Opinion
DOCKET NO. A-4582-13T2
03-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE HERD, Defendant-Appellant.
Andre Herd, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-02-0582. Andre Herd, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Andre Herd was seventeen years old in November of 1985 when he was arrested and charged as a juvenile with two counts of conspiracy to commit felony murder and related charges. In response to the State's motion, the Family Part waived jurisdiction to permit defendant to be tried as an adult in the Law Division, Criminal Part.
Defendant was thereafter tried before a jury in 1986 and convicted of conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; first degree armed robbery, N.J.S.A. 2C:15-1; third degree possession of a firearm, N.J.S.A. 2C:39-5(b); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of felony murder, N.J.S.A. 2C:11-3(a). After merging the relevant offenses, the court imposed two consecutive life sentences with thirty years of parole ineligibility on the two felony murder convictions. We affirmed defendant's conviction on direct appeal, but vacated the sentence and remanded for the court to resentence defendant in accordance with the guidelines established by the Supreme Court in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We specifically retained jurisdiction to review the sentence imposed by the trial court on remand.
On September 23, 1988, the trial court followed our instructions and resentenced defendant. The sentencing judge followed the guidelines established in Yarbough to explain the reasons for imposing consecutive sentences on the two felony murder convictions. We thus upheld "the sentences imposed substantially for the reasons stated by the sentencing court." State v. Andre Herd, Docket No. A-1643-86 (App. Div. January 10, 1989), slip op. at 3. The Supreme Court denied defendant's petition for certification. State v. Herd, 117 N.J. 56 (1989).
Defendant thereafter filed his first post-conviction relief (PCR) petition, which was denied by the trial court on November 12, 1993. We upheld the trial court's decision to deny defendant's PCR. State v. Andre Herd, Docket No. A-5312-93 (App. Div. February 8, 1996). The Supreme Court denied defendant's petition for certification. State v. Herd, 144 N.J. 587 (1996). Sometime before July 1998, defendant filed a motion in the Law Division, Criminal Part, seeking the production of records allegedly showing that certain criminal charges pending against witnesses who testified for the State in defendant's trial were administratively dismissed. By letter dated July 9, 1998, Judge Benjamin Cohen denied defendant's request because it was untimely, lacked a factual basis, and involved a matter that was previously litigated in defendant's trial. By order dated October 31, 2000, this court dismissed defendant's appeal of Judge Cohen's decision sua sponte, based on defendant's failure to file a timely brief. See R. 2:9-9.
State v. Andre Herd, Docket No. A-2576-99 (App. Div. October 31, 2000). The appellate record also includes an order dated June 5, 2000, that imposed the same sanction.
In its brief in the appeal before us now, the State also noted defendant filed a petition for habeas corpus relief in the United States District Court, which was dismissed with prejudice as untimely and denied a certificate of appealability. The State also stated the Federal District Court denied defendant's motion seeking additional time to challenge the court's decision before the Third Circuit Court of Appeals. Although the State has provided the docket number of this federal action, the appellate record before us does not include copies of these orders or of defendant's petition for habeas corpus relief.
The subject of the appeal that is now before us concerns a "petition to dismiss" filed by defendant pro se, based on the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), which held that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment's prohibition on "cruel and unusual punishments." Id. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. By letter-opinion dated January 14, 2014, the trial court judge who reviewed defendant's petition denied his request for relief. The judge found defendant's petition was procedurally barred by Rule 3:22-5, because this court had expressly reviewed and upheld defendant's sentence on direct appeal. Independent of this procedural impediment, the judge found defendant's sentence was consistent with the provisions of New Jersey's Penal Code, as construed by our Supreme Court in State v. Roth, 95 N.J. 334 (1984).
Finally, the judge also distinguished the Court's holding in Miller, by noting that the Eighth Amendment violation occurs when a juvenile is sentenced to life without the possibility of parole. Here, defendant received two consecutive life sentences, subject to an aggregate 60-year period of parole ineligibility. Thus, defendant's sentence does not deny him the possibility of parole. According to the judge, the sentencing scheme the Supreme Court found constitutionally impermissible in Miller mandated juveniles "to die in prison," even if a judge believed a more lenient sentence was justified under the facts of the case. By contrast, our State's sentencing guidelines as explained by our Supreme Court in Yarbough requires the judge to engage in a fact-sensitive analysis and weigh relevant aggravating and mitigating factors in N.J.S.A. 2C:44-1 to justify the imposition of consecutive sentences. In short, defendant did not receive a mandatory life sentence without parole.
Defendant now appeals raising the following arguments:
POINT I
THE MOVANT'S - APPELLANT'S JUVENILE DEFACTO LIFE WITHOUT PAROLE SENTENCE IS
UNCONSTITUTIONAL PURSUANT TO THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND MILLER V. ALABAMA, 132 S. Ct. 2455 (2012), AND AS APPLIED RETROACTIVELY BY BOUSELY V. UNITED STATES, 118 S. Ct. 1604, 1610 (1998); FURMAN V. GEORGIA, 92 S. Ct. 2726; SCHIRO V. SUMMERLIN, 124 S. Ct. 2519, 2522, 2523; SAFLE V. PARKS, 110 S. Ct. 1257 (1990); ROBINSON V. NEIL, 93 S. Ct. 876, 878 (1973). THEREFORE IS AN ILLEGAL SENTENCE.
A. THE EIGHTH AMENDMENT REQUIRES A SEPARATE ANALYSIS FOR JUVENILE OFFENDERS PROPORTIONALITY.
B. THE COURTS MUST TAKE INTO CONSIDERATION THAT MOVANT WAS UNDER THE INFLUENCE OF AN ADULT WHICH REDUCED HIS CULPABILITY.
C. THE SENTENCE WAS OFFENSE BASED AND NOT OFFENDER BASED AS ENVISIONED IN MILLER.
D. MANDATORY SENTENCES UNCONSTITUTIONALLY DEPRIVE JUVENILES OF ANY CONSIDERATION OF THE RELEVANT CHARACTERISTICS OF YOUTH.
E. MANDATORY SENTENCES FOR JUVENILES IMPERMISSIBLY UNDERMINES THE RELIABILITY OF THE SENTENCE AS IT RELATES TO DEFENDANTS MORAL CULPABILITY AND POTENTIAL FOR MATURITY AND REFORM.
F. JUVENILES ARE PARTICULARLY VULNERABLE TO NEGATIVE INFLUENCES AND OUTSIDE PRESSURES.
G. THE MOVANT, ANDRE HERD TODAY IS NOT THE SAME ANDRE HERD THAT HE WAS WHEN HE WAS 17 YEARS OLD WHEN THE OFFENSE OCCURRED.
We reject these argument and affirm. Our sentencing scheme under Title 2C does not contain an inflexible mandate directing the sentencing judge to impose a life sentence without the possibility of parole to a juvenile convicted of conspiracy to commit felony murder. It was this inflexibility the Supreme Court found unconstitutional as a violation of the Eighth Amendment in Miller, supra, U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. We recognize the Law Division, Criminal Part, denied defendant's application here before the Supreme Court decided Montgomery v. Louisiana, ___ U.S. ___, ___ S. Ct. ___, 193 L. Ed. 2d. 599 (2016), in which the Court held that the holding in Miller must be applied retroactively, including those cases in which the juvenile offender collaterally attacks the imposition of life without parole. Id. ___ U.S. at ___, ___ S. Ct. at ___, 193 L. Ed. 2d. at 622.
The Court in Montgomery explained that "[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." Ibid. Because the holding in Miller is not applicable to the facts of this case, we are not required to consider the applicability of this remedy. --------
The remaining arguments defendant has raised in this appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION