Opinion
DOCKET NO. A-4090-13T3
03-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES ZARATE, a/k/a NAVAJAS ZARATE, Defendant-Appellant.
Alyssa Aiello, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Aiello, of counsel and on the briefs). John McNamara, Jr., Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Mr. McNamara, Jr., on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-02-00262. Alyssa Aiello, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Aiello, of counsel and on the briefs). John McNamara, Jr., Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Mr. McNamara, Jr., on the briefs). PER CURIAM
Defendant James Zarate, also known as Navajas Zarate, returns to this court seeking relief from his life sentence following a January 2014 resentencing. The trial court conducted the resentencing on remand pursuant to the prior unpublished opinion we issued on direct appeal. See State v. James Zarate, No. A-0070-09 (App. Div. Aug. 27, 2012), certif. denied, 212 N.J. 460 (2012). For the reasons that follow, we remand for the trial court to reconsider its proportionality analysis in light of the United States Supreme Court's recent opinion in Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), with the benefit of life expectancy data showing that defendant is statistically likely to either die in prison or within only a year after his earliest parole eligibility date.
I.
As our prior opinion noted, defendant was tried as an adult and convicted by a jury in 2009 for murder and related offenses he committed in 2005. His conduct involved the fatal stabbing of a teenage victim who was defendant's classmate and with whom he had a long-standing dispute. The State's evidence showed that the victim was stabbed repeatedly, that her body was mutilated, and that defendant and others attempted to dispose of her remains in a footlocker that they planned to toss from a bridge into a waterway. Id. at 4-12.
At the time of the murder, defendant was fourteen years old, several days shy of his fifteenth birthday. In the initial sentencing, the trial court imposed for the murder a life sentence carrying a mandatory parole ineligibility period of 63.75 years pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, plus thirteen additional consecutive years corresponding to the related nonhomicide offenses.
Although our prior opinion rejected all of defendant's multiple claims of error concerning his conviction, id. at 13-33, we remanded the case for resentencing. Id. at 33-37. We did so because of the need to merge a weapons offense into the murder conviction and also because we perceived support in the record to have the trial court address the potential application of mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13) (whether "[t]he conduct of a youthful defendant was substantially influenced by another person more mature than the defendant").
At the ensuing January 2014 resentencing, the trial judge merged the weapons count as we directed. In addition, the judge concluded, after considerable reflection, that mitigating factor thirteen did not apply. The judge found that defendant's personal culpability for the murder, and the dismemberment and attempted concealment of the body of the minor victim, was not substantially influenced by his brother Jonathan, who was eighteen years old at the time of the crimes and who participated with defendant in those brutal and gruesome acts. Even so, in recognition of defendant's efforts toward rehabilitation since the time of his original sentence in 2009, the judge modified the sentences for the nonhomicide offenses to make them concurrent rather than consecutive. That modification removed thirteen years of additional custodial time after completion of the life sentence.
In a separate trial that preceded defendant's, a jury found his brother Jonathan guilty of murder and other offenses. The court sentenced Jonathan to life in prison, plus twenty-four consecutive years for additional offenses. We upheld Jonathan's convictions but remanded his case to vacate one of the consecutive sentences. See State v. Jonathan Zarate, No. A-3315-08 (App. Div. Jan. 27, 2012), certif. denied, 212 N.J. 431 (2012).
As a result of this chronology, defendant is now serving a life sentence in State prison with a 63.75-year NERA parole disqualifier. According to information from the Department of Corrections noted in the parties' briefs, defendant will not become eligible to be considered for parole until April 2069, at which time he would be seventy-eight years and eight months old if he lives that long. Defendant contends that this amounts to a de facto life-without-parole sentence.
In a supplemental brief defendant submitted at our request addressing our recent published opinion in State v. Zuber, 442 N.J. Super. 611 (App. Div. 2015), certif. granted, ___ N.J. ___ (2016), he points to life expectancy data indicating that he is statistically unlikely to live more than a year past his earliest parole eligibility date in April 2069. The State provides a slightly different statistical analysis, which it contends shows that a person of defendant's age, on average, will live to the age of eighty. The State contends that defendant's life sentence is not a de facto life sentence. The State argues, as a matter of law, that a sentence is not the constitutional equivalent of a "die in jail" sentence if life expectancy tables show that the defendant is expected to live at least some time, however short, past his earliest parole eligibility date.
Our own calculations differ. See Part III(C), infra.
Given the projected length of his life and the 63.75-year minimum parole ineligibility period mandated by NERA, defendant argues that his modified sentence is unconstitutional under both the Eighth Amendment of the United States Constitution as well as Article I, Paragraph 12 of the New Jersey Constitution. In that regard, he relies upon several opinions issued in recent years by the United States Supreme Court involving the Cruel and Unusual Punishment Clause of the Eighth Amendment.
In particular, defendant invokes principles set forth in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 825 (2010) (declaring unconstitutional sentences of life without parole for juveniles convicted of nonhomicide offenses); Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (disallowing life-without-parole sentences imposed on juveniles for homicide offenses except in "rare" situations, based upon a sentencing judge's discretionary decision-making that takes into account various factors specific to youthful offenders); and, most recently in January 2016, Montgomery, supra, ___ U.S. at ___, 136 S. Ct. at 718, 193 L. Ed. at 599 (declaring that Miller applies retroactively to juvenile sentences imposed before Miller, and further delineating the specific considerations that a sentencing judge must take into account in imposing a life-without-parole sentence upon a juvenile in a homicide case).
Defendant further contends that the 63.75-year parole ineligibility facet of his sentence violates the New Jersey Constitution because imposing such a sentence upon a fourteen-year-old offender is "disproportionately cruel" and is inconsistent with our State's sentencing scheme. Defendant further asserts that a recent change in the juvenile waiver statute effective March 1, 2016, N.J.S.A. 2A:4A-26.1(c)(1), prospectively disallowing the waiver to adult court of offenders under the age of fifteen, reflects a legislative and societal judgment that it is disproportionately cruel in our State to sentence juveniles under that age to a sentence above the thirty-year mandatory minimum for knowing or purposeful murder. See N.J.S.A. 2C:11-3(b)(1). He thus urges that we reduce his life sentence to a thirty-year term.
Defendant raises the following points in his main brief and reply brief, and in his supplemental brief submitted at our request addressing the recent opinions in Montgomery and Zuber:
POINT ONE
BECAUSE ZARATE WAS 14 YEARS OLD AT THE TIME OF THE OFFENSE, THE DE FACTO LIFE-WITHOUT-PAROLE SENTENCE THAT HE RECEIVED VIOLATED THE PROHIBITION AGAINST CRUEL AND UNSUAL PUNISHMENT UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS.
A. The Imposition Of A Life-Without-Parole Sentence On A Juvenile Offender Violates The Prohibition Against Cruel And Unusual Punishment Under The State And Federal Constitutions.
B. Zarate's De Facto Life-Without-Parole Sentence Violates The Eighth Amendment Because The Sentencing Court Failed To Give Meaningful Consideration To The Youth Factors Set Forth In Miller v. Alabama.
POINT TWO
A SENTENCE IMPOSED ON A JUVENILE HOMICIDE OFFENDER THAT IS LONGER THAN THE 30-YEAR MINIMUM MANDATORY REQUIRED UNDER N.J.S.A. 2C:11-3b(1) IS DISPROPORTIONATELY CRUEL, AND INCONSISTENT WITH THE SENTENCING SCHEME CREATED BY THE NEW JERSEY JUVENILE AND CRIMINAL CODES, PARTICULARLY WHERE THE
JUVENILE WAS 14 OR 15 AT THE TIME OF THE OFFENSE OR CONVICTED OF FELONY MURDER.
POINT THREE
UNDER NEW JERSEY LAW, ZARATE'S LIFE SENTENCE CANNOT STAND BECAUSE THE RESENTENCING COURT ERRONEOUSLY FOUND THAT MITIGATING FACTOR (13) DID NOT APPLY, AND FAILED TO CONSIDER ZARATE'S POST-OFFENSE ACCOMPLISHMENTS, AS REQUIRED UNDER STATE V. RANDOLPH AND STATE V. JAFFE.
A. The Trial Judge's Reasons For Rejecting Mitigating Factor (13) Were Not Supported By The Record.
B. The Court Erred In Failing To Consider Zarate's Post-Offense Rehabilitative Accomplishments In Weighing The Offender-Based Sentencing Factors.
POINT FOUR
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISQUALIFY [THE TRIAL JUDGE].
REPLY POINT ONE
[THE TRIAL COURT'S] SENTENCE DID NOT SATISFY THE MILLER REQUIREMENTS, AS THE STATE CONTENDS.
A. This Was Not The "Uncommon" Case In Which The "Hallmark Features" Of Youth, Including A Juvenile's Greater Capacity For Reform, Did Not Militate "Against Irrevocably Sentencing [A Juvenile] To A Lifetime In Prison."
B. [The Trial Judge] Did Not Sufficiently "Explain[] Why He Concluded Mitigating Factor 13 Was Entitled To No Operative Weight," As The State Contends.Having considered these arguments, we remand this matter for reconsideration in light of Montgomery, Zuber, and the recently-supplied life expectancy data.
SUPPLEMENTAL POINT ONE
THE IMPACT ON THIS APPEAL OF THIS COURT'S RECENT DISCUSSION IN STATE V. ZUBER.
A. The Impact Of State v. Zuber On Zarate's Claim That His Sentence Violates The Eighth Amendment.
B. The Impact Of State v. Zuber On Zarate's Claim That A Sentence In Excess Of The 30-Year Mandatory Minimum Violates Article I, Paragraph 12 Of The New Jersey Constitution.
SUPPLEMENTAL POINT TWO
THE IMPACT ON THIS APPEAL OF THE UNITED STATES SUPREME COURT'S RECENT DECISION IN MONTGOMERY V. LOUISIANA.
At oral argument on the appeal, defense counsel withdrew this particular argument in light of the Supreme Court's recent opinion in State v. Buckner, 223 N.J. 1 (2015) (upholding the constitutionality of Superior Court judges who are over the age of seventy serving on recall).
II.
The governing principles of law under the Eighth Amendment relating to juvenile sentencing have evolved considerably in United States Supreme Court precedents over the past few years, specifically in Graham, Miller, and Montgomery. We briefly discuss those opinions as a framework for our federal constitutional analysis.
In 2010, the Court held in Graham v. Florida, supra, 560 U.S. at 79, 130 S. Ct. at 2032-33, 176 L. Ed. 2d at 848, that the Eighth Amendment prohibits a juvenile offender to be sentenced to life in prison without parole for nonhomicide crimes. Graham was the first Supreme Court case to apply a categorical classification under the Eighth Amendment to a so-called "term-of-years" sentence. Id. at 61, 130 S. Ct. at 2022, 176 L. Ed. 2d at 837. The defendant in Graham was convicted of armed burglary and attempted armed robbery, crimes that he committed when he was sixteen years old. The trial court sentenced him to the maximum term on both crimes: life imprisonment for the armed burglary, and fifteen years for the attempted armed robbery. Id. at 57, 130 S. Ct. at 2020, 176 L. Ed. 2d at 834. Because the State of Florida had abolished its parole system, Graham's life sentence was, in effect, a mandatory life term. Id. at 57, 130 S. Ct. at 2020, 176 L. Ed. 2d at 834-35.
The Court held that Graham's sentence violated his Eighth Amendment constitutional protections because it
guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him
any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.In reaching its decision, the Court relied on what it depicted as emerging national consensus concerning the impropriety of imposing mandatory life terms upon juvenile nonhomicide offenders. Id. at 67, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841. Relying on its reasoning in an earlier case, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), the Court noted that juvenile offenders have a lessened moral culpability as compared to adult offenders, and that mandatory life imprisonment was particularly harsh on that category of offenders. Id. at 68, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841. Neither did such a sentence, the Court explained, serve any of the penological interests in retribution, deterrence, incapacitation, or rehabilitation. Id. at 71-74, 130 S. Ct. at 2028-30, 176 L. Ed. 2d at 843-45.
[Id. at 79, 130 S. Ct. at 2033, 176 L. Ed. 2d at 848 (emphasis added).]
The Court thus concluded in Graham that all mandatory life sentences for juvenile nonhomicide offenders are unconstitutional. The Court tempered that holding, however, explaining that:
A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.Graham did not provide specific guidance on what constitutes a "meaningful opportunity" for a juvenile offender to obtain release. Nor did it attempt to define how long a mandatory term of incarceration for a juvenile must be to trigger Eighth Amendment constraints.
[Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845-46 (emphasis added).]
Two years after Graham, the Court in Miller, supra, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424, extended these principles to the context of juveniles who are convicted of homicide offenses. Miller declared unconstitutional any codified sentencing scheme that mandates for juvenile homicide offenders a sentence of life in prison without the possibility of parole. Ibid.
Miller involved the consolidated appeals of two juveniles who were fourteen years old at the time of the commission of their respective homicide crimes. Id. at ___, 132 S. Ct. at 2460, 183 L. Ed. 2d at 414. Both were tried as adults and eventually sentenced to mandatory life terms. Ibid. Under the respective statutory schemes, the trial judges had no discretion to deviate from that maximum penalty. Ibid.
In considering these circumstances in Miller, the Court reaffirmed the reasoning it had set forth in Graham two years earlier. Id. at ___, 132 S. Ct. at 2464-69, 183 L. Ed. 2d at 418-24. The Court again noted the diminished culpability of juvenile offenders as compared to adult offenders. Ibid. Moreover, the Court explained that "none of what [Graham] said about children — about their distinctive (and transitory) mental traits and environmental vulnerabilities — is crime-specific[.] Graham's reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses." Id. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420. As the Court's majority opinion in Miller observed:
[T]he mandatory penalty schemes at issue here prevent the sentence from taking account of these central considerations. By removing youth from the balance — by subjecting a juvenile to the same life-without-parole sentence applicable to an adult — these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham's (and also Roper's) foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children.
[Id. at ___, 132 S. Ct. at 2466, 183 L. Ed. 2d at 420-21.]
Miller's holding differs from Graham in one critical respect that bears upon the present homicide case. Although Graham places a categorical prohibition against the imposition of mandatory life terms on juvenile nonhomicide offenders, Miller does no such thing for juvenile homicide offenders. Indeed, Miller permits the imposition of life-without-parole sentences on juvenile homicide offenders, so long as the sentencing judge was reposed with and appropriately exercised the discretion to consider factors such as the defendant's youth in reaching that sentence.
Earlier this year in Montgomery v. Louisiana, supra, ___ U.S. at ___, 136 S. Ct. at 734, 193 L. Ed. 2d at 619-20, the Supreme Court held that Miller's holding applies retroactively to cases of juvenile offenders whose convictions and sentences were final when Miller was decided in 2012. In addition to that retroactivity ruling, the Court also expounded further upon the principles it had expressed earlier in Graham and Miller.
The underlying facts in Montgomery involved a juvenile who murdered a deputy sheriff when he was seventeen years old. Id. at ___, 136 S. Ct. at 725, 193 L. Ed. 2d at 610. At the time of Montgomery's final conviction in 1970, "[t]he jury returned a verdict of 'guilty without capital punishment[,]'" which "required the trial court to impose a sentence of life without parole. Under Louisiana law . . . . [t]he sentence was automatic upon the jury's verdict, so Montgomery had no opportunity to present mitigation evidence to justify a less severe sentence." Id. at ___, 136 S. Ct. at 725-26, 193 L. Ed. 2d at 610. The Supreme Court noted "[t]hat evidence might have included Montgomery's young age at the time of the crime; expert testimony regarding his limited capacity for foresight, self-discipline, and judgment; and his potential for rehabilitation." Id. at ___, 136 S. Ct. at 726, 193 L. Ed. 2d at 610.
Montgomery "was convicted of murder and sentenced to death, but the Louisiana Supreme Court reversed his conviction after finding that public prejudice had prevented a fair trial. Montgomery was retried." Id. at ___, 136 S. Ct. at 725, 193 L. Ed. 2d at 610 (citation omitted).
The Court held in Montgomery that Miller's holding applied to cases on collateral review. The Court noted that Miller established, in part, a new substantive rule of law (i.e., the "conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders [and] raises a grave risk that many are being held in violation of the Constitution"). Even though Miller also had procedural elements, the Court instructed in Montgomery that Miller's holding must be applied retroactively. Id. at ___, 136 S. Ct. at 736, 193 L. Ed. 2d at 622. The Court noted that the procedural requirements imposed by Miller on a sentencing court "do[] not replace but rather give[] effect to Miller's substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity." Id. at ___, 136 S. Ct. at 735, 193 L. Ed. 2d at 621.
The State concedes in its supplemental brief that Montgomery calls for retroactive application of Miller to the present case.
The Court majority specifically observed in Montgomery that "Miller . . . did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole[.]" Id. at ___, 136 S. Ct. at 734, 193 L. Ed. 2d at 619. The Court emphasized that "sentencing a child to life without parole is excessive for all but 'the rare juvenile offender whose crime reflects irreparable corruption[.]'" Ibid. (quoting Miller, supra, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (emphasis added)). The Court in Montgomery further underscored that Miller "rendered life without parole an unconstitutional penalty for 'a class of defendants because of their status' — that is, juvenile offenders whose crimes reflect the transient immaturity of youth." Id. at ___, 136 S. Ct. at 734, 193 L. Ed. 2d at 620 (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 2953, 106 L. Ed. 2d 256, 285 (1989)).
One published opinion in our State thus far has applied the principles of Graham, Miller, (and now Montgomery) to a juvenile sentence: this court's October 2015 decision in Zuber, supra, 442 N.J. Super. at 611. Zuber involved a nonhomicide defendant who was nearly eighteen years old and had an extensive juvenile record when he committed two gang rapes. Id. at 614-15. Zuber was ultimately resentenced to a total of fifty years in prison with twenty-five years of parole ineligibility for the first rape and sixty years in prison with thirty years of parole ineligibility for the second. Id. at 615-16. He argued that his aggregate sentence was unconstitutional under Graham because his prison sentence of one-hundred-and-ten years (fifty-five of which were to be served without eligibility for parole) equated to a prohibited life-without-parole sentence for a juvenile. Id. at 617.
We are aware of several unpublished opinions of this court applying Graham and Miller, several of which were called to our attention by counsel. R. 1:36-3. Because those opinions are not precedential, we do not discuss them here. We are also aware of State in the Interest of C.F., ___ N.J. Super. ___ (App. Div. 2016), citing Miller on a proposition that is not relevant to the present appeal. Likewise, we are aware of In re State ex rel. A.D., 212 N.J. 200, 215 n.6 (2012), citing Graham on another proposition that is not germane to this appeal.
Although we assumed in Zuber, without deciding, that "Graham could be extended to apply to a sentence for a single offense expressed, not as 'life without parole,' but as a term of years without parole equaling or exceeding the life expectancy of a person of [the] defendant's age[,]" id. at 624, we ultimately found that Zuber's sentence was not prohibited under the Eighth Amendment. Id. at 634. Our reasoning was based in part upon the most recent National Vital Statistics Report ("NVSR") provided by the Center for Disease Control in existence at the time the trial court denied defendant's motion to correct his sentence as unconstitutional. Id. at 629.
Zuber, who was forty-eight years old at the time of his post-judgment motion, would be seventy-seven at the date he was first eligible for parole. Id. at 630. Hence, we found that Zuber's sentence gave him "an opportunity to be paroled approximately eight years before the end of the eighty-year predicted lifespan of a forty-eight-year-old." Ibid. Consequently, we concluded that such an opportunity for parole was "meaningful and realistic" within the meaning of Graham because it was not a sentence that left Zuber "no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope." Ibid. (quoting Graham, supra, 560 U.S. at 79, 130 S. Ct. at 2032, 176 L. Ed. 2d at 848).
Our Supreme Court recently granted certification in Zuber. As framed on the Court's website, the question presented for review is: "Does defendant's aggregate sentence, imposed for nonhomicide offenses committed in 1981, violate the proscriptions of Graham v. Florida, 560 U.S. 48 (2010), regarding sentences of juvenile offenders?"
III.
Guided by these recent precedents, we first turn to defendant's principal claims of an Eighth Amendment violation.
A.
The specific holding of Graham, which pertains to juvenile nonhomicide offenders, is inapplicable to the present case because defendant was convicted of murder and his life sentence was imposed for that homicide. Hence, although the broader principles expressed in Graham recognize special aspects of juvenile offenses that more generally bear upon this matter, Graham's specific prohibition of life-without-parole sentences for nonhomicide juvenile offenders does not control here. Instead, Miller and Montgomery, both of which address juvenile homicide cases, are more on point.
The State is correct that the strand of Miller prohibiting statutorily-mandated life-without-parole sentences is not applicable here. The trial judge had the discretion under the statutory scheme to sentence defendant to a sentence between the mandatory minimum of thirty years and the maximum of life in prison. See N.J.S.A. 2C:11-3(b)(1). Applying that discretion, the judge chose, both at the original sentencing and on resentencing, to impose a life sentence. There was no per se statutory obligation here to impose a life sentence.
B.
The next related question under Miller and Montgomery is whether the sentencing judge, in exercising his discretion, appropriately took into account the special characteristics of a juvenile offender in imposing a life sentence with a 63.75-year NERA parole disqualifier upon defendant.
Defendant argues that there are essentially five separate youth-related considerations required by Miller: (1) the juvenile's "chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences"; (2) the juvenile's "family and home environment"; (3) "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) "the 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"; and (5) whether the circumstances suggest "possibility of rehabilitation." Miller, supra, 567 U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423. He maintains that the trial judge on resentencing gave short shrift to these considerations.
In the course of resentencing defendant, the trial judge had the benefit of the Supreme Court's opinion in Miller. The judge specifically referred to Miller and its youth-related principles repeatedly during the course of his extensive oral ruling. The judge also considered a psychiatric report presented by a defense expert, Dr. Martin Weinapple, which discussed Miller and the youth-offender considerations sentencing judges are to consider in juvenile homicide cases. The judge addressed at length why such considerations do not warrant a modification of defendant's NERA life sentence for the murder conviction.
As a major part of his resentencing analysis, the trial judge thoroughly addressed whether defendant had been substantially influenced by his older brother Jonathan in these offenses and the comparative degree of defendant's personal culpability. We quote at length from the judge's observations on the record on this subject:
[T]he defense introduced a statement that he gave to police after his arrest. In it, the defendant said Jonathan told him to leave the family room when the victim came to the door, and he went to sleep on the couch. He woke when he heard big thumps and Jonathan asked him to help put a foot locker in the Jeep.
Why the stipulation [that was introduced at trial]? Why reading the statement? Again, [defendant's] not believable. What is believable, however, [i]s he stated he had nothing to corroborate his version of the events. Also, other than his bare assertion, there were no proofs or examples of Jonathan's maturity.
It's interesting to note that in defendant's allocution while claiming innocence and no participation in the murder, and with a sentence yet to be announced by this court, he comments about his mother's suffering because her only two sons were doing life in prison. . . .
Although expressing sorrow for the pain he caused his parents, he claims he did not seek their assistance either that morning or the next at the party gatherings. What about the clean up of the blood? Which he acknowledged existed. The odor from the bleach, detergents and other materials that were used. Are we to believe that would go unnoticed by his family, especially the odor[?]
I make these observation[s] as the defendant appears to be a manipulator and not the one being manipulated.
. . . .
The fact is, however, that with all I have viewed and heard throughout these proceedings, I cannot find that the defendant was substantially influenced by his brother. His words at sentencing, no matter how well organized and presented in my view are just not believable, any more than his stipulated claim that his brother acted alone, or the claim that he was asleep on the couch or that the victim's body was already in the foot locker when Jonathan asked him to help put it in the Jeep.
He didn't even see the dismembered legs which were not in the trunk. Even the detailed description of what Jonathan allegedly did alone given to the police and introduced at trial for someone not there, stretches the imagination.
A[m] I to believe that a young woman admires the 18 year old brother, has a crush on him, therefore the 18 year old kills her, that he takes a young woman who just turned 16 who was unarmed and defenseless, beats her with a pole, stabs her with a knife, stabs her in the neck and in other places, inserts things into her throat to prevent her screams from being heard, tries to cut off her extremities, one portion which was too difficult so cuts off both her legs, while she's still alive[?] Am I to believe he acted alone?
These defendants in my view [were] equally responsible and in the view more importantly of the jury. I cannot in good conscience find that the defendant's conduct although he was youthful, a child if the defense prefers, was substantially influenced by another person more mature that he. It is difficult not to accept the view that the opposite is the case.
In all likelihood, were it not for defendant, this tragedy would not have occurred. And it occurred two years after he had to leave his home, and this was his first encounter with the victim.
I started out by indicating that I had the opportunity to observe the defendant, his reactions during the numerous proceedings and trial. I observed his body language at various times. And when witnesses testify. The two brothers may have fed off of each other when together, but this defendant was not substantially influenced by his brother, who in his own right cannot claim maturity.
. . . .
I know any sentence for a youthful offender is a stern one. But so is the result of the defendant's conduct to an equally youthful victim.
I find James was not substantially influenced by another person more mature that he. Accordingly, for the reasons I've set forth, I do not find that mitigating factor 13 is applicable in this case.
[(Emphasis added).]
In his written revised judgment of conviction, the judge described at length the potential aggravating and mitigating factors, finding that aggravating factors one, two, three and nine applied and that only mitigating factor seven applied, but only to a limited extent. The revised judgment summarizes that analysis as follows:
This defendant has no history of a conviction for an indictable offense. There
is a statutory presumption of imprisonment in this case. Aside from the No Early Release Act, there is a mandatory minimum period of 30 years incarceration pursuant to the statute. The Court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, of which there are arguably none, except limited [mitigating factor] 7. The convictions for which the sentences have been imposed are numerous. The crimes were committed at different times and in separate places. Their objectives were independent of each other, and in our system of jurisprudence, there can be no free crimes for which the punishment shall fit the crime. The jury found . . . defendant guilty of all charges in the indictment. These were heinous crimes, extreme and extraordinary occurrences, involving not only murder but mutilation and an orchestrated complicity involving others in an attempt to avoid detection.The judge then addressed our mandate regarding merger, as well as the consecutive sentences that he had originally imposed for the nonhomicide offenses:
As determined by the Appellate Division in its decision of August 27, 2012, the consecutive sentence imposed on Count 4 is vacated in light of the merger of that count with Count 1. This Amended Judgment of Conviction is intended to address mitigating factor 13. At the time of the original sentence the Court considered but did not address that factor on the record. It should have.
All comments and reasons given by the Court for imposition of this sentence on the date of re-sentence are incorporated and made a part hereof.
We disagree with defendant's contention that the judge failed to take into account general principles that minor offenders tend to be immature and to lack a fully-formed capacity to consider the consequences of their wrongful acts. The judge appropriately focused on defendant's own individual attributes, including his relative level of intelligence and other personal characteristics indicative of his capacity to appreciate the wrongfulness of his actions and to bear responsibility for them.
Although the judge did not discuss all of the various passages from Miller now cited by defendant on appeal as a "five-factor test," he took those youth-related concepts collectively into consideration in exercising his sentencing discretion. The judge did not give lip service to those concepts. In fact, the judge eliminated the thirteen-year consecutive term imposed in the original sentence, in recognition of defendant's post-conviction efforts toward rehabilitation, which reflects the judge's recognition of the potential capacity of this young defendant to reform as an adult.
We are unaware of any reported cases, including Montgomery, that have distilled Miller into a five-factor test, although we recognize that all of the listed considerations are mentioned in Miller.
C.
That said, we agree with defendant on one important subsidiary point that bears greatly upon the Eighth Amendment analysis: the NERA-mandated 63.75-year parole ineligibility period amounts to a de facto life-without-parole sentence. The United States Supreme Court's case law in Graham, supra, 560 U.S. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845-46, Miller, supra, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424, and Montgomery, supra, ___ U.S. at ___, 136, S. Ct. at 736-37, 193 L. Ed. 2d at 637, focuses upon whether a juvenile offender will have a "meaningful" opportunity for a future life outside of prison walls.
Although the Court has not defined with precision that pivotal term "meaningful," in Montgomery the Court recently stated that "prisoners like [him] must be given the opportunity to show their crime did not reflect irreparable corruption; and if it did not, their hope for some years of life outside of prison walls must be restored." Montgomery, supra, ___ U.S. at ___, 136 S. Ct. at 736-37, 193 L. Ed. 2d at 623 (emphasis added). We construe Montgomery's reference in the plural to "some years" to convey that a sentence in which a defendant is not statistically predicted to live at least two years beyond his first parole eligibility date would not afford a "meaningful" opportunity for civilian life, and thus comprise the functional equivalent of a sentence to life without parole.
There are several potential ways to calculate defendant's statistical life expectancy, depending on which data is used. According to the life expectancy table in Appendix I to the current (2016) edition of the Court Rules, defendant, who was the age of thirteen going on fourteen at the time of the table's creation in 2004, would be expected in 2004 to live for another 64.9 years, or until he was 77.9 years old. See Life Expectancies for All Races and Both Sexes, Pressler & Verniero, Current N.J. Court Rules, Appendix I at www.gannlaw.com (2016). Appendix I was derived from the National Vital Statistics Reports (NVSR), Vol. 52, No. 14 (Feb. 18, 2004). This would mean defendant's projected life expectancy under this approach would expire prior to his first parole eligibility date at the age of 78 years and eight months.
We note that in its January 2016 Report, the Supreme Court's Civil Practice Committee proposed adopting the life expectancy table from the November 2014 National Vital Statistics report, which is based upon 2010 statistics. 2016 Report of the Supreme Court Civil Practice Committee (Jan. 2016), http://www.judiciary.state.nj.us/reports2016/CivilPracticeCommittee.pdf. According to that proposed table, defendant, who was nineteen years old going on twenty at the time of the table's creation, would be expected to live for another 60.4 years, making him 79.4 at the time of his first parole date.
Alternatively, if one were to apply this same current Appendix I table to defendant's age at his initial sentencing on July 30, 2009, defendant, who was eighteen going on nineteen at that time, would be expected to live post-sentencing for another 60 years, making his life expectancy 78.0. See Life Expectancies for All Races and Both Sexes, Pressler & Verniero, Current N.J. Court Rules, Appendix I at 530 (2009). Hence, under this alternative scenario, defendant's life expectancy likewise has him dying about seven months prior to his earliest parole eligibility date.
The 2009 version of Appendix I is identical to the version in the current 2016 rule book.
If the current Appendix I table were applied to defendant's age at the time of his resentencing hearing in January 2014, defendant, who was then age twenty-three going on twenty-four, was expected at that point to live another 55.3 years. See Life Expectancies for All Races and Both Sexes, Pressler & Verniero, Current N.J. Court Rules, Appendix I at 2549 (2014). Thus, defendant's life expectancy age calculated in this manner would be 78.3, i.e., about eight months before his earliest parole eligibility date.
Slightly different results may be generated from more recent NVSR data. In fact, this court in Zuber recommended that courts "use the NVSR's most recent available data in determining what sentence meets Graham's requirements." Zuber, supra, 442 N.J. Super. at 628. Consequently, in Zuber we looked to the most recent NVSR table available at the time Zuber's motion to correct his sentence was heard. Id. at 629. In accordance with Zuber, if we consult the NVSR table that was most recently available at the time of defendant's initial sentencing on July 30, 2009 when he was age eighteen, his life expectancy age then would be 78.7 years, i.e., only a small fraction (less than a tenth of a year) after his earliest parole eligibility date. National Vital Statistics Reports, Vol. 56, No. 9 (Dec. 28, 2007).
Under the 2007 NVSR's Table 1, "Life table for the total population: United States, 2004[,]" a person who is between eighteen and nineteen years old has an average life expectancy of 60.7 years. This is the equivalent table to the one we applied in Zuber. See Zuber, supra, 442 N.J. Super. at 629.
Lastly, if we alternatively look to the NVSR table that was most recently available at the time of defendant's resentencing on January 17, 2014, when he was age twenty-three, his life expectancy would be 79.5 years old, meaning that he would first become eligible for parole about ten months before the expected end of his life. See National Vital Statistics Reports, Vol. 62, No. 7 (Jan. 6, 2014).
Under the 2014 NVSR's Table 1, "Life table for the total population: United States, 2009[,]" a person who is between twenty-three and twenty-four years old has an average life expectancy of 56.5 years. This is the equivalent table to that used in Zuber. See Zuber, supra, 442 N.J. Super. at 629.
The parties suggest that we use different life expectancy calculations. Defendant argues that we utilize the NVSR table most recently adopted at the time of defendant's resentencing on January 17, 2014, (i.e., National Vital Statistics Reports, Vol. 62, No. 7 (Jan. 6, 2014)) but calculate his life expectancy with the age he was at the time the statistics were made (i.e., between eighteen and nineteen years old in 2009). Thus, defendant would be expected to live another 61.2 years, or until he was approximately 79.2 years old and about six months past his first parole eligibility date. National Vital Statistics Reports, Vol. 62, No. 7 (Jan. 6, 2014). The State conversely suggests that we use the most recent NVSR table available now (but not available at the time of either defendant's initial sentencing or resentencing). National Vital Statistics Reports, Vol. 64, No. 11 (Sept. 22, 2015). In Zuber we chose not to apply such most recent data because it was not available at the time of the judge's decision. Zuber, supra, 442 N.J. Super. at 629 n.11. In any event, the State argues we look to either the age defendant was when he committed these offenses (i.e., between fourteen and fifteen years old) or to the age he was at the time of his resentencing (i.e., between twenty-three and twenty-four years old) when applying this most recent NVSR table. Applying that 2015 NVSR table to defendant's age of fourteen at the time of his offenses, he would be expected to live another 65.3 years, making his life expectancy age 79.3 years old and about eight months after his earliest parole eligibility date. National Vital Statistics Reports, Vol. 64, No. 11 (Sept. 22, 2015). If we alternatively apply the 2015 NVSR table to defendant's age at the time of his January 2014 resentencing, defendant would be expected to live another 56.7 years, making his life expectancy age approximately 79.7 years old or about one year after his earliest parole eligibility date.
The upshot of this statistical data is that, whatever life expectancy table is utilized, a person of defendant's age is not likely to live more than about a year, if that, beyond defendant's earliest parole eligibility date in April 2069. We regard this period of time, even using the data most beneficial to the State, to be so minimal that it does not provide for a "meaningful" opportunity for defendant to be released from prison before his statistically-likely death. The projections also fall short of the "some years" mark established by the United States Supreme Court in Montgomery. See Montgomery, supra, ___ U.S. at ___, 136 S. Ct. at 736-37, 193 L. Ed. 2d at 623. Hence, the court has imposed upon defendant, as he contends, a de facto life-without-parole sentence.
D.
The transcript of the resentencing contains an observation by the judge that "this is not a die in prison sentence." The judge made that observation after discussing Miller and another Supreme Court opinion in which the pertinent sentencing statutes had, as the judge put it, "required that the offender die in prison[.]" The judge correctly noted that proscription in the two other states is "not the New Jersey law" because our statutes instead provide trial judges with the discretion to sentence murderers to prison terms of years that are less than life imprisonment. The judge's remark that "this is not a die in prison sentence" therefore might have been intended by him to mean "this is not a punishment mandated by statute to be a die-in-prison sentence."
On the other hand, the judge possibly might have been operating under the assumption — not having the benefit of the life expectancy data now furnished to us on appeal — that defendant is likely to live a "meaningful" period of time past his first parole eligibility date in the year 2069. This alternate interpretation of the judge's words is arguably supported by the judge's decision at resentencing to remove the thirteen-year consecutive term that he had originally tacked onto the life sentence. One might reasonably infer from this modification that the judge intended some "real-time" benefit to accrue to defendant from treating the additional offenses as concurrent, so as to reward him for his post-conviction efforts toward rehabilitation. Hence, the judge's "not a die in prison" observation is somewhat ambiguous.
As we have noted, the judge did not have before him the life expectancy data that has now been supplied to us on appeal in the wake of Zuber and Montgomery. We do not fault the judge whatsoever for failing to consult the table in Appendix I of the Court Rules, sua sponte, when he resentenced defendant. In all fairness to the judge, our October 2015 precedential opinion in Zuber, declaring for the first time that life expectancy tables are relevant to determining if a juvenile sentence is a "de facto" life-without-parole sentence, had not yet been issued when he resentenced defendant in January 2014, nor had Montgomery been issued.
The sentencing judge did not know that we would conclude on the present appeal that the life expectancy data shows that the impact of the 63.75-year NERA parole ineligibility disqualifier, as applied to defendant, makes this a de facto life-without-parole sentence and does not realistically afford defendant a "meaningful" opportunity for a future life outside of prison walls. Nor should the judge have been expected to predict that the United State Supreme Court in Montgomery would declare that such a "meaningful" opportunity envisions that a defendant is expected to live "some years" in freedom beyond his parole date. Conceivably, the judge was aware that as a matter of common knowledge, American males often do not live beyond their late seventies. However, he did not have before him any hard data containing statistical information that more precisely depicted the likelihood of this juvenile offender's death at various ages.
The ambiguity of the judge's "not a die in prison" observation has particular significance under the Eighth Amendment because Montgomery instructs that the "procedural component" of Miller "requires a sentencer to consider a juvenile offender's youth and attendant characteristics before determining that life without parole is a proportionate sentence." Montgomery, supra, ___ U.S. at ___, 136 S. Ct. at 734, 193 L. Ed. 2d at 620 (emphasis added) (citing Miller, supra, 567 U.S. at ___, 132 S. Ct. at 2455, 183 L. Ed. 2d at 407). If, hypothetically, the trial judge here incorrectly assumed at the resentencing hearing that this is not a de facto life-without-parole sentence, then he might not have sufficiently considered, as Miller and Montgomery "require," whether that punishment is a "proportionate sentence" that meets the requirements of the Eighth Amendment.
For that matter, if — again hypothetically — the judge's possible unawareness of life expectancy projections led him to assume that defendant is likely to live a considerable number of years after his first parole eligibility date in 2069, such a mistaken assumption could also provide a non-constitutional basis for the judge to reconsider the sentence because of a flawed factual premise. See, e.g., State v. Jarbath, 114 N.J. 394, 404 (1989) (noting the court's authority to reconsider sentences when they are based upon incorrect factual grounds).
The "real time" consequences of confinement here for defendant are largely dictated by NERA. As our case law instructs, sentencing courts "must . . . be mindful of the real-time consequences of NERA and the role that it customarily plays in the fashioning of an appropriate sentence." State v. Marinez, 370 N.J. Super. 49, 58 (App. Div.), certif. denied, 182 N.J. 142 (2004). See also State v. Hernandez, 208 N.J. 24, 50 (2011) (internal citation omitted) (quoting Marinez, supra, 370 N.J. Super. at 58) (likewise recognizing that "sentencing and appellate courts must 'be mindful of the real-time consequences of NERA and the role that it customarily plays in the fashioning of an appropriate sentence'").
Given the importance of the constitutional interests at stake in this case and the proportionality analysis required by Montgomery, we decline to resolve the Eighth Amendment issues conclusively on the present record. Instead, we remand this matter to the trial court to reconsider defendant's sentence in light of the recently-furnished life expectancy data, the Supreme Court's guidance in Montgomery, and our determination in this opinion that defendant's present sentence is indeed a de facto life-without-parole sentence. We shall not presume that such a remand will be a futile exercise, given that the judge at resentencing seemingly was attempting to provide defendant with some actual real-time relief by eliminating the consecutive sentences and rewarding him for his positive post-conviction efforts toward rehabilitation.
To be sure, the trial judge at resentencing elaborated at length why the nature of defendant's conduct was especially heinous and why his youth at the time of his actions does not justify a shorter sentence. Nevertheless, the trial court might not have intended to impose what we have now determined to be a de facto life-without-parole sentence, within the meaning of that concept as recently clarified by the Supreme Court in Montgomery. If the trial court in fact intended to impose a punishment that was short of a "die in prison" sentence, it should clarify that intention on remand, and recalibrate defendant's sentence accordingly in light of the life expectancy data that was not provided to it previously. See Montgomery, supra, ___ U.S. at ___, 136 S. Ct. at 734, 193 L. Ed. 2d at 620. We do not preordain what conclusions the trial court should reach on this question framed in this manner as mandated by Montgomery. Instead, we leave it to the trial court to reflect again on its analysis with the benefit of the life expectancy data and the new case law.
In this regard, we note that the assistant prosecutor represented to us during oral argument that defendant apparently is the only fourteen-year-old offender in the State prison system serving a life sentence with a 63.75-year NERA parole ineligibility period. According to the prosecutor, the other two fourteen-year-old juveniles in the prison system with life sentences have thirty-year parole disqualifiers.
IV.
Defendant separately presents a novel argument asserting that, even if his sentence is deemed valid under the Eighth Amendment of the Federal Constitution, it nevertheless violates Article I, paragraph 12 of the New Jersey Constitution. He seeks to have us declare that his sentence is disproportionate under state constitutional principles. Among other things, he points to the fact that the Legislature recently amended the juvenile statutes to disallow waiver to adult court for a youth who commits an offense at the age of fourteen.
Defendant's state constitutional law argument was only alluded to briefly by his counsel in the January 2014 resentencing transcript. It is only mentioned in one sentence in his main brief, with a citation to a Massachusetts state court case. His argument would require a doctrinal finding that the New Jersey Constitution's cruel-and-unusual punishment clause should be construed more broadly than its counterpart in the Eighth Amendment. Our State Supreme Court has done so on one occasion involving an adult defendant in a capital case concerning the mens rea requirement for capital murder. See State v. Gerald, 113 N.J. 40, 75-76, 89 (1988). Significantly, the Court in Gerald noted, in justifying that particular divergence from cognate federal constitutional law principles, that capital punishment is a matter of "particular state interest or local concern and does not require a uniform national policy." Id. at 76 (quoting State v. Ramseur, 106 N.J. 123, 167 (1987)).
In contrast to Gerald, the present case is not a capital case, nor could it be because it involves a juvenile offender. To date, our State Supreme Court has not held that Article I, paragraph 12 of the New Jersey Constitution should be construed more broadly than the counterpart Eighth Amendment in the realm of juvenile sentencing or in the realm of non-capital cases.
In addition, it is not readily apparent that the so-called state constitutional divergence factors first articulated in Justice Handler's seminal concurring opinion in State v. Hunt, 91 N.J. 338, 363-68 (1982) (Handler, J., concurring), compel diverging from the Eighth Amendment standards of cruel and unusual punishment imposed upon a juvenile. Those Hunt divergence factors include:
(1) textual differences in the Constitutions; (2) "legislative history" of the provision indicating a broader meaning than the federal provision; (3) state law
predating the Supreme Court decision; (4) differences in federal and state structure; (5) subject matter of particular state or local interest; (6) particular state history or traditions; and (7) public attitudes in the state. He concluded that reliance on such criteria demonstrates that a divergent state constitutional interpretation "does not spring from pure intuition but, rather, from a process that is reasonable and reasoned."
[Ibid.; see also State v. Williams, 93 N.J. 39, 57-58 (1983) (endorsing the Hunt factors).]
The parties' briefs on appeal do not address the Hunt divergence factors. Without addressing them here fully in the absence of such briefing, we will simply note in passing that there does not appear to be significant textual differences between the cruel-and-unusual punishment clauses in the two Constitutions. Nor have we been supplied with historical indicia of particular state history or traditions signaling that the New Jersey Constitution is intended to be more protective of juveniles at sentencing than under the Eighth Amendment. Indeed, until the United States Supreme Court in recent years decided Graham, Miller, and Montgomery, the constitutionality of the imposition of life sentences upon juvenile offenders does not appear to have been an issue in any reported opinions in our State.
As an intermediate appellate court, we are reluctant to presume that the New Jersey Supreme Court will take the momentous step of declaring that Article I, paragraph 12 of our State Constitution should be interpreted more broadly in the realm of juvenile and non-capital sentencing than the Eighth Amendment's Cruel and Unusual Punishment Clause. It is conceivable that the Court will have occasion to consider such arguments for state constitutional divergence in Zuber, on which it recently granted certification. In any event, we decline to address defendant's novel arguments based on the State Constitution and defer to our Supreme Court's ultimate guidance on the subject.
V.
