STATE OF NEW JERSEY VS. KESAN TAYLOR (94-05-1811, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 24, 2017
• Docket: A-1602-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1602-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KESAN TAYLOR,

Defendant-Appellant.

Submitted July 12, 2017 – Decided July 24, 2017

Before Judge Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-05-1811.

Kesan Taylor, appellant pro se.

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kesan Taylor is presently serving a sentence of

life imprisonment, which was imposed after he was convicted of

the 1993 drive-by shooting death of Christina Mercado outside a Bloomfield restaurant. In this pro se appeal, defendant challenges

the trial court's May 21, 2015 denial of his motion to reduce his

sentence. We affirm.

We briefly recount the lengthy procedural history of this

case. Following a jury trial, defendant was found guilty of first-

degree murder, N.J.S.A. 2C:11-3a(1) and (2); third-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5b; second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4a; and third-degree receiving stolen property, N.J.S.A. 2C:20-7.

On November 18, 1994, defendant was sentenced to life imprisonment

with a thirty-year period of parole ineligibility.

On March 21, 1997, we affirmed the judgment of conviction in

an unpublished opinion. State v. Taylor, No. A-4670-94 (App. Div.

Mar. 21, 1997). Among other things, we rejected defendant's

contentions that his sentence was excessive and the trial court

improperly balanced the aggravating and mitigating factors. The

Supreme Court denied certification. State v. Taylor, 151 N.J. 464

(1997).

Defendant filed a petition for post-conviction relief (PCR)

on October 7, 1997. He asserted that trial counsel was ineffective

2 A-1602-15T4 for failing to move for a Wade1 hearing and to sever his trial

from that of the co-defendants, and that his sentence was illegal.

The PCR judge, who was also the trial judge, denied the petition,

and we affirmed. State v. Taylor, No. A-6268-98 (App. Div. Nov.

3, 2000), certif. denied, 167 N.J. 632 (2001).

Defendant thereafter filed a petition for a writ of habeas

corpus in the United States District Court for the District of New

Jersey pursuant to 28 U.S.C. § 2254, asserting numerous

constitutional and other violations with respect to his conviction

and sentence. The District Court denied the habeas petition,

Taylor v. Hendricks, No. 01-4283 (D.N.J. July 3, 2002), and an

appeal of that denial was dismissed for lack of appellate

jurisdiction. Taylor v. Hendricks, No. 02-3326 (3d Cir. Apr. 22,

2003).

According to defendant, in September 2013, he filed a pro se

motion challenging the constitutionality of his life sentence.2

Defendant subsequently retained counsel, who submitted a brief in

support of defendant's contention that the sentencing provision

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). 2 Defendant has failed to include this motion in his appendix, contrary to Rule 2:6-1(a)(1)(I), which requires the appendix to contain those parts of the record that are "essential to the proper consideration of the issues."

3 A-1602-15T4 of the murder statute, N.J.S.A. 2C:11-3b(1), is unconstitutional

because it permits widely disparate sentences that can range from

thirty years without parole to life imprisonment with thirty years

of parole ineligibility. Defendant sought to reduce his life

sentence to a term of thirty years without parole. Judge Richard

T. Sules denied the motion on May 21, 2015, on the basis that it

was time-barred and lacked merit. This appeal followed.

Defendant argues in a single point:

THE LAW DIVISION ERRED ON THE FACTS AND LAW AS THEY WERE PRESENTED TO DEMONSTRATE AN ILLEGAL AND UNCONSTITUTIONAL SENTENCE, THAT ALLOWS FOR UNEQUAL TREATMENT AMONGST SIMILARLY SITUATED DEFENDANTS IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS.

We have considered defendant's argument in light of the

record, the extensive procedural history, including prior

challenges to his sentence, and Judge Sules's written decision,

and conclude that it is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We add only

the following limited comments.

In his written opinion, Judge Sules noted that "[d]efendant

[] waited almost [nineteen] years after entry of his judgment of

conviction to file the motion" seeking a reduction in his sentence.

Rule 3:21-10(a) requires that a motion for reduction or change in

sentence be filed "not later than [sixty] days after the date of

4 A-1602-15T4 the judgment of conviction." While noting the exceptions contained

in Rule 3:21-10(b), which are not subject to the sixty-day time

limitation, the judge found that defendant's application did not

fall within any of the designated exceptions. Thus, the judge

properly found the motion was time-barred.

Turning to the merits, Judge Sules rejected defendant's

contention that N.J.S.A. 2C:11-3b(1) allows arbitrary and

capricious sentencing of similarly situated offenders and fails

to provide any guidelines to determine where a convicted

defendant's sentence should fall within the thirty-year to life

range. The judge noted that, in all such cases, the sentencing

court must assess the aggravating and mitigating factors set forth

in N.J.S.A. 2C:44-1(a) and (b) in fashioning an appropriate

sentence within the statutory range. Moreover, defendant had the

opportunity to challenge his sentence on direct appeal and in his

PCR and habeas petitions. As we have noted, the numerous courts

that have reviewed defendant's sentence have found it proper,

legal, and not excessive.

Affirmed.

5 A-1602-15T4