STATE OF NEW JERSEY VS. WALIF SMITH (93-12-4185, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4587-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WALIF SMITH,
Defendant-Appellant.
_______________________
Argued telephonically June 1, 2020 –
Decided July 7, 2020
Before Judges Sumners, Geiger and Natali
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 93-12-4185.
James K. Smith, Jr., Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; James K. Smith, Jr., of
counsel and on the briefs; Stephen William Kirsch, on
the briefs).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Frank J. Ducoat, of
counsel and on the brief).
PER CURIAM
Defendant Walif Smith robbed and murdered an elderly woman as a
juvenile. After being waived to adult court and convicted by a jury, he was
sentenced to a life term with a thirty-year parole-bar. In 2017, Smith moved to
correct an illegal sentence under State v. Zuber, 227 N.J. 422 (2017). The court
denied his motion finding Smith's sentence was not the functional equivalent of
life without parole. Smith challenges that decision in this appeal.
Additionally, Smith claims for the first time that he was fourteen years
old when he committed his crimes. He argues that N.J.S.A. 2A:4A-26.1(c)(1)
(the revised waiver statute), which increased the minimum age for waiver to
adult court from fourteen to fifteen years old, should be applied retroactively to
his case. If this were the case, Smith would be resentenced as a juvenile in the
Family Part because the revised waiver statute does not permit fourteen-year-
old offenders to tried and sentenced as adults. Smith also argues that the
possibility of being paroled is an inadequate remedy for what he labels a de facto
life sentence.
We hold that the revised waiver statute does not apply retroactively to
Smith, who was waived to adult court, convicted by a jury, and sentenced long
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before the revision became effective. We further hold that his life term with a
thirty-year parole-bar is not the functional equivalent of life without parole and
does not violate the Eighth Amendment's prohibition of cruel and unusual
punishment. Accordingly, we affirm.
I.
In 1990, Smith approached a seventy-nine-year-old woman in her car,
robbed her, and shot her in the head. Smith was indicted in 1993 on charges of
murder, felony murder, first-degree armed robbery, third-degree unlawful
possession of a handgun, and second-degree possession of a handgun with an
unlawful purpose.
Smith was waived by the Family Part judge to adult court pursuant to the
prior waiver statute, N.J.S.A. 2A:4A-26(a). A jury convicted Smith of felony
murder, the lesser included offense of aggravated manslaughter, armed robbery,
and the two weapons offenses. After merging the robbery, aggravated
manslaughter, and possession of a weapon with an unlawful purpose counts into
the felony murder, the trial court sentenced Smith to life imprisonment with a
thirty-year parole-bar and a concurrent four-year term for the unlawful
possession of a weapon. The judgment of conviction was entered on November
9, 1994.
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Notably, the presentence report twice lists Smith's date of birth as being
in February 1975 in two separate places. During the sentencing hearing, defense
counsel stated he had no exceptions to the report. The judgment of conviction
likewise lists a date of birth in February 1975. The offenses occurred on
September 21, 1990. Thus, according to the presentence report and judgment of
conviction, Smith was fifteen years old when he committed the murder.
Smith challenged his conviction and sentence on direct appeal, and we
affirmed. State v. Smith, No. A-4621-94 (App. Div. Feb. 18, 1997). The
Supreme Court denied certification. State v. Smith, 151 N.J. 72 (1997). We
detailed the crimes, Smith's subsequent conduct, statements, and the
investigation conducted by the police in that opinion and need not repeat them
here. Smith, slip op. at 2-10. Smith argued that his sentence "was manifestly
excessive and unsupported by a proper weighing of aggravating and mitigating
factors." Id. at 11. We rejected this argument, finding it meritless. Id. at 20.
In 2007, Smith filed a petition for post-conviction relief (PCR), claiming
ineffective assistance of trial and appellate counsel. The PCR court denied his
petition on the merits. We affirmed. State v. Smith, No. A-1651-07 (App. Div.
Jan. 2, 2009). The Supreme Court denied certification. State v. Smith, 199 N.J.
132 (2009).
A-4587-17T2
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In March 2013, Smith filed a pro se petition to vacate or correct his
sentence pursuant to Miller v. Alabama, 567 U.S. 460 (2012). Defense counsel
was appointed to represent him. Smith claimed his sentence was illegal and
violated the Eighth Amendment, arguing the sentencing judge failed to conduct
the proportionality analysis required by Miller. Specifically, Smith claimed the
judge failed to consider his youth and did not adequately account for his "less
developed brain and lack of maturity" when imposing a life sentence.
The trial court heard oral argument in June 2013. Defense counsel argued
Miller rendered N.J.S.A. 2C:11-3(b) unconstitutional because it requires the
sentencing court to impose a period of parole ineligibility of no less than thirty
years, thereby preventing the court from individualizing or tailoring the sentence
specifically to a juvenile. Counsel also argued Miller should be applied
retroactively because it is based upon the Eighth Amendment's "fundamental
right to be free of cruel and unusual punishment" and did not establish a new
rule of law.
The State argued Miller did not apply retroactively to Smith's sentence
because it establishes a new procedural, rather than substantive, rule of law. It
also maintained that Smith's sentence was appropriate under the totality of the
circumstances.
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The court entered an August 21, 2013 order, accompanied by written
decision, denying the petition. It found Miller inapplicable because Smith "was
not sentenced to a mandatory life sentence without the possibility of parole," but
rather would "be eligible for parole thirty (30) years from his sentencing date."
The court further found the sentencing court had considered Smith's youth, his
sentence was "grounded in competent, reasonably credible evidence," and
concluded the sentence did "not shock the conscience."
Smith appealed, raising numerous issues challenging the constitutionality
of mandatory sentences imposed on juvenile offenders. We found Smith's
arguments lacked merit and affirmed substantially for the reasons expressed by
the trial court. State v. Smith, A-0679-13 (App. Div. Jan. 8, 2016). The
Supreme Court denied certification. State v. Smith, 225 N.J. 339 (2016). We
added the following comment:
The Court's decision [in Miller] did not . . . prohibit the
mandatory imposition of a term-of-years sentence for
juvenile offenders, nor did it prohibit the discretionary
imposition of a life sentence with a mandatory period
of parole ineligibility for juveniles, as was the case
here.
Unless we are confronted with a court sentencing
a juvenile offender to a mandatory term of life without
the possibility of parole, the constitutional infirmities
identified in Miller do not apply.
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[Id., slip op. at 10 (citations omitted).]
In May 2017, Smith moved to correct an illegal sentence pursuant to
Zuber. Although initially agreeing that Smith was entitled to a new sentencing
hearing under Zuber, the motion court ultimately reached the opposite
conclusion, issuing an April 20, 2018 oral decision and order denying the
motion. This appeal followed.
The appeal was scheduled for hearing on a sentencing oral argument
calendar, but at Smith's request, we transferred it to a plenary calendar and
allowed him to amend his notice of appeal. Smith then submitted a certified
copy of a birth certificate indicating he was born in February 1976, making him
fourteen at the time of his crimes. Smith's amended notice of appeal included a
challenge to his sentence as unlawful under the revised waiver statute.
Smith raises the following points for our consideration.
POINT I
THE 2015 STATUTE, N.J.S.A. 2A:4A-26.1(c)(1),
WHICH CHANGED THE AGE TO 15-PLUS FOR
WAIVER FROM JUVENILE TO ADULT COURT,
RETROACTIVELY APPLIES TO DEFENDANT'S
CASE; CONSEQUENTLY, A JUVENILE
SENTENCING PROCEEDING SHOULD BE
SCHEDULED AND DEFENDANT SENTENCED AS
A JUVENILE OFFENDER, AND HIS ILLEGAL
ADULT CONVICTIONS AND SENTENCES
SHOULD BE VACATED.
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A. The New Jersey Juvenile-Waiver Changes are
Clearly Ameliorative; For Either of Two Separate
Reasons, the "Savings Statute," N.J.S.A. 1:1-15,
Mandates Retroactive Application of the 15-Plus
Waiver Rule to Defendant's Case, Fundamental
Fairness Requires the Same Result.
(1) The New Juvenile Waiver Statute,
Especially the New Prohibition on Waiver of
Under-15-Year-Olds, is Plainly an Ameliorative
Correction to the Prior Waiver Statute.
(2) Because the Recently-Enacted
Restriction in the New Juvenile-Waiver Statute –
Regarding Waiver Only of Those 15 or Older at
the Time of the Offense – Merely Limits the
Circumstances in Which Transfer of the Cases
From the Chancery Division to the Law Division
May Occur, It Addresses a "Mode of Procedure"
in the Case, and, Thus, Should be Applied
Retroactively to Defendant.
(3) Alternatively, Even if the 15-Plus
Waiver Rule is Viewed as a Direct Change to an
"Offense Committed" or a "Penalty . . . Incurred,"
It Should Be Retroactively Applied to
Defendant's Case. Even if this Court views the
15-Plus Change in the Waiver Statute to be a
Direct Change to Liability and/or Penalty for
Juveniles Rather Than a Procedural Change as in
Y.S., that Statutory Change Should Still be
Retroactively Applied to Defendant's Case Under
the Savings Statute. As Noted, the First Portion
of the Savings Statute Has Been Interpreted –
Despite its Strict-Sounding Language (i.e., that
there Should be No retroactivity "Unless it is
Expressly Declared in the (New) Act") – to
Mandate that a Statute be Applied Retroactively
A-4587-17T2
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When the "Expression of Legislative Intent" is
"Either Express . . . or Implied[;] that is, [When]
Retroactive Application May be Necessary to
Make the Statute Workable or to Give it the Most
Sensible Interpretation." [Gibbons v. Gibbons,
86 N.J. 515, 522 (1981)].
B. The Proper Remedy Is to Vacate the Illegal
Adult Conviction and Sentence, Transfer the
Matter to the Chancery Division, Convert the
Finding of Guilt to a Finding of Delinquency on
Those Same Counts, and Set a Date for
Sentencing as a Juvenile Matter.
POINT II
PURSUANT TO THE PRINCIPLES SET FORTH IN
STATE V. ZUBER, JUVENILE OFFENDERS SUCH
AS WALIF SMITH WHO ARE SERVING LIFE
SENTENCES SHOULD BE RESENTENCED AND
GIVEN THE OPPORTUNITY TO DEMONSTRATE
THAT THEY HAVE BEEN REHABILITATED AND
ARE AMENDABLE TO RELEASE FROM PRISION.
II.
We first address the retroactivity of the revised waiver statute. In August
2015, the Legislature repealed the juvenile waiver statute and replaced it with
the revised statute, effective March 1, 2016. L. 2015, c. 89, §§ 1-7.
Smith argues the revised waiver statute, which precludes waiver to adult
court of juveniles fourteen or less at the time of their crimes, should retroactively
apply to him because: (1) it is an ameliorative statute intended to remedy in
A-4587-17T2
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subjecting young offenders to harsh adult punishment; and (2) it changes the
procedure by which juveniles are transferred to adult court, thus entitling it to
retroactive application under N.J.S.A. 1:1-15 (the Savings Statute). He also
claims that it would be cruel to deny retroactive application of the statute. Smith
does not seek a new trial but requests his conviction be converted to a
delinquency adjudication and that he be resentenced as a juvenile by the Family
Part.
The State claims that we should not address this argument because Smith
raised it for the first time on appeal and questions the authenticity of Smith's
purported birth certificate. We note that Smith previously moved for final
remand or, in the alternative, to supplement the record. We entered a November
19, 2018 order allowing Smith to file an amended notice of appeal "raising the
retroactivity issue." However, the State is correct when it asserts that no court
has determined Smith's actual date of birth.
Our Supreme Court's recent opinion in State v. J.V., ___ N.J. ___ (2020),
resolves whether the revised waiver statute should be applied prospectively or
retroactively.1 The Court held that the statute only applies prospectively "to
1
We have considered the letters submitted by the parties pursuant to Rule 2:6-
11(d), calling the court's attention the significance of J.V., issued after the
submission of their briefs.
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those juvenile waiver proceedings conducted after the statute's effective date."
Id., slip op. at 15.
In April 2013, J.V., then seventeen years old, robbed and repeatedly
stabbed a man, causing serious injuries. Id. at 3. J.V. was charged with acts of
delinquency which, if committed by an adult, would have constituted attempted
murder, armed robbery, and two weapons charges. Id. at 4-5. In October 2013,
the State's motion to waive J.V. to adult court was granted and he subsequently
pled guilty to attempted murder and robbery and was sentenced in September
2015. Id. at 6-7.
The Court noted that "[g]enerally, new criminal statutes are presumed to
have solely prospective application." Id. at 13. "To overcome the presumption
of prospective application, we must find the 'Legislature clearly intended a
retrospective application' of the statute . . . ." Id. at 14 (quoting Weinstein v.
Inv'rs Sav. & Loan Ass'n, 154 N.J. Super. 164, 167 (App. Div. 1977). The Court
recognized the "three exceptions to the presumption of prospective application
of a new law," but explained that "we look to those exceptions only in instances
'where there is no clear expression of intent by the Legislature that the statute is
to be prospectively applied only.'" Id. at 14-15 (quoting Gibbons v. Gibbons,
86 N.J. 515, 522 (1981)).
A-4587-17T2
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The Court noted that the revised waiver statute "was not made effective
immediately, but instead, became effective on March 1, 2016, which was "years
after J.V. was waived to adult court." Id. at 2, 7 (citing L. 2015, c. 89, § 7). The
Court found this "is clear evidence that the Legislature intended the statute to
apply prospectively only." Id. at 15.
"Based on the plain and unambiguous language of the statute, [the Court
found] the Legislature intended to afford Section 26.1(c)(3) only prospective
application to those juvenile waiver proceedings conducted after the [revised]
statute's effective date." Id. at 15. Therefore, the revised waiver statute does
not apply to "a juvenile who was waived to adult court, pled guilty, and was
sentenced long before Section 26.1 became effective." Id. at 21. Consequently,
the Court determined it "need not consider the exceptions to the presumption of
prospective application," or "the parties' Saving Statute arguments." Id. at 16,
21.
Smith murdered his victim on September 21, 1990. He was waived to
adult court in August 1993; indicted in December 1993; arrested in January
1994; found guilty by a jury in October 1994; and sentenced on November 9,
1994. Since Smith was waived to adult court, convicted, and sentenced long
before the revised waiver statute became effective, the revised waiver statute
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does not apply to him. Id. at 21.2 Accordingly, there is no basis to convert his
conviction to a delinquency adjudication or to remand for resentencing by the
Family Part.
III.
We next address Smith's contention that the motion court erred in denying
resentencing under Zuber and Miller. He claims that juvenile offenders "serving
life sentences should be resentenced and given the opportunity to demonstrate
that they [are] rehabilitated and are amendable to release from prison."
Smith claims he is not the same violent young man that he was thirty years
ago when he committed his crimes. He asserts that at a resentencing hearing,
he would present material information regarding the circumstances of his
childhood and the factors set forth in Miller, 567 U.S. at 477. Smith claims this
would require an evidentiary hearing so that he could introduce "testimony from
family members, . . . psychological or psychiatric evaluations, and . . . prison
disciplinary and achievement records." Absent an evidentiary hearing, he will
be denied "some meaningful opportunity to obtain release based on
2
Consequently, we need not address whether Smith was fourteen when he
committed the crimes, as it does not affect the outcome of this appeal.
A-4587-17T2
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demonstrated maturity and rehabilitation." Zuber, 227 N.J. at 443 (quoting
Graham v. Florida, 560 U.S. 48, 75 (2010)).
Relying on State v. Bass, 457 N.J. Super. 1 (App. Div. 2018), the State
contends Smith's life term with a thirty-year parole-bar is not the functional
equivalent of a life sentence. It emphasizes that Smith will be eligible for parole
in 2024 when he is forty-seven years old.
The motion court found the sentence was not an unconstitutional de facto
life term because Smith will soon be eligible for parole after serving thirty years.
Based on our careful review of the record, we concur.
A similar request for relief was denied in Bass, where the defendant
received a life term with a thirty-five-year parole-bar. 457 N.J. Super. at 4. We
affirmed the trial court's denial of a request for resentencing finding that the
sentence was not the functional equivalent of life without parole. Id. at 13-14.
In so holding, we rejected Bass's argument that the rehabilitative steps he had
taken during incarceration rendered his sentence illegal. Id. at 14. While we
did "not minimize" the numerous steps Bass took in prison to rehabilitate
himself, we concluded that "consideration of these accomplishments [was]
exclusively the province of the parole board and not a means of collateral attack
on [a] sentence – which has been affirmed on direct appeal." Ibid.
A-4587-17T2
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In State v. Pratt, 226 N.J. Super. 307 (App. Div. 1988), the defendant was
waived to adult court and convicted of murder and two weapons he committed
at age fifteen. Id. at 308-09. The court sentenced him to a thirty-year term
without parole and imposed concurrent terms for the weapons offenses. Id. at
309.
On appeal, Pratt argued the statutory minimum of thirty years'
imprisonment without parole violated the Federal and State Constitutions
because "it fails to accord individualized sentencing treatment to juveniles." Id.
at 325. We rejected that argument, relying on State v. Johnson, 206 N.J. Super.
