Justice Fernandez-Vina continued in relevant part: The Appellate Division reversed and remanded Miller’s sentence. The panel concluded that the trial court “engaged in impermissible double-counting,” reasoning that “by its nature, child pornography inherently is especially heinous, cruel and depraved, and Miller’s possession and distribution of it in this case was no different.” 449 N.J. Super. 460, 476 (App. Div. 2017). The panel asserted that, “under the specific facts presented” in this case, Miller’s convictions for fourth-degree possession of child pornography and second-degree distribution of child pornography should have been merged. Id. at 477. The panel opined that Miller’s “crimes were reasonably proximate in time and place, and Miller’s use of the file-sharing programs was a necessary ingredient and an integral part of both his possession” and his distribution of the child pornography. The panel ultimately affirmed Miller’s conviction but remanded the matter, directing the trial court to re-sentence him without consideration of aggravating factor one, and to merge count one with count two. The New Jersey Supreme Court granted the State’s petition for certification. 234 N.J. 1 (2018).
The Appellate Division’s opinion deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. Miller’s possession charge involved child pornographic material beyond that involved in his distribution charge — there was pornographic material in Miller’s possession for an extended period of time that was not encompassed in the distribution charge. The possession and distribution offenses were therefore distinct, and the trial court appropriately determined that the offenses did not merge for sentencing purposes.
Aggravating factor one requires the trial court to consider “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.” N.J.S.A. 2C:44-1(a)(1). When it assesses whether a defendant’s conduct was especially “heinous, cruel, or depraved,” a sentencing court must scrupulously avoid double-counting facts that establish the elements of the relevant offense. The Court has recognized that facts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence. Nevertheless, a sentencing court may consider aggravating facts showing that a defendant’s behavior extended to the extreme reaches of the prohibited behavior. Thus, in appropriate cases, a sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense.
The ”possession for an extended period of time” language is likely to be seized upon by the prosecution. It lends itself to the argument that in cases of drug distribution and drug possession that the defendant can receive consecutive sentences if he distributed certain drugs, but possessed others for an extended period of time. On the other hand, Miller’s case involves separate and tangible victims whereas drug distribution and possession does not.