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State v. Jones

Supreme Court of New Jersey

March 22, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DONNELL JONES, Defendant-Appellant.

          Argued January 2, 2018

          On certification to the Superior Court, Appellate Division.

          Cody T. Mason, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Cody T. Mason, of counsel and on the briefs).

          Joie D. Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Joie D. Piderit, of counsel and on the briefs).

         LaVECCHIA, J., writing for the Court.

         The Court considers defendant Donnell Jones's assertion that an infringement of his right to allocute and present mitigating information occurred when, after he addressed the sentencing court, he did not have an opportunity to respond to the State's final comments before the court imposed its sentence.

         On June 14, 2012, defendant and a female accomplice committed an armed robbery against a woman and her young daughter in a New Brunswick park. Defendant pleaded guilty to first-degree armed robbery and second-degree certain persons not to have weapons. In exchange, the State agreed to dismiss other charges. The State further agreed to recommend a sentence of fifteen years' imprisonment on the armed-robbery charge, subject to an eighty-five percent parole disqualifier and five years' parole supervision. That sentence would run concurrently with a seven-year sentence, subject to five years of parole ineligibility, on the certain-persons charge.

         Defendant and the State appeared for a sentencing proceeding on May 10, 2013. The critical events for this appeal took place during that proceeding. First, defense counsel acknowledged that he reviewed the pre-sentence report with defendant and requested a correction: defendant had said that the gun was not loaded at the time of the robbery. The court noted the correction. Defense counsel then concluded his remarks by asking the court to honor the plea agreement when determining defendant's sentence.

         Next, the court asked defendant whether he wanted to say anything. Defendant stated, "First of all, I am guilty . . . of my crime, a hundred percent guilty. Am I sorry for what I did? No. I'm not." The court asked defendant, "You're not sorry?" and a short exchange followed, during which defendant said that the victim "was not the target." Defendant stated, "Other than that, then that's it."

         The court then turned its attention to the State. The prosecutor said that the victim "is the intended target once [defendant] changes his mind in the park." At that point, defendant asked, "Can I say something?" The court replied, "No."

         The prosecutor resumed her summation; defendant did not speak again nor did he or his counsel ask to speak again. The court found three aggravating factors and no mitigating factors. Although defendant was extended-term eligible, the sentences imposed by the court adhered precisely to defendant's plea bargain.

         Defendant did not file a direct appeal. He filed a pro se petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. After navigating through the PCR trial and appellate processes, defendant's sentencing issues were addressed at an excessive sentencing oral argument (ESOA) on December 14, 2016.

         Defendant sought to have his case remanded for resentencing because the sentencing court (1) failed to provide a statement of reasons for aggravating factor nine, (2) wrongly considered defendant's arrest history, and (3) violated his right to allocute and to present mitigating information. In an order, the ESOA panel affirmed defendant's sentence, holding that the court did not abuse its discretion in sentencing defendant and that defendant was not denied his right to an allocution.

         Defendant petitioned the Court to review his claim that his right to allocute and present mitigating information was violated. The Court granted his petition. 229 N.J. 617 (2017).

         HELD: The sentencing court did not abuse its discretion during defendant's sentencing proceedings or infringe defendant's allocution right in any way.

          1. The right to allocution in New Jersey is fixed by court rule. When a trial court fails to afford a defendant the opportunity to make an allocution, in violation of Rule 3:21-4(b), the error is structural and the matter must be remanded for resentencing without regard to whether there has been a showing of prejudice. (pp. 13-15)

         2. Most of this state's law on allocution has come in the context of capital cases. In that setting, allocution is a narrowly-defined right, one that allows a capital defendant to make a brief unsworn statement in mitigation to the jury at the close of the presentation of evidence in the penalty phase. Although a defendant may not contradict other testimony or argue legal points in allocution, a defendant may make a statement in order to allow a jury to ascertain that he or she is an individual capable of feeling and expressing remorse and of demonstrating some measure of hope for the future. (pp. 15-16)

         3. There is not much case law in this state on the parameters of allocutions in non-capital settings. In State v. Blackmon, the Court established that, "other than defendants, and crime victims or their survivors, there is no absolute right to speak at a sentencing proceeding." 202 N.J. 283, 305 (2010). The Court committed decisions about who else may speak-other than the defendant-and with what restrictions to the discretion of the sentencing court but cautioned that the exercise of that discretion "must be accompanied by some expression of reasons sufficient to permit appellate review." Id. at 307. (pp. 16-17)

         4. Defendant's arguments on appeal are undermined by his lack of a record to substantiate his present contentions. He failed to advance his claim that he had something more to say that pertained to his allocution. A trial judge is not expected to be clairvoyant. When neither defendant nor his counsel made any request to be heard after the prosecutor concluded her remarks, the court reasonably proceeded with the sentencing. (pp. 17-18)

         5. Defendant relies on cases from other jurisdictions for the proposition that the right to an allocution includes "the opportunity to respond" to any "new substantive remarks" made by a prosecutor where a defendant has either already spoken or has initially declined to speak. The State represented in oral argument that all factual matters addressed by the prosecutor were known by the parties, either provided in discovery to defendant and his counsel or addressed in the pre-sentence report that was shared with the defense. As noted, defense counsel requested a minor alteration in that report, and the correction was approved. Appellate counsel for defendant, who was not trial counsel, was unable to rebut the State's representation. The Court accepts that nothing new was being raised, so defendant's theoretical claim about a need to "address new material" is not applicable here. There is no basis to find an abuse of discretion in the sentencing court's handling of this sentencing proceeding. (pp. 18-21)

         6. In the future, when it is necessary for the sentencing court to assess whether claimed new material advanced in closing by the State is truly "new substantive material" to which the defendant seeks to respond, the court should first consider whether the defendant knew about the fact. If a fact is covered in discovery or in the pre-sentence report, it should not be considered new. If information is truly new substantive material, the defendant generally should be allowed to respond. Other factors that the court may consider when deciding how to exercise its discretion to permit a defendant more time to speak are: (1) did the defendant speak already; (2) was the defendant interrupting and abusive; and (3) does the defendant have something to say that is responsive to the new substantive material. (pp. 21-22)

         7. In leaving such matters to the sound discretion of the sentencing court, the Court cautions that the exercise of that discretion should "be accompanied by some expression of reasons sufficient to permit appellate review." See Blackmon, 202 N.J. at 307. Sentencing proceedings should be fair in actuality and in appearance. A hallmark of fairness is for the court to explain its actions. See id. at 306. If a court determines to deny a defendant's request to speak further about some information that is raised in the State's sentencing remarks when the State speaks last, providing some reason or statement for the denial will promote the fairness of the proceeding. (pp. 22-23)

         The judgment of the Appellate Division is AFFIRMED.

          CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, AND TIMPONE join in JUSTICE LaVECCHIA's opinion.

          OPINION

          JUSTICE LAVECCHIA

         Defendant Donnell Jones asserts that an infringement of his right to allocute and present mitigating information occurred when, after he addressed the sentencing court, he did not have an opportunity to respond to the State's final comments before the court imposed its sentence. We granted certification to consider defendant's arguments about his sentencing, and we now conclude that they are unavailing.

         In our judicial system, the trial court controls the flow of proceedings in the courtroom. As a reviewing court, we apply the abuse of discretion standard when examining the trial court's exercise of that control. That review standard pertains in this appeal.

         We conclude, as did the Appellate Division, that the sentencing court did not abuse its discretion during defendant's sentencing proceedings. Defendant made an allocution, speaking to the court and continuing until he stated he was through. Then, during the State's final statement prior to sentencing, the court acted appropriately when it prevented defendant from interrupting the prosecutor's remarks. At the conclusion of the prosecutor's comments, defendant made no further request of the court. Nor did his attorney. We are unpersuaded that the court's conduct of these proceedings infringed defendant's allocution right in any way.

         To promote some best practices, we identify factors for a court to consider when deciding what to allow when hearing final statements from the parties prior to sentencing. In addition, this matter underscores the importance of a properly developed record when a defendant claims infringement, not denial, of the right of allocution.

         I.

         On June 14, 2012, defendant and a female accomplice committed an armed robbery against a woman and her young daughter in a New Brunswick park. On August 29, 2012, a Middlesex County grand jury issued an indictment against defendant. The indictment charged defendant with first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of a large-capacity ammunition magazine, N.J.S.A. 2C:39-3(j); fourth-degree prohibited weapons and devices, N.J.S.A. 2C:39-3(f); third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree terroristic threats, N.J.S.A. 2C:12-3(a). On the same date, a separate indictment charged defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

         Defendant pleaded guilty to the first-degree armed robbery and second-degree certain persons not to have weapons charges. In exchange, the State agreed to dismiss the other charges. The State further agreed to recommend a sentence of fifteen years' imprisonment on the armed-robbery charge, subject to an eighty-five percent parole disqualifier and five years' parole supervision. That sentence would run concurrently with a seven- year sentence, subject to five years of parole ineligibility, on the certain-persons charge.

         Defendant and the State appeared for a sentencing proceeding on May 10, 2013. The critical events for this appeal took place during that proceeding.

         First, defense counsel acknowledged that he reviewed the pre-sentence report with defendant and requested a correction: defendant had said that the gun was not loaded at the time of the robbery. The court noted the correction. Defense counsel then concluded his remarks by asking ...


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