STATE OF NEW JERSEY v. PRESTON O. TAYLOR

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2155-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PRESTON O. TAYLOR,
a/k/a PRESTON TAYLOR,

     Defendant-Appellant.
________________________

                   Argued February 2, 2022 – Decided February 17, 2022

                   Before Judges Whipple, Geiger and Susswein.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Monmouth County, Accusation No. 17-
                   04-0559.

                   Kevin S. Finckenauer, Assistant Deputy Public
                   Defender, argued the cause for appellant (Joseph E.
                   Krakora, Public Defender, attorney; Kevin S.
                   Finckenauer, of counsel and on the briefs).

                   Monica do Outeiro, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Lori Linskey, Acting Monmouth
            County Prosecutor, attorney; Monica do Outeiro, of
            counsel and on the brief).

PER CURIAM

      This case arises from the murder of Sarah Stern by co-defendant Liam

McAtasney as part of a robbery.      Defendant Preston O. Taylor, who was

convicted of robbery and related crimes for his involvement in the criminal

episode, appeals from the prison term and fine that were imposed following his

guilty plea to an accusation. We affirm in part and remand in part.

      We glean the following facts from the record. McAtasney and Taylor

became friends their freshman year of high school. In October 2016, Taylor

lived with McAtasney in a home owned by McAtasney's parents. At the time,

Taylor had a serious substance abuse problem.

      McAtasney and Taylor were friends with Stern, whom Taylor had known

for about five years. In September 2016, McAtasney learned of Stern's recent

sizable inheritance from her mother's estate. McAtasney commented to Taylor

that the amount of the inheritance was "worth killing someone for."

McAtasney devised a plan to rob and murder Stern and involved Taylor in that

plan. Taylor claims there was no set date for the robbery and that he did not

believe McAtasney would carry out the plan.

      On December 2, 2016, McAtasney called Taylor to explain that he and

Stern were on their way to the bank, and this was McAtasney's chance to get
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the money. Taylor then knew McAtasney was going to kill Stern. Taylor also

knew he would have to help McAtasney dispose of the body. Later that day,

McAtasney told Taylor that he went to the bank with Stern, where she

withdrew the money, and then they went to Stern's house.           McAtasney

strangled Stern and hid her body in a bathroom. McAtasney told Taylor to go

to Stern's house to dispose of the body because McAtasney had to go to work.

      Taylor went to Stern's house, found her body in the bathroom, and

moved it to her backyard. He also looked for McAtasney's cellphone, which

was missing. Taylor placed the body under bushes and covered it with sticks

and leaves. He then returned to their home and waited for McAtasney.

      McAtasney and Taylor took Stern's car and her body to Belmar Bridge.

They jointly threw Stern's body off the bridge. They left Stern's car at the

bridge to make her death look like a suicide.

      McAtasney and Taylor stole a safe from Stern's house, placed it in

Taylor's car, and opened it after disposing of Stern's body. The safe contained

approximately $10,000.     They agreed to divide the money between them.

They later placed the money in another safe that they buried in Sandy Hook.

They buried Stern's safe in Shark River Park in Wall.

      One of McAtasney's acquaintances, Anthony Curry, became suspicious

of what happened to Stern after learning of her disappearance due to

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conversations he had previously had with McAtasney about her.              Curry

contacted local police and then recorded a conversation he had with

McAtasney that described the robbery and murder. The recording also detailed

another plan McAtasney and Taylor had to burglarize a drug dealer's apartment

in Galloway. Taylor was arrested the day after the recording was made.

      McAtasney and Taylor planned that if Taylor was caught, he would tell

detectives that Stern attempted suicide previously and that she had a falling out

with her father. Taylor initially told that version to police and provided an

alibi for McAtasney. Stern's body was never found.

      On February 1, 2017, Taylor provided a formal statement to police that

described the events in detail, including that McAtasney strangled Stern. On

April 20, 2017, Taylor provided a formal statement to the Monmouth County

Prosecutor's Office that provided additional details about the robbery , murder

plot, and Stern's death.

      On April 24, 2017, Taylor waived his right to indictment by grand jury

and was charged in an accusation with: first-degree felony murder,  N.J.S.A.

