STATE OF NEW JERSEY v. WILLIAM J. THOMAS (80-12-1541, ATLANTIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4368-19
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 19, 2022
v. APPELLATE DIVISION
WILLIAM J. THOMAS,
a/k/a WILLIAM THOMAS,
Defendant-Appellant.
________________________
Argued November 17, 2021 – Decided January 19, 2022
Before Judges Hoffman, Whipple and Geiger.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No. 80-12-
1541.
Joseph J. Russo, Deputy Public Defender, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Joseph J. Russo, of counsel and on
the briefs).
Lauren Bonfiglio, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Lauren Bonfiglio, of
counsel and on the brief).
The opinion of the court was delivered by
GEIGER, J.A.D.
Defendant William J. Thomas appeals from an August 2020 Law
Division order denying his motion to for a Miller 1 hearing to correct an
unconstitutional life sentence he received for a double murder he committed at
age seventeen. Defendant was initially eligible for parole after serving thirteen
years. Contending that parole data showed that mere eligibility for parole did
not provide him a meaningful opportunity for release based on demonstrated
maturity and rehabilitation, defendant argued he had the right to an adversarial
hearing for the court to consider the juvenile offender sentencing factors
enumerated in Miller, 567 U.S. at 477-78.
The record demonstrates that defendant has remained infraction-free
during the forty years he has been incarcerated, completed programs to address
his behavior and substance abuse, attained a GED and vocational skills, and
been found to be at low risk of recidivism by numerous evaluating
psychologists. Despite these circumstances, defendant has been denied parole
and received lengthy future eligibility terms (FET) seven times.
In an issue of first impression, we hold that defendant, who has now
been imprisoned for more than four decades even though his sentence did not
impose a specified period of parole ineligibility, has the constitutional right to
an adversarial hearing to determine whether defendant "still fails to appreciate
1
Miller v. Alabama, 567 U.S. 460 (2012).
2 A-4368-19
risks and consequences, and whether he has matured or been rehabilitated,"
utilizing the procedure recently adopted by our Supreme Court in State v.
Comer, ___ N.J. ___, ___ (2022) (slip op. at 6-7). Accordingly, we reverse
and remand for the trial court to conduct that adversarial hearing.
We derive the following facts from the record. On May 6, 1980,
defendant, who was seventeen years old, and his nineteen-year-old cousin,
William Mancuso, murdered two teenage acquaintances, Lee Miller and June
Johnson, who were hitchhiking. Defendant and Mancuso had been drinking
alcohol, smoking marijuana, and using methamphetamines. Mancuso drove
the group to a wooded area in Egg Harbor Township where defendant
murdered the two teens, using a tire iron as a weapon.
Mancuso saw Johnson sitting on the ground when defendant began
striking her head and upper torso with a tire iron. The female victim attempted
to flee, at which time Mancuso joined the attack. When Miller attempted to
defend Johnson, defendant struck him with the tire iron. The two later died
from their injuries.
The next morning, defendant, claiming no memory of the attack, left the
state after Mancuso described what had happened. According to defendant, he
was extremely drunk and high at the time of the murders and still does not
3 A-4368-19
remember most of the details of his crimes. Defendant thereafter enlisted in
the Army and was transferred to Germany.
Mancuso confessed to police and identified defendant as the other
perpetrator. Defendant was extradited and arrested in July 1981. Later that
month, the trial court granted the State's motion to waive defendant to adult
court. The waiver statute then in effect provided that the juvenile court may
involuntarily waive jurisdiction if the State demonstrated that there was
probable cause that a juvenile over age fourteen had "committed a delinquent
act which would constitute homicide . . . if committed by an adult," N.J.S.A.
2A:4-48, and "together with the absence of any reasonable prospects of
rehabilitation of the juvenile" by age twenty-one, State in the Int. of C.A.H.,
89 N.J. 326, 330 (1982).
In August 1981, an Atlantic County grand jury returned an indictment
charging defendant with unlawful possession of a weapon (the tire iron),
N.J.S.A. 2C:39-4(d) (count one); and two counts of knowing murder, N.J.S.A.
2C:11-3(a)(2) (counts two and three).
On February 1, 1982, defendant entered a non vult plea 2 to the murder
counts. On February 19, 1982, defendant was sentenced to concurrent life
2
Under the then-existing statutory scheme, a defendant was not permitted to
plead guilty to an indictment for murder. State v. Brown, 22 N.J. 405, 414
4 A-4368-19
sentences with no parole disqualifiers. Defendant, who had been incarcerated
since July 27, 1981, was awarded 207 days of jail credits. He is now fifty-
eight years old.
During the sentencing hearing, the judge noted that Mancuso and
defendant "stand before this [c]ourt as youthful offenders without adult or
juvenile records." The judge made clear that he "failed to impose any
minimum parole eligibility and elected not to impose consecutive terms
because of the defendant's age, his lack of any prior arrests, his pursuit of a
productive career, and his admission of guilt which is generally recognized as
the first step to rehabilitation."
Mancuso pled guilty only to the murder of Johnson in return for the
State's recommendation that he be sentenced to ten years in prison. On the
record, the State explained that the reason for its recommendation was because
Mancuso cooperated with law enforcement and exhibited a genuine sense of
remorse. According to the State, defendant exhibited no such remorse.
Mancuso was sentenced in accordance with the plea agreement to a ten-year
_____________________
(1956). Instead, a defendant could plead non vult or nolo contendere, in which
case, "the sentence . . . shall be either life imprisonment or that imposed for
murder in the second degree, i.e., imprisonment for not more than 30 years."
Id. at 414-15 (citing N.J.S.A. 2A:113-3, -4).
5 A-4368-19
term. 3 Notably, the judge did not accept the State's theory that Mancuso was
merely an accomplice.
In 1997, defendant sought post-conviction relief (PCR), alleging
ineffective assistance of counsel during the juvenile waiver hearing and that
his sentence was illegal due to the disparity of his sentence and Mancuso's ten-
year term. On June 13, 1997, the trial court issued an oral decision that
rejected both grounds raised by defendant without conducting an evidentiary
hearing.
Defendant first became eligible for parole in May 1995, thirteen years
after he was sentenced. He was denied parole and received a 120-month FET.
Thereafter, defendant was denied parole six more times, most recently on
December 16, 2020. 4 Defendant appealed several of the New Jersey State
Parole Board's (Board) final decisions.
3
We recognize the striking disparity between the two codefendants' sentences
and note that it appears inconsistent with current standards. See State v. Roach
(Roach III), 167 N.J. 565, 570 (2001) (disapproving of "grievous inequities in
sentence[ing]" among similarly situated codefendants (quoting State v. Hicks,
54 N.J. 390, 391 (1969))). Standing alone, this disparity is not a basis to grant
a Miller hearing, but it has resulted in defendant being imprisoned more than
four times longer than Mancuso, who was nineteen years old when the crimes
were committed.
4
Defendant was denied parole on November 28, 1995, August 8, 2001,
September 21, 2005, July 28, 2010, November 25, 2015, July 12, 2017, and
December 18, 2019.
6 A-4368-19
Specifically, defendant appealed the Board's February 24, 2006 decision
that denied parole and imposed an eighty-four-month FET. We affirmed.
Thomas v. N.J. State Parole Bd., No. A-2649-05 (App. Div. Aug. 22, 2007).
He next appealed the Board's May 25, 2011 decision that denied parole and
imposed another eighty-four-month FET. We affirmed. Thomas v. N.J. State
Parole Bd., No. A-5980-10 (App. Div. Dec. 14, 2012).
Defendant also appealed the Board's March 25, 2013 final decision that
denied parole and imposed a 120-month FET. We found "the Board's decision
[was] so wide of the mark and so fundamentally contradicted by the record,"
and reversed and remanded, directing the Board to reconsider defendant's
eligibility for parole. Thomas v. N.J. State Parole Bd. (Thomas III), No. A-
2943-13 (App. Div. Aug. 3, 2015) (slip op. at 18). We concluded that the
record did not support the Board's determination that defendant was likely to
commit a crime if released on parole.
In that regard, we noted that the Board had "failed to address the ten
positive psychological evaluations performed on Thomas between[] 1991 and
2003[,] all of which consistently reported that Thomas had 'good insight' and
maintained good impulse control and judgment." Id. at 17. We also
concluded:
In denying parole, the Board improperly relied on
prior parole hearings not part of the record and
7 A-4368-19
credited the summaries of Thomas's statements made
by interested third parties over Thomas's own non-
contradictory statements that he lacks memory of an
event occurring over thirty years ago. Further, the
Board illogically concluded that Thomas's false
memory of the victims' drinking precludes him from
having a lack of memory of other events.
Finally, the Board discounted positive reports
and ignored the numerous positive psychological
evaluations which contradicted the latest evaluation by
[Richard Murcowski, Ph.D.]. We place little
confidence in Murcowski's most recent report which
inexplicably increased Thomas's recidivism score
based on Thomas divorcing his wife and "new
information available to this evaluator from the Parole
Board interview." Not only is the report contradicted
by the doctor's prior reports, but also the so-called
"new information" is unidentified and not part of the
record.
[Id. at 17-18.]
Regarding defendant's extensive rehabilitation efforts, we noted:
In 1988, Thomas began attending weekly group
therapy for behavior modification and emotional
control. In 1991, Thomas completed a substance
abuse program and has been attending meetings on a
regular basis since that time. That same year, Thomas
was classified as gang minimum status, the lowest
level of security classification for an inmate with a life
sentence. Throughout his prison term Thomas
completed about twenty multi-week programs for self-
improvement on such topics as "Successful
Employment and Lawful Living," "Cage Your Rage,
Anger Manager," and "Substance Abuse Personality
Awareness."
8 A-4368-19
In addition to his extensive participation in self-
help programs, Thomas earned a GED in 1993, a
certificate in refrigeration in 1994 and completed
various vocational training programs. Since at least
1996, Thomas worked as a twenty-four-hour on-call
electrician at three different prisons repairing
electrical equipment inside the prison including cell
doors, switch motors, and the cell locking devices,
with minimum supervision. His work supervisors
have consistently praised Thomas for his ability to
work with others and help inmates, and for "being a
pleasure to have working in the shop."
Thomas underwent individual psychotherapy
sessions beginning in 1992, and in 1993, when a staff
shortage caused the therapy to be suspended, Thomas
formally requested to be placed on a waiting list to
continue the sessions once they became available
again. The ten psychological evaluations performed on
Thomas between[] 1991 and 2003 reported that
Thomas[] had "no onset psychopathology," and "no
sign of any psychiatric symptoms," with "good
insight."
On December 20, 2000, Dr. David Gomberg, a
New Jersey Department of Corrections psychologist at
East Jersey State Prison, reported that Thomas had
"participated in many programs," and maintained good
impulse control and judgment. He referred Thomas
for one on one psychotherapy to prepare him for
parole. However, on September 3, 2003, Dr. Carlos
Perez, another Department of Corrections psychologist
at East Jersey State Prison, evaluated Thomas and at
that time determined that he had "no need for
individual therapy." Despite that conclusion, Thomas
elected to attend over thirty individual rabbinical
counseling sessions between 2003 and 2009.
[Id. at 4-6.]
9 A-4368-19
On remand, the Board conducted a new hearing, including an extensive
interview of defendant, and again denied defendant parole and imposed an
eighty-four-month FET. Thomas v. N.J. State Parole Bd., No. A-3804-15
(App. Div. Feb. 8, 2017) (slip op. at 3-4). Defendant again appealed, and after
affording the Board's decision "considerable deference," as we were required
to do, we affirmed, noting that "[o]ur affirmance on the current record is
compelled by our standard of review and the role entrusted to the Board." Id.
at 10. The Supreme Court denied certification. State v. Thomas, 230 N.J. 588(2017).
Most recently, on December 16, 2020, the Board issued a final decision
rejecting defendant's supplemental administrative appeal and upholding its
December 2019 decision denying parole and imposing a sixty-month FET.
The Board noted that it considered a number of factors, including defendant's
"age at the time of the offense[,]" that he "has remained infraction free," and
"that the Department of Corrections psychiatrist has determined that
[defendant] is a low risk for violence and recidivism." Despite these
considerations, the Board noted as reasons for parole denial: (1) the "facts and
circumstances of the offense;" and (2) defendant exhibited insufficient
problem resolution and lack of insight into his criminal behavior. The Board
further explained: "In the past, [defendant] consistently avoided
10 A-4368-19
acknowledging his criminal actions to himself and others. However, due to a
serious health concern, [defendant] only recently claims he had an epiphany
and now he has no fear of telling the truth." Defendant's appeal of that
decision is still pending. Thomas v. N.J. State Parole Bd., No. A-1262-20.
In the aggregate, the seven FETs that defendant received totaled forty-
eight years. He is currently eligible for parole on December 11, 2022, when he
will be fifty-nine years old. Defendant's custody status has been gang
minimum 5 since June 8, 2007. His murder convictions do disqualify him from
full minimum custody status. See Jenkins v. Fauver, 108 N.J. 239, 254-55
(1987) (observing that only sex offenders, arsonists, and escapees are
categorically excluded from consideration for reduced custody status and
recognizing that an inmate convicted of homicide is not disqualified from such
consideration); Smith v. Dep't of Corrections, 346 N.J. Super. 24, 30-32 (App.
Div. 2001) (same).
5
There are six categories of custody status within the New Jersey Department
of Corrections. N.J.A.C. 10A:9-4.1(a). Gang minimum custody status is one
step more restrictive than "full minimum custody status," which, other than
community custody, is the least restrictive category of custody. N.J.A.C.
10A:9-4.6(a). "Inmates classified as 'gang minimum custody status' may be
assigned to activities or jobs . . . outside the security perimeter of the
correctional facility, but on the grounds of the facility and under continuous
supervision of a custody staff member, civilian instructor or other employee
authorized to supervise inmates." N.J.A.C. 10A:9-4.3(d).
11 A-4368-19
In September 2018, defendant filed his second motion to correct an
illegal sentence. Defendant later withdrew the motion without prejudice.
On February 21, 2020, defendant filed a motion for a Miller hearing "to
correct an unconstitutional sentence." In his brief and appendix, defendant
included data from the Board, which he argued showed that being eligible for
parole was not the same as having a "meaningful opportunity for release."
Defendant argued that although his sentence was life with no specified period
of parole ineligibility, he was serving the practical equivalent of life without
parole, which was not the intent of the sentencing judge.
In support of his arguments, defendant submitted "undisputed parole
data" regarding inmates, like himself, who received life in prison terms with
no period of parole ineligibility. Defendant pointed out that from January 1,
2019, to December 31, 2019, over 90 percent of the 445 inmates who were
sentenced to life in prison that appeared before the Board were denied parole.
Defendant also emphasized that he has "a perfect institutional record"
and "is a trusted inmate." He claimed that he "has accepted full responsibility
for his horrific conduct" and that he has "attended institutional programs and
therapy" for over thirty-eight years. Notwithstanding his institutional record,
he pointed out that his "youth" and "attendant circumstances" have never been
considered by the Board.
12 A-4368-19
In response, the State argued that "none of the parole data" cited by
defendant had "any relevance" to whether defendant's original sentence was
illegal. The State did not address the accuracy of the data. The State
maintained defendant was not entitled to a Miller/Zuber 6 hearing because his
original sentence was neither life without parole nor "the practical equivalent
of life without parole."
On August 3, 2020, the trial court issued an order and written decision
denying defendant's motion. The judge noted that defendant had never
received an institutional infraction and the psychological evaluations had
opined that defendant was "a good fit for community release," did "not appear
to be a risk," had "good impulse control," and is a "low risk for recidivism."
In addition, "[t]he most recent psychological evaluation . . . concluded that
defendant 'is a low risk to engage in future violent behavior.'"
The court further noted that the New Jersey Criminal Sentencing and
Disposition Commission Annual Report (Nov. 2019) "unanimously
acknowledged the need for sentencing reform regarding the issue of juvenile
offenders." The court recognized that the Criminal Sentencing and Disposition
Commission "recommended that 'an opportunity for sentencing or release [be
6
State v. Zuber, 227 N.J. 422 (2017).
13 A-4368-19
afforded] for offenders who were juveniles at the time of their offense and
were sentenced as adults to long prison terms.'"
Based on the sentencing judge's reasoning, the court found "that he took
defendant's age and potential for rehabilitation into consideration" and "that
this was done with the intention that defendant would be eligible for parole
and released, in theory, as soon as good behavior allowed. However, in effect,
and for reasons which could not have been anticipated by the sentencing court,
defendant has yet to be released on parole."
The court noted that it did not have the authority to review Appellate
Division or Board decisions. While crediting the parole data submitted by
defendant and acknowledging that the "continued incarceration of defendant at
the hands of the Parole Board did not seem to be the intention of [the
sentencing judge]," the court nonetheless concluded:
[D]efendant's initial sentence is not within the purview
of Miller, [Graham v. Florida, 560 U.S. 48 (2010)], or
Zuber, and is more appropriately addressed by [State
v. Bass, 457 N.J. Super. 1 (App. Div. 2018)].
Defendant is not ineligible for parole at the time of the
present motion. He became eligible for parole within
fifteen years of his life sentences at the approximate
age of thirty and has been eligible for parole since
1995. While not all of the Miller factors may have
been considered in defendant's initial sentencing, this
was through no fault of the sentencing court but rather
the lack of legal precedent and accepted medical
science regarding differentiation between juvenile and
adult capability. Unfortunately, despite Zuber's
14 A-4368-19
urging of the Legislature to mandate a system to
review lengthy juvenile sentences, at this time there is
no such system in place for this court to review
defendant's juvenile sentence as none of the above
legal precedent supports reconsideration of a life
sentence without a mandatory period of parole
ineligibility, especially in the present case where
defendant has been eligible for parole since the
approximate age of thirty. To grant defendant a Miller
hearing would expand the Supreme Court and
Appellate Division's holding far too greatly and at this
time, there is simply nothing in place to support doing
so based on the fact that defendant is still incarcerated
despite being eligible for parole twenty-five years ago.
Legal precedent only allows for this court's
jurisdiction over defendant's sentence, which again, is
not appropriate for reconsideration under the Miller
factors. The issue here is not defendant's sentence,
but rather the practices of the Parole Board, an issue
which falls within the jurisdiction of the Appellate
Division. Based on the extensive appendices and
exhibits provided by defendant, he appears to
demonstrate maturity and rehabilitation and has an
outstanding record of good behavior free of any
infractions. However, it is outside of this court's
jurisdiction to review the decision of the Parole Board
or to mandate reform of its decision-making process.
Even assuming arguendo that this court granted
defendant a Miller/Zuber hearing, short of ordering
defendant be immediately released, defendant would
still be at the mercy of the Parole Board.
Unfortunately, unless and until there is more
expansive precedent or a clear and mandated system
of review for all lengthy juvenile sentences, there are
no grounds for relief available to defendant under the
holdings of Miller, Graham or Zuber.
This appeal followed. Defendant raises the following points:
15 A-4368-19
POINT I
STATE V. BASS, RELIED UPON BY THE TRIAL
COURT IN DENYING A MILLER HEARING, IS
NOT APPLICABLE TO DEFENDANT'S LIFE
SENTENCE BECAUSE THE PAROLE DATA
CLEARLY INDICATES THAT BEING ELIGIBLE
FOR PAROLE DOES NOT PROVIDE A
MEANINGFUL AND REALISTIC OPPORTUNITY
FOR RELEASE, BASED UPON DEMONSTRATED
MATURITY AND REHABILITATION, AS
MANDATED BY ZUBER, MILLER, THE EIGHTH
AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ARTICLE 1, ¶ 12 OF OUR
STATE CONSTITUTION.
A. UNITED STATES SUPREME COURT
PRECEDENT.
B. THE ZUBER OPINION AND OUR STATE
CONSTITUTION.
C. BASS WAS DECIDED CONTRARY TO THE
HOLDING OF OUR SUPREME COURT IN STATE
V. ZUBER, AND THEREFORE ZUBER IS
CONTROLLING PRECEDENT, NOT BASS.
1. The Bass decision impermissibly used life-
expectancy tables to define a meaningful
opportunity for release.
2. Bass incorrectly declared the consideration
of rehabilitative efforts to be exclusively within
the province of the Parole Board.
D. THE PAROLE DATA REVEALS THAT MERE
ELIGIBILITY FOR PAROLE DOES NOT AMOUNT
TO A MEANINGFUL OPPORTUNITY FOR
RELEASE PURSUANT TO GRAHAM V. FLORIDA,
AND PRESENTS THE DE FACTO REALITY THAT
16 A-4368-19
MR. THOMAS WILL NEVER BE RELEASED
WITHOUT JUDICIAL INTERVENTION.
1. The Parole Board contravenes the intentions
and expectations of sentencing judges.
2. The Parole Board's decision-making process
is statutorily and constitutionally deficient.
3. Eligibility for parole does not equate to a
meaningful opportunity to obtain release based
upon demonstrated maturity and rehabilitation.
E. UNDER THE ANALYSIS SET FORTH IN
MILLER AND ZUBER, JUVENILE OFFENDERS
WHO HAVE SERVED MORE THAN [THIRTY]
YEARS IN PRISON, LIKE MR. THOMAS, ARE
ENTITLED TO A RESENTENCING.
POINT II
A MEANINGFUL OPPORTUNITY TO OBTAIN
RELEASE BASED ON DEMONSTRATED
MATURITY AND REHABILITATION REQUIRES
A PROCESS THAT ACTUALLY AND
PREDICTABLY RELEASES PEOPLE WHO HAVE
MATURED AND REHABILITATED.
A. THE OPPORTUNITY FOR RELEASE MUST BE
MEANINGFUL AND REALISTIC, AND A
REMOTE POSSIBILITY FOR RELEASE IS
INSUFFICIENT.
B. A GRAHAM-COMPLIANT SYSTEM MUST
PREDICTABLY RELEASE JUVENILE
OFFENDERS WHO DEMONSTRATE MATURITY
AND REHABILITATION.
POINT III
17 A-4368-19
THE SENTENCING COURT DID NOT PROPERLY
CONSIDER THE MITIGATING ASPECTS OF
YOUTH FOR DETERMINING WHETHER MR.
THOMAS WAS ONE OF THE RARE JUVENILE
OFFENDERS WHOSE CRIMES REFLECT
IRREPARABLE CORRUPTION.
We first review the holdings, constitutional analysis, and intended
import of Graham, Miller, Montgomery v. Louisiana, 577 U.S. 190 (2016),
Jones v. Mississippi, ___ U.S. ___, 141 S. Ct. 1307 (2021), Zuber, and their
progeny.
In Miller, the Court noted that "adolescent brains are not yet fully
mature in regions and systems related to higher-order executive functions such
as impulse control, planning ahead, and risk avoidance." 567 U.S. at 472 n.5.
The court held that a juvenile who commits a homicide may be sentenced to
life without parole, but only if the sentence is not mandatory and the
sentencing judge has discretion to "consider the mitigating qualities of youth"
and impose a lesser punishment. 567 U.S. at 462. The Miller Court mandated
"that a sentencer follow a certain process—considering an offender's youth and
attendant characteristics—before imposing" a life-without-parole sentence. Id.
at 483. The Court outlined five factors ("the Miller factors") to be considered
by sentencing judges, stating:
Mandatory life without parole for a juvenile
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[1] precludes consideration of his chronological age
and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and
consequences.
[2] It prevents taking into account the family and
home environment that surrounds him—and from
which he cannot usually extricate himself—no matter
how brutal or dysfunctional.
[3] It neglects the circumstances of the homicide
offense, including the extent of his participation in the
conduct and the way familial and peer pressures may
have affected him.
[4] Indeed, it ignores that he might have been charged
and convicted of a lesser offense if not for
incompetencies associated with youth—for example,
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.]
While the Court did not "foreclose" life without parole for juveniles
convicted of murder, it required sentencing judges "to take into account how
children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison." Id. at 480. It expected that life
without parole sentences "will be uncommon" because of the difficulty in
concluding that a juvenile is irreparably corrupt. Id. at 479.
19 A-4368-19
In Montgomery, the Court held that Miller established "a substantive
rule of constitutional law" that applied retroactively to cases on collateral
review. 577 U.S. at 208. However, "Miller did not require trial courts to make
a finding of fact regarding a child's incorrigibility." Id. at 211.
Most recently, the Court rejected the argument that the sentencing judge
must make a finding of permanent incorrigibility. Jones, 141 S. Ct. at 1311.
Jones murdered his grandfather when he was only fifteen years old. Id. at
1312. Under Mississippi law, the mandatory sentence for murder was life
without parole. Ibid. Jones later moved for post-conviction relief, contending
that his mandatory life-without-parole sentence violated the Cruel and Unusual
Punishments Clause of the Eighth Amendment. Ibid.
The Court noted that "Miller held that the Cruel and Unusual
Punishments Clause of the Eighth Amendment prohibits mandatory life-
without-parole sentences for murderers under eighteen, but the Court allowed
discretionary life-without-parole sentences for those offenders." Ibid.
(emphasis in original). "[T]he Fourteenth Amendment incorporates the Cruel
and Unusual Punishments Clause against the States." Id. at 1314.
The Court concluded "that permanent incorrigibility is not an eligibility
criterion akin to sanity or a lack of intellectual disability." Id. at 1315. "[T]he
Court has recognized that it 'is difficult even for expert psychologists to
20 A-4368-19
differentiate between the juvenile offender whose crime reflects unfortunate
yet transient immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption.'" Id. at 1315 (quoting Roper v. Simmons, 543 U.S.
551, 573 (2005)). "Miller declined to characterize permanent incorrigibility as
such an eligibility criterion. Rather, Miller repeatedly described youth as a
sentencing factor akin to a mitigating circumstance." Ibid. "Miller in turn
required a sentencing procedure similar to the procedure . . . required for the
individualized consideration of mitigating circumstances in capital cases . . . ."
Ibid."In the wake of Miller, the Mississippi Supreme Court . . . ordered a new
sentencing hearing where the judge could consider Jones's youth and exercise
discretion in selecting an appropriate sentence." Id. at 1312-13. On
resentencing, the judge determined that life without parole remained the
appropriate sentence. Id. at 1313.
The United States Supreme Court has repeatedly "stated that youth
matters in sentencing." Ibid. In Roper, the Court held that the Eighth
Amendment prohibits capital punishment for murderers who were under
eighteen when they committed their crimes. 543 U.S. at 578. The Court
recognized three basic differences between juveniles and adults. Id. at 569.
First, because of "[a] lack of maturity and an underdeveloped sense of
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responsibility," juveniles are more likely to engage in "impetuous and ill-
considered actions" and "reckless behavior." Ibid. (citations omitted); accord
State in Interest of C.K., 233 N.J. 44, 68-70 (2018). Second, "juveniles are
more vulnerable or susceptible to negative influences and outside pressures,
including peer pressure." Ibid.; accord Zuber, 227 N.J. at 440. Third, "the
character of a juvenile is not as well formed as that of an adult. The
personality traits are more transitory, less fixed." Id. at 570; accord C.K., 233
N.J. at 69. Consequently, there is "a greater possibility . . . that a minor's
character deficiencies will be reformed." Ibid.
In Graham, the Court held that the Eighth Amendment prohibits life
without parole for juvenile offenders who committed non-homicide offenses.
560 U.S. at 82. The Court noted that research showed "fundamental
differences between juvenile and adult minds." Id. at 68. A key difference is
that "parts of the brain involved in behavior control continue to mature through
late adolescence." Ibid. As a result, "[j]uveniles are more capable of change
than are adults, and their actions less likely to be evidence of 'irretrievably
depraved character.'" Ibid. (quoting Roper, 543 U.S. at 570). Although "[a]
State is not required to guarantee eventual freedom to" juvenile offenders, the
State must "give defendants . . . some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation." Id. at 75. The Court left
22 A-4368-19
it to "the State, in the first instance, to explore the means and mechanisms for
compliance." Ibid.
In Jones, the Court made clear that it was not limiting the State's ability
to impose more rigorous sentencing procedures:
Importantly, like Miller and Montgomery, our
holding today does not preclude the States from
imposing additional sentencing limits in cases
involving defendants under [eighteen] convicted of
murder. States may categorically prohibit life without
parole for all offenders under [eighteen]. Or States
may require sentencers to make extra factual findings
before sentencing an offender under [eighteen] to life
without parole. Or States may direct sentencers to
formally explain on the record why a life-without-
parole sentence is appropriate notwithstanding the
defendant's youth. States may also establish rigorous
proportionality or other substantive appellate review
of life-without-parole sentences. All of those options,
and others, remain available to the States . . . .
Indeed, many States have recently adopted one or
more of those reforms . . . . But the U.S. Constitution,
as this Court's precedents have interpreted it, does not
demand those particular policy approaches.
[Jones, 141 S. Ct. at 1323 (citations omitted).]
Finally, the Court recognized that Jones contended that he had
"maintained a good record in prison and that he is a different person now than
he was when he killed his grandfather." Ibid. The Court stated that its
"decision allows Jones to present those arguments to the state officials
authorized to act on them, such as the state legislature, state courts, or
23 A-4368-19
[g]overnor. Those state avenues for sentencing relief remain open to Jones,
and they will remain open to him for years to come." Ibid.
In Zuber, the defendants, who committed their violent crimes when they
were juveniles, were sentenced to lengthy consecutive sentences with long
periods of parole ineligibility. 227 N.J. at 428. One would not be eligible for
parole until age seventy-two, the other would be eighty-five years old when
first eligible for parole. Ibid. Our Supreme Court extended the Miller factors
"to sentences that are the practical equivalent of life without parole," focusing
"on the amount of real time a juvenile will spend in jail and not on the formal
label attached to his sentence." Id. at 429. The Court "direct[ed] that [the]
defendants be resentenced and that the Miller factors be addressed at that
time." Ibid.
The Court emphasized that the focus when sentencing a juvenile
"belongs on the real-time consequences of the aggregate sentence. To that
end, judges must evaluate the Miller factors when they sentence a juvenile to a
lengthy period of parole ineligibility for a single offense. They must do the
same when they . . . determine the length of [an] aggregate sentence." Id. at
447.
"A defendant may challenge an illegal sentence at any time." Id. at 437
(citing R. 3:21-10(b)(5); State v. Acevedo, 205 N.J. 40, 47 n.4 (2011)). A
24 A-4368-19
sentence that is "imposed without regard to a constitutional safeguard" is
illegal. Ibid. (quoting State v. Tavares, 286 N.J. Super. 610, 618 (App. Div.
1996)).
Most recently, in Comer, our Supreme Court revisited "the constitutional
limits that apply to sentences for juvenile offenders." ___ N.J. at ___ (slip op.
at 4). The Court began its analysis by recognizing:
The law recognizes what we all know from life
experience -- that children are different from adults.
Children lack maturity, can be impetuous, are more
susceptible to pressure from others, and often fail to
appreciate the long-term consequences of their
actions. Miller, [567 U.S. at 477]. They are also more
capable of change than adults. Graham, [560 U.S. at
68]. Yet we know as well that some juveniles -- who
commit very serious crimes and show no signs of
maturity or rehabilitation over time -- should serve
lengthy periods of incarceration.
The issue before the Court is how to meld those
truths in a way that conforms to the Constitution and
contemporary standards of decency. In other words,
how to impose lengthy sentences on juveniles that are
not only just but that also account for a simple reality:
we cannot predict, at a juvenile's young age, whether a
person can be rehabilitated and when an individual
might be fit to reenter society.
[Ibid.]
James Comer committed four armed robberies, one of which resulted in
felony murder, when he was a juvenile. Id. at ___ (slip op. at 8). After
successfully challenging his original aggregated term of 75 years as
25 A-4368-19
unconstitutional under Miller, he was resentenced to 30 years without the
possibility of parole, the mandatory minimum sentence for felony murder
under N.J.S.A. 2C:11-3(b)(1). Id. at ___ (slip op. at 5, 10).
James C. Zarate committed purposeful murder when he was fourteen
years old, and was sentenced to life, subject to the 85-percent period of parole
ineligibility imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. Id. at ___ (slip op. at 5, 16). He also received consecutive four- and nine-
year terms for two other offenses. Id. at ___ (slip op. at 16). Zarate will first
be eligible for parole after serving more than forty years. Id. at ___ (slip op. at
5). Zarate was later resentenced to life in prison with no consecutive terms.
Id. at ___ (slip op. at 18). On a second remand, Zarate was resentenced to a
50-year NERA term. Id. at ___ (slip op. at 21). We modified and affirmed his
sentence, but "declined to foreclose the possibility that Zarate might one day
be able to return to court to show 'that he has sufficiently reformed himself to a
degree that' his sentence is 'no longer . . . constitutional under the Eighth
Amendment.'" Id. at ___ (slip op. at 21-22) (alteration in original).
Comer and Zarate "argued that their sentences violated federal and state
constitutional provisions that bar cruel and unusual punishment. See U.S.
Const. amend. VIII; N.J. Const. art. I, ¶ 12." Id. at ___ (slip op. at 5). They
contended that the mandatory minimum sentence of thirty years without parole
26 A-4368-19
required by N.J.S.A. 2C:11-3(b)(1), is unconstitutional when applied to
juveniles. Ibid.
The Court "decline[d] to strike that aspect of the homicide statute." Ibid.
The Court found it was "obligated to address the constitutional issue the
parties present[ed] and [could not] wait to see whether the Legislature will act,
as the State request[ed]." Ibid. Noting the Judiciary's responsibility to
determine whether sentencing statutes are constitutional and that "courts also
have the authority to act to protect statutes from being invalidated on
constitutional grounds[,]" the Court concluded that "the statutory framework
for sentencing juveniles, if not addressed, will contravene Article I, Paragraph
12 of the State Constitution." Id. at ___ (slip op. at 6).
The Court explained that to determine whether a sentence is cruel and
unusual, an independent analysis under Article I, Paragraph 12 of the New
Jersey Constitution is appropriate. Id. at ___ (slip op. at 25) (citing State v.
Ramseur, 106 N.J. 123, 182 (1987)).
The test under [the federal and state] Constitutions is
"generally the same": "First, does the punishment for
the crime conform with contemporary standards of
decency? Second, is the punishment grossly
disproportionate to the offense? Third, does the
punishment go beyond what is necessary to
accomplish any legitimate penological objective?"
Zuber, 227 N.J. at 438 (quoting Ramseur, 106 N.J. at
169). If the punishment fails under any one of the
27 A-4368-19
three inquiries, "it is invalid." State v. Gerald, 113
N.J. 40, 78 (1988).
[Ibid.]
As it has in other contexts, the Court instructed that "[a]lthough the test
is similar under federal and state law, our State Constitution can confer greater
protection than the Eighth Amendment affords." Id. at ___ (slip op. at 26).
The Court noted that collectively, the United States Supreme Court
opinions about juvenile sentencing since 2005 "establish that children are
constitutionally different from adults for purposes of sentencing." Id. at ___
(slip op. at 26) (quoting Miller, 567 U.S. at 471). The Court further noted
what we outlined above, that those decisions recognized "[t]hree general
differences between juveniles under 18 and adults, [which] demonstrate that
juvenile offenders cannot with reliability be classified among the worst
offenders." Id. at ___ (slip op. at 27) (alterations in original) (quoting Roper,
543 U.S. at 569). First, "juveniles are less mature and responsible than
adults." Ibid. (citing Roper, 543 U.S. at 569). Second, "[j]uveniles are more
vulnerable or susceptible to negative influences and outside pressures,
including peer pressure" and "have less control . . . over their own
environment." Ibid. (quoting Roper, 543 U.S. at 569). Third, "'the character
of a juvenile is not as well formed as that of an adult,' and . . . juveniles'
'personality traits . . . are more transitory, [and] less fixed.'" Ibid. (alterations
28 A-4368-19
in original) (quoting Roper, 543 U.S. at 570). "Taken together, the differences
tell us that a juvenile's 'irresponsible conduct is not as morally reprehensible
as' the behavior of an adult." Ibid. (quoting Roper, 543 U.S. at 570).
The Court further noted that "Zuber underscored one of Graham's
concerns: the inability to determine at the moment of sentencing whether a
juvenile might one day be fit to reenter society." Id. at ___ (slip op. at 32)
(citing Zuber, 227 N.J. at 451). The Court continued with how Zuber
recognized "that some 'juveniles will receive lengthy sentences with
substantial periods of parole ineligibility' and may well return to court decades
later to challenge the constitutionality of their sentence" and "'might ask the
court to review factors that could not be fully assessed when they were
originally sentenced -- like whether they still fail to appreciate risks and
consequences, or whether they may be, or have been, rehabilitated.'" Id. at ___
(slip op. at 32-33) (alterations to plural in original) (quoting Zuber, 227 N.J. at
451-52).
Recognizing that such claims "would raise serious constitutional issues
about whether sentences for crimes committed by juveniles, which carry
substantial periods of parole ineligibility, must be reviewed at a later date," the
Zuber Court "encourage[d] the Legislature to examine [the] issue" and
"consider enacting a scheme that provides for later review of juvenile
29 A-4368-19
sentences with lengthy periods of parole ineligibility." Id. at ___ (slip op. at
33) (alterations in original) (quoting Zuber, 227 N.J. at 452-53). The Court
noted that in the intervening years since 2017, "a number of bills relating to
the issue have been introduced or reintroduced in the Legislature." Ibid. None
of those bills, including A. 4372 (June 29, 2020)/ S. 2591 (June 22, 2020)
(allowing juveniles sentenced to 30 years or more who have served at least 20
years to petition for resentencing), were enacted.
The Court also recognized that "[o]ther states have also addressed
lengthy mandatory minimum sentences and parole bars for juvenile offenders"
and noted that thirteen states and the District of Columbia had enacted
"statutes that allow juvenile offenders to be considered for release before 30
years have passed. Some states afford juveniles a chance at parole; others
grant them an opportunity to be resentenced." Id. at ___ (slip op. at 34). In
addition, the Iowa and Washington Supreme Courts have "issued rulings that
ban mandatory minimum sentences for juvenile offenders." Id. at ___ (slip op.
at 37); see State v. Lyle, 854 N.W.2d 378, 380 (Iowa 2014); State v. Houston-
Sconiers, 391 P.3d 409, 414 (Wash. 2017).
The Court then turned to the facts, noting that Comer and Zarate were
sentenced under a statute that required them to serve a minimum of thirty years
in prison with no possibility of parole. Id. at ___ (slip op. at 40). The court
30 A-4368-19
reiterated that a sentencing court "cannot determine at the outset that a juvenile
will never be fit to reenter society," and that "it is difficult even for experts to
assess whether a juvenile's criminal behavior is a sign of transient immaturity
or irreparable corruption." Id. at ___ (slip op. at 41-42) (first citing Graham,
560 U.S. at 75, then citing Roper, 543 U.S. at 573).
The Court further noted that "[t]he Legislature fixed the maximum
sentence in the Family Part for a juvenile found to have committed murder at
20 years." Id. at ___ (slip op. at 42) (citing N.J.S.A. 2A:4A-44(d)(1)(a)). "In
addition, the Legislature recently amended the sentencing statute, which now
requires judges to consider youth as a mitigating factor at the time of
sentencing." Ibid. (citing N.J.S.A. 2C:44-1(b)(14) ("The defendant was under
26 years of age at the time of the commission of the offense.")). The
Legislature also "amended the waiver statute to raise the minimum age for a
juvenile to be waived to adult court from 14 to 15," N.J.S.A. 2A:4A-
26.1(c)(1), and "eliminated life-without-parole sentences for juveniles in
response to Zuber." Id. at ___ (slip op. at 43) (citing L. 2017, c. 150, § 1
(codified at N.J.S.A. 2C:11-3(b)(5))). "When a juvenile is sentenced to a 30-
year term under N.J.S.A. 2C:11-3(b)(1), however, no consideration can be
given to the person’s youthful status." Ibid. The court concluded that these
statutory changes, case law, and other sources "suggest that a 30-year parole
31 A-4368-19
bar does not conform to contemporary standards of decency." Id. at ___ (slip
op. at 44).
Regarding the second prong, whether the punishment is grossly
proportional to the offense, the Court explained that "[b]ecause children lack
maturity and responsibility," a juvenile's "misconduct is not as morally
culpable as an adult's." Id. at ___ (slip op. at 45) (citing Roper, 543 U.S. at
569-70). Therefore, judges must "consider mitigating qualities of youth that
reflect their diminished culpability." Ibid. This diminished culpability
"suggests that the severity of a 30-year parole bar for juveniles, in many cases,
may be grossly disproportionate to the underlying offense." Id. at ___ (slip op.
at 46).
The third prong examines "whether 'the punishment go[es] beyond what
is necessary to accomplish any legitimate penological objective.'" Id. at ___
(slip op. at 47) (alteration in original) (quoting Zuber, 227 N.J. at 438).
"[B]ecause of the diminished culpability of juveniles, the traditional
penological justifications -- retribution, deterrence, incapacitation, and
rehabilitation -- 'apply . . . with lesser force than to adults.'" Ibid. (second
alteration in original) (quoting Roper, 543 U.S. at 571). The Court noted that
retribution does not apply with equal strength to juveniles and that "the threat
of a lengthy jail sentence is less of a deterrent for juveniles than adults." Ibid.32 A-4368-19
Moreover, "[t]he core rationale for incapacitation is the need to protect the
public. Yet even experts . . . cannot predict whether a juvenile's criminal
behavior 'reflects unfortunate yet transient immaturity' or the 'rare' situation of
a minor who is 'irreparabl[y] corrupt[].'" Id. at ___ (slip op. at 48) (second and
third alterations in original) (quoting Roper, 543 U.S. at 573).
Important to this case, the Court emphasized that "[r]esearch reveals that
most juveniles desist from crime before 30 years have passed from the time of
their offense. Scientists refer to that as the 'age-crime curve,' which shows
'that more than 90% of all juvenile offenders desist from crime by their mid-
20s.'" Ibid. (quoting Laurence Steinberg, The Influence of Neuroscience on
U.S. Supreme Court Decisions about Adolescents' Criminal Culpability, 14
Neuroscience 513, 516 (2013)). The Court concluded that "[t]he 'age-crime
curve' is at odds with the notion that juveniles, as a category of offenders, must
be incapacitated for several decades to protect the public." Id. at ___ (slip op.
at 49).
Regarding rehabilitation, the Court recognized that "a child's brain
matures as the child grows older, including parts of the brain involved in
impulse control" and that "juveniles are also more capable of change than
adults." Ibid. (citations omitted). "A mandatory period of three decades in
prison does not foster that type of growth or change. Nor does it serve to
33 A-4368-19
rehabilitate young adults in the way the State's juvenile justice system does."
Ibid. The Court concluded that "[r]ehabilitation cannot justify mandatory
minimum sentences of 30 years for juveniles regardless of the individual facts
and circumstances of a case." Id. at ___ (slip op. at 50).
The Court described the twofold constitutional concern as: "the
[sentencing] court's lack of discretion to assess a juvenile's individual
circumstances and the details of the offense before imposing a decades-long
sentence with no possibility of parole; and the court's inability to review the
original sentence later, when relevant information that could not be foreseen
might be presented." Ibid. "Allowing minors a later opportunity to show they
have matured, to present evidence of their rehabilitation, and to try to prove
they are fit to reenter society would address the problem posed." Id. at ___
(slip op. at 51).
"To remedy the concerns defendants raise[d] and save the [homicide]
statute from constitutional infirmity," the Court held that "juvenile offenders
convicted under the law" will be permitted "to petition for a review of their
sentence after they have served two decades in prison." Id. at ___ (slip op. at
6). "At that time, judges will assess" the Miller factors, "which are designed to
consider the 'mitigating qualities of youth.'" Ibid. (quoting Miller, 567 U.S. at
476-78).
34 A-4368-19
The Court adopted the following procedure:
At the hearing, the trial court will assess factors
it could not evaluate fully decades before -- namely,
whether the juvenile offender still fails to appreciate
risks and consequences, and whether he has matured
or been rehabilitated. The court may also consider the
juvenile offender's behavior in prison since the time of
the offense, among other relevant evidence.
After evaluating all the evidence, the trial court
would have discretion to affirm or reduce the original
base sentence within the statutory range, and to reduce
the parole bar to no less than 20 years. A juvenile
who played a central role in a heinous homicide and
then had a history of problematic behavior in prison,
and was found to be incorrigible at the time of the
later hearing, would be an unlikely candidate for
relief. On the other hand, a juvenile who originally
acted in response to peer pressure and did not carry
out a significant role in the homicide, and who
presented proof at the hearing about how he had been
rehabilitated and was now fit to reenter society after
two decades, could be an appropriate candidate for a
lesser sentence and a reduced parole bar.
[Id. at ___ (slip op. at 6-7).]
During the hearing, "[b]oth parties may also present additional evidence
relevant to sentencing." Id. at ___ (slip op. at 53). "In particular, the trial
court should consider evidence of any rehabilitative efforts since the time a
defendant was last sentenced." Id. at ___ (slip op. at 53-54). The Court held
that Comer was entitled to be resentenced again, even though the Miller
factors were considered during his prior resentencing. Id. at ___ (slip op. at
35 A-4368-19
57). As to Zarate, the Court held he was "to be sentenced anew with an
appropriate application of the Miller factors." Id. at ___ (slip op. at 58).
Guided by these principles, we engage in the following analysis to
determine if Thomas, whose sentence did not incorporate a lengthy period of
parole ineligibility, but has now served more than forty years in prison due to
repeated parole denials, is entitled to an adversarial, evidentiary hearing under
Comer, with representation by appointed counsel, to afford him a meaningful
opportunity to demonstrate that he now appreciates risks and consequences,
has gained maturity, and has been rehabilitated. We further consider whether
defendant must be afforded the right to cross-examine the State's witnesses,
and present witnesses, expert testimony, parole records (including post-
sentencing psychological evaluations), and prison disciplinary records at the
hearing.
We fully recognize that defendant perpetrated a horrific double murder
when he was seventeen years old. He pleaded non vult to the murder charges
and under the statutes then in effect was sentenced to life, making him eligible
for parole after serving thirteen years. He has now served more than forty
years in prison after being denied parole seven times and receiving lengthy
FETs each time. Yet during those four decades, defendant has committed no
disciplinary infractions or new crimes. He has participated in numerous
36 A-4368-19
rehabilitation programs, including treatment for substance abuse, behavioral
modification, impulse control, and vocational training, and earned a GED. His
inmate classification allows him to serve as an electrician at the prison where
he is incarcerated. Defendant has an excellent work record. The State does
not dispute that defendant has been a model prisoner.
In addition, defendant has undergone eighteen psychological evaluations
while incarcerated, seventeen times by psychologists selected by the
Department of Corrections. None of those evaluations have found him to be a
high or moderate risk for reoffending. Indeed, Murcowski has twice found
defendant to be a "low risk for recidivism." Three of the evaluations found
him to be a low risk for future violent behavior, including the evaluations
performed in 2016 and 2019.
While it is true that his parole denials have been ultimately affirmed on
appeal, parole hearings fall far short of providing an adversarial hearing for
defendant to demonstrate the degree of maturity and rehabilitation he has
achieved while incarcerated. Defendant is not represented by counsel at the
parole hearing and he cannot present witnesses or expert testimony. The Sixth
Amendment right of confrontation and cross-examination have not been
applied to hearings to determine if an inmate should be paroled. Thus,
defendant can neither compel the appearance of the psychologists or other
37 A-4368-19
experts whose reports are utilized by the Board to evaluate him, nor cross-
examine them. Instead, their unchallenged hearsay psychological evaluation
reports are considered and frequently relied upon by the Board. And, unlike
appeals from other administrative agencies, inmates do not have the right to
contest the Board's decision before an Administrative Law Judge (ALJ) before
the Board issues a final decision. 7 Indeed, defendant does not even receive
their reports, which are part of the confidential appendix that he is unable to
inspect.
The importance of cross-examination is beyond dispute. In our system
of justice, cross-examination is the "greatest engine ever invented for the
discovery of truth." State v. Cope, 224 N.J. 530, 554 (2016) (quoting
California v. Green, 399 U.S. 149, 158 (1970)); see also Chambers v.
Mississippi, 410 U.S. 284, 295 (1973) (stating that cross-examination "helps
7
Moreover, in proceedings before an ALJ, parties can cross-examine expert
witnesses presented by the agency. In addition, the residuum rule applies,
which provides that "[s]ubject to the judge's discretion to exclude evidence
under [N.J.A.C.] 1:1-15.5(c) or a valid claim of privilege, hearsay evidence
shall be admissible in the trial of contested cases." N.J.A.C. 1:1-15.5(a).
"Notwithstanding the admissibility of hearsay evidence, some legally
competent evidence must exist to support each ultimate finding of fact to an
extent sufficient to provide assurances of reliability and to avoid the fact or
appearance of arbitrariness." N.J.A.C. 1:1-15.5(b). In contrast, even though
the "evidence at parole hearings is frequently hearsay by nature[,] . . . the
'residuum evidence' rule does not apply" to hearings to determine if an inmate
should be paroled. Gerardo v. N.J. State Parole Bd., 221 N.J. Super. 442, 452-
53 (App. Div. 1987).
38 A-4368-19
assure the 'accuracy of the truth-determining process'" (quoting Dutton v.
Evans, 400 U.S. 74, 89 (1970))). In a related context, we described the greater
risk of error when the record is limited to mostly written hearsay statements
that are not subjected to cross-examination:
It is also important to emphasize that there is a
greater opportunity for an erroneous determination
when the only information provided to the decision
maker consists of written statements, which were not
subject to cross-examination, and when the individual
whose liberty interest is at stake has had no
opportunity to know of the contents of the statements
or to provide his own testimony or other evidence in
response.
[Jamgochian v. N.J. State Parole Bd., 394 N.J. Super.
517, 535 (App. Div. 2007), aff'd as modified, 196 N.J.
222 (2008).]
Moreover, we apply a deferential standard of review of final Board
decisions. See Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437, 470
(App. Div. 1997) ("The granting of parole is within the discretion of the
Board, and we must give great deference to the expertise of the Board in its
parole decisions and not upset them unless it clearly and convincingly appears
that the Board has abused its discretion."). Whether a sentence is illegal as
unconstitutional, however, is a question of law to which a reviewing court
affords no deference. Zuber, 227 N.J. at 437.
39 A-4368-19
By any measure, parole hearings are a poor substitute for a procedure
that would afford defendant a "meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation." Zuber, 227 N.J. at 452 (quoting
Graham, 560 U.S. at 75). This failure to provide a means for later review of
his life sentence effectively precludes defendant from having a court consider
his rehabilitative efforts and the maturity he has gained in the intervening
years and whether his sentence has become the practical equivalent of life
without parole. While Montgomery allows a Miller violation to be remedied
by consideration for parole, consideration for parole standing alone does not
remedy the violation, particularly where the record supports a finding that the
defendant is not incorrigible and has served decades in prison.
Miller established a new rule of substantive constitutional law. Graham
and Zuber embraced the concept of having a court review whether a defendant
has matured and been rehabilitated during their lengthy incarceration. Zuber,
227 N.J. at 451-52. Tormasi recognized that in certain circumstances, an
adversarial hearing may be needed to meet that goal. 466 N.J. Super. at 71.
We did so without deciding "what would constitute an appropriate amount of
time in prison to justify a 'return to court' to demonstrate that defendant has
sufficiently reformed himself to a degree that serving his original sentence in
full is no longer constitutional under the Eighth Amendment." Id. at 66.
40 A-4368-19
Comer created a procedure for juvenile offenders sentenced to the murder
statute's mandatory 30-year parole bar to petition the court for a hearing after
they have served at least twenty years in prison to "assess factors that the
sentencing court could not evaluate fully decades before – namely, whether the
juvenile offender still fails to appreciate risks and consequences, and whether
he has matured or been rehabilitated." Comer, ___ N.J. at ___ (slip op. at 6-7).
At the hearing "[t]he court may also consider the juvenile offender's behavior
in prison since the time of the offense, among other relevant evidence." Id. at
___ (slip op. at 7).
We now hold that defendant, who was sentenced to life in prison without
a specified period of parole ineligibility and has been incarcerated for over
forty years for crimes committed when a juvenile, has a blemish-free
disciplinary record, has received numerous positive psychological evaluations,
and has completed rehabilitative programs while incarcerated, is entitled to the
same type of hearing adopted in Comer—an adversarial hearing in the
Criminal Part to provide a "meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation" achieved while imprisoned, Zuber,
227 N.J. at 452 (quoting Graham, 560 U.S. at 75), including consideration of
whether defendant "still fails to appreciate risks and consequences," his
"behavior in prison since the time of the offense," and "other relevant
41 A-4368-19
evidence," Comer, ___ N.J. at ___ (slip op. at 6-7). "After evaluating all the
evidence, the trial court [will] have discretion to affirm or reduce the original
base sentence within the statutory range," Comer, ___ N.J. at (slip op. at 7),
and, in turn, determine whether defendant should be released based on the time
he has served. 8
Defendant's constitutional rights in that regard are not satisfied by
periodic parole hearings, which do not consider the Miller factors, and do not
provide a constitutionally sufficient procedure and forum to adjudicate the
important Federal and State constitutional issues presented. Parole hearings
fall far short of the procedure contemplated in Graham, Comer, Zuber, and
Tormasi.
Emblematic of the shortcomings of the parole hearings defendant has
endured is the Board's unsustainable 2013 final decision, which included the
following conclusions that were not supported by the record:
Here, the Board singularly focused upon the
admittedly horrific details of Thomas's crimes, and his
"insufficient problem resolution" in the form of a
contrived memory lapse, as evidence of likely
recidivism.
8
Defendant was sentenced under a former version of the murder statute,
which did not have a mandatory parole bar, let alone a 30-year parole-bar.
Therefore, his situation is different from Comer's. Under Comer, a defendant
must serve twenty years before he can petition for resentencing. Id. at ___
(slip op. at 7). Thomas has far exceeded that twenty-year requirement.
42 A-4368-19
....
However, there is no evidence in the record to
support the Board's contention that Thomas's lack of
memory is less than genuine and, apart from the issue
of recollection, the record is replete with evidence
supporting his acknowledgement of responsibility of
his crimes as sincere and legitimate. Psychological
evaluations as far back as 1991 consistently report that
Thomas accepted responsibility for his crimes even
while claiming he was under the influence of drugs
and alcohol and "lacked control over his actions."
Additionally, Thomas's parole hearing testimony
makes clear that Thomas accepts full responsibility for
his crimes and possesses insight into his motivations
for committing such horrific violent acts, namely that
he was an angry, bullied, drug-addicted youth who
resorted to violence to solve his problems. And now,
as a fifty-year-old man who has attended programs
and therapy for over thirty years, he is a different
person who maintains control over his actions.
....
Moreover, although the Board noted, as
mitigating factors, Thomas's participation in programs
and counseling, his vocational certifications, and his
infraction-free status maintained throughout Thomas's
entire prison stay, it failed to address the ten positive
psychological evaluations performed on Thomas
between[] 1991 and 2003 all of which consistently
reported that Thomas had "good insight" and
maintained good impulse control and judgment.
We conclude that the record here does not
support the conclusion that recidivism is likely.
[Thomas III (slip op. at 14-17).]
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Our criticisms of the parole process are confined to the distinctive
setting of this case involving "heightened review" of the constitutionality of an
extremely lengthy incarceration of a juvenile offender who has been a model
prisoner. Our holding should not be construed as a generalized finding that the
parole process is procedurally deficient or unfair.
We recognize that defendant was not sentenced to life without parole or
life with a lengthy period of parole ineligibility and was eligible for parole
after serving only thirteen years. "Nevertheless, a statutorily permissible
sentence may still violate the constitutional prohibition against cruel and
unusual punishment." Tormasi, 466 N.J. Super. at 62. We focus "on the
amount of real time" defendant has spent in prison "and not on the formal label
attached to his sentence." Zuber, 227 N.J. at 429.
Here, there is seemingly no end to defendant's imprisonment. Despite
his exemplary behavior during more than forty years in prison, he has been
denied parole seven times and received lengthy FETs each time. As we
recognized in Tormasi, a defendant who "serves a substantial period in prison
due to a parole denial or denials . . . may . . . have a basis to file a motion to
correct an illegal sentence based on 'factors that could not be fully assessed
when he was originally sentenced.'" 466 N.J. Super. at 71 (quoting Zuber, 227
N.J. at 452). The record establishes that defendant has met that threshold.
44 A-4368-19
Defendant "must be given the opportunity to show [his crimes] did not reflect
irreparable corruption" and thereby avoid cruel and unusual punishment.
Zuber, 227 N.J. at 446 (quoting Montgomery, 577 U.S. at 213).
We also recognize that in Bass, we stated that a "defendant's sentence is
not illegal because he claims to be rehabilitated as a result of his
incarceration." 457 N.J. Super. at 14. The facts in Bass are distinguishable.
Bass was sentenced to an aggregate sentence of life with thirty-five years of
parole ineligibility. Id. at 4. Unlike in this case, Bass had not undergone a
series of parole denials and lengthy FETs, and the case focused on whether the
defendant was entitled to PCR, based on his argument that the revised waiver
statute, N.J.S.A. 2A:4A-26.1(c), applied retroactively to his case. We rejected
that argument and concluded that his sentence was not illegal. We also
concluded that consideration of the defendant's efforts at rehabilitation was
"exclusively the province of the parole board and not a means of collateral
attack on [the] defendant's sentence—which has been affirmed on direct
appeal." Id. at 14. The Bass court did not engage in a full analysis of whether
the defendant's sentence violated the Federal or State constitutions. To the
extent that Bass may be interpreted as barring a Miller/Zuber/Comer hearing
under the facts of this case, we reject that conclusion. In any event, Bass does
not comport with the holding in Comer.
45 A-4368-19
"The fundamental fairness doctrine is an integral part of the due process
guarantee of Article I, Paragraph 1 of the New Jersey Constitution, which
protects against arbitrary and unjust governmental action." State v. Njango,
247 N.J. 533, 537 (2021); accord Jamgochian v. N.J. State Parole Bd., 196 N.J.
222, 239 (2008). "The doctrine serves as 'an augmentation of existing
constitutional protections or as an independent source of protection against
state action.'" State v. Melvin, 248 N.J. 321, 348 (2021) (quoting Doe v.
Poritz, 142 N.J. 1, 108 (1995)). It advances "fairness and fulfillment of
reasonable expectations" relating to "constitutional and common law goals."
Njango, 247 N.J. at 549 (quoting State v. Vega-Larregui, 246 N.J. 94, 132
(2021)).
We rely, in part, on the fundamental fairness doctrine to resolve the
"especially compelling" issue before us. See State v. Saavedra, 222 N.J. 39,
67 (2015) (noting that "[t]he doctrine is applied 'sparingly' and only where the
'interests involved are especially compelling' . . . ." (quoting Doe, 142 N.J. at
108)). As we have explained, defendant's confinement seems to have no end,
and that is due, to a large extent, to the confluence of the following: precedent
that allows the consideration for parole to remedy a Miller violation; precedent
that removes his sentence from the realm of de facto life terms; and the
deferential standard of review applied to parole denials. To this point in time,
46 A-4368-19
these legal concepts have hindered defendant's ability to obtain the review to
which he is constitutionally entitled. Fundamental fairness requires relief.
Although defendant was not sentenced to a lengthy period of parole
ineligibility, his sentence has, as a practical matter, evolved into just that,
despite the significant rehabilitated steps he has taken, his blemish-free record
while incarcerated, and the positive psychological evaluations he has received.
Considering the record in this matter, nothing less than an adversarial hearing
in the Criminal Part will afford defendant the "meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation" envisioned
by Graham, 560 U.S. at 75, Comer, ___ N.J. at ___ (slip op. at 6-7), and
Zuber, 227 N.J. at 452. We therefore reverse the order denying defendant's
motion to correct an illegal sentence without conducting an adversarial
hearing. 9 Because defendant has already petitioned for the very adversarial
hearing that we hold he is entitled to, and appeals from the denial of that
application, he need not file a new petition. We remand for the trial court to
conduct an adversarial evidentiary hearing consistent with this opinion. At the
hearing, defendant shall have the right to be represented by legal counsel,
present witnesses and expert testimony, cross-examine the State's witnesses,
9
In so ruling, we do not fault the trial court, which based its decision on then
existing case law.
47 A-4368-19
and introduce his nonconfidential parole records and other relevant, admissible
exhibits. We leave the admissibility of such records and exhibits and any
request for discovery to the sound discretion of the trial court.
On remand, the court shall consider the Miller factors and determine
whether defendant has demonstrated that he now appreciates risks and
consequences and has achieved maturity and rehabilitation while imprisoned
that warrants relief under the State Constitution. The parties shall keep the
trial court abreast of the status of defendant's pending appeal of his parole
denial.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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