State of New Jersey v. Ricky Zuber

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4169-11T2

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION

Plaintiff-Respondent,

October 30, 2015

v.

APPELLATE DIVISION

RICKY ZUBER,

Defendant-Appellant.

___________________________________

Argued December 1, 2014 – Decided October 30, 2015

Before Judges Sabatino, Guadagno and Leone.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment Nos. 81-00-03729 and 81-00-03730.1

Mark P. Stalford, Designated Counsel, argued

the cause for appellant (Joseph E. Krakora,

Public Defender, attorney; Mr. Stalford, on

the brief).

Andrew R. Burroughs, Special Deputy Attorney

General/Acting Assistant Prosecutor, argued

the cause for respondent (Carolyn A. Murray,

Acting Essex County Prosecutor, attorney;

Mr. Burroughs, on the brief).

Appellant filed a pro se supplemental brief.

1

Indictment No. 81-00-03730 was consolidated with Indictment No.

81-00-02663, which is not at issue in this appeal.

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Ricky Zuber was born on April 14, 1964. He

committed two separate gang rapes in November and December of

1981, when he was nearly eighteen years old. He is currently

serving consecutive sentences for numerous offenses arising out

of these two criminal episodes. Those sentences total 110 years

in prison with fifty-five years of parole ineligibility.

Defendant now claims that his sentences are illegal under

the recent United States Supreme Court decision in Graham v.

Florida, 560 U.S. 48, 74, 130 S. Ct. 2011, 2030, 176 L. Ed. 2d

825, 845 (2010), which held that "for a juvenile offender who

did not commit homicide the Eighth Amendment forbids the

sentence of life without parole."

We hold that Graham applies retroactively to sentences

previously imposed. To apply Graham to defendant's sentences,

Graham would have to be extended to cover terms-of-year

sentences, aggregated from consecutive sentences for different

crimes, from different criminal episodes, imposed in different

sentencing proceedings. Even making the assumptions that Graham

could be thus extended, we reject defendant's claim.

Defendant's sentence of fifty-five years before parole

eligibility is not the functional equivalent of life without

2 A-4169-11T2

parole, because it gives him a meaningful and realistic

opportunity for parole well within the predicted lifespan for a

person of defendant's age.

I.

The sentencing judge related the following facts. From

late 1979 to 1981, defendant accumulated thirty-eight juvenile

delinquency complaints, and six adjudications for robbery and

other offenses. He was an escapee from a state institution, and

was seventeen years and seven months old, when he committed the

crimes at issue here.

On November 23, 1981, defendant led a vicious gang rape of

a woman whose car broke down. He was charged in Indictment No.

81-00-03730 and was referred for trial as an adult. In 1983, a

jury convicted him of four offenses, for which he is currently

serving the following sentences: (1) twenty years in prison with

ten years of parole ineligibility for first-degree kidnapping,

N.J.S.A. 2C:13-1(b)(1); (2) a consecutive ten years in prison

with five years of parole ineligibility for second-degree

robbery, N.J.S.A. 2C:15-1; (3) a consecutive twenty years in

prison with ten years of parole ineligibility for first-degree

aggravated sexual assault by vaginal penetration, N.J.S.A.

2C:14-2; and (4) a concurrent twenty years in prison with ten

years of parole ineligibility for first-degree aggravated sexual

3 A-4169-11T2

assault by anal penetration, N.J.S.A. 2C:14-2. Defendant's

total sentence under Indictment No. 81-00-03730 is fifty years

in prison with twenty-five years of parole ineligibility.

On December 9, 1981, while still at large, defendant

instigated and participated in the gang rape of a sixteen-year-

old girl who was on her way to school. He was charged in

Indictment No. 81-00-03729 and referred for trial as an adult.

In a separate trial held in 1983, a jury convicted him of six

offenses, for which he is currently serving the following

sentences: (1) twenty years in prison with ten years of parole

ineligibility for first-degree kidnapping, N.J.S.A. 2C:13-

1(b)(1); (2) a consecutive twenty years in prison with ten years

of parole ineligibility for first-degree robbery, N.J.S.A.

2C:15-1; (3) a consecutive twenty years in prison with ten years

of parole ineligibility for first-degree aggravated sexual

assault by vaginal penetration, N.J.S.A. 2C:14-2; (4) a

concurrent twenty years in prison with ten years of parole

ineligibility for first-degree aggravated sexual assault by anal

penetration, N.J.S.A. 2C:14-2; (5) a concurrent twenty years in

prison with ten years of parole ineligibility for first-degree

aggravated sexual assault by oral penetration, N.J.S.A. 2C:14-2;

and (6) a concurrent five years in prison for third-degree

unlawful possession of a knife, N.J.S.A. 2C:39-4(d).

4 A-4169-11T2

Defendant's total sentence under Indictment No. 81-00-03729 is

sixty years in prison with thirty years of parole ineligibility.

The sentencing judge made all of the sentences under

Indictment No. 81-00-03729 consecutive to the sentences under

Indictment No. 81-00-03730. As a result, defendant is currently

serving an aggregate sentence on both indictments of 110 years

with fifty-five years of parole ineligibility.

Originally, in 1983 and 1984, the sentencing judge had

imposed an aggregate sentence on the two indictments of 150

years in prison with seventy-five years of parole ineligibility.

We affirmed in separate orders, State v. Zuber, No. A-5323-85

(App. Div. Feb. 5, 1985); State v. Zuber, No. A-5330-84 (App.

Div. Feb. 5, 1985). The Supreme Court summarily remanded to the

trial court for reconsideration of defendant's sentences under

State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S.

1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). State v. Zuber,

111 N.J. 643 (1988); State v. Zuber, 111 N.J. 650 (1988). On

October 28, 1988, the sentencing judge imposed the revised

sentences detailed above, changing from consecutive to

concurrent the sentence on the count in each indictment charging

aggravated sexual assault by anal penetration. In an order, we

affirmed the revised sentences, rejecting defendant's claims

5 A-4169-11T2

that the sentences were excessive. State v. Zuber, No. A-1768-

88 (App. Div. Aug. 15, 1989).

Defendant filed a petition for post-conviction relief (PCR)

that was denied in 2003. We affirmed. State v. Zuber, No. A-

3284-03 (App. Div. Feb. 17, 2005). The Supreme Court denied

certification. State v. Zuber, 184 N.J. 212 (2005). There is

no indication that defendant claimed, in his PCR appeal or his

prior appeals, that his sentence violated the Cruel and Unusual

Punishment Clause of the United States or New Jersey

Constitutions.

In 2010, defendant filed a motion to correct his sentence

as unconstitutional under Graham. After hearing argument, Judge

Michael A. Petrolle denied the motion on July 26, 2012, ruling

defendant's revised sentence did not violate Graham. The judge

found: "defendant does not have a sentence without parole. He

has a sentence that carries a stipulated date that he could at

the time be released if the parole board thought it was

appropriate." The judge concluded: "There is parole opportunity

here, it's just not as soon as he wants it."

Defendant's appeal was originally heard before an Excessive

Sentencing Oral Argument panel, and then was transferred to the

plenary calendar for full briefing and oral argument, after

which we received supplemental briefing.

6 A-4169-11T2

II.

In his brief, defendant raises the following arguments:

POINT I - DEFENDANT'S SENTENCE OF 110 YEARS,

55 YEARS TO BE SERVED WITHOUT ELIGIBILITY

FOR PAROLE IMPOSED FOR OFFENSES COMMITTED

WHEN HE WAS A JUVENILE CONSTITUTES CRUEL AND

UNUSUAL PUNISHMENT AS PROHIBITED BY U.S.

CONST. AMEND VIII; AND N.J. CONST. ART. I, ¶

12.

POINT II - DEFENDANT'S AGGREGATE SENTENCE AS

IMPOSED CONSTITUTES AN ILLEGAL SENTENCE

WHICH MAY BE CORRECTED AT ANY TIME.

"[A] truly 'illegal' sentence can be corrected 'at any

time.'" State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting

R. 3:21-10(b)(5)). "[A]n illegal sentence is one that 'exceeds

the maximum penalty provided in the Code for a particular

offense' or a sentence 'not imposed in accordance with law.'"

Id. at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000)

(noting that "not imposed in accordance with law" includes "a

disposition [not] authorized by the Code")). Defendant argues

he can raise his claim now because a sentence is illegal if it

constitutes cruel and unusual punishment.

We need not reach this argument for two reasons. First,

the State does not dispute the timeliness of defendant's claim.

Second, defendant filed his motion within one year of the Graham

decision. It is not contested that "the constitutional right

asserted [by defendant] was initially recognized by the United

7 A-4169-11T2

States Supreme Court" in Graham. R. 3:22-12(a)(2)(A). Further,

we find that right was "made retroactive" by that Court. Thus,

we can and do consider defendant's motion as a second PCR

petition. Ibid.; see R. 3:22-4(b)(2)(A).

Whether defendant's sentence is unconstitutional is an

issue of law subject to de novo review. State v. Pomianek, 221

N.J. 66, 80 (2015). We must hew to that standard of review.

III.

We begin by addressing the constitutional decisions invoked

by defendant. The Eighth Amendment of the United States

Constitution bars "cruel and unusual punishments." U.S. Const.

amend. VIII. The Eighth Amendment is "made applicable to the

States by the Due Process Clause of the Fourteenth Amendment."

Graham, supra, 560 U.S. at 53, 130 S. Ct. at 2018, 176 L. Ed. 2d

at 832; accord State v. Ramseur, 106 N.J. 123, 169 (1987).

In Graham, the United States Supreme Court addressed

whether the Eighth Amendment prohibited a State from imposing a

sentence of "life imprisonment without the possibility of

parole" on a juvenile for a nonhomicide offense. Graham, supra,

560 U.S. at 53-54, 130 S. Ct. at 2018, 176 L. Ed. 2d at 832.

The Court adopted "a categorical approach," analogizing to its

"categorical rule[] prohibiting the death penalty for defendants

who committed their crimes before the age of 18 [in] Roper v.

8 A-4169-11T2

Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)."

Id. at 61, 130 S. Ct. at 2022, 176 L. Ed. 2d at 837. The Court

announced a "categorical rule[]" that "those who were below

th[e] age [of 18] when the offense was committed may not be

sentenced to life without parole for a nonhomicide crime." Id.

at 74-75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845.

The Graham Court offered several rationales to support its

categorical rule. First, the Court found that, though the laws

of thirty-seven states and the federal government permitted

juveniles to be sentenced to life without parole for a

nonhomicide offense, the actual imposition of such sentences "is

exceedingly rare. And 'it is fair to say that a national

consensus has developed against it.'" Id. at 62-67, 130 S. Ct.

at 2023-26, 176 L. Ed. 2d at 837-41 (citation omitted).2

Second, the Graham Court considered "the culpability of the

offenders at issue in light of their crimes and characteristics,

along with the severity of the punishment in question." Id. at

67, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841. The Court

reaffirmed that "juveniles have lessened culpability" because,

"[a]s compared to adults, juveniles have a '"lack of maturity

2

The Court also noted that "the United States is the only Nation

that imposes life without parole sentences on juvenile

nonhomicide offenders." Id. at 81, 130 S. Ct. at 2034, 176 L.

Ed. 2d at 849.

9 A-4169-11T2

and an underdeveloped sense of responsibility"'; they 'are more

vulnerable or susceptible to negative influences and outside

pressures, including peer pressure'; and their characters are

'not as well formed.'" Id. at 68, 130 S. Ct. at 2026, 176 L.

Ed. 2d at 841 (quoting Roper, supra, 543 U.S. at 569-70, 125 S.

Ct. 1195, 161 L. Ed. 2d at 21-22). The Court also reiterated

that "[j]uveniles are more capable of change than are adults,

and their actions are less likely to be evidence of

'irretrievably depraved character' than are the actions of

adults." Ibid. (quoting Roper, supra, 543 U.S. at 570, 125 S.

Ct. at 1195, 161 L. Ed. 2d at 22).

The Graham Court stressed that "life without parole is 'the

second most severe penalty permitted by law.'" Id. at 69, 130

S. Ct. at 2027, 176 L. Ed. 2d at 842 (citation omitted).

"[L]ife without parole sentences share some characteristics with

death sentences that are shared by no other sentences." Ibid.

"[T]he sentence alters the offender's life by a forfeiture that

is irrevocable." Ibid. The Court added that life without

parole was "an especially harsh punishment for a juvenile"

because of the increased years and percentage of his life he

would serve. Id. at 70, 130 S. Ct. at 2028, 176 L. Ed. 2d at

843.

10 A-4169-11T2

Third, the Graham Court examined "whether the challenged

sentencing practice serves legitimate penological goals." Id.

at 67, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841. The Court

found that: "retribution does not justify imposing the second

most severe penalty on the less culpable juvenile nonhomicide

offender"; "[d]eterrence does not suffice to justify the

sentence," because juveniles are "'less susceptible to

deterrence'" and have "diminished moral responsibility";

incapacitation "is inadequate to justify that punishment"

because it is "questionable" whether juveniles are

"incorrigible"; and rehabilitation cannot justify such a

sentence because it "den[ies] the defendant the right to reenter

the community," which is inappropriate "in light of a juvenile

nonhomicide offender's capacity for change and limited moral

culpability." Id. at 71-74, 130 S. Ct. at 2028-30, 176 L. Ed.

2d at 844-45 (citations omitted).

The Graham Court found that the inadequacy of penological

theory "to justify life without parole for juvenile nonhomicide

offenders"; "the limited culpability of juvenile nonhomicide

offenders; and the severity of life without parole sentences all

lead to the conclusion that the sentencing practice under

consideration is cruel and unusual." Id. at 74, 130 S. Ct. at

2030, 176 L. Ed. 2d at 845. The Court concluded that "[t]he

11 A-4169-11T2

Constitution prohibits the imposition of a life without parole

sentence on a juvenile offender who did not commit homicide."

Id. at 82, 130 S. Ct. at 2034, 176 L. Ed. 2d at 850.

The Court struck down Graham's sentence of life without

parole for a nonhomicide offense even though there was judicial

discretion to choose a lesser sentence. Id. at 77, 130 S. Ct.

at 2031, 176 L. Ed. 2d at 847. Graham's conviction for armed

burglary with assault or battery carried "the minimum

nondeparture sentence" of five years, and the trial court

exercised its judgment to sentence the juvenile to life without

parole. Id. at 55-57, 130 S. Ct. at 2019-20, 176 L. Ed. 2d at

832-34. However, the Court ruled it "is inconsistent with the

Eighth Amendment" to "sentenc[e] a juvenile nonhomicide offender

to life without parole based on a subjective judgment that the

defendant's crimes demonstrate an 'irretrievably depraved

character.'" Id. at 76, 130 S. Ct. at 2031, 176 L. Ed. 2d at

846 (citation omitted).

The Court also rejected a "case-by-case approach" that

"would allow courts to account for factual differences between

cases and to impose life without parole sentences for

particularly heinous crimes." Id. at 77, 130 S. Ct. at 2031,

176 L. Ed. 2d at 847. The Graham Court found that nonhomicide

offenders were "categorically less deserving of the most serious

12 A-4169-11T2

forms of punishment than are murderers." Id. at 69, 130 S. Ct.

at 2027, 176 L. Ed. 2d at 842. "Although an offense like

robbery or rape 'is a serious crime deserving serious

punishment,' those crimes differ from homicide crimes in a moral

sense." Ibid. (citation omitted).

Two years after Graham, the United States Supreme Court

held that for convictions of murder, "mandatory life without

parole for those under the age of 18 at the time of their crimes

violates the Eighth Amendment's prohibition on 'cruel and

unusual punishments.'" Miller v. Alabama, __ U.S. __, __, 132

S. Ct. 2455, 2460, 183 L. Ed. 2d 407, 414-15 (2012) (emphasis

added). The Miller Court noted that its decision retained a

distinction between homicide and nonhomicide offenses: "Graham

established one rule (a flat ban) for nonhomicide offenses,

while we set out a different one (individualized sentencing) for

homicide offenses." Id. at __, 132 S. Ct. at 2466 n.6, 183 L.

Ed. 2d at 420 n.6.

IV.

Defendant's claim under Graham poses numerous issues not

resolved in Graham or Miller. Moreover, neither Graham nor

Miller have been applied in a published opinion in New Jersey.

See In re State ex rel. A.D., 212 N.J. 200, 215 n.6 (2012)

13 A-4169-11T2

(noting Graham's ruling barring "the imposition of life without

parole" on juveniles "is not an issue in this case").

A.

The first issue is whether Graham applies retroactively to

sentences imposed prior to that decision. The parties agree it

applies retroactively. We concur.

"Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed.

2d 334 (1989), governs retroactivity under federal law." State

v. Gaitan, 209 N.J. 339, 364 (2012). "A new rule generally does

not apply retroactively to a case where direct appeal is over

and the case is only being reviewed on a collateral basis."

Ibid. (citing Teague, supra, 489 U.S. at 310, 109 S. Ct. at

1075, 103 L. Ed. 2d at 356). "A new rule only applies

retroactively on collateral review if it fits into one of two

exceptions: either it render[s] types of primary conduct beyond

the power of the criminal law-making authority to proscribe, or

it is a watershed rule[] that implicate[s] the fundamental

fairness of the trial." Id. at 365 (internal quotation marks

omitted). We need address only the first exception here.

"The first, limited exception is for new rules 'forbidding

criminal punishment of certain primary conduct [including] rules

prohibiting a certain category of punishment for a class of

defendants because of their status or offense.'" O'Dell v.

14 A-4169-11T2

Netherland, 521 U.S. 151, 157, 117 S. Ct. 1969, 1973, 138 L. Ed.

2d 351, 358 (1997) (quoting Penry v. Lynaugh, 492 U.S. 302, 330,

109 S. Ct. 2934, 2953, 106 L. Ed. 2d 256, 285 (1989)). Thus, in

Penry, the United State Supreme Court ruled that if "the Eighth

Amendment prohibits the execution of mentally retarded persons

such as Penry regardless of the procedures followed, such a rule

would fall under the first exception to the general rule of

nonretroactivity and would be applicable to defendants on

collateral review." Penry, supra, 492 U.S. at 330, 109 S. Ct.

at 2953, 106 L. Ed. 2d at 285-86.

In Graham, the Court expressly prohibited "a particular

type of sentence as it applies to an entire class of offenders."

Graham, supra, 560 U.S. at 61, 130 S. Ct. at 2022-23, 176 L. Ed.

2d at 837. Because Graham "bars the imposition of a sentence of

life imprisonment without parole on a juvenile offender," it

falls within the first Teague exception as explained by Penry,

and thus "was therefore made retroactive on collateral review by

the [United States] Supreme Court as a matter of logical

necessity[.]" In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011)

(citing Tyler v. Cain, 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed.

2d 632 (2001)).

The federal and state courts that have decided the issue

have unanimously found Graham retroactive. See, e.g., Moore v.

15 A-4169-11T2

Biter, 725 F.3d 1184, 1190-91 (9th Cir. 2013), reh'g denied, 742

F.3d 917 (9th Cir. 2014); In re Moss, 703 F.3d 1301, 1303 (11th

Cir. 2013); St. Val v. State, 107 So. 3d 553, 554 (Fla. Dist.

Ct. App. 2013); Bonilla v. State, 791 N.W.2d 697, 700-01 (Iowa

2010); Beach v. State, 348 P.3d 629, 641 (Mont. 2015); see In re

Williams, 759 F.3d 66, 70 (D.C. Cir. 2014) (federal prosecutors

agree "Graham is retroactive to cases on collateral review").3

We agree with those decisions, and hold that Graham applies

retroactively to defendant's case under Teague.4

B.

Second, defendant's appeal raises the issue of whether

Graham's holding is restricted to a sentence of "life without

3

By contrast, courts have differed on the retroactivity of

Miller, which does not categorically ban life without parole

sentences for juveniles convicted of homicide. Beach, supra,

248 P.3d at 639; Davis v. McCollum, 798 F.3d 1317, __ (10th Cir.

2015); State v. Lyle, 854 N.W.2d 378, 389 n.5 (Iowa 2014). The

United States Supreme Court has granted certiorari in cases

considering Miller's retroactivity. Montgomery v. Louisiana, __

U.S. __, 135 S. Ct. 1546, 191 L. Ed. 2d 635 (2015); see Toca v.

Louisiana, __ U.S. __, 135 S. Ct. 781, 190 L. Ed. 2d 649 (2014),

cert. dismissed, __ U.S. __, 135 S. Ct. 1197, 191 L. Ed. 2d 149

(2015).

4

Because Graham's new rule is retroactive under the first Teague

exception, "'United States Supreme Court precedents control the

scope of retroactivity.'" State v. Purnell, 161 N.J. 44, 53

(1999) (quoting State v. Lark, 117 N.J. 331, 335 (1989)); see

Danforth v. Minnesota, 552 U.S. 264, 266, 128 S. Ct. 1029, 1032,

169 L. Ed. 2d 859, 862 (2008). Thus, we need not determine

whether we would "reach the same conclusion using a state

retroactivity analysis." Gaitan, supra, 209 N.J. at 373.

16 A-4169-11T2

parole," or can be extended to cover a sentence expressed in a

term of years. "The Supreme Court has not yet decided the

question whether a lengthy term-of-years sentence is, for

constitutional purposes, the same as a sentence of life

imprisonment without the possibility of parole." United States

v. Cobler, 748 F.3d 570, 580 n.4 (4th Cir.), cert. denied, ___

U.S. ___, 135 S. Ct. 229, 190 L. Ed. 2d 173 (2014). We assume,

without deciding, that Graham could be extended to apply to a

sentence for a single offense expressed, not as "life without

parole," but as a term of years without parole equaling or

exceeding the life expectancy of a person of defendant's age.

