Submitted February 28, 2018
appeal from Superior Court of New Jersey, Law Division,
Warren County, Accusation No. 15-05-0305.
E. Krakora, Public Defender, attorney for appellant (John
Douard, Assistant Deputy Public Defender, of counsel and on
S. Grewal, Attorney General, attorney for respondent (Jana
Robinson, Deputy Attorney General, of counsel and on the
Judges Alvarez, Currier, and Geiger.
GEIGER, J.S.C. (temporarily assigned).
A.T.C. appeals from a May 13, 2016 judgment of conviction and
order denying his motion for a modification of sentence.
After a review of the arguments in light of the record and
applicable principles of law, we affirm defendant's
convictions and remand for resentencing.
summarize the salient facts and procedural history from the
record. In October 2014, the Passaic County Internet Crime
Task Force conducted an investigation into the distribution
of child pornography and identified defendant as a person of
interest based on numerous child pornography files he had
made available for others to download. A search warrant was
subsequently executed at defendant's residence on March
9, 2015. When officers explained their presence and the
nature of their child pornography investigation, defendant
stated, "Might as well put the bracelets on me, yeah I
did it." Based on the files found on defendant's
computers and his admission that he had routinely viewed
child pornography during the preceding seven years, defendant
was arrested and charged with four counts of second-degree
distribution of child pornography, N.J.S.A.
2C:24-4(b)(5)(a)(i), and four counts of third-degree
possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b).
resided with his girlfriend and her minor child, M.L., for
seven years preceding his arrest. When interviewed by
investigators, defendant confessed to possessing pornographic
videos of M.L. on his computer. He admitted to videotaping
M.L. when she was in the bathtub, photographing and video
recording M.L.'s vaginal area, and transferring the
images to his computers. Defendant further revealed his
conduct with M.L. began when she was ten years old, and the
most recent incident occurred two months before his arrest,
when she was twelve years old.
interviewed M.L. the same day. She disclosed that defendant
began sexually abusing her when she was eight years old and
had touched her vagina on numerous occasions, with the last
incident occurring less than one month prior to the
interview. M.L. asked defendant to stop, but he did not.
Subsequent investigation revealed defendant took additional
pornographic videos of M.L. with his cellphone.
28, 2015, defendant waived his right to indictment and trial
by jury and pled guilty to an accusation that charged him
with first-degree aggravated sexual assault of a child under
thirteen, N.J.S.A. 2C:14-2(a)(1) (count one), and
second-degree endangering the welfare of a child by
distribution of child pornography, N.J.S.A. 2C:24-4(b)(5)(a)
(count two), in exchange for a recommended sentence of
concurrent twenty-year prison terms without the possibility
his plea hearing, defendant admitted digitally penetrating
the vagina of M.L. in or about August 2014, when she under
the age of thirteen. Defendant also admitted that during the
same time period he downloaded, viewed, and distributed child
pornography containing images of children engaging in
prohibited sexual acts through a "file sharing
was evaluated by Dr. Mark Frank at the Adult Diagnostic and
Treatment Center (ADTC) in Avenel, New Jersey for the purpose
of determining his eligibility for sentencing under the New
Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (requiring
diagnosis of repetitive and compulsive behavior, amenability
to sex offender treatment, and willingness to participate in
such treatment). In a July 24, 2015 report, Dr. Frank opined
defendant engaged in a "pattern of sexual attraction
towards juveniles" and his "criminal sexual
behavior was performed compulsively." Dr. Frank
concluded defendant was eligible for sentencing under the
purview of the Sex Offender Act given the "repetitive,
compulsive elements discerned, " the need for sex
offender treatment, and defendant's willingness to
participate in a program of therapy at the ADTC.
to sentencing, defendant moved to modify the twenty-year term
without parole provided for in the plea agreement. He sought
to remove this matter from sentencing under the Jessica
Lunsford Act (JLA), N.J.S.A. 2C:14-2, or, in the alternative,
for the court to "exercise its inherent supervisory
capacity" to craft a lesser sentence. Defendant argued
he should be sentenced within the ordinary first-degree range
to a prison term of ten to twenty years, subject to an 85%
parole ineligibility period under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, because the mandatory minimum
prison term and parole ineligibility requirements imposed by
the JLA did not apply to his case.
specifically, defendant contended an amendment enacted on
January 17, 2014, with an effective date of July 1, 2014, L.
2013, c. 214, § 3 (the July 2014 amendment), competed
with a second amendment, which was enacted and became
immediately effective on May 15, 2014, L. 2014, c. 7, §
1 (the May 2014 amendment), with regard to sentencing
defendants convicted of aggravated sexual assault of a victim
less than thirteen years old. Defendant claimed the
amendments created an ambiguity and argued the rule of lenity
earlier enacted July 2014 amendment made a minor definitional
modification to subsection (a)(7) of the statute, changing
the language from "[t]he victim is one whom the actor
knew or should have known was physically helpless, mentally
incapacitated, or had a mental disease or defect" to
"[t]he victim is one whom the actor knew or should have
known was physically helpless or incapacitated,
intellectually or mentally incapacitated, or had a mental
disease or defect." N.J.S.A. 2C:14-2(a)(7) (emphasis
2014 amendment, by enacting the JLA, imposed much longer
mandatory minimum prison terms without parole eligibility.
