Opinion
DOCKET NO. A-0679-13T2
01-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WALIF SMITH, Defendant-Appellant.
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief). Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa, and Rothstadt. On appeal from 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; Mr. Smith, of counsel and on the brief). Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant Walif Smith appeals from an August 21, 2013 order denying his post-conviction motion to vacate his 1994 sentence of life in prison subject to a thirty-year parole disqualifier. He claims his sentence is illegal, as it violates the Eighth Amendment to the United States Constitution. Defendant argues the sentencing judge failed to conduct a proportionality analysis, as required by the United States Supreme Court in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). He contends Miller, which held that mandatory sentences of life without parole for juvenile offenders violate the Eighth Amendment, id. at ___, 132 S. Ct. at 2460, 183 L. Ed. 2d at 414-15, retroactively renders his sentence unconstitutional. We disagree and affirm.
Following waiver of the Family Part's jurisdiction pursuant to N.J.S.A. 2A:4A-26, defendant was indicted and charged with felony murder and related offenses for acts he committed in 1990, when he was fifteen years old. Defendant was tried before the Law Division and convicted by a jury. The sentencing judge merged all but one of the related offenses into the murder count and imposed a sentence of life imprisonment with a thirty-year period of parole ineligibility, and a concurrent term of four years on the remaining count.
Defendant appealed his conviction and sentence on direct appeal. We affirmed both, and the Supreme Court denied certification. State v. Smith, No. A-4621-94 (App. Div. February 18, 1997), certif. denied, 151 N.J. 72 (1997). He later filed a petition for post-conviction relief, which the trial court denied. We again affirmed, and the Court denied certification. State v. Smith, No. A-1651-07 (App. Div. January 2, 2009), certif. denied, 199 N.J. 132 (2009).
The facts underlying defendant's conviction and sentence are detailed in our two earlier opinions and need not be repeated for purposes of deciding defendant's present appeal.
On March 4, 2013, defendant filed a pro se petition with the Law Division seeking to vacate his sentence, which he alleged was unconstitutional. Citing Miller, defendant argued "it [wa]s a violation of the Eighth Amendment to sentence a juvenile to life in prison without the possibility of parole." He maintained Miller retroactively changed the law governing mandatory sentences of life without parole for juvenile offenders, and requires sentencing courts to engage in a proportionality analysis, "considering the defendant's youth and . . . assessing whether the law's harshest term of imprisonment proportionately punishes the juvenile defendant." Specifically, he argued the sentencing court did not adequately account for his "less developed brain and lack of maturity" when imposing his life sentence.
The motion judge characterized defendant's petition as a "motion to correct an illegal sentence."
Judge Alfonse J. Cifelli, J.S.C., held oral arguments on June 27, 2013. At the hearing, defense counsel argued Miller rendered the statute pursuant to which defendant was sentenced, N.J.S.A. 2C:11-3(b), unconstitutional because it imposed a mandatory sentence and "t[ook] away the court's power to individualize or tailor a 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.
The relevant portion of the statute states:
Murder is a crime of the first degree but a person convicted of murder shall be sentenced . . . by the court to a term of 30 years, during which the person shall not be eligible for parole, or be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole.
[L. 1985, c. 478, § 1 (current version at N.J.S.A. 2C:11-3(b)(1)).]
In opposition, the State argued Miller does not apply to defendant's sentence and should not be applied retroactively because it establishes a new procedural, rather than substantive, rule of law. The State conceded the sentencing judge was not clear in her consideration of factors specific to defendant and his offense. However, the State maintained that "the sentencing record, . . . facts and circumstances of this crime, . . . [and] mitigating factors and aggravating factors," demonstrated defendant's sentence was appropriate "given the totality of all the circumstances and despite the mandate in [Miller] that a juvenile . . . be given the benefit of a full consideration of . . . who he is and of what the crime was that he committed because of his age."
On August 21, 2013, Judge Cifelli entered an order, accompanied by a written decision, denying defendant's petition. He found Miller inapplicable because "defendant 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 judge explained that the statute's sentencing requirements did not give rise to the concerns addressed in Miller, stating:
Essentially, there are two possible sentencing options for a juvenile convicted of murder under N.J.S.A. 2C:11-3b(1). Option 1 is a term of thirty (30) years during which the defendant will not be eligible for parole. Option 2 is a specific
term of years between thirty (30) years and life[,] of which the defendant will serve thirty (30) years before parole eligibility.
Unlike Miller wherein the two statutes under scrutiny mandated life-without-parole sentences, here, [the sentencing judge] had the discretion to sentence the defendant to either (1) thirty (30) years with thirty (30) years of parole ineligibility; or (2) to a specific term of years, between thirty (30) and life, with thirty (30) years of parole ineligibility. She was not statutorily mandated, nor did she impose, a sentence of "life-without-parole" on [defendant]. . . .
The relevant part of Miller for purposes of this application is its instruction on sentencing procedure. Miller requires a certain process that considers the juvenile offender's youth, attendant characteristics, and nature of the crime in sentencing defendants. Here, in compliance with Miller, the [sentencing judge] appropriately balanced and weighed the aggravating and mitigating factors pertaining to the defendant, including his youth. As clearly noted on the record, [the judge] did consider defendant's age as well stating[:] "Because of your age I will note on the Judgment of Conviction your age, but it's up to the Commissioner of Corrections in the jurisdiction of the Department of Corrections to decide what facility you will be housed in." She found aggravating factors (1) nature and circumstances of crime — [a] 79 year old woman . . . was killed by defendant with [a] gun during the course of a robbery . . . , (3) the risk that the defendant will commit another offense, (6) the extent of defendant's prior criminal record, and (9) the need for deterring the defendant and others from violating the law.
