STATE OF NEW JERSEY VS. ALLEN M. KUNTZ (84-04-0403, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4312-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLEN M. KUNZ,

Defendant-Appellant.

_____________________________

Argued telephonically June 1, 2020 –

Decided June 29, 2020

Before Judges Sumners, Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law

Division, Mercer County, Indictment No. 84-04-0403.

John V. Saykanic argued the cause for appellant.

Alicia Christine Gres, Assistant Prosecutor, argued the

cause for respondent (Angelo J. Onofri, Mercer County

Prosecutor, attorney; Randolph E. Mershon, III,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Allen M. Kunz appeals from an April 27, 2018 Law Division

order denying his motion to correct an illegal sentence and his fifth petition for

post-conviction relief (PCR). For the reasons that follow, we affirm.

I.

In 1984, at age seventeen, Kunz robbed and murdered his victim with a

knife. In a prior opinion, we described the crimes and Kunz's defense as follows:

Defendant stabbed and killed a storekeeper in the

course of robbing her of jewelry, money, and other

items. He admitted to various individuals that he had

committed the crime. He asked one individual to sell

some of the stolen jewelry for him. That individual

agreed to do so, except for the ring which bore the

victim's name. When defendant was arrested seventeen

days after the crime, he had in his possession a PBA

card issued in the victim's name. Defendant testified at

trial that he had encountered the victim's body the night

of the murder and took her purse containing the PBA

card along with other items. He admitted trying to sell

the jewelry and "bragging" to friends that he had

committed the murder. However, he denied that he had

actually murdered the victim.

[State v. Kunz, No. A-5970-10 (App. Div. Apr. 9, 2013)

(slip op. at 3).]

Kunz was indicted on charges of murder, felony murder, first degree

robbery, and possession of a weapon with an unlawful purpose. In March 1985,

a jury acquitted Kunz of murder but found him guilty of the other charges. At

the sentencing hearing, the court merged the robbery and weapon offenses into

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the felony murder conviction and imposed a sentence of life imprisonment with

a thirty-year parole-bar.

Kunz appealed his conviction and sentence. We affirmed, and the

Supreme Court denied certification. State v. Kunz, No. A-742-85 (App. Div.

Nov. 20, 1987), certif. denied, 111 N.J. 622 (1988).

In September 1990, Kunz filed his first PCR petition, alleging that his trial

attorney had been ineffective by failing to present a certain theory of the case.

After remanding for an evidentiary hearing, we affirmed the denial of the

petition, and the Supreme Court denied certification. State v. Kunz, No. A-

3917-92 (App. Div. May 10, 1994), certif. denied, 137 N.J. 311 (1994).

Thereafter, Kunz filed petitions for habeas corpus relief in federal court

in 1997 and 2016, and three additional PCR petitions in 1998, 2001, and 2011;

none were successful. Kunz v. Attorney General of N.J., 2017 WL 44946

(D.N.J. Jan. 4, 2017); State v. Kunz, No. A-5970-10 (App. Div. April 9, 2103),

certif. denied, 216 N.J. 14 (2013).

In January 2014, Kunz became eligible for parole. Kunz v. State Parole

Bd., No. A-3553-14 (App. Div. Oct. 28, 2016) (slip op. at 2), certif. denied, 230

N.J. 396 (2017). After meeting with a hearing officer, the matter was referred

to a two-member panel of the New Jersey State Parole Board (the Board) and

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then to the full Board. Ibid. In March 2014, the full Board "denied parole and

determined that establishment of a future eligibility term (FET) within the

presumptive schedule was clearly inappropriate due to [Kunz's] lack of

satisfactory progress in reducing the likelihood of future criminal behavior."

Upon further review of "the record in [Kunz's] case, including [the] case file,

[and Kunz's] answers and statements from [his] April 11, 2014 Letter of

Mitigation," the Board determined that a FET in excess of the administrative

guidelines was appropriate and established a 144-month FET, making Kunz

eligible for parole in April 2021.

In its comprehensive written Notice of Decision, the Board noted Kunz

had committed twenty-seven infractions during his imprisonment. Four of those

infractions were serious infractions. The sanctions imposed included 125 days

placement in detention, 660 days loss of commutation credit, and 540 days

placement in administrative segregation.

The Board found that during his twenty-eight years of incarceration,

Kunz: (1) "demonstrated an inability to understand the root causes as to why

[he] reacted in a violent criminal manner resulting in the victim's death"; (2)

"failed in developing adequate and appropriate insight into recognizing i ssues

that would return [him] to future criminal behavior"; and (3) "failed to

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appropriately and adequately address a contributing factor of [his] criminal

behavior through specific program participation or by other methods, which

would demonstrate satisfactory evidence of rehabilitative progress." The Board

stated it was "clear" that the narcotic programs Kunz had thus far attended had

given him "little insight" into his addiction. The Board determined that Kunz

remained "a substantial threat to public safety."

The FET commenced on Kunz's initial eligibility date of January 26, 2014.

The Board explained that the FET "will be reduced by the applicable amount of

commutation credit, earned work credit and earned minimum custody credit

(should [he] achieve minimum custody status)." This resulted in the FET being

"reduced by 1236 days commutation credit." As a result, Kunz's parole

eligibility date was August 13, 2022, as of the date of the Board's decision. That

date will be further reduced by application of any work credits earned after

January 26, 2014. The Board noted that Kunz was earning work credits, and if

he continued to do so, "it would result in a projected parole eligibility date in

April 2021."

The Board denied Kunz's request for reconsideration. Kunz appealed the

denial of parole and 144-month FET.

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In January 2016, while his parole denial appeal was pending, Kunz filed

a pro se motion to correct an illegal sentence based on a new constitutional rule.

He claimed that his sentence was an illegal de facto life sentence prohibited by

State v. Zuber, 227 N.J. 422 (2017), and that the sentencing court's findings had

thwarted his ability to obtain parole. Kunz subsequently retained private

counsel who filed a PCR petition on Kunz's behalf. At oral argument before the

motion/PCR court, defense counsel stated that the motion and PCR petition

raised the same contentions and requested the same relief.

We affirmed the Board's denial of parole and imposition of a 144-month

FET, finding the decision was supported by credible evidence in the record and

not arbitrary or capricious. Kunz v. State Parole Bd., slip op. at 3-4. We

determined that the Board provided a sufficient explanation for its determination

and satisfied the demands of due process. Id., slip. op. at 5-6. We rejected

Kunz's arguments that the Board failed to properly consider his age at the time

of the crime and the mitigating factors that are part of the record. Ibid.

The trial court heard Kunz's motion and PCR petition on March 16, 2018.

By order and written opinion dated April 27, 2018, the court denied both, finding

that Kunz's sentence was not the practical equivalent of life without parole and

that the sentencing court's findings were not the basis for his parole denial. The

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court stated that Kunz's "term of incarceration falls far short of the typical

sentence that implicates Zuber or Miller."1 The court noted Kunz had already

received a meaningful opportunity to obtain release on parole at age forty-seven,

"well in advance of old age."

The court found that the record undercuts Kunz's claim that the sentencing

court's statements had the effect of denying him a meaningful opportunity for

parole. The court stated that "[t]he Board's rejection of [d]efendant's application

for parole does not appear to give any weight to the trial court's sentencing

statement. Instead, the Parole Board assigned substantial weight to many of the

other [twenty-two] factors that it must consider as a part of its decision-making

process."

Additionally, the court found that Kunz's challenges to the sentencing

court's findings related to the alleged excessiveness, not the legality, of the

sentence, and thus were procedurally barred. The court explained:

Although felony murder and purposeful and knowing

murder are distinct, a [thirty-year] to life term for the

crime of felony murder is a permissible sentence. The

New Jersey Supreme Court has held that the 'statutory

minimum sentence for felony murder is thirty years

with thirty years of parole ineligibility; the maximum is

a term of years between thirty years and life

imprisonment with a mandatory thirty[-]year parole

1

Miller v. Alabama, 567 U.S. 460 (2012)

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ineligibility period. State v. McQuaid, 147 N.J. 464,

496 (1997). Moreover, it is well established that an

acquittal for purposeful or knowing murder does not bar

a life term for felony murder. See, e.g., State v. Arenas,

363 N.J. Super. 1, 7-9 (App. Div. 2003) ([thirty] to life

sentence for felony murder after acquittal for

purposeful and knowing murder).

The motion/PCR court also rejected Kunz's argument that amendment of

the juvenile waiver statute, N.J.S.A. 2A:4A-26.1, which increased the minimum

age for waiver to adult court from fourteen to fifteen years old, evinced a

legislative intent to treat juveniles differently and shield them from long periods

of incarceration. The court held that the statutory amendment did not undermine

the validity of Kunz's sentence since he was over the age of fifteen at the time

of the offense and would still be subject to waiver under the amended statute.

In this appeal, Kunz raises the following arguments, which we have

reorganized and summarized for purposes of our discussion. Kunz asserts that

the trial court erred in denying his motion to correct an illegal sentence and PCR

petition based on a change in constitutional law. He contends that while the

thirty-year parole-bar theoretically gave him the opportunity for parole at age

forty-seven, his sentence is nonetheless a de facto life sentence based on the

sentencing court's findings that no mitigating factors existed and that he should

be removed from society for as long as possible. Kunz maintains that those

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findings have inhibited his ability to obtain parole and are inconsistent with the

principle that the State must give a juvenile the opportunity to obtain release

based on "demonstrated maturity and rehabilitation," citing Graham v. Florida,

560 U.S. 48, 75 (2010). He also claims he is entitled to a resentencing to present

the rehabilitative efforts he has taken in prison in addition to information

relating to the Miller factors, which the sentencing court never considered. We

are unpersuaded by these arguments.

II.

"A defendant may challenge an illegal sentence at any time." Zuber, 227

N.J. at 437 (citing R. 3:21-10(b)(5); State v. Acevedo, 205 N.J. 40, 47 n.4

(2011)). "[A]n illegal sentence is one that 'exceeds the maximum penalty . . .

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

Acevedo, 205 N.J. at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000)).

"That includes a sentence 'imposed without regard to some constitutional

safeguard," which defendant claims here. Zuber, 227 N.J. at 437 (quoting State

v. Tavares, 286 N.J. Super. 610, 618 (App. Div. 1996)). 2

2

Rule 3:22-4(b)(2)(A) allows a defendant to file a second or subsequent PCR

petition where the defendant alleges a change in constitutional law. However,

a challenge to the court's findings in support of a sentence, including allegations

of improper consideration of aggravating and mitigating factors, relates to the

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In Miller, 567 U.S. at 479, the Supreme Court declared that mandatory

life imprisonment without parole for a juvenile sentenced as an adult is

unconstitutional under the Eighth Amendment. 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, 560 U.S. at 68) (holding

life imprisonment without parole for a juvenile convicted of a non-homicide

offense unconstitutional).

The Miller Court stated that a mandatory life sentence without parole for

a juvenile 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

excessiveness of the sentence, not to its legality, and is not cognizable on PCR

or under Rule 3:21-10(b)(5). Acevedo, 205 N.J. at 47.

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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,

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.

[Id. at 477-78.]

We refer to these five aspects of mandatory sentencing as "the Miller factors."

Zuber, 227 N.J. at 445.

Miller did not preclude the possibility of a life sentence for a juvenile but

reaffirmed the determination it had made in Graham that such a sentence may

not be mandatory and should be "uncommon" given a juvenile's "diminished

culpability and heightened capacity for change." Miller, 567 U.S. at 479. In the

"rare" situation where the juvenile's "crime reflects irreparable corruption" or

incorrigibility, the court may impose a life sentence. Id. at 479-80 (quoting

Roper v. Simmons, 543 U.S. 551, 573 (2005)).

