Opinion
DOCKET NO. A-5469-12T3
06-03-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUAN SALAS, Defendant-Appellant.
Juan Salas, appellant pro se. Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-06-2075. Juan Salas, appellant pro se. Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a June 24, 2013 order denying his third petition for post-conviction relief (PCR). Defendant argues primarily that his sentence is unconstitutional pursuant to Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). We disagree and affirm.
Defendant and several other individuals discharged firearms at individuals that they deemed were in their "territory," resulting in two deaths and one injury. Defendant was seventeen at the time of the shooting.
A grand jury charged defendant and two other individuals with two counts of first-degree murder, N.J.S.A. 2C:11-3a(1),(2) (Counts One and Two); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1),(2) (Count Three); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 (Count Four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Five); third-degree unlawful possession of weapons, N.J.S.A. 2C:39-5b (Count Six); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:39-3b(1) (Count Eight); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (Count Nine).
A jury found defendant guilty on Counts One, Two, Three, Four, Five, Six and Eight. The judge then denied defendant's motion for a new trial, merged Count Five with Counts One, Two, and Three, and sentenced defendant to forty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 on Count One, a consecutive thirty-year prison term with a mandatory thirty-year parole ineligibility period pursuant to N.J.S.A. 2C:11-3b(1) on Count Two, two concurrent fifteen-year prison terms subject to NERA on Counts Three and Four, two concurrent five-year prison terms for Counts Six and Eight, and five years of parole supervision upon release pursuant to NERA.
The judge granted defendant's motion to dismiss Count Nine during the trial.
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Defendant appealed from his convictions, arguing primarily that his rights to due process and a fair trial were violated, and that his sentence was excessive. We affirmed his convictions in an unpublished opinion. State v. Salas, No. A-5553-04 (App. Div. July 3, 2007). Defendant then filed his first PCR petition, which was denied without an evidentiary hearing. Defendant appealed and we affirmed. State v. Salas, No. A-5185-08 (App. Div. Jan. 24, 2011), certif. denied, 207 N.J. 189 (2011). Defendant filed a second PCR petition, which was dismissed as untimely. Defendant then filed this PCR petition which the judge denied.
On appeal, defendant argues:
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 THE 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 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 SALAS THE RIGHT TO BE HEARD.
After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following remarks.
The Eighth Amendment to the United States Constitution 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, 16 (2005). New Jersey's analog to the Eighth Amendment similarly declares that "cruel and unusual punishments shall not be inflicted." N.J. Const. art. I, ¶ 12. Under both the Eighth Amendment and Article I, Paragraph 12, there is "no constitutional impediment barring imposition of the mandatory [thirty]-year sentence on juveniles whose cases have been waived to the adult court and who have been found guilty of murder." State v. Pratt, 226 N.J. Super. 307, 326 (App. Div.), certif. denied, 114 N.J. 314 (1988).
Here, the judge denied defendant's PCR petition because defendant's
claim that, similarly to the defendants in Miller, supra, [defendant] (having been [seventeen] years of age at the time of [his] crime) received an unconstitutional sentence is factually in error. In Miller, the cases at issue involved two minors facing life without the possibility of parole after being tried as adults. Here, although [defendant was] under the age of eighteen at the time of [his] crime, [his] sentence, as indicated above, included a period of parole eligibility. Furthermore, the sentence imposed on [him], although aggregate, was not a sentence of life imprisonment. Therefore, the category of sentence proscribed by Miller is not applicable in [this] case.
[(Citations omitted).]
We agree that Miller is distinguishable. In Miller, the United States Supreme Court held that a mandatory life sentence without the possibility of parole for those under the age of eighteen at the time of their offense violates the Eighth Amendment's prohibition on cruel and unusual punishments. Miller, supra, ___ U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. Defendant did not receive such a sentence and faces an aggregate of seventy-years in prison with parole eligibility after sixty-four years — not a mandatory life sentence.
We also note that Miller only addressed those sentences, unlike here, where the youth of the offender was not considered at sentencing, and the Court rejected a "categorical bar on life without parole for juveniles." Ibid. Contrary to defendant's contentions, the judge did consider defendant's youth at sentencing. The judge noted that defendant had already incurred an extensive juvenile record and addressed mitigating factor thirteen, N.J.S.A. 2C:44-1b(13), which requires the sentencing court to consider whether "[t]he conduct of a youthful defendant was substantially influenced by another person more mature than the defendant." The judge declined to find this mitigating factor because "defendant and his contemporaries in age were the ones who committed this offense."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION