         "cruel" manner of the attack on the victims
         without any discussion or finding as to
         whether defendant inflicted pain or suffering
         gratuitously, as an end in itself, rather than
         merely as a means of committing the crimes.
         [State v. O'Donnell, 117 N.J. 210, 217-18
         (1989)]. If the trial court intended to make
         this distinction, it did not explain the facts
         upon which it relied.

         Third, the trial court's emphasis on two
         crimes and two attacks was central to its
         determination to impose consecutive sentences
         under Yarbough.   Thus, it appears the court
         considered the same factors in sentencing
         defendant to consecutive sentences and in
         sentencing defendant to upward ranges of the
         consecutive sentences.

         We have other concerns as well. For example,
         the court cites the use of "excessive force,"
         but does not explain how the force used in
         this case is different from any other first-
         degree murder or first-degree aggravated
         assault committed with a knife. In fact, it
         appears the excessive force — multiple stab
         wounds — caused decedent's death, thereby

                                 5                              A-3008-15T5
            subjecting defendant to a sentence for murder.
            And though the court found the attacks to be
            brutal and senseless, the question is whether
            there is something about what occurred here
            that is more brutal and senseless than any
            other first-degree murder or first-degree
            aggravated assault.

            In short, it appears from this record that the
            court double-counted aggravating factors one
            and two. Accordingly, we vacate defendant's
            sentence and remand for resentencing. In view
            of this disposition, we need not address
            whether the eighty-year aggregate sentence of
            the twenty-one-year-old defendant — in effect,
            a sentence to life imprisonment without any
            likelihood of parole — shocks the judicial
            conscience.

            [Id. (slip op. at 28-29.]

     When the remand hearing commenced, the court stated that it

would not consider aggravating factors one and two in resentencing

defendant.    During the course of oral argument, however, the court

was apparently persuaded by the State's contention that, though

aggravating    factor       two    was    without   "a    solid   justification,"

aggravating factor one was at least applicable as to the decedent.

     Before imposing sentence, the court confirmed defendant's

eligibility    for     a   discretionary       extended    term   under   N.J.S.A.

2C:44-3(a),    the     persistent        offender   statute.      Defendant,    age

twenty-one when she committed the murder and attempted murder, had

been convicted of four previous adult offenses:                      third-degree

resisting     arrest       and    fourth-degree     criminal      trespass,    both


                                           6                               A-3008-15T5
committed   when   she    was    eighteen     years   old;   and   third-degree

possession of a weapon for an unlawful purpose and third-degree

possession of a controlled dangerous substance, both committed

when she was nineteen years old.              Defendant thus qualified as a

persistent offender.       She had "been convicted of a crime of the

first, second or third degree [when] [twenty-one] years of age or

over, [and had] been previously convicted on at least two separate

occasions of two crimes, committed at different times, when [she]

was at least eighteen years of age, . . . within [ten] years of

the date of the crime for which [she was] being sentenced."

N.J.S.A. 2C:44-3(a).

       Next, as to the crime of murder, the court found aggravating

factor one, the nature and circumstances of the offense.                     The

court found that defendant left the decedent lying face down on

the sidewalk after she stabbed him, and "returned . . . to attack

him about the face, head and chest."

       The court also found aggravating factor number three, the

risk   of   re-offense.         The   court   based   its    determination     on

defendant's record, including her "lack of success" on probation

and parole.    She served two probationary terms resulting in two

violations of probation.          The court pointed out "[s]he had four

New Jersey State Prison terms and four parole violations[.]"                 The

court also noted defendant's juvenile record.

                                        7                               A-3008-15T5
       The court found aggravating factor six, defendant's prior

criminal record.       The court explicitly stated it was considering

factor six only insofar as it was a consideration as to the

extended-term sentence.

       Lastly, the court found aggravating factor number nine based

on defendant's criminal record, the need to protect the public,

and the need to deter others by sending a message that such conduct

will not be tolerated. The court added that defendant demonstrated

a lack of remorse by dancing in the street after stabbing the

victims.       The court found no mitigating factors.

       After     explaining    the   reasons   for    imposing     consecutive

sentences, the court made clear it was applying aggravating factors

three and nine to defendant's sentence for attempted murder, and

aggravating factors one, three and nine to her sentence for murder.

In both instances, the court found that the aggravating factors

substantially outweighed the non-existent mitigating factors.

       In summary, when the court first sentenced defendant, it

appeared to find aggravating factors one, two, three and nine on

both counts, giving great weight to aggravating factors one and

two.     In     contrast,     on   resentencing,     the   court   found   only

aggravating factors one, three and nine on the murder count, and

only three and nine on the remaining count.            Yet, notwithstanding



                                        8                              A-3008-15T5
this   significant   quantitative   and   qualitative   difference    in

aggravating factors, the court imposed the same sentence.

       The court imposed its original sentence of fifty-years on the

murder count.    Applying NERA, the court determined defendant must

serve forty-two years, six months and two days before becoming

eligible for parole.    As to the attempted murder count, the court

again imposed the same sentence, thirty years subject to NERA.

Thus, on the attempted murder count, defendant must serve twenty-

five years, six months and two days before becoming eligible for

parole.    The court imposed the sentences consecutively, resulting

in an aggregate eighty year term with sixty-eight years of parole

ineligibility.   Defendant will become eligible for parole when she

is eighty-nine years old.     In effect, the court imposed a life

sentence on the twenty-one-year-old defendant.

       On the resulting judgment of conviction, under a printed

directive to include all aggravating and mitigating factors, the

judgment states: "The [c]ourt finds that aggravating factors 1,

2, 3 and 9 substantially outweigh the non-existent mitigating

factors as originally noted." Defendant appealed from the judgment

of conviction entered after resentencing.

       On appeal, defendant raises the following arguments:




                                    9                          A-3008-15T5
     POINT I

           THE   80  YEAR   SENTENCE   IMPOSED AT THE
           RESENTENCING – THE SAME AS THAT PREVIOUSLY
           IMPOSED – IS MANIFESTLY EXCESSIVE.

                 A.    Because The Court Reimposed The Same
                       Sentence   As   Previously   Imposed
                       After    Eliminating     Significant
                       Aggravating   Factors,    The   Case
                       Should Be Remanded For Sentencing.

                 B.    The Sentencing Court Erred In
                       Finding That Aggravating Factor One
                       Applied To The Murder Conviction,
                       After    The    Appellate   Division
                       Remanded    For   Resentencing   For
                       Impermissible Double-Counting.

                 C.    Defendant's Aggregate Sentence Of
                       80 Years Subject To NERA, Which Will
                       Make Her Eligible For Parole When
                       She Is 89 Years Old, Shocks The
                       Judicial Conscience.

We agree that the trial court, having eliminated significant

aggravating factors, should not have imposed the same sentence,

at least in the absence of a compelling explanation — something

we cannot discern from the record.

     Our review of a trial court's sentencing determination is

deferential.    State v. Fuentes, 217 N.J. 57, 70 (2014).      Reviewing

courts   must   not   substitute   their   judgment   for   that    of   the

sentencing court. O'Donnell, supra, 117 N.J. at 215. Nonetheless,

"[a]ppellate courts are 'expected to exercise a vigorous and close

review for abuses of discretion by the trial courts.'"             Lawless,


                                   10                               A-3008-15T5
supra, 214 N.J. at 606 (citations omitted).                   Thus, for example,

when a trial court fails to provide a qualitative analysis of the

relevant    sentencing       factors    on    the   record,    or   considers     an

aggravating factor that is inappropriate to a particular defendant

or to the defense at issue, an appellate court may remand for

resentencing.       Fuentes, supra, 217 N.J. at 70.

      Moreover,     "[a]     clear     explanation     'of    the   balancing     of

aggravating and mitigating factors with regard to imposition of

sentences and periods of parole ineligibility is particularly

important.'"       Id. at 73 (quoting State v. Pillot, 115 N.J. 558,

565-66 (1989)).       "That explanation should thoroughly address the

factors at issue."         Ibid.

      In   short,    "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."

O'Donnell, supra, 117 N.J. at 215.            In cases such as the one before

us,   where   on    remand    the    sentencing      court    has   substantially

eliminated the most serious aggravating factors underlying the

original sentence, the sentencing court must explain its rationale

for nonetheless imposing an identical sentence.                     Imposing the

identical sentence after eliminating the most serious aggravating

factors, without explaining how eliminating those factors has had

                                         11                                A-3008-15T5
no impact on the sentence, raises the specter of capriciousness

and does not instill confidence that the sentence has been imposed

only after careful consideration of the relevant criteria in the

New Jersey Code of Criminal Justice.

      Here,   although    the   sentencing    court    on    remand    initially

announced it would not consider aggravating factors one or two,

it went on to consider aggravating factor one nonetheless.                   That

aggravating factor is supported by the record.              After stabbing the

decedent and walking away, defendant returned and gratuitously

inflicted additional pain, either by kicking the dying decedent

once or kicking him repeatedly.       The sentencing court eliminated,

however, aggravating factor two.

      Of greater significance is the sentencing court imposing on

the   attempted    murder    count   the     identical      sentence     despite

eliminating aggravating factors one and two, which appeared to

have driven the lengthy extended term the court originally imposed.

These circumstances raise concerns about the propriety of the

resentence imposed on the attempted murder count.

      We   note   the   sentencing   court    had    already    exercised     its

discretion to impose both an extended term and a consecutive

sentence on the attempted murder count.             As our Supreme Court has

noted, "the decision whether sentences for different counts of

conviction should run consecutively or concurrently often drives

                                     12                                  A-3008-15T5
the real-time outcome at sentencing."             State v. Zuber, 227 N.J.

422, 449 (2017).       We also note the United States Supreme Court's

recognition of "the mitigating qualities of youth" and the need

for courts to consider at sentencing a youthful offender's "failure

to appreciate risks and consequences" as well as other factors

often peculiar to young offenders.            Miller v. Alabama, 567 U.S.

460, 476-77, 132 S. Ct. 2455, 2467-68, 183 L. Ed. 2d 407, 422-23

(2012).   Our Supreme Court noted "that the same concerns apply to

sentences    that    are   the   practical   equivalent    of    life   without

parole[.]"    Zuber, supra, 227 N.J. at 429.

     That is not to say that defendant in the case before us, who

was twenty-one-years old when she committed murder and attempted

murder, should be given the same consideration as a juvenile

offender.      But    certainly     the    real   life   consequences     of    a

consecutive,    extended-term        sentence     should    be    considered,

particularly under circumstances such as these, where on the

attempted murder charge the most serious aggravating factors had

been eliminated and the two that remained were somewhat ubiquitous.

     For the foregoing reasons, we again remand this matter for

resentencing.       We do not retain jurisdiction.




                                      13                                A-3008-15T5