See id. at 580 ("assuming, without deciding, that Cobler's 120-

year term of imprisonment is functionally equivalent to a

sentence of life imprisonment without the possibility of

parole").

C.

Third, defendant's appeal raises the issue of whether

Graham's holding, which barred a life without parole sentence

for a single nonhomicide offense, can be extended to cover

aggregate sentences imposed consecutively for multiple offenses.

"The [Graham] Court did not address juvenile offenders . . . who

received consecutive, fixed-term sentences for committing

multiple nonhomicide offenses." Bunch v. Smith, 685 F.3d 546,

17 A-4169-11T2

551 (6th Cir. 2012), cert. denied, __ U.S. __, 133 S. Ct. 1996,

185 L. Ed. 2d 865 (2013). "[C]ourts across the country are

split over whether Graham bars a court from sentencing a

juvenile nonhomicide offender to consecutive, fixed terms

resulting in an aggregate sentence that exceeds the defendant's

life expectancy." Id. at 552; compare State v. Kasic, 265 P.3d

410, 414 (Ariz. Ct. App. 2011), People v. Gay, 960 N.E.2d 1272

(Ill. App. Ct. 2011), appeal denied, 981 N.E.2d 1000 (Ill.

2012), State v. Brown, 118 So. 3d 332, 336-37, 341-42 (La.

2013), and State v. Ramos, __ P.3d __, __ (Wash. Ct. App. Aug.

13, 2015) (slip op. at 1-3), with People v. Caballero, 282 P.3d

291, 295 (Cal. 2012), and Henry v. State, __ So. 3d __, __, 2015

Fla. LEXIS 533 (Fla. Mar. 19, 2015). We assume, without

deciding, that Graham could be extended to apply to a situation

where a defendant commits a number of offenses in a single

criminal episode and receives a number of term-of-year sentences

that are imposed consecutively and result in an aggregate

sentence equaling or exceeding the life expectancy of a person

of defendant's age.

D.

Fourth, defendant's appeal raises the issue of whether

Graham can be extended to cover sentences imposed for multiple

criminal episodes, including those addressed in separate

18 A-4169-11T2

sentencings. See, e.g., Carmon v. State, 456 S.W.3d 594, 601

(Tex. App. 2014) ("Nothing in Graham precludes . . . sentences

[] for a different criminal episode . . . from running

consecutively."). We assume, without deciding, that Graham

could be extended to apply to a situation where a defendant

commits separate criminal episodes and is separately sentenced

to term-of-year sentences which are imposed consecutively and

result in an aggregate sentence equaling or exceeding the life

expectancy of a person of defendant's age.

V.

Thus, assuming Graham could be extended to apply to

defendant's total sentence, even though it was aggregated from

consecutive sentences for six offenses in two criminal episodes,

imposed in two separate sentencing hearings, we consider whether

defendant's aggregate sentence violates Graham.

In Graham, the United States Supreme Court found sentencing

juveniles to life without parole unconstitutional because "[i]t

deprives the convict of the most basic liberties without giving

hope of restoration[.]" Graham, supra, 560 U.S. at 69-70, 130

S. Ct. at 2027, 176 L. Ed. 2d at 842. Life without parole

"'means denial of hope; it means that good behavior and

character improvement are immaterial; it means that whatever the

future might hold in store for the mind and spirit of [the

19 A-4169-11T2

convict], he will remain in prison for the rest of his days.'"

Id. at 70, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842 (citation

omitted).

The Graham Court required States to "give defendants like

Graham some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation." Id. at 75, 130 S.

Ct. at 2030, 176 L. Ed. 2d at 846. The Court found Graham's

sentence of life without parole "guarantee[d] he will die in

prison without any meaningful opportunity to obtain release" and

"denied him any chance to later demonstrate that he is fit to

rejoin society." Id. at 79, 130 S. Ct. at 2033, 176 L. Ed. 2d

at 848. The Court ruled that "[a] State need not guarantee the

offender eventual release, but if it imposes a sentence of life

it must provide him or her with some realistic opportunity to

obtain release before the end of that term." Id. at 82, 130 S.

Ct. at 2034, 176 L. Ed. 2d at 850.

This language from Graham indicates that life without

parole is barred because it prevents a juvenile defendant

convicted of a nonhomicide offense from having a meaningful and

realistic opportunity to obtain parole review during his

lifespan. If Graham's holding is extended to term-of-years

sentences, the prediction of a defendant's lifespan must be

based on life expectancy. See, e.g., State v. Springer, 856

20 A-4169-11T2

N.W.2d 460, 468-69 (S.D. 2014) (rejecting a Graham claim because

defendant failed to present evidence of life expectancy).

Caballero, the case on which defendant relies, held that

"sentencing a juvenile offender for a nonhomicide offense to a

term of years with a parole eligibility date that falls outside

the juvenile offender's natural life expectancy constitutes

cruel and unusual punishment in violation of the Eighth

Amendment." Caballero, supra, 282 P.3d at 295; see id. at 294

n.3 (finding "that the term 'life expectancy' means the normal

life expectancy of a healthy person of defendant's age and

gender living in the United States"). Other courts have ruled

similarly. See, e.g., Henry, supra, __ So. 3d at __ (Graham

requires that juvenile defendants receive a meaningful

opportunity for release "during their natural lives"); People v.

Gipson, 34 N.E.3d 560, 580 (Ill. App. Ct. 2015).

Here, we find that defendant's aggregate sentence does not

violate Graham, because he has a meaningful and realistic

opportunity for release during the life expectancy of a person

of defendant's age living in the United States. To make that

determination, we utilize the national life expectancy tables

issued by the federal government, which have long been used by

the New Jersey courts.

21 A-4169-11T2

In our Court Rules, we have adopted a table of "Life

Expectancies for All Races and Both Sexes." Pressler &

Verniero, Current N.J. Court Rules, Appendix I to R. 1:13-5 at

www.gannlaw.com (2016). Appendix I is derived from the National

Vital Statistics Reports (NVSR), Vol. 52, No. 14 (Feb. 18,

2004).5

It is appropriate to use the NVSR to determine the average

life expectancies and predicted lifespan of defendants in the

context of Graham. The NVSR are issued by the Centers for

Disease Control and Prevention (CDC). The CDC states that

"[t]he National Vital Statistics System is the oldest and most

successful example of inter-governmental data sharing in Public

Health[.]"6 The NVSR's "United States Life Tables" are based on

recent mortality statistics, the most recent available census

information, and Medicare data. See, e.g., 2004 NVSR, supra, at

1. Our Court Rules provide that Appendix I's life expectancy

5

Available at http://www.cdc.gov/nchs/data/nvsr/nvsr52/nvsr52

_14.pdf [hereinafter "2004 NVSR"].

6

Centers for Disease Control and Prevention, National Vital

Statistics System, http://www.cdc.gov/nchs/nvss.htm (last

updated Sept. 30, 2015).

22 A-4169-11T2

tables, based on the NVSR, "shall be admissible in evidence as

prima facie proof of the facts therein contained." R. 1:13-5.7

Trial courts sentencing juvenile defendants to substantial

periods of parole ineligibility should use the NVSR's most

recent available data in determining what sentence meets

Graham's requirements. Specifically, the court should locate

the most recent "United States Life Tables" and consult the

"Expectation of life at age x" column of Table 1, "Life table

for the total population: United States," to determine the

average life expectancy for a person of the same age as

defendant's current age at the date of sentencing. The most

recent NVSR tables are based on the most current available data,

and thus provide a more accurate calculation of average life

expectancy. The NVSR's most recent "United States Life Tables"

are readily available online.8

Similarly, post-conviction courts addressing Graham claims

newly raised by already-sentenced defendants, like defendant

7

Life expectancy data from the NVSR has been used by numerous

courts in adjudicating claims under Graham and Miller. See,

e.g., People v. Lewis, 165 Cal. Rptr. 3d 624, 632 (Ct. App.

2013); People v. Mendez, 114 Cal. Rptr. 3d 870, 882 (Ct. App.

2010).

8

See Centers for Disease Control and Prevention, Publications

and Info Products – National Vital Statistics Reports,

http://www.cdc.gov/nchs/products/nvsr.htm (last visited October

15, 2015).

23 A-4169-11T2

here, should use the NVSR's most recent available "United States

Life Tables." Again, these most recent tables provide the most

accurate available calculation of average life expectancy.

Similar tables may not be readily available for the year in

which the inmate was originally sentenced. Even if such older

tables were available, using them now would be inaccurate,

because it would ignore that the defendant has lived to his

current age and thus is likely to have a longer average

lifespan. The post-conviction court should use the most current

and accurate data available at the time the newly-raised Graham

claim is adjudicated, rather than try to turn back the clock to

apply outdated data to a hypothetical and outmoded "original

sentencing."9

Thus, to determine whether defendant's current period of

parole ineligibility could violate Graham, we consider life

expectancy for a person of defendant's age at the time Judge

Petrolle heard defendant's motion in July 2012. At that time,

defendant was forty-eight years old. The most recent "United

States Life Tables" were in the National Vital Statistics

9

Once a defendant's Graham claim has been adjudicated by a

sentencing court or post-conviction court, neither the defendant

nor the State may ask the courts to revisit its life expectancy

analysis as the incarcerated defendant ages or the defendant's

health declines. The constitutionality of the length of the

sentence should not be continually relitigated in successive

applications for relief.

24 A-4169-11T2

Reports, Vol. 59, No. 9 (Sept. 28, 2011).10 Under the 2011

NVSR's Table 1, "Life table for the total population: United

States, 2007," a person who is between forty-eight and forty-

nine years old has an average life expectancy of 32.7 years, and

thus is predicted to live to be more than eighty years old. Id.

at 8.11

Defendant's current sentence provides for fifty-five years

of parole ineligibility. As defendant has been in custody since

December 9, 1981, it is undisputed he will be eligible for

parole no later than 2036, when he will be seventy-two years

old. Indeed, defendant may be eligible for parole even

earlier.12 Thus, defendant's current sentence gives him an

10

Available at http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_

09.pdf.

11

The lifespan under the 2011 NVSR is longer than under Appendix

I, which states, based on the 2004 NVSR data, that a person who

is forty-eight years old has an average life expectancy of 32.0

years and thus a predicted lifespan of exactly eighty years old.

The lifespan under the 2011 NVSR is shorter than under the most

recently-issued National Vital Statistics Reports, Vol. 64, No.

11, "United States Life Tables, 2011" (Sept. 22, 2015),

available at http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64

_11.pdf. It predicts a person who is forty-eight years old has

an average life expectancy of 33.3 years, and thus is predicted

to live to be over eighty-one years old. Id. at 9. We do not

apply that most recent data, because it was not available at the

time of Judge Petrolle's decision. In any event, our conclusion

would be the same using these average life expectancies.

12

Defendant notes that the Department of Corrections website

lists his parole eligibility date as March 31, 2033, when he is

(continued)

25 A-4169-11T2

opportunity to be paroled approximately eight years before the

end of the eighty-year predicted lifespan of a forty-eight-year-

old. Put another way, if paroled at that opportunity, he will

live at least the last ten percent of his predicted lifespan

outside of prison. Thus, defendant has an opportunity for

parole substantially before the end of the relevant predicted

lifespan.

Further, that opportunity for parole is meaningful and

realistic. Defendant is not "deprived of the opportunity to

achieve maturity of judgment and self-recognition of human worth

and potential," or of the "chance to demonstrate maturity and

reform" at his parole hearing. Graham, supra, 560 U.S. at 79,

130 S. Ct. at 2032, 176 L. Ed. 2d at 848. According to the

State, defendant will have access to the "counseling, education,

and rehabilitation programs for those who are []eligible for

parole consideration." Id. at 79, 130 S. Ct. at 2033, 176 L.

Ed. 2d at 848. His "'good behavior and character improvement'"

will be material in that hearing. Id. at 70, 130 S. Ct. at

2027, 176 L. Ed. 2d at 842. This is not a sentence that

(continued)

not yet seventy years old. He claims this is a miscalculation.

We need not resolve this apparent discrepancy for purposes of

our constitutional analysis. We leave the clarification of the

actual date to the Department or the Parole Board to address in

due course.

26 A-4169-11T2

"den[ies] convicts the possibility of parole," id. at 70, 130 S.

Ct. at 2027, 176 L. Ed. 2d at 842, or leaves defendant with "no

chance for fulfillment outside prison walls, no chance for

reconciliation with society, no hope." Id. at 79, 130 S. Ct. at

2032, 176 L. Ed. 2d at 848.

Thus, defendant's sentence gives him a meaningful and

realistic opportunity for release during his predicted lifespan,

and does not violate Graham, even assuming it could be extended

to apply to defendant's aggregate, separately-imposed term-of-

years sentences for multiple criminal episodes. See, e.g.,

Smith v. State, 93 So. 3d 371, 374-75 (Fla. Dist. Ct. App. 2012)

(upholding a sixty-three-year sentence reduced by gain time);

Thomas v. State, 78 So. 3d 644, 646 (Fla. Dist. Ct. App. 2011)

(upholding a fifty-year sentence). We reject defendant's claim

that his aggregate sentence is the "functional equivalent" of a

sentence of life without parole.

Because the predicted lifespan of a forty-eight-year-old

person exceeds defendant's parole eligibility date by

approximately eight years, we need not decide what lesser number

of years would be sufficient. However, we do not agree with the

assertion in State v. Null, 836 N.W.2d 41, 71 (Iowa 2013), and

Bear Cloud v. State, 334 P.3d 132, 142 (Wyo. 2014), that a

defendant's so-called "geriatric release" is insufficient to

27 A-4169-11T2

satisfy Graham or Miller. Unlike Casiano v. Comm'r of Corr.,

115 A.3d 1031, 1046-47 (Conn. 2015), we do not believe Graham

mandates that defendants have a "meaningful life outside of

prison" in which to "engage meaningfully" in a career or raising

a family. Rather, Graham only requires a meaningful and

realistic "opportunity to obtain release." Graham, supra, 560

U.S. at 75, 79, 82, 130 S. Ct. at 2030, 2033, 2034, 176 L. Ed.

2d at 846, 848, 850. Nothing in Graham or Miller requires more.

VI.

Defendant agrees we should rely on CDC life expectancy

data.13 However, he argues that the pertinent CDC statistics are

those for black males at birth. At the hearing before Judge

Petrolle, defendant provided "the CVC [sic] lifespan tables"

showing that "the average lifespan of a black male is 60" at the

time of defendant's birth in 1964, and "even to this day, it is

69 to 70 years of age." Defendant's pro se brief on appeal

similarly argues that we should look at life expectancy of a

13

Defendant has not argued that life expectancy must be

predicted based on his own individual health, personal life

history, and particular circumstances. In any event, such an

inquiry would be wholly impractical, be prone to dispute and

error, and introduce widespread disparities. It would turn

juvenile sentencings, and Graham motion hearings, into medical

guessing games and battles of experts. Like defendant, we

believe the CDC data provides a more reliable, manageable, and

fair method of determining life expectancy.

28 A-4169-11T2

black male at the time of defendant's birth, citing data from

the CDC's National Center for Health Statistics.14

However, it is particularly inappropriate to use statistics

about newborns to determine the average life expectancy of a

juvenile who has survived the mortality risks of infancy and

childhood and reached almost eighteen years old. It is even

more inappropriate to apply statistics for newborns to adult

defendants who bring a Graham claim long after sentencing.

Since committing his crimes, defendant had survived three

decades' worth of risks, and had reached the age of forty-eight

at the time of the hearing before Judge Petrolle. His motion

should be decided based on his age at the time of the hearing.

Moreover, it is problematic to use statistics based on race

and sex. We recognize that Tables 2 and 3 in the NVSR set forth

average life expectancy based on sex. See 2011 NVSR, supra, at

10-13 (showing that the average life expectancy of a forty-

eight-year-old is 30.7 years for males, and 34.5 years for

14

Using the more recent data from the 2011 NVSR, and the more

pertinent age of a forty-eight-year-old, the average life

expectancy is 27.0 years for black males and 26.7 years for non-

Hispanic black males. Id. at 22, 40. Either figure produces a

predicted lifespan exceeding defendant's parole eligibility date

by approximately three years or more.