In Graham, the Court determined that a sentencing court may not make

the determination "at the outset" that the juvenile will forever pose a risk to

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society. 560 U.S. at 75. The juvenile must have "some meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation." Ibid. The

Court left the "means and mechanisms for compliance" with its decision to the

States. Ibid.

In Montgomery v. Louisiana, the Court determined that Miller was

entitled to retroactive effect and held that where a sentence was imposed

contrary to Miller, the constitutional infirmity could be remedied by a

resentencing or consideration for parole. 577 U.S. ___, 136 S. Ct. 718, 733-36

(2016). The Court explained: "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 736.

In Zuber, our Supreme Court extended the holding of Miller to any life

sentence without parole or its functional equivalent. 227 N.J. at 447-48. The

Court held that when a juvenile tried as an adult and is subject to a lengthy

aggregate term amounting to "the practical equivalent of life without parole,"

the sentencing court must consider the Miller factors in addition to the

aggravating and mitigating sentencing factors set forth in N.J.S.A. 2C:44 -1(a)

and (b). Zuber, 227 N.J. at 429, 445-47, 450. Where consecutive terms are an

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option, the court must consider the Yarbough3 factors under "a heightened level

of care." Id. at 450. While the Court did not elaborate on the meaning of a

"heightened level of care," it couched the statement in terms of the "concerns

that Graham and Miller highlight" and the "overriding importance" of Miller.

Ibid. Like the Miller Court, the Court in Zuber did not preclude the possibility

of a life sentence for a juvenile but instructed that few juveniles should receive

de facto life terms because "it is only the 'rare juvenile offender whose crime

reflects irreparable corruption.'" Id. at 451 (quoting Miller, 567 U.S. at 479).

The Zuber Court did not define a de facto life term by any specific length

and rejected the use of life expectancy tables in deciding whether a lengthy term

is effectively a life term. Id. at 450. The Court instructed sentencing courts to

consider "the real-time consequences of the aggregate sentence" and held that

the aggregate terms at issue in that consolidated case—110 years with a fifty-

five-year parole-bar and seventy-five-years with a sixty-eight-year and three-

month parole-bar—were the functional equivalent of life terms. Id. at 447, 449,

453.

It suggested the possibility that a lawfully imposed sentence of life, or the

functional equivalent of life, may later be rendered unconstitutional by

3

State v. Yarbough, 100 N.J. 627, 643-44 (1985).

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subsequent facts that establish reform and rehabilitation before expiration o f the

parole bar. Id. at 451-52. The defendant might "ask the court to review factors

that could not be fully assessed when he was originally sentenced—like whether

he still fails to appreciate risks and consequences, or whether he may be, or has

been, rehabilitated." Id. at 452 (citing Miller, 567 U.S. at 477).

The Court invited the Legislature to examine this issue, noting "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.'" Id. at 452 (quoting Graham, 560 U.S. at 75).

Since Zuber, only one published decision, State v. Bass, has addressed the

type of sentence that may qualify as a de facto life term. 457 N.J. Super. 1, 13 -

14 (App. Div. 2018), certif. denied, 238 N.J. 364 (2019). We held that a life

sentence with a thirty-five-year parole-bar was not the functional equivalent of

a life sentence, and thus, the defendant was not entitled to resentencing under

Zuber, even though the sentencing court had not considered the Miller factors

when it imposed his sentence. Ibid. We further held that any rehabilitative

actions the defendant had taken while incarcerated were matters for the parole

board to consider and did not render the sentence unconstitutional. Id. at 14.

We explained:

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[D]efendant'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 . . . . 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.

[Ibid.]

Here, Kunz received a life sentence subject to a thirty-year parole bar for

the felony murder he committed at age seventeen. The sentencing court based

the sentence on a finding of aggravating factors one (nature and circumstances

of offense), two (gravity and seriousness of the offense), three (risk of

reoffending) and nine (need to deter), N.J.S.A. 2C:44-1(a)(1), (2), (3) and (9).

The court explained that Kunz's crime was committed in an especially heinous

and cruel manner and had caused "horrible suffering by the [victim's young]

children" and the rest of her family. The court found a risk of reoffending and

need to deter based on Kunz's continued claim of innocence, the nature of the

crime, and Kunz's juvenile record, which contained one delinquency

adjudication that had resulted in "probation for a year" and confinement at

"Jamesburg for an indeterminate term." The court stated, "I think that anyone

who is capable of committing as brutal and callous an act as this is capable of

doing anything."

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The court stated that it had reviewed "very carefully" the mitigating

factors and found "that absolutely no mitigating factors" existed. It noted,

however, that Kunz was the youngest of six children and that he had attended

school only to the tenth grade.

In the judgment of conviction, the court reiterated these findings and

added that Kunz not only failed to show remorse but had "bragged about this

killing to several people." The court concluded: "It is necessary for the

protection of society that this defendant be removed from the outside world for

as long a period of time as is possible."

The motion/PCR court found that Kunz's sentence was not the equivalent

of a life sentence because he was eligible for parole when he was only forty-

seven years old. Thus, his sentence was significantly less than those that had

been remanded for resentencing under Zuber, all of which had significantly

longer parole-bars.4 We concur.

4

We have remanded for resentencing where the following lengthy sentences

were imposed: 123 years' imprisonment with an eighty-five-percent parole-bar,

State v. Olbert, No. A-0496-15 (App. Div. Feb. 7, 2018), certif. denied, 234 N.J.

569 (2018); and 110 years' imprisonment with an eighty-five-percent parole-bar,

State v. Weston, No. A-3182-15 (App. Div. Nov. 27, 2017). In State v. Young,

No. A-0460-16 (App. Div. Mar. 12 , 2019), certif. denied, 239 N.J. 409, 417

(2019), and State v. Hawkins, No. A-4848-14 (App. Div. Apr. 9, 2018), we

remanded for resentencing on direct appeal where the trial courts imposed terms

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of fifty-five-years' imprisonment with a parole bar of forty-six years and nine

months, explaining that while the sentences were not literally life terms, they

closely approached it. In State v. Zuber, No. A-2677-18 (App. Div. May 6,

2020), we remanded an aggregate term of eighty-six years' imprisonment with

forty-three years of parole ineligibility for resentencing because the sentencing

court did not adequately explain its basis for imposing consecutive terms under

a heightened Yarbough standard. We did not decide whether the sentence

imposed was the functional equivalent of life without parole.

In contrast, we have found the following aggregate terms are not the

functional equivalent of life imprisonment: fifty-five years with a parole

ineligibility period of fifty years and three months, State v. Brogsdale, No. A-

4782-16 (App. Div. Aug. 8, 2019), certif. denied, 240 N.J. 400 (2020); fifty

years with forty-two-and-a-half years of parole ineligibility, State v. Zarate, No.

A-2001-17 (App. Div. May 6, 2020); State v. Bethea, No. A-2438-18T3 (App.

Div. Apr. 8, 2020); forty years with a thirty-four-year parole-bar, State v. Fitch,

No. A-1014-14 (App. Div. Sept. 22, 2017), certif. denied, 232 N.J. 303 (2018);

forty years with a thirty-year parole-bar, State v. Anthony, No. A-4429-18 (App.

Div. June 10, 2020); life with a thirty-year parole-bar, State v. Harmon, No. A-

0944-17 (App. Div. May 20, 2019); State v. Takuma, No. A-1928-16 (App. Div.

July 6, 2018), certif. denied, 236 N.J. 469 (2019); State v. Torres, No. A-2225-

15 (App. Div. Feb. 27, 2018), certif. denied, 236 N.J. 61 (2018); State v. Nixon,

No. A-4073-15 (App. Div. Dec. 14, 2017), certif. denied, 233 N.J. 322 (2018);

twenty-five years with an eighty-five-percent parole-bar, State v. Gonzalez, No.

A-2784-14 (App. Div. May 31, 2017), certif. denied, 231 N.J. 186 (2017). In

State v. Comer, No. A-1230-18 (App. Div. May 6, 2020), we upheld a sentence

of thirty years' imprisonment with a thirty-year parole-bar as constitutional as

applied to juveniles tried as adults without specifically ruling that the sentence

was the not the functional equivalent of life without parole.

We recognize that these unpublished opinions do not constitute precedent

and are not binding. R. 1:36-3. We provide this comparative survey of our

recent decisions that determined whether the lengthy sentences imposed on

juveniles were the functional equivalent of life without parole to provide

meaningful context to the reader.

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We adhere to our analysis in State v. Pratt, 226 N.J. Super. 307 (App. Div.

1988) that upheld the constitutionality of the thirty-year mandatory minimum

sentence as applied to offenders who commit murder under the age of eighteen.

Pratt was waived to adult court and convicted of two weapons offenses and

murder for a homicide he committed at age fifteen. Id. at 308-09. The trial

court sentenced him to a thirty-year term without parole and imposed concurrent

terms for the weapons offenses. Id. at 309.

On appeal, Pratt argued the statutory minimum of thirty years'

imprisonment without parole constituted cruel and unusual punishment as

applied to a juvenile because "it fails to accord individualized sentencing

treatment to juveniles." Id. at 325. We rejected that argument, relying on State

v. Johnson, 206 N.J. Super. 341 (App. Div. 1985), which held the statutory

thirty-year mandatory minimum did not constitute cruel and unusual punishment

as applied to adults. Pratt, 226 N.J. Super. at 324. In Johnson, we noted that

our case law has held the mandatory term for felony murder does not exceed

"what appears to be a reasonable expedient to achieve the public purpose of

punishment for an egregious offense." Johnson, 206 N.J. Super. at 348. In Pratt

we held that the same rationale applied where the defendant was a juvenile tried

and convicted as an adult. Pratt, 226 N.J. Super. at 324.

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Although we recognize that Pratt was issued years before Graham, Miller,

Montgomery, and Zuber, it is directly on point and remains good law as to prison

terms that are not the substantial equivalent of life without parole. Further, a

thirty-year parole bar is far from a de facto life sentence, particularly as applied

to a juvenile who will be eligible for parole no later than age forty-seven. In the

absence of a premature death, he or she will have an opportunity for some

meaningful years outside of prison. See Graham, 560 U.S. at 75.

As we have noted, Kunz was first eligible for parole at age 47 in 2014.

While the FET delayed future parole eligibility, Kunz is eligible for parole no

later than August 13, 2022, when he will be fifty-five years old—assuming he

avoids committing additional infractions resulting in loss of commutation

credits. He may be eligible for parole in April 2021 if he continues to earn work

credits. We therefore conclude that his sentence does not amount to life without

parole or its functional equivalent even if we include the FET imposed by the

Board.

Kunz argues that the sentencing court's comments during the sentencing

hearing, and in the judgment of conviction, that he should be removed from

society for as long as possible have inhibited his ability to obtain parole,

resulting in a de facto life sentence. We are unpersuaded by this argument.

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Kunz speculates that the sentencing court's comments affected the Board's

decision to deny parole and impose the FET. The record does not support that

contention. Noticeably absent from the Board's comprehensive Notice of

Decision is any mention of the sentencing court's comments. Instead, the Board

focused on his conduct while imprisoned. This included twenty-seven

infractions; Kunz's insufficient problem resolution; his failure to develop needed

insight into his criminal behavior; and his failure to adequately address his

substance abuse issues.

Defendant's remaining arguments are without sufficient merit to warrant

discussion in this opinion. R. 2:11-3(e)(2).

In sum, Kunz did not receive the functional equivalent of life without

parole. Therefore, he is not entitled to resentencing under Zuber. His parole

denial and FET were based on his misconduct in prison, not on the sentencing

court's findings and statements. Additionally, his sentence was not illegal. State

v. McQuaid, 147 N.J. 464, 496 (1997); State v. Arenas, 363 N.J. Super. 1, 7-9

(App. Div. 2003). The challenge to the sentencing court's findings relates to the

excessiveness of his sentence and is procedurally barred because it may only be

raised on direct appeal. Acevedo, 205 N.J. at 47.

Affirmed.

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