STATE OF NEW JERSEY VS. DARIEN WESTONÂ (08-01-0209, 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NOT FOR PUBLICATION WITHOUT THE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-3182-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARIEN WESTON,
Defendant-Appellant.
________________________________
Submitted October 12, 2017 – Decided November 27, 2017
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 08-
01-0209.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Brian Uzdavinis,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
We vacate the sentence imposed on defendant Darien Weston,
and remand for a new sentence hearing to be conducted pursuant to
State v. Zuber, 227 N.J. 422 (2017). In order to comply with the
mandates of Zuber, the trial judge will also have to more closely
adhere to the mandates of State v. Yarbough, 100 N.J. 627 (1985).
The horrific details of defendant's murder of the victim, and
the fear and consequences inflicted on eyewitnesses to the crime,
need not be recounted here in detail. Our Supreme Court has
already done so. See State v. Weston, 222 N.J. 280-82 (2015).
For our purposes, it suffices to explain that during a carjacking,
defendant forced the driver into a dumpster and shot him while he
wept. The event, from start to finish, took some ten to fifteen
minutes and was witnessed by bystanders, including children, who
were outside enjoying the summer evening. Defendant committed the
crime when he was seventeen and a half years old, and was waived
to adult court.
The Court remanded the matter to our court for consideration
of certain issues we did not previously address. Weston, supra,
222 N.J. at 279-80. On remand, we affirmed the convictions on the
issues not previously discussed, but sent the matter back to the
trial judge for resentencing. State v. Weston, No. A-2396-09,
(App. Div. November 9, 2015) (slip op. at 19). We specifically
instructed the court to not only correct an illegal sentence
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imposed on a fourth-degree tampering conviction, but also directed
the court to re-examine and explain its decision to impose
consecutive versus concurrent terms.
We noted that the judge had mistakenly concluded that
kidnapping, one of defendant's offenses, required a consecutive
sentence. Because of that error, we found that the judge should
revisit the Yarbough factors in resolving whether defendant's
sentence should be served consecutively or concurrently. Weston,
supra, No. A-2396-09 (slip op. at 17). Contrary to the trial
judge, we did not agree that as a general proposition that the
victim of a crime who is kidnapped solely to eliminate the
possibility of identification acts with a purpose distinct from
the objective of a killing committed for the same reason.
Additionally, the judge erroneously imposed a five-year prison
term on a fourth-degree crime. Id. at 18.
Having been sentenced after his second trial to an aggregate
of thirty-five years to be served consecutive to a life term based
on errors of law, defendant was nonetheless again sentenced by the
trial judge on remand to virtually the same terms. Defendant
received a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, life
sentence on the first-degree murder conviction, N.J.S.A. 2C:11-
3a(1) and (2) (count one), to be served consecutive to a thirty-
year custodial sentence on the first-degree kidnapping, N.J.S.A.
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2C:13-1b(1), (2) (count five), also subject to NERA, and a five-
year term of imprisonment imposed on the third-degree terroristic
threats conviction, N.J.S.A. 2C:12-3a (count seven). The judge
merged the first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count
six) and second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 39-4a (count three). The judge further imposed
five-year terms of imprisonment for the third-degree offenses of
possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count
two), hindering apprehension, N.J.S.A. 2C:29-3b(1) (count nine),
and an eighteen-month term on a fourth-degree tampering with
evidence, N.J.S.A. 2C:28-6(a) (count eight). On the first-degree
carjacking, N.J.S.A. 2C:15-2a(1)-(4) (count four), defendant was
sentenced to a thirty-year term to be served concurrently to counts
1, 2, 5, 7, 8, and 9. Thus, despite the language of our remand,
which directed the judge to more closely consider Yarbough in
relation to the kidnapping and murder, the judge imposed a similar
110-year aggregate sentence, subject to the same NERA eighty-nine
years of parole ineligibility.
In other words, not calculating credit for time served, this
defendant, who by 2016 was twenty-six years old, would not be
eligible for parole for approximately eighty-nine years. This is,
obviously, effectively a life sentence.
On appeal, defendant raises the following points:
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POINT ONE
BECAUSE WESTON WAS SEVENTEEN YEARS OLD AT THE
TIME OF THE OFFENSE, THE DE FACTO LIFE-
WITHOUT-PAROLE SENTENCE THAT HE RECEIVED
VIOLATED THE PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENT UNDER BOTH THE STATE AND
FEDERAL CONSTITUTIONS.
A. WESTON RECEIVED A DE FACTO LIFE-
WITHOUT PAROLE SENTENCE BASED ON THE
STANDARD ESTABLISHED BY THIS COURT IN
STATE V. ZUBER.
B. THE IMPOSITION OF A DE FACTO LIFE-
WITHOUT-PAROLE SENTENCE ON A JUVENILE
OFFENDER VIOLATES THE PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENT
UNDER THE STATE AND FEDERAL
CONSTITUTIONS.
C. WESTON'S DE FACTO LIFE-WITHOUT-PAROLE
SENTENCE VIOLATES THE EIGHTH AMENDMENT
BECAUSE THE SENTENCING COURT FAILED TO
GIVE CONSIDERATION TO THE YOUTH FACTORS
SET FORTH IN MILLER V. ALABAMA.
POINT TWO
THE TRIAL JUDGE ERRED IN IMPOSING CONSECUTIVE
SENTENCES CONTRARY TO STATE V. YARBOUGH, AND
THIS COURT'S OPINION REMANDING THIS MATTER FOR
RESENTENCING.
We begin and end our consideration of defendant's appeal with
our discussion regarding the impact on defendant's sentence
resulting from Zuber. In Zuber, the trial court sentenced a
juvenile defendant to an aggregate 110 year sentence with 55 years
of parole ineligibility. Supra, 227 N.J. at 428. The sentence
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was vacated because the Court followed the dictates of Miller v.
Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
In Miller, two juvenile offenders were subjected to "the practical
equivalent of life without parole[,]" and subjected to "multiple
term-of-years sentences that, in all likelihood, will keep him in
jail for the rest of his life." Zuber, supra, 227 N.J., at 446-
47. In its discussion, the Court noted that life-without-parole
sentences, other than capital sentences, are the most harsh
permitted by law. Id. at 442 (citation omitted). It also observes
that a juvenile will "serve more years and a greater percentage
of his life in prison than an adult offender. A 16-year-old and
a 75-year-old each sentenced to life without parole receive the
same punishment in name only. This reality cannot be ignored."
Ibid. (quoting Graham v. Florida, 560 U.S. 48, 70-71, 130 S. Ct.
2011, 2028, 176 L. Ed. 2d 825, 843 (2010)).
In addition to that reality, that life without parole is
effectively a far greater sentence when imposed on a juvenile than
an adult, none of the traditional sentencing goals apply to life
without parole for a juvenile. Id. at 442 (citation omitted).
Retribution does not justify it. Deterrence fails as a
justification. Id. at 443. Incapacitation does not justify such
a sentence because it assumes that a juvenile will forever be a
danger to society. Ibid. Rehabilitation is not an appropriate
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consideration, because such defendants have no hope of re-entry
into society. Ibid. (citation omitted). The Court's discussion
included not only Graham, regarding punishment in non-homicide
cases, but Miller, applying the restriction to homicide cases.
Although the court did not "foreclose" a life-without-parole
sentence for juveniles convicted of murder, those same
considerations, known as the Miller factors, must be taken into
account before such a sentence is imposed. Such sentences:
[1] Preclude[] consideration of [a
juvenile's] chronological age and its hallmark
features - among them, immaturity,
impetuosity, and failure to appreciate risks
and consequences.
[2] [] prevent[] taking into account the
family and home environment that surrounds [a
juvenile] - and from which he cannot usually
extricate himself - no matter how brutal or
dysfunctional.
[3] [] neglect[] the circumstances of the
homicide offense, including the extent of his
participation in the conduct and the way
familial and peer pressures may have affected
him.
[4] [] ignore[] that [the juvenile] might
have been charged and convicted of a lesser
offense if not for incompetencies associated
with youth - for example, his inability to
deal with police officers or prosecutors
(including on a plea agreement) or his
incapacity to assist his own attorneys.
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[5] . . . disregard[] the possibility of
rehabilitation even when the circumstances
most suggest it.
[Id. at 445 (citing Miller, supra, 567 U.S.
at 477, 132 S. Ct. at 2468, 183 L. Ed. 2d at
423.)]
It is noteworthy that the sentences imposed in Zuber were a
minimum of fifty-five years imprisonment for Zuber and sixty-eight
years and three months for the other defendant whose case was
decided that same day. Id. at 448. Those minimums were less than
imposed on this defendant. They were vacated by the Court.
The theoretical underpinning for Zuber is that to impose a
life-without-parole sentence upon a juvenile conflicts with the
prohibition against cruel and unusual punishment, embodied in the
Eighth Amendment to the United States Constitution. The limits
enunciated in Zuber are intended to keep sentences imposed on
juveniles at least in line with those imposed upon adults.
In instructing how these guidelines are to be implemented,
our Court combined the familiar Yarbough factors with the Miller
factors. Id. at 449-50. In the Zuber cases, the defendants had
the possibility of release when they were in their seventies and
eighties. Id. at 449. Here, the sentence imposed upon defendant,
realistically, means that he will never be released. Release
would not occur until he was more than 100 years old. Clearly,
the sentence in this case implicates the principles enunciated in
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Graham and Miller, and is controlled by Zuber. The trial judge
must reconsider his sentencing calculus.
As Zuber mandates, the sentencing judge must weigh the Miller
factors. See Zuber, supra, 227 N.J. at 453. He must apply those
factors to determine not only the length of the sentence, but the
question of whether the sentences should be served consecutively.
Additionally, the trial judge in resentencing this defendant
must take into account any rehabilitative efforts defendant may
have engaged in since his original sentence, and sentence the
person who stands before him at the time of the new sentence
proceeding. Ibid. (citing State v. Randolph, 210 N.J. 330, 354
(2012)).
Reversed and remanded.
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