29 A-4169-11T2

females).15 Other tables in the NVSR set forth average life

expectancies for whites, blacks, and Hispanics. Id. at 14-43

(showing the average life expectancy of a forty-eight-year-old

is 32.9 years for whites, 29.7 years for blacks, and 35.3 years

for Hispanics). Additional tables break down that data further,

including by sex. Ibid.

We believe using tables based on sex, race, or ethnicity

would introduce disparities that are inconsistent with

constitutional standards and penological goals. See generally

State v. Ramseur, 106 N.J. 123, 330 (1987) (stressing that the

structure of capital sentencing must "prevent discrimination on

an impermissible basis, including, but not limited to, race and

sex"). Applying such tables to juvenile offenders would mean

that females would receive longer sentences than males,

Hispanics would receive longer sentences than whites or blacks,

and Hispanic females would receive the longest sentences of all.

See 2011 NVSR, supra, at 14-43. Also, allowing consideration of

sex, race, or ethnicity might lead to claims that courts must

differentiate among other races, ethnicities, or gender

identities (e.g., Asian-Americans) not yet covered by the NVSR

15

Earlier versions of Appendix I did likewise. That practice

was abandoned when the rules were made gender neutral. See

Pressler, Current N.J. Court Rules, Appendix I to R. 1:13-5

(1993).

30 A-4169-11T2

tables, leading to problems of proof, difficulties of

administration, and additional disparities. Nor should

sentencing courts be required to resolve disputes over a

defendant's race, ethnicity, or gender identity.

Furthermore, using data based on race, ethnicity, or sex

ignores the equalizing effect of the shared environment provided

by incarceration. The disparities between the races,

ethnicities, and sexes — in wealth, housing, diet, health care,

occupation, and exposures to violence — that exist outside of

prison, and affect life expectancy, are much reduced or

eliminated in prison.16

Nonetheless, defendant argues that his aggregate sentence

is the "functional equivalent" of life without parole. He cites

Caballero, but there the California Supreme Court found Graham

barred an aggregate sentence of 110 years to life, "requiring

defendant to serve a minimum of 110 years before becoming parole

eligible." Caballero, supra, 282 P.3d at 295. By contrast,

defendant's sentence of fifty-five years before parole

16

Defendant has not argued that the average life expectancy of

persons is shorter if they are in prison. That is not self-

evident, as our prisons are obligated to supply inmates with

steady nourishment, access to free medical care, and secure

housing which, while not perfect, may be superior to what they

had outside of prison. In any event, such estimates are

unlikely to be as available or indisputable as the CDC tables

cited above, may add unmanageable complexity, and may create

additional disparities.

31 A-4169-11T2

eligibility is not the functional equivalent of life without

parole, because it gives him a meaningful and realistic

opportunity for parole well within the predicted lifespan for a

person of defendant's age. See, e.g., Smith, supra, 93 So. 3d

at 374-75.

Defendant next argues that the intent of the sentencing

judge was to incarcerate him for the remainder of his life

without the opportunity for parole. Defendant cites the

original 1983 sentencing hearing on Indictment No. 81-00-03730,

when the judge stated that "there is absolutely no prospect" of

rehabilitation for defendant, who did not "belong in society"

and should "be isolated for as long as the law allows."

Defendant also cites the original 1984 statement of reasons for

Indictment No. 81-00-03729, where the sentencing judge stated:

"The only way to protect society from this extremely dangerous

and immoral individual is to be absolutely assured that he will

be incarcerated for the rest of his natural life. Society

should never be exposed to his likes again."

However, as set forth above, those original sentencing

proceedings imposed a much longer aggregate sentence of 150

years in prison with seventy-five years of parole ineligibility.

After the Supreme Court remanded the case for reconsideration,

the sentencing judge removed forty years in prison and twenty

32 A-4169-11T2

years of parole ineligibility, "so that his overall sentence has

been reduced from 150 years with 75 years of parole

ineligibility to 110 years with 55 years of parole

ineligibility."

VII.

Accordingly, we reject defendant's claim that his sentence

violates Graham's interpretation of the Eighth Amendment's Cruel

and Unusual Punishment Clause. We similarly reject defendant's

undeveloped claim that his sentence violates "the corresponding

provision in Article I, paragraph 12 of the New Jersey

Constitution." State v. Johnson, 166 N.J. 523, 548 (2001).

Defendant does not show a violation under New Jersey's "three-

part test," ibid., because he failed to make "a substantial

showing" that his punishment for leading these two brutal gang

rapes does not "conform[] with contemporary standards of

decency," "is grossly disproportionate to the offense[s]," or

"goes beyond what is necessary to accomplish any legitimate

penological objective." Ibid.; see Ramseur, supra, 106 N.J. at

169 (noting that the three-part test under the New Jersey

Constitution was "generally the same as that applied under the

federal Constitution").17

17

Because we rule that defendant's sentence was not cruel and

unusual punishment even assuming that Graham could be extended

(continued)

33 A-4169-11T2

Affirmed.

(continued)

to cover aggregate, consecutive term-of-years sentences, arising

out of multiple criminal episodes, and imposed in different

sentencing proceedings, we need not reach the State's argument

that such an extension of Graham should not be retroactively

applied.

34 A-4169-11T2