STATE OF NEW JERSEY VS. YERO TAKUMA (84-05-1653 AND 84-05-1654, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 6, 2018
• Docket: A-1928-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1928-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YERO TAKUMA a/k/a ANDREW GRIFFITH,

Defendant-Appellant.

_____________________________

Argued May 30, 2018 – Decided July 6, 2018

Before Judges Fisher, Moynihan and Natali.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 84- 05-1653 and 84-05-1654.

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 brief).

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Frank J. Ducoat, of counsel and on the brief).

PER CURIAM Defendant Yero Takuma appeals from the denial of his motion

to correct an illegal sentence, arguing:

POINT I

BECAUSE THE EIGHTH AMENDMENT AND OUR STATE CONSTITUTION GIVE JUVENILE OFFENDERS SENTENCED TO LENGTHY PRISON TERMS "SOME MEANINGFUL OPPORTUNITY TO OBTAIN RELEASE BASED ON DEMONSTRATED MATURITY AND REHABILITATION," DEFENDANT TAKUMA, WHO HAS ALREADY SERVED IN EXCESS OF 33 YEARS IN PRISON, MUST BE RESENTENCED.

A. THE EIGHTH AMENDMENT AND JUVENILE OFFENDERS.

B. THE RECOGNITION THAT JUVENILE OFFENDERS ARE SUSCEPTIBLE TO CHANGE.

C. THE ZUBER[1] OPINION AND OUR STATE CONSTITUTION.

D. UNDER THE ANALYSIS SET FORTH IN MILLER[2] AND ZUBER, JUVENILE OFFENDERS WHO HAVE SERVED MORE THAN 30 YEARS IN PRISON ARE ENTITLED TO A RESENTENCING.

We decline to extend defendant's interpretation of the precepts

of Miller and Zuber to this case and affirm.

1 State v. Zuber, 227 N.J. 422, cert. denied, ___ U.S. ___, 138 S. Ct. 152 (2017). 2 Miller v. Alabama, 567 U.S. 460 (2012).

2 A-1928-16T1 Defendant, having been charged under two indictments for

crimes committed when he was sixteen years old,3 pleaded guilty to

all four counts of the first indictment: felony murder of Preston

McGhee, N.J.S.A. 2C:11-3(a)(3) (count one); first-degree robbery

of McGhee, N.J.S.A. 2C:15-1 (count two); third-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and

second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count four); and to aggravated manslaughter

as a lesser included offense of count one of the second

indictment.4 The State agreed to recommend: (1) a sentence of

thirty years to life for felony murder under count one of the

first indictment with a minimum parole ineligibility of thirty

years; (2) a concurrent term for the sentence imposed for

aggravated manslaughter under the second indictment; and (3)

dismissal of the remaining counts of the second indictment. In

accordance with the range set forth in the plea agreement,

3 The crimes were committed on February 13, 1984. Defendant was born on May 15, 1967. 4 The second indictment charged defendant with the purposeful or knowing murder of Edmond Leslie, N.J.S.A. 2C:11-3(a)(1), (2) (count one); felony murder of Leslie, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery of Leslie, N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five).

3 A-1928-16T1 defendant was sentenced in January 1985 to life imprisonment with

a thirty-year parole ineligibility period for felony murder, and

to concurrent terms of twenty years for robbery, five years for

unlawful possession of a handgun, and ten years for possession of

a weapon for an unlawful purpose. On the second indictment, he

was sentenced to a concurrent term of ten years for aggravated

manslaughter.5

Before addressing defendant's arguments, we turn to the

State's claims that this appeal is procedurally barred under Rule

3:22-5 and is moot.

The Rule 3:22-5 bar stems from defendant's January 2013 motion

for reduction of sentence under Rule 3:21-10 based on the United

States Supreme Court's holding in Miller. Because we affirmed the

trial court's denial of that motion,6 the State argues defendant

is seeking "a second bite at the same apple," which should be

precluded inasmuch as our decision was a "prior adjudication upon

the merits of any ground for relief [which] is conclusive whether

made in the proceedings resulting in the conviction or in any

post-conviction proceeding brought pursuant to this rule or prior

5 We affirmed defendant's sentence but merged the robbery conviction with his felony murder conviction and vacated the robbery sentence. State v. Griffith, No. A-2903-84 (App. Div. Nov. 19, 1985). 6 State v. Takuma, No. A-4784-13 (App. Div. Feb. 10, 2015).

4 A-1928-16T1 to the adoption thereof, or in any appeal taken from such

proceedings," R. 3:22-5.

Notwithstanding that defendant's present claim directly

references Miller, he avers in his reply brief that he "is not

seeking to relitigate a Miller claim, he is seeking relief based

on Zuber." Setting aside for a moment that Zuber was decided by

the Supreme Court after the motion judge had already entered the

order that is the basis for this appeal – and before this appeal

was filed7 – we will allow defendant's challenge to what he alleges

is an illegal sentence. See Zuber, 227 N.J. at 437 (recognizing

that Rule 3:21-10(b)(5) permits a defendant to "challenge an

illegal sentence at any time").

We also determine the State's mootness argument – based on

defendant's present parole-eligible status after having served

thirty years — to be without sufficient merit to warrant discussion

here. R. 2:11-3(e)(2). Defendant's parole status could be

impacted if we were to order defendant to be resentenced, and a

judge reduced the life term. See In re Registrant J.S., 444 N.J.

Super. 303, 313 (App. Div. 2016) (acknowledging a case is moot

"when the decision sought in a matter, when rendered, can have no

7 The motion judge's order was entered November 17, 2016. Our Supreme Court decided Zuber on January 11, 2017. Defendant filed this appeal six days later.