. . . There was discretion exercised by the sentencing judge, as she could have sentenced the defendant to anything between thirty (30) years and life with a parole ineligibility of thirty (30) years. No mandatory life-without-parole sentence was even considered. . . . [D]efendant did not receive the "harshest possible sentence" as indicated by the defense; he received life with thirty (30) years. The harshest possible sentence is life-without-parole.
It is also important to note that the defendant's conviction was previously reviewed on direct appeal and found by the Appellate Division that his sentence was not excessive or unsupported by a proper weighing of "aggravating" and "mitigating factors."
Accordingly, Judge Cifelli found defendant's sentence was "grounded in competent, reasonably credible evidence," and concluded it did "not shock the judicial conscience."
This appeal followed.
On appeal, defendant's counsel presents the same constitutional argument raised before the motion judge, stating:
THE DEFENDANT'S SENTENCE OF LIFE IMPRISONMENT WITH A 30-YEAR PAROLE DISQUALIFIER, IMPOSED UPON HIM FOR A CRIME COMMITTED WHILE A JUVENILE, VIOLATED THE EIGHTH AMENDMENT BECAUSE IT WAS IMPOSED BASED UPON A MISTAKE OF LAW, WITHOUT ANY PROPORTIONALITY ANALYSIS.In a supplemental pro se brief, defendant presents these additional issues:
POINT [I]
MANDATORY SENTENCES UNCONSTITUTIONALLY DEPRIVE JUVENILES OF ANY CONSIDERATION OF THE RELEVANT CHARACTERISTICS OF YOUTH.
POINT [II]
MANDATORY SENTENCES FOR JUVENILES IMPERMISSIBLY PREVENT THE TRIAL COURT FROM FULFILLING ITS CONSTITUTIONAL REVIEW FUNCTION.
POINT III
MANDATORY SENTENCES FOR JUVENILES IMPERMISSIBLY UNDERMINE THE RELIABILITY OF THE SENTENCE AS IT RELATES TO DEFENDANT[]'S MORAL CULPABILITY AND POTENTIAL FOR MATURITY AND REFORM.
POINT IV
JUVENILES' DECISION-MAKING AND RISK-ASSESSMENT ARE LESS DEVELOPED THAN ADULTS'.
POINT V
JUVENILES ARE PARTICULARLY VULNERABLE TO NEGATIVE INFLUENCES AND OUTSIDE PRESSURES.
POINT VI
EXCESSIVE JUVENILE SENTENCES FOR FELONY MURDER SERVE NO PENOLOGICAL [sic] PURPOSE.
POINT VII
THE JUVENILE SENTENCE IMPOSED ON APPELLANT IS UNCONSTITUTIONALLY DISPROPORTIONATE
POINT VIII
THE EIGHTH AMENDMENT REQUIRES THAT SENTENCES BE PROPORTIONATE.
POINT IX
THE EIGHTH AMENDMENT REQUIRES A SEPARATE ANALYSIS FOR JUVENILE OFFENDERS PROPORTIONALITY.
POINT X
THE TRIAL COURT VIOLATED DUE PROCESS IN NOT GIVING APPELLANT SMITH THE RIGHT TO BE HEARD.
We have considered defendant's arguments in light of our review of the record and applicable legal principles. We find his arguments to be without merit and affirm for the reasons expressed by Judge Cifelli in his thorough and well-reasoned written decision. We add only the following comment.
The Eighth Amendment, applicable to the states through the Fourteenth Amendment, prohibits cruel and unusual punishment and "guarantees individuals the right not to be subjected to excessive sanctions." Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 1190, 161 L. Ed. 2d 1, 15-16 (2005). New Jersey's analog similarly declares that "cruel and unusual punishments shall not be inflicted." N.J. Const. art. I, ¶ 12.
In Miller, the Supreme Court held the mandatory sentences of life without the possibility of parole "for those under the age of 18 at the time of their crimes violate[] the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Miller, supra, ___ U.S. at ___, 132 S. Ct. at 2460, 183 L. Ed. 2d at 414-15. The Court's decision did not, however, 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. See id. at ___, 132 S. Ct. at 2464-68, 183 L. Ed. 2d at 419-23 (focusing on the unique nature of life sentences in the context of juvenile offenders and their greater capacity for rehabilitation); see also State v. Pratt, 226 N.J. Super. 307, 326 (App. Div.) ("[W]e find no constitutional impediment barring imposition of [a] mandatory 30-year sentence on juveniles whose cases have been waived to the adult court and who have been found guilty of murder."), certif. denied, 114 N.J. 314 (1988).
The Court declined to announce "a categorical bar on life without parole for juveniles," requiring only that the decision whether to sentence a juvenile convicted of a homicide offense to life without parole be left to the discretion of the sentencing judge. Miller, supra, ___ U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. The Court previously held the Eighth Amendment categorically prohibits sentences of life-without-parole for juveniles convicted of non-homicide offenses, regardless of whether the imposition is mandatory or discretionary. Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). --------
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.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION