RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3859-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE ROMERO,
Defendant-Appellant. _______________________
Argued May 4, 2021 – Decided May 20, 2021
Before Judges Yannotti, Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 87-04- 0326.
Elizabeth C. Jarit, Deputy Public Defender II, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit, of counsel and on the briefs).
Shiraz Deen, Assistant Prosecutor, argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Dina R. Khajezadeh, Assistant Prosecutor, on the brief). Lauren Bonfiglio, Deputy Attorney General, argued the cause for amicus curiae Office of the Attorney General (Gurbir S. Grewal, Attorney General, attorney; Lauren Bonfiglio, of counsel and on the brief).
Avram D. Frey argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Gibbons PC and American Civil Liberties Union of New Jersey Foundation, attorneys; Lawrence S. Lustberg, Avram D. Frey, Alexander Shalom and Jeanne LoCicero, on the brief).
PER CURIAM
Defendant appeals from the amended judgment of conviction (JOC)
entered by the Law Division following his resentencing pursuant to State v.
Zuber, 227 N.J. 422 (2017). We reverse and remand for resentencing.
I.
In April 1987, after the Family Part waived jurisdiction, defendant and
Casey Terry were charged with murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count
one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(3), (4), (5), and (6) (counts three through six);
robbery, N.J.S.A. 2C:15-1 (count seven); burglary, N.J.S.A. 2C:18-2(a)(1)
(count eight); and theft, N.J.S.A. 2C:20-3(a) (count nine). Terry also was
charged individually with arson, N.J.S.A. 2C:17-1(a) (counts ten and eleven),
and defendant was charged with auto theft, N.J.S.A. 2C:20-3(a) (count
2 A-3859-18 twelve). On the eve of trial, Terry pled guilty to murder and aggravated sexual
assault.
The evidence presented at trial showed that on the evening of December
3, 1986, defendant, Terry, and Anthony Evans went to the residence of E.S.
and her husband M.S. intending to commit a burglary. 1 At that time, defendant
and Evans were fifteen years old, and Terry was sixteen. E.S. was eighty-six,
and M.S. was ninety-four years old. M.S. was confined to a bed due to a
stroke.
Terry broke into the house using a knife, and defendant and Terry went
inside, wearing masks and gloves, while Evans remained outside as a lookout.
Evans testified that he saw defendant and Terry looking around the house for
money. He also saw Terry rape E.S. three times, and he repeatedly beat E.S.
while defendant raped her.
Defendant testified that he went to the home with the intention of
robbing E.S. and M.S. He insisted that he had only attempted to sexually
assault E.S. after seeing Terry rape her. He said they did not find anything of
value and left while E.S. was still alive. Defendant then stole a car from a
nearby garage.
1 We use initials to protect the identity of E.S., who was the victim of the sexual offenses. See R. 1:38-3(c)(12).
3 A-3859-18 About five hours later, Terry returned to the home to retrieve the knife.
He again raped and beat E.S., and then set fire to the house. The following
morning, officials found E.S.'s body, bloody and naked. The body was a few
feet from M.S., who was injured but still alive. That same morning, Evans
heard about E.S.'s death. He went to the prosecutor's office and provided a
statement. He also agreed to testify against defendant and Terry.
The doctor who performed the autopsy testified that E.S. had sustained
injuries to her heart, brain, ribs, and nose. She had bruises and contusions
about her face, eyes, and upper body. The doctor attributed E.S.'s death to
"acute cardiac arrhythmia, associated with severe coronary arteriosclerosis and
secondary to forcible rape and sodomy." She died shortly after being beaten.
The doctor noted that a toxicologist's report indicated that tests showed
thirty-eight percent carbon monoxide in E.S.'s blood, which indicated she had
inhaled smoke, but he denied this was a fatal amount. A forensic pathologist
who testified on behalf of the defense stated that the cause of death was smoke
inhalation, superimposed on preexisting severe heart disease, and that her
death was not due to the beating.
The jury found defendant guilty of all charges. At the sentencing
hearing on August 4, 1988, the court dismissed counts two (felony murder);
4 A-3859-18 counts three, five and six (aggravated sexual assault); and merged count nine
(theft) with count seven (robbery). The court sentenced defendant to life
imprisonment with a thirty-year parole-bar on count one (murder); twenty
years' imprisonment with a ten-year parole-bar on count four (aggravated
sexual assault); twenty years' imprisonment with a ten-year parole-bar on
count seven (robbery); ten years' imprisonment with a five-year parole-bar on
count eight (burglary); and five years' imprisonment on count twelve (auto
theft).
The court ordered the sentences for murder, aggravated sexual assault,
and auto theft would be served consecutively, and the other sentences would
be served concurrently. Defendant's aggregate sentence was life plus twenty-
five years' imprisonment with forty years of parole ineligibility. 2
Defendant appealed from the JOC dated August 4, 1988. We affirmed
defendant's convictions and sentence. State v. Romero, No. A-0315-88 (App.
Div. Oct. 4, 1990). Thereafter, the Supreme Court denied defendant's petition
for certification. State v. Romero, 127 N.J. 324 (1990). Defendant later filed
two petitions for post-conviction relief, which were denied. State v. Romero,
2 The court also sentenced Terry to life imprisonment, with thirty years of parole ineligibility, for the murder, and a consecutive term of twenty years' imprisonment, with ten years of parole ineligibility, for aggravated sexual assault.
5 A-3859-18 No. A-4192-06 (App. Div. Oct. 10, 2008); State v. Romero, No. A-4246-10
(App. Div. Apr. 2, 2013), certif. denied, 216 N.J. 8 (2013).
On September 5, 2017, defendant filed a motion to correct what he
claimed was an illegal sentence and sought resentencing pursuant to Zuber,
227 N.J. 422, and Miller v. Alabama, 567 U.S. 460 (2012). He argued that his
sentence was the practical equivalent of life imprisonment without parole, and
the consecutive sentences resulted in an excessively lengthy term of
imprisonment for a juvenile.
The State opposed the motion. The State argued that Zuber and Miller
did not apply because defendant had not been sentenced to life imprisonment
without parole or the functional equivalent of such a sentence. The State noted
that defendant would be eligible for parole when he is fifty-five years old.
On May 4, 2018, the judge heard oral argument and continued the matter
to allow the parties to obtain and provide the court with additional information.
On September 5, 2018, the judge issued a written opinion and order, granting
defendant's motion for resentencing. The judge found that defendant had been
sentenced to a sufficiently lengthy sentence to warrant review under Zuber.
The State filed a motion for leave to appeal from the court's September 5, 2018
order. On October 11, 2018, we denied the State's motion.
6 A-3859-18 The trial court conducted the resentencing hearing on October 19, 2018,
and entered an amended JOC, which reduced defendant's sentence for the
aggravated sexual assault to sixteen years' imprisonment, with an eight-year
parole-bar. In all other respects, the sentence remained the same. The judge
sentenced defendant to an aggregate term of life imprisonment plus twenty-one
years, with a thirty-eight-year period of parole ineligibility. The judge filed an
amended JOC on October 31, 2018. This appeal followed.
Thereafter, we granted defendant's motion to supplement the record on
appeal with data and statistics concerning decisions by the New Jersey State
Parole Board on certain initial applications for parole. We also invited the
Attorney General to participate in the appeal as amicus curiae. In addition, we
granted a motion by the American Civil Liberties Union of New Jersey
(ACLU-NJ) for leave to participate as amicus curiae.
On appeal, defendant argues that the resentencing court failed to
undertake the analysis required by Zuber, Miller, and Montgomery v.
Alabama, 577 U.S. 190 (2016). Defendant further argues that the court failed
to properly analyze whether his sentences should run consecutively under a
heightened review of the criteria in State v. Yarbough, 100 N.J. 627, 643-44
7 A-3859-18 (1985), required by Zuber. He argues that the matter should be remanded for
resentencing.
The State argues that defendant was not entitled to resentencing under
Zuber and Miller because he was not sentenced to life imprisonment without
parole or its functional equivalent. The State also argues that the sentence
imposed on resentencing is not excessive and was based on a thorough
consideration of the Miller factors. In addition, the State argues that the
resentencing court properly decided to impose consecutive sentences.
II.
We note initially that a reviewing court will not disturb a criminal
sentence unless the trial court failed to follow the sentencing guidelines, the
court's findings regarding the aggravating and mitigating factors are not
supported by "competent and credible evidence in the record," or application
of the guidelines renders the sentence "clearly unreasonable so as to shock the
judicial conscience." State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)). The constitutionality of a sentence is an
issue of law, which we review de novo. State v. Patel, 239 N.J. 424, 435
(2019) (citing State v. Quaker Valley Farms, LLC, 235 N.J. 37, 55 (2018)).
8 A-3859-18 In Miller, the Court held that the Eighth Amendment to the United States
Constitution "forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders." 567 U.S. at 479. In so ruling, the
Court built upon prior decisions, which had established that "children are
constitutionally different from adults for purposes of sentencing" because they
"have diminished culpability and greater prospects for reform," and thus "are
less deserving of the most severe punishments." Id. at 471 (quoting Graham v.
Florida, 560 U.S. 48, 68 (2010)).
The Miller Court noted that a mandatory life sentence without parole for
juveniles who are convicted of homicide
[1.] precludes consideration of [the juvenile's] chronological age and its hallmark features – among 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,
9 A-3859-18 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.
[Miller, 567 U.S. at 477-78.]
In Miller, the Court did not preclude the possibility of a life sentence
without parole for a juvenile convicted of homicide, but the Court noted that
such a sentence may not be mandatory and should be "uncommon" because of
the difficulty in concluding that, at an early age, a particular juvenile is
irreparably corrupt. Miller, 567 U.S. at 479 (citing Graham, 560 U.S. at 68
and Roper v. Simmons, 543 U.S. 551, 573 (2005)).
Thus, in a "rare" case in which the juvenile's "crime reflects irreparable
corruption" or incorrigibility, the court may imprison a juvenile offender for
life. Id. at 479-80. However, the sentencing court may not "at the outset"
determine that the juvenile will forever pose a risk to society. Graham, 560
U.S. at 75.
Instead, the juvenile must be provided "some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation." Id. at 75.
The Court did not define "meaningful opportunity" and noted that "[i]t is for
10 A-3859-18 the State, in the first instance, to explore the means and mechanisms for
compliance." Ibid.
In Montgomery, the Court held that Miller should be applied
retroactively, and that where a sentence was imposed contrary to Miller, the
constitutional infirmity could be remedied by resentencing or consideration for
parole. 577 U.S. at 208-09. The Court stated that, "Allowing those offenders
to be considered for parole ensures that juveniles whose crimes reflected only
transient immaturity – and who have since matured – will not be forced to
serve a disproportionate sentence in violation of the Eighth Amendment." Id.
at 212.
The Zuber Court applied the principles enunciated in Miller to any life
sentence without parole or aggregate term that is "the practical equivalent of
life without parole." 227 N.J. at 447. The Court noted that the focus should be
"on the real-time consequences of the aggregate sentence." Ibid. The trial
court should not use life-expectancy tables when deciding whether a lengthy
sentence is the practical equivalent of a life term without parole. Id. at 450.
Thus, the trial court must consider the Miller factors when sentencing a
juvenile to "a lengthy period of parole ineligibility for a single offense." Id. at
447. The court should "do the same" when deciding whether to run counts
11 A-3859-18 consecutively, as consecutive terms often drive the length of the aggregate
sentence. Ibid.
The Court pointed out that in Yarbough, it had adopted criteria to assist
the trial courts in deciding whether to impose consecutive sentences. Id. at
449 (citing Yarbough, 100 N.J. at 643-44). The Court noted, however, that
Yarbough does not address the Miller factors. Id. at 450. The Court stated
that, in view of the "overriding importance" of Miller, trial judges must
"exercise a heightened level of care before imposing multiple consecutive
sentences on juveniles." Ibid.
The Court encouraged the Legislature to examine the issue of providing
juvenile defendants "some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation." Id. at 452 (quoting Graham, 560
U.S. at 75). The Legislature has since considered proposed legislation on this
issue, but such legislation has not been enacted. See State v. Tormasi, 466
N.J. Super. 51, 65 n.6 (App. Div. 2021).
III.
We briefly summarize the relevant facts and procedural history of
defendant's initial sentence and resentencing.
12 A-3859-18 A. Avenel Report.
Before his initial sentencing, defendant was evaluated at the Adult
Diagnostic and Treatment Center at Avenel. Defendant told the examiner he
had not been sexually aroused by violent conduct and claimed he only
attempted to sexually assault E.S. so that he would be "accepted" by Terry. He
denied physically assaulting the victims and said he did not participate in the
murder of E.S. He stated that his focus was on money only, and he believed he
had been wrongly convicted of crimes he did not commit.
In his report, the examiner noted that defendant had previously been
adjudicated for shoplifting, burglary, and joyriding, and had received a
probationary term. Defendant had committed the present offenses while on
probation. The evaluator noted that defendant had scored at the "lower limit"
of the classification for intellectual functioning but stated that his "intellectual
capacity" may be "somewhat higher" than the test results showed. He
displayed "some degree of anxiety" regarding interpersonal relationships and
feelings about his "early home environment."
An examination of defendant's personality showed a profile similar to
persons who are "angry, sullen and demanding . . . ." Such individuals
typically are "rigidly argumentative and difficult in social relations" and tend
13 A-3859-18 to "harbor depression, irritability, suspiciousness and defects in their
judgment." The examiner noted that defendant had been cooperative in his
psychological interview. Defendant said his mother had raised him, and he
had followed in his brother's footsteps of "getting in trouble" after his brother
"got locked up."
The examiner found defendant was not eligible for sentencing as a sex
offender because his present offenses were not part of "a repetitive,
compulsive pattern of aberrant sexual behavior." The examiner noted that
defendant showed no remorse, other than remorse at being caught. The
examiner wrote that defendant felt "entitled to take what he wish[ed] from
others, regardless of the deleterious consequences of this behavior" and noted
that defendant suffered from "a rather extreme antisocial personality disorder."
B. Presentence Report (PSR).
The PSR indicated that defendant and his brother are twins, and they
have three older brothers and four older half-sisters. Defendant's parents
separated when he was young, and his father moved to Boston. His mother
relied on public assistance to support the family.
According to the PSR, defendant's mother did not provide structure or
parental control. She also showed no interest in defendant's education.
14 A-3859-18 Defendant only completed sixth grade, and he was described as a "straight 'F'
student."
The PSR also indicated that defendant had admitted that he used
marijuana and alcohol, and that he sold drugs. Regarding the present offenses,
defendant stated that his only intention was to steal from E.S. and M.S. He
said that Terry previously had stolen from E.S. and M.S., and he believed they
would be an easy target.
C. Defendant's Arguments at the Sentencing Hearing.
Defendant's attorney asserted that defendant had a difficult childhood
and his incarceration at the juvenile facility during the previous year had been
beneficial to him. Counsel noted that defendant was in the process of
obtaining a General Educational Development degree (GED), and he had
developed an understanding of his culpability, which indicated he could be
rehabilitated.
Defense counsel also asserted that defendant's lack of education and his
upbringing had a negative effect on his ability to communicate with others. He
argued that defendant's prior offenses were not serious, and he urged the court
to impose a sentence that is less severe than the sentence the court had
imposed on Terry.
15 A-3859-18 Defendant addressed the court. He stated he was innocent of murder and
sexual assault.
D. The Court's Findings and the Initial Sentence.
The sentencing judge found aggravating factors one, N.J.S.A. 2C:44-
1(a)(1) (nature and circumstances of the offense); and two, N.J.S.A. 2C:44-
1(a)(2) (gravity and seriousness of harm to the victims). The judge noted the
especially "heinous cruel or depraved manner" in which defendant had
committed the offenses.
In addition, the judge found aggravating factors three, N.J.S.A. 2C:44-
1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-
1(a)(6) (defendant's prior criminal record); and nine, N.J.S.A. 2C:44-1(a)(9)
(need to deter defendant and others from violating the law). The judge found
no mitigating factors.
The judge gave "the greatest weight" to aggravating factors one, two,
and three, and little weight to aggravating factor six. The judge stated that
aggravating factor nine was almost "superfluous" in light of the punishment
defendant faced. The judge emphasized that defendant was just as culpable as
Terry.
16 A-3859-18 The judge determined that the sentences for murder, aggravated sexual
assault, and auto theft should run consecutively because they were separate
offenses. As noted previously, the judge sentenced defendant to an aggregate
term of life plus twenty-five years' imprisonment, with forty years of parole
ineligibility. Defendant was seventeen years old at the time he was sentenced.
E. Defendant's Motion for Resentencing.
Defendant submitted a letter to the court in which he stated that he had
grown while in prison. He recounted his childhood. He said that, as a child,
he had often gone hungry, and that the family often lacked basic necessities.
Defendant stated that by the time he was ten years old, he was regularly
skipping school and "running around" the streets. By age thirteen, he was
regularly stealing items his mother could not afford. He said he was an
alcoholic, like his father and three siblings.
Defendant noted that when he entered prison, he was reading at the
third-grade level, but he had earned his GED and an Associate's Degree in
psychology and social services. He had two courses to complete to earn a
Bachelor's Degree in criminal justice from Rutgers University. Defendant
stated that his current grade point average was 3.67, and that Rutgers had
offered him admission to its Masters' Program.
17 A-3859-18 Defendant also stated that he had begun to understand his anti-social
disorder, and he had developed an understanding of his criminal behavior. He
expressed guilt and self-hate for the person he had been, and he expressed
sympathy and remorse for the pain he had caused to the victims' family. He
said that, as a juvenile, he did not understand remorse.
Defendant noted that during his incarceration, he sought help and
guidance from other inmates, social services, and the church. He had
completed certain institutional courses on behavioral modification and anger
management. He took responsibility for his criminal conduct and the suffering
he caused. Defendant also discussed a Bible that E.S.'s daughter had sent to
him with a letter saying she had forgiven him. He stated that this continued to
motivate him to be a better person.
Two of defendant's brothers wrote letters to the court. They confirmed
the family's poverty and the lack of parenting they received as children.
Defendant's counsel emphasized defendant's educational achievements,
and the institutional courses defendant had completed while incarcerated.
Counsel noted that defendant had only four or five disciplinary infractions
while in prison, the last of which occurred twelve-to-thirteen years earlier.
18 A-3859-18 Counsel explained that defendant's most serious institutional infraction was for
assault, but that had occurred early in defendant's prison term.
Defendant addressed the court. He apologized to the victims' family.
He assured the court that he was not the same as the person who committed the
offenses. Defendant said he recognized that he had chosen to commit the
crimes and his decision led to E.S.'s death. He stated that he would regret his
actions for the rest of his life.
Defense counsel argued that aggravating factor three (risk that defendant
will commit another offense) no longer applied. Counsel asserted that the
court should find mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (lack of
criminal history); eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the
result of circumstances unlikely to recur); and nine, N.J.S.A. 2C:44-1(b)(9)
(defendant's character and attitude indicate he is unlikely to commit another
offense). Counsel argued that the court should reduce defendant's sentence to
fifty years with a thirty-year parole-bar and that the sentences should run
concurrently.
F. The Resentencing Decision.
The judge found mitigating factor seven but mitigating factors eight and
nine did not apply. The judge took note of defendant's college degree and his
19 A-3859-18 "astounding" grade point average. The judge noted that defendant had not
committed any crime in the previous thirteen years, and this showed he had
matured and gained a sense of responsibility.
The judge pointed out that defendant had spoken "intelligently" and
conveyed a sense of pride in his accomplishments. Defendant had admitted his
criminal conduct and expressed remorse, apologized to the victims' family, and
did not attempt to minimize or make excuses for his behavior. The judge
found that defendant had "in fact, rehabilitated himself."
Without further discussion, the judge adopted the other findings on the
sentencing factors that the court made when defendant was first sentenced.
The judge concluded that in light of Zuber and the Miller factors, as well as
mitigating factor seven, defendant was entitled to a reduction in his sentence.
The judge found that no change in the sentence for murder was warranted
because defendant was "clearly involved" in that "heinous[]" crime.
The judge found, however, that the sentence for aggravated sexual
assault should be reduced from twenty years, with a ten-year parole-bar, to
sixteen years, with an eight-year parole-bar. The judge did not change the
sentences for robbery, burglary, or auto theft, and noted that these sentences
had no "practical effect" on defendant's parole eligibility.
20 A-3859-18 Regarding the Yarbough factors, the judge stated that over the years,
there had been a movement away from consecutive sentences where the
defendant had committed a series of crimes in a short period of time. The
judge noted that defendant had committed the present offenses "in one
significant, heinous situation."
However, the judge made no change to the consecutive sentences
previously imposed for murder, aggravated sexual assault, and auto theft.
Therefore, the judge reduced defendant's aggregate term from life plus twenty-
five years, with a forty-year parole-bar, to life plus twenty-one years with a
thirty-eight-year parole-bar. The judge memorialized his findings in the
amended JOC dated October 31, 2018.
IV.
As noted, the State argues that defendant was not entitled to resentencing
under Zuber and Miller because defendant was not sentenced to life
imprisonment without parole or the functional equivalent of such a sentence.
Defendant argues, however, that we should not consider the State's argument
because the State did not file a cross-appeal from the amended JOC filed
following the resentencing.
21 A-3859-18 We decline to consider the State's argument that the trial court erred by
resentencing defendant. We will not consider an argument that a party failed
to raise properly in a cross-appeal. See State v. Elkwisni, 190 N.J. 169, 175
(2007) (refusing to consider issue raised by State because it did not appeal
from the judgment remanding the issue to the trial court); State v. Pescatore,
213 N.J. Super. 22, 30 (App. Div. 1986), aff'd, 105 N.J. 441 (1987) (holding
that defendant was barred from raising argument because a cross-appeal was
not filed).
The State argues, however, that its failure to file a cross-appeal does not
preclude the court from considering its argument that resentencing was not
required. It contends the argument may be raised as harmless error. We
disagree. We are convinced that the State may not challenge the trial court's
order of September 5, 2018, which granted defendant's motion for
resentencing, because the State did not file a cross-appeal from that order.
Defendant argues that in reviewing the trial court's resentencing, we
should consider whether the State, in fact, provides juvenile defendants with a
meaningful opportunity for release, as required by Graham, Miller, and Zuber.
In support of that argument, defendant has supplemented the record on appeal
22 A-3859-18 with parole data, which he contends shows the State does not, in fact, provide
juvenile defendants with a meaningful opportunity to obtain parole release.
Defendant notes that the information provided by the Parole Board
shows that in the period from January 1, 2012, through December 31, 2019,
ninety-one percent of inmates sentenced to life imprisonment were not granted
parole when they first become eligible. Defendant asserts that the data also
shows the inmates with life sentences who were initially denied parole
received "lengthy" future eligibility terms (FET).
Defendant notes the data indicates that 40.4% of those inmates received
an FET of three years or less; 28.8% received an FET of between four and nine
years and two months; 22.7% received an FET of ten years; and 6.4% received
an FET of more than ten but less than twenty years. Defendant contends these
statistics show that he has a slim chance of being paroled when he first
becomes eligible.
The ACLU-NJ also contends that the parole data is relevant to
determining if New Jersey provides a meaningful opportunity for inmates
sentenced to life imprisonment to obtain release on parole. The ACLU-NJ
contends that for the possibility of parole to cure an otherwise disproportionate
23 A-3859-18 juvenile sentence, there must be a probability of release if the juvenile can
show maturation and reform.
The ACLU-NJ argues that the resentencing court erred by failing to
order the State to produce the relevant parole data. It further argues that if the
matter is remanded for resentencing, the trial court should consider whether
New Jersey's parole process ensures proper consideration of a juvenile's
maturation and reform.
We decline to consider defendant's contention that based on the parole
data provided, the State does not provide inmates with life sentences a
meaningful opportunity for release when they first become eligible for parole.
The parole data that defendant relies upon was presented for the first time on
appeal, and the State did not have an opportunity to challenge defendant's
characterization of the data. In addition, the trial court made no findings or
decision on this issue.
Moreover, in Tormasi, a panel of this court determined that parole data
of the sort defendant relies upon is not probative as to whether the State's
parole process provides a meaningful opportunity for release when an inmate
first becomes eligible for parole. 466 N.J. Super. at 69. In that case, the
defendant had murdered his mother when he was sixteen years old. Id. at 56.
24 A-3859-18 The defendant was tried as an adult, found guilty, and sentenced to life
imprisonment, with thirty years of parole ineligibility. Ibid. He filed a motion
seeking resentencing under Zuber and argued that he had been sentenced to the
practical equivalent of a life sentence without parole. Id. at 57. The panel
held that the sentence was not the functional equivalent of life without parole.
Id. at 60.
The court also rejected the defendant's contention that, based on parole
data and other information, it was likely that: the defendant would be denied
parole when he first becomes eligible, a FET will be established, and he will
serve substantially more than thirty years before he is released. Id. at 67. The
court noted that defendant's claim that he will be denied parole was "entirely
speculative." Id. at 68.
The court refused to consider the defendant's contention that the Parole
Board probably will deny him parole because it does so frequently when
persons convicted of murder first become eligible. Id. at 68-69. The court
stated that the fact that other convicted murders have been initially denied
parole was presumably based on individualized consideration of regulatory
factors. Id. at 69. The court held that "data showing the frequency of parole
denial is not probative." Ibid.
25 A-3859-18 We agree with the decision in Tormasi and similarly conclude that the
parole data relied upon by defendant and the ACLU-NJ in this case is not
probative as to whether New Jersey's parole process provides juvenile
defendants sentenced to lengthy terms of imprisonment a meaningful
opportunity for release. The data that defendant has presented encompasses
both adult and juvenile defendants. Moreover, the data does not reflect the
significant subjective and objective considerations that bear upon any parole
decision.
When a defendant is eligible for parole, the Board is required to consider
the matter in accordance with the applicable statutory standard for parole. See
Perry v. N.J. State Parole Bd., 459 N.J. Super. 186, 194 (App. Div. 2019)
(noting that parole for persons convicted of offenses committed before August
18, 1997 is governed by the standards in N.J.S.A. 30:4-123.53(a) and 30:4-
123.56(c) before those statutes were amended on that date) (citing Williams v.
N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div. 2000)).
Moreover, the Board makes its parole decisions based on all pertinent
factors including those enumerated in N.J.A.C. 10A:71-3.11(b). Those
decisions are "highly predictive and individualized discretionary appraisals."
Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016) (quoting Beckworth v.
26 A-3859-18 N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). In making its decisions, the
Board must assess "a multiplicity of imponderables, entailing primarily what a
man is and what he may become rather than simply what he has done." Ibid.
(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10
(1979)).
Therefore, data and statistics reflecting the Parole Board's decisions
regarding other inmates is not predictive or probative as to whether the State's
parole system provides any particular inmate, such a defendant, a meaningful
opportunity for release when that individual first becomes eligible for parole.
Thus, the parole data relied upon by defendant and the ACLJ-NJ has no
bearing on whether the State's parole system affords defendant a meaningful
opportunity for release.
VI.
Defendant argues that the trial court failed to make the required analysis
and findings in the resentencing. Defendant contends the resentencing court
did not make appropriate findings on the aggravating and mitigating factors
and failed to address all of the Miller factors. He also contends the court again
imposed consecutive sentences but failed to review those sentences under the
"heightened level of care" required by Zuber.
27 A-3859-18 Defendant argues that the judge's rationale for finding aggravating factor
three (risk that defendant will commit another offense) is inconsistent with the
findings that he has rehabilitated himself and taken responsibility for his
actions. He argues that the judge should have found mitigating factors eight
(defendant's conduct was the result of circumstances unlikely to recur) and
nine (defendant's character and attitude indicate he is unlikely to commit
another offense).
Defendant also contends the judge erred by finding aggravating factor
one (nature and circumstances of the offense, including whether the offense
was committed in an "especially heinous, cruel or depraved manner"). He
contends that finding is inconsistent with the principle that an individual may
not be vicariously accountable for aggravating factors that pertain to an
accomplice.
Defendant further argues that the judge erred by failing to make
adequate findings on each of the Miller factors. In addition, defendant argues
that the resentencing court failed to make appropriate findings regarding the
consecutive sentences. He notes that the court did not consider those
sentences in light of the Miller factors. He also asserts that the court failed to
properly consider and assess the Yarbough criteria.
28 A-3859-18 We note that "critical to the sentencing process and appellate review is
the need for the sentencing court to explain clearly why an aggravating or
mitigating factor presented by the parties was found or rejected and how the
factors were balanced to arrive at the sentence." State v. Case, 220 N.J. 49, 66
(2014). The court's findings must be supported by a "reasoned explanation"
and "grounded in competent, credible evidence in the record." Id. at 67.
Here, the resentencing court adopted the initial sentencing judge's
findings of aggravating factors without an adequate explanation. The court
merely underscored the heinous nature of the crimes. The court failed to
address defendant's contention that it should not find aggravating factor three
because initially, the sentencing court based that finding in part on defendant's
lack of remorse.
However, on resentencing, defendant indicated that he now takes
responsibility for his criminal conduct, and the judge found that his acceptance
of responsibility was credible. The judge failed to explain the apparent
inconsistency between the finding that defendant had been rehabilitated and
his finding of aggravating factor three and his refusal to find mitigating factors
eight and nine.
29 A-3859-18 In addition, the judge did not address whether the finding of aggravating
factor one was based on the "heinous, cruel or depraved manner" in which
defendant acted or whether that finding was based on the "heinous, cruel or
depraved manner" in which Terry acted. As defendant points out, when
determining the aggravating factors, a defendant may not be vicariously
accountable for a co-defendant's actions. See State v. Rogers, 236 N.J. Super.
378, 387 (App. Div. 1989).
Furthermore, the judge did not make appropriate findings on each of the
Miller factors. The judge noted that defendant had made strides in pursuing an
education and found he had rehabilitated himself.
The judge did not, however, address the other Miller factors, including
defendant's claims regarding his impoverished family, his lack of maturity and
impulse control, susceptibility to peer pressure, and the extent to which he was
or was not directly involved in the commission of the offenses. The judge did
not address defendant's alleged lack of understanding of the criminal justice
process or whether it had an impact on the verdict and sentence.
The judge also did not explain the basis for reducing the sentence on the
aggravated sexual assault from twenty years, with a ten-year parole-bar, to
sixteen years, with an eight-year parole-bar. The judge did not provide reasons
30 A-3859-18 for reimposing the other sentences and did not explain why a more substantial
reduction in the overall aggregate sentence was not warranted.
Moreover, the judge failed to make appropriate findings regarding the
consecutive sentences. As noted, where a juvenile has been sentenced to
consecutive sentences, the resentencing court is to review the Yarbough
guidelines under "a heightened level of care." Zuber, 227 N.J. at 450.
Here, the resentencing court touched upon one of the Yarbough factors,
noting that the offenses had been committed closely in time and could be
considered "a single period of aberrant behavior." Yarbough, 100 N.J. at 644.
However, the judge did not address the other Yarbough factors or explain why
consecutive sentences were warranted.
The State argues that the findings of the resentencing judge were
sufficient to support the sentence. The State contends the judge thoroughly
reviewed the Miller factors in his written opinion of September 5, 2018, which
granted defendant's motion for resentencing, and then adopted those findings
when resentencing defendant.
However, in his September 5, 2018 opinion, the judge noted that the
sentencing court had considered, among other things, defendant's age, his
family and home environment, the prospects for rehabilitation, and the
31 A-3859-18 circumstances of the offenses. The judge pointed out that the sentencing court
did not consider those facts under the "purview" of Miller and Zuber.
The judge also noted that the sentencing court had considered the
Yarbough factors when the initial sentence was imposed but did not do so
"under the purview" of Miller and Zuber. Thus, the judge's opinion on
defendant's motion for resentencing did not provide the essential findings and
analysis required by Miller and Zuber.
Accordingly, we reverse the amended JOC and remand the matter to the
trial court for resentencing. On remand, the court shall make appropriate
findings of fact and conclusions of law regarding the aggravating and
mitigating factors, the Miller factors, and the consecutive sentences. We
express no opinion on what those findings should be, or whether defendant is
entitled to a more significant reduction in his sentence than previously ordered.
On remand, the trial court need not consider or address the parole data
and statistics that defendant has cited as support for his contention that the
State's parole system does not provide a meaning opportunity for release. As
noted previously, information as to the Parole Board's decisions regarding
other individuals is not probative. Tormasi, 466 N.J. Super. at 69.
32 A-3859-18 We also note that while this appeal was pending, the Supreme Court
issued its opinion in Jones v. Mississippi, 593 U.S. , 141 S.Ct. 1307 (2021).
In Jones, the Court held that under Miller and Montgomery, a separate finding
of permanent incorrigibility is not required before a person under the age of
eighteen who commits murder may be sentenced to life imprisonment without
parole. Id. at 1314-15. The Court also held that an on-the-record sentencing
explanation with an implicit finding of permanent incorrigibility is not
required. Id. at 1319.
The Court noted that in Miller, the Court had stated that a sentencer must
have the opportunity to consider a defendant's youth and the "discretion" to
impose a sentence other than life without parole. Id. at 1316 (quoting Miller,
567 U.S. at 489). The Court emphasized that its decision was intended to
enforce limits imposed by the Eighth Amendment to the United States
Constitution and it "does not preclude the States from imposing additional
sentencing limits in cases involving defendants under 18 convicted of murder."
Id. at 1323. The Court observed:
States may categorically prohibit life without parole for all offenders under 18. Or States may require sentencers to make extra factual findings before sentencing an offender under 18 to life without parole. Or States may direct sentencers to formally explain on the record why a life-without-parole sentence is
33 A-3859-18 appropriate notwithstanding the defendant's youth. States may also establish rigorous proportionality or other substantive appellate review of life-without- parole sentences. All of those options, and others, remain available to the States.
[Ibid.]
In Zuber, our Supreme Court noted that both the Eighth Amendment and
Article 1, paragraph 12 of the New Jersey Constitution prohibit cruel and
unusual punishments. 227 N.J. at 429. The Court stated that to satisfy both
constitutional provisions, a Miller analysis is required when a juvenile is
sentenced to the practical equivalent of life without parole. Ibid. The Court
also held that before a judge imposes "consecutive terms that would result in a
lengthy overall term of imprisonment for a juvenile, the court must consider
the Miller factors along with other traditional concerns." Ibid. (citing
Yarbough, 100 N.J. at 627).
Thus, Jones does not alter the sentencing guidelines mandated by Zuber.
In the absence of further direction from our Supreme Court, the trial court
must, on remand, apply Zuber and undertake the analysis required by that
In addition, while this appeal was pending, our Supreme Court issued its
opinion in State v. Torres, N.J. , (2021), in which the Court addressed
34 A-3859-18 the standards for imposing consecutive sentences. The Court stated that
Yarbough requires the trial court to place on the record a statement of reasons
for imposing consecutive sentences, which should address the overall fairness
of the sentence. Id. at (slip op. at 26) (quoting State v. Miller, 108 N.J.
112, 122 (1987)).
The Court held that "[a]n explicit statement, explaining the overall
fairness of a sentence imposed on a defendant for multiple offenses in a single
proceeding or in multiple sentencing proceedings, is essential to a proper
Yarbough sentencing assessment." Id. at (slip op. at 27) (citing Miller, 108
N.J. at 122). Therefore, on remand, the trial court shall undertake the analysis
and provide the statement of reasons required by Torres.
Reversed and remanded for further proceedings in conformity with this
opinion. We do not retain jurisdiction.
35 A-3859-18