5 A-1928-16T1 practical effect on the existing controversy" (quoting Greenfield

v. N.J. Dep't of Corr., 382 N.J. Super. 254, 258 (App. Div.

2006))).

Despite appellate counsel's advancement of an argument

unraised to the trial court, we will consider defendant's argument

that he is entitled to resentencing under the Supreme Court's

holding in Zuber, by extension of Miller.8 See ACLU v. Cty. of

Hudson, 352 N.J. Super. 44, 72 (App. Div. 2002) (recognizing that

an argument not raised in the trial court may be considered on

appeal where "an arguably superseding . . . decisional development

occur[red] between the time a court rendered its decision and

appellate consideration of the judgment or order" and "the focal

issue [was] entirely a question of law"). "We consider legal and

constitutional questions de novo." State v. Galicia,

210 N.J. 364, 381 (2012); see also State v. Hudson, 209 N.J. 513,

529 (2012) (noting that questions of law in sentencing are reviewed

de novo).

We first conclude that the Eighth Amendment prohibition on

"a sentencing scheme that mandates life in prison without

8 The trial court did consider our now overturned decision in State v. Zuber, 442 N.J. Super. 611 (App. Div. 2015), concluding that defendant's thirty-year period of parole ineligibility "did not amount to a de facto life sentence as it afforded him the opportunity to have a meaningful and realistic opportunity for parole."

6 A-1928-16T1 possibility of parole for juvenile offenders," as determined by

the Miller court, 567 U.S. at 479, is not implicated here. In

considering the reach of Miller and other related decisions, the

Zuber Court considered the sentences of two offenders who were

juveniles when they committed their crimes: Zuber, who was

convicted of two rapes and sentenced to an aggregate of 110 years

with fifty-five years of parole ineligibility – first eligible for

parole at age seventy-two; and Comer, who was convicted of four

armed robberies and sentenced to an aggregate of seventy-five

years with just over sixty-eight years of parole ineligibility –

first eligible at age eighty-five. Zuber, 227 N.J. at 428, 430,

433. Although the Court determined both sentences were "not

officially 'life without parole,'" they nonetheless "trigger[ed]

the protections of Miller under the Federal and State

Constitutions." Id. at 448.

The important question considered by the Zuber Court – "Will

a juvenile be imprisoned for life, or will he have a chance at

release?" Id. at 446 – has already been answered in this case.

Defendant – who is not yet forty years old — has already been

considered for parole.9 Unlike the defendants in Zuber, defendant

9 The New Jersey Parole Board denied defendant's application in May 2015. Takuma v. N.J. State Parole Bd., No. A-5672-14 (App. Div. May 2, 2017) (slip op. at 5). We reversed the Parole Board's

7 A-1928-16T1 did not face "potential release after five or six decades of

incarceration, when they would be in their seventies and eighties."

Id. at 448. Defendant has not – in violation of the Eighth

Amendment – been "denied [by the State of] any chance to later

[after sentencing] demonstrate that he is fit to rejoin society."

Graham v. Florida, 560 U.S. 48, 79 (2009) (emphasis added).

Unlike the sentences imposed in Zuber, this was a bargained-

for term, pursuant to which defendant enjoyed the benefit of

sentences on all other counts that ran concurrent to the life term

with a mandated thirty years of parole ineligibility. The sentence

– which has already resulted in an opportunity to obtain release

– hardly amounts to the constitutionally infirm life without

effective chance of parole terms decried in Zuber. Further, the

sentencing judge said he was burdened "because the court realizes

the age of the [d]efendant when he perpetrated these crimes, and

he is young today," and found "there's one mitigating factor, his

age." The judge also noted that defendant did

not have a lengthy record because he's a [juvenile] and as a [juvenile] he had one possession in 1983 of a dangerous weapon which was a gun. His background, he was attending

denial of defendant's parole application and remanded the matter for the Board to conduct a new parole hearing within forty-five days because it was unclear what standard the Board applied when it reviewed defendant's application. Id. at 8-9. The record does not contain the Parole Board's decision on remand.

8 A-1928-16T1 school but had to leave. He was always involved in fights, showing the nature of the person. He was involved in fights and as a matter of fact was expelled, I think from Barringer High School, because of many incidents of fighting in school, indicating violence within [defendant] that he expressed one night in killing two people.

The judge imposed sentence after weighing the circumstances of the

crimes against defendant's age and background. We find no support

for defendant's contention that the sentencing judge believed

defendant "might be beyond rehabilitation."

Defendant did not raise to the trial court, likely because

Zuber had not yet been decided, his present argument that juveniles

who have served prison terms of thirty years or more should be

considered for resentencing or parole. Our Supreme Court declined

to address that issue in Zuber, and instead "encourage[d] the

Legislature to examine this issue," observing "Graham left it to

the States 'to explore the means and mechanisms' to give defendants

'some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.'" Zuber, 227 N.J. at

452 (quoting Graham, 560 U.S. at 75). We follow the Court's

recommendation, noting the Legislature's introduction – and

referral to the Law and Public Safety Committee – of S. 428 (2018).

We also note defendant has had a "meaningful opportunity to obtain

release."

9 A-1928-16T1 We determine the balance of defendant's arguments to be

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). Inasmuch as we determine defendant is

not entitled to be resentenced under Zuber, we need not consider

defendant's musings that our Supreme Court chose resentencing as

the remedy because the Parole Board does not consider a juvenile's

youth and attendant circumstances. The Supreme Court made no such

pronouncement. Moreover, we will not consider an issue that

implicates the interplay of judicial sentencing and executive

parole raised for the first time in defendant's reply brief. See

Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super.

590, 596 (App. Div. 2001) (declining to consider an issue raised

"for the first time in a reply brief"); see also State v. Smith,

55 N.J. 476, 488 (1970).

Affirmed.

10 A-1928-16T1