Lastly, we address defendant's non-constitutional arguments that the trial court erred at the resentencing proceeding in two respects: (1) rejecting mitigating factor thirteen, after having been instructed in our 2012 opinion to consider the potential applicability of that factor; and (2) failing to give adequate credit to defendant for his post-conviction rehabilitative accomplishments. We reject each of these contentions.
A.
First, as to mitigating factor thirteen, we recognize that we did note in our 2012 opinion that there seemed to be "clear support" for that factor, such as indicia that defendant's older brother Jonathan had been a caretaker for defendant and could have taunted defendant into committing these crimes. State v. James Zarate, supra, slip op. at 36. We noted that at the original sentencing, the trial judge "did not comment on [defendant's] relationship with his brother or Jonathan's conviction for using a juvenile to commit a crime." Ibid.
As we have already shown at length in Part III(B), supra, the sentencing judge on remand focused more intently on this potential mitigating factor with a much more detailed analysis. The judge explicitly considered, among other things, the letters the court received from family members and friends indicating that defendant looked up to his older brother. The judge also considered the psychiatric report from Dr. Weinapple evaluating defendant.
The trial judge also considered a letter on defendant's behalf from his aunt who is apparently a California psychiatrist. --------
As the judge noted, he had the distinct opportunity to interact with both defendant and his brother at trial and at motion hearings. The judge evaluated the body language, expression, reactions, and other outward manifestations of the two brothers, and found defendant to be the more mature sibling. The judge underscored defendant's past documented animosity toward and bullying of the victim, as well as the fact that V.B., the juvenile friend found on the bridge with defendant and his brother, testified that defendant told him he had stabbed the victim and that his brother had only punched the victim.
The judge additionally found that defendant's brother's conviction for N.J.S.A. 2C:24-9 (use of a juvenile to commit a criminal offense) was not dispositive as to mitigating factor thirteen because it was unclear what the jury in that case had based their finding on, especially since V.B. was also a juvenile who helped in the attempt to discard the victim's remains on the bridge.
The judge specifically found that defendant in his assertions to the court in the sentencing proceedings was "not believable" and "without remorse." The judge also found that "defendant appears to be a manipulator and not the one being manipulated."
The judge duly took into account the opinions of the psychiatrists asserting that defendant was young and therefore could in their view, be easily influenced. The judge found those expert opinions were too generalized, that they did not take defendant's intelligence into account, and they did not indicate defendant had any psychiatric disorder. Consequently, the judge did consider such evidence related to this factor, but found it unpersuasive, ultimately concluding that defendant and his brother were "equally responsible[.]"
The judge's lengthy analysis on this subject at the resentencing reflects that he appropriately considered mitigating factor thirteen on remand, as he was directed. The judge provided reasonable grounds to conclude that defendant likely was not influenced to commit these crimes by his older brother, to a degree sufficient to apply this mitigating factor.
Giving due deference to the sentencing judge's much closer "feel for the case," we are persuaded that his ultimate rejection of mitigating factor thirteen is reasonably supported by the record, despite our earlier perception that the circumstances supported the application of that factor. We defer to the trial judge's careful consideration of this sentencing factor, now having the benefit of the expanded analysis he provided on remand in both his oral ruling and the revised judgment of conviction.
The judge's assessment is not manifestly erroneous, and we discern no necessity to direct the court to reconsider the sentence a third time on this basis. See, e.g., State v. Bieniek, 200 N.J. 601, 612 (2010) (noting our limited scope of appellate review of a sentencing decision and the trial court's assessment of aggravating and mitigating factors). Moreover, given the considerable strength of the aggravating factors in this case, we are not persuaded that the presence of mitigating factor thirteen here, even if it had applied, would have tipped the balance and warranted a shorter sentence on this basis.
B.
We need not comment at length regarding defendant's claim that the judge did not sufficiently take his rehabilitative efforts into account at resentencing. To be sure, our case law now makes clear that on a resentencing, the court must take into account a defendant's rehabilitative efforts up to the time of the proceeding. See State v. Randolph, 210 N.J. 330, 333, 349 (2012). See also State v. Jaffe, 220 N.J. 114, 124 (2014) (extending Randolph to post-offense rehabilitative efforts at the time of initial sentencing). We are satisfied, however, that the trial judge fulfilled this obligation when he resentenced defendant in January 2014, nearly five years after the original sentencing.
The judge at resentencing extensively referenced the materials submitted on defendant's behalf documenting the post-conviction accomplishments he had made, such as getting his G.E.D., scoring highly on the SAT, becoming spiritual, completing paralegal courses, and other activities. The judge explicitly took these post-incarceration strides into account when he eliminated the thirteen-year consecutive term that had previously been tacked onto his life sentence. The judge noted in his oral remarks that he was "considering what the defendant ha[d] done since [his conviction]" and that defendant's aggregate sentence was being reduced "because he has shown that he's doing some things that he should." The judge was not required to go further than making the consecutive sentences concurrent. He did not manifestly abuse his discretion in finding defendant's post-rehabilitative efforts insufficient to overcome the compelling grounds under state law he cited for re-imposing the life sentence for the homicide.
We recognize that the Supreme Court in Montgomery indicated that, as a remedy for a proven Miller violation, a court may consider accelerating the parole eligibility date of defendants who demonstrate an ability to reform by their post-sentencing efforts. Montgomery, supra, ___ U.S. at ___, 136 S. Ct. at 736, 193 L. Ed. 2d at 622. The Supreme Court cited in that regard to Montgomery's "evolution from a troubled, misguided youth to a model mentor of the prison community[,]" exemplified by his efforts in establishing an inmate boxing team, his work in the prison's silkscreen department, and his efforts to provide advice and serve as a role model to other inmates. Ibid.
That discussion in Montgomery is not applicable here for two reasons. First, subject to the remand to reconsider the sentence based on life expectancy data, defendant has not thus far established a Miller violation. Second, the defendant in Montgomery had been in prison since the 1960s and had a comparatively far longer time than James Zarate to demonstrate his strides toward rehabilitation.
VI.
The balance of defendant's arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
VII.
For the reasons we have discussed, this matter is remanded to the trial court to reconsider defendant's homicide sentence in light of the recently-supplied life expectancy data, the guidance of recent case law in Montgomery and Zuber, and our determination that the life sentence conditioned upon a 63.75-year NERA parole disqualifier comprises a de facto life-without-parole sentence for this juvenile offender. Consistent with Randolph, the trial court shall also consider on remand updated information concerning defendant's further efforts, if any, toward rehabilitation since January 2014. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION