STATE OF NEW JERSEY v. JERMAINE BRYANT (93-03-1078, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1547-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE BRYANT,
a/k/a TWIN COUNTRY,
Defendant-Appellant.
_______________________
Submitted February 14, 2022 – Decided March 7, 2022
Before Judges Fasciale and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 93-03-1078.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alicia J. Hubbard, Assistant Deputy Public
Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
In 1994, defendant Jermaine Bryant was tried as an adult for crimes he
committed at the age of sixteen. The jury convicted defendant of first-degree
murder, second-degree aggravated assault, and weapons offenses. The court
imposed an aggregate life sentence with a thirty-five-year period of parole
ineligibility. Defendant appeals from an order denying his motion for a change
of sentence under Rule 3:21-10(b)(5) and rejecting his claim his sentence
violates federal and state constitutional provisions barring cruel and unusual
punishment, U.S. Const. amend. VIII; N.J. Const. art. 1, ¶ 12, and the principles
established in Miller v. Alabama, 567 U.S. 460 (2012), and State v. Zuber, 227
N.J. 422 (2017). We vacate the court's order in light of our Supreme Court's
recent holding that juveniles tried as adults who are convicted of murder "may
petition the court to review their sentences after [twenty] years," State v. Comer,
___ N.J. ___, ___ (2022) (slip op. at 51). We remand for an evidentiary,
resentencing hearing after which the court shall have "discretion to affirm or
reduce . . . defendant's original base sentence within the statutory range, and to
reduce the parole bar below the statutory limit to no less than [twenty] years ."
Id. at ___ (slip op. at 54).
A-1547-19
2
I.
The evidence at defendant's trial established that on November 11, 1992,
brothers Michael and Mitchell Saunders visited their uncle at his apartment.
Their uncle served as the apartment building's superintendent, and he told his
nephews he was having a problem with defendant, who was then sixteen and
lived with his mother in the building. The brothers confronted defendant and,
during a fight that broke out, defendant retrieved a rifle from his apartment and
shot both brothers—wounding Michael and killing Mitchell.
Defendant was tried as an adult. A jury convicted him of second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree murder, N.J.S.A.
2C:11-3(a)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(c)(1); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a).
At sentencing, the court found aggravating factors three, the risk
defendant would reoffend, N.J.S.A. 2C:44-1(a)(3), and nine, the need for
deterrence, N.J.S.A. 2C:44-1(a)(9). The court detailed defendant's prior
juvenile adjudications, but found mitigating factor seven, defendant had no
history of prior delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7),
because he "had no prior adult convictions." The court, however, then stated it
A-1547-19
3
was "not a significant mitigating factor" because defendant was a juvenile. In
the judgment of conviction, the court did not list mitigating factor seven, but
instead found mitigating factor two, defendant did not contemplate his conduct
would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2), based on
defendant's age. The court explained, "[d]efendant was [sixteen] years old"
when he committed the offenses and his "conduct . . . [was] the product of a
misguided youth."
The court merged defendant's conviction for possession of a weapon for
an unlawful purpose with his murder conviction and imposed a life sentence
with a mandatory thirty-year period of parole ineligibility. See N.J.S.A. 2C:11-
3(b)(1). The court imposed a consecutive ten-year sentence with a five-year
period of parole ineligibility on the aggravated assault conviction, and a
concurrent five-year sentence on defendant's conviction for unlawful possession
of a weapon. Defendant received an aggregate sentence of life in prison, with a
thirty-five-year period of parole ineligibility.
We affirmed defendant's conviction and sentence on his direct appeal,
State v. Bryant, 288 N.J. Super. 27 (App. Div. 1996), and the Supreme Court
denied defendant's petition for certification, State v. Bryant, 144 N.J. 589(1996). In the many years following the Court's denial of defendant's petition
A-1547-19
4
for certification, defendant filed numerous petitions for post-conviction relief—
all of which have been denied. He has also unsuccessfully moved for a new
juvenile waiver hearing and to correct his sentence, and, in federal court, for a
writ of habeas corpus.
In February 2017, defendant filed a motion to correct his sentence under
Rule 3:21-10(b). Defendant claimed his sentence is illegal because his life
sentence and thirty-five-year period of parole ineligibility is the practical
equivalent of a life sentence without parole. He relied on Zuber, where the Court
held imposition of the practical equivalent of a life sentence without parole on
a juvenile constitutes cruel and unusual punishment unless it is supported by
consideration of the factors identified in Miller, 567 U.S. at 477-78, for
imposition of a life sentence without parole on a juvenile offender. 1 227 N.J. at
447. Defendant further argued his potential release at age fifty-one, after
1
The Miller factors include: the defendant's "chronological age and its hallmark
features — among them, immaturity, impetuosity, failure to appreciate risks and
consequences"; "the family and home environment that surrounds [the
defendant] — and from which he [or she] cannot usually extricate himself" or
herself; "the circumstances of the homicide offense, including the extent of [the
defendant's] participation in the conduct and the way familial and peer pressures
may have affected" the defendant; "that [the defendant] might have been charged
and convicted of a lesser offense if not for the incompetence[] associated with
youth"; and that "mandatory punishment disregards the possibility of
rehabilitation even when the circumstances most suggest it." 567 U.S. at 477-
78; see also Zuber, 227 N.J. at 453 (summarizing Miller factors).
A-1547-19
5
completion of the thirty-five-year period of parole ineligibility, does not remedy
the constitutional infirmity inherent in his sentence because the New Jersey
Parole Board, which will decide whether he is released on parole, is not required
to consider the Miller factors in making its decision. See State v. Thomas, ___
N.J. Super. ___, ___ (App. Div. 2022) (slip. op. at 41) (explaining the Parole
Board does not consider the Miller factors when making a parole release
decision).
The court denied defendant's motion, finding he is not entitled to a review
of his sentence and consideration of the Miller factors under the Court's
reasoning in Zuber because his sentence, inclusive of his period of parole
ineligibility, is not the practical equivalent of life without parole. The court
noted the defendants in Zuber had parole ineligibility terms of fifty-five years
and sixty-eight-and-a-third years, and the court found defendant's parole
ineligibility term, which "is only [five] years greater than the mandatory" thirty-
year parole ineligibility term for a conviction for knowing and purposeful
murder, N.J.S.A. 2C:11-3(b)(1), "does not trigger Miller and Zuber protections."
The court entered an order denying defendant's motion, and this appeal
followed.
Defendant presents the following arguments for our consideration:
A-1547-19
6
POINT I
BECAUSE THE SENTENCING COURT DID NOT
PROPERLY CONSIDER THE MITIGATING
ASPECTS OF YOUTH WHEN IMPOSING NOT
ONLY THIS LENGTHY PERIOD OF
INCARCERATION, BUT THE PROSPECT OF
DEATH IN PRISON, WITHOUT A[] MEANINGFUL
OPPORTUNITY FOR RELEASE, A
RESENTENCING HEARING IS NECESSARY. U.S.
CONST. AMENDS. VIII, XIV; N.J. CONST. ART. I ¶
12.
A. THE LENGTH AND NATURE OF
[DEFENDANT]'S LIFE SENTENCE
NECESSITATES JUDICIAL REVIEW[.]
B. MERE ELIGIBILITY FOR PAROLE DOES NOT
AMOUNT TO A MEANINGFUL OPPORTUNITY
FOR RELEASE PURSUANT TO GRAHAM AND
ZUBER BECAUSE, REGARDLESS OF ANY
EVIDENCE THAT HE HAS BEEN
REHABILITATED, [DEFENDANT] IS NOT
PROMISED AN OPPORTUNITY TO GAIN
RELEASE BASED UPON HIS DEMONSTRATED
MATURATION AND REHABILITATION.
1. The Parole Board regularly contravenes the
intentions and expectations of sentencing judges and,
therefore, parole eligibility does not satisfy the
sentencing requirements set forth in Graham, Miller, or
Zuber or their progeny.
2. The Parole Board's decision-making process is
statutorily and constitutionally deficient for purposes of
assessing a juvenile's sentence and, therefore,
eligibility for parole cannot serve as a meaningful
opportunity for release.
A-1547-19
7
C. THE SENTENCING COURT FAILED TO TAKE
[DEFENDANT]'S YOUTH INTO ACCOUNT[.]
POINT II
THE ABSENCE OF A MEANS FOR JUDICIAL
REVIEW WHERE A COURT CAN ASSESS THE
FACTORS THAT COULD NOT BE FULLY
ASSESSED WHEN HE WAS ORIGINALLY
SENTENCED-LIKE WHETHER HE STILL FAILS
TO APPRECIATE RISKS AND CONSEQUENCES,
OR WHETHER HE MAY BE, OR HAS BEEN,
REHABILITATED RENDERS [DEFENDANT]'S
SENTENCE ILLEGAL. U.S. CONST. AMEND. VIII,
XIV; N.J. CONST. ART. I ¶ 12.
II.
Under Rule 3:21-10(b)(5), "an order may be entered at any
time . . . correcting a sentence not authorized by law including the Code of
Criminal Justice[.]" See State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) ("[A] truly
illegal sentence can be corrected 'at any time'" (quoting R. 3:21-10(b)(5))).
"Whether [a] defendant's sentence is unconstitutional is . . . an issue of law
subject to de novo review." State v. Drake, 444 N.J. Super. 265, 271 (App. Div.
2016).
Defendant argues his life sentence and thirty-five-year period of parole
ineligibility constitutes the practical equivalent of a life sentence without parole
and, as a result, it is an unconstitutional cruel and unusual punishment under the
A-1547-19
8
Court's holding in Zuber in the absence of a resentencing hearing during which
the court considers the Miller factors. He claims the court erroneously denied
him the resentencing hearing to which he is entitled based on its determination
his parole ineligibility term alone was not sufficiently long to constitute the
practical equivalent of a sentence of life without parole under the Zuber
standard.
We need not directly address whether defendant's parole ineligibility term
and sentence constitute the practical equivalent of a life sentence without parole
under Zuber. That is because the Court in Comer determined that a defendant
who is convicted of knowing and purposeful murder as a juvenile, and who
receives the lengthy sentence and period of parole ineligibility permitted and
required under N.J.S.A. 2C:11-3, is entitled to "petition for a review of their
sentence after having spent [twenty] years in jail." ___ N.J. at ___ (slip op. at
53). When a petition is filed, the trial court shall conduct an evidentiary hearing
to review the defendant's sentence and "consider the Miller factors—including
factors that could not be fully considered decades earlier, like whether the
defendant still fails to appreciate risks and consequences, and whether he [or
A-1547-19
9
she] has matured or been rehabilitated."2 Ibid. (slip op. at 53). In the absence
of the availability of such a hearing to review a defendant's sentence after
serving twenty years, the thirty-plus-year period of parole ineligibility and
thirty-plus-year sentence authorized under N.J.S.A. 2C:11-3 for a juvenile tried
as an adult and convicted of murder constitutes unconstitutional cruel and
unusual punishment under our State Constitution. See id. at ___ (slip op. at 51)
(explaining the constitutional "problem" presented by imposing the mandatory
sentences for murder under N.J.S.A. 2C:11-3 on a juvenile is addressed by
"[a]llowing minors a later opportunity to show they have matured, to present
evidence of their rehabilitation, and to try to prove they are fit to reenter
society").
Defendant has been in custody since November 11, 1992. With jail credits
awarded at sentencing in 1994, and his subsequent incarceration in prison, he
has served almost thirty-years.3 Regardless of whether his sentence constitutes
2
The trial court is also required to consider "[a] defendant's behavior in prison
since the time of the offense," "evidence of any rehabilitative efforts since the
time a defendant was last sentenced," and any "additional evidence relevant to
sentencing." Id. at ___ (slip op. at 53-54).
3
Defendant's judgment of conviction states he was arrested on November 11,
1992, and remained incarcerated through sentencing in 1994, after which he was
transferred to prison. He was awarded 472 days of jail credit. The New Jersey
A-1547-19
10
the practical equivalent of a life sentence without parole under the Zuber
standard, his sentence does not withstand scrutiny under our state constitution
unless he is afforded a review of his sentence in accordance with the procedural
and substantive requirements established by the Court in Comer. Ibid. ; see also
Thomas, ___ N.J. Super. at ___ (slip op. at 41) (finding the "defendant, who was
sentenced of life in prison without a specified period of parole ineligibility and
has been incarcerated for forty years for crimes committed when a juvenile . . .
is entitled to the same type of hearing adopted in Comer"). We therefore vacate
the court's order and remand for an evidentiary hearing and a review of
defendant's sentence in accordance with Comer's requirements.
On remand, defendant shall be permitted to amend his motion for a review
of his sentence, and the court shall conduct such proceedings as it deems
appropriate to complete the hearing and render its decision. We do not offer an
opinion on the merits of defendant's motion, and nothing in this opinion shall be
Department of Corrections' website lists defendant's current parole eligibility
date as October 17, 2027. Directions for Accessing Inmate Information, New
Jersey Department of Corrections,
https://www.state.nj.us/corrections/pages/index.shtml (click "Offender
Information" drop down box; then select "Offender Search Engine" option, then
search defendant's name "Jermaine Bryant").
A-1547-19
11
construed as limiting the arguments and evidence the parties may submit in
support of their respective positions on remand.4
Vacated and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
4
The court did not address or decide the substantive arguments made in support
of defendant's motion, other than to determine he was not entitled to
reconsideration of his sentence because it did not constitute the practical
equivalent of life without parole. Nothing in this opinion should be construed
as limiting defendant's ability on remand to reprise any of the substantive
arguments supporting his motion for reconsideration and modification of his
sentence.
A-1547-19
12