STATE OF NEW JERSEY VS. DAVID SIMONS (95-06-1561, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2189-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID SIMONS,
Defendant-Appellant.
Argued September 14, 2021 – Decided October 5, 2021
Before Judges Fisher, Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 95-06-1561.
Ashley T. Brooks, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Joseph J. Russo, Deputy
Public Defender, of counsel and on the brief).
John Joseph Santoliquido, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Cary Shill, Acting Atlantic County
Prosecutor, attorney; John Joseph Santoliquido, of
counsel and on the brief).
PER CURIAM
In 1994, at the age of sixteen, defendant was convicted of felony murder,
armed robbery, and related weapons offenses. He was sentenced to an aggregate
sentence of life imprisonment with thirty years of parole ineligibility. We
affirmed on direct appeal. State v. Simons, No. A-2328-96 (App. Div. Apr. 23,
1999). The two petitions for post-conviction relief were unsuccessful.
Before this court is defendant's appeal from the denial of his motion to
correct an illegal sentence presented under Rule 3:21-10(b)(5). Defendant
asserted before the trial court that his sentence of life imprisonment with thirty
years of parole ineligibility contravened the rulings in Miller v. Alabama, 567
U.S. 460 (2012) and State v. Zuber, 227 N.J. 422 (2017).
In denying the motion, the trial judge relied on State v. Bass, 457 N.J.
Super. 1 (App. Div. 2018), certif. denied, 238 N.J. 364 (2019), in finding that
the sentence imposed on defendant was not the functional equivalent of life
without parole. Because defendant will only be forty-six years old when he is
eligible for parole, the court found he would "have the ability to prove his
rehabilitation and his ability to rejoin society if successful. . . ." And the proper
venue for those considerations is at the time of the parole hearing.
Defendant raises the following points for our consideration:
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POINT I
THIS MATTER MUST BE REMANDED FOR
RECONSIDERATION AND/OR EXPANSION OF
THE RECORD GIVEN THAT THE FACTUAL
PREDICATE RELIED ON BY THE LAW DIVISION,
NAMELY THAT MR. SIMONS FACED ONLY 30
YEARS OF PAROLE INELIGIBILITY, WAS IN
ERROR.
POINT II
THE LAW DIVISION ERRED IN ITS APPLICATION
OF STATE V. BASS BY UTILIZING LIFE-
EXPECTANCY GIVEN THE UNEQUIVOCAL
LANGUAGE IN STATE V. ZUBER INSTRUCTING
COURTS NOT TO EMPLOY LIFE EXPECTANCY
TABLES WHEN DETERMINING THE OVERALL
LENGTH OF A SENTENCE.
POINT III
THE LAW DIVISION ERRED IN DENYING MR.
SIMONS RELIEF UPON THE MERITS OF HIS
APPLICATION TO CORRECT AN ILLEGAL
SENTENCE BASED UPON MILLER V. ALABAMA,
567 U.S. 460 (2012), AND STATE V. ZUBER, 227
N.J. 422 (2017).
POINT IV
THE HEARING AND SUBSEQUENT DECISION
WERE SO INFECTED WITH ERROR THAT EVEN
IF EACH INDIVIDUAL ERROR DOES NOT
REQUIRE REVERSAL, THE AGGREGATE OF THE
ERRORS DENIED MR. SIMONS A FAIR HEARING.
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Defendant does not assert that the imposed sentence was unconstitutional.
Indeed, it did not exceed the maximum penalty for felony murder. N.J.S.A.
2C:11-3(3).
Instead, defendant requests a remand to the trial court to permit an
expansion of the record to include data from the New Jersey Parole Board
regarding statistics for persons sentenced to life in prison and the unlikelihood
of being released on parole on the first eligibility date. We decline to do so.
We recently considered and rejected this argument in State v. Tormasi,
466 N.J. Super. 51, 67 (App. Div. 2021). First, defendant's argument regarding
the likelihood of being denied parole is speculative and premature. Defendant
has not yet become eligible for parole – his first parole date will be in 2025. As
we stated in Tormasi,
We decline to consider defendant's conjecture that the
Parole Board will deny him parole because it frequently
does so when convicted murderers first become
eligible. Moreover, the fact that other inmates
convicted of murder have been initially denied parole
is presumably based on an individualized consideration
of the regulatory factors as applied to those inmates.
Accordingly, data showing the frequency of parole
denial is not probative.
[Id. at 68-69.]
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We also reject defendant's contention that the trial court erred in denying
relief as required under Miller and Zuber. Defendant asserts the court should
have considered the "amount of real time a juvenile will spend in jail," not just
the period of parole ineligibility. Defendant again relies on parole board
statistics indicating that many inmates convicted of murder are denied parole on
their first hearing.
We again agree with Judge Geiger's thoughtful opinion in Tormasi. In
addressing this identical argument, Judge Geiger noted the Zuber Court
implicitly approved of the parole process in which a meaningful opportunity for
release would be addressed. Id. at 67. With defendant eligible for parole at age
forty-six, he has the meaningful opportunity to be granted parole. If defendant
is denied parole following his first hearing, he has the right to appeal that
decision. Acoli v. N.J. State Parole Bd., 224 N.J. 213, 223 (2016). On appeal,
we would then consider whether the Parole Board adequately considered the
rehabilitation and maturity demonstrated by defendant while in prison. We are
unpersuaded that the prospect of release before the age of fifty is tantamount to
a life sentence.
Defendant next contends the trial judge erred in relying on Bass because
Zuber instructs courts not to employ life expectancy tables when determining
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the overall length of a sentence. This argument lacks merit. The sentencing
judge did not use a life expectancy table in the imposition of defendant's
sentence. As stated, the sentencing judge imposed the maximum sentence
permitted under the then-applicable statute.
The trial judge here did not use life expectancy tables in her ruling. She
only noted defendant's life expectancy was likely similar to Bass's, and that in
Bass we found defendant's sentence was not the functional equivalent of life
without parole warranting review under Rule 3:21-10(b)(5). There was no error
in her comments or in her reliance on Bass.
Affirmed.
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