Opinion
DOCKET NO. A-3472-13T4
02-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEXTER TYSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 85-06-2616. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dexter Tyson appeals from an October 10, 2013 Law Division order denying his motion for a change in sentence pursuant to Rule 3:21-10(b)(5). We affirm.
Defendant, along with two other individuals, robbed and murdered a man at a bus stop in Newark on the evening of March 15, 1985. Although defendant was seventeen-years-old at the time, he was tried as an adult following his arrest. A jury convicted him of felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1; 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).
For the felony murder conviction, defendant was sentenced to life imprisonment with thirty years of parole ineligibility. Defendant also received a concurrent ten-year sentence for the second-degree weapons conviction, while his remaining two convictions were merged as lesser-included offenses. We affirmed defendant's conviction and sentence on direct appeal, State v. Tyson, No. A-3844-85 (App. Div. Aug. 25, 1988), and our Supreme Court denied defendant's petition for certification, State v. Tyson, 114 N.J. 497 (1989).
During his incarceration, from the period of 1992 through 2006, defendant filed four separate petitions for post-conviction relief (PCR) in state court, and three petitions for habeas corpus in federal court. All seven petitions were denied, and all seven denials were affirmed on appeal.
Thereafter, defendant filed a motion in the Law Division for reduction or change of sentence, pursuant to Rule 3:21-10(b)(5). He argued that his sentence was unconstitutional under the United States Supreme Court holding in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). On October 10, 2013, Judge Alfonse J. Cifelli issued an order and accompanying opinion denying defendant's motion. In addition to noting that defendant's motion was time-barred, pursuant to Rule 3:21-10(3), Judge Cifelli concluded that defendant's sentence did not violate the Eighth Amendment standard established in Miller.
This appeal followed. Defendant submits the following arguments for our consideration:
POINT I
DEFENDANT'S DE FACTO SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE FOR CRIMES HE COMMITTED AS A JUVENILE IS CRUEL AND UNUSUAL PUNISHMENT UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS. U.S. CONST. AMEND. VIII, XIV; N.J. CONST. ART. I, ¶¶ 1, 12.
POINT II
ALTERNATIVELY, THIS MATTER MUST BE REMANDED FOR A NEW SENTENCING HEARING AT WHICH THE COURT MUST "TAKE INTO ACCOUNT HOW CHILDREN ARE DIFFERENT, AND HOW THOSE DIFFERENCES COUNSEL AGAINST IRREVOCABLY SENTENCING THEM TO A LIFETIME IN PRISON." MILLER V. ALABAMA, 132 S. CT. 2455, 2468-69 [(2012)].
Based on our review of the record and applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm the denial of defendant's motion, substantially for the reasons expressed in Judge Cifelli's cogent written opinion. We add the following comments regarding defendant's reliance on Miller.
In Miller, supra, the United States Supreme Court held that a mandatory life sentence without the possibility of parole, as applied to a juvenile homicide offender, violates the Eighth Amendment's prohibition on cruel and unusual punishment. ___ U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. Defendant's sentence is clearly distinguishable from the sentence in Miller because it does not involve a mandatory life sentence without parole. Rather, defendant was eligible for parole after serving thirty years of his life sentence. Nothing in Miller prohibits the imposition of a thirty-year period of parole ineligibility. Defendant's contention that his sentence is a de facto sentence of life imprisonment without the possibility of parole is not supported by our case law. See State v. Zuber, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 2-3).
We note that the United States Supreme Court has recently addressed the issue of whether Miller applies retroactively, concluding that it does. Montgomery v. Louisiana, No. 14-280, 2016 U.S. LEXIS 862, at *34 (U.S. Jan. 25, 2016). However, nothing in Montgomery provides support for defendant's position on this appeal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION