State v. Cynthia Rivera (084419) (Middlesex County and Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Cynthia Rivera (A-7-20) (084419)
Argued October 1, 2021 -- Decided December 29, 2021
SOLOMON, J., writing for a unanimous Court.
In this appeal, the Court considers whether a defendant’s youth can serve as an
aggravating factor in sentencing.
Defendant Cynthia Rivera admitted to planning and participating in the armed
robbery of Justin Garcia, resulting in serious injuries to Garcia and the murder of his
friend, Andrew Torres. At the time of the offenses, defendant was eighteen years old and
in a relationship with Martin Martinez. Defendant met and went to a motel with a friend,
Garcia, and Torres. Once there, defendant texted Martinez the name of the motel so he
could “come down . . . to commit the robbery.” Later, Martinez and another man arrived,
carrying handguns. Torres was shot and killed upon opening the door; Garcia was also
shot and wounded. Jewelry and a phone were taken from Garcia. Defendant’s friend
identified defendant, who turned herself in a few weeks later.
Defendant pled guilty to aggravated manslaughter and assault and to conspiracy to
commit robbery. At the time of sentencing, defendant was nineteen years old with no
prior criminal history, no juvenile record, and no arrests. Defendant expressed deep
regret for her actions and told the court she had severed her relationship with Martinez,
who defendant stated was physically, mentally, and emotionally abusive to her.
The sentencing court applied two aggravating factors -- the risk the defendant will
commit another offense, N.J.S.A. 2C:44-1(a)(3), and the need for deterrence, id. at (a)(9)
-- and two mitigating factors -- the absence of a prior record, id. at (b)(7), and willingness
to cooperate with law enforcement, id. at (b)(12). The court did not address mitigating
factor nine -- unlikeliness to reoffend -- which the State had conceded. The court
weighed aggravating factor three more heavily than the other factors, relying in large part
on defendant’s youth and finding that defendant “hasn’t had enough time to begin . . . a
history of criminal activity, which I most certainly think would have been the case.”
Concluding that the aggravating factors substantially outweighed the mitigating
factors, the court sentenced defendant accordingly. The Appellate Division affirmed, and
the Court granted certification. 244 N.J. 183 (2020).
1
HELD: A defendant’s youth may be considered only as a mitigating factor in sentencing
and cannot support an aggravating factor. On resentencing, the sentencing court should
consider mitigating factor fourteen -- that “the 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). The weight
to be given to that factor is within the sentencing court’s discretion.
1. Crimes are classified as first, second, third, or fourth degree in descending order of
seriousness, and each degree carries its own prescribed sentencing range. In determining
the appropriate sentence to impose within the provided range, the sentencing court must
first identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-
1(a) and (b) and explain the evidential basis for each. The court must then balance those
factors by qualitatively assessing each factor and assigning it appropriate weight given
the facts of the case. Findings of any factors must be supported by competent, credible
evidence in the record to ensure that speculation and suspicion do not infect the
sentencing process. Mitigating factors that are suggested in the record or brought to the
court’s attention should not be ignored. When the sentencing 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 offense at issue,
the reviewing court may remand for resentencing. Finally, the sentencing court is
required to “view a defendant as [that defendant] stands before the court on the day of
sentencing.” State v. Jaffe, 220 N.J. 114, 124 (2014). In Jaffe, the Court held that
evidence of post-offense conduct -- cooperative, rehabilitative, or otherwise -- must be
fully considered in assessing and weighing the statutory factors. Ibid. (pp. 13-16)
2. This appeal turns on the sentencing court’s consideration of defendant’s youth in
according great weight to aggravating factor three -- the risk of reoffense -- while giving
minimal weight to mitigating factor seven -- the absence of a prior record. In deciding
whether a defendant is likely to offend in the future, sentencing courts frequently look to
the defendant’s criminal history. The absence of a criminal record will not preclude
application of aggravating factor three so long as it is supported by other credible
evidence in the record; in exceptional circumstances, courts may find it necessary to
apply seemingly contradictory aggravating and mitigating factors. When doing so, the
sentencing court must explain how it reconciles those two findings by providing greater
detail as to the weight assigned to each aggravating and mitigating factor. (pp. 17-18)
3. The Court reviews cases that have noted the importance of considering youth in
making sentencing decisions. In response to those court decisions, the Legislature added
youth as a statutory mitigating factor. See N.J.S.A 2C:44-1(b)(14). (pp. 18-19)
4. To support a finding of aggravating factor three, the record must contain evidence
demonstrating a likelihood of re-offense -- be it expert testimony, or the defendant’s
criminal history, lack of remorse, premeditation, or other competent evidence. But in
making the finding here, the sentencing court engaged in impermissible speculation that
2
defendant would have engaged in other criminal conduct but did not have the opportunity
to do so because of her youth. The court reached its conclusion even though defendant
had never been arrested or adjudicated delinquent as a juvenile and the State conceded
mitigating factor nine -- defendant is unlikely to reoffend. And, as in ---
Jaffe, defendant
had taken meaningful post-offense steps towards rehabilitation. The presumption that a
defendant’s youth may have prevented the defendant from having a criminal record
cannot support a finding of aggravating factor three, and the Court therefore vacates
defendant’s sentence. The resentencing court should give due consideration to all
credible evidence in the record and all relevant sentencing factors on the day defendant
stands before the court. The court is free to apply mitigating factor fourteen. (pp. 19-22)
REVERSED and REMANDED for resentencing.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’s opinion.
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SUPREME COURT OF NEW JERSEY
A-7 September Term 2020
084419
State of New Jersey,
Plaintiff-Respondent,
v.
Cynthia Rivera,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division.
Argued Decided
October 1, 2021 December 29, 2021
Morgan A. Birck, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Morgan A. Birck, of counsel and on
the briefs).
Patrick F. Galdieri, II, Assistant Prosecutor, argued the
cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; Patrick F. Galdieri, II, of
counsel and on the briefs, and Joie D. Piderit, Acting
Assistant Prosecutor, on the briefs).
William P. Cooper-Daub, Deputy Attorney General,
argued the cause for amicus curiae Attorney General of
New Jersey (Andrew J. Bruck, Acting Attorney General,
attorney; William P. Cooper-Daub, of counsel and on the
brief).
1
JUSTICE SOLOMON delivered the opinion of the Court.
In this appeal, the Court considers whether a defendant’s youth can serve
as an aggravating factor in sentencing. In this case, defendant Cynthia Rivera,
nineteen, admitted to planning and participating in the armed robbery of Justin
Garcia, resulting in serious injuries to Garcia and the murder of Garcia’s
friend, Andrew Torres.
In sentencing defendant pursuant to her plea agreement with the State,
the sentencing court applied two aggravating factors -- the risk that the
defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), and the need
for deterrence, id. at (a)(9) -- and two mitigating factors -- the absence of a
prior record, id. at (b)(7), and willingness to cooperate with law enforcement,
id. at (b)(12). The court weighed aggravating factor three, the risk of
reoffense, more heavily than the other factors, relying in large part on
defendant’s youth. Thus, the court concluded that the aggravating factors
substantially outweighed the mitigating factors and sentenced defendant in
accordance with that finding. The Appellate Division affirmed.
We now reverse, vacate defendant’s sentence, and remand the matter for
resentencing. Consistent with both this Court’s precedent and the intent of the
Legislature in recently adopting youth as a mitigating statutory factor, N.J.S.A.
2
2C:44-1(b)(14); L. 2020, c. 110 (effective immediately), we hold that a
defendant’s youth may be considered only as a mitigating factor in sentencing.
Additionally, we hold that on resentencing, the sentencing court should
consider mitigating factor fourteen -- that “the defendant was under [twenty
six] years of age at the time of the commission of the offense.” Of course, the
weight to be given to that factor is within the sentencing court’s discretion.
I.
We derive the following recitation of the facts from the record before the
sentencing court. At the time of the offenses that gave rise to the sentencing
question before us, defendant was eighteen years old and in a relationship with
twenty-year-old Martin Martinez. It is not clear from the record whether or
how defendant and Martinez knew Garcia, but it appears that they saw pictures
of money and jewelry Garcia posted on Instagram and hatched a plan to rob
him. Defendant contacted Garcia and then arranged to meet her friend Chelsey
Mendoza, Garcia, and his friend Torres in the Bronx. Defendant informed
Mendoza that, although the four would agree to go to the Loop Inn Motel in
Woodbridge, New Jersey, the real plan was to rob Garcia at a bodega in the
Bronx before reaching the motel.
At the bodega, defendant and Garcia remained in the car while Mendoza
and Torres went into the store. Two unknown men then approached the car
3
with guns, in what defendant believed to be an attempted robbery of Garcia,
but Garcia pulled a gun from his glove compartment and drove off. After that,
Garcia confronted defendant, accused her of setting him up, and took her
cellphone to prevent her from contacting anyone.
Defendant, Mendoza, Garcia, and Torres then proceeded to the motel in
Woodbridge. 1 On the way to the motel, defendant was able to recover her
phone and texted Martinez the message, “he pulled on [sic] gun on me I’m
scared NJ.” Once they arrived at the motel, defendant went into the bathroom
with her phone to text Martinez the name of the motel so he could “come down
to Woodbridge to commit the robbery.” For the remainder of the evening,
Garcia, Torres, Mendoza, and defendant lazed in the hot tub and used
recreational drugs in their motel room.
In the early morning hours, there was a knock on the motel room door.
Torres opened the door and was immediately shot and killed. Martinez and a
man named John Mingo then entered the room, both carrying handguns. One
of the men shot and seriously wounded Garcia. Defendant did not see who
shot either victim but did see Martinez “standing over [Garcia] with a gun in
his hand.” Jewelry and a phone were taken from Garcia. After fleeing the
1
The record does not reflect where or how the parties reconvened after the
attempted robbery.
4
scene, defendant, Martinez, Mingo, and Mendoza returned to the Bronx, where
they pawned the items taken during the robbery.
Detectives identified Martinez from the name provided on the motel
front desk’s sign-in form. The search for Martinez led detectives to Mendoza,
who provided a statement recounting the night of the robbery and identifying
defendant. Arrest warrants were issued for both Martinez and defendant, but
initial attempts to locate them were unsuccessful. A few weeks later,
defendant turned herself in to authorities.
II.
A Middlesex County indictment charged defendant with first-degree
murder, felony murder, and robbery, as well as attempted murder, conspiracy
to commit both murder and robbery, and weapons offenses, endangering, and
obstruction.
Eleven months later, pursuant to a plea agreement, defendant pled guilty
to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as amended
from felony murder; second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1), as amended from attempted murder; and second-degree conspiracy to
commit robbery, N.J.S.A. 2C:5-2(a)(1) and :15-1(a)(1). In exchange for
defendant’s guilty plea and her promise to cooperate with the State, the
remaining charges were dismissed, and the State recommended an aggregate
5
sentence of fifteen years’ incarceration subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2.
At her sentencing hearing, defendant admitted to planning the robbery
with Martinez, contacting Garcia, and arranging for them to meet. She further
admitted to traveling to the Loop Inn Motel, keeping Garcia occupied in
anticipation of the robbery, and communicating their location to Martinez.
Defendant also admitted that she knew Martinez was carrying a gun and
believed that he would use it in the robbery.
Defense counsel opened by noting that defendant was eighteen years old
at the time of the robbery and “t[ook] full responsibility for everything that
occurred.” He went on to explain that, while defendant did set up the victim
with the intent to rob him, “she had no idea that these horrible, horrific results
would occur.” Even so, he told the judge that defendant was “looking to be
punished. She’s looking to go to jail.” Counsel emphasized defendant’s
substantial cooperation with the State and her lack of a criminal history as
mitigating factors.
Defendant also spoke on her own behalf, expressing deep regret and
accepting “responsibility for [her] actions” by going to prison. Defendant also
made known to the court that she had made some substantial life changes since
her arrest. Notably, defendant severed her relationship with co-defendant
6
Martinez, who defendant stated was physically, mentally, and emotionally
abusive to her. Defendant then learned she was pregnant with Martinez’s child
and, while incarcerated, gave birth to a son, who is now in the custody of
defendant’s mother. A high school dropout, defendant stated that she planned
to enroll in a cosmetology certification program upon her transfer to state
prison.
In response to defendant’s sentencing arguments, the State submitted to
the court that the fifteen-year sentence detailed in the plea agreement was fair.
The prosecutor noted the need to deter others from crossing state lines to
commit “heinous offenses” in New Jersey as a basis for applying aggravating
factor nine -- the need to deter the defendant and others from violating the law.
The State then conceded mitigating factors seven and twelve, noting that
defendant had no criminal record and had cooperated substantially with the
State’s investigation. The State further conceded mitigating factor nine,
N.J.S.A. 2C:44-1(b)(9) (the defendant’s character and attitude “indicate that
the defendant is unlikely to commit another offense”), remarking that “every
defendant pretty much gets the benefits of mitigating factor nine when they
show remorse, so she gets that.”
At the time of sentencing, defendant was nineteen years old with no
prior criminal history, no juvenile record, and no arrests. Her pre-sentence
7
investigation revealed prolonged exposure to alcohol and prescription drugs, as
well as a history of treatment at several mental health facilities. Nevertheless,
the sentencing court found “there was a risk that [defendant would] commit
another offense.”
The court noted that it gave “great weight to aggravating factor three,”
given that this was “a planned event, calculated, thought out and carried out,
even when . . . there was a bump in the road” at the bodega. The court further
explained,
I would find that there is a risk that this defendant will
commit another offense, because I attach great weight -
- as I indicated with Mr. Martinez, reading the
discovery and reading what’s been presented and per
the statements provided by each, the way this case lines
up is that this never would have happened if Ms. Rivera
and Mr. Martinez hadn’t put it together, they hadn’t
hatched this scheme. And to ultimately take someone
and lure them into this level of victimization is of great
concern to the Court and to the [S]tate as well.
The court also gave “great weight” to aggravating factor nine because of the
nature and circumstances of the offense, stating that the victims were “lured to
their demise by [defendant].” The court expressed concern with “the level of
depravity associated with [defendant]’s decision making” given that she had
one target, Garcia, but had “no problem” including a second victim, Torres,
“who wasn’t even the focus of it.”
8
The court did not address mitigating factor nine -- defendant’s character
and attitude make her unlikely to reoffend -- which the State had conceded.
The court discussed and applied mitigating factor twelve for defendant’s
“willingness to cooperate with law enforcement authorities in this particular
case.” Finally, the court addressed mitigating factor seven, lack of prior
criminal conduct. The court determined that the factor applied but found that
it should be afforded only minimal weight in light of defendant’s age:
Per the state, I would credit her [mitigating factor
seven], but give it minimal weight, the fact that she has
no history of prior delinquency or criminal activity and
led a law-abiding life for a substantial period of time
before the commission of the present offense. She is
[nineteen]. She’s at the beginning of her adulthood.
She has no prior juvenile history, so to speak, but I give
it very little weight, because I find that if she had not
been captured in this particular instance, her mind
frame and the way [of] her thinking and her relationship
with Mr. Martinez, could very well have resulted in
additional crimes being committed.
Though I am most certainly not sentencing her for
anything in the future that I think she could have
committed, I am just finding that, you know, if any -- if
nothing else, she hasn’t had enough time to begin a
crime -- begin a history of criminal activity, which I
most certainly think would have been the case and that
being the reason why I gave great weight to the fact that
the risk she’ll commit another offense, aggravating
factor three.
Finding that the aggravating factors substantially outweighed the
mitigating factors, the court imposed the recommended sentence: fifteen
9
years’ incarceration for aggravated manslaughter; ten years for aggravated
assault; and ten years for conspiracy to commit murder, all subject to NERA,
and to run concurrently, for an aggregate sentence of fifteen years’
imprisonment with an eighty-five percent period of parole ineligibility.
Defendant appealed her sentence, arguing that the trial court failed to
provide an adequate explanation for applying both aggravating factor three and
mitigating factor seven, which stand in counterpoise. She contended that the
sentencing judge should have given more weight to mitigating factor seven and
less weight to aggravating factor three. The State countered that the court
provided an adequate explanation and its findings were well supported by the
record.
The Appellate Division affirmed defendant’s sentence by summary
order.
We granted defendant’s petition for certification. 244 N.J. 183 (2020).
We also granted the Attorney General’s motion for leave to appear as amicus
curiae.
III.
Defendant contends that her sentence is excessive in light of several
errors made by the sentencing court. First, defendant challenges the great
weight that the sentencing court accorded to aggravating factor three -- her
10
likelihood to reoffend. Although defendant concedes that she helped plan the
robbery, she maintains that she did not intend for anyone to be shot, and
therefore her alleged planning was an improper basis for applying aggravating
factor three to her manslaughter conviction. She further argues that the
sentencing court erred by using her youth against her, because there is no
evidence that she will go on to develop a record as the sentencing court
suggested. Defendant also asserts that youth may be considered only as a
mitigating factor at sentencing, and never as an aggravating factor. She
emphasizes that this view is supported by prior decisions of both this Court
and the United States Supreme Court, the Legislature’s addition of youth as a
statutory mitigating factor by enacting N.J.S.A. 2C:44-1(b)(14), and the widely
accepted science regarding the age-crime curve and brain development.
Defendant also argues that the sentencing court failed to give adequate
weight to mitigating factor seven, lack of criminal history, noting that the State
conceded this mitigating factor. She alleges that the court sentenced her based
on a hypothetical future record, rather than as she stood before the court on the
day of sentencing, a first-time offender entitled to the full weight of mitigating
factor seven. Finally, defendant submits that the sentencing court erred by
failing to consider mitigating factor nine, that she was unlikely to reoffend, a
factor also conceded by the State. Defendant notes that she had no prior
11
record, had cooperated with law enforcement, and was remorseful. She further
stresses that she was a new mother and no longer in a relationship with
Martinez, who was abusive and influenced her participation in the crime.
The State counters that the sentencing court’s findings regarding the
applicable aggravating and mitigating factors are supported by competent,
credible evidence in the record. It contends that the judge appropriately
applied and accorded great weight to aggravating factor three based on the
planning involved in the crime and defendant’s dedication to carrying it out.
The State further argues that mitigating factor nine did not apply for the same
reasons provided by the judge in finding aggravating factor three. Although
the State conceded the applicability of mitigating factor nine at sentencing, it
notes that the sentencing court had an independent duty to find each factor
only if supported by the record. The State also contends that the judge
appropriately applied only minimal weight to mitigating factor seven, lack of
criminal history, as defendant had not “led a law-abiding life for a substantial
period of time.” The State maintains that any reference to defendant’s age was
merely a byproduct of the required explanation of the factor and that her youth
was not improperly used against her. Finally, the State argues that the court
was not required to treat defendant’s youth as a mitigating factor.
12
Amicus curaie the Attorney General largely reiterates and supports the
State’s arguments. The Attorney General further contends that the sentencing
court never linked defendant’s age to a predicted likelihood of re-offense and
merely relied on it to reduce the weight of mitigating factor seven. The
Attorney General ultimately argues that overturning defendant’s sentence
would disrupt the critical discretion afforded to sentencing courts and “upend”
current sentencing law.
IV.
A.
We begin our discussion with the standard of review applied to trial
court sentencing decisions. On review, appellate courts are deferential to
sentencing determinations and “must not substitute [their] judgment for that of
the sentencing court.” State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence
must therefore be affirmed unless (1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors found were not “based upon
competent credible evidence in the record;” or (3) “the application of the
guidelines to the facts of [the] case makes the sentence clearly unreasonable so
as to shock the judicial conscience.” State v. Roth, 95 N.J. 334, 364-65
(1984). Although “[a] sentence imposed pursuant to a plea agreement is
presumed to be reasonable,” such a sentence may still be vacated if it does not
13
adhere to the sentencing provisions of our Code of Criminal Justice. Fuentes,
217 N.J. at 70-71.
Crimes are classified as first, second, third, or fourth degree in
descending order of seriousness, and each degree carries its own prescribed
sentencing range. N.J.S.A. 2C:43-6(a). In determining the appropriate
sentence to impose within the provided range, the sentencing court must first
identify any relevant aggravating and mitigating factors set forth in N.J.S.A.
2C:44-1(a) and (b) and explain the evidential basis for each. State v. Case,
220 N.J. 49, 64 (2014). The court must then balance those relevant
aggravating and mitigating factors by qualitatively assessing each factor and
assigning it appropriate weight given the facts of the case at hand. Fuentes,
217 N.J. at 72-73.
By requiring courts to identify and balance the mitigating and
aggravating factors, “the Code ‘established a consistent framework for guiding
sentencing discretion.’” State v. Kiriakakis, 235 N.J. 420, 437 (2018) (quoting
State v. Maguire, 84 N.J. 508, 530-31 (1980)). That framework serves “the
Code’s paramount goal of uniformity in sentencing, ensuring ‘that similarly
situated defendants receive comparable sentences.’” Ibid. (quoting Case, 220
N.J. at 63). To that end, sentencing courts must provide “a careful and
14
deliberate analysis before a sentence is imposed,” grounded in “a thorough
understanding of the defendant and the offense.” Fuentes, 217 N.J. at 71.
Findings of any factors “must be supported by competent, credible
evidence in the record” to ensure that “[s]peculation and suspicion [do] not
infect the sentencing process.” Case, 220 N.J. at 64. Mitigating factors that
are suggested in the record or brought to the court’s attention should not be
ignored. Ibid. Thus, when the sentencing 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
offense at issue,” the reviewing court “may remand for resentencing.”
Fuentes, 217 N.J. at 70.
Finally, the sentencing court is required to “view a defendant as [that
defendant] stands before the court on the day of sentencing.” State v. Jaffe,
220 N.J. 114, 124 (2014). In Jaffe, the defendant was sentenced nearly a year
after pleading guilty, during which time he had made significant life changes,
including getting sober, attending support groups, finding gainful employment,
and assuming the role of “de facto” father to his girlfriend’s child. Id. at 116-
17. However, the sentencing judge declined to consider evidence of those
post-offense rehabilitative efforts in assessing mitigating factors, despite
15
acknowledging that defendant’s pre-sentence report had grown “somewhat
stale.” Id. at 117-18.
We reversed and remanded for resentencing, holding that, because “a
defendant should be assessed as he stands before the court on the day of
sentencing, . . . the sentencing court must consider a defendant’s relevant post-
offense conduct in weighing aggravating and mitigating factors.” Id. at 116.
In so deciding, we remarked that
[t]he Code does not . . . require the trial court to ignore
a defendant’s individual characteristics and
circumstances. To the contrary, the Legislature listed
as “general purposes” of the sentencing statute the
furtherance of “the correction and rehabilitation of
offenders,” N.J.S.A. 2C:1-2(b)(2), and
“differentiat[ion] among offenders with a view to a just
individualization in their treatment,” N.J.S.A. 2C:1-
2(b)(6). Thus, “the Legislature codified to a certain
extent the traditional emphasis on individualized
sentencing,” resulting in a “tension between an
individualized sentencing approach on the one hand,
and the reforms aimed at sentencing uniformity on the
other.” [(State v. Randolph, 210 N.J. 330, 346 (2012).]
[Id. at 120-21.]
Accordingly, evidence of post-offense conduct -- cooperative,
rehabilitative, or otherwise -- must be fully considered in assessing and
weighing the statutory factors. Id. at 124. Remand may be necessary when “a
sentencing court failed to find mitigating factors that clearly were supported by
the record.” State v. Bieniek, 200 N.J. 601, 608 (2010).
16
B.
This appeal turns on the sentencing court’s consideration of defendant’s
youth in according great weight to aggravating factor three -- “[t]he risk that
the defendant will commit another offense,” N.J.S.A. 2C:44-1(a)(3) -- while
giving minimal weight to mitigating factor seven -- “[t]he defendant has no
history of prior delinquency or criminal activity or has led a law-abiding life
for a substantial period of time before the commission of the present offense,”
N.J.S.A. 2C:44-1(b)(7).
In deciding whether a defendant is likely to offend in the future,
sentencing courts frequently look to the defendant’s criminal history. See,
e.g., State v. Dalziel, 182 N.J. 494, 502 (2005) (finding “the extent of a
defendant’s prior record” supported the sentencing court’s conclusion
regarding his risk for re-offense). We acknowledge, however, that the absence
of a criminal record will not preclude application of aggravating factor three so
long as it is supported by other credible evidence in the record. Case, 220 N.J.
at 67. That assessment “involve[s] determinations that go beyond the simple
finding of a criminal history and include an evaluation and judgment about the
individual in light of his or her history.” State v. Thomas, 188 N.J. 137, 153
(2006). For example, a sentencing judge may reasonably find aggravating
17
factor three when presented with evidence of a defendant’s lack of remorse or
pride in the crime. State v. O’Donnell, 117 N.J. 210, 216 (1989).
In exceptional circumstances, courts may find it necessary to apply
seemingly contradictory aggravating and mitigating factors. Fuentes, 217 N.J.
at 80. When doing so, the sentencing court must “explain how it reconciles
those two findings” by providing greater detail as to the weight assigned to
each aggravating and mitigating factor and how those factors are balanced with
respect to the defendant. Id. at 81. We have previously requested this type of
detailed, reasoned explanation when presented with the conflict between
aggravating factor three, risk of re-offense, and mitigating factor seven, no
criminal history. Case, 220 N.J. at 67.
C.
Because defendant’s age and youth at sentencing is central to this
appeal, we note the importance of considering youth in making sentencing
decisions. In State v. Dunbar, 108 N.J. 80, 95 (1987), we recognized that a
“defendant’s relative youth ordinarily would inure to his benefit” in a
determination of whether to apply an extended sentence. More recently, we
extended application of the factors prescribed by the United States Supreme
Court in Miller v. Alabama, 567 U.S. 460 (2012), to situations where a
juvenile is facing a term of imprisonment that is the practical equivalent to life
18
without parole. State v. Zuber, 227 N.J. 422, 429-30 (2017). In doing so, we
built upon the U.S. Supreme Court’s “clear message” that “‘children are
different’ when it comes to sentencing, and ‘youth and its attendant
characteristics’ must be considered at the time a juvenile is sentenced to life
imprisonment without the possibility of parole.” Id. at 429 (quoting Miller,
567 U.S. at 465, 480). We further urged the Legislature to “consider enacting
a statute that would provide for later review of juvenile sentences that have
lengthy periods of parole ineligibility.” Id. at 430.
In response to those court decisions, the Legislature added youth as a
statutory mitigating factor. See N.J.S.A 2C:44-1(b)(14) (effective October 19,
2020) (“The defendant was under 26 years of age at the time of the
commission of the offense.”). Recommended by “the first annual report of the
New Jersey Criminal Sentencing and Disposition Commission,” the change is
meant to “broaden the court’s consideration of age as a mitigating factor for
determining sentences.” S. Judiciary Comm. Statement to A. 4373 1 (L. 2020,
c. 110).
V.
Turning to the facts presented in this appeal, by applying and affording
great weight to aggravating factor three, risk of re-offense, the sentencing
judge relied on the nature of the offense and defendant’s role in planning the
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crime and luring the victims into a trap -- facts that were established in the
record and sufficient to support a finding of aggravating factor three. Then, in
explaining his decision to afford minimal weight to the countervailing
mitigating factor seven, the judge stated that “[defendant] hasn’t had enough
time to begin . . . a history of criminal activity, which I most certainly think
would have been the case and that being the reason why I gave great weight to
the fact that the risk she’ll commit another offense, aggravating factor three.”
This reasoning is based on an impermissible presumption. As noted
above, findings of any aggravating or mitigating “factor must be supported by
competent, credible evidence in the record” to ensure that a defendant is not
sentenced based on “[s]peculation and suspicion.” Case, 220 N.J. at 64. To
support a finding of aggravating factor three, the record must contain evidence
demonstrating a likelihood of re-offense -- be it expert testimony, or the
defendant’s criminal history, lack of remorse, premeditation, or other
competent evidence. But in making the finding here, the sentencing court
engaged in impermissible speculation that defendant would have engaged in
other criminal conduct but did not have the opportunity to do so because of her
youth.
The court reached its conclusion even though defendant had never been
arrested or adjudicated delinquent as a juvenile and the State conceded
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mitigating factor nine -- defendant is unlikely to reoffend. In doing so, the
court failed to provide detail about the weight assigned to each aggravating
and mitigating factor and how those factors were balanced with regard to the
defendant. See Fuentes, 217 N.J. at 81.
The sentencing court was obliged to consider defendant as “she [stood]
before the court on the day of sentencing.” Jaffe, 220 N.J. at 124. As in Jaffe,
defendant had taken meaningful post-offense steps towards rehabilitation,
including ending her abusive relationship with co-defendant Martinez and
making educational plans. Defendant had no prior juvenile adjudications, no
arrests, and no criminal record. Defendant cooperated substantially with law
enforcement and expressed sincere remorse for her role in the crime. She
stood before the court as a first-time offender and should have been considered
as one.
In conclusion, the presumption that a defendant’s youth may have
prevented the defendant from having a criminal record cannot support a
finding of aggravating factor three. We therefore hold that youth may be
considered only as a mitigating factor in sentencing and cannot support an
aggravating factor. Accordingly, we must vacate defendant’s sentence and
remand for resentencing.
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On resentencing, the court should give due consideration to all credible
evidence in the record and all relevant sentencing factors on the day defendant
stands before the court. Randolph, 210 N.J. at 354. In other words, both
defendant and the State are entitled to bring all relevant factors to the court’s
attention, so long as they are supported by competent and credible evidence. 2
Also, the court on resentencing is free to consider defendant’s youth at the
time of the offense and apply mitigating factor fourteen, which was given
immediate effect in all sentencing proceedings on or after October 19, 2020.
See N.J.S.A 2C:44-1(b)(14); L. 2020, c. 110.
VI.
For the reasons expressed, we reverse the judgment of the Appellate
Division and remand for resentencing proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE
SOLOMON’s opinion.
2
Although the State conceded mitigating factor nine, the sentencing judge
failed to address this factor in his findings. A sentencing court is, of course,
not required to find any factor it concludes is unsupported by the record.
However, those factors which are brought to the court’s attention by counsel
should not be ignored. Case, 220 N.J. at 64.
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