NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1267-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAMON VENABLE,
Defendant-Appellant. ________________________
Submitted August 2, 2021 – Decided August 24, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-11-4010.
Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Assistant Deputy Public Defender, of counsel and on the briefs).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant appeals the denial of his motion to reduce the sentence imposed
on his 1987 murder conviction. He was 16 years old when he committed the
crime. Defendant was tried and convicted in adult court and sentenced to a term
of life imprisonment with a thirty-five-year period of parole ineligibility. 1 He
sought the sentence reduction so that he would have a meaningful opportunity
to be released from confinement. During the pendency of this appeal, he earned
parole and has since been released from prison. We therefore deem this appeal
moot.
We briefly summarize the relevant facts and procedural history. On
March 19, 1986, defendant and another assailant accosted three teenagers
walking on a public street in Newark. Defendant pointed a loaded gun at one of
the victims and demanded that he relinquish his green leather bomber jacket.
When the robbery victim explained that he did not have any other valuables,
defendant struck him in the face, knocking him to the pavement. As defendant
was leaving the scene, another individual, Ronald Griffin, happened by and
asked the robbery victim if the jacket held by defendant belonged to him.
1 We note this sentence pre-dates the 1997 enactment of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which requires a court to impose a term of parole ineligibility fixed at 85% of the sentence imposed. In the case of a life sentence, the NERA parole ineligibility term is sixty-three years, nine months. A-1267-18 2 Defendant pointed the handgun at Griffin, who raised his hands in surrender and
attempted to retreat. Defendant shot him. Griffin later succumbed to his
gunshot wound. As we emphasized in our previous opinion affirming
defendant's convictions, this was an "utterly senseless" crime. State v. Venable,
No. A-4816-86 (App. Div. Feb. 15, 1989) (slip op. at 3).
Defendant was waived over to adult court and charged by indictment with
knowing/purposeful murder; N.J.S.A. 2C:11-3(a), felony murder in the course
of a robbery; N.J.S.A. 2C:11-3(a)(3), first-degree robbery, N.J.S.A. 2C:15-1;
third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and
second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
4(a).
In March 1987, a jury convicted defendant on all counts. In April 1987,
the trial court imposed an aggregate sentence of life plus twenty years in prison,
with a thirty-year term of parole ineligibility.
On appeal, we affirmed defendant's convictions but remanded for
resentencing because the sentences imposed on the armed robbery and firearms
counts did not include parole ineligibility terms as required by the Graves Act,
N.J.S.A. 2C:43-6(c). Venable, No. A-4816-86 (slip op. at 1). The Supreme
Court denied certification. State v. Venable, 117 N.J. 45 (1989).
A-1267-18 3 In April 1989, the trial court on remand resentenced defendant in
accordance with our instructions. Defendant's original thirty-year term of parole
ineligibility was increased to thirty-five years.
In March 2015, defendant filed a motion to correct an illegal sentence,
arguing that the sentence was cruel and unusual punishment under Miller v.
Alabama, 567 U.S. 460, 479 (2012) (holding "the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for
juvenile offenders"). The Law Division judge denied defendant's motion.
In May 2017, we heard defendant's appeal of the denial of his resentencing
motion on an Excessive Sentence Oral Argument calendar. We remanded the
matter to the trial court to decide whether defendant's sentence violated the New
Jersey Constitution in light of our Supreme Court's then-recent decision in State
v. Zuber, 227 N.J. 422 (2017). State v. Venable, No. A-3261-15 (App. Div. May
18, 2017) (slip op. at 1). On remand in September 2018, the Law Division judge
rendered an oral opinion ruling that defendant was not eligible to be resentenced
because his sentence of life with thirty-five years of parole ineligibility was not
the functional equivalent of life without parole. The case now returns to us for
a third time.
Defendant raises the following issues on appeal:
A-1267-18 4 POINT I
THE DEFENDANT, A JUVENILE OFFENDER WHO HAS SERVED OVER [THIRTY-FOUR] YEARS IN PRISON ON THESE CHARGES, AND WHO PRESENTED EVIDENCE THAT HE WAS FULLY REHABILITATED, WAS ENTITLED TO "A MEANINGFUL OPPORTUNITY FOR RELEASE" UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS. THE MOTION JUDGE, WHO STATED THAT HE WOULD REDUCE DEFENDANT'S SENTENCE IF HE COULD, ERRED IN HOLDING THAT DEFENDANT DID NOT QUALIFY FOR A RESENTENCING BECAUSE HE WOULD BE ELIGIBLE FOR PAROLE AT AGE [FIFTY-ONE].
A. OUR STATE CONSTITUTION GUARANTEES THAT, LIKE ALL JUVENILE OFFENDERS SERVING LENGTHY PRISON SENTENCES, DAMON VENABLE MUST BE GIVEN A "MEANINGFUL OPPORTUNITY TO OBTAIN RELEASE BASED ON DEMONSTRATED MATURITY AND REHABILITATION."
B. UNDER THE CRUEL AND UNUSUAL PUNISHMENT CLAUSES OF BOTH THE STATE AND FEDERAL CONSTITUTIONS, IT IS DISPROPORTIONATE, AND THUS UNCONSTITUTIONAL, TO CONTINUE TO INCARCERATE A FULLY REHABILITATED JUVENILE OFFENDER SUCH AS DAMON VENABLE WITHOUT ANY VALID PENOLOGICAL REASON FOR DOING SO.
C. CONSIDERATION FOR PAROLE IN THIS STATE FAILS TO PROVIDE LIFE-SENTENCED JUVENILE OFFENDERS WITH THEIR
A-1267-18 5 CONSTITUTIONAL RIGHT TO "SOME MEANINGFUL OPPORTUNITY FOR RELEASE BASED UPON DEMONSTRATED MATURITY AND REHABILITATION."
We begin our analysis by noting the State does not dispute that defendant
has been rehabilitated. The record shows that for the last two decades, defendant
has avoided serious institutional infractions and, notably, maintained a 4.0 grade
point average at Rutgers University. At oral argument the prosecutor aptly
characterized that achievement as "impressive."
As our Supreme Court explained in Zuber, the Eighth Amendment does
not guarantee eventual freedom to a juvenile offender but rather only requires
that he or she be afforded "'some meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation.'" 227 N.J. at 443 (quoting Graham
v. Florida, 560 U.S. 48, 74–75 (2010)). In State v. Tormasi, we recently noted
that the Court in Zuber "implicitly approves of the parole process" and that "a
meaningful opportunity for release could be addressed through a resentencing
or parole." 466 N.J. Super. 51, 67 (App. Div. 2021) (emphasis added).
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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-1267-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAMON VENABLE,
Defendant-Appellant. ________________________
Submitted August 2, 2021 – Decided August 24, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-11-4010.
Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Assistant Deputy Public Defender, of counsel and on the briefs).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant appeals the denial of his motion to reduce the sentence imposed
on his 1987 murder conviction. He was 16 years old when he committed the
crime. Defendant was tried and convicted in adult court and sentenced to a term
of life imprisonment with a thirty-five-year period of parole ineligibility. 1 He
sought the sentence reduction so that he would have a meaningful opportunity
to be released from confinement. During the pendency of this appeal, he earned
parole and has since been released from prison. We therefore deem this appeal
moot.
We briefly summarize the relevant facts and procedural history. On
March 19, 1986, defendant and another assailant accosted three teenagers
walking on a public street in Newark. Defendant pointed a loaded gun at one of
the victims and demanded that he relinquish his green leather bomber jacket.
When the robbery victim explained that he did not have any other valuables,
defendant struck him in the face, knocking him to the pavement. As defendant
was leaving the scene, another individual, Ronald Griffin, happened by and
asked the robbery victim if the jacket held by defendant belonged to him.
1 We note this sentence pre-dates the 1997 enactment of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which requires a court to impose a term of parole ineligibility fixed at 85% of the sentence imposed. In the case of a life sentence, the NERA parole ineligibility term is sixty-three years, nine months. A-1267-18 2 Defendant pointed the handgun at Griffin, who raised his hands in surrender and
attempted to retreat. Defendant shot him. Griffin later succumbed to his
gunshot wound. As we emphasized in our previous opinion affirming
defendant's convictions, this was an "utterly senseless" crime. State v. Venable,
No. A-4816-86 (App. Div. Feb. 15, 1989) (slip op. at 3).
Defendant was waived over to adult court and charged by indictment with
knowing/purposeful murder; N.J.S.A. 2C:11-3(a), felony murder in the course
of a robbery; N.J.S.A. 2C:11-3(a)(3), first-degree robbery, N.J.S.A. 2C:15-1;
third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and
second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
4(a).
In March 1987, a jury convicted defendant on all counts. In April 1987,
the trial court imposed an aggregate sentence of life plus twenty years in prison,
with a thirty-year term of parole ineligibility.
On appeal, we affirmed defendant's convictions but remanded for
resentencing because the sentences imposed on the armed robbery and firearms
counts did not include parole ineligibility terms as required by the Graves Act,
N.J.S.A. 2C:43-6(c). Venable, No. A-4816-86 (slip op. at 1). The Supreme
Court denied certification. State v. Venable, 117 N.J. 45 (1989).
A-1267-18 3 In April 1989, the trial court on remand resentenced defendant in
accordance with our instructions. Defendant's original thirty-year term of parole
ineligibility was increased to thirty-five years.
In March 2015, defendant filed a motion to correct an illegal sentence,
arguing that the sentence was cruel and unusual punishment under Miller v.
Alabama, 567 U.S. 460, 479 (2012) (holding "the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for
juvenile offenders"). The Law Division judge denied defendant's motion.
In May 2017, we heard defendant's appeal of the denial of his resentencing
motion on an Excessive Sentence Oral Argument calendar. We remanded the
matter to the trial court to decide whether defendant's sentence violated the New
Jersey Constitution in light of our Supreme Court's then-recent decision in State
v. Zuber, 227 N.J. 422 (2017). State v. Venable, No. A-3261-15 (App. Div. May
18, 2017) (slip op. at 1). On remand in September 2018, the Law Division judge
rendered an oral opinion ruling that defendant was not eligible to be resentenced
because his sentence of life with thirty-five years of parole ineligibility was not
the functional equivalent of life without parole. The case now returns to us for
a third time.
Defendant raises the following issues on appeal:
A-1267-18 4 POINT I
THE DEFENDANT, A JUVENILE OFFENDER WHO HAS SERVED OVER [THIRTY-FOUR] YEARS IN PRISON ON THESE CHARGES, AND WHO PRESENTED EVIDENCE THAT HE WAS FULLY REHABILITATED, WAS ENTITLED TO "A MEANINGFUL OPPORTUNITY FOR RELEASE" UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS. THE MOTION JUDGE, WHO STATED THAT HE WOULD REDUCE DEFENDANT'S SENTENCE IF HE COULD, ERRED IN HOLDING THAT DEFENDANT DID NOT QUALIFY FOR A RESENTENCING BECAUSE HE WOULD BE ELIGIBLE FOR PAROLE AT AGE [FIFTY-ONE].
A. OUR STATE CONSTITUTION GUARANTEES THAT, LIKE ALL JUVENILE OFFENDERS SERVING LENGTHY PRISON SENTENCES, DAMON VENABLE MUST BE GIVEN A "MEANINGFUL OPPORTUNITY TO OBTAIN RELEASE BASED ON DEMONSTRATED MATURITY AND REHABILITATION."
B. UNDER THE CRUEL AND UNUSUAL PUNISHMENT CLAUSES OF BOTH THE STATE AND FEDERAL CONSTITUTIONS, IT IS DISPROPORTIONATE, AND THUS UNCONSTITUTIONAL, TO CONTINUE TO INCARCERATE A FULLY REHABILITATED JUVENILE OFFENDER SUCH AS DAMON VENABLE WITHOUT ANY VALID PENOLOGICAL REASON FOR DOING SO.
C. CONSIDERATION FOR PAROLE IN THIS STATE FAILS TO PROVIDE LIFE-SENTENCED JUVENILE OFFENDERS WITH THEIR
A-1267-18 5 CONSTITUTIONAL RIGHT TO "SOME MEANINGFUL OPPORTUNITY FOR RELEASE BASED UPON DEMONSTRATED MATURITY AND REHABILITATION."
We begin our analysis by noting the State does not dispute that defendant
has been rehabilitated. The record shows that for the last two decades, defendant
has avoided serious institutional infractions and, notably, maintained a 4.0 grade
point average at Rutgers University. At oral argument the prosecutor aptly
characterized that achievement as "impressive."
As our Supreme Court explained in Zuber, the Eighth Amendment does
not guarantee eventual freedom to a juvenile offender but rather only requires
that he or she be afforded "'some meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation.'" 227 N.J. at 443 (quoting Graham
v. Florida, 560 U.S. 48, 74–75 (2010)). In State v. Tormasi, we recently noted
that the Court in Zuber "implicitly approves of the parole process" and that "a
meaningful opportunity for release could be addressed through a resentencing
or parole." 466 N.J. Super. 51, 67 (App. Div. 2021) (emphasis added). We thus
concluded in Tormasi that "the opportunity for parole provides a meaningful
opportunity at release for purposes of the Eighth Amendment." Id. at 67–68.
We next apply that principle to the present situation. Significantly, as we
have noted, since filing this appeal, defendant has earned parole and has been
A-1267-18 6 released from prison. Although the opportunity for release was significantly
delayed, he has not only been afforded that opportunity but also made the most
of it by earning parole and achieving release from prison. Accordingly, this
appeal is moot.
"Mootness is a threshold justiciability determination rooted in the notion
that judicial power is to be exercised only when a party is immediately
threatened with harm." Stop & Shop Supermarket Co., LLC v. Cnty. of Bergen,
450 N.J. Super. 286, 291 (App. Div. 2017) (quoting Betancourt v. Trinitas
Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010)). "[F]or reasons of judicial
economy and restraint, courts will not decide cases in which the issue is
hypothetical, [or] a judgment cannot grant effective relief." Ibid. (alterations in
original) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App.
Div. 1993)). Furthermore, "[a]n issue is 'moot' when the decision sought in a
matter, when rendered, can have no practical effect on the existing controversy."
Comando v. Nugiel, 436 N.J. Super. 203, 219 (App. Div. 2014) (alteration in
original) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257–
58 (App. Div. 2006)).
We recognize that defendant remains subject to parole supervision. That
circumstance, however, does not raise the Eighth Amendment concerns
A-1267-18 7 undergirding Miller and Zuber. Those Eighth Amendment cases focus on the
hardships of imprisonment, not community supervision and compliance with
parole release conditions.
Appeal dismissed.
A-1267-18 8