State v. Ricky Zuber(076806)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Ricky Zuber (A-54-15) (076806)
State v. James Comer (A-63-15) (077318)

Argued October 27, 2016 -- Decided January 11, 2017

RABNER, C.J., writing for a unanimous Court.

In these appeals, consolidated for purposes of this opinion, the Court considers whether the United States
Supreme Court’s determination in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 2460, 2469, 183 L. Ed. 2d 407,
414, 424 (2012), that “youth and its attendant characteristics” must be considered at the time a juvenile is sentenced
to life imprisonment without the possibility of parole, should apply to sentences that are the practical equivalent of
life without parole to satisfy the constitutional prohibition against cruel and unusual punishment.

For his role in two separate gang rapes in 1981, when he was seventeen years old, Ricky Zuber was
sentenced on remand to 110 years in prison with 55 years of parole ineligibility. The Appellate Division affirmed
the sentences. Under his revised aggregate sentence, Zuber will not be eligible for parole until about 2036, when he
would be about 72 years old. In 2010, Zuber argued that his revised sentence was unconstitutional under Graham v.
Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). The trial court denied relief, and the Appellate
Division affirmed. State v. Zuber, 442 N.J. Super. 611 (App. Div. 2015). The Court granted Zuber’s petition for
certification. 224 N.J. 245 (2016).

On April 17-18, 2000, when he was seventeen years old, James Comer participated in four armed
robberies. During the second robbery, an accomplice shot and killed a victim. Comer was convicted of felony
murder, three counts of armed robbery, weapons offenses, and theft. His aggregate sentence was 75 years in prison
with 68 years and 3 months of parole ineligibility. Comer will not be eligible for parole until 2068, when he would
be 85 years old. In 2014, after an unsuccessful direct appeal and motion for post-conviction relief, Comer filed a
motion to correct an illegal sentence. He argued that his sentence amounted to life without parole, and was therefore
illegal under Graham and Miller. When Comer was first sentenced in 2004, the trial judge was not required to
evaluate the mitigating effects of youth. In a detailed written opinion, the same trial judge concluded in 2014 that,
because he had not considered the Miller factors, Comer was entitled to be resentenced. The Court granted Comer’s
motion for direct certification of the trial court’s 2014 judgment. 226 N.J. 205 (2016).

HELD: Sentencing judges should evaluate the Miller factors when a juvenile facing a lengthy term of imprisonment
that is the practical equivalent of life without parole is first sentenced, to “take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, supra, 567 U.S.
___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. Given this holding, both Zuber and Comer are entitled to be resentenced.
To stave off possible future constitutional challenges to the current sentencing scheme, the Court asks the Legislature to
consider enacting a statute that would provide for later review of juvenile sentences that have lengthy periods of parole
ineligibility.

1. As a threshold matter, the Court may consider Comer’s case despite his previous direct appeal and post-
conviction motion because a defendant may challenge an illegal sentence at any time. R. 3:21-10(b)(5). (p. 15)

2. The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The provision
applies to the States through the Fourteenth Amendment. Article I, Paragraph 12 of the New Jersey Constitution
also bars “cruel and unusual punishments.” N.J. Const. art. I, ¶ 12. The test for cruel and unusual punishment is
generally the same under both the Federal and the State Constitutions. (pp. 16-17)

3. In Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 1200, 161 L. Ed. 2d 1, 28 (2005), the United States

1
Supreme Court declared capital punishment unconstitutional for juvenile offenders. The Court noted that a majority
of States had rejected imposing the death penalty on juvenile offenders and stressed “[t]hree general differences
between juveniles . . . and adults” that, taken together, mean that the “irresponsible conduct [of juveniles] is not as
morally reprehensible as that of an adult.” Id. at 569-70, 125 S. Ct. at 1195, 161 L. Ed. 2d at 21-22. (pp. 18-20)

4. Graham, supra, built on that foundation and held that the Eighth Amendment categorically forbids sentences of
life without parole for juveniles convicted of non-homicide offenses. 560 U.S. at 82, 130 S. Ct. at 2034, 176 L. Ed.
2d at 850. The Court considered national sentencing practices, juveniles’ capacity to change, the nature of life-
without-parole sentences, and the reality that “[a] 16-year-old and a 75-year old each sentenced to life without
parole receive the same punishment in name only.” Id. at 70-71, 130 S. Ct. at 2028, 176 L. Ed. 2d at 843. The
Court found that none of the traditional goals of sentencing—retribution, deterrence, incapacitation, and
rehabilitation—justify life without parole for a juvenile. The Court held that the Eighth Amendment “forbids” life
without parole “for a juvenile offender who did not commit homicide,” and that the States must “give defendants . . .
some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 74-75, 130
S. Ct. at 2029-30, 176 L. Ed. 2d at 845-46. (pp. 21-25)

5. In Miller, supra, the Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at
424. Noting that mandatory sentences prevent consideration of the traits and mitigating qualities of youth, the Court
outlined five factors for judges to consider in sentencing juveniles “to take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Ibid. (pp. 25-29)

6. In Montgomery v. Louisiana, 577 U.S. ___, ___136 S. Ct. 718, 734, 193 L. Ed. 2d 599, 619 (2016), the United
States Supreme Court held that Miller applies retroactively. (p. 29)

7. Here, the Court finds that Miller’s command that a sentencing judge “take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” Miller,
supra, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424, applies with equal strength to a sentence that is the
practical equivalent of life without parole. Defendants who serve lengthy term-of-years sentences that amount to
life without parole should be no worse off than defendants whose sentences carry that formal designation. The focus
at a juvenile’s sentencing hearing belongs on the real-time consequences of the aggregate sentence. (pp. 30-33)

8. In State v. Yarbough, 100 N.J. 627, 643-44 (1985), the Court adopted six criteria to help trial courts decide
whether to impose consecutive sentences. The Court now holds that a sentencing court must consider not only the
factors in Yarbough but also the ones in Miller when it decides whether to impose consecutive sentences on a
juvenile which may result in a lengthy period of parole ineligibility. Because of the overriding importance of that
decision, the Court directs trial judges to exercise a heightened level of care before imposing multiple consecutive
sentences on juveniles. Judges must do an individualized assessment of the juvenile about to be sentenced but
should not resort to general life-expectancy tables when they determine the overall length of a sentence. (pp. 33-36)

9. The Court limits its decision to the question raised by these appeals—what should happen when a juvenile facing a
very lengthy term of imprisonment is first sentenced. The Court notes, however, that even when judges begin to use the
Miller factors at sentencing, a small number of juveniles will receive lengthy sentences with substantial periods of
parole ineligibility. Graham left it to the States “to explore the means and mechanisms” to give defendants “some
meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, supra, 560 U.S.
at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 846. The Court observes that some States have already acted and encourages
the Legislature to examine this issue to avoid a potential constitutional challenge in the future. (pp. 36-39)

10. On remand in both cases, the sentencing courts should consider the factors set forth in Miller. The judges should
also consider any rehabilitative efforts since defendants’ original sentences. (pp. 39-40)

Zuber’s case is REVERSED, Comer’s case is AFFIRMED, and both cases are REMANDED for
resentencing consistent with the principles outlined in this opinion.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and
TIMPONE join in CHIEF JUSTICE RABNER’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-54 September Term 2015
A-63 September Term 2015
076806 and 077318

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY ZUBER,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JAMES COMER,

Defendant-Respondent.

Argued October 27, 2016 – Decided January 11, 2017

State v. Ricky Zuber (A-54-15): On
certification to the Superior Court,
Appellate Division, whose opinion is
reported at 442 N.J. Super. 611 (App. Div.
2015).

State v. James Comer (A-63-15): On appeal
from the Superior Court, Law Division, Essex
County.

James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant in
State v. Ricky Zuber (Joseph E. Krakora,
Public Defender, attorney).

Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant in State v. James

1
 Comer and for respondent in State v. Ricky
Zuber (Carolyn A. Murray, Acting Essex
County Prosecutor, attorney; LeeAnn
Cunningham and Andrew R. Burroughs, Special
Deputies Attorney General/Acting Assistant
Prosecutors, on the briefs).

Lawrence S. Lustberg argued the cause for
the respondent in State v. James Comer
(Gibbons, attorneys; Mr. Lustberg, Avram D.
Frey, and Alexander R. Shalom on the brief).

Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey in State v. Ricky Zuber
(Edward L. Barocas, Legal Director, and
Gibbons, attorneys; Mr. Shalom, Lawrence S.
Lustberg, and Avram D. Frey, on the brief).

Joseph A. Glyn, argued the cause for amicus
curiae Attorney General of New Jersey in
State v. Ricky Zuber and State v. James
Comer (Christopher S. Porrino, Attorney
General, attorney).

Jonathan Romberg submitted a brief on behalf
of amicus curiae Seton Hall University
School of Law Center for Social Justice in
State v. Ricky Zuber.

James I. McClammy submitted a brief on
behalf of amicus curiae Fair Punishment
Project in State v. James Comer (Davis Polk
& Wardwell, attorneys).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

The defendants in these appeals committed very serious,

violent crimes when they were juveniles. One is serving a

sentence of 110 years’ imprisonment and will not be eligible for

parole until he spends 55 years in jail. At that time, he would

be about 72 years old. The second is serving a 75-year term and

2
is ineligible for parole until he serves 68 years and 3 months

in jail. He would be 85 years old then. Because of their young

age at the time of their crimes, both defendants can expect to

spend more than a half century in jail before they may be

released -- longer than the time served by some adults convicted

of first-degree murder.

When the sentences were originally imposed in these cases,

the trial judges did not consider defendants’ age or related

circumstances. In the past decade, the United States Supreme

Court has sent a clear message in that regard: “children are

different” when it comes to sentencing, and “youth and its

attendant characteristics” must be considered at the time a

juvenile is sentenced to life imprisonment without the

possibility of parole. Miller v. Alabama, 567 U.S. ___, 132 S.

Ct. 2455, 2460, 2469, 183 L. Ed. 2d 407, 414, 424 (2012).

The Supreme Court recognized “the mitigating qualities of

youth” and directed that judges in those cases consider a number

of factors at sentencing, including immaturity and “failure to

appreciate risks and consequences”; “family and home

environment”; family and peer pressures; “an inability to deal

with police officers or prosecutors” or the juvenile’s own

attorney; and “the possibility of rehabilitation.” Id. at ___,

132 S. Ct. at 2467-68, 183 L. Ed. 2d at 422-23.

3
 We find that the same concerns apply to sentences that are

the practical equivalent of life without parole, like the ones

in these appeals. The proper focus belongs on the amount of

real time a juvenile will spend in jail and not on the formal

label attached to his sentence. To satisfy the Eighth Amendment

and Article I, Paragraph 12 of the State Constitution, which

both prohibit cruel and unusual punishment, we direct that

defendants be resentenced and that the Miller factors be

addressed at that time.

We also recognize that the imposition of consecutive

sentences on multiple counts of conviction often drives the

outcome at sentencing. We conclude that, before a judge imposes

consecutive terms that would result in a lengthy overall term of

imprisonment for a juvenile, the court must consider the Miller

factors along with other traditional concerns. See State v.

Yarbough, 100 N.J. 627 (1985). In short, judges should exercise

a heightened level of care before they impose multiple

consecutive sentences on juveniles which would result in lengthy

jail terms.

Finally, to stave off possible future constitutional

challenges to the current sentencing scheme, we ask the

Legislature to consider enacting a statute that would provide

for later review of juvenile sentences that have lengthy periods

4
of parole ineligibility. We note that a number of States have

already done so.

We remand both cases for resentencing.

I.

Defendant Ricky Zuber participated in two separate gang

rapes in November and December 1981, when he was seventeen years

old. In the first, he and others forced a woman at knife-point

to drive to a nearby cemetery, where the group raped her

repeatedly and threatened her with disfigurement. Afterward,

the group abandoned the woman naked in the cemetery. In the

second incident, Zuber and others abducted a sixteen-year-old

high school student, drove her to an unknown location, and raped

her repeatedly. Zuber was the “ringleader” of both assaults.

Zuber was charged as an adult in two separate indictments.

After two trials, two juries convicted Zuber on a total of ten

counts. In 1983, the judge who presided over both trials

sentenced Zuber, in the aggregate, to 150 years in prison with a

75-year period of parole ineligibility. Under Zuber’s initial

sentence, he would not have become eligible for parole until

about 2056, when he would be 92 years old.

The Appellate Division affirmed the sentences. In 1988,

this Court summarily remanded the sentences to the trial court

for reconsideration under Yarbough. State v. Zuber, 111 N.J.

643 (1988); State v. Zuber, 111 N.J. 650 (1988). On remand, the

5
trial judge sentenced Zuber as follows for the gang rape

committed in November 1981:

(1) 20 years’ imprisonment with 10 years of parole

ineligibility for first-degree kidnapping, N.J.S.A. 2C:13-

1(b)(1);

(2) a consecutive term of 10 years’ imprisonment with 5

years of parole ineligibility for second-degree robbery,

N.J.S.A. 2C:15-1;

(3) a second consecutive term of 20 years’ imprisonment

with 10 years of parole ineligibility for first-degree

aggravated sexual assault by vaginal penetration, N.J.S.A.

2C:14-2; and

(4) a concurrent term of 20 years’ imprisonment with 10

years of parole ineligibility for first-degree aggravated sexual

assault by anal penetration, N.J.S.A. 2C:14-2 -- which the court

had originally imposed as a consecutive term.

The aggregate sentence for the November 1981 offense was 50

years’ imprisonment with 25 years of parole ineligibility.

For the gang rape in December 1981, the court on remand

imposed the following sentence:

(5) 20 years’ imprisonment with 10 years of parole

ineligibility for first-degree kidnapping, N.J.S.A. 2C:13-

1(b)(1);

6
 (6) a consecutive term of 20 years’ imprisonment with 10

years of parole ineligibility for first-degree robbery, N.J.S.A.

2C:15-1;

(7) a second consecutive term of 20 years’ imprisonment

with 10 years of parole ineligibility for first-degree

aggravated sexual assault by vaginal penetration, N.J.S.A.

2C:14-2;

(8) a concurrent term of 20 years’ imprisonment with 10

years of parole ineligibility for first-degree aggravated sexual

assault by anal penetration, N.J.S.A. 2C:14-2 -- which the court

had originally imposed as a consecutive term;

(9) a concurrent term of 20 years’ imprisonment with 10

years of parole ineligibility for first-degree aggravated sexual

assault by oral penetration, N.J.S.A. 2C:14-2; and

(10) a concurrent term of 5 years’ imprisonment for third-

degree unlawful possession of a knife, N.J.S.A. 2C:39-4(d).

The aggregate sentence for the December 1981 offense was 60

years’ imprisonment with 30 years of parole ineligibility.

The judge ordered that the sentences for both sets of

offenses run consecutively, which resulted in a total sentence

of 110 years in prison with 55 years of parole ineligibility.

The Appellate Division affirmed the sentences. Under his

7
revised aggregate sentence, Zuber will not be eligible for

parole until about 2036, when he would be about 72 years old.1

In 2010, Zuber filed a pro se motion and argued that his

revised sentence was unconstitutional under Graham v. Florida,

560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), in which

the Supreme Court held that sentencing a juvenile to life

without parole for a non-homicide offense violates the Eighth

Amendment. The trial court denied relief, and the Appellate

Division affirmed. State v. Zuber, 442 N.J. Super. 611, 614-15

(App. Div. 2015).

The appellate panel assumed but did not decide that Graham

could apply to consecutive sentences that resulted in a term

“equaling or exceeding the life expectancy of a person of

defendant’s age.” Id. at 625. As part of its analysis, the

panel used life-expectancy tables issued by the federal

government to predict that Zuber would outlive his parole

ineligibility period by about eight years. Id. at 627-30.

The panel did not use tables “based on sex, race, or ethnicity,”

which it believed “would introduce disparities that are

inconsistent with constitutional standards and penological

goals.” Id. at 633.

1 We need not resolve the dispute in the record about the
precise date that defendant will be eligible for parole. See
State v. Zuber, 442 N.J. Super. 611, 630 n.12 (App. Div. 2015).
8
 The Appellate Division concluded that Zuber’s sentence did

not violate Graham. Id. at 634. The panel explained that

Zuber’s “fifty-five years before parole eligibility is not the

functional equivalent of life without parole, because it gives

him a meaningful and realistic opportunity for parole well

within the predicted lifespan for a person of [his] age.” Id.

at 614-15.

We granted Zuber’s petition for certification. 224 N.J.

245 (2016).

II.

Defendant James Comer participated in four armed robberies

in the evening of April 17 and the early morning of April 18,

2000. During the second robbery, Ibn Adams, an accomplice, shot

and killed a victim. Comer was seventeen years old at the time

of the robberies.

Comer was prosecuted as an adult. After a joint trial with

Adams, a jury convicted Comer of multiple counts related to the

robberies, including one count of felony murder. The trial

judge sentenced Comer as follows:

(1) 30 years’ imprisonment with 30 years of parole

ineligibility for first-degree felony murder, N.J.S.A. 2C:11-

3(a)(3);

9
 (2-4) three consecutive terms of 15 years’ imprisonment

with an 85-percent period of parole ineligibility for three

counts of first-degree armed robbery, N.J.S.A. 2C:15-1;

(5-9) five concurrent terms of 4 years’ imprisonment for

weapons offenses, N.J.S.A. 2C:39-5(b);

(10) one concurrent term of 4 years’ imprisonment for

theft, N.J.S.A. 2C:20-3(a).

Comer’s aggregate sentence was 75 years in prison with 68

years and 3 months of parole ineligibility. Comer will not be

eligible for parole until 2068, when he would be 85 years old.

Comer raised six arguments on appeal, including that his

sentence was excessive. The Appellate Division affirmed his

convictions and sentence, and this Court affirmed. State v.

Adams, 194 N.J. 186, 191 (2008). Comer filed a petition for

post-conviction relief in 2008, in which he challenged the

imposition of consecutive sentences and raised several other

claims. The trial judge denied relief. The Appellate Division

remanded for an evidentiary hearing and later affirmed.

In 2014, Comer filed a motion to correct an illegal

sentence. He argued that his sentence amounted to life without

parole, and was therefore illegal under Graham and Miller. When

Comer was first sentenced in 2004, the trial judge was not

required to evaluate the mitigating effects of youth, which

Miller later addressed. In a detailed written opinion, the same

10
trial judge concluded in 2014 that, because he had not

considered the Miller factors, Comer was entitled to be

resentenced.

We granted Comer’s motion for direct certification of the

trial court’s 2014 judgment. 226 N.J. 205 (2016). Because both

appeals raise related issues, we consolidated them in a single

opinion.

III.

A.

Zuber argues that his sentence violates the Eighth

Amendment to the United States Constitution and Article 1,

Paragraph 12 of the New Jersey Constitution because it was

imposed “without any consideration of [his] age and attendant

characteristics.” He submits that “both the letter and spirit”

of Graham and Miller make clear that a State may not impose a

term-of-years sentence that leaves a juvenile “eligible for

parole only months before his predicted death.” Zuber contends

that his sentence affords him neither a meaningful opportunity

to obtain release nor a chance to reconcile with society.

Zuber also argues that the Appellate Division should not

have relied on statistical life-expectancy tables. Instead, he

urges the Court to find that juvenile offenders who have served

more than thirty years in prison must be considered for

resentencing or parole.

11
 The State argues that Zuber’s sentence is not

unconstitutional. The State insists that Graham applies only to

a juvenile sentence of life without parole for a single non-

homicide offense. As a result, the State contends that Graham

does not extend to term-of-years or consecutive sentences, like

Zuber’s. The State also submits that Graham does not call for

“free crimes” when a juvenile commits multiple distinct offenses

with different victims. Zuber’s sentence, the State argues, was

constitutionally proportionate to the crimes he committed.

The State agrees that life-expectancy tables should not be

used to determine the appropriate period of parole

ineligibility. In addition, the State claims that the trial

court did consider Zuber’s age and maturity when it sentenced

him.

The Seton Hall University School of Law Center for Social

Justice, appearing as amicus curiae, asks the Court to adopt a

thirty-year maximum period of parole ineligibility as a uniform

rule for juvenile offenders. The Center argues that such a rule

would provide juveniles a chance at parole at about age fifty

and offer