State of New Jersey v. Gerard D. Watkins ( 2024 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-2826-21
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    GERARD D. WATKINS,
    Defendant-Appellant.
    ________________________
    Submitted May 6, 2024 – Decided July 30, 2024
    Before Judges DeAlmeida and Bishop-Thompson.
    On appeal from the Superior Court of New Jersey, Law
    Division, Union County, Indictment Nos. 96-11-1326
    and 96-11-1331.
    Jennifer Nicole Sellitti, Public Defender, attorney for
    appellant (Ruth E. Hunter, Designated Counsel, on the
    brief).
    William A. Daniel, Union County Prosecutor, attorney
    for respondent (Meredith L. Balo, Assistant Prosecutor,
    of counsel and on the brief).
    PER CURIAM
    Defendant Gerard D. Watkins appeals from two orders of the Law
    Division: (1) the August 17, 2021 order denying his motion to vacate an illegal
    sentence and for resentencing; and (2) the February 22, 2022 order denying his
    motion for reconsideration. We affirm.
    I.
    On September 10, 1996, defendant, then twenty-two, and another man
    robbed an eighty-two-year-old man in his Hillside home. Under the influence
    of cocaine and armed with a sawed-off shotgun, defendant bound the elderly
    man's hands and feet after ordering him to lie face-down on the floor, then stole
    his wallet, money, handguns, and car.
    Three days later, on September 13, 1996, defendant and another man shot
    and robbed a man in his Scotch Plains home. The victim, asleep in his bed, was
    awakened by defendant, who was wearing a surgical mask.               Defendant
    immediately shot the man in the head at pointblank range. Although the victim
    survived, he pretended to be dead in the hope that defendant would not shoot
    him again. Defendant and the other man stole several items from the victim's
    home, as well as his car, which the two abandoned nearby. They fled in the car
    they stole from the victim in Hillside.
    A-2826-21
    2
    Hillside police officers, having heard radio transmissions regarding the
    Scotch Plains home invasion and car theft, positioned themselves on Route 22
    East to monitor traffic. One officer explained that in his experience people who
    commit criminal acts west of Hillside often flee east on the highway. The
    officers observed a car matching the description of the car stolen in Hillside
    three days earlier.
    After confirming that the car was the one stolen in Hillside, the officers
    conducted a stop. Defendant, whose fingerprint was found in the Hillside
    victim's home, was driving the car. The officers found the Hillside victim's two
    guns in defendant's pocket.     The weapons were loaded and operable.          In
    defendant's other pockets, the officers found a pair of cutting pliers, a razor
    knife, a small pry bar, a pocketknife, a metal bracket, a pair of black leather
    gloves, a t-shirt with two eye holes cut out, and a mask.
    A grand jury indicted defendant and codefendant Deandre McKenzie for
    the Hillside robbery, charging them with second-degree burglary, N.J.S.A.
    2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; first-degree carjacking,
    N.J.S.A. 2C:15-2; third-degree theft, N.J.S.A. 2C:20-3; third-degree unlawful
    possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of
    a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
    A-2826-21
    3
    The grand jury separately indicted defendant and McKenzie for the Scotch
    Plans robbery, charging them with second-degree burglary, N.J.S.A. 2C:18-2;
    third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-
    degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -4(a);
    first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree aggravated assault,
    N.J.S.A. 2C:12-2(b)(4); second-degree aggravated assault, N.J.S.A. 2C:12-
    1(b)(1); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-
    3(a); and first-degree carjacking, N.J.S.A. 2C:15-2.
    A jury convicted defendant of all charges relating to the Hillside robbery,
    except second-degree possession of a weapon for an unlawful purpose. The jury
    acquitted defendant of that count.
