STATE OF NEW JERSEY v. A.T.C.

Annotate this Case

(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4302-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. April 19, 2018

A.T.C., APPELLATE DIVISION

Defendant-Appellant.
_____________________________

Submitted February 28, 2018 – Decided April 19, 2018

Before Judges Alvarez, Currier, and Geiger.

On appeal from Superior Court of New Jersey,
Law Division, Warren County, Accusation No.
15-05-0305.

Joseph E. Krakora, Public Defender, attorney
for appellant (John Douard, Assistant Deputy
Public Defender, of counsel and on the
brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Jana Robinson, Deputy
Attorney General, of counsel and on the
brief).

The opinion of the court was delivered by

GEIGER, J.S.C. (temporarily assigned).

Defendant 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.

We 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).

Defendant 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.

2 A-4302-15T4
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.

Investigators 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.

On May 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 of parole.

During his plea hearing, defendant admitted digitally

penetrating the vagina of M.L. in or about August 2014, when she

3 A-4302-15T4
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 program."

Defendant 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.

Prior 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

4 A-4302-15T4
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.

More 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 should apply.

The 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

5 A-4302-15T4
incapacitated, or had a mental disease or defect."
N.J.S.A.

2C:14-2(a)(7) (emphasis added).

The May 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.

On May 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 reasoned:

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

6 A-4302-15T4
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.

The 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

7 A-4302-15T4
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.

The 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.

On the 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 old.1 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

1
The reference to the victim possibly being thirteen years old
during the incidents in question was incorrect. The victim was
only twelve years old when defendant was arrested. The
incidents took place before his arrest.

8 A-4302-15T4
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 mitigating factors.

In 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

9 A-4302-15T4
Nicole's Law,
N.J.S.A. 2C:14-12 and
N.J.S.A. 2C:44-8. This

appeal followed.

Although originally submitted for review on an excessive

sentencing oral argument calendar, Rule 2:9-11, the appeal was

transferred to a plenary calendar. Defendant presents the

following issues:

POINT I

BECAUSE THE LEGISLATURE FAILED TO CLEARLY
AND DEFINITELY SPECIFY THE PUNISHMENT FOR
VIOLATION OF
N.J.S.A. 2C:14-2, [DEFENDANT]
IS SUBJECT TO THE ORDINARY SENTENCE FOR A
FIRST-DEGREE CRIME SUBJECT TO A NERA PAROLE
DISQUALIFIER, RATHER THAN THE FAR HARSHER
SENTENCE CREATED BY THE AMENDMENTS KNOWN AS
THE JESSICA LUNSFORD ACT.

POINT II

N.J.S.A. 2C:14-2(D) IS UNCONSTITUTIONAL ON
ITS FACE BECAUSE IT IS A VIOLATION OF THE
SEPARATION OF POWERS DOCTRINE.

POINT III

DESPITE HIS BELIEF HE WAS BOUND BY
PROSECUTORIAL SENTENCING DISCRETION, THE
JUDGE FOUND IMPROPER AGGRAVATING FACTORS AND
FAILED TO FIND MITIGATING FACTORS.

II.

The arguments of unconstitutionality and applicability of

the enhanced sentencing range for aggravated sexual assault

raised here by defendant are questions of first impression. We

review those questions de novo because they concern issues of

10 A-4302-15T4
law. State v. Robinson,
217 N.J. 594, 603-04 (2014); State v.

Galicia,
210 N.J. 364, 381 (2012).

Defendant challenges the constitutionality and

applicability of the enhanced sentencing provisions imposed by

the JLA when the Legislature enacted the May 2014 amendment.

Prior to the May 2014 amendment, a defendant convicted of first-

degree aggravated sexual assault of a victim under thirteen

years old could be sentenced to a prison term from ten to twenty

years, subject to the parole ineligibility and mandatory parole

supervision requirements imposed by NERA. The May 2014

amendment imposed the following mandatory minimum prison terms

and parole ineligibility for aggravated sexual assault of a

victim less than 13 years old:

Except as otherwise provided in subsection
d. of this section, a person convicted under
paragraph (1) of this subsection shall be
sentenced to a specific term of years which
shall be fixed by the court and shall be
between 25 years and life imprisonment of
which the person shall serve 25 years before
being eligible for parole, unless a longer
term of parole ineligibility is otherwise
provided pursuant to this Title.

. . . .

d. Notwithstanding the provisions of
subsection a. of this section, where a
defendant is charged with a violation under
paragraph (1) of subsection a. of this
section, the prosecutor, in consideration of
the interests of the victim, may offer a
negotiated plea agreement in which the

11 A-4302-15T4
defendant would be sentenced to a specific
term of imprisonment of not less than 15
years, during which the defendant shall not
be eligible for parole. In such event, the
court may accept the 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.

[
N.J.S.A. 2C:14-2(a), (d) (emphasis added).]

Defendant committed the aggravated sexual assault after the

effective date of the May 2014 amendment.

Defendant argues the mandatory minimum prison terms and

parole ineligibility imposed by the May 2014 amendment is

inconsistent with the original sentencing range, which he

contends was restored when the July 2014 amendment became

effective. We are unpersuaded by this argument.

The Legislature is presumed to be "thoroughly conversant

with its own legislation." Brewer v. Porch,
53 N.J. 167, 174

(1969). "Certainly, the Legislature is conversant with its own

enactments, particularly when a statute is considered for

amendment." Comm. of Petitioners for Repeal of Ordinance No.

522 (2013) of Borough of W. Wildwood v. Frederick,
435 N.J.

Super. 552, 567 (App. Div. 2014). The Legislature enacted the

July 2014 amendment several months before the later May 2014

12 A-4302-15T4
amendment adopting the JLA. Thus, it seems clear the

Legislature intended the sentencing provisions to remain in

effect even after the July 2014 amendment became effective.

The Legislature could not have intended to repeal portions

of a statute not yet enacted. "[W]e will not interpret a

statute in a way that 'leads to an absurd result.'" State v.

Williams,
218 N.J. 576, 586 (2014) (quoting DiProspero v. Penn,

183 N.J. 477, 493 (2005)).

Moreover, considered in the context of the time it was

adopted, the July 2014 amendment expanded the definition of

victim in subsection (a)(7). Defendant was not convicted of

violating subsection (a)(7); he was convicted of violating

subsection (a)(1). The amendment to subsection (a)(7) does not

pertain to sentencing under subsection (a)(1) and is not

relevant. Instead, as noted by the trial court, the two

amendments "address separate and distinct provisions of the

statute and can stand alone."

Defendant argues the rule of lenity should be invoked due

to the ambiguity created by the successive amendments of

N.J.S.A. 2C:14-2. We disagree. As explained by the Court in

State v. Regis, "[t]he rule of lenity is an important principle

of statutory construction; if a statutory ambiguity cannot be

resolved by analysis of the relevant text and the use of

13 A-4302-15T4
extrinsic aids, the rule requires that the ambiguity be resolved

in favor of the defendant."
208 N.J. 439, 451 (2011) (citing

State v. Gelman,
195 N.J. 475, 482 (2008)). However, "the rule

of lenity is applied only if a statute is ambiguous, and that

ambiguity is not resolved by a review of 'all sources of

legislative intent.'" Id. at 452 (quoting State v. D.A.,
191 N.J. 158, 165 (2007)). That is not the case here.

The plain and unambiguous language of N.J.S.A. 2C:14-2

imposes a specific mandatory minimum sentence different than

other second-degree offenses. Accordingly, we need not resort

to utilizing extrinsic aids. Therefore, the trial court

properly concluded the rule of lenity does not apply.

III.

Defendant further argues the mandatory sentencing

provisions of the JLA violate the separation of powers clause of

the New Jersey Constitution, N.J. Const. art. III, ¶ 1, and

unconstitutionally impair the State's right to engage in plea

bargaining. We disagree.

The separation of powers clause states, "[t]he powers of

the government shall be divided among three distinct branches,

the legislative, executive, and judicial. No person or persons

belonging to or constituting one branch shall exercise any of

the powers properly belonging to either of the others, except as

14 A-4302-15T4
expressly provided in this Constitution." Ibid. "However, the

fact that the actions of one branch will affect the exercise of

power in another branch does not invalidate those actions as

violative of the principles of separation of powers." State v.

Hessen,
145 N.J. 441, 451 (1996) (per curiam).

"[I]t is within the sole power of the legislature to

determine what acts constitute crime and to prescribe punishment

for those acts." State v. Todd,
238 N.J. Super. 445, 455 (App.

Div. 1990). As we recognized in State v. Oliver,

our courts have consistently held that the
determination of penalties for crimes is a
legislative function, not a judicial one. A
trial court does not have the right to do
whatever it pleases. The court's discretion
in sentencing is limited by the sentencing
ranges given to it by the Legislature.
Furthermore, it is within the power of the
Legislature to provide the minimum and
maximum terms of a sentence.

[
298 N.J. Super. 538, 549 (App. Div. 1996)
(citations omitted).]

"For example, the Legislature may enact mandatory

sentencing statutes which serve to restrict a court's sentencing

decision." Todd,
238 N.J. Super. at 460 (citing State v. Des

Marets,
92 N.J. 62, 80 (1983)). Generally, "whatever discretion

courts are given, the basic legislative design must govern."

State v. Lopez,
395 N.J. Super. 98, 108 (App. Div. 2007).

"[T]he judiciary has no power . . . to mete out a punishment in

15 A-4302-15T4
excess of that prescribed by the Legislature or to lessen or

reduce a sentence where the Legislature has provided a mandatory

penalty." State v. Bausch,
83 N.J. 425, 433 (1980) (citations

omitted).

As recognized by the Court in State v. Vasquez, "when the

Legislature chooses to prescribe a mandatory sentence for

certain offenses, it is strongly motivated by substantial law

enforcement concerns."
129 N.J. 189, 200 (1992) (citing Des

Marets
92 N.J. 62). "When that intent and expression are clear

and unmistakable, the Court will construe such sentencing

schemes to effectuate fully their obvious penal purposes."

Ibid. (citations omitted). We view the intent and expression of

the Legislature in enacting the JLA to be clear and

unmistakable—to impose substantial mandatory minimum sentences

with no parole eligibility for this extremely serious crime

perpetrated against children.

We recognize that "[w]hile it is within the sole power of

the legislature to determine what acts constitute crime and to

prescribe punishment for those acts, it cannot give the

prosecuting attorney the authority, after a conviction, to

decide what the punishment shall be. That is a judicial

function." Todd,
238 N.J. Super. at 455 (citations omitted)

(quoting State v. Jones,
689 P.2d 561, 564 (Ariz. App. Div.

16 A-4302-15T4
1984)). "[T]he parties to a plea agreement can only agree to a

sentence that the prosecutor will recommend to the court and are

not empowered to negotiate a sentence which is binding on the

court." Id. at 459. "The determination of a criminal sentence

is always and solely committed to the discretion of the trial

court to be exercised within the standards prescribed by the

Code of Criminal Justice." State v. Warren,
115 N.J. 433, 447

(1989) (citing State v. Roth,
95 N.J. 334 (1984)). "Hence,

separate prosecutorial discretion cannot be superimposed on the

court's sentencing discretion." Id. at 449.

With these principles in mind, the issue becomes whether

N.J.S.A. 2C:14-2 "preserves the ultimate sentencing decision to

the court rather than the prosecutor." Todd,
238 N.J. Super. at
461.

We conclude the trial court retains the ultimate sentencing

decision when sentencing under the JLA because it "may accept

the negotiated plea agreement" at its discretion.
N.J.S.A.

2C:14-2(d). Here, the word "may" is used permissively. See

Aponte-Correa v. Allstate Ins. Co.,
162 N.J. 318, 325 (2000)

(stating "the word 'may' ordinarily is permissive"). The trial

court may reject the plea "[i]f at the time of sentencing the

court determines that the interests of justice would not be

served by effectuating the agreement." R. 3:9-3(e).

17 A-4302-15T4
Consequently, the plea agreement is not binding on the trial

court, as the statute "reserve[s] to the judiciary the power to

approve or reject any agreement between the defendant and the

State." Todd, 238 N.J. Super. at 462. For this reason,

defendant's separation of powers argument fails.

Defendant further contends the JLA impermissibly interferes

with prosecutorial discretion to engage in plea bargaining.

Although defendant would otherwise have been sentenced between

twenty-five years and life imprisonment without parole pursuant

to subsection (a), the prosecutor offered a negotiated plea deal

of twenty years without parole, in accordance with subsection

(d).
N.J.S.A. 2C:14-2(a), (d). Defendant entered into the plea

agreement and was sentenced in accordance with the terms of the

agreement.

Although plea bargaining is an accepted practice in this

state, "[t]here is no constitutional or statutory requirement

that the New Jersey judicial system recognize plea bargaining."

State v. Brimage,
271 N.J. Super. 369, 374 (App. Div. 1994).

"Plea bargaining is not a right of a defendant or the

prosecution. It is an accommodation which the judiciary system

is free to institute or reject." Hessen,
145 N.J. at 452

(quoting Brimage,
271 N.J. Super. at 379) (holding a ban against

plea bargaining drunk driving cases does not violate separation

18 A-4302-15T4
of powers clause or impermissibly infringe on the powers of the

prosecutor).

Moreover, "[w]hile a prosecutor may exercise discretion and

enter into a plea agreement with a defendant, the sentencing

judge may reject it if the interests of justice are not served."

Brimage,
271 N.J. Super. at 374 (citing R. 3:9-3(e); Todd,
238 N.J. Super. at 461). "Sentencing remains a judicial function,

and a sentencing court, notwithstanding the agreement of the

parties, may refuse to accept any of the terms and conditions of

a plea agreement." State v. Howard,
110 N.J. 113, 123 (1988)

(citing State v. Kovack,
91 N.J. 476, 485 (1982)).

The JLA prohibits prosecutors from offering plea agreements

and recommending sentences in the ordinary second-degree range

of ten to twenty years subject to NERA. Instead, the prosecutor

may only "offer a negotiated plea agreement in which the

defendant would be sentenced to a specific term of imprisonment

of not less than [fifteen] years, during which the defendant

shall not be eligible for parole."
N.J.S.A. 2C:14-2(d). While

the mandatory minimum sentencing provisions of the JLA limit the

discretionary authority of the prosecutor, we do not view this

limitation as an impermissible restriction on the prosecutor's

discretionary authority to offer recommended sentences as part

of proposed plea agreements.

19 A-4302-15T4
IV.

We next address defendant's arguments regarding the

sentence imposed. Defendant argues the trial court erred by

engaging in improper double-counting, applying aggravating

factors one and two,
N.J.S.A. 2C:44-1(a)(1) and (2), and failing

to apply mitigating factor eight,
N.J.S.A. 2C:44-1(b)(8).

Defendant contends the sentence should be vacated and the case

remanded for resentencing.

We review a "trial court's 'sentencing determination under

a deferential [abuse of discretion] standard of review.'" State

v. Grate,
220 N.J. 317, 337 (2014) (quoting State v. Lawless,

214 N.J. 594, 606 (2013)). We affirm a sentence if: (1) the

trial court followed the sentencing guidelines; (2) its findings

of fact and application of aggravating and mitigating factors

were "based upon competent credible evidence in the record;" and

(3) "the application of the guidelines to the facts" of the case

does not "shock[] the judicial conscience." State v. Bolvito,

217 N.J. 221, 228 (2014) (quoting State v. Roth,
95 N.J. 334,

364-65 (1984)).

"Elements of a crime, including those that establish its

grade, may not be used as aggravating factors for sentencing of

that particular crime." Lawless,
214 N.J. at 608 (citations

omitted). To do so would result in impermissible double-

20 A-4302-15T4
counting. State v. Kromphold,
162 N.J. 345, 353 (2000) (citing

State v. Yarbough,
100 N.J. 627, 633 (1985)). Sentencing courts

"must scrupulously avoid 'double-counting' facts that establish

the elements of the relevant offense." State v. Fuentes,
217 N.J. 57, 74-75 (2014) (citing Yarbough,
100 N.J. at 645). A

court, however, does not engage in double-counting when it

considers facts showing defendant did more than the minimum the

State is required to prove to establish the elements of an

offense. Id. at 75; see State v. Mara,
253 N.J. Super. 204, 214

(App. Div. 1992) ("The extent of the injuries, which exceed the

statutory minimum for the offense, may be considered as

aggravating.").

"At the time sentence is imposed the judge shall state

reasons for imposing such sentence including . . . the factual

basis supporting a finding of particular aggravating or

mitigating factors affecting sentence[.]" R. 3:21-4(g); see

also
N.J.S.A. 2C:43-2(e); State v. Kruse,
105 N.J. 354, 359-60

(1987). The "judge must determine whether specific aggravating

or mitigating factors are grounded in credible evidence in the

record and then weigh those factors." State v. Case,
220 N.J.
49, 54 (2014). The court's statement of the factual basis for

its findings is necessary and "important for meaningful

appellate review of any criminal sentence," because we are

21 A-4302-15T4
"expected to assess the aggravating and mitigating factors to

determine whether they 'were based upon competent credible

evidence in the record.'" State v. Bieniek,
200 N.J. 601, 608

(2010) (quoting Roth,
95 N.J. at 364-65).

Although "sentencing courts frequently apply both

aggravating factors one and two, each requires a distinct

analysis of the offense for which the court sentences the

defendant." Lawless,
214 N.J. at 600. A finding of aggravating

factor one requires the court to consider "[t]he nature and

circumstances of the offense, and the role of the actor therein,

including whether or not it was committed in an especially

heinous, cruel, or depraved manner."
N.J.S.A. 2C:44-1(a)(1).

The Code does not define "heinous, cruel, or depraved

manner." In order to find that an offense was committed in a

"cruel" manner under the statute, there must be evidence

defendant inflicted pain or suffering gratuitously and beyond

that which was required to establish the elements of the crime

charged. State v. O'Donnell,
117 N.J. 210, 217-18 (1989). In a

concurring opinion in State v. V.R., Judge Humphreys concluded

"secretly videotap[ing] a thirteen year old child while she was

nude in the shower, asleep in bed and in the bathroom"

constituted heinous acts.
387 N.J. Super. 342, 348 (App. Div.

2006) (Humphreys, J., concurring). We find no published case

22 A-4302-15T4
law defining "depraved" in the context of
N.J.S.A. 2C:14-2(a)(1)

or
N.J.S.A. 2C:24-4(b)(5)(a).

A finding of aggravating factor two requires the court to

consider:

The gravity and seriousness of harm
inflicted on the victim, including whether
or not the defendant knew or reasonably
should have known that the victim of the
offense was particularly vulnerable or
incapable of resistance due to advanced age,
ill-health, or extreme youth, or was for any
other reason substantially incapable of
exercising normal physical or mental power
of resistance.
[N.J.S.A. 2C:44-1(a)(2).]

Aggravating factor two "focuses on the setting of the

offense itself with particular attention to any factors that

rendered the victim vulnerable or incapable of resistance at the

time of the crime." Lawless,
214 N.J. at 608. A court may not

base its finding of aggravating factor two solely upon the fact

that the harm contemplated by the statute proscribing the

criminal conduct occurred. Kromphold,
162 N.J. at 356-58.

Rather, the sentencing court must "engage in a pragmatic

assessment of the totality of harm inflicted by the offender on

the victim, to the end that defendants who purposely or

recklessly inflict substantial harm receive more severe

sentences than other defendants." Id. at 358. In weighing

aggravating factor two, the court may consider the victim's

23 A-4302-15T4
particular vulnerability to the perpetrator. See O'Donnell,
117 N.J. at 219; State v. Martin,
235 N.J. Super. 47, 58-59 (App.

Div. 1989).

Although the trial court recounted the underlying facts, it

did not adequately state the factual or legal basis for applying

aggravating factors one and two. The court's finding of

aggravating factor one was limited to a conclusory assertion

that the offenses were committed in "a cruel and depraved"

manner.

As to aggravating factor two, the judge found the victim

"was really incapable of exercising normal physical and mental

power of resistance" given her age at the time of the offenses.

The judge did not express any other factual basis for concluding

the victim was incapable of exercising normal physical and

mental power of resistance, such as the relationship between

M.L. and defendant.

Aggravating factor two refers to the "extreme youth" of the

victim.
N.J.S.A. 2C:44-1(a)(2). As to count one, the victim

being less than thirteen years old is an element of the offense.

N.J.S.A. 2C:14-2(a)(1). Similarly, as to count two, the victim

being under eighteen years old is an element of the offense.

N.J.S.A. 2C:24-4(b)(1) and (5). Because the age of a child

victim is an element of the crimes of which defendant was

24 A-4302-15T4
convicted, it cannot be considered an aggravating factor for

sentencing purposes. See State v. Yarbough,
195 N.J. Super.
135, 143 (App. Div. 1984) (holding that where the age of the

victim is an element that makes sexual assault against her a

crime of first degree, victim's age may not be used as an

aggravating factor), remanded for resentencing on other grounds,

100 N.J. 627, 645-46 (1985). In Yarbough, the victim was eleven

years old. Ibid. Here, as to count one, the victim was between

eleven and twelve years old at the time the offenses were

committed. As to count two, defendant told investigators the

images of child pornography involved children ranging in age

from three to seventeen years old.

The record does not allow review of the findings assigned

to each aggravating factor or whether the court engaged in

impermissible double-counting.

Defendant's contention that the trial court erred in not

finding mitigating factor eight (the circumstances of the

offense are unlikely to recur),
N.J.S.A. 2C:44-1(b)(8), lacks

merit. Contrary to his position, intensive cognitive-behavioral

treatment at ADTC, where he will spend at least part of his

prison term; registration under Megan's Law, which restricts

internet access; and parole supervision for life does not alone

support this factor.

25 A-4302-15T4
We discern no abuse of discretion in not applying

mitigating factor eight. Defendant's conduct was determined to

be repetitive and compulsive. Despite being aware his conduct

was illegal and likely to result in his arrest, defendant was

unable to control his sexual attraction toward juveniles.

Defendant also argues he is unlikely to reoffend because he

will be almost sixty years old when he completes his sentence.

We are unpersuaded by this argument. The "successful treatment

of sex offenders appears to be rare." Doe v. Poritz,
142 N.J.
1, 15 (1995). As a result, "very few offenders sentenced to

ADTC . . . ever meet the dual standards required for parole from

ADTC." Ibid. Consequently, "the large majority of ADTC inmates

leave only after having served their maximum sentences." Id. at

16.

"The danger of recidivism posed by sex offenders and

offenders who commit other predatory acts against children" led

to the enactment of the registration requirements imposed by

Megan's Law.
N.J.S.A. 2C:7-1(a); see also Poritz,
142 N.J. at
15. "[O]f those who recidivate, many commit their second crime

after a long interval without offense. In cases of sex

offenders, as compared with other criminals, the propensity to

commit crimes does not decrease over time." Poritz, 142 N.J. at

26 A-4302-15T4
15. Thus, "the tendency to reoffend does not appear to decline

with an offender's increasing age." Id. at 17.

Finally, we address the twenty-year term with no parole

eligibility imposed on count two for endangering the welfare of

a child by distribution of child pornography, a second-degree

offense that is not subject to the JLA or NERA. The range of

incarceration for that offense is between five and ten years.

N.J.S.A. 2C:43-6(a)(2). The maximum period of parole

ineligibility is one-half of the prison term.
N.J.S.A. 2C:43-

6(b).

The State concedes the prison term imposed on count two

exceeded the statutory maximum. We agree that the sentence on

count two was illegal. "[S]ince a trial court may not impose an

illegal sentence, see State v. Copeman,
197 N.J. Super. 261, 265

(App. Div. 1984), a prosecutor should not offer a plea bargain

which may not be legally implemented." State v. Baker,
270 N.J.

Super. 55, 70 (App. Div. 1994). "[A] reviewing court is not

free to ignore an illegal sentence." State v. Moore,
377 N.J.

Super. 445, 450 (App. Div. 2005) (citing State v. Flores,
228 N.J. Super. 586, 594 (App. Div. 1988)).

27 A-4302-15T4
VI.

Based upon the illegal sentence on count two and the trial

court's failure to sufficiently state the reasons supporting

aggravating factors one and two, we are constrained to vacate

defendant's sentence and remand for resentencing on both counts.

On remand, the court shall fully detail the factual basis for

each aggravating and mitigating factor, shall consider whether

any impermissible double-counting will result, and shall perform

the required qualitative weighing and balancing of the factors

in accordance with the sentencing guidelines. The trial court

shall also sentence on count two within the statutory range.

In summary, defendant's convictions are affirmed. We

vacate the sentence and remand for resentencing in accordance

with this opinion.

Affirmed in part, and vacated and remanded in part. We do

not retain jurisdiction.

28 A-4302-15T4

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