2C:11-3(a)(2) (count one); first-degree robbery,  N.J.S.A. 2C:15-1 (count two);

second-degree conspiracy to commit robbery,  N.J.S.A. 2C:5-2 and 2C:15-1

(count three); second-degree disturbing or desecrating human remains,

 N.J.S.A. 2C:22-1(a)(1) and/or (a)(2) (count four); fourth-degree tampering

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with physical evidence,  N.J.S.A. 2C:28-6(1) (count five); third-degree

hindering apprehension of self,  N.J.S.A. 2C:29-3(b) (count six); and third-

degree hindering apprehension of another,  N.J.S.A. 2C:29-3(a) (count seven).

      The waiver of indictment was part of a cooperation agreement and plea

agreement Taylor entered into with the State on April 24, 2017. Taylor agreed

to plead guilty to counts two through seven of the accusation in exchange for

the State's recommendation of up to a twenty-year term on count two, subject

to the No Early Release Act (NERA),  N.J.S.A. 2C:43-7.2, with all other terms

running concurrently, and dismissal of count one. The plea agreement was

conditioned upon Taylor's compliance with the terms of the cooperation

agreement, including providing truthful, complete, and accurate information

and testifying truthfully at McAtasney's trial. Taylor denied agreeing with

McAtasney to kill Stern but admitted to agreeing to participate in the robbery.

      The plea hearing also took place on April 24, 2017. During the hearing,

Taylor acknowledged that the sentencing range for first-degree robbery was

ten to twenty years and that the State was going to recommend a twenty-year

NERA term on count two, but that he could argue for a sentence on the low

end of the range. Taylor provided a thorough, detailed factual basis for his

plea. He testified $10,000 was taken from Stern's safe, of which he was to

receive $3,000. The court accepted the guilty plea.

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      A jury convicted McAtasney of first-degree murder, first-degree

robbery, first-degree felony murder, second-degree conspiracy to commit

robbery, second-degree disturbing or desecrating human remains, third-degree

hindering, and fourth-degree tampering with physical evidence. McAtasney

was sentenced to life without parole and a consecutive ten-year term for

desecrating her body.

      Taylor was nineteen years old when the crimes were committed and pled

guilty. He was twenty-one years old when sentenced on June 28, 2019. These

were Taylor's first indictable convictions.     He had one prior ordinance

violation and a conditional discharge. Taylor had no known history of juvenile

delinquency.

      At the sentencing hearing, Taylor moved to allow his mother to speak on

his behalf. The judge denied the request, noting he had read thirteen letters in

support of defendant's character. The judge stated her comments would be

redundant, put defendant's mother in a "difficult position," and be too time

consuming.

      The prosecutor argued that but for Taylor's actions, "Sarah Stern would

still be here." He argued the court should apply aggravating factors one (the

nature and circumstances of the offenses, and the actor's role in committing

them was especially heinous, cruel, or depraved),  N.J.S.A. 2C:44-1(a)(1); three

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(risk of reoffending),  N.J.S.A. 2C:44-1(a)(3); seven (pecuniary incentive),

 N.J.S.A. 2C:44-1(a)(7); and nine (need for deterrence),  N.J.S.A. 2C:44-

1(a)(9); and mitigating factor twelve (cooperation with law enforcement),

 N.J.S.A. 2C:44-1(b)(12).      The prosecutor contended that the aggravating

factors outweighed the mitigating factor and suggested that a NERA term

under fifteen years "would not be in the interest of justice."

      Defense counsel argued in favor of applying mitigating factors seven (no

history of prior delinquency or criminal activity),  N.J.S.A. 2C:44-1(b)(7);

eight (defendant's conduct is the result of circumstances unlikely to recur),

 N.J.S.A. 2C:44-1(b)(8); nine (defendant's character and attitude indicate he is

unlikely to reoffend),  N.J.S.A. 2C:44-1(b)(9); ten (defendant is particularly

likely to respond affirmatively to probationary treatment),  N.J.S.A. 2C:44-

1(b)(10); eleven (imprisonment would entail excessive hardship),  N.J.S.A.

2C:44-1(b)(11); and twelve.

      The judge declined to apply aggravating factor one, noting he did not

apply it when sentencing McAtasney. The judge found aggravating factor

three because there was evidence of defendant planning to commit a robbery at

Stockton University.     The judge found aggravating factor seven because

Taylor's involvement in the case was "financial." He also found aggravating

factor nine, because "this [case] has gripped, clearly, the nation, at least the

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East Coast . . . there's been television productions with regards to this and it

has been something that's been highly covered in the media.         And there's

clearly a need to deter a situation when we're talking about three people that

knew each other. . . ."

      The judge found mitigating factor seven, and gave "some" weight to it,

because defendant had little criminal history. He declined to find mitigating

factor eight because he had found there was a risk Taylor would commit

another offense. Despite the numerous letters submitted on Taylor's behalf,

the judge rejected mitigating factor nine, because "of course [his] character is

going to change once [he is] arrested and committed these crimes." The judge

did not believe Taylor was unaware "McAtasney was going to do this.

[Taylor] could have stopped it and [he] did not." The judge also declined to

find mitigating factors ten and eleven.    The judge found mitigating factor

twelve, because defendant clearly cooperated with law enforcement as part of

his cooperation agreement and plea bargain. The judge determined that the

aggravating factors substantially outweighed the mitigating factors.

      The judge sentenced Taylor in accordance with the plea agreement. On

count two, Taylor received an eighteen-year NERA term and a $10,000 fine

but did not order Taylor to pay restitution. The judge explained that $10,000

was the amount that was stolen from Stern, and that he did not understand why

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defendant, someone in college, would commit a crime for this amount of

money that he could earn himself. Count three merged into count two, and the

other sentences ran concurrently to count two. On count four, defendant was

sentenced to a ten-year term. On count five, defendant was sentenced to an

eighteen-month term. On count six and seven, defendant was sentenced to

five-year terms. Count one was dismissed per the plea agreement.

      On August 30, 2019, the trial court denied defendant's motion for

reconsideration of his sentence.    As to aggravating factor three, the judge

noted Taylor helped McAtasney plan the murder, and he planned another

potential robbery or theft himself.         He only came forward after their

acquaintance, Curry, went to the police. The judge rejected Taylor's claim that

applying aggravating factor seven would be double counting, explaining:

            It's not as to the murder itself but it goes to those same
            factors that I just elicited with regard to the planning,
            the covering up and . . . the charges themselves that it
            does deal with, it deals with [] tampering, the
            desecration of human remains and the hindering.

      This appeal followed.     Defendant raises the following points for our

consideration.

            POINT I

            THE TRIAL COURT MADE NUMEROUS AND
            SUBSTANTIAL   ERRORS    IN   FINDING
            AGGRAVATING    FACTORS,    DECLINING
            MITIGATING FACTORS, AND ASSIGNING
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                                        9
WEIGHT TO THOSE FACTORS, REQUIRING
REVERSAL AND REMAND OF THIS MATTER
FOR RESENTENCING.

     A. The Trial Court Improperly Double Counted
     the Pecuniary Interest of the Offense When
     Imposing an Eighteen-year Sentence for First-
     Degree Robbery.

     B. The Trial Court Improperly Gave Weight to
     the Media Attention of the Case in Finding
     Aggravating Factor Nine.

     C. The Trial Court Committed Reversible Error
     by Using S.S.'s Death to Afford Heavier Weight
     to the Aggravating Factors.

     D. The Trial Court Incorrectly Stated that Mr.
     Taylor's Character Prior to the Offense Could
     Not Be Taken into Account When Evaluating
     Mitigating and Aggravating Factors.

     E. The Trial Court Abused Its Discretion in
     Rejecting Mitigating Factors Eight and Eleven
     Outright When They Were Supported by the
     Record.

POINT II

THE    LAW     REQUIRING   SENTENCING
MITIGATION FOR YOUTHFUL DEFENDANTS
DEMANDS    RETROACTIVE    APPLICATION
BECAUSE THE LEGISLATURE INTENDED IT,
THE NEW LAW IS AMELIORATIVE IN NATURE,
AND FUNDAMENTAL FAIRNESS REQUIRES
RETROACTIVITY.

     A. The Legislature Did Not Express a Clear
     Intent for Prospective Application.

                                                      A-2155-19
                        10
                  B. The Other Language of the Mitigating Factor
                  Indicates    Retroactive   Application;    the
                  Presumption of Prospective Application is
                  Inapplicable; and the Law is clearly
                  Ameliorative.

                  C. There is No Manifest Injustice to the State in
                  Applying the Mitigating Factor Retroactively.

                  D. The Savings Statute Does Not Preclude
                  Retroactive Application of Ameliorative
                  Legislative Changes, Like the One at Issue
                  Here.

                  E. Retroactive Application of the Mitigating
                  Factor is Required as a Matter of Fundamental
                  Fairness, and to Effectuate the Remedial
                  Purpose of the Sentencing Commission's Efforts
                  Regarding Juvenile Sentencing.

            POINT III

            THE TRIAL COURT ERRED IN REFUSING TO
            LET MR. TAYLOR'S MOTHER SPEAK ON HIS
            BEHALF.

            POINT IV

            THE TRIAL COURT FAILED TO CONDUCT AN
            ABILITY TO PAY HEARING WHEN IMPOSING
            THE $10,000 FINE FOR THE ROBBERY OFFENSE
            OR STATE ITS REASONING FOR IMPOSING
            SAME.

      "[T]rial judges are given wide discretion so long as the sentence imposed

is within the statutory framework." State v. Dalziel,  182 N.J. 494, 500 (2005).

"Appellate review of a criminal sentence is limited; a reviewing court decides

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                                      11
whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito,  217 N.J. 221, 228 (2014) (quoting State v. Whitaker,  79 N.J. 503, 512 (1979)).

            Appellate courts must affirm the sentence of a trial
            court unless: (1) the sentencing guidelines were
            violated; (2) the findings of aggravating and
            mitigating factors were not "based upon competent
            credible evidence in the record;" or (3) "the
            application of the guidelines to the facts" of the case
            "shock[s] the judicial conscience."

            [Ibid. (alteration in original) (quoting State v. Roth,
             95 N.J. 334, 364-65 (1984)).]

"These standards apply as well to sentences . . . that are entered as part of a

plea agreement." State v. Sainz,  107 N.J. 283, 292 (1987).

      Generally, an appellate court should defer to the sentencing court's

factual findings and should not "second-guess" them. State v. Case,  220 N.J.
 49, 65 (2014). "Although '[a]ppellate review of sentencing is deferential,' that

deference presupposes and depends upon the proper application of sentencing

considerations."   State v. Melvin,  248 N.J. 321, 341 (2021) (alteration in

original) (quoting Case,  220 N.J. at 65); accord State v. Trinidad,  241 N.J. 425,

453 (2020). If the sentencing court "follows the Code and the basic precepts

that channel sentencing discretion[,]" the reviewing court should affirm the

sentence, so long as the sentence does not "shock the judicial conscience."

Case,  220 N.J. at 65. "A sentence imposed pursuant to a plea agreement are

presumed to be reasonable . . . ." State v. Fuentes,  217 N.J. 57, 70-71 (2014).
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      In imposing a sentence, the court must make an individualized

assessment of the defendant based on the facts of the case and the aggravating

and mitigating sentencing factors. State v. Jaffe,  220 N.J. 114, 122 (2014).

"[T]he judge shall state reasons for imposing [the] sentence including . . . the

factual basis supporting a finding of particular aggravating or mitigating

factors affecting sentence[.]" State v. A.T.C.,  454 N.J. Super. 235, 255 (App.

Div. 2018) (alterations in original) (quoting R. 3:21-4(g)). The "judge must

determine whether specific aggravating or mitigating factors are grounded in

credible evidence in the record and then weigh those factors." Ibid. (quoting

Case,  220 N.J. at 54).

      An appellate court's jurisdiction to review sentences includes the power

to make new findings of fact, to "reach independent determinations of the

facts," and to "supplement the record." State v. Jarbath,  114 N.J. 394, 410

(1989) (citing R. 2:5-5(a); R. 2:10-5).          However, exercising original

jurisdiction "should not occur regularly or routinely; . . . a remand to the trial

court for resentencing is strongly to be preferred." Id. at 411.

      The record supports the finding of aggravating factors three and nine.

The judge found Taylor's plan to commit another robbery demonstrated the

risk he would reoffend. While the judge noted the media attention given to the

case, he explained that aggravating factor nine applied because of the nature of

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                                       13
the case. Deterrence is considered "one of the most important considerations

in sentencing, for the future protection of the public." State v. Locane,  454 N.J. Super. 98, 126 (App. Div. 2018) (citing Fuentes,  217 N.J. at 78-79).

Aggravating factor nine should be found when an offense "by its very nature

makes general deterrence absolutely meaningful."        Ibid.   Deterring future

robberies to protect the public was an appropriate consideration. We discern

no abuse of discretion in finding aggravating factors three and nine.

      Taylor argues that applying aggravating factor seven amounts to

impermissible double counting. We disagree.

      "Elements of a crime, including those that establish its grade, may not be

used as aggravating factors for sentencing of that particular crime." A.T.C.,

 454 N.J. Super. at 253 (quoting State v. Lawless,  214 N.J. 594, 608 (App. Div.

2013)). However, a court does not double count if 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 255.

      Here, the grading of the robbery as a first-degree offense was not based

on the amount stolen. Rather, it was based on the fact that "in the course of

committing the theft the actor attempts to kill anyone, or purposely inflicts or

attempts to inflict serious bodily injury . . . ."  N.J.S.A. 2C:15-1(b). Likewise,




                                                                          A-2155-19
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the amount of the theft was not an element of the remaining offenses. Finding

aggravating seven was not double counting.

      Aggravating factor seven applies when "[t]he defendant committed the

offense pursuant to an agreement to either pay or be paid for the commission

of the offense and the pecuniary incentive was beyond that inherent in the

offense itself[.]"    N.J.S.A. 2C:44-1(a)(7).    The judge noted that Taylor's

"involvement in this case was financial. He was basically being paid . . . a cut

of whatever was found."       Taylor said he received about $3,000 for his

involvement. The judge noted, however,

            this doesn't really go to the robbery itself; it really
            goes to what he was basically, I guess you could use
            the word hired to do, help cover up the body, take the
            body from the bathroom to the bushes outside the
            home to the backyard and into the car. And then when
            [] McAtasney was not strong enough to take,
            unfortunately, Sarah's body out of the car, [defendant]
            came around the bridge, as I said last week, and then
            helped him, and unfortunately threw her deceased
            body over the bridge into the Shark River. So he was
            really aiding in the coverup. And then perpetuating
            the misleading of the police in statements,
            participating in the community search. You know,
            again floating out there the idea that this was a suicide
            so to throw the police off of the trail.

            [(emphasis added).]

The judge made similar comments during his oral decision denying

reconsideration. Given this explanation, it seems clear that aggravating factor

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                                       15
seven was not applied to the robbery count; it was only applied to the

remaining counts. We discern no abuse of discretion in finding aggravating

factor seven on counts three through seven.

      The judgment of conviction lists aggravating factor seven without

specifying that it only applies to counts three through seven. "Where there is a

conflict between the sentence as set forth in a judgment of conviction and the

sentencing transcript, the sentencing transcript controls." Pressler & Verniero,

Current N.J. Court Rules, cmt. 1.8 on R. 3:21-4 (2022) (citing State v. Walker,

 322 N.J. Super. 535, 556 (App. Div. 1999)). We remand for the court to enter

a corrected judgment of conviction stating that aggravating sentence seven

does not apply to count two, as was indicated by the court in its oral

sentencing decision.

      We next address the judge's statement during sentencing that while "it's

clear, [Taylor] did not commit the murder himself. He did everything but put

his hands around her neck but he did not commit the murder." The judge also

stated that Taylor "could have stopped [the murder] and [he] did not."

      The record reflects that McAtasney began planning the robbery and

concluded that Stern would be killed during the robbery, long before Taylor's

involvement began.     McAtasney made nearly all the decisions during the

commission of the crimes.      McAtasney strangled Stern.      Taylor was not

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present when Stern was strangled. Taylor was not charged with knowing or

purposeful murder. Although Taylor was charged with felony murder, that

count was dismissed by the State as part of the plea agreement.

      Although a defendant can be vicariously liable for a co-defendant's

actions, he is not "liable for aggravating factors not personal to him." State v.

Megargel,  143 N.J. 484, 491 (1996) (citing State v. Rogers,  236 N.J. Super.
 378, 387 (App. Div. 1989)). In State v. Anthony, we held it was inappropriate

for a sentencing judge to hold the defendant vicariously liable for his co -

defendant's murder during a robbery, when the defendant was acquitted of all

charges except for agreement to commit the robbery.  443 N.J. Super. 553, 576

(App. Div. 2016). In Anthony, the defendant agreed to drive the co-defendant

to burglarize a house if no one was home, but the co-defendant murdered an

elderly man who was there. Id. at 562. We explained that it was error for the

judge to "attribut[e] the violent, heinous acts of defendant's co-defendant to

defendant, and, while there is certainly support in the record for the judge's

conclusion that defendant knew the victim was very old, the jury concluded he

did not know that [the co-defendant] would do personal violence to the

victim." Id. at 576.

      In Melvin, the Court addressed "whether a trial judge can consider at

sentencing a defendant’s alleged conduct for crimes for which a jury returned a

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not guilty verdict."  248 N.J. at 325. The jury found Melvin guilty of second-

degree unlawful possession of a handgun but not guilty of murder or attempted

murder. Ibid. At sentencing, the trial court "determined that the evidence at

trial supported the conclusion that Melvin shot the victims" despite the jury's

not-guilty verdicts on the murder charges. Ibid.

             Citing United States v. Watts,  519 U.S. 148 (1997),
             the trial judge found that it was within the court's
             broad discretion at sentencing to consider all
             circumstances of the case, including evidence that
             Melvin was the shooter. Despite the jury's verdict, the
             trial court found that Melvin not only possessed the
             weapon, but used it to shoot three people. The trial
             court sentenced Melvin to a term of sixteen years'
             imprisonment with an eight-year period of parole
             ineligibility.

             [Ibid.]

       The trial court granted the State's motion to sentence Melvin to an

extended term as a persistent offender based on his criminal history. Id. at

328.   "The trial court sentenced Melvin to the maximum – an aggregate

twenty-year prison term with ten years of parole ineligibility." Ibid. "The

sentencing judge determined that 'by a preponderance of the credible evidence

at trial, . . . Melvin did in fact use a firearm, which resulted in the death of [the

two victims] and the injury to [the restaurant owner].'" Ibid. (alterations in

original). We affirmed Melvin's conviction but remanded for resentencing.

Ibid. Melvin was resentenced "to an aggregate extended term of sixteen years
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                                         18
with an eight-year period of parole ineligibility." Id. at 330. We affirmed that

sentence. Ibid.

      Melvin "argue[d] that sentencing based on acquitted conduct violated

[his] federal and state constitutional rights to due process and fundamental

fairness. [He] assert[ed] that punishing a person for conduct of which a jury

acquitted them violates the protection afforded by acquittal and undermines the

purpose of a jury trial." Id. at 339. The Court reviewed this question of law

de novo. Id. at 341.

      In Watts, the United States Supreme Court held that "a jury's verdict of

acquittal does not prevent the sentencing court from considering conduct

underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence."       519 U.S.  at 157.      Our Supreme Court

determined that Watts was not controlling. Melvin,  248 N.J. at 343-46. The

Court noted that "Watts was cabined specifically to the question of whether the

practice of using acquitted conduct at sentencing was inconsistent with double

jeopardy." Id. at 346.

      The Court analyzed due process under the New Jersey Constitution. Id.

at 347. It emphasized that "[t]he doctrine of fundamental fairness reflects the

State Constitution's heightened protection of due process rights." Ibid. "In

order to protect the integrity of our Constitution's right to a criminal trial by

                                                                          A-2155-19
                                       19
jury, we simply cannot allow a jury's verdict to be ignored through judicial

fact-finding at sentencing. Such a practice defies the principles of due process

and fundamental fairness." Id. at 349. The Court noted that "[t]o convict

Melvin of unlawful possession, the jury did not make any finding as to

whether he used the handgun he possessed."          Id. at 350.   Similarly, "in

acquitting Melvin of any offenses that involved using the weapon -- or even of

having had the 'purpose to use the firearm unlawfully,' . . . the jury's verdict

should have ensured that Melvin retained the presumption of innocence for any

offenses of which he was acquitted." Ibid.

        The Court held "that fundamental fairness prohibits courts from

subjecting a defendant to enhanced sentencing for conduct as to which a jury

found that defendant not guilty." Id. at 326. Therefore, jury findings "cannot

be nullified through lower-standard fact findings at sentencing." Id. at 352.

"Fundamental fairness simply cannot let stand the perverse result of allowing

in through the back door at sentencing conduct that the jury rejected at trial."

Ibid.

        Here, unlike in Melvin, Taylor did not go to trial. A jury did not acquit

him of felony murder. That charge was dismissed pursuant to the terms of the

plea agreement. And unlike in Anthony, where the trial judge improperly

found aggravating factor one by applying the co-defendant's actions to the

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                                        20
defendant,  443 N.J. Super. at 574, here the judge did not find aggravating

factor one.    Moreover, the judge did not attribute McAtasney's conduct to

Taylor.   Instead, he appears to have considered the extent of Taylor's

involvement in applying aggravating factor seven to the counts other than the

robbery. Those counts run concurrently to the term imposed on the robbery.

      While the reasoning was perhaps inartfully stated, we discern no error.

Consideration of the extent of Taylor's involvement in the incident was

permissible even though the felony murder charge was dismissed.

      We next address whether the trial court abused its discretion in declining

to hear from Taylor's mother at sentencing. Defense counsel proffered that

Taylor's mother would address "some of the mitigating factors, particularly

whether there is a likelihood to change," that Taylor is "unlikely to commit

another offense[,] . . . and whether his conduct was a result of [circumstances]

unlikely to recur." Counsel represented that the mother's presentation would

not be long.

      The State contended the mother's statements would be duplicative of the

character letters already submitted and would merely be a plea for mercy. The

State also noted that the judge had heard Taylor's testimony during

McAtasney's trial.    The judge stated that he considered thirteen character

letters submitted by defendant and defendant's own letter. The judge noted

                                                                         A-2155-19
                                      21
that defense counsel's sentencing memorandum addressed mitigating factors

seven through eleven. In addition, Taylor would be able to speak. The judge

noted Taylor's remorse as indicated in the presentence report.       The judge

concluded the mother's comments would be redundant.

      "[O]ther than defendants, and crime victims or their survivors, there is

no absolute right to speak at a sentencing proceeding; instead, permitting

others to address the court directly is a matter entrusted to the sentencing

court's discretion."   State v. Blackmon,  202 N.J. 283, 305 (2010).            In

exercising this discretion, the Court provided the following guidance:

            [Sentencing courts] need not entertain mere pleas for
            mercy and need not permit presentations that are
            cumulative or that merely repeat previously-submitted
            written comments. Nor are they required to permit
            presentations that are scurrilous, vengeful, or
            inflammatory.    Moreover, courts should consider
            whether the individual seeking to be heard on
            defendant's behalf has information that bears upon an
            aggravating or mitigating factor, and may require a
            proffer consistent with one of those factors from
            defendant's counsel, electing to limit the grant of
            permission accordingly.

            [Ibid.]

      A defendant is to be evaluated "as he stands before the court on that day"

at sentencing. State v. Randolph,  210 N.J. 330, 354 (2012). Here, the crimes

occurred on December 2, 2016. Taylor pled guilty on April 24, 2017. Due to

the cooperation agreement, which required his truthful testimony at
                                                                         A-2155-19
                                      22
McAtasney's trial, Taylor was not sentenced until June 28, 2019, more than

two and one half years after the crimes were committed.

      Considering the totality of the circumstances, we find no abuse of

discretion.   Defense counsel did not proffer any specific information that

Taylor's mother would provide that was not already discussed in the character

letters or which Taylor himself could not state during allocution.

      Taylor further argues that the judge should have found mitigating factors

eight and eleven. The judge applied aggravating factor three, finding a risk

defendant would reoffend based on Taylor's plan to commit another robbery.

As to mitigating factor eleven, Taylor claimed he had been attacked and beaten

up while incarcerated.      Noting this issue should be dealt with by the

Department of Corrections, the judge also surmised that Taylor's treatment was

unrelated to the length of his sentence. We discern no abuse of discre tion in

declining to apply either mitigating factor.