Prior to the May 2014 amendment, a person convicted of
aggravated sexual assault of a victim under thirteen years
old was subject to the ordinary first-degree sentencing range
of ten to twenty years in prison and to NERA. Defendant
claimed, because the earlier enacted July 2014 amendment
became effective after the May 2014 amendment, and because
the July 2014 amendment did not include the sentencing
provisions added by the May 2014 amendment, NERA, rather than
the JLA, should apply. Defendant argued the amendments
created an ambiguity and the rule of lenity should apply.
Defendant also claimed the May 2014 amendment violated the
separation of powers clause of the New Jersey Constitution.
13, 2016, the trial court issued an order and opinion denying
defendant's motions. The trial court rejected
defendant's argument that the sentencing provisions of
the May 2014 amendment should not apply due to the subsequent
effective date of the July 2014 amendment. The trial court
While it may be true that the JLA does not mention [the July
2014 amendment], the amendments address separate and distinct
provisions of the statute and can stand alone. Clearly, the
Legislature did not change the sentencing provisions by
enacting the [May 2014 amendment] for six weeks, which would
be pointless. The effective dates of the two amendments to
the same statute altering different provisions were surely
meant to stand on their own without any language to the
contrary. Since the plain meaning of the statute is clear,
the analysis stops short of requiring the use of extrinsic
evidence to decipher its interpretation. Moreover, a plain
reading of the statute does not lead to an absurd result, nor
is it at odds with the overall statutory scheme - it rather
imposes a harsher penalty on those individuals convicted of
specifically enumerated aggravated sexual assaults.
trial court analyzed the sentencing requirements imposed by
the Legislature, noting:
Subsection (d) of N.J.S.A. 2C:14-2 authorizes the Prosecutor,
in consideration of the interests of the victim,
notwithstanding the mandatory sentencing provision in the
statute, to negotiate a plea agreement of not less than
fifteen (15) years with fifteen years of parole
ineligibility; however, there is no indication that the
prosecutor is required to impose a fifteen year sentence;
rather, it is in the prosecutor's discretion to impose a
sentence under the mandatory minimum twenty-five years. In
this case, the prosecutor chose to impose a mid-range
sentence of twenty years, having considered the victims.
Furthermore, subsection (d) of N.J.S.A. 2C:14-2 (under [the
May 2014 amendment]) states, in pertinent part, "the
court may accept a negotiated plea agreement and upon such
conviction shall impose the term of imprisonment and period
of parole ineligibility as provided for in the plea
agreement, and may not impose a lesser term of imprisonment
or parole, or a lesser period of parole ineligibility than
that expressly provided in the plea agreement." Pursuant
to a plain reading of this statute, the [c]ourt may accept
the plea agreement, and it must only impose the sentence
afforded by the plea agreement; the [c]ourt may not, however,
override the Prosecutor's decision to offer a mid-range
sentence by sentencing Defendant to an even lesser term of
imprisonment. The JLA took effect on May 15, 2014; Defendant
was subsequently convicted of aggravated sexual assault in
violation of this statute on May 28, 2015.
trial court also rejected the argument that the JLA violated
the separation of powers clause, concluding adequate checks
and balances remain in place when sentencing a defendant
under the JLA.
same day, defendant appeared for sentencing. The trial court
found the offenses were committed in a "cruel and
depraved manner" and the victim "was really
incapable of exercising normal physical and mental power of
resistance, " noting that at the time of the offenses,
the victim was only twelve or thirteen years
The court applied aggravating factors one, N.J.S.A.
2C:44-1(a)(1) (nature and circumstances of the offense, and
the role of actor therein); two, N.J.S.A. 2C:44-1(a)(2)
(gravity and seriousness of harm inflicted on the victim);
three, N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will
commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent
of defendant's prior criminal record and seriousness of
offenses he is being convicted of); and nine, N.J.S.A.
2C:44-1(a)(9) (need for deterring the defendant and others
from violating the law). The judge found aggravating factors
one and two were not duplicative "given the
circumstances here." The court also found mitigating
factors six, N.J.S.A. 2C:44-1(b)(6) (defendant has
compensated or will compensate the victim for the injury the
victim sustained); and seven, N.J.S.A. 2C:44-1(b)(7)
(defendant has no history of prior delinquency or criminal
activity or has led a law-abiding life for a substantial
period of time before committing present offense). The trial
court gave "great weight" to aggravating factors
one, two and nine, slight weight to mitigating factor six,
and concluded the aggravating factors outweighed the
accordance with the plea agreement, defendant was sentenced
to concurrent twenty-year prison terms, without parole
eligibility, to be served in whole or in part at the ADTC;
parole supervision for life; mandatory parole supervision
under NERA. Defendant was also required to comply with the
registration requirements under Megan's Law, N.J.S.A.
2C:7-1 to -23, and prohibited from having contact with M.L.
pursuant to Nicole's Law, N.J.S.A. 2C:14-12 and N.J.S.A.
2C:44-8. This appeal followed.
originally submitted for review on an excessive sentencing
oral argument calendar, Rule 2:9-11, the appeal was
transferred to a plenary ...