    On April 23, 1998, the court merged the theft conviction into the robbery
    conviction and sentenced defendant to concurrent twenty-year terms of
    incarceration with a ten-year period of parole ineligibility for the robbery and
    carjacking convictions.    For the burglary conviction, the court sentenced
    defendant to a ten-year term of incarceration with a five-year period of parole
    ineligibility to run concurrent to the twenty-year terms.      On the unlawful
    possession of a weapon conviction, the court sentenced defendant to a five-year
    term of incarceration with a two-and-one-half-year period of parole ineligibility
    A-2826-21
    4
    consecutive to the other sentences. The aggregate sentence was twenty-five
    years in prison with a twelve-and-a-half-year period of parole ineligibility.
    Thereafter, a jury convicted defendant of five of the counts relating to the
    Scotch Plains robbery. The jury acquitted defendant of attempted murder and
    the court dismissed the carjacking and fourth-degree aggravated assault charges.
    On October 30, 1998, the court granted the State's application for a
    mandatory extended term pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). The
    court found that "this is defendant's second Graves offense[,] having previously
    been convicted for an armed robbery" in the Hillside matter. The court merged
    the possession of a weapon for an unlawful purpose conviction into the robbery
    conviction and sentenced defendant to an extended term of a fifty-year period
    of incarceration with a twenty-year period of parole ineligibility.
    The court imposed concurrent terms on the remaining convictions:
    extended fifteen-year terms of incarceration with a six-year period of parole
    ineligibility for each of the second-degree crimes, and an ordinary five-year term
    of incarceration with a two-year period of parole ineligibility on the third-degree
    offense. The aggregate sentence was a fifty-year term of imprisonment with a
    twenty-year period of parole ineligibility. The court ordered that the sentences
    A-2826-21
    5
    for the Scotch Plains robbery convictions run consecutively to the sentences for
    the Hillside robbery convictions.
    At the trial relating to the Scotch Plains robbery, McKenzie was convicted
    of two lesser included crimes: second-degree robbery and third-degree burglary.
    For the robbery conviction, the court sentenced McKenzie to an eight-year term
    of incarceration with a three-year period of parole ineligibility. The court
    imposed a concurrent four-year term of incarceration for the burglary
    conviction.
    We affirmed defendant's convictions and sentence relating to the Hillside
    robbery. State v. Watkins, No. A-6342-97 (App. Div. Feb. 28, 2000). The
    Supreme Court denied defendant's petition for certification. State v. Watkins,
    
    165 N.J. 134
     (2000).
    We also affirmed defendant's conviction and sentence relating to the
    Scotch Plains robbery. State v. Watkins, No. A-3315-98 (App. Div. Aug. 8,
    2000). The Supreme Court denied defendant's petition for certification. State
    v. Watkins, 
    167 N.J. 86
     (2001).
    Defendant filed a petition for post-conviction relief (PCR) in which he
    argued, among other things, that he was not eligible for a mandatory extended
    term under the Graves Act for his first-degree robbery conviction relating to the
    A-2826-21
    6
    Scotch Plains robbery. He argued that he did not have a prior conviction within
    the meaning of the statute. On appeal from the denial of the PCR petition, we
    rejected that claim, finding that "[d]efendant's arguments overlook his
    convictions with respect to the Hillside incident." State v. Watkins, No. A-2591-
    09 (App. Div. July 13, 2011). We affirmed the denial of his PCR petition. 
    Ibid.
    The Supreme Court denied defendant's petition for certification.        State v.
    Watkins, 
    212 N.J. 287
     (2012).
    On February 15, 2018, the court amended the judgment of conviction
    relating to the Hillside robbery to correct a misstatement of the count of which
    defendant was acquitted.    Defendant argues that the amended judgment of
    conviction does not provide the correct amount of credits for time served.
    On April 22, 2021, defendant filed a motion pursuant to Rule 3:21-10 to
    reduce or correct his sentence. He argued that he is entitled to resentencing in
    light of the 2020 enactment of a new mitigating factor, N.J.S.A. 2C:44-1(b)(14).
    Under the newly enacted mitigating factor, at sentencing the court shall consider
    that "[t]he defendant was under [twenty-six] years of age at the time of the
    commission of the offense." 
    Ibid.
     Defendant argued that the new factor applies
    to him retroactively.
    A-2826-21
    7
    In addition, defendant argued that he is entitled to resentencing under
    State v. Zuber, 
    227 N.J. 422
    , 446-47 (2017). There, the Court held that the
    holding in Miller v. Alabama, 
    567 U.S. 460
    , 465 (2012), "that a sentencing judge
    'take into account how children are different, and how those differences counsel
    against irrevocably sentencing them to a lifetime in prison,' applies with equal
    strength to a sentence that is the practical equivalent of life without parole."
    Defendant argued that although Miller and Zuber concerned defendants who
    committed crimes when they were juveniles, the holdings in those cases should
    apply to defendants, like him, who committed crimes as young adults and are
    serving sentences that are the equivalent of life in prison. Defendant argued that
    at his resentencing, the court must consider the progress he has made toward
    rehabilitation during his incarceration, including his summa cum laude
    graduation from Rutgers University with a degree in criminal justice.
    Defendant also argued that his sentence is illegal because the sentences
    for the two robberies should run concurrently instead of consecutively. He
    argued that the consecutive sentences were the result of systemic racism and are,
    in effect, punishment for exercising his right to trial. He also argued that the
    two robberies were part of the same crime spree, further supporting concurrent
    sentences. Finally, defendant argued that he is entitled to be resentenced at a
    A-2826-21
    8
    hearing that considers his age at the time of the robberies, pursuant to State v.
    Torres, 
    246 N.J. 246
    , 273 (2021), when determining whether consecutive
    sentences should be imposed.
    On August 17, 2021, the trial court issued an oral opinion denying
    defendant's motion. The court concluded that the new mitigating factor did not
    apply retroactively to defendants who were sentenced at the time the statute was
    enacted.    The court also concluded that defendant was not entitled to
    resentencing under Torres. The court found that defendant's excessive sentence
    claim was decided against him in his direct appeal, as was his claim that he was
    not eligible for an extended sentence under the Graves Act for the Scotch Plains
    robbery. The trial court found no basis on which to conclude that defendant's
    sentence was illegal. An August 17, 2021 order memorializes the trial court's
    decision.
    Defendant subsequently moved for reconsideration. He argued that the
    trial court erred when it tried the indictments separately. On February 22, 2022,
    the court denied the motion, concluding that defendant had not raised that
    argument in the original motion. A February 22, 2022 order memorializes the
    trial court's decision.
    This appeal followed. Defendant raises the following arguments.
    A-2826-21
    9
    POINT I
    THE IMPOSITION OF MULTIPLE EXTENDED
    TERMS AT THE SAME SENTENCING WHERE
    TWO EXTENDED TERMS IMPOSED WERE
    DISCRETIONARY   WAS   ILLEGAL,  AND
    THEREFORE, A FULL RESENTENCING IS
    REQUIRED.
    A.  THERE MUST BE A           REMAND FOR
    RESENTENCING     BECAUSE       DEFENDANT'S
    SENTENCE IS ILLEGAL.
    B.   THE RESENTENCING COURT MUST
    CONSIDER DEFENDANT'S YOUTH, WHICH THE
    2021 MOTION COURT FAILED TO DO, AND
    RECONSIDER AND REWEIGH AGGRAVATING
    AND MITIGATING FACTORS, INCLUDING THE
    YOUTH MITIGATING FACTOR.
    C.  THE RESENTENCING COURT MUST
    CONSIDER DEFENDANT'S REHABILITATIVE
    EFFORTS IN ACCORDANCE WITH STATE V.
    RANDOLPH, 
    210 N.J. 330
     (2012), WHICH THE 2021
    MOTION COURT FAILED TO DO.
    D.  THE    AMENDED          JUDGMENT    OF
    CONVICTION    SHOULD       INCLUDE   PRIOR
    SERVICE CREDITS.
    POINT II
    ADDITIONALLY, THE RESENTENCING COURT
    SHOULD RECONSIDER THE CONSECUTIVE
    SENTENCES IN ACCORDANCE WITH STATE V.
    TORRES, 
    246 N.J. 246
     (2021), AND REGARDING
    THE APPLICABILITY OF TORRES, THE
    A-2826-21
    10
    "RETROACTIVITY QUESTION NEVER ARISES."
    STATE V. AFANADOR, 
    15 N.J. 41
    , 57 (1997).
    POINT III
    DEFENDANT'S PRACTICAL EQUIVALENT OF A
    LIFE SENTENCE ([SEVENTY-FIVE] YEARS WITH
    A [THIRTY-TWO]-AND-A-HALF-YEAR PAROLE
    DISQUALIFIER) THAT WAS IMPOSED FOR NON-
    HOMICIDE     OFFENSES       WITHOUT      THE
    CONSIDERATION THAT HE WAS A YOUNG
    ADULT AT THE AGE OF [TWENTY-TWO] WAS
    CRUEL     AND    UNUSUAL        PUNISHMENT;
    DEFENDANT'S      SENTENCE          IS    NOT
    PROPORTIONAL AND YOUNG ADULTS AS A
    CLASS,   LIKE   JUVENILES,      SHARE    THE
    MITIGATING     QUALITIES        OF     YOUTH.
    THEREFORE,     THERE       MUST       BE   A
    RESENTENCING PURSUANT TO MILLER V.
    ALABAMA, 
    567 U.S. 460
    , 471 (2012). SEE ALSO
    STATE V. COMER, 
    249 N.J. 359
     (2022).
    A.    A LIFE SENTENCE FOR JUVENILES IS
    UNCONSTITUTIONAL                 WITHOUT
    CONSIDERATION      OF   THE  "DISTINCTIVE
    ATTRIBUTES OF YOUTH," AND IT IS ONLY THE
    RAREST OF JUVENILE OFFENDERS FOR WHICH
    SUCH A SENTENCE WOULD NOT BE
    UNCONSTITUTIONALLY DISPROPORTIONATE.
    ADDITIONALLY, OUR COURT HAS NOW
    PROVIDED        A RIGHT   TO  A    MILLER
    RESENTENCING FOR JUVENILES SENTENCES
    FOR MURDER AND WHO HAVE SERVED
    [TWENTY] YEARS. SEE STATE V. COMER, 
    249 N.J. 359
     (2022).
    A-2826-21
    11
    B.  AS A CLASS, YOUNG ADULTS, LIKE
    JUVENILES,  SHARE     THE "DISTINCTIVE
    ATTRIBUTES OF YOUTH."
    C. A [SEVENTY-FIVE]-YEAR SENTENCE IS
    "GROSSLY     DISPROPORTIONATE"     TO
    DEFENDANT'S CRIMES AND TO DEFENDANT.
    D.   THE LENGTH OF DEFENDANT'S SENTENCE
    QUALIFIES HIM FOR A RESENTENCING
    PURSUANT TO MILLER AND ZUBER, AND
    DEFENDANT WILL MOST LIKELY NOT BE
    RELEASED UNTIL HIS MAXIMUM RELEASE
    DATE IN 2031 WHEN HE WILL BE OVER [FIFTY-
    SIX] YEARS OLD AND HAVE SPENT MORE THAN
    THREE DECADES IN CUSTODY.
    E.  "EVOLVING STANDARDS OF DECENCY"
    DEMONSTRATE       THAT     DEFENDANT'S
    SENTENCE WITHOUT THE CONSIDERATION OF
    YOUTH IS CRUEL AND UNUSUAL PUNISHMENT.
    POINT IV
    THE MATTER MUST BE REMANDED FOR
    RESENTENCING FOR THE FURTHER REASON
    THAT     DEFENDANT     RECEIVED     AN
    EXCESSIVELY DISPARATE SENTENCE AS
    COMPARED TO HIS "SIMILARLY SUFFICIENT"
    (SIC) CODEFENDANT,    RENDERING    THE
    SENTENCE UNLAWFUL.
    POINT V
    IT WAS PATENTLY UNFAIR TO DEFENDANT
    AND A VIOLATION OF FUNDAMENTAL
    FAIRNESS FOR THE STATE TO CONDUCT
    SEPARATE TRIALS FOR ROBBERIES THAT
    A-2826-21
    12
    OCCURRED JUST THREE DAYS APART; THE
    SECOND CONVICTION RESULTED IN A
    MANDATORY EXTENDED TERM FOR WHICH
    THE SECOND SENTENCING COURT IMPOSED
    [FIFTY] YEARS WITH A [TWENTY]-YEAR
    PAROLE INELIGIBILITY TERM.
    II.
    Generally, we review sentencing decisions for an abuse of discretion. See
    State v. Blackmon, 
    202 N.J. 283
    , 297 (2010). However, we review de novo
    questions of law related to sentencing, such as the meaning of a sentencing
    statute. See State v. Gandhi, 
    201 N.J. 161
    , 176 (2010).
    A.    Multiple Extended Sentences.
    We begin our analysis with defendant's argument that his sentence is
    illegal because the court imposed multiple extended sentences at the sentencing
    hearing for the Scotch Plains robbery. "A sentence is illegal if it exceeds the
    maximum penalty provided in the Code for a particular offense, is not imposed
    in accordance with law, or fails to include a mandatory sentencing requirement."
    State v. Bass, 
    457 N.J. Super. 1
    , 8 (App. Div. 2018) (quoting State v. Locane,
    
    454 N.J. Super. 98
    , 117 (App. Div. 2018)) (internal quotations omitted).
    Our Code of Criminal Justice "provides for ordinary sentences, N.J.S.A.
    2C:43-6[(a)], as well as extended-term sentences that carry greater punishment
    for the same crime." State v. Pierce, 
    188 N.J. 155
    , 161 (2006). Although some
    A-2826-21
    13
    extended terms are mandatory, others are within the discretion of the trial court
    when statutory requirements are met. 
    Ibid.
     As we explained in State v. Connell,
    
    208 N.J. Super. 688
    , 691 (App. Div. 1986),
    [e]xtended prison terms serve two different functions in
    the Code. They offer the sentencing judge an option,
    which [the judge] may take on request of the
    prosecuting attorney, to impose a longer prison
    sentence than is ordinarily available. When performing
    this function, an extended prison term may be imposed
    in the exercise of sound judicial discretion where the
    defendant is a persistent offender, a professional
    criminal or a party to a crime committed for hire.
    N.J.S.A. 2C:44-3(a), (b) and (c).
    Extended prison terms also serve as the mandatory
    sentence for a defendant who has committed any of the
    crimes enumerated in N.J.S.A. 2C:44-3(d) (Graves Act
    crimes) in the course of which he used or possessed a
    firearm, if he had previously been convicted of a Graves
    Act crime involving the use or possession of a firearm.
    
    Ibid.
     When performing that function, an extended term
    is the ordinary sentence for the crime.
    Defendant's convictions relating to the Scotch Plains robbery of first-
    degree robbery, second-degree burglary, and second-degree aggravated assault
    were his third, fourth, and fifth convictions of Graves Act crimes, subjecting
    him to a mandatory extended term for each offense under N.J.S.A. 2C:44-3(d).
    N.J.S.A. 2C:44-3 provides, in relevant part,
    [i]f the grounds specified in subsection d. are found,
    and the person is being sentenced for commission of
    A-2826-21
    14
    any of the offenses enumerated in [N.J.S.A.] 2C:43-
    6[(c)] . . . the court shall sentence the defendant to an
    extended term as required by [N.J.S.A.] 2C:43-6[(c)]
    . . . and application by the prosecutor shall not be
    required.
    [N.J.S.A. 2C:44-3.]
    Subsection (d) of the statute provides, in relevant part,
    Second offender with a firearm. The defendant is at
    least 18 years of age and has been previously convicted
    of any of the following crimes: . . . 2C:15-1, 2C:18-2
    . . . and he used or possessed a firearm, as defined in
    2C:39-1[(f)], in the course of committing or attempting
    to commit any of these crimes, including the immediate
    flight therefrom.
    [N.J.S.A. 2C:44-3(d).]
    For the Hillside robbery, defendant was convicted of robbery, N.J.S.A.
    2C:15-1 and burglary, N.J.S.A. 2C:18-2, while using or possessing a firearm.
    After his conviction of first-degree robbery, second-degree burglary, and
    second-degree aggravated assault while using or possessing a firearm in the
    Scotch Plains robbery, defendant satisfied the statutory criteria as a "[s]econd
    offender with a firearm" under N.J.S.A. 2C:44-3d. The court, therefore, was
    required to impose mandatory extended terms on defendant for each of his
    robbery, burglary, and aggravated assault convictions relating to the Scotch
    Plains robbery.
    A-2826-21
    15
    Defendant argues that N.J.S.A. 2C:44-5(a)(2) precludes imposition of
    extended terms on more than one of his convictions relating to the Scotch Plains
    robbery. That statute provides, in relevant part:
    a.    Sentences of imprisonment for more than one
    offense. When multiple sentences of imprisonment are
    imposed on a defendant for more than one offense . . .
    such multiple sentences shall run concurrently or
    consecutively as the court determines at the time of
    sentence, except that:
    ....
    (2) Not more than one sentence for an extended term
    shall be imposed.
    [N.J.S.A. 2C:44-5(a)(2).]
    We have, however, held that N.J.S.A. 2C:44-5(a)(2) does not apply to a
    defendant who has been convicted of multiple offenses, each of which is subject
    to a mandatory extended term under the Graves Act. We held, with respect to
    N.J.S.A. 2C:44-5(a)(2),
    [t]hat provision limits the judge's authority to impose
    discretionary prison terms, not Graves Act mandatory
    extended prison terms. Graves Act extended prison
    terms are mandatory "notwithstanding that extended
    terms are ordinarily discretionary with the court."
    N.J.S.A. 2C:43-6. The section defendant relies on[,
    N.J.S.A. 2C:44-5(a)(2),] preceded the Graves Act by
    more than two years.
    [Connell, 
    208 N.J. Super. at 691-92
    .]
    A-2826-21
    16
    We reiterated our holding, "[i]n sum, when imposing prison sentences for more
    than one offense a judge must impose a Graves Act sentence, including
    mandatory extended prison terms, for each Graves Act conviction." 
    Id. at 697
    ;
    see also State v. Robinson, 
    217 N.J. 594
    , 597 (2014) ("A defendant may be
    sentenced to multiple mandatory extended terms in the same proceeding.")
    (citing Connell, 
    208 N.J. Super. at 697
    ).
    Defendant's argument is based on the premise that he was sentenced to
    one mandatory extended term and two discretionary extended terms at the
    sentencing for the Scotch Plains robbery.      Our review of the sentencing
    transcript, however, reveals, as the State argues, that the court sentenced
    defendant to three mandatory extended prison terms because his convictions of
    robbery, burglary, and aggravated assaults were each a Graves Act offense for
    which an extended term was mandated by statute. As we held in Connell,
    N.J.S.A. 2C:44-5(a)(2) does not preclude the imposition of three mandatory
    extended prison terms at the same sentencing. Defendant is not, therefore,
    entitled to resentencing under N.J.S.A. 2C:44-5(a)(2).
    B.     State v. Torres.
    We are also not persuaded by defendant's argument that he is entitled to a
    resentencing hearing pursuant to Torres. In Torres, issued nearly more than
    A-2826-21
    17
    twenty-two years after defendant was sentenced, the Court explained its
    intention "to underscore" and "promote" the "concepts of uniformity,
    predictability, and proportionality" that underlie the sentencing factors it set
    forth in Yarbough. 246 N.J. at 252-53. The Court stated,
    [w]e reiterate the repeated instruction that a sentencing
    court's decision whether to impose consecutive
    sentences should retain focus on "the fairness of the
    overall sentence." [State v.] Miller, 108 N.J. [112,] 122
    [(1987)]; see also State v. Abdullah, 
    184 N.J. 497
    , 515
    (2005). Toward that end, the sentencing court's
    explanation of its evaluation of the fairness of the
    overall sentence is "a necessary feature in any
    Yarbough analysis." [State v.] Cuff, 239 N.J. [321,]
    352 [(2019)].
    [Id. at 270.]
    The Court in Torres did not announce a new rule.           It renewed and
    reemphasized the long-established requirement that a sentencing court provide
    "an explanation of the overall fairness of [a] consecutive sentence . . . ." 
    Ibid.
    Because the Court did not create a new rule of law, retroactivity is not
    applicable. State v. Feal, 
    194 N.J. 293
    , 307 (2008); State v. Burstein, 
    85 N.J. 394
    , 403 (1981) (stating "retroactivity can arise only where there has been a
    departure from existing law."). Nothing in the holding in Torres suggests that
    every defendant serving a previously imposed sentence is entitled to be
    resentenced merely by virtue of the issuance of the opinion in Torres.
    A-2826-21
    18
    C.    Miller v. Alabama and State v. Zuber.
    The trial court correctly concluded that defendant is not entitled to
    resentencing under the holding in Miller or Zuber. The United States Supreme
    Court has established, through a series of decisions issued between 2005 and
    2016, that juveniles are developmentally different from adults and
    individualized consideration of these differences is necessary prior to imposing
    the harshest punishments available under law. See e.g., Roper v. Simmons, 
    543 U.S. 551
    , 578 (2005) (holding that imposing the death penalty on defendants
    convicted as juveniles violates the Eighth Amendment); Graham v. Florida, 
    560 U.S. 48
    , 82 (2010) (holding that imposing a life term without parole on juveniles
    convicted of non-homicide offenses is unconstitutional); and Miller, 
    567 U.S. at 465
     (holding that mandatory life term without parole for juveniles convicted of
    homicide is unconstitutional). The Court's holdings in each of these cases were
    predicated on "scientific and sociological notions about the unique
    characteristics of youth and the progressive emotional and behavioral
    development of juveniles." State in Interest of C.K., 
    233 N.J. 44
    , 68 (2018).
    As noted above, in Zuber, 
    227 N.J. at 446-47
    , our Supreme Court held that
    "Miller's command that a sentencing judge 'take into account how children are
    different, and how those differences counsel against irrevocably sentencing
    A-2826-21
    19
    them to a lifetime in prison,' applies with equal strength to a sentence that is the
    practical equivalent of life without parole." (quoting Miller, 
    567 U.S. at 480
    ).
    Defendant argues that the scientific evidence that underpins the holding
    in these precedents has advanced to include the development of post -adolescent
    brains. The legal precedents, however, do not support his argument. The
    evidence on which he relies dates from before and around the time the Court
    issued its opinion in Zuber. The evidence is similar to that on which the Court
    relied to reach its holding in that case. Yet, there is no indication in Zuber, or
    the precedents on which the Court relied, that the constitutional protections
    established in recent precedents apply to offenders, like defendant, who commit
    crimes after they have reached the age of majority.          See United States v.
    Marshall, 
    736 F.3d 492
    , 500 (6th Cir. 2013) (noting that, for Eighth Amendment
    purposes, an individual's eighteenth birthday marks the bright line separating
    juveniles from adults and stating, "[i]n short, Marshall is at the very most an
    immature adult. An immature adult is not a juvenile. Regardless of the source
    of the immaturity, an immature adult is still an adult.").
    D.    Disparate Sentences.
    Defendant did not raise in the trial court his argument that he is entitled
    to resentencing because the sentence he received for the Scotch Plains robbery
    A-2826-21
    20
    is excessively disparate from the sentence given to McKenzie for his convictions
    related to the robbery. "Generally, an appellate court will not consider issues,
    even constitutional ones, which were not raised below." State v. Galicia, 
    210 N.J. 364
    , 383 (2012); see also State v. Robinson, 
    200 N.J. 1
    , 19 (2009)
    (explaining that appellate courts refrain from addressing issues not developed in
    the trial court). Restraint from appellate review is appropriate here.
    As the Court explained in State v. Roach, 
    146 N.J. 208
    , 234 (1996), "some
    disparity in sentencing is inevitable in the administration of criminal justice."
    To "avoid or reduce" unjustifiable disparity, the Court instructed sentencing
    courts to "exercise a broader discretion to obviate excessive disparity." 
    Id. at 233
    . To accomplish this goal,
    [t]he trial court must determine whether the co-
    defendant is identical or substantially similar to the
    defendant regarding all relevant sentencing criteria.
    The court should inquire into the basis of the sentences
    imposed on the other defendant. It should further
    consider the length, terms, and condition of the
    sentence imposed on the co-defendant. If the defendant
    is sufficiently similar, the court must give the sentence
    imposed on the co-defendant substantive weight when
    sentencing the defendant in order to avoid excessive
    disparity.      Sentencing based on such added
    considerations will accommodate the basic discretion
    of a sentencing court to impose a just sentence on the
    individual defendant in accordance with the sentencing
    guidelines while fulfilling the court's responsibility to
    achieve uniform sentencing when that is possible.
    A-2826-21
    21
    [Id. at 233-34.]
    Our ability to effectively analyze defendant's argument is hindered by the
    absence of a finding by the trial court that defendant and McKenzie were
    substantially similar at sentencing for the Scotch Plains robbery. The court
    made no findings of fact with respect to the two defendants' convictions,
    criminal history, and role in the robbery. We note that McKenzie appears to
    have been acquitted of two offenses and convicted of two lesser included
    offenses. In addition, the trial court did not develop a record of McKenzie's
    criminal history, and how it compares to that of defendant and whether
    McKenzie was also eligible for an extended prison term. The State notes that
    defendant had two felony indictments prior to the two robberies at issue here . It
    is not clear if McKenize had a criminal history. We, therefore, decline to address
    defendant's disparity in sentencing argument.
    E.    Separate Trials.
    Defendant did not raise before the trial court his argument that it was
    fundamentally unfair to try the indictments separately. It also appears defendant
    did not raise this argument in his direct appeal. Instead, defendant made the
    argument for the first time in his motion for reconsideration. "The proper object
    of reconsideration is to correct a court's error or oversight" on the original
    A-2826-21
    22
    motion. State v. Puryear, 
    441 N.J. Super. 280
    , 294 (App. Div. 2015) (citing
    Palombi v. Palombi, 
    414 N.J. Super. 274
    , 288 (App. Div. 2010)). Such a motion
    "cannot be used to expand the record and reargue a motion." Capital Fin. Co.
    of Del. Valley, Inc. v. Asterbadi, 
    398 N.J. Super. 299
    , 310 (App. Div. 2008).
    As is the case with defendant's arguments regarding excessively disparate
    sentencing, defendant's failure to raise the separate trials argument in a timely
    fashion precludes effective appellate review. We have no findings of fact and
    conclusions of law on the issue of separate trials to review.
    F.      Service Credits.
    Although defendant makes the passing argument that the amended
    judgment of conviction does not reflect the proper amount of service credits, he
    failed to develop a record in the trial court explaining his argument. Defendant's
    bald assertions regarding service credits are insufficient to warrant relief. He is
    not, however, precluded from applying to the trial court in the future to amend
    the judgment of conviction to reflect the service credits to which he believes he
    is entitled.
    Affirmed.
    A-2826-21
    23
    

Document Info

Docket Number: A-2826-21

Filed Date: 7/30/2024

Precedential Status: Non-Precedential

Modified Date: 7/30/2024