The Appellate Division continued in relevant part: We recognize that “the benefit a defendant receives when passion/provocation is established is not an outright acquittal rather, a homicide that otherwise would be first-degree murder is mitigated to manslaughter.” State v. Canfield (App. Div. 2022). But see Carrero (“We find that the trial testimony presented a rational basis on which the jury could acquit defendant of murder but convict him of passion/provocation manslaughter.”). The jury’s verdict precluded the court from finding defendant “was not reasonably provoked to passion” and had sufficient time to cool-off as part of its sentencing analysis.
Melvin recognized the Court had never previously considered whether acquitted conduct could be considered at sentencing and announced a new rule of law. We conclude the new rule adopted in Melvin should have at least pipeline retroactivity, “rendering it applicable in all future cases, the case in which the rule [was] announced, and any cases still on direct appeal.” State v. Cummings (2005).
The trial court erred when it made findings inconsistent with the jury’s verdict. These findings were used when analyzing whether aggravating factor one applied and the weight it was afforded. We therefore conclude that resentencing is necessary and direct the trial court to reconsider this factor based on appropriate criteria. See State v. Dalziel (2005) (stating that if the “proper legal principles have not been applied or the facts found by a judge are not supported by the record, it is not for us to agree or disagree with the sentence; it is for the judge to resentence, applying the correct sentencing guidelines to the facts of record”). On remand, the court shall not consider the degree of provocation or whether defendant had sufficient time to cool off.
Appellate Courts will sometimes remand to a different trial judge for sentencing. That mitigates the risk that a judge who was unhappy about being reversed will find another way to impose the same sentence. Doing so often leads to another round of appeals and a waste of time and resources.
