State of New Jersey v. Jason Molina ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1453-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON MOLINA,
Defendant-Appellant.
Argued January 22, 2024 – Decided January 30, 2024
Before Judges Sabatino, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No.
16-01-0038.
Joshua David Altman argued the cause for appellant
(Benedict Altman & Nettl, LLC, attorneys; Steven D.
Altman, Joshua David Altman, Philip Nettl, on the
brief).
David Michael Liston, Assistant Prosecutor, argued the
cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; David Michael Liston, of
counsel and on the brief).
PER CURIAM
This appeal solely concerns the sentencing of defendant Jason Molina
who, at the age of sixteen, stabbed to death a twenty-three-year-old woman in a
New Brunswick apartment in May 2015.1 Following his arrest, defendant was
waived as a minor to the Criminal Part and charged with first-degree murder and
other offenses.
After being held in a juvenile correctional facility for over six years,2
defendant entered into a negotiated plea agreement in June 2021. Pursuant to
that agreement, defendant pled guilty to a reduced charge of first-degree
aggravated manslaughter. The agreement specified the State would recommend
a custodial sentence not to exceed twelve years, with the defense being free to
advocate to the court for a lower sentence.
In December 2021, the trial court presided over an extensive sentencing
hearing. Defendant had been examined multiple times by psychologists for both
the defense and the State. These included two series of defense examinations
by Dr. Gianni Pirrelli, who issued his first report in January 2017, and a second
1
We need not recite in this opinion remanding the case the gruesome facts of
the homicide, which are familiar to the parties and the affected family members.
2
Counsel explained to us during oral argument that this unusually lengthy
period was consumed with numerous motions and hearings.
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report four years later in September 2021. The defense also presented a risk
assessment report by Dr. Sean Hiscox in November 2021. The State presented
a competing report by Dr. Louis Schlesinger issued in February 2018.
As attested by his experts and two members of the facility's staff who
submitted statements to the court, defendant substantially matured during the
six-year interval between his 2015 arrest and his 2021 sentencing. According
to Dr. Pirrelli's second report, he became "a completely different person than the
teenage[r] who engaged in such extreme violence." The doctor opined
defendant was "not at imminent or even elevated risk to engage in acts of
violence toward others . . . in the foreseeable future." Dr. Pirrelli asserted that
his "mental health problems and associated behavior can be managed in the
community at this point," subject to conditions such as continued therapy and
educational and vocational pursuits. Dr. Hiscox similarly opined that, as of
November 2021, defendant posed "a low risk for engaging in future violent
behavior." In that same vein, defendant presented supportive letters from a
social worker and a teacher at the juvenile facility attesting to his great
improvement. The social worker testified on his behalf at his sentencing.
On the other hand, the State's expert, Dr. Schlesinger, was more guarded.
In his 2018 report, Dr. Schlesinger noted defendant's primary problem of
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"explosive violence," and opined that he was clearly aware of the wrongfulness
of his conduct when he killed the victim.
Consistent with the plea agreement, the court sentenced defendant to a
twelve-year custodial term, subject to an eighty-five percent parole ineligibility
period mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. In its oral
opinion and accompanying judgment of conviction, the court found several
aggravating factors pertained and only one mitigating factor. Specifically, the
court found present aggravating factors: one, N.J.S.A. 2C:44-1(a)(1) (a crime
committed in an "especially heinous, cruel, or depraved manner"); two, N.J.S.A.
2C:44-1(a)(2) (the "gravity and seriousness of the harm inflicted on the victim");
three, N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will reoffend); and nine,
N.J.S.A. 2C:44-1(a)(9) (the need to deter the defendant and others from
violating the law). The court found those aggravating factors "substantially
outweigh[ed]" mitigating factor fourteen, N.J.S.A. 2C:44-1(b)(14) (an offense
by a person under the age of twenty-six). The court rejected other mitigating
factors proposed by defendant.
The court acknowledged defendant's progress within the juvenile facility.
Nonetheless, the court expressed concerns about whether defendant would
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manage his violent tendencies in the "real world." Among other things, the court
found persuasive the expert opinions of Dr. Schlesinger.
This appeal ensued. Fundamentally, defendant argues the sentencing
court failed to give fair consideration to his six years of progress within the
juvenile facility and the opinions of the two defense psychologists. He further
contends the court placed too much weight on the downgrade in the plea
agreement and used an incorrect legal standard in denying his request to be
treated as a second-degree offender.
In his brief on appeal, defendant presented these points:
POINT I
THE SENTENCE MUST BE VACATED AND
REMANDED FOR A NEW SENTENCING
HEARING, BECAUSE THE SENTENCING COURT
FAILED TO FOLLOW THE APPLICABLE
GUIDELINES, INAPPROPRIATELY PRECLUDED
MITIGATING FACTORS, AND GAVE UNDUE
WEIGHT TO AGGRAVATING FACTORS.
A. THE COURT GAVE UNDUE
WEIGHT TO THE STATE'S
SENTENCING RECOMMENDATION.
B. THE SENTENCING COURT
UNREASONABLY PRECLUDED
ITSELF FROM FINDING MITIGATING
FACTORS SUPPORTED BY THE
RECORD.
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C. THE SENTENCING COURT GAVE
GREATER WEIGHT TO A STALE
PSYCHOLOGICAL REPORT BY THE
STATE'S PSYCHOLOGIST, THAN A
CURRENT REPORT BY THE EXPERTS
PRESENTED BY THE DEFENSE.
D. THE SENTENCING COURT USED
THE INCORRECT LEGAL STANDARD
TO EVALUATE DEFENDANT'S
APPLICATION FOR A SENTENCE IN
THE SECOND DEGREE RANGE.
Our consideration of these arguments is guided by well settled principles.
"Appellate review of a criminal sentence is limited; a reviewing court decides
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)). We
"must not 'substitute [our] judgment for that of the sentencing court.'" State v.
Liepe, 239 N.J. 359, 370 (2019) (quoting State v. Fuentes, 217 N.J. 57, 70
(2014)). Instead, we will affirm a trial court's sentence 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.'" Bolvito, 217 N.J. at 228 (alteration in original)
(quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
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Here, defendant has presented several facets of the sentencing court's
reasoning that he contends require a remand for resentencing. He identifies a
number of discrete alleged misstatements and omissions that he contends
produced an unfair sentence.
In considering these arguments, we are mindful of the Supreme Court's
admonition in Fuentes that a sentencing court's "clear and detailed statement of
reasons is [] a crucial component of the process conducted by the sentencing
court, and a prerequisite to effective appellate review." 217 N.J. at 74.
We have closely examined the sentencing court's reasoning in its oral
opinion and conclude that the court's reasons, for the most part, were well
supported by the record and the applicable law. Among other things, we reject
defendant's contentions that the trial court afforded undue weight to the State's
negotiated sentencing recommendation within the plea agreement. We further
reject defendant's claim that the court did not sufficiently recognize his good
behavior while in confinement.
However, other aspects of the court's reasoning were legally incorrect or
incomplete. Given the cumulative effect of those errors and omissions, we are
constrained to remand this matter for resentencing. We briefly discuss those
areas of concern.
A-1453-21
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First and foremost, the trial court declared that it would be impermissible
"double counting" to afford defendant the benefit of mitigating factor fourteen
based on his age under twenty-six and, simultaneously, to apply to his benefit
mitigating factors three, N.J.S.A. 2C:44-1(b)(3) (acting "under a strong
provocation"); four, N.J.S.A. 2C:44-1(b)(4) ("substantial grounds tending to
excuse or justify the defendant's conduct"); and five, N.J.S.A. 2C:44-1(b)(5) (the
victim "induced or facilitated" the offense). The court declined to apply any of
these other mitigating factors as a matter of law, reasoning that doing so
"because of his age" would be improper "double counting."
Defendant argues that the double-counting prohibition can only apply to
aggravating factors, not mitigating factors. He asserts the prohibition solely
concerns aggravating factors in situations where they are already incorporated
as an element of the offense. See, e.g., State v. Lawless, 214 N.J. 594, 608
(2013) (aggravating factor two, N.J.S.A. 2C:44-1(a)(2) ("gravity and
seriousness of harm inflicted on victim") cannot be based on harm suffered by
people physically injured by a defendant's conduct, but who are not victims of
the convicted offense, because such harm is already counted in aggravating
factor one).
A-1453-21
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A leading treatise on New Jersey criminal law asserts a contrary position,
noting in Comment 5 to N.J.S.A. 2C:44-1 that "[a]s with aggravating factors,
mitigating factors are not to be 'double counted'; that is, an element of the
offense should not be considered for sentencing as a separate factor." Cannel,
New Jersey Criminal Code Annotated, cmt. 5 on N.J.S.A. 2C:44-1 (2023). The
Comment cites as an example State v. Teat, 233 N.J. Super. 368, 372-74 (App.
Div. 1989), in which we held that where a jury found a defendant guilty of
passion/provocation manslaughter instead of murder, provocation should not be
considered again as a mitigating factor at that defendant's sentencing.
In the present case, however, the age of defendant is not an element of the
State's case that would have had to be proven at trial. Nor would it be an element
of any defense that defendant might present, such as insanity or self-defense.
Nor is the age of the offender subsumed as a grading factor within the definition
of the offense.
Instead of being an element of the crime or an affirmative defense,
defendant's youth is a specified mitigating factor for sentencing, as the result of
a recent amendment to the statute enacted by the Legislature. See State v. Lane,
A-1453-21
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251 N.J. 84, 87 (2022).3 Defendant's age of sixteen at the time of the offense
satisfies mitigating factor fourteen directly, but it also might potentially support
other mitigating factors indirectly as well. The trial court therefore misspoke in
stating it would be improper double-counting for it to take into account
defendant's youth when evaluating the applicability of mitigating factors three,
four, and five.
Indeed, many items on the statutory list of aggravating and mitigating
factors within N.J.S.A. 2C:44-1(a) and (b) conceptually overlap with one
another. As just one example, facts and circumstances identified at sentencing
could bear upon both the risk of reoffense (aggravating factor three) as well as
the need for deterrence (aggravating factor nine). The factors are not airtight
categories.
Despite its misstatement about double-counting, the sentencing court went
on to explain why mitigating factors three and five are not supported here. We
agree with the court's analysis in rejecting those two factors. Unfortunately,
however, the court did not express its reasons for rejecting mitigating factor
3
Although defendant's offense occurred in 2015 before the amendment was
enacted in 2020, it is undisputed that mitigating factor fourteen was in effect at
the time of his December 2021 sentencing. See Lane, 251 N.J. at 87-88.
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four. We decline to speculate on why the court rejected that particular factor,
other than the mistaken double-counting premise.
A second matter of concern is the following underscored statement within
the court's oral decision:
And as I've already indicated, mitigating factor
[fourteen] does apply, and actually would still apply if
the defendant committed a crime today lending further
support to my finding of aggravating factor three.
[(Emphasis added).]
Case law is clear that sentencing courts are disallowed from treating an
offender's youth as an aggravating factor. See, e.g., State v. Rivera, 249 N.J.
285, 303 (2021) (in which the Court repudiated a sentencing court's use of a
defendant's young age, and lack of time to commit more offenses, as support for
aggravating factor three). The Court held in Rivera that "youth may be
considered only as a mitigating factor in sentencing and cannot support an
aggravating factor." Ibid. Consequently, the trial court's above-quoted
comment about defendant's young age "lending further support" to aggravating
factor three was legal error.
Third, the trial court also seems to have misspoken when it stated why it
rejected defendant's request to be sentenced one degree lower to the second-
degree range. The court invoked the "serious injustice" standard of N.J.S.A.
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2C:44-1(d), which addresses the presumption of incarceration for first- and
second-degree offenses, rather than the less stringent "interest of justice"
standard of N.J.S.A. 2C:44-1(f)(2), which governs here. The error may have
been inadvertent or mistranscribed. But if the court indeed applied the wrong
legal standard for a downgrade, defendant may have been prejudiced.
Fourth and finally, defendant highlights that the trial court's sentencing
analysis fails to discuss in depth the predictive assessments of Drs. Pirrelli and
Hiscox, both of whom opined in their 2021 reports that defendant presents a
"low risk" of reoffense if he were released and were provided with counseling
and other forms of support. We recognize the court rightly expressed concern
that releasing defendant into society could pose more behavioral risks than
within the controlled environment of a juvenile correctional facility. Even so,
the trial court's analysis did not address, at least explicitly, the substance of the
opinion of Dr. Hiscox, and it said very little about Dr. Pirrelli's second report.
Meanwhile, the court relied substantially on Dr. Schlesinger's report prepared
for the State, which was issued in 2018, three years earlier than those defense
reports and which contains no risk assessment.
Having duly considered these matters in combination, and mindful of the
"crucial" role of a sentencing court's statement of reasons, see Fuentes, 217 N.J.
A-1453-21
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at 74, we conclude the most prudent course of action is to remand this matter for
resentencing. At that time, the trial court will have the opportunity to address
these various gaps and legal misstatements within its analysis. The parties may
also update the trial court on defendant's activities and behavior within the
intervening years since the December 2021 sentencing. State v. Randolph, 210
N.J. 330, 354-55 (2012). We do not intimate any views on how the resentencing
should turn out.
Remanded. We do not retain jurisdiction.
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