New Jersey v. Jones

Annotate this Case

In 2012, Defendant Donnell Jones 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. At sentencing, 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 prosecutor finished 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. 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. Defendant petitioned the New Jersey Supreme Court to review his claim that his right to allocute and present mitigating information was violated. Finding no reversible error, the Supreme Court affirmed his sentence.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Donnell Jones (A-53-16) (078793)

Argued January 2, 2018 -- Decided March 22, 2018

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
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.

2
SUPREME COURT OF NEW JERSEY
A-
53 September Term 2016
078793

STATE OF NEW JERSEY,

Plaintiff-Respondent,

DONNELL JONES,

Defendant-Appellant.

Argued January 2, 2018 – Decided March 22, 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).

JUSTICE LaVECCHIA delivered the opinion of the Court.

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

1
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.

2
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-

3
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. The following exchange occurred:

DEFENDANT: First of all, I am guilty of –
- of my crime, a hundred percent guilty. Am
I sorry for what I did? No. I’m not.

THE COURT: You’re not sorry?

DEFENDANT: 'Cause it -- it was not
supposed to even happen to her. That was not
-- she was not the -- the target that this was
happening to. You know --

THE COURT: Please, close the door. Close
the door, please. I’m on the record.

Go ahead.

DEFENDANT: This was -- you know, me --
it’s hard out there for me finding a job.
Okay. With my record, it was -- that -- that’s
one of the reasons why I did what I did. I
needed money and I needed it fast. Okay. Like

4
I said, I’m sorry it happened to her. It was
not supposed to happen to her.

THE COURT: What do you mean it wasn’t
supposed to happen to her?

DEFENDANT: She --

THE COURT: You did it to her.

DEFENDANT: Right. It was -- she was not
the target. She -- this was -- this was not
supposed to happen to her. It really was not.

THE COURT: Okay.

DEFENDANT: Other than that, then that’s
it.

The court then turned its attention to the State, allowing

the prosecutor to make her final remarks before sentencing

defendant:

THE COURT: Prosecutor?

[PROSECUTOR]: Judge, that’s unbelievable to
me because he and Ms. Drew picked the target.
They sat in a park and picked the target.
Originally -- he did say in his statement
originally he was going to rob a business, a
convenience store or some type of business.
He switched targets.

THE COURT: Yes.

[PROSECUTOR]: He -- she is the intended
target once she -- he changes his mind in the
park.

DEFENDANT: Can I say something?

THE COURT: No.

[PROSECUTOR]: But be that as it may, this was
an intentional act. He brandished a gun.

5
Although he didn’t say he pointed it at her.
He said he just took it out and just showed it
to her. He pointed it at her, according to
the victim’s statement. She’s there and a
three-year-old -- her three-year-old daughter
is on the swing set with her and she was
afraid. And at gunpoint, he takes -- well, he
and Ms. Drew. I think Ms. Drew actually got
the money and the ring, the woman’s wedding
ring. And then Ms. Drew flushed it down the
toilet. He demanded the money, according to
his statement, and it was given to Ms. Drew.
And they walked away. And --

THE COURT: They took money and her wedding
ring?

[PROSECUTOR]: Yeah.

THE COURT: Yes. Right.

[PROSECUTOR]: Um-hum. Twenty dollars and her
wedding ring, Your Honor.

THE COURT: Right.

[PROSECUTOR]: And there was a little girl
sitting there on the swing set. This is a
serious act. And as far as we’re concerned,
there was really more than one victim, the
three-year-old and the mother --

THE COURT: Thank you.

[PROSECUTOR]: -- who were innocent victims
just playing in a park when this happened to
them. It’s an armed robbery . . . .
[Defendant] had a serious record, five prior
indictable convictions making him extended
term eligible and disorderly persons
convictions. And to say that he needed money
and, therefore, it’s okay to rob anyone, much
less whether it was originally her that was
the intended victim or a business is
unbelievable to me. That shows that there’s
a risk he will commit another offense, because
he seems to be saying it would be okay if he

6
robbed a business instead of this woman and
her kid on the swing set, which again, an armed
robbery is an armed robbery. So any armed
robbery is bad. So he seems to be sort of
justifying it by saying, he needed money and
because he has a prior record . . . . To
justify trying to rob people, anyone, by
saying, well, I have a bad prior record and
therefore I can’t get a job, so I have to rob
people is just unbelievable -- an unbelievable
rationalization. So we would ask that Factors
3, 6, and 9 apply to this defendant, no
mitigating factors.

THE COURT: Yes.

[PROSECUTOR]: And that he be sentenced to the
fifteen years with eighty-five percent. He
was looking at twenty to life. This is a
generous offer. Thank you.

[(emphasis added).]

Defendant did not speak again nor did he or his counsel ask

to speak again.

The court then turned to defendant and made the following

statement before imposing sentence:

I am sentencing the defendant on his sixth and
seventh Superior Court convictions. I’m
shocked by what the defendant said today that
he is not sorry because she wasn’t the target.
I guess he intended to have a business or
somebody else be the target, but since he
couldn’t get a job and he needed money, that’s
a justification for what he did. And I’m sure
that that’s no solace to the victim or the
fact that the gun wasn’t loaded. She
certainly didn’t know that. This poor victim
with her three-year-old child was robbed at
gunpoint by this defendant. I can only
imagine how frightening that was for her. I
don’t know what the defendant was thinking
when he did it. Obviously he wasn’t thinking

7
and he’s learned nothing from his prior
record, conviction, sentences.

The court found three aggravating factors to be applicable:

three, the risk that defendant will commit another offense,

N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant’s prior

record,
N.J.S.A. 2C:44-1(a)(6); and nine, the need for deterring

defendant and others from violating the law,
N.J.S.A. 2C:44-

1(a)(9). The court found no mitigating factors. See
N.J.S.A.

2C:44-1(b).

The court sentenced defendant to fifteen years’

imprisonment for first-degree armed robbery, subject to an

eighty-five percent parole ineligibility period pursuant to the

No Early Release Act,
N.J.S.A. 2C:43-7.2(a), and five years’

parole supervision. On the charge of second-degree certain

persons not to have weapons, the court imposed a concurrent

sentence of seven years’ imprisonment subject to five years of

parole ineligibility. 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 due to his attorney’s failure to file a

notice of appeal. After navigating through the PCR trial and

appellate processes, defendant’s sentencing issues were

8
addressed at an excessive sentencing oral argument (ESOA) on

December 14, 2016.1 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. The panel remanded the matter for entry of a

corrected judgment of conviction to reflect the jail credit and

gap-time credit that defendant and the State had agreed was

correct.

Defendant petitioned this Court to review his claim that

his right to allocute and present mitigating information was

violated. We granted his petition.
229 N.J. 617 (2017).

II.

1 See State v. Jones,
446 N.J. Super. 28, 30–31 (App. Div.),
certif. denied,
228 N.J. 72 (2016). The PCR court rejected
defendant’s petition, but the Appellate Division reversed and
exercised original jurisdiction over the matter to permit
defendant to file a notice of appeal. Id. at 37–38. The
State’s petition for certification to this Court was denied.

228 N.J. at 72. Defendant’s sentencing arguments thus come to
us via an atypical route.
9
Defendant seeks to have his sentence set aside and the

matter remanded for resentencing. He argues that the trial

court abused its discretion by preventing him from responding to

the prosecutor’s comments and by not providing a reason for the

denial of that opportunity. Although not raised before the

trial court, defendant contends that he was not allowed an

opportunity (1) to address his motivation and (2) to respond to

asserted new substantive comments by the prosecutor in her

remarks.

Defendant premises his argument on the assertion that the

right to allocution serves mitigating purposes, promotes

fairness in the justice system, and provides a holistic effect

that betters both the defendant and the victim. According to

defendant, in order for the beneficial purposes of allocution to

be served, the right must be construed liberally, and a

sentencing court should be required to provide a reason whenever

it denies a person an opportunity to address the court.

Further, he maintains that a court should grant defendants

sufficient time to speak unless there are “legitimate, and well-

explained, reasons for not doing so.” He argues that, “when a

defendant is not afforded the opportunity to present mitigating

information, and the purposes of allocution are not served, a

new sentence is required without the need to show any

prejudice.”

10
Defendant concedes that the right to allocution can be

reasonably restricted and that a court may prohibit a defendant

from “rambling” or from addressing irrelevant information, but

he asserts that a court must allow a defendant a meaningful

opportunity to address the court concerning information that is

sufficiently important. He maintains that the full scope of the

right is unclear in this state and that neither case law nor

court rules have specified exactly when a defendant is allowed

to speak, how much a defendant is allowed to say, or when the

sentencing court may prohibit a defendant from speaking.

In sum, defendant contends that, because he was deprived of

an opportunity to speak after the prosecutor’s remarks without

any justification or explanation by the sentencing court, the

prosecutor was able to “take control” of defendant’s allocution

and use his own comments against him. Hence, defendant claims

that a remand for resentencing is necessary in these

circumstances and that he should not be required to demonstrate

that he was prejudiced.

The State argues that a defendant’s right to speak at

sentencing is subject to reasonable limitations left to the

trial court’s discretion and that the trial court did not abuse

its discretion here. The State cites to a number of cases,

albeit arising in capital sentencing settings, to support its

11
argument that the right of allocution is “narrowly-defined,” is

of a “limited scope,” and is subject to the court’s supervision.

According to the State, in exercising such a “narrow right,” a

defendant is not “permitted to rebut any facts in evidence, to

deny his guilt, or indeed, to voice an expression of remorse

that contradicts evidentiary facts.”

The State maintains that, here, defendant exercised his

right of allocution. He had an opportunity to “make a full and

fair statement to the court.” According to the State, it was

therefore within the trial court’s sound discretion, in its

exercise of control over the proceedings, to refuse to allow him

to interrupt and speak again while the prosecutor was addressing

the court.

The State’s position starts from the baseline that a trial

court’s role in sentencing is to identify relevant aggravating

and mitigating factors that are supported by the record. The

State argues that because defendant already had provided a full

statement to the court, his second attempt to speak presumably

would have been merely an attempt to dispute the prosecutor’s

factual assertions and spin facts for his benefit. Thus, in the

State’s view, a second opportunity for defendant to speak would

not have contributed to the court’s consideration of aggravating

and mitigating factors.

12
To the extent that the purpose of allocution is to give the

defendant a chance to express remorse and to appeal for mercy,

the State further argues that defendant made clear that he was

neither remorseful nor seeking mercy: He admitted he was “a

hundred percent guilty” and stated that he was not sorry for

what he did.

Finally, the State emphasizes that defendant received the

sentence bargained for and therefore suffered no prejudice.

III.

Fairly recently, we underscored the discretion reposed in

the judges who are called on to preside over criminal sentencing

proceedings. In State v. Tedesco,
214 N.J. 177, 188-89 (2013),

we stated that “[i]n our system of justice, we entrust trial

judges with the responsibility to control courtroom proceedings

at trial and sentencing.” The trial court is and must be the

master of the courtroom in such a setting.

The trial court is tasked with the important responsibility

of maintaining the dignity and fairness of a sentencing

proceeding while balancing the interests of all who are affected

by the sentencing of a defendant. An appellate court’s review

of a sentencing court’s imposition of sentence is guided by an

abuse of discretion standard. See State v. Robinson,
217 N.J.
594, 603 (2014) (citing State v. Roth,
95 N.J. 334, 364–65

(1984), and State v. Blackmon,
202 N.J. 283, 297 (2010)). “A

13
judge’s discretion in that area is bounded by the law and court

rules.” Tedesco,
214 N.J. at 189.

With respect to a criminal defendant’s right to speak at

sentencing, the right to allocution in New Jersey is fixed by

court rule. Rule 3:21-4(b) guides the sentencing courts and

provides:

Sentence shall not be imposed unless the
defendant is present or has filed a written
waiver of the right to be present. Before
imposing sentence the court shall address the
defendant personally and ask the defendant if
he or she wishes to make a statement in his or
her own behalf and to present any information
in mitigation of punishment. The defendant
may answer personally or by his or her
attorney.

Our case law recognizes that a defendant’s right to

allocute arose from the common law. State v. DiFrisco,
137 N.J.
434, 478 (1994) (citing State v. Zola,
112 N.J. 384, 428–29,

431–32 (1988) (noting common law origin and that right does not

have recognized federal or state constitutional roots)). The

right of allocution allows a criminal defendant “to present to

the [sentencer] his plea in mitigation” because, as courts have

recognized, “[t]he most persuasive counsel may not be able to

speak for a defendant as the defendant might, with halting

eloquence, speak for himself.” Zola,
112 N.J. at 428 (quoting

Green v. United States,
365 U.S. 301, 304 (1961) (plurality

opinion)). Thus, when a trial court fails to afford a defendant

14
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. State v. Cerce,
46 N.J. 387, 396–

97 (1966) (noting that, on direct appeal, appellate court may

remand for resentencing without showing of prejudice when

defendant’s right to allocute has been denied); see also State

v. Hester,
192 N.J. 289 (2007) (remanding summarily for

resentencing where right of allocution was denied).

Most of this state’s law on allocution has come in the

context of capital cases. In that setting, we referred to

allocution as a “narrowly-defined” right, and as 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.” Zola,
112 N.J. at 431–32. In

DiFrisco, we acknowledged a two-fold purpose: “First, it

reflects our commonly-held belief that our civilization should

afford every defendant an opportunity to ask for mercy. Second,

it permits a defendant to impress a jury with his or her

feelings of remorse.”
137 N.J. at 478 (citing Zola,
112 N.J. at
430–31). In the freighted context of facing imposition of a

capital sentence, we acknowledged that a defendant’s allocution

right is limited to explaining to the jury that he or she is

worthy of having his or her life spared:

15
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.”

[Id. at 477 (quoting Zola,
112 N.J. at
430).]

There is not much case law in this state on the parameters

of allocutions in non-capital settings. In a different setting

relating to who, other than the defendant, may speak before the

court imposes sentence, we cautioned against importing concepts

from the “unique setting” of a capital case into “ordinary

sentencing proceedings.” Blackmon,
202 N.J. at 303-04 (noting

that justification for allowing defendant’s family members to

plead for mercy in capital cases did not apply to ordinary

sentencing proceedings).

In Blackmon, we established that, “other than defendants,

and crime victims or their survivors, there is no absolute right

to speak at a sentencing proceeding.” Id. at 305. We 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. In so holding, we

expressed the concern that denying a request to speak without

16
providing a reason for the denial could create “the appearance

that the proceeding was arbitrary or unfair.” Id. at 305-06.

Ultimately, Justice Hoens, writing for the Court, instructed

that judges should use their discretion in a manner that

“ensure[s] that the proceedings themselves bear the hallmarks of

fairness.” Id. at 306.

It is against that limited backdrop that we approach the

question of the fairness of defendant’s sentencing process and

his claim of infringement on his right to allocute.

IV.

In the matter before the Court, 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. He

did not raise the issue before the trial court after the

prosecutor finished speaking or in the form of a post-sentencing

application. Moreover, on appeal, defendant has never offered a

sworn statement -- or any statement for that matter --

indicating what he claims he would have said after the

prosecutor spoke. The lack of any record is a fatal flaw in

defendant’s arguments. See State v. Robinson,
200 N.J. 1, 20

(2009) (noting “the obvious need to create a complete record and

to preserve issues for appeal”).

17
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. Defendant faults the trial court

for not making inquiry of him at that point, but we see no abuse

of discretion in the face of the silence from defendant and his

counsel. See State v. Perry,
124 N.J. 128, 163 (1991) (“Our

analysis of the duties of a trial judge must be 'seasoned by a

degree of deference to defense counsel’s strategic decisions.’”

(quoting State v. Marshall,
123 N.J. 1, 92 (1991))).

All we have is appellate counsel’s argument that defendant

was denied an opportunity to address purported new substantive

material covered by the State in its presentation. 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. See, e.g., Shifflett v. State,
554 A.2d 814,

817 (Md. 1989). Those out-of-state cases, defendant contends,

comport with the well-recognized purposes of allocution in this

state. No doubt, the rationale of allowing a defendant to

respond to new substantive material fits within the hallmarks of

what constitutes a fair sentencing proceeding. However, that

18
well-constructed argument by appellate counsel is unavailing on

the facts of this case.2

The State represented in oral argument before this Court

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

by the sentencing court, prior to the court’s proceeding with

the sentencing. There simply was no surprise information raised

for the first time by the prosecutor in her remarks, we are

informed. Appellate counsel for defendant, who was not trial

counsel, was unable to rebut the State’s representation to the

Court.

We have no reason not to accept the State’s representation

as true and accurate.3 We accept that nothing new was being

raised, so defendant’s theoretical claim about a need to

“address new material” is not applicable here. Moreover, if

defendant wished to say something that somehow addressed

2 Defendant also asks that we revisit whether the denial of the
right to allocution constitutes a due process violation. We
decline to revisit that issue here.

3 Importantly, we are aware that we are considering this
argument in the context of an appeal that has come by way of the
appellate excessive sentence oral argument route, with its
limited record on appeal.
19
mitigation after he heard the State’s remarks, he had an

obligation to make a record to support that claim. We still do

not know what defendant asserts he wants to add. On a cold

transcript, all we see is defendant’s and his counsel’s silence

at the close of the State’s remarks. We trust that the trial

court judge, who is in control of the courtroom and views the

proceedings, is aware of any non-verbal communication that may

have been evident between the two. As noted earlier, defendant

was extended-term eligible and he negotiated a plea that avoided

the imposition of an extended term.

Defendant’s appellate problem is generic to any defendant

who has not made a record before the trial court. The onus is

on defendant to make his record to support an issue to be

pursued on appeal. Defendant should have done that while before

the trial court -- if not during the sentencing proceeding, then

at the very least on a post-sentencing application. See

Robinson,
200 N.J. at 20. We will not remand a matter on

supposition when even now we have not heard what it is that the

defendant was prevented from telling the sentencing court after

the State’s final remarks.

That said, because defendant interrupted the State’s

remarks earlier, it would have been helpful for the sentencing

court to have closed out the proceeding, before imposing

sentence, by asking defendant whether there was anything he

20
wanted to add. See, e.g., State v. Yates,
958 N.E.2d 640, 642,

644-45 (Ohio Ct. App. 2011) (remanding for determination of

whether information introduced during allocution was truly new

information due to lack of record on subject). Here, we would

have the trial court’s perspective on whether the information

raised by the State was new substantive material. From an

appellate review perspective, that would be preferable.

But defendant’s claim about “new material” falls short

here. We will not presume error. On the record that we do

have, there is no basis to find an abuse of discretion in the

sentencing court’s handling of this sentencing proceeding. See

Tedesco,
214 N.J. at 188-89.

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.

See, e.g., Shifflett, 554 A.2d at 817 (requiring as part of

right to allocution that defendant be allowed “to respond to the

new substantive remarks of the prosecutor”); Yates,
958 N.E 2d

at 644 (requiring as part of right to allocution that defendant

21
be allowed to address new information “introduced and considered

by the trial court at sentencing”). 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.

In leaving such matters to the sound discretion of the

sentencing court, we caution 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.

To summarize, here the trial court honored defendant’s

right to make his allocution. If defendant wished to have the

court permit him to respond to the State’s final remarks before

the imposition of sentence, it was incumbent on defendant to

place that request on the record. In order to convince the

sentencing court that new substantive material was being raised,

22
defendant should have made a record on that point. He did not.

Defendant’s assertion, rebutted by the State, that the

prosecutor’s remarks plowed new substantive ground deserves no

weight. With a properly developed record, we would expect a

sentencing court to give a reason for denying a defendant an

opportunity to respond to demonstrated new material. We

reaffirm that the court has the right to control its courtroom

and to move the proceeding forward to conclusion.

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.

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