Recently, the NJ Supreme Court decided State v. Miller, 2019 WL 692302 (Feb. 20, 2019). Miller arose from a sentencing appeal. In that case, the Monmouth County trial court found a defendant guilty of both Distribution and Possession of Child Pornography after a bench trial. The judge sentenced the defendant to 7 years in prison for Distribution of Child Porn and 1 year for Possession of Child Porn.
The defendant, Miller, appealed his sentence and raised two arguments. Miller argued that his sentence was excessive. In particular, he reasoned that the trial court should not have applied a specific aggravating factor. If the court had not applied Aggravating Factor #1, Miller felt his sentence may have been shorter.
In NJ, before a judge sentences a defendant, the judge considers whether “aggravating” and “mitigating” factors apply. Judges consider 15 aggravating factors and 13 mitigating factors. The trial court judge determines which factor apply. The applicable factors are weighted and impact a defendant’s sentence. This includes whether a defendant is sentenced to prison and the length of the sentence imposed. When a judge is sentencing a defendant in child porn cases, the finding of these factors becomes very important.
Sentencing Issue Before NJ Supreme Court:
While the defendant raised two issues on appeal, this post focuses on the defendant’s argument that the trial judge should NOT have found and applied Aggravating Factor #1.
Aggravating factor #1 states:
(1) The 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; . . .
See N.J.S.A. 2C:44-1(a)(1)
To assess whether this factor applies, the sentencing judge reviews the “severity” of the crime. In the case at bar, the Monmouth County judge stated that the images involved “extremely young children” and were “heinous, cruel, and depraved.” Thus, the trial court judge applied Aggravating Factor #1.
Defendant’s Argument About “Double Counting”
In Miller, the defense’s arguments are as follows:
The judge erred in applying Aggravating Factor #1. To do so, is “double counting,” which is prohibited. Double counting is when a judge cites an element of an offense as an aggravating factor to increase punishment.
The crime of Possession and Distribution of Child Pornography is within the statute of Endangering the Welfare of a Child, N.J.S.A. 2C:24-4. Child porn offenses require the victimization of a child as an element of the offense. Therefore, the judge erred in citing the youth of the children (i.e., an element of the offense) for grounds in finding Aggravating Factor #1. This constitutes impermissible “double-counting.”
NJ Supreme Court’s Holding:
The Court concluded that the trial judge appropriately considered the victims’ ages when applying Aggravating Factor #1.” The Court held that “the extraordinary brutality depicted in defendant’s pornography demonstrated that his possession and distribution of such content extended to the extreme reaches of the behavior prohibited by N.J.S.A. 2C:24-4.”
NJ Supreme Court’s Reasoning:
In support, the Court cited to another case, State v. Taylor. 226 N.J. Super. 441 (App. Div. 1988). In Taylor, the defendant was convicted of having sexual contact with his four year old niece. In that case, the court held that the trial court properly applied Aggravating Factor #1 in the defendant’s case. Taylor was convicted of a sexual assault. An element of the offense included sexual contact with a victim (who was less than 13). In Taylor’s case, the court distinguished the age of the victim. The victim was much younger than the age cut off specified in the statute. Therefore, the Appellate Division concluded that the trial court can consider the extreme youth of the victim. As a result, a trial court may apply Aggravating Factor #1 if the victim is extremely young.
In the Miller case, the Court used similar logic. The court stated that while the statute contains an age element, “[the] element did not preclude consideration of the victims’ ages for sentencing purposes because it did not distinguish between a 16-year old girl who sends an explicit photo to her 15 year old boyfriend and an individual who acquires violent CP involving the sexual assault of toddlers.”
Importance of Quality Representation at Sentencing in Child Porn Cases:
If you are charged with a sex offense, it is crucial to get effective legal representation. Skilled legal representation is critical in all stages of a sex offense case. However, it is often overlooked at sentencing.
At Maynard Law Office, LLC, our attorneys specialize in sex offense matters. We also understand the importance of high quality representation at sentencing. Our lawyers first review the discovery in a client’s case. Then, our legal team presents the most compelling arguments in a persuasive sentencing memorandum. We marshal all the resources available in a client’s case to try to achieve the best possible outcome at sentencing.
Call us today at (973)-540-0054 for a free consultation!
