NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5261-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BOMANI P. KUBWEZA, a/k/a JOHNNIE PRESTON, TRAVIS LOVETTE, and JO-JO MALIK,
Defendant-Appellant. _________________________
Argued October 13, 2020 – Decided November 5, 2020
Before Judges Sabatino, Currier, and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-11-3944.
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; James K. Smith, Jr., of counsel and on the briefs).
Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Frank J. Ducoat, of counsel and on the brief).
PER CURIAM
This is another appeal that contends a long-term adult prison sentence
imposed on a juvenile offender violates the Eighth Amendment of the United
States Constitution. As such, the appeal implicates a series of Eighth
Amendment precedents on this subject issued in recent years by the United
States Supreme Court, including Miller v. Alabama, 567 U.S. 460 (2012), as
well as the New Jersey Supreme Court's opinion in State v. Zuber, 227 N.J. 422
(2017), applying those constitutional principles.
Defendant committed felony murder as a seventeen-year-old juvenile in
1985 and then murdered a second victim as an adult in 1986. The respective
sentencing judges in the two cases imposed consecutive prison terms that
resulted in an aggregate parole ineligibility period of sixty years.
Defendant, who has already completed one of the thirty-year parole bars,
filed a motion to correct an allegedly illegal sentence. He sought to make the
consecutive prison terms concurrent. He argued his lengthy combined sentence
is the functional equivalent of life without parole and thus violates the Eighth
Amendment under Miller and Zuber.
A-5261-17T4 2 Although the motion judge expressed misgivings about the severity of the
aggregate sixty-year period, he concluded the law requires the two sentences to
remain consecutive. Defendant now appeals that decision.
For the reasons that follow, we remand for further resentencing because
the motion judge incorrectly presumed he had no legal or constitutional
authority to modify defendant's aggregate sentence in a manner that would
reduce the sixty-year combined parole bar. On remand, the court should follow
the Supreme Court's constitutional mandate in Zuber to apply a "heightened
level of care," 227 N.J. at 449-50, when imposing lengthy consecutive sentences
on juvenile offenders who have committed multiple offenses.
I.
In January 1985, defendant Bomani Kubweza (known at the time as
Johnnie Preston), who was then age seventeen, robbed and killed Carl
Davis. The following year in April 1986, defendant, who was by that point an
eighteen-year-old adult, took part in a robbery and felony murder of a different
victim, Luis Martinez.
A-5261-17T4 3 The police learned about defendant’s commission as a juvenile of the
earlier killing of Davis in the course of investigating the Martinez homicid e.
The court waived defendant to be prosecuted in the adult court for the Davis
homicide. The two cases were tried before different juries, with the Martinez
(adult offense) case going first.
The first jury convicted defendant of all charges in the Martinez case. In
February 1987, Judge Joseph A. Falcone imposed on defendant for the felony
murder a thirty-year mandatory minimum sentence with a mandatory thirty-year
parole disqualifier pursuant to N.J.S.A. 2C:11-3(b), plus a concurrent sentence
on weapons charges. The other counts merged. The convictions and sentences
for these adult offenses were upheld on direct appeal and the Supreme Court
denied certification. State v. Preston, No. A-3687-86 (App. Div. Feb. 24, 1989),
certif. denied, 117 N.J. 142 (1989). Three ensuing petitions for postconviction
relief were unsuccessful.
The second jury found defendant guilty of the murder of Davis and other
charges stemming from the 1985 offenses he had committed as a juvenile. In
May 1987, Judge John J. Dios sentenced him to a life term for the murder, with
a mandatory thirty-year parole disqualifier. Judge Dios made that thirty-year
sentence consecutive to the thirty-year sentence that defendant had received for
A-5261-17T4 4 the adult 1986 offenses. All other counts merged. These convictions and
sentences in the Davis matter were similarly upheld on direct appeal, and the
Supreme Court denied certification. State v. Preston, No. A-5225-86 (App. Div.
Dec. 22, 1988), certif. denied, 114 N.J. 515 (1989).
While in prison for the past three decades, defendant has had a mixed
disciplinary record, most notably several assault and drug infractions. Most
recently, he had infractions in 2014 for security threat group involvement and
assault, and in 2017 an infraction for fighting. Defendant has been housed in a
higher-security management control unit. On the other hand, defendant has
completed several courses and programs in prison and earned his GED. He has
a son in Florida who is willing to provide him with a home if he were released,
as well as other supportive relatives.
Following Miller v. Alabama and other opinions recognizing that the
Eighth Amendment can prohibit very lengthy prison terms imposed on juvenile
offenders that are the practical equivalent of life without parole ("LWOP"),
defendant moved in December 2016 to reduce his sixty-year aggregate term,
arguing it is unconstitutional.
A-5261-17T4 5 Before his motion was heard, the New Jersey Supreme Court in 2017
issued its opinion in Zuber, applying the “Miller youth factors” to a defendant
who had a fifty-five-year parole disqualifier. 227 N.J. at 445-48. A key facet
of Zuber instructs our courts to apply “a heightened level of care” when
imposing consecutive sentences on juvenile offenders who have been waived to
adult court. Id. at 450. In particular, Zuber instructs that courts must bear in
mind the Miller youth factors and the "real-time consequences" when applying
upon such juveniles the customary analysis under State v. Yarbough, 100 N.J.
627, 643-44 (1985), which normally guides whether prison terms for separate
offenses should be consecutive or concurrent. Zuber, 227 N.J. at 447, 450.
Defendant argued to the trial court that his sixty-year aggregate sentence
violates Miller and Zuber. He requested the court to make his sentence for the
1985 juvenile crimes concurrent with the sentence on the 1986 adult crimes,
which he has already completed. The State opposed any decrease in the
aggregate sixty-year custodial term, arguing the combined sentence was
appropriate given the two separate incidents. In the alternative, if changed at
all, the State advocated for an aggregate sentence with a forty-five-year parole
bar.
A-5261-17T4 6 The motion judge1 recognized defendant’s rehabilitative efforts in prison,
which justified some modification of his sentence. The judge reduced the life
term for the 1985 murder to a thirty-year sentence with a thirty-year parole
disqualifier. The judge expressed a desire to drop the sentence even further by
downgrading the 1985 conviction and imposing a consecutive twenty-year
sentence with a ten-year parole disqualifier, but he believed he was constrained
by state law from doing so. The judge also observed that he was prevented by
Yarbough’s principle of “no free crimes” from making the sentences for the two
murders concurrent.
As a result of these developments, defendant presently has an aggregate
parole ineligibility period of sixty years for the two homicides. That means he
will not be eligible for parole until he is nearly the age of eighty.
Defendant now presents the following arguments in his brief:
POINT ONE
THE 60-YEAR PAROLE DISQUALIFER IMPOSED UPON DEFENDANT AT HIS RESENTENCING, WHICH WILL KEEP HIM INCARCERATED UNTIL JUST BEFORE HIS 80TH BIRTHDAY, VIOLATES OUR SUPREME COURT'S RULING IN STATE v. ZUBER THAT JUVENILE OFFENDERS WHO ARE SERVING "THE PRACTICAL EQUIVALENT OF LIFE WITHOUT PAROLE" MUST BE GIVEN A
1 Both of the original sentencing judges are now deceased. A-5261-17T4 7 MEANINGFUL OPPORTUNITY FOR RELEASE WITHIN THEIR LIFETIME. THE ERROR WAS COMPOUNDED BECAUSE THE JUDGE, WHO REPEATEDLY STATED THAT HE WANTED TO IMPOSE A LESSER TERM, MISUNDERSTOOD HIS SENTENCING OPTIONS AND INCORRECTLY BELIEVED THAT HE WAS REQUIRED TO IMPOSE [A] CONSECUTIVE SENTENCE.
A. The Governing Law
B. The Judge erred in holding that he was required to impose consecutive sentences for the two murders.
C. The Judge erred in imposing a sentence which was the practical equivalent of life without parole.
D. The Judge ignored alternate sentences which could have satisfied his stated goal of imposing additional punishment for this offense while still giving defendant a meaningful opportunity for future release.
The State opposes these arguments, arguing that the motion judge abided
by constitutional principles in maintaining the aggregate sixty-year parole
ineligibility period for the two separate murders. The State contends the judge
did not abuse his discretion at the resentencing, and that defendant's completion
of the second consecutive parole bar remains justified. The State has not cross-
appealed, however, the motion judge's modification of that sentence from a life
term to a mandatory thirty-year sentence.
A-5261-17T4 8 II.
At the time defendant was originally sentenced for the 1985 and 1986
murders, the lengthy combined period of parole ineligibility imposed on him in
those two cases was both constitutional and consistent with New Jersey law.
Our successive appellate opinions repeatedly upheld the sentences' validity, both
on direct appeal and in upholding the denial of postconviction relief.
Miller and Zuber
The analytic framework thereafter changed after the United States
Supreme Court issued a series of opinions, including Miller, which recognized
it can be cruel and unusual punishment to impose an LWOP sentence upon a
juvenile offender without affording him a prospect for demonstrating his abil ity
to rehabilitate himself.
More specifically, the Supreme Court in Miller prescribed that sentencing
courts must bear in mind several constitutional considerations when considering
whether to impose an LWOP sentence upon a juvenile offender who has been
tried and convicted as an adult. Those considerations, which have come to be
known as the “Miller factors,” encompass five subjects. Specifically, mandatory
life without parole for a juvenile, or its functional equivalent, unconstitutionally:
[1] precludes consideration of [a defendant’s] chronological age and its hallmark features — among
A-5261-17T4 9 them, immaturity, impetuosity, and failure to appreciate risks and consequences. [2] It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional.
[3] It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.
[4] Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.
[5] And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
[Zuber, 227 N.J. at 445 (quoting Miller, 567 U.S. at 477-78).]
These constitutional factors apply retroactively to juvenile offenders such
as Kubweza who received lengthy adult sentences before the United States
Supreme Court issued its Miller opinion in 2012. Montgomery v. Louisiana,
577 U.S. ––––, 136 S.Ct. 718, 732 (2016); Zuber, 227 N.J. at 446.
Thereafter, our Supreme Court in Zuber incorporated the Miller
constitutional analysis into New Jersey sentencing principles. The Court in
A-5261-17T4 10 Zuber held that when a juvenile tried as an adult is subject to a lengthy aggregate
term for one or multiple offenses that results in "the practical equivalent of life
without parole," the sentencing court must also consider the five factors set forth
in Miller. Zuber, 227 N.J. at 429, 445-47.
Zuber did not define a de facto life term with any specific number of years.
However, it instructed sentencing courts to consider the "real-time consequences
of the aggregate sentence." Id. at 447. The Court held that the aggregate terms
in the Zuber case -- 110 years with a fifty-five-year parole bar and seventy-five
years with a sixty-eight-year parole bar -- were the functional equivalent of life
terms. Id. at 449. Like defendant Kubweza in this case, those aggregate terms
included consecutive punishments for multiple crimes committed at different
times. Id. at 431-33. 2
The Court in Zuber recognized that consecutive terms "often drive[] the
2 We recognize that, unlike the crimes at issue in Zuber, defendant in this case did not commit all of his crimes as a juvenile. We do not believe that this fact takes his sentence outside the reach of Zuber, however, because the sentence imposed on the murder committed as a juvenile (i.e., a consecutive term of life with a thirty-year minimum) is the sentence that rendered his aggregate term a de facto life sentence. As the motion judge recognized, had his sentences been reversed (i.e., had Kubweza been sentenced first on the juvenile crime to thirty years without parole and then sentenced on the adult crime to a consecutive term of life with a thirty-year parole bar), it is unclear whether Zuber would afford him any relief. A-5261-17T4 11 real-time outcome at sentencing." Id. at 449. Accordingly, the Court instructed
sentencing courts to consider the traditional Yarbough guidelines under "a
heightened level of care" when deciding to impose consecutive terms upon a
juvenile offender for crimes committed during one incident and for multiple
crimes committed at different times. Id. at 449-50. The Court in Zuber did not
discuss in detail what it meant by a "heightened level of care." It couched that
directive in terms of the "concerns that Graham[3] and Miller highlight" in the
opinion of the United States Supreme Court and the "overriding importance" of
Miller. Id. at 450.
Ordinary Consecutive/Concurrent Analysis Under Yarbough
In ordinary contexts not affected by these constitutional principles
involving juvenile offenders, New Jersey sentencing judges generally apply the
guidelines of State v. Yarbough when deciding whether to make sentences
consecutive or concurrent.
The Yarbough guidelines provide:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
3 Graham v. Florida, 560 U.S. 48 (2010). A-5261-17T4 12 (3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[Yarbough, 100 N.J. at 643-44.]
A-5261-17T4 13 Guideline number six has been superseded by a 1993 amendment to N.J.S.A.
2C:44-5(a), which provides that there "shall be no overall outer limit on the
cumulation of consecutive sentences for multiple offenses."
Like the United States Supreme Court in Miller, our Supreme Court in
Zuber did not entirely preclude the possibility of an LWOP sentence for a
juvenile. Instead, it instructed that few juveniles should receive de facto life
terms because "it is only the 'rare juvenile offender whose crime reflects
irreparable corruption.'" Id. at 451 (quoting Miller, 567 U.S. at 479-80).
The Court in Zuber invited the Legislature to consider enacting legislation
to provide for review of a sentence after a certain number of years to address the
potential constitutional infirmity that may arise when facts emerging after the
juvenile's original sentencing hearing establish reform and rehabilitation before
expiration of the parole bar. Id. at 451-52. While the Legislature has considered
the matter, it has not to date enacted any such new law.
The Resentencing in This Case
At the resentencing hearing in this case, defense counsel addressed the
Miller factors by first arguing that the crime was not the type that reflected
irreparable corruption. Prior to the 1985 robbery and stabbing, defendant and
three youths—co-defendants Derrick Notis, Quincy Spruell, and Shawn
A-5261-17T4 14 Cummings--were at a party where defendant consumed alcohol and "may have
been drunk." After the party, "[t]hey came upon the victim and Spruell began
to fight with the victim while the other [youths] went through the man's
pockets." At some point, Cummings gave defendant a knife, and defendant
"stabbed the victim one time," causing his death. Counsel argued that nothing
about those facts suggested that the crime was planned.
Defense counsel further emphasized that police had no suspects for "quite
a while" and made arrests only because defendant brought up the crime and
confessed to it after he had confessed to the April 1986 robbery and murder.
Had it not been for his voluntary confession, "this [1985] crime may never have
been solved."
With respect to defendant's family life, his counsel noted that before he
was born, his maternal grandfather had shot and killed his father. "[A]t no point
in his childhood did [defendant] ever have a father figure." His mother, now
deceased, had five children by four different men, none of whom had lived with
the family. His mother's brothers were alcoholics and drug addicts, and he grew
A-5261-17T4 15 up without adult supervision. At age fifteen, he fathered a son and a year later
he fathered a daughter. 4
Counsel emphasized to the motion judge that even though defendant had
entered prison with no hope of release until he was close to eighty years of age,
he nonetheless had taken steps to rehabilitate himself. Defendant has completed
a number of classes, including anger management classes, and earned a GED.
Then, after the Miller decision was issued, defendant "took, basically,
everything that he could possibly take in terms of institutional programs."
On the other hand, defendant's prison record has not been consistently
exemplary. In 1990 and 1998, he incurred infractions for assault against prison
staff, one of which resulted in a twenty-month sentence with a nine-month parole
bar. However, counsel asserted that defendant had only pushed the staff member
and had not seriously injured him. Defendant had also "spent a whole lot of
time in the management control unit" [MCU], or high security unit, and, in 2015,
had been cited for possession of alcohol, which defendant had disputed.
Despite spending thirty-one years in prison, the record suggests defendant
has managed to maintain family connections, and many of his family members
4 In his brief, defendant represents that at age eighteen he fathered a third child who was struck and killed by a car at age two.
A-5261-17T4 16 "were very supportive." His son lives in Florida and had offered his home to
defendant. His son believed that he could secure employment for defendant
upon release. Defendant's step-brother had also provided information on an
employer who had agreed to speak with defendant.
Defendant's thirty-four-year-old daughter spoke on his behalf and
requested his release. She said that defendant was not the same person he was
when he was age seventeen, and she urged the court to impose a sentence that
would allow him to have a life with her and her three children. She underscored
that defendant's co-defendants were no longer in prison and were able to spend
time with their families while defendant was still incarcerated. The daughter
also expressed concern for defendant's health, as he was fifty years old and had
suffered a stroke, which had left him with a limp.
Defendant's sister also spoke at the resentencing hearing. She said that
until defendant went to prison when she was eight years old, he had been the
only father figure she had known. Her other siblings had relocated to Florida,
and she remained in New Jersey because she wanted to be close to defendant, in
the event he had the chance at release.
Defendant spoke on his own behalf, apologizing to the 1985 victim's
family. He claimed he had been influenced by older boys who did not have his
A-5261-17T4 17 best interests in mind. He said he had no positive male role model when he was
a child and that his family was dysfunctional, as his attorney had explained. He
thanked the mother of his son for raising that child without a father to help, and
he asked the court for the opportunity to help raise his grandchildren. If
released, defendant planned to further his education, obtain employment, and
work with juveniles to help prevent them from making the same mistakes he had
made.
Given these circumstances, defense counsel urged the motion judge to
reduce defendant's life sentence to a term of thirty-five to forty-five years, and
to run it concurrently with the thirty-year sentence for the April 1986 crimes.
Such a modification allegedly would "allow the Parole Board to maintain control
over him, at least for the foreseeable future," while giving him the ability to have
some meaningful time outside of prison.
In response, the State argued that the Miller factors did not weigh in favor
of a change in sentence. The State emphasized that defendant was only four
months away from turning eighteen when he committed this robbery and
murder, and he committed the second murder and robbery at age eighteen. The
State disputed that defendant was influenced by older males, underscoring that
his co-defendants were eighteen or nineteen years old, and thus were not
A-5261-17T4 18 significantly older, and that nothing in the record suggested they had overborn
his will. The State argued that defendant was a willing participant in the crimes,
which, according to the jury's verdict, included purposeful and premeditated
murder. With respect to defendant's home life, the State stressed that many
young males grow up in dysfunctional homes but do not commit crimes, let
alone murder.
On the whole, the State asserted that defendant was not fit to return to
society. For most of his prison term, defendant was housed in the MCU because
he had an "extensive history of violent behavior." The State listed the numerous
infractions that defendant had incurred. They include, among other things, two
separate assaults in 1988 and 1989, possession of a weapon in 1994, multiple
instances of possession of drug paraphernalia through 2014, theft, participation
in a security threat group in 2010, and, most recently, fighting in July 2017.
According to the State, these infractions showed that defendant is violent,
dangerous, and not prepared to rejoin society.
With respect to the Yarbough guidelines, the State argued that they
weighed in favor of a consecutive term because defendant committed two
murders on separate days. The State urged the court to make no change to the
life sentence. However, the State suggested, in the alternative, that the court
A-5261-17T4 19 impose a term of life imprisonment with a forty-five-year parole bar, to be
served concurrently with the thirty-year sentence he received for the April 1986
crimes. That modification would allow him the possibility of parole after
approximately twelve more years of imprisonment.
Defense counsel responded that the State's proposed alternative sentence
of life with a forty-five-year parole bar would be an illegal sentence because it
would increase the original parole bar on the 1985 murder by fifteen years. The
court seemed to agree that it could not lawfully increase the parole bar, although
there was little discussion of this issue.
The Motion Judge's Decision
After reflecting upon these arguments, the motion judge made several
pertinent findings. The court found that while defendant came from a
dysfunctional family and had a troubling childhood, there was no basis to find
that his childhood was any worse than others within his community. It rejected
the notion that he was influenced by older men since his co-defendants were
only one-to-two years older than him.
The court said that it "struggled with" whether defendant had shown
sufficient rehabilitation because he had incurred numerous infractions and had
spent lengthy periods of time in the MCU. However, upon entering prison, at a
A-5261-17T4 20 time when he had nearly no hope of release, he took "numerous classes" to better
himself and earned a GED. The court listed more than twenty certificates earned
and programs completed by defendant in prison through 2017.
The court described completion of these courses as "significant
accomplishments" and noted that at the resentencing hearing, defendant's family
members had "spoke[n] passionately on his behalf." Also, defendant apologized
to the victim's family and said that he had been influenced by others and
expressed a desire to work with youth if released.
Despite defendant's positive steps, the court declined to find that
defendant had been "fully rehabilitated." The court compared him to Ricky
Zuber and said the only negative behavior Zuber had exhibited during his
lengthy prison term was a minor theft incident. Defendant, by comparison, had
a long list of infractions.
The court did not make findings on the aggravating and mitigating
sentencing factors, but apparently accepted those factors found by the original
sentencing courts.
With respect to the Yarbough guidelines, the trial court found they
weighed in favor of consecutive terms because the crimes occurred at different
times, involved separate victims, and had objectives that were independent of
A-5261-17T4 21 each other. For this reason, the court said it had "significant trouble" with
defense counsel's request to impose a concurrent, rather than a consecutive,
term. In the court's view, doing so would effectively impose no punishment for
the January 1985 murder.
Even so, the court expressed the view that an aggregate sixty-year parole
bar was not a just sentence in this case. The court mused in this regard, "If I
could sentence the Defendant one degree lower to an aggravated manslaughter,
as indicated in" N.J.S.A. 2C:44-1(f)(2), "I would sentence the [d]efendant to
[twenty] years with ten years of parole ineligibility" to run consecutively to the
sentence for the April 1986 crimes. This would make defendant eligible for
parole after forty years of imprisonment when he would be age fifty-eight.
However, the court said it did not have the authority to impose that type of
modified sentence. Instead, the court reduced defendant's life sentence to thirty
years' imprisonment without the possibility of parole, and ordered that sentence
to run consecutively to the sentence for the April 1986 murder. Thus,
defendant's aggregate sixty-year parole bar did not change.
III.
On appeal, defendant contends that the resentencing court erroneously
concluded it was required by law to impose consecutive terms. He argues that
A-5261-17T4 22 although the court could not increase the parole bar on his conviction for the
January 1985 murder -- because doing so would render the sentence "illegal" --
the court could have imposed a concurrent term that would require him to serve
some additional time while significantly reducing his aggregate term. He
emphasizes that the trial court wanted to impose a consecutive term of twenty
years' imprisonment with a ten-year parole bar, but felt it was not authorized to
do so by any statute.
Analysis
Having considered these arguments and the State's responding points, we
conclude this matter should be remanded for resentencing. We do so because,
despite its detailed discussion of the record, the trial court did not apply the
Yarbough guidelines with a "heightened level of care," as required by Zuber.
First, the trial court correctly found – as the State concedes – that the sixty-
year aggregate period of parole ineligibility amounts to the functional equivalent
of life without parole, i.e., an LWOP sentence. The aggregate term is five years
longer than the fifty-five-year parole ineligibility period the Supreme Court
deemed to be an LWOP sentence in Zuber. Accordingly, the Eighth Amendment
limitations set forth in Miller and Zuber apply here. Such a sixty-year period
A-5261-17T4 23 without parole is not constitutional, unless the record shows defendant has no
prospect for rehabilitation.
On the subject of rehabilitation, the trial court reasonably found that
defendant's prison record over the past three decades is mixed. As noted,
defendant has obtained a GED and completed over twenty programs. On the
other hand, he has committed multiple disciplinary infractions, some of t hem
quite serious, up through as recently as 2017. Assessing this prison record on
the whole, however, the judge found that defendant was not categorically unable
to be rehabilitated.
The motion judge expressly found that defendant's sixty-year mandated
period without parole eligibility was "not just." However, the judge felt that he
was compelled under state law principles, especially Yarbough, to maintain the
consecutive structure of the two sentences, under the "no free crimes" principle.
With all due respect to the motion judge's candor and conscientiousness,
it appears the judge did not fully appreciate his constitutional authority to reduce
defendant's sentence in a manner that comports with the Eighth Amendment,
regardless of customary non-constitutional principles under Yarbough. The
Supreme Court in Zuber instructed that the Yarbough factors should not be
applied in a conventional way to juvenile offenders. Rather, a "heightened level
A-5261-17T4 24 of care" is required. Such "heightened level of care" was not applied here. In
other words, the judge's hands were not tied as much as he thought, because
ultimately the sentence imposed must be a constitutional one.
We disagree with the State that our scope of review is confined to whether
the motion judge abused his discretion, and thus we must defer to the judge's
decision. Such deference is not required where, as here, a conventional
application of sentencing principles leads to an unconstitutional outcome.
More specifically, we conclude the judge has the prerogative in this case
to impose concurrent, rather than consecutive, sentences in order to comply with
the Eighth Amendment under the principles of Miller and Zuber, even though
consecutive sentences otherwise could be called for under Yarbough. The
matter must be remanded for such a second look.
This leads us to consider the question of parole ineligibility under the
murder statute, N.J.S.A. 2C:11-3, that existed at the time of defendant's 1985
murder. It is clear that a court could not increase the parole bar under that statute
beyond thirty years. State v. Scales, 231 N.J. Super. 336, 339-40 (App. Div.),
certif. denied, 117 N.J. 123 (1989), is directly on point and so holds. Accord
State v. Carroll, 242 N.J. Super. 549, 566 (App. Div. 1990), certif. denied, 127
N.J. 326 (1991).
A-5261-17T4 25 Even so, this statutory limitation in former N.J.S.A. 2C:11-3 can
potentially yield to a higher mandate of the Constitution. In particular, the trial
court has the ability to fashion a new sentence for the 1985 murder -- including
a higher parole ineligibility period than thirty years -- in order to achieve a
constitutional outcome. The resentencing court is not confined in a straitjacket
in fashioning a constitutional remedy. State law must yield to the Constitu tion
in this unusual situation. When the application of a state statute would otherwise
produce an unconstitutional result, "we proceed under 'the assumption that the
legislature intended to act in a constitutional manner.'" State v. Burkert, 231
N.J. 257, 277 (2017) (quoting State v. Johnson, 166 N.J. 523, 540-41 (2001)).
On multiple occasions, the United States Supreme Court has authorized
deviations from the rigidities of state sentencing statutes, when doin g so is
constitutionally necessary under the Eighth Amendment to provide relief from
lengthy prison terms that have been imposed on certain juveniles. See, e.g.,
Montgomery, 577 U.S. ––––, 136 S.Ct. at 736 (holding as unconstitutional a
mandatory LWOP statute when applied to certain juvenile offenders); Miller,
567 U.S. at 465, 479 (same); Graham, 560 U.S. at 69-70, 75 (same). Above all,
the sentence must be "just."
A-5261-17T4 26 We discern no impediment under the Double Jeopardy Clause to raising
the parole ineligibility period on a hypothetical concurrent murder sentence
imposed on defendant, so long as the aggregate sixty-year period is not
exceeded. Where a defendant successfully challenges his sentence or conviction
on appeal, a court may restructure the sentence on remand without offending
Double Jeopardy protections, so long as the aggregate sentence does not exceed
the original aggregate. See, e.g., State v. Rodriguez, 97 N.J. 263, 277 (1984)
(finding that defendant's Double Jeopardy protections were not violated where
he successfully raised a merger issue on appeal and on remand the court imposed
the same aggregate term by increasing the sentence for one offense); State v.
Kosch, 458 N.J. Super. 344, 352 (App. Div.) (finding that defendant's right
against Double Jeopardy was not violated where, after defendant successfully
appealed three of his nine convictions, the court imposed the same aggregate
term by changing one sentence to an extended term), certif. denied, 240 N.J. 20
(2019).
By analogous examples, our case law is clear that a court may increase a
sentence on a specific crime by changing an ordinary term to an extended term,
by increasing a parole bar, and by changing a concurrent term to a consecutive
term, so long as the aggregate term imposed does not exceed the original
A-5261-17T4 27 aggregate term. See State v. Young, 379 N.J. Super. 498, 502 (App. Div. 2005)
(finding no Double Jeopardy infirmity where the defendant--originally
convicted of burglary and third-degree aggravated assault--successfully
challenged his burglary conviction on appeal and was resentenced to the same
aggregate term based on imposition of a discretionary persistent offender
sentence with an increased parole bar for the assault conviction).
Specifically, we find that the trial court could have imposed the aggregate
sentence it apparently wished to impose as a constitutional remedy to avoid an
Eighth Amendment violation, by imposing a concurrent term of fifty years with
a forty-year parole bar for the January 1985 murder. Such a sentence would not
have violated the Double Jeopardy Clause because the aggregate term of fifty
years would be less than the original aggregate term of life with a sixty-year
parole bar. The sentence would also address the court's concern that defendant
not be given a "free crime" because it would require defendant to serve
additional time for the January 1985 murder, beyond the thirty-year term
required for the April 1986 murder. Additionally, it would comply with Zuber's
requirement that the court apply Yarbough with a "heightened" level of care,
because it would impose an aggregate term that would not amount to a de facto
life term. Similarly, the sentence would withstand scrutiny under Zuber because
A-5261-17T4 28 defendant would be subjected to a forty-year parole bar, which would make him
eligible for parole before age sixty.
The thirty-year cap on parole ineligibility in the former murder statute was
created for the benefit of defendants. Here, this defendant is willing to waive
the benefit in order to achieve a constitutional result that is to his overall
advantage. We find no reason to disallow such an option.
That said, it is not our role to decide in advance exactly what sentence
defendant should receive. The matter instead is remanded to provide the trial
court with the opportunity to do so. At such a resentencing, the record should
be updated to take into account any interim events – positive or negative – that
may have transpired in the meantime. State v. Randolph, 210 N.J. 330, 349-51
(2012). The court also should conduct a fresh re-examination of the pertinent
aggravating and mitigating factors and not be bound by the factors as analyzed
at the original sentencings in 1987. Zuber, 227 N.J. at 453.5
5 Although it is not part of this case, we note that a statute signed into law on October 19, 2020, A-4373/S-2592, implements the Sentencing Commission's recommendation and adds a criminal defendant's youth to the list of permissible mitigating factors a court may consider when sentencing. Under the new law, a sentencing court could now broadly consider as a mitigating factor whether a defendant was under the age of twenty-six when an offense was committed. We do not resolve here whether this new statute has any retroactive impact on this case, in which the two final judgments of conviction were issued over thirty years ago. A-5261-17T4 29 All other points raised by defendant lack sufficient merit to warrant
discussion. R. 2:11-3(e)(2).
Reversed for resentencing in accordance with this opinion. We do not
retain jurisdiction.
A-5261-17T4 30