STATE OF NEW JERSEY v. RALPH KIETT, JR. (85-04-0588 AND 85-04-0589, ATLANTIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-4363-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RALPH KIETT, JR.,
Defendant-Appellant.
_______________________
Argued November 10, 2021 – Decided July 7, 2022
Before Judges Fuentes, Gilson and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 85-04-0588
and 85-04-0589.
Ashley T. Brooks, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Joseph J. Russo, Deputy
Public Defender, and Ashley T. Brooks, of counsel and
on the briefs).
John J. Santoliquido, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Cary Shill, Acting Atlantic County
Prosecutor, attorney; John J. Lafferty, IV, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the briefs; Debra B. Albuquerque,
Special Deputy Attorney General/Acting Assistant
Prosecutor, on the briefs).
PER CURIAM
Defendant Ralph Kiett appeals from the April 11, 2019 Law Division
order denying his motion to correct an illegal sentence. We affirm.
We recount the pertinent facts and extensive procedural history of the
case. In 1983, defendant was detained and charged as a seventeen-year-old
juvenile with first-degree murder stemming from the fatal stabbing of nineteen-
year-old Elizabeth Ann Coutee. Our Supreme Court poignantly described the
crime and characterized the evidence supporting guilt as follows:
Nineteen-year-old Elizabeth Ann Coutee disappeared
on the night of February 25, 1982. Six days later, her
body, nude except for her socks, was found in a marshy
area near Westend Avenue in Atlantic City. She had
been stabbed twenty-eight times. The evidence that
defendant committed the crime was overwhelming.
[State v. Kiett, 121 N.J. 483, 485 (1990).]
Jurisdiction was waived to the Law Division where defendant was
prosecuted as an adult and charged in a seven-count indictment with three counts
of murder, N.J.S.A. 2C:11-3(a) (1), (2), and (3); two weapons offenses, N.J.S.A.
2C:39-4(d) and 2C:39-5(d); and two counts of aggravated sexual assault,
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N.J.S.A. 2C:14-2(a) (4) and (6). The murder was designated as a capital offense
under the death penalty that was then in effect. A second three-count indictment
charging two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5),
and one count of second-degree escape, N.J.S.A. 2C:29-5(a), was also returned
against defendant arising from his attempted escape while in custody on the
murder-related charges.
In 1985, defendant entered a negotiated guilty plea to one count of murder
and escape. Under the terms of the plea agreement, the State agreed to
essentially refrain from seeking the death penalty and move to dismiss the
remaining charges in both indictments at sentencing. In accordance with the
plea agreement, the trial court sentenced defendant to life imprisonment , with
thirty years of parole ineligibility, on the murder conviction, and a consecutive
ten-year term, with five years of parole ineligibility, on the escape conviction.
At sentencing, as mitigating factors, the court expressly considered defendant's
age, intellectual disability, early childhood emotional and physical trauma, and
substance abuse history.
On appeal, our Supreme Court reversed our decision affirming defendant's
convictions and sentence, see State v. Kiett, No. A-2113-85 (App. Div. Oct. 5,
1988), and remanded to allow defendant to "withdraw his guilty plea," Kiett,
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121 N.J. at 499. The Court determined that "[a]voiding the death penalty was a
material factor in Kiett's decision to plead guilty." Id. at 491. However, because
"Kiett was a juvenile at the time the crime was committed," the death penalty
never applied to him, and he therefore "entered his guilty plea relying on
misinformation about his eligibility for execution." Id. at 489-91.
On the remand, defendant negotiated a new plea agreement and, in 1991,
entered a retraxit plea of guilty to the same charges. In accordance with the new
plea agreement, defendant was sentenced to life in prison, with a thirty-year
parole disqualifier on the murder conviction and a concurrent, rather than a
consecutive, ten-year term, with a five-year parole disqualifier, on the escape
conviction. At sentencing, the court considered the fact that defendant had no
prior criminal history as a mitigating factor. We affirmed the sentence on appeal
and the Supreme Court denied certification. State v. Kiett, No. A-5087-90 (App.
Div. June 1, 1992), certif. denied, 130 N.J. 19 (1992).
Subsequently, defendant filed two petitions for post-conviction relief
(PCR) pursuant to Rule 3:22-1, one in 2008 and one in 2015, and one motion
for a new trial pursuant to Rule 3:20-2 in 2014. The first PCR petition, termed
a motion to correct an illegal sentence and alleging excessive sentence and
ineffective assistance of counsel, was denied by the PCR court on procedural
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and substantive grounds, and we affirmed. State v. Kiett, No. A-5166-09 (App.
Div. June 17, 2011). The motion for a new trial, alleging that the case was
improperly waived to the Law Division, was also denied by the trial court. We
affirmed, and the Supreme Court denied certification. State v. Kiett, No. A-
2457-14 (App. Div. July 20, 2016), certif. denied, 228 N.J. 432 (2016). The
second PCR petition, also termed a motion to correct an illegal sentence and
alleging ineffective assistance of PCR counsel, was denied by the PCR court on
procedural grounds, and we affirmed on appeal. State v. Kiett, No. A-5316-15
(App. Div. March 29, 2017). 1
In 2019, defendant again moved to correct an illegal sentence, arguing 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). On April 11, 2019, the judge entered an order
denying the motion. In an accompanying written opinion, the judge ruled the
motion was time-barred under Rule 3:22-12. Further, because the argument had
been previously litigated in defendant's prior PCR petition, the judge found the
1
Defendant also filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254,
which was rejected by the federal district court on May 24, 2017, because the
petition was filed twenty years too late, and defendant was not entitled to
statutory tolling. Kiett v. Bonds, No. 17-2543, 2017 U.S. Dist. LEXIS 80887,
at *4 (D.N.J. May 24, 2017).
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motion was procedurally barred under Rule 3:22-5. Nonetheless, addressing the
merits, the judge relied on State v. Bass, 457 N.J. Super. 1, 13-14 (App. Div.
2018), and rejected defendant's contention, determining defendant's "sentence
[was] not the functional equivalent of a life sentence without parole" to warrant
relief under Zuber.2
On June 11, 2019, defendant filed a notice of appeal (NOA) from the April
11, 2019 order. Subsequently, on February 12, 2020, defendant filed a motion
to expand the record to include parole statistics obtained from the New Jersey
State Parole Board in response to a January 14, 2020 Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, request. On March 3, 2020, we denied the
motion.
In this ensuing appeal, defendant raises the following points for our
consideration:
POINT I
THE LAW DIVISION ERRED IN FINDING THAT A
MOTION TO CORRECT AN ILLEGAL SENTENCE
BASED UPON MILLER V. ALABAMA, 567 U.S. 460(2012), AND STATE V. ZUBER, 227 N.J. 422 (2017)
WAS "TIME-BARRED."
2
Because defendant's moving papers were not included in the record, we rely
on the judge's decision to discern defendant's argument.
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POINT II
THE LAW DIVISION ERRED IN FINDING THAT A
MOTION TO CORRECT AN ILLEGAL SENTENCE
BASED UPON MILLER V. ALABAMA, 567 U.S. 460(2012), AND STATE V. ZUBER, 227 N.J. 422 (2017)
WAS PRECLUDED UNDER [RULE] 3:22-5.
POINT III
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 [DEFENDANT] FACED ONLY
[THIRTY] YEARS OF PAROLE INELIGIBILITY,
WAS IN ERROR.
POINT IV
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 ASSESSING THE OVERALL
LENGTH OF A SENTENCE.
POINT V
THE LAW DIVISION ERRED IN DENYING
[DEFENDANT] 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).
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POINT VI
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 [DEFENDANT] A FAIR
HEARING. (NOT RAISED BELOW).
"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.'" Zuber, 227 N.J. at 437 (quoting State v. Tavares, 286 N.J. Super.
610, 618 (App. Div. 1996)). Thus, a statutorily permissible sentence, as here,
"may still violate the constitutional prohibition against cruel and unusual
punishment," rendering the sentence illegal. State v. Tormasi, 466 N.J. Super.
51, 62 (App. Div. 2021).
In Points I and II of his brief, defendant argues the judge erred in finding
that his motion to correct an illegal sentence based on Miller and Zuber was
procedurally barred because it was filed twenty-eight years after his 1991 guilty
plea and had been previously litigated in his 2010 PCR petition. The State
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concedes that "[t]he language in Zuber is clear that motions related to the
legality of a sentence can be brought at any time," and "Zuber provides a new
basis to argue that his sentence was illegal" that did not exist in 2010.
Nevertheless, according to the State, the judge's "ruling . . . on the substance of
[defendant's] motion was correct." We agree.
"In Miller, the Supreme Court declared that mandatory life imprisonment
without parole imposed upon a juvenile sentenced as an adult violates the Eighth
Amendment." Tormasi, 466 N.J. Super. at 62 (citing Miller, 567 U.S. at 479).
"The Miller Court did not preclude the possibility of a life sentence for a juvenile
convicted of homicide but reaffirmed and expanded its determination in Graham
[v. Florida, 560 U.S. 48 (2010)] that a life sentence may not be mandatory and
should be 'uncommon' given a juvenile's 'diminished culpability and heightened
capacity for change.'" Tormasi, 466 N.J. Super. at 63 (quoting Miller, 567 U.S.
at 479). In so doing, the Miller Court identified factors unique to juvenile
offenders "('the Miller factors') to be considered by sentencing judges." State v.
Thomas, 470 N.J. Super. 167, 181 (App. Div. 2022).
In Zuber, the Court extended the holding of
Miller to juveniles who receive a "lengthy, aggregate
sentence that amounts to life without parole." The
Court held that when a juvenile is tried as an adult and
is subject to a lengthy sentence that is "the practical
equivalent of life without parole," the sentencing court
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must consider the Miller factors in addition to the
statutory aggravating and mitigating sentencing factors.
The Court did not preclude the possibility of a de facto
life term but instructed that few juveniles should
receive one because "it is only the 'rare juvenile
offender whose crime reflects irreparable corruption.'"
The 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. 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 55-
year parole-bar and 75 years with a 68-year and 3-
month parole-bar—were the functional equivalent of
life terms.
[Tormasi, 466 N.J. Super. at 64 (citations omitted)
(quoting Zuber, 227 N.J. at 447, 450-51).3]
In Bass, we held that an aggregate term of life imprisonment with thirty-
five years of parole ineligibility for felony murder and burglary was not the
functional equivalent of a life sentence, noting that the defendant was "eligible
for parole" at age forty-nine. 457 N.J. Super. at 4, 12-13. We rejected the
defendant's "argument that his sentence was illegal . . . and thus, warranted
3
"Defendant Ricky Zuber was sentenced to an aggregate 150-year term with a
75-year period of parole ineligibility, which made him eligible for parole at age
92." Tormasi, 466 N.J. Super. at 59 n.4 (citing Zuber, 227 N.J. at 428).
"Defendant James Comer was sentenced to an aggregate 75-year term with a
68.25-year period of parole ineligibility, which made him eligible for parole at
age 85." Ibid. (citing Zuber, 227 N.J. at 430, 433, 448).
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review pursuant to Rule 3:21-10(b)(5)" and disagreed with his contention "that
his rehabilitation while he was incarcerated ha[d] any bearing on the legality of
his sentence." Bass, 457 N.J. Super. at 12-13.
We reasoned that any rehabilitative actions the defendant had undertaken
while incarcerated were matters for the parole board to consider and did not
render the sentence unconstitutional under Zuber. Bass, 457 N.J. Super. at 14.
We explained:
[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.]
Similarly, in Tormasi, where defendant was sentenced to life
imprisonment with a thirty-year period of parole ineligibility for murder, we
held that the "[d]efendant's sentence d[id] not amount to the functional
equivalent of life without parole" to warrant resentencing under Zuber. Tormasi,
466 N.J. Super. at 66. We explained that the sentence was "far from a de facto
life sentence without parole when imposed on a juvenile offender, who [would]
be eligible for release by age forty-seven." Ibid.
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Here, we agree with the judge that defendant's sentence of life
imprisonment with a thirty-year parole bar is not the functional equivalent of a
life sentence without parole to warrant resentencing under Zuber. Defendant
argues the judge erred in relying on Bass because the Bass court "erroneously
relied upon data from life expectancy charts" which "is directly contrary to the
law clearly enunciated in Zuber." However, we find no merit in defendant's
argument and no error in the judge's reliance on Bass to deny defendant's motion.
Defendant further asserts the court inherently reasoned "that [defendant]
is likely to be paroled at the conclusion of his [thirty]-year period of parole
ineligibility" and "[t]hus . . . denied relief upon its perception that [defendant]
would have a reasonable likelihood of being paroled when eligible." However,
according to defendant, "given the statistics provided by the . . . Parole Board,
the greater likelihood is that, regardless of any proof of rehabilitation,"
defendant "will not be paroled upon his first date, rendering his de facto period
of parole ineligibility more likely to be at least [forty] years," "if not
substantially longer in light of the systematic and routine denials of parole for
inmates sentenced to life." Thus, defendant urges that we either "remand for
consideration of de facto periods of parole ineligibility" to "evaluat[e
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defendant's] sentence under Zuber" or "expand the record on appeal" to include
the parole statistics. 4
We decline either invitation. First, nowhere in the judge's decision is it
either stated or implied that defendant is likely to be paroled when eligible.
Further, as we noted in Tormasi, "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 69.
Additionally, "[b]oth federal and State precedent on cruel and unusual
punishment support a finding that the possibility of parole provides a meaningful
opportunity for release." Id. at 67. Because "Zuber implicitly approve[d] of the
parole process," the possibility, rather than a guarantee, of parole "provides a
meaningful opportunity at release for purposes of the Eighth Amendment."
Tormasi, 466 N.J. Super. at 67-68; see also Graham, 560 U.S. at 75 (stating "[a]
State is not required to guarantee eventual freedom to a juvenile offender" but
must "give defendants . . . some meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation").
4
The parole statistics defendant relies on were presented for the first time on
appeal and were the subject of his motion to supplement the record, which we
denied.
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"Moreover, '[t]he granting of parole is within the discretion of the [Parole]
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.'" Tormasi, 466 N.J. Super. at 68
(quoting Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437, 470 (1997)). "If
defendant is denied parole, he has the right to appeal that decision to this court."
Ibid."[T]hat would be the appropriate time" for this court to
consider whether the Parole Board adequately
considered the rehabilitation and maturity defendant
achieved while in prison, and if "judicially ordered
parole of a convicted murderer might be in order.
However, that possibility must await completion of the
parole process in its entirety."
[Ibid. (quoting Acoli v. N.J. State Parole Bd., 224 N.J.
213, 232 (2016)).]
"If [a defendant] serves a substantial period in prison due to a parole denial
or denials, he may even 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.'" Id. at 71 (quoting Zuber, 227 N.J. at 452). Those factors include
"whether he may be, or has been, rehabilitated." Zuber, 227 N.J. at 452.
Since filing his NOA from the April 11, 2019 order, defendant was again
denied parole on June 22, 2021. His current parole eligibility date is September
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16, 2023. By leave granted, defendant filed a supplemental brief raising the
following additional point for our consideration:
[DEFENDANT] IS ENTITLED TO A ZUBER
RESENTENCING BECAUSE HIS SENTENCE IS
THE PRACTICAL EQUIVALENT TO A LIFE TERM
AND HE HAS NOT BEEN AFFORDED A
MEANINGFUL OPPORTUNITY FOR RELEASE.
GIVEN THAT [DEFENDANT] HAS AGAIN BEEN
DENIED PAROLE, RESULTING IN A FORTY-
YEAR SENTENCE AT MINIMUM, HIS MOTION TO
CORRECT AN ILLEGAL SENTENCE MUST BE
RECONSIDERED AND GRANTED.
Defendant has not indicated whether he appealed his parole denial.
Nonetheless, the development of defendant's latest parole denial does not alter
our decision. On this record, defendant has not established that his sentence is
the functional equivalent of a life sentence without parole or that the prospect
of release at the age of fifty-eight,5 after serving forty years, is tantamount to a
life sentence. "Despite the lengthy sentence defendant has served, there are no
similarities between his sentence and the sentences reviewed in Zuber." Bass,
457 N.J. Super. at 14.
That said, we do not foreclose the possibility that defendant may be able
to return to court to show that he has sufficiently reformed himself to a degree
5
Defendant was born in July 1965.
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that his sentence is no longer constitutional under the Eighth Amendment. See
State v. Comer, 249 N.J. 359, 370 (2022) (creating a procedure for juvenile
offenders sentenced to the murder statute's mandatory thirty-year parole bar to
petition the court for a hearing after serving at least twenty years in prison for
the sentencing court to assess the Miller factors, including "whether the juvenile
offender still fails to appreciate risks and consequences, and whether he has
matured or been rehabilitated," as well as "the juvenile offender's behavior in
prison since the time of the offense"); Thomas, 470 N.J. Super. at 193-94, 197,
199 (ordering "an adversarial, evidentiary hearing under Comer" for a defendant
who "perpetrated a horrific double murder when he was seventeen years old,"
"was sentenced to life in prison without a specified period of parole
ineligibility," served more than forty years in prison due to seven parole denials,
yet "ha[d] been a model prisoner" with "a blemish-free disciplinary record" and
received "numerous positive psychological evaluations").
To the extent we have not specifically addressed any of defendant 's
remaining arguments, we deem them without sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(2).
Affirmed.
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