STATE OF NEW JERSEY v. PRESTON O. TAYLOR (17-04-0559, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-2155-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PRESTON O. TAYLOR,
a/k/a PRESTON TAYLOR,
Defendant-Appellant.
________________________
Argued February 2, 2022 – Decided February 17, 2022
Before Judges Whipple, Geiger and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, Accusation No. 17-
04-0559.
Kevin S. Finckenauer, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Kevin S.
Finckenauer, of counsel and on the briefs).
Monica do Outeiro, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Lori Linskey, Acting Monmouth
County Prosecutor, attorney; Monica do Outeiro, of
counsel and on the brief).
PER CURIAM
This case arises from the murder of Sarah Stern by co-defendant Liam
McAtasney as part of a robbery. Defendant Preston O. Taylor, who was
convicted of robbery and related crimes for his involvement in the criminal
episode, appeals from the prison term and fine that were imposed following his
guilty plea to an accusation. We affirm in part and remand in part.
We glean the following facts from the record. McAtasney and Taylor
became friends their freshman year of high school. In October 2016, Taylor
lived with McAtasney in a home owned by McAtasney's parents. At the time,
Taylor had a serious substance abuse problem.
McAtasney and Taylor were friends with Stern, whom Taylor had known
for about five years. In September 2016, McAtasney learned of Stern's recent
sizable inheritance from her mother's estate. McAtasney commented to Taylor
that the amount of the inheritance was "worth killing someone for."
McAtasney devised a plan to rob and murder Stern and involved Taylor in that
plan. Taylor claims there was no set date for the robbery and that he did not
believe McAtasney would carry out the plan.
On December 2, 2016, McAtasney called Taylor to explain that he and
Stern were on their way to the bank, and this was McAtasney's chance to get
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the money. Taylor then knew McAtasney was going to kill Stern. Taylor also
knew he would have to help McAtasney dispose of the body. Later that day,
McAtasney told Taylor that he went to the bank with Stern, where she
withdrew the money, and then they went to Stern's house. McAtasney
strangled Stern and hid her body in a bathroom. McAtasney told Taylor to go
to Stern's house to dispose of the body because McAtasney had to go to work.
Taylor went to Stern's house, found her body in the bathroom, and
moved it to her backyard. He also looked for McAtasney's cellphone, which
was missing. Taylor placed the body under bushes and covered it with sticks
and leaves. He then returned to their home and waited for McAtasney.
McAtasney and Taylor took Stern's car and her body to Belmar Bridge.
They jointly threw Stern's body off the bridge. They left Stern's car at the
bridge to make her death look like a suicide.
McAtasney and Taylor stole a safe from Stern's house, placed it in
Taylor's car, and opened it after disposing of Stern's body. The safe contained
approximately $10,000. They agreed to divide the money between them.
They later placed the money in another safe that they buried in Sandy Hook.
They buried Stern's safe in Shark River Park in Wall.
One of McAtasney's acquaintances, Anthony Curry, became suspicious
of what happened to Stern after learning of her disappearance due to
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conversations he had previously had with McAtasney about her. Curry
contacted local police and then recorded a conversation he had with
McAtasney that described the robbery and murder. The recording also detailed
another plan McAtasney and Taylor had to burglarize a drug dealer's apartment
in Galloway. Taylor was arrested the day after the recording was made.
McAtasney and Taylor planned that if Taylor was caught, he would tell
detectives that Stern attempted suicide previously and that she had a falling out
with her father. Taylor initially told that version to police and provided an
alibi for McAtasney. Stern's body was never found.
On February 1, 2017, Taylor provided a formal statement to police that
described the events in detail, including that McAtasney strangled Stern. On
April 20, 2017, Taylor provided a formal statement to the Monmouth County
Prosecutor's Office that provided additional details about the robbery , murder
plot, and Stern's death.
On April 24, 2017, Taylor waived his right to indictment by grand jury
and was charged in an accusation with: first-degree felony murder, N.J.S.A.
2C:11-3(a)(2) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two);
second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1
(count three); second-degree disturbing or desecrating human remains,
N.J.S.A. 2C:22-1(a)(1) and/or (a)(2) (count four); fourth-degree tampering
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with physical evidence, N.J.S.A. 2C:28-6(1) (count five); third-degree
hindering apprehension of self, N.J.S.A. 2C:29-3(b) (count six); and third-
degree hindering apprehension of another, N.J.S.A. 2C:29-3(a) (count seven).
The waiver of indictment was part of a cooperation agreement and plea
agreement Taylor entered into with the State on April 24, 2017. Taylor agreed
to plead guilty to counts two through seven of the accusation in exchange for
the State's recommendation of up to a twenty-year term on count two, subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with all other terms
running concurrently, and dismissal of count one. The plea agreement was
conditioned upon Taylor's compliance with the terms of the cooperation
agreement, including providing truthful, complete, and accurate information
and testifying truthfully at McAtasney's trial. Taylor denied agreeing with
McAtasney to kill Stern but admitted to agreeing to participate in the robbery.
The plea hearing also took place on April 24, 2017. During the hearing,
Taylor acknowledged that the sentencing range for first-degree robbery was
ten to twenty years and that the State was going to recommend a twenty-year
NERA term on count two, but that he could argue for a sentence on the low
end of the range. Taylor provided a thorough, detailed factual basis for his
plea. He testified $10,000 was taken from Stern's safe, of which he was to
receive $3,000. The court accepted the guilty plea.
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A jury convicted McAtasney of first-degree murder, first-degree
robbery, first-degree felony murder, second-degree conspiracy to commit
robbery, second-degree disturbing or desecrating human remains, third-degree
hindering, and fourth-degree tampering with physical evidence. McAtasney
was sentenced to life without parole and a consecutive ten-year term for
desecrating her body.
Taylor was nineteen years old when the crimes were committed and pled
guilty. He was twenty-one years old when sentenced on June 28, 2019. These
were Taylor's first indictable convictions. He had one prior ordinance
violation and a conditional discharge. Taylor had no known history of juvenile
delinquency.
At the sentencing hearing, Taylor moved to allow his mother to speak on
his behalf. The judge denied the request, noting he had read thirteen letters in
support of defendant's character. The judge stated her comments would be
redundant, put defendant's mother in a "difficult position," and be too time
consuming.
The prosecutor argued that but for Taylor's actions, "Sarah Stern would
still be here." He argued the court should apply aggravating factors one (the
nature and circumstances of the offenses, and the actor's role in committing
them was especially heinous, cruel, or depraved), N.J.S.A. 2C:44-1(a)(1); three
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(risk of reoffending), N.J.S.A. 2C:44-1(a)(3); seven (pecuniary incentive),
N.J.S.A. 2C:44-1(a)(7); and nine (need for deterrence), N.J.S.A. 2C:44-
1(a)(9); and mitigating factor twelve (cooperation with law enforcement),
N.J.S.A. 2C:44-1(b)(12). The prosecutor contended that the aggravating
factors outweighed the mitigating factor and suggested that a NERA term
under fifteen years "would not be in the interest of justice."
Defense counsel argued in favor of applying mitigating factors seven (no
history of prior delinquency or criminal activity), N.J.S.A. 2C:44-1(b)(7);
eight (defendant's conduct is the result of circumstances unlikely to recur),
N.J.S.A. 2C:44-1(b)(8); nine (defendant's character and attitude indicate he is
unlikely to reoffend), N.J.S.A. 2C:44-1(b)(9); ten (defendant is particularly
likely to respond affirmatively to probationary treatment), N.J.S.A. 2C:44-
1(b)(10); eleven (imprisonment would entail excessive hardship), N.J.S.A.
2C:44-1(b)(11); and twelve.
The judge declined to apply aggravating factor one, noting he did not
apply it when sentencing McAtasney. The judge found aggravating factor
three because there was evidence of defendant planning to commit a robbery at
Stockton University. The judge found aggravating factor seven because
Taylor's involvement in the case was "financial." He also found aggravating
factor nine, because "this [case] has gripped, clearly, the nation, at least the
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East Coast . . . there's been television productions with regards to this and it
has been something that's been highly covered in the media. And there's
clearly a need to deter a situation when we're talking about three people that
knew each other. . . ."
The judge found mitigating factor seven, and gave "some" weight to it,
because defendant had little criminal history. He declined to find mitigating
factor eight because he had found there was a risk Taylor would commit
another offense. Despite the numerous letters submitted on Taylor's behalf,
the judge rejected mitigating factor nine, because "of course [his] character is
going to change once [he is] arrested and committed these crimes." The judge
did not believe Taylor was unaware "McAtasney was going to do this.
[Taylor] could have stopped it and [he] did not." The judge also declined to
find mitigating factors ten and eleven. The judge found mitigating factor
twelve, because defendant clearly cooperated with law enforcement as part of
his cooperation agreement and plea bargain. The judge determined that the
aggravating factors substantially outweighed the mitigating factors.
The judge sentenced Taylor in accordance with the plea agreement. On
count two, Taylor received an eighteen-year NERA term and a $10,000 fine
but did not order Taylor to pay restitution. The judge explained that $10,000
was the amount that was stolen from Stern, and that he did not understand why
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defendant, someone in college, would commit a crime for this amount of
money that he could earn himself. Count three merged into count two, and the
other sentences ran concurrently to count two. On count four, defendant was
sentenced to a ten-year term. On count five, defendant was sentenced to an
eighteen-month term. On count six and seven, defendant was sentenced to
five-year terms. Count one was dismissed per the plea agreement.
On August 30, 2019, the trial court denied defendant's motion for
reconsideration of his sentence. As to aggravating factor three, the judge
noted Taylor helped McAtasney plan the murder, and he planned another
potential robbery or theft himself. He only came forward after their
acquaintance, Curry, went to the police. The judge rejected Taylor's claim that
applying aggravating factor seven would be double counting, explaining:
It's not as to the murder itself but it goes to those same
factors that I just elicited with regard to the planning,
the covering up and . . . the charges themselves that it
does deal with, it deals with [] tampering, the
desecration of human remains and the hindering.
This appeal followed. Defendant raises the following points for our
consideration.
POINT I
THE TRIAL COURT MADE NUMEROUS AND
SUBSTANTIAL ERRORS IN FINDING
AGGRAVATING FACTORS, DECLINING
MITIGATING FACTORS, AND ASSIGNING
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WEIGHT TO THOSE FACTORS, REQUIRING
REVERSAL AND REMAND OF THIS MATTER
FOR RESENTENCING.
A. The Trial Court Improperly Double Counted
the Pecuniary Interest of the Offense When
Imposing an Eighteen-year Sentence for First-
Degree Robbery.
B. The Trial Court Improperly Gave Weight to
the Media Attention of the Case in Finding
Aggravating Factor Nine.
C. The Trial Court Committed Reversible Error
by Using S.S.'s Death to Afford Heavier Weight
to the Aggravating Factors.
D. The Trial Court Incorrectly Stated that Mr.
Taylor's Character Prior to the Offense Could
Not Be Taken into Account When Evaluating
Mitigating and Aggravating Factors.
E. The Trial Court Abused Its Discretion in
Rejecting Mitigating Factors Eight and Eleven
Outright When They Were Supported by the
Record.
POINT II
THE LAW REQUIRING SENTENCING
MITIGATION FOR YOUTHFUL DEFENDANTS
DEMANDS RETROACTIVE APPLICATION
BECAUSE THE LEGISLATURE INTENDED IT,
THE NEW LAW IS AMELIORATIVE IN NATURE,
AND FUNDAMENTAL FAIRNESS REQUIRES
RETROACTIVITY.
A. The Legislature Did Not Express a Clear
Intent for Prospective Application.
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B. The Other Language of the Mitigating Factor
Indicates Retroactive Application; the
Presumption of Prospective Application is
Inapplicable; and the Law is clearly
Ameliorative.
C. There is No Manifest Injustice to the State in
Applying the Mitigating Factor Retroactively.
D. The Savings Statute Does Not Preclude
Retroactive Application of Ameliorative
Legislative Changes, Like the One at Issue
Here.
E. Retroactive Application of the Mitigating
Factor is Required as a Matter of Fundamental
Fairness, and to Effectuate the Remedial
Purpose of the Sentencing Commission's Efforts
Regarding Juvenile Sentencing.
POINT III
THE TRIAL COURT ERRED IN REFUSING TO
LET MR. TAYLOR'S MOTHER SPEAK ON HIS
BEHALF.
POINT IV
THE TRIAL COURT FAILED TO CONDUCT AN
ABILITY TO PAY HEARING WHEN IMPOSING
THE $10,000 FINE FOR THE ROBBERY OFFENSE
OR STATE ITS REASONING FOR IMPOSING
SAME.
"[T]rial judges are given wide discretion so long as the sentence imposed
is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005).
"Appellate review of a criminal sentence is limited; a reviewing court decides
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whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217
N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).
Appellate courts must affirm the sentence of a trial
court unless: (1) the sentencing guidelines were
violated; (2) the findings of aggravating and
mitigating factors were not "based upon competent
credible evidence in the record;" or (3) "the
application of the guidelines to the facts" of the case
"shock[s] the judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth,
95 N.J. 334, 364-65 (1984)).]
"These standards apply as well to sentences . . . that are entered as part of a
plea agreement." State v. Sainz, 107 N.J. 283, 292 (1987).
Generally, an appellate court should defer to the sentencing court's
factual findings and should not "second-guess" them. State v. Case, 220 N.J.
49, 65 (2014). "Although '[a]ppellate review of sentencing is deferential,' that
deference presupposes and depends upon the proper application of sentencing
considerations." State v. Melvin, 248 N.J. 321, 341 (2021) (alteration in
original) (quoting Case, 220 N.J. at 65); accord State v. Trinidad, 241 N.J. 425,
453 (2020). If the sentencing court "follows the Code and the basic precepts
that channel sentencing discretion[,]" the reviewing court should affirm the
sentence, so long as the sentence does not "shock the judicial conscience."
Case, 220 N.J. at 65. "A sentence imposed pursuant to a plea agreement are
presumed to be reasonable . . . ." State v. Fuentes, 217 N.J. 57, 70-71 (2014).
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In imposing a sentence, the court must make an individualized
assessment of the defendant based on the facts of the case and the aggravating
and mitigating sentencing factors. State v. Jaffe, 220 N.J. 114, 122 (2014).
"[T]he judge shall state reasons for imposing [the] sentence including . . . the
factual basis supporting a finding of particular aggravating or mitigating
factors affecting sentence[.]" State v. A.T.C., 454 N.J. Super. 235, 255 (App.
Div. 2018) (alterations in original) (quoting R. 3:21-4(g)). The "judge must
determine whether specific aggravating or mitigating factors are grounded in
credible evidence in the record and then weigh those factors." Ibid. (quoting
Case, 220 N.J. at 54).
An appellate court's jurisdiction to review sentences includes the power
to make new findings of fact, to "reach independent determinations of the
facts," and to "supplement the record." State v. Jarbath, 114 N.J. 394, 410
(1989) (citing R. 2:5-5(a); R. 2:10-5). However, exercising original
jurisdiction "should not occur regularly or routinely; . . . a remand to the trial
court for resentencing is strongly to be preferred." Id. at 411.
The record supports the finding of aggravating factors three and nine.
The judge found Taylor's plan to commit another robbery demonstrated the
risk he would reoffend. While the judge noted the media attention given to the
case, he explained that aggravating factor nine applied because of the nature of
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the case. Deterrence is considered "one of the most important considerations
in sentencing, for the future protection of the public." State v. Locane, 454
N.J. Super. 98, 126 (App. Div. 2018) (citing Fuentes, 217 N.J. at 78-79).
Aggravating factor nine should be found when an offense "by its very nature
makes general deterrence absolutely meaningful." Ibid. Deterring future
robberies to protect the public was an appropriate consideration. We discern
no abuse of discretion in finding aggravating factors three and nine.
Taylor argues that applying aggravating factor seven amounts to
impermissible double counting. We disagree.
"Elements of a crime, including those that establish its grade, may not be
used as aggravating factors for sentencing of that particular crime." A.T.C.,
454 N.J. Super. at 253 (quoting State v. Lawless, 214 N.J. 594, 608 (App. Div.
2013)). However, a court does not double count if it "considers facts showing
defendant did more than the minimum the State is required to prove to
establish the elements of an offense." Id. at 255.
Here, the grading of the robbery as a first-degree offense was not based
on the amount stolen. Rather, it was based on the fact that "in the course of
committing the theft the actor attempts to kill anyone, or purposely inflicts or
attempts to inflict serious bodily injury . . . ." N.J.S.A. 2C:15-1(b). Likewise,
A-2155-19
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the amount of the theft was not an element of the remaining offenses. Finding
aggravating seven was not double counting.
Aggravating factor seven applies when "[t]he defendant committed the
offense pursuant to an agreement to either pay or be paid for the commission
of the offense and the pecuniary incentive was beyond that inherent in the
offense itself[.]" N.J.S.A. 2C:44-1(a)(7). The judge noted that Taylor's
"involvement in this case was financial. He was basically being paid . . . a cut
of whatever was found." Taylor said he received about $3,000 for his
involvement. The judge noted, however,
this doesn't really go to the robbery itself; it really
goes to what he was basically, I guess you could use
the word hired to do, help cover up the body, take the
body from the bathroom to the bushes outside the
home to the backyard and into the car. And then when
[] McAtasney was not strong enough to take,
unfortunately, Sarah's body out of the car, [defendant]
came around the bridge, as I said last week, and then
helped him, and unfortunately threw her deceased
body over the bridge into the Shark River. So he was
really aiding in the coverup. And then perpetuating
the misleading of the police in statements,
participating in the community search. You know,
again floating out there the idea that this was a suicide
so to throw the police off of the trail.
[(emphasis added).]
The judge made similar comments during his oral decision denying
reconsideration. Given this explanation, it seems clear that aggravating factor
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seven was not applied to the robbery count; it was only applied to the
remaining counts. We discern no abuse of discretion in finding aggravating
factor seven on counts three through seven.
The judgment of conviction lists aggravating factor seven without
specifying that it only applies to counts three through seven. "Where there is a
conflict between the sentence as set forth in a judgment of conviction and the
sentencing transcript, the sentencing transcript controls." Pressler & Verniero,
Current N.J. Court Rules, cmt. 1.8 on R. 3:21-4 (2022) (citing State v. Walker,
322 N.J. Super. 535, 556 (App. Div. 1999)). We remand for the court to enter
a corrected judgment of conviction stating that aggravating sentence seven
does not apply to count two, as was indicated by the court in its oral
sentencing decision.
We next address the judge's statement during sentencing that while "it's
clear, [Taylor] did not commit the murder himself. He did everything but put
his hands around her neck but he did not commit the murder." The judge also
stated that Taylor "could have stopped [the murder] and [he] did not."
The record reflects that McAtasney began planning the robbery and
concluded that Stern would be killed during the robbery, long before Taylor's
involvement began. McAtasney made nearly all the decisions during the
commission of the crimes. McAtasney strangled Stern. Taylor was not
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present when Stern was strangled. Taylor was not charged with knowing or
purposeful murder. Although Taylor was charged with felony murder, that
count was dismissed by the State as part of the plea agreement.
Although a defendant can be vicariously liable for a co-defendant's
actions, he is not "liable for aggravating factors not personal to him." State v.
Megargel, 143 N.J. 484, 491 (1996) (citing State v. Rogers, 236 N.J. Super.
378, 387 (App. Div. 1989)). In State v. Anthony, we held it was inappropriate
for a sentencing judge to hold the defendant vicariously liable for his co -
defendant's murder during a robbery, when the defendant was acquitted of all
charges except for agreement to commit the robbery. 443 N.J. Super. 553, 576
(App. Div. 2016). In Anthony, the defendant agreed to drive the co-defendant
to burglarize a house if no one was home, but the co-defendant murdered an
elderly man who was there. Id. at 562. We explained that it was error for the
judge to "attribut[e] the violent, heinous acts of defendant's co-defendant to
defendant, and, while there is certainly support in the record for the judge's
conclusion that defendant knew the victim was very old, the jury concluded he
did not know that [the co-defendant] would do personal violence to the
victim." Id. at 576.
In Melvin, the Court addressed "whether a trial judge can consider at
sentencing a defendant’s alleged conduct for crimes for which a jury returned a
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not guilty verdict." 248 N.J. at 325. The jury found Melvin guilty of second-
degree unlawful possession of a handgun but not guilty of murder or attempted
murder. Ibid. At sentencing, the trial court "determined that the evidence at
trial supported the conclusion that Melvin shot the victims" despite the jury's
not-guilty verdicts on the murder charges. Ibid.
Citing United States v. Watts, 519 U.S. 148 (1997),
the trial judge found that it was within the court's
broad discretion at sentencing to consider all
circumstances of the case, including evidence that
Melvin was the shooter. Despite the jury's verdict, the
trial court found that Melvin not only possessed the
weapon, but used it to shoot three people. The trial
court sentenced Melvin to a term of sixteen years'
imprisonment with an eight-year period of parole
ineligibility.
[Ibid.]
The trial court granted the State's motion to sentence Melvin to an
extended term as a persistent offender based on his criminal history. Id. at
328. "The trial court sentenced Melvin to the maximum – an aggregate
twenty-year prison term with ten years of parole ineligibility." Ibid. "The
sentencing judge determined that 'by a preponderance of the credible evidence
at trial, . . . Melvin did in fact use a firearm, which resulted in the death of [the
two victims] and the injury to [the restaurant owner].'" Ibid. (alterations in
original). We affirmed Melvin's conviction but remanded for resentencing.
Ibid. Melvin was resentenced "to an aggregate extended term of sixteen years
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with an eight-year period of parole ineligibility." Id. at 330. We affirmed that
sentence. Ibid.
Melvin "argue[d] that sentencing based on acquitted conduct violated
[his] federal and state constitutional rights to due process and fundamental
fairness. [He] assert[ed] that punishing a person for conduct of which a jury
acquitted them violates the protection afforded by acquittal and undermines the
purpose of a jury trial." Id. at 339. The Court reviewed this question of law
de novo. Id. at 341.
In Watts, the United States Supreme Court held that "a jury's verdict of
acquittal does not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence." 519 U.S. at 157. Our Supreme Court
determined that Watts was not controlling. Melvin, 248 N.J. at 343-46. The
Court noted that "Watts was cabined specifically to the question of whether the
practice of using acquitted conduct at sentencing was inconsistent with double
jeopardy." Id. at 346.
The Court analyzed due process under the New Jersey Constitution. Id.
at 347. It emphasized that "[t]he doctrine of fundamental fairness reflects the
State Constitution's heightened protection of due process rights." Ibid. "In
order to protect the integrity of our Constitution's right to a criminal trial by
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jury, we simply cannot allow a jury's verdict to be ignored through judicial
fact-finding at sentencing. Such a practice defies the principles of due process
and fundamental fairness." Id. at 349. The Court noted that "[t]o convict
Melvin of unlawful possession, the jury did not make any finding as to
whether he used the handgun he possessed." Id. at 350. Similarly, "in
acquitting Melvin of any offenses that involved using the weapon -- or even of
having had the 'purpose to use the firearm unlawfully,' . . . the jury's verdict
should have ensured that Melvin retained the presumption of innocence for any
offenses of which he was acquitted." Ibid.
The Court held "that fundamental fairness prohibits courts from
subjecting a defendant to enhanced sentencing for conduct as to which a jury
found that defendant not guilty." Id. at 326. Therefore, jury findings "cannot
be nullified through lower-standard fact findings at sentencing." Id. at 352.
"Fundamental fairness simply cannot let stand the perverse result of allowing
in through the back door at sentencing conduct that the jury rejected at trial."
Ibid.
Here, unlike in Melvin, Taylor did not go to trial. A jury did not acquit
him of felony murder. That charge was dismissed pursuant to the terms of the
plea agreement. And unlike in Anthony, where the trial judge improperly
found aggravating factor one by applying the co-defendant's actions to the
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defendant, 443 N.J. Super. at 574, here the judge did not find aggravating
factor one. Moreover, the judge did not attribute McAtasney's conduct to
Taylor. Instead, he appears to have considered the extent of Taylor's
involvement in applying aggravating factor seven to the counts other than the
robbery. Those counts run concurrently to the term imposed on the robbery.
While the reasoning was perhaps inartfully stated, we discern no error.
Consideration of the extent of Taylor's involvement in the incident was
permissible even though the felony murder charge was dismissed.
We next address whether the trial court abused its discretion in declining
to hear from Taylor's mother at sentencing. Defense counsel proffered that
Taylor's mother would address "some of the mitigating factors, particularly
whether there is a likelihood to change," that Taylor is "unlikely to commit
another offense[,] . . . and whether his conduct was a result of [circumstances]
unlikely to recur." Counsel represented that the mother's presentation would
not be long.
The State contended the mother's statements would be duplicative of the
character letters already submitted and would merely be a plea for mercy. The
State also noted that the judge had heard Taylor's testimony during
McAtasney's trial. The judge stated that he considered thirteen character
letters submitted by defendant and defendant's own letter. The judge noted
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that defense counsel's sentencing memorandum addressed mitigating factors
seven through eleven. In addition, Taylor would be able to speak. The judge
noted Taylor's remorse as indicated in the presentence report. The judge
concluded the mother's comments would be redundant.
"[O]ther than defendants, and crime victims or their survivors, there is
no absolute right to speak at a sentencing proceeding; instead, permitting
others to address the court directly is a matter entrusted to the sentencing
court's discretion." State v. Blackmon, 202 N.J. 283, 305 (2010). In
exercising this discretion, the Court provided the following guidance:
[Sentencing courts] need not entertain mere pleas for
mercy and need not permit presentations that are
cumulative or that merely repeat previously-submitted
written comments. Nor are they required to permit
presentations that are scurrilous, vengeful, or
inflammatory. Moreover, courts should consider
whether the individual seeking to be heard on
defendant's behalf has information that bears upon an
aggravating or mitigating factor, and may require a
proffer consistent with one of those factors from
defendant's counsel, electing to limit the grant of
permission accordingly.
[Ibid.]
A defendant is to be evaluated "as he stands before the court on that day"
at sentencing. State v. Randolph, 210 N.J. 330, 354 (2012). Here, the crimes
occurred on December 2, 2016. Taylor pled guilty on April 24, 2017. Due to
the cooperation agreement, which required his truthful testimony at
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McAtasney's trial, Taylor was not sentenced until June 28, 2019, more than
two and one half years after the crimes were committed.
Considering the totality of the circumstances, we find no abuse of
discretion. Defense counsel did not proffer any specific information that
Taylor's mother would provide that was not already discussed in the character
letters or which Taylor himself could not state during allocution.
Taylor further argues that the judge should have found mitigating factors
eight and eleven. The judge applied aggravating factor three, finding a risk
defendant would reoffend based on Taylor's plan to commit another robbery.
As to mitigating factor eleven, Taylor claimed he had been attacked and beaten
up while incarcerated. Noting this issue should be dealt with by the
Department of Corrections, the judge also surmised that Taylor's treatment was
unrelated to the length of his sentence. We discern no abuse of discre tion in
declining to apply either mitigating factor.
Taylor also argues he should be resentenced for the trial court to
consider mitigating factor fourteen ("defendant was under [twenty-six] years
of age at the time of the commission of the offense"), N.J.S.A. 2C:44-1(b)(14)
because he was nineteen years old at the time of the offenses. Taylor contends
mitigating factor fourteen should be applied because the legislature intended it
to be applied retroactively and it is ameliorative in nature. We are mindful
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that the Court granted certification in State v. Lane, Docket No. A-17-21, ___
N.J. ___ (2021), in which the legal issue is whether N.J.S.A. 2C:44-1(b)(14)
applies retroactively, and if so, to what extent. Unless and until the Court
holds to the contrary in Lane, we abide by our holding in State v. Bellamy, 468
N.J. Super. 29, 48 (App. Div. 2021), that mitigating factor fourteen does not
apply retroactively absent resentencing "for a reason unrelated to the adoption
of [N.J.S.A. 2C:44-1(b)(14)]."1 Nothing in this opinion precludes the court on
remand from amplifying its sentencing decision by considering whether the
sentence would be different accounting for the new mitigating factor. Cf. State
v. Canfield, __ N.J. Super. __, ___ (App. Div. 2022) (slip op. at 126).
In sum, applying the three-pronged test adopted in Roth, we find that the
sentencing guidelines were not violated, the aggravating and mitigating factors
were "based upon competent credible evidence in the record," and "the
application of the guidelines to the facts of [the] case" did not "shock the
judicial conscience." 95 N.J. at 364-65. We therefore affirm the prison terms
imposed.
1
The Court's recent decision in State v. Rivera, ___ N.J. ___ (2021), is
distinguishable. In Rivera, the Court had an independent basis to remand for
resentencing (the mistaken treatment of the defendant's youth as an
aggravating factor). Id. at ___ (slip op. at 10). Accordingly, the trial court
was permitted to apply mitigating factor fourteen. Here, we find no
independent basis to remand the prison terms imposed for resentencing.
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We reach a different conclusion regarding the fine imposed. Taylor
argues the trial court erred by not conducting an ability to pay hearing before
imposing the $10,000 discretionary fine on the robbery count. We agree.
N.J.S.A. 2C:43-3(a)(1) authorizes the imposition of a fine not to exceed
$200,000 upon conviction of a first-degree crime. However, the defendant
must be afforded "the opportunity to be heard respecting his ability to pay the
fine or to be heard as to the manner or method of payment." State v. Ferguson,
273 N.J. Super. 486, 499 (App. Div. 1994) (citing State v. Newman, 132 N.J.
159, 178-79 (1993); State v. De Bonis, 58 N.J. 182, 199-200 (1971)).
We remand for the trial court to conduct an ability to pay hearing
pursuant to N.J.S.A. 2C:44-2(a)(2) to reconsider the amount of the fine
imposed based on whether Taylor "is able, or given a fair opportunity to do so,
will be able to pay the fine[.]"2 "In determining the amount and method of
payment of the fine, the court shall take into account the financial resources of
the defendant and the nature of the burden that its payment will impose."
2
The remand for the trial court to conduct a hearing on Taylor's ability to pay
the fine imposed, or the manner of payment, does not constitute resentencing
with respect to the prison terms imposed. "A fine or restitution is a separate
kind of sentence." Cannel, New Jersey Criminal Code Annotated, cmt.2 on
N.J.S.A. 2C:43-3 (2021). "[N.J.S.A.] 2C:44-2 provides criteria for imposition"
of a fine. Ibid. The statutory aggravating and mitigating factors do not apply
to the determination whether to impose a discretionary fine, and if so, the
amount thereof.
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N.J.S.A. 2C:44-2(c)(1). In doing so, the court shall also take into account the
real time consequences of the sentence imposed. We note that before applying
applicable credits, Taylor must serve more than fifteen years before being
eligible for parole. That said, we express no opinion on the amount of the fine
that is appropriate.
On remand, the court shall also enter a corrected judgment of conviction
stating that aggravating sentence seven does not apply to count two .
To the extent we have not specifically addressed any of Taylor's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part and remanded in part for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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