STATE OF NEW JERSEY VS. KESAN TAYLOR (94-05-1811, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1602-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KESAN TAYLOR,
Defendant-Appellant.
Submitted July 12, 2017 – Decided July 24, 2017
Before Judge Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 94-05-1811.
Kesan Taylor, appellant pro se.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (LeeAnn
Cunningham, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Kesan Taylor is presently serving a sentence of
life imprisonment, which was imposed after he was convicted of
the 1993 drive-by shooting death of Christina Mercado outside a
Bloomfield restaurant. In this pro se appeal, defendant challenges
the trial court's May 21, 2015 denial of his motion to reduce his
sentence. We affirm.
We briefly recount the lengthy procedural history of this
case. Following a jury trial, defendant was found guilty of first-
degree murder, N.J.S.A. 2C:11-3a(1) and (2); third-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5b; second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4a; and third-degree receiving stolen property, N.J.S.A. 2C:20-7.
On November 18, 1994, defendant was sentenced to life imprisonment
with a thirty-year period of parole ineligibility.
On March 21, 1997, we affirmed the judgment of conviction in
an unpublished opinion. State v. Taylor, No. A-4670-94 (App. Div.
Mar. 21, 1997). Among other things, we rejected defendant's
contentions that his sentence was excessive and the trial court
improperly balanced the aggravating and mitigating factors. The
Supreme Court denied certification. State v. Taylor, 151 N.J. 464
(1997).
Defendant filed a petition for post-conviction relief (PCR)
on October 7, 1997. He asserted that trial counsel was ineffective
2 A-1602-15T4
for failing to move for a Wade1 hearing and to sever his trial
from that of the co-defendants, and that his sentence was illegal.
The PCR judge, who was also the trial judge, denied the petition,
and we affirmed. State v. Taylor, No. A-6268-98 (App. Div. Nov.
3, 2000), certif. denied, 167 N.J. 632 (2001).
Defendant thereafter filed a petition for a writ of habeas
corpus in the United States District Court for the District of New
Jersey pursuant to 28 U.S.C. § 2254, asserting numerous
constitutional and other violations with respect to his conviction
and sentence. The District Court denied the habeas petition,
Taylor v. Hendricks, No. 01-4283 (D.N.J. July 3, 2002), and an
appeal of that denial was dismissed for lack of appellate
jurisdiction. Taylor v. Hendricks, No. 02-3326 (3d Cir. Apr. 22,
2003).
According to defendant, in September 2013, he filed a pro se
motion challenging the constitutionality of his life sentence.2
Defendant subsequently retained counsel, who submitted a brief in
support of defendant's contention that the sentencing provision
1
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
2
Defendant has failed to include this motion in his appendix,
contrary to Rule 2:6-1(a)(1)(I), which requires the appendix to
contain those parts of the record that are "essential to the proper
consideration of the issues."
3 A-1602-15T4
of the murder statute, N.J.S.A. 2C:11-3b(1), is unconstitutional
because it permits widely disparate sentences that can range from
thirty years without parole to life imprisonment with thirty years
of parole ineligibility. Defendant sought to reduce his life
sentence to a term of thirty years without parole. Judge Richard
T. Sules denied the motion on May 21, 2015, on the basis that it
was time-barred and lacked merit. This appeal followed.
Defendant argues in a single point:
THE LAW DIVISION ERRED ON THE FACTS AND LAW
AS THEY WERE PRESENTED TO DEMONSTRATE AN
ILLEGAL AND UNCONSTITUTIONAL SENTENCE, THAT
ALLOWS FOR UNEQUAL TREATMENT AMONGST SIMILARLY
SITUATED DEFENDANTS IN VIOLATION OF THE STATE
AND FEDERAL CONSTITUTIONS.
We have considered defendant's argument in light of the
record, the extensive procedural history, including prior
challenges to his sentence, and Judge Sules's written decision,
and conclude that it is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We add only
the following limited comments.
In his written opinion, Judge Sules noted that "[d]efendant
[] waited almost [nineteen] years after entry of his judgment of
conviction to file the motion" seeking a reduction in his sentence.
Rule 3:21-10(a) requires that a motion for reduction or change in
sentence be filed "not later than [sixty] days after the date of
4 A-1602-15T4
the judgment of conviction." While noting the exceptions contained
in Rule 3:21-10(b), which are not subject to the sixty-day time
limitation, the judge found that defendant's application did not
fall within any of the designated exceptions. Thus, the judge
properly found the motion was time-barred.
Turning to the merits, Judge Sules rejected defendant's
contention that N.J.S.A. 2C:11-3b(1) allows arbitrary and
capricious sentencing of similarly situated offenders and fails
to provide any guidelines to determine where a convicted
defendant's sentence should fall within the thirty-year to life
range. The judge noted that, in all such cases, the sentencing
court must assess the aggravating and mitigating factors set forth
in N.J.S.A. 2C:44-1(a) and (b) in fashioning an appropriate
sentence within the statutory range. Moreover, defendant had the
opportunity to challenge his sentence on direct appeal and in his
PCR and habeas petitions. As we have noted, the numerous courts
that have reviewed defendant's sentence have found it proper,
legal, and not excessive.
Affirmed.
5 A-1602-15T4