State v. Jones and the Defendant’s Right to Speak at Sentencing

A defendant has the right to address the court at sentencing.  Such statements are offered in mitigation of punishment, and typically include acceptance of responsibility and/or some showing of remorse for the underlying conduct.  The New Jersey Supreme Court recently addressed the parameters of this right in State v. Jones.  As the Court noted, there is relatively little case law on this issue, so the guidance offered by this opinion is valuable and worth a comment.

Briefly, Jones and a co-defendant  were charged with the robbery of a woman and her daughter in a park in New Brunswick.  Jones subsequently pleaded guilty to first degree robbery and a second degree certain-persons-not-to-have-weapons charge.  The State’s sentencing recommendation was 15 years with an 85% parole disqualifier subject to the No-Early-Release Act, with a concurrent 7-year sentence on the certain persons charge.  At the sentencing hearing, defense counsel asked the Court to correct the pre-sentence report to note that the gun was unloaded at the time of the robbery, and to honor the plea agreement and sentence Jones in accordance with the State’s recommendation.  The Court then asked Jones if he wanted to speak.  Jones stated that the was “a hundred percent guilty” of the offense, but was not sorry for what he did.  The sentencing judge then stated “You’re not sorry?”, to which Jones replied that the victim was not the target, and then stated “Other than that, then that’s it.”  The Court then asked the State if it wished to be heard, and the prosecutor stated that the victim was “the intended target once [Jones changed] his mind in the park.”  Jones then asked to be heard again, but the Judge denied his request.

Jones did not appeal, but instead filed a pro se motion for post-conviction relief.  His issues were eventually disposed of by an excessive sentencing panel which held, among other things, that the sentencing court did not violate Jones’s right to allow him to speak at his own sentencing.  The Supreme Court granted certification to review this claim.

The Court began its analysis by noting that this right is fixed by court rule, and that a matter will be remanded for re-sentencing without any showing of prejudice if the sentencing judge fails to allow the defendant to speak at the sentencing hearing.  The Court observed further that most of the case law on this issue came from capital cases, and that there were relatively few decisions from other settings.  However, the existing cases and rules establish that only defendants and victims or survivors can speak at sentencing.  Whether and to what extent others can speak is discretionary with the sentencing judge who should, in turn, place reasons on the record concerning their exercise of that discretion.

The result here apparently turned on the fact that the remarks that Jones wanted to address were either previously revealed to him or his counsel in the discovery, pre-sentence report, or both.  His request to respond after the State spoke was appropriately denied because the remarks were not truly new substantive material.  The Court did state, however, that a defendant should typically be allowed to respond after the State has concluded its sentencing presentation if that presentation contains new substantive material.  Additionally, a sentencing judge’s decision to allow a response from a defendant at this juncture should be guided by the following factors: (a) whether or not a defendant has already spoken; (b) whether the defendant interrupted, or was abusive; and (c) whether the defendant can say something that responds to the new substantive material.  Thus, a decision to allow the defendant to respond after the State has spoken was left to the sentencing judge’s discretion, and the judge should place the reasons for their decision on the record.  On the record before the Court, it did not appear that the State raised new material, so the request to respond to the State’s remarks was appropriately denied.

This case raises several noteworthy points.  First, it is generally a good idea for a defendant to address the court at sentencing, if only to apologize and accept responsibility.  Failure to do so will probably result in the Judge making a finding on the record that the defendant has failed to express any remorse, which obviously cannot help the defendant in any way.  Further, defense counsel should review the defendant’s statement with them before they make it.  Even though there is no guarantee that the defendant will ultimately say what they discuss with counsel, the latter should at least make the effort.  It is also a good idea to ask the prosecutor about what they plan to present at sentencing prior to the hearing so that the most effective response can be formulated.

James S. Friedman, Esq., is a criminal defense attorney based in Middlesex County, New Jersey.  Mr. Friedman represents individuals charged with offenses in all New Jersey municipal courts, the Superior Court of New Jersey in all counties, the New York State criminal courts located in New York City, and the United States District Courts in New Jersey and New York City.


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