Bases for Aggravating Sentencing Factors (Part 2)

The 4-3 majority continued in relevant part: The trial court should have denied the State’s request to consider evidence relevant to those charges, and should not have opined about the defendant’s guilt with respect to those charges, while the charges remained pending. We caution courts not to consider evidence pertaining to charges as to which a jury deadlocked in sentencing unless and until the defendant no longer faces the prospect of prosecution for those charges.

Second, the trial court’s reliance on Watts was misplaced. In Watts, which involved a sentencing court’s reliance on evidence presented as to a charge on which the defendant was acquitted, the United States Supreme Court did not confront the deadlocked-jury issue raised by this case.

We concur, however, with the Appellate Division’s view that the evidence pertaining to charges on which the jury deadlocked was not dispositive in defendant’s sentencing. Indeed, when it found aggravating factor three, the trial court did not refer at all to those charges. When the court found aggravating factors six and nine, it emphasized other factors such as defendant’s prior record, the failure of prior probationary sentences to deter defendant, the serious nature of the offenses of which defendant was convicted, and the State’s strong policy to protect the public with strict gun control laws. Although the trial court should have declined to consider defendant’s conduct in the charges that did not lead to a conviction unless the State moved to dismiss those charges prior to the imposition of sentence, the court’s reliance on such conduct as one of several factors supporting two of the three aggravating factors does not warrant resentencing.

A reason for the majority’s “cautioning” is that if the State brings a new trial for the deadlocked charges, there should not be a record of the trial court opining that there is strong evidence in favor of convicting.

The Court is supposed to be impartial during the subsequent trial until it hears all of the evidence anew.