341 (App. Div. 1985), which held the statutory thirty-year mandatory minimum
did not constitute cruel and unusual punishment as applied to adults. Pratt, 226
N.J. Super. at 324. In Johnson, we noted that our case law has held the
mandatory term for felony murder does not exceed "what appears to be a
reasonable expedient to achieve the public purpose of punishment for an
egregious offense." Johnson, 206 N.J. Super. at 348 (citations omitted). In Pratt
we held that the same rationale applied even where the defendant was a juvenile
tried and convicted as an adult. Pratt, 226 N.J. Super. at 324.
Although we recognize that Pratt was issued years before Montgomery v.
Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), Graham, Miller, and Zuber, it
A-4587-17T2
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is directly on point and remains good law as to prison terms that are not the
substantial equivalent of life without parole. A thirty-year parole-bar is far from
a life sentence without eligibility for parole, particularly as applied to a juvenile
offender who will be eligible for parole when he is forty-seven years old. In the
absence of a premature death, Smith will have an opportunity to experience
some meaningful years outside of prison.3 See Graham, 560 U.S. at 73.
3
Smith's sentence stands in stark contrast to the sentences imposed on the
juvenile offenders in Miller, Montgomery, Graham, and Zuber. In Miller, the
juvenile offender was sentenced to mandatory life without parole. 567 U.S. at
465. In Montgomery, the juvenile offender was likewise sentenced to life
without parole. 136 S. Ct. at 726. In Graham, the juvenile offender was
sentenced to life for armed burglary and fifteen years for attempted armed
robbery, which gave him "no possibility of release unless he is granted executive
clemency" because "Florida has abolished its parole system." 560 U.S. at 57.
In Zuber, our Supreme Court summarily remanded the juvenile offender's
consecutive prison sentences aggregating 150 years, subject to a seventy -five-
year aggregate parole-bar, for a first resentencing. State v. Zuber, 111 N.J. 650
(1988). At the first resentencing in 1988, the trial court revised Zuber's sentence
to an aggregate term of 110 years, with a fifty-five-year parole bar; we affirmed
the revised sentence. State v. Zuber, 442 N.J. Super. 611, 614, 635 (App. Div.
2015). The Supreme Court reversed and remanded, holding that the revised
sentence should be analyzed as one that is the functional equivalent of life
without parole, and remanded for the trial court to reconsider Zuber's lengthy
sentence in light of the Miller factors. Zuber, 227 N.J. at 450-53. On remand,
the trial court resentenced Zuber to an aggregate term of eighty-six years, with
an aggregate forty-three-year parole-bar. We remanded for a third resentencing
because the sentencing court did not adequately explain its basis for imposing
consecutive terms under a heightened State v. Yarbough, 100 N.J. 627 (1985)
standard. State v. Zuber, No. A-2677-18 (App. Div. May 6, 2020) (slip op. at
4, 38-40). We did not decide whether the sentence imposed was the functional
A-4587-17T2
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We adhere to our analysis and holdings in Bass and Pratt and reach the
same conclusion here. Smith's life sentence with the statutory minimum thirty-
year parole-bar is not the functional equivalent of life without parole. As
correctly noted by the State, Smith will be eligible for parole in February 2024,
when he is forty-seven years old. We recognize that Zuber rejected the use of
general life-expectancy tables to determine whether a sentence amounts to life
without parole. Zuber, 227 N.J. at 450. We are nevertheless unpersuaded that
the prospect for release on parole before the age of fifty is tantamount to a life
sentence without parole.
Smith acknowledges our holding in Bass but argues the mere possibility
of parole "is insufficient" to remedy the alleged sentencing error. He argues that
in determining whether an inmate is fit for release, the Parole Board "would
have virtually no knowledge about the offender's life and family situation at the
time of the offense." We disagree.
In Graham, the Court made clear that "[a] State need not guarantee the
offender eventual release, but if it imposes a sentence of life it must provide him
or her with some realistic opportunity to obtain release before the end of that
equivalent of life without parole. We are not aware of any published or
unpublished appellate opinion in this State that has found a life term with a
thirty-year parole-bar to be the functional equivalent of life imprisonment.
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term." 560 U.S. at 82. As we have noted, Smith is eligible for parole in less
than four years.
"The statutory minimum sentence for felony murder is thirty years with
thirty years of parole ineligibility; the maximum is a term of years between thirty
years and life imprisonment with a mandatory thirty[-]year parole ineligibility
period." State v. McQuaid, 147 N.J. 464, 496 (1997) (citing N.J.S.A. 2C:11-
3(b)). Smith's sentence falls within the permissible sentencing range. No court
has held that N.J.S.A. 2C:11-3(b) is unconstitutional because it requires the
sentencing court to impose a period of parole ineligibility of thirty years. We
decline to do so.
While we recognize that Zuber affords an opportunity to a juvenile
offender to seek relief from a sentence that is the practical equivalent of life
without parole, the Court did not address whether a juvenile offender sentenced
without consideration of the Miller factors to a lengthy parole-bar that is not the
practical equivalent of life without parole, may seek relief from his sentence
other than parole. Instead, the Court "ask[ed] the Legislature to consider
enacting a scheme that provides for later review of juvenile sentences with
lengthy periods of parole ineligibility, and to consider whether defendants
should be entitled to appointed counsel at that hearing." Zuber, 227 N.J. at 453.
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The court deferred the question of imposing "a maximum limit on parole
ineligibility for juveniles of thirty years" to the Legislature. Ibid.
The Legislature has previously considered this very issue but has not yet
enacted any legislation on point. See A. 1233 (2018) (a bill that would allow a
juvenile sentenced to twenty years or more without parole to petition for
resentencing ten years after conviction and to be eligible for parole after twenty
years of incarceration); S. 3079 (2017), reintroduced as, S. 428 (2018) (allowing
a juvenile sentenced to thirty years or more without parole to petition for review
of the sentence after thirty years of incarceration if convicted of murder and
twenty years for all other crimes).
Most recently, two bills have been introduced that would reform the
sentencing of youthful offenders. See S. 2592 (2020) (allowing a sentencing
court to consider the age of a youthful defendant as a mitigating factor); S. 2591
(2020) (requiring the Commissioner of the Department of Corrections to issue a
Certificate of Eligibility for Resentencing to any inmate who committed a crime
as a juvenile, was waived to adult court, received an aggregate prison term of
thirty years or longer, has served at least twenty years of that sentence, and has
not been resentenced or previously sought such relief).
A-4587-17T2
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We reject the notion that a juvenile offender serving a life term with a
thirty-year parole-bar is automatically entitled to an evidentiary hearing, before
his initial parole eligibility date, without proffering any facts or evidence
supporting his claim that he should be released from prison early to comply with
Miller. We do not view Zuber as requiring an evidentiary hearing without first
presenting a prima facie case for such relief. The juvenile offender must present
more than bald, unsupported assertions in his moving papers. We hold the
juvenile offender must establish a prima facie case in support of relief under
Miller before being entitled to an evidentiary hearing or resentencing.4
4
In other contexts, a defendant seeking relief from a conviction or sentence
must make a satisfactory preliminary showing to be entitled to an evidentiary
hearing. A defendant seeking post-conviction relief "shall be entitled to an
evidentiary hearing only upon the establishment of a prima facie case in support
of post-conviction relief." R. 3:22-10(b). Similarly, "the burden rests on the
defendant, in the first instance, to present some plausible basis for his request"
to set aside a guilty plea. State v. Slater, 198 N.J. 145, 156 (2009) (quoting State
v. Smullen, 118 N.J. 408, 416 (1990)). One factor is "[w]hether the defendant
has asserted a colorable claim of innocence." Id. at 150. Courts "consider
whether a defendant's assertion of innocence is more than a blanket, bald
statement and rests instead on particular, plausible facts." Id. at 159. Likewise,
a defendant seeking disclosure of the identity of a nonparticipant confidential
informant "must advance more than the ungrounded hope that if the informer
were called as a witness, he would say something which might possibly discredit
other witnesses and lead to an acquittal." State v. Morelli, 152 N.J. Super. 67,
74-75 (App. Div. 1977) (citing State v. Oliver, 50 N.J. 39, 42 (1967)). The court
"should not honor frivolous demands for information on unsubstantiated
allegations of need." State v. Milligan, 71 N.J. 373, 393 (1976). The defense
A-4587-17T2
20
Notably, Smith proffered no evidence of progress he has made while in
prison the last twenty-six years. He submitted no proof of any programs he has
completed, educational goals he has achieved, job skills he has acquired, the
absence of inmate infractions, or that he is better able to deal with the factors
that led to his criminality. In short, Smith has not established a prima facie case
of reform, rehabilitation, or maturation in support of his claim for relief.
Accordingly, he has not presented any factual basis warranting an evidentiary
hearing or resentencing under Zuber.
Although we do not foreclose Smith from a future application for
resentencing based on his reformation efforts, we decline to hold in the abstract
whether Rule 3:21-10(b) or some other procedure would furnish such a pathway
for future relief. We also do not decide here the appropriate amount of time
served to justify such motions. Any such decisions should be based on a
properly supported application. See R. 3:21-10(c) ("A motion filed pursuant to
[Rule 3:21-10(b)] shall be accompanied by supporting affidavits and such other
documents and papers as set forth the basis for the relief sought.").
must show that "disclosure of his identity is essential to assure a fair
determination of the issues." N.J.R.E. 516.
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For these reasons, we affirm the denial of Smith's motion to correct his
sentence without prejudice to the possibility of a future application for relief.
In addition, to the extent Smith may have or subsequently develops
evidence of achieving reformation, rehabilitation, maturation, and his fitness to
return to society, he can present it to the parole board when he is eligible for
parole. Bass, 457 N.J. Super. at 14; N.J.A.C. 10A:71-3.9(b), -3.11(a). The
parole board is obligated to consider such evidence as part of its comprehensive
evaluation of whether it is appropriate to release an inmate on parole. See
N.J.A.C. 10A:71-3.11(a) (stating that "[p]arole decisions shall be based on the
aggregate of all pertinent factors, including material supplied by the inmate and
reports and material which may be submitted by any persons or agencies which
have knowledge of the inmate"). The hearing officer, board panel and full board
shall consider the twenty-three factors enumerated in N.J.A.C. 10A:71-3.11(b).5
In addition, each "may consider any other factors deemed relevant." Ibid.
5
Factors enumerated in N.J.A.C. 10A:71-3.11(b) that are pertinent here include:
1. Commission of an offense while incarcerated; 2.
Commission of serious disciplinary infractions; 5.
Facts and circumstances of the offense; 6. Aggravating
and mitigating factors surrounding the offense; 7.
Pattern of less serious disciplinary infractions; 8.
Participation in institutional programs which could
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Because Smith committed his crimes prior to August 19, 1997, "the
[b]oard panel shall determine whether evidence supplied in reports or developed
or produced at the hearing indicates by a preponderance of the evidence that
have led to the improvement of problems diagnosed at
admission or during incarceration. This includes, but is
not limited to, participation in substance abuse
programs, academic or vocational education programs,
work assignments that provide on-the-job training and
individual or group counseling; 9. Statements by
institutional staff, with supporting documentation, that
the inmate is likely to commit a crime if released; that
the inmate has failed to cooperate in his or her own
rehabilitation; or that there is a reasonable expectation
that the inmate will violate conditions of parole; 11.
Documented changes in attitude toward self or others;
12. Documentation reflecting personal goals, personal
strengths or motivation for law-abiding behavior; 13.
Mental and emotional health; 14. Parole plans and the
investigation thereof; 17. Statements by the inmate
reflecting on the likelihood that he or she will commit
another crime; the failure to cooperate in his or her own
rehabilitation; or the reasonable expectation that he or
she will violate conditions of parole; 19. Family and
marital history; 20. Statement by the court reflecting
the reasons for the sentence imposed; 21. Statements or
evidence presented by the appropriate prosecutor's
office, the Office of the Attorney General, or any other
criminal justice agency; 22. Statement or testimony of
any victim or the nearest relative(s) of a
murder/manslaughter victim; 23. The results of the
objective risk assessment instrument.
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there is a substantial likelihood that [Smith] will commit a crime . . . if released
on parole." N.J.A.C. 10A:71-3.10(a).
Smith will thus have a full the opportunity to present relevant evidence at
the board hearing and argue that he should be paroled in 2024. We therefore
reject his claim that the Parole Board "would have virtually no knowledge about
[his] life and family situation at the time of the offense." By any measure, the
parole board will afford Smith a realistic and "meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation." Zuber, 227 N.J. at
443 (quoting Graham, 560 U.S. at 75). If it does not grant Smith parole, he may
appeal from that decision.
Defendant's remaining arguments are without sufficient merit to warrant
discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
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