      Taylor also argues he should be resentenced for the trial court to

consider mitigating factor fourteen ("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)

because he was nineteen years old at the time of the offenses. Taylor contends

mitigating factor fourteen should be applied because the legislature intended it

to be applied retroactively and it is ameliorative in nature. We are mindful

                                                                         A-2155-19
                                       23
that the Court granted certification in State v. Lane, Docket No. A-17-21, ___

N.J. ___ (2021), in which the legal issue is whether  N.J.S.A. 2C:44-1(b)(14)

applies retroactively, and if so, to what extent. Unless and until the Court

holds to the contrary in Lane, we abide by our holding in State v. Bellamy,  468 N.J. Super. 29, 48 (App. Div. 2021), that mitigating factor fourteen does not

apply retroactively absent resentencing "for a reason unrelated to the adoption

of [N.J.S.A. 2C:44-1(b)(14)]."1 Nothing in this opinion precludes the court on

remand from amplifying its sentencing decision by considering whether the

sentence would be different accounting for the new mitigating factor. Cf. State

v. Canfield, __ N.J. Super. __, ___ (App. Div. 2022) (slip op. at 126).

      In sum, applying the three-pronged test adopted in Roth, we find that the

sentencing guidelines were not violated, the aggravating and mitigating factors

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

application of the guidelines to the facts of [the] case" did not "shock the

judicial conscience."  95 N.J. at 364-65. We therefore affirm the prison terms

imposed.


1
   The Court's recent decision in State v. Rivera, ___ N.J. ___ (2021), is
distinguishable. In Rivera, the Court had an independent basis to remand for
resentencing (the mistaken treatment of the defendant's youth as an
aggravating factor). Id. at ___ (slip op. at 10). Accordingly, the trial court
was permitted to apply mitigating factor fourteen. Here, we find no
independent basis to remand the prison terms imposed for resentencing.

                                                                          A-2155-19
                                       24
      We reach a different conclusion regarding the fine imposed.         Taylor

argues the trial court erred by not conducting an ability to pay hearing before

imposing the $10,000 discretionary fine on the robbery count.         We agree.

 N.J.S.A. 2C:43-3(a)(1) authorizes the imposition of a fine not to exceed

$200,000 upon conviction of a first-degree crime. However, the defendant

must be afforded "the opportunity to be heard respecting his ability to pay the

fine or to be heard as to the manner or method of payment." State v. Ferguson,

 273 N.J. Super. 486, 499 (App. Div. 1994) (citing State v. Newman,  132 N.J.
 159, 178-79 (1993); State v. De Bonis,  58 N.J. 182, 199-200 (1971)).

      We remand for the trial court to conduct an ability to pay hearing

pursuant to  N.J.S.A. 2C:44-2(a)(2) to reconsider the amount of the fine

imposed based on whether Taylor "is able, or given a fair opportunity to do so,

will be able to pay the fine[.]"2 "In determining the amount and method of

payment of the fine, the court shall take into account the financial resources of

the defendant and the nature of the burden that its payment will impose."


2
  The remand for the trial court to conduct a hearing on Taylor's ability to pay
the fine imposed, or the manner of payment, does not constitute resentencing
with respect to the prison terms imposed. "A fine or restitution is a separate
kind of sentence." Cannel, New Jersey Criminal Code Annotated, cmt.2 on
 N.J.S.A. 2C:43-3 (2021). "[ N.J.S.A.] 2C:44-2 provides criteria for imposition"
of a fine. Ibid. The statutory aggravating and mitigating factors do not apply
to the determination whether to impose a discretionary fine, and if so, the
amount thereof.

                                                                          A-2155-19
                                        25 N.J.S.A. 2C:44-2(c)(1). In doing so, the court shall also take into account the

real time consequences of the sentence imposed. We note that before applying

applicable credits, Taylor must serve more than fifteen years before being

eligible for parole. That said, we express no opinion on the amount of the fine

that is appropriate.

      On remand, the court shall also enter a corrected judgment of conviction

stating that aggravating sentence seven does not apply to count two .

      To the extent we have not specifically addressed any of Taylor's

remaining arguments, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed in part and remanded in part for further proceedings consistent

with this opinion. We do not retain jurisdiction.




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                                       26


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