The following facts are taken from the record. In March 1983, defendant and two other minors were arrested for entering the home of an elderly man and fatally beating him with a wooden nail-studded board to near decapitation, while he lay in bed. Defendant was fourteen years and one month old at the time of the arrest. He was found in possession of the wooden board, as well as two color telеvisions and an eight-track player belonging to the victim.
Following a competency hearing, the Family Part judge granted the State's motion to waive jurisdiction pursuant to N.J.S.A. 2A:4A-26. Subsequently, a jury convicted defendant of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) ; second-degree burglary, N.J.S.A. 2C:18-2(b)(2) ; first-degree robbery, N.J.S.A. 2C:15-1(b) ; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) ; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) ; and third-degrеe possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).
Defendant was sentenced to life imprisonment with thirty years of parole ineligibility for the first-degree felony murder
Defendant appealed from his conviction and sentence, and we affirmed. State v. Bass, Nо. A-0056-84 (App. Div. Sept. 26, 1986) (slip op. at 10). The Supreme Court denied certification. State v. Bass,
In June 2011, defendant filed a third PCR petition, which was denied. He subsequently filed a third federal writ of habeas corpus, which was denied in October 2013.
The matter currently on appeal arises from defendant's fourth PCR petition, filed in February 2017. In his petition, defendant argued the revised waiver statute, N.J.S.A. 2A:4A-26.1(c)(1), enacted in 2015, should be applied retroactively to his case. Defendant challenged his sentence and argued it was tantamount to a life sentence without parole, and thus, illegal. Defendant also argued his subsequent rehabilitation during incarceration refuted the sentencing judge's finding defendant was not amenable to rehabilitation.
The PCR judge issued a written opinion denying defendant's petition without an evidentiary hearing. Reviewing the plain language of N.J.S.A. 2A:4A-26.1(c)(1), the PCR judge found no express language permitting the retroactive application of the statute. Referencing our decision in State in Interest of J.F.,
waived, indicted, tried, and sentenced nearly [thirty-three] years before the revision came into effect. His conviction and sentence were affirmed. He filed three PCR petitions which were denied and affirmed оn appeal. He has filed three timesfor a federal writ of habeas corpus which were then respectively dismissed, terminated, and denied.
The judge concluded:
While the majority in [ J.F. ] makes a compelling argument for why N.J.S.A. 2A:4A-26.1 should apply retroactively in that particular case, its instruction to the lower courts is unclear as to how it would apply to an aged, [extensively] litigated case such as the one beforе this court. In light of that ambiguity, the preference for applying new laws prospectively must control, as should a plain language reading of the statute, which does not expressly mention retroactivity.
The PCR judge rejected defendant's arguments regarding his sentence. He concluded:
Defendant's sentence is not functionally equivalent to life without parole: his paroledisqualifier is [thirty-fivе] years. He is, in fact, currently scheduled for a parole board hearing on September 1, 2018, at which time he will be [forty-nine] years old. Pursuant to the life expectancy chart adopted for use in the New Jersey Courts, [defendant] is currently expected to live another 32.2 years. [Life Expectancies for All Races and Both Sexes, Pressler & Verniero, Current N.J. Court Rules, Appendix I-A, www.gannlaw.com(2017).]
The PCR judge rejected defendant's claim that his rehabilitation during incarceration warranted revisiting his sentence, because there was no means for the sentencing judge to consider defendant's rehabilitation as a factor. The judge concluded defendant's rehabilitation was a consideration for the parole board. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SINCE N.J.S.A. 2A:4A-26.1(c)(1), WHICH PROVIDES THAT A JUVENILE CANNOT BE WAIVED TO THE LAW DIVISION UNLESS THE STATE CAN ESTABLISH THAT THE JUVENILE WAS 15 YEARS OF AGE OR OLDER AT THE TIME OF THE DELINQUENT ACT, APPLIED RETROACTIVELY TO THE DEFENDANT'S CASE, IN WHICH HE WAS 14 YEARS OLD AT THE TIME OF THE OFFENSE IN QUESTION.
POINT II
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE UNDER [RULE ] 3:21-10(b)(5) AS THE SENTENCE VIOLATES THE EIGHTH AMENDMENT PROHIBITION AGAINST [THE] CRUEL AND UNUSUAL PUNISHMENT CLAUSE, FOURTEENTH AMENDMENT DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION, AND THE NEW JERSEY CONSTITUTION'S
CRUEL AND UNUSUAL PUNISHMENT CLAUSE. ( N.J. CONST. ARTICLE I, PARAGRAPH 12 ).
POINT III
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF/MOTION TO CORRECT AN ILLEGAL SENTENCE AS HE HAS BEEN REHABILITATED CONTRARY TO THE SENTENCING JUDGE'S DETERMINATION THAT DEFENDANT COULD NOT BE REHABILITATED.
I.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Goodwin,
"[W]here the [PCR] court does not hold an evidentiary hearing, wе may exercise de novo review over the factual inferences the trial court has drawn from the
A petition for PCR may be granted upon the following grounds:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging the impоsition of sentence in excess of or otherwise not in accordance with the sentence authorized by law shall be filed pursuant to [Rule ] 3:21-10(b)(5).
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
[R. 3:22-2.]
Furthermore, "[a] truly illegal sentence can be corrected аt any time." State v. Zuber,
II.
Defendant argues the PCR judge erred in failing to apply N.J.S.A. 2A:4A-26.1(c)(1) retroactively pursuant to J.F. because federal law and fundamental principles of fairness favor a retroactive application of the waiver statute. We disagree.
In J.F., we undertook a detailed analysis of the revised waiver statute and affirmed a trial court's denial of a waiver request involving a murder allegedly committed by a fourteеn-year-old child.
Following the submission of supplemental briefs, we addressed whether N.J.S.A. 2A:4A-26.1(c)(1) barred waiver of J.F. for prosecution as an adult because he was under the age limit prescribed by the statute.
ameliorate[d] the punitive sentencing previously meted out to adolescent offenders after waiver. The legislative action was also intended to address the treatment needs of children. The increase in the minimum waiver age is part of that emphasis on rehabilitation rather than punishment, a part of the effort to ensure that children do not become prey to adult inmates nor suffer the many societal consequences of an adult criminal record.
[Id. at 55 ,(footnotes omitted).] 140 A.3d 564
Furthermore, we noted "[t]he State ma[de] no argument that it would suffer an 'unconstitutional interference with [a] vested right[ ] or a manifest justice.' "
Additionally, we held the savings statute, N.J.S.A. 1:1-15, supported the retroactive application of the revised waiver statute because of considerations regarding "utilization of [thе] more lenient sentencing provisions enacted prior to the imposition of the
In C.F., the defendant had committed felony murder when he was juvenile, but was not discovered as the perpetrator until DNA evidence connected him to the crime thirty-four years later when the defendant was fifty-one years of age.
Adopting this logic, in J.F., we concluded "[f]or the very reasons expressed in C.F., the current age provision should be applied to a juvenile such as J.F. who, under the revised statute, would no longer face the possibility of waiver as a result of any offenses he committed as a fourteen-year-old." J.F.,
Although the majority would apply the revised statute retroactively to this appeal, it does not clarify whether the revised statute applies in other circumstances. For example, does the revised statute apply to a case where the juvenile has already been waived to adult court and the trial is pending or has actually begun? Does the revised statute apply to a case where the juvenile was waived to adult court, was convicted, and is pending sentencing or appeal?
[Ibid. ]
Defendant urges us to answer these questions in the affirmative. However, we are of a different view.
Subsequent to our decision in J.F., the Supreme Court in State in Interest of N.H.,
Therefore, despite its procedural characteristics, a juvenile waiver is a profoundly consequential event as it relates to the adjudication and rehabilitation of a juvenile defendant. To that end, we reject the State's argument the waiver statute is purely procedural and without an ameliorative effect.
However, a reliance on the savings statute is unavailing here because the waiver law was not only the same at the time
As the State notes, those limits are demonstrated by the prejudice that would be experienced by "requiring new waiver hearings for an unknown number of individuals who had been wаived up under the prior law, and the release of numerous other [individuals] who ... have now served more time than they could have under the juvenile system." The prejudice to the State is obvious, especially in cases where a defendant has begun, but not yet completed his sentence. For example, the result suggested by the retroactive application of the waiver statute where a defendant has served ten years of a thirty year sentence would require the State to re-assemble
For these reasons, we affirm the PCR judge's decision not to retroactively apрly N.J.S.A. 2A:4A-26.1(c)(1). To the extent we have not addressed defendant's other arguments for the retroactive application of N.J.S.A. 2A:4A-26.1(c)(1), it is because those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
III.
We reject defendant's argument that his sentence was illegal because it was the functional equivalent of life without parole, and thus, warranted review pursuant to Rule 3:21-10(b)(5). Wе also disagree with defendant's argument that his rehabilitation
In State v. Zuber, the defendants committed serious violent crimes as juveniles.
The Supreme Court stated:
In the past decade, the United States Supreme Court has sent a clear message in that regard: "children are different" when it comes to sentencing, and "youth and its attendant characteristics" must be considered at the time a juvenile is sentenced to life imprisonment without the possibility of parole.
The Supreme Court recognized "the mitigating qualities of youth" and directed that judges in those cases consider a number of factors at sentencing, including immaturity and "failure to appreciate risks and consequences"; "family and home environment"; family and peer pressures; "an inability to deal with police officers or prosecutors" or the juvenile's own attorney; and "the possibility of rehabilitation."
We find that the same concerns apply to sentences that are the practical equivalent of life without parole, like the ones in these appeals. The proper focus belongs on the amount of real time a juvenile will spend in jail and not on the formal label attached to his sentence. To satisfy the Eighth Amendment and Article I, Paragraph 12 of the State Constitution, which both prohibit cruel and unusuаl punishment, we direct that defendants be resentenced and that the Miller factors be addressed at that time.
[Id. at 429 ,(citing Miller v. Alabama, 152 A.3d 197 , 567 U.S. 460 , 132 S.Ct. 2455 (2012) ).] 183 L.Ed.2d 407
Moreover, the Court stated:
Miller's command that a sentencing judge "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison," applies with equal strength to a sentence that is the practical equivalent of life without parole. Defendants who servе lengthy term-of-years sentences that amount to life without parole should be no worse off than defendants whose sentences carry that formal designation.
[ Id. at 446-47,(quoting Miller, 152 A.3d 197 , 567 U.S. at 480).] 132 S.Ct. 2455
Here, defendant's sentence and circumstances are quite different than the concerns outlined in Zuber. Defendant is now forty-nine years of age. As the PCR judge noted, defendant's parole disqualifier was thirty-five years and he is now eligible for parole.
Finally, defendant's sentence is not illegal because he now claims to be rehabilitated as a result of his incarceration. We do not minimize defendant's efforts to rehabilitate himself, which include: defendant's role as president of the Lifers Group Juvenile Awareness Program, earning a GED high school equivalency diploma, and success in various institutional programs. However, consideration of these accomplishments is exclusively the province of the parole board and not a means of collateral attack on defendant's sentence-which has been affirmed on direct appeal. State v. Bass, Docket No. A-0056-84 (App. Div. Sept. 26, 1986) (slip op. at 10).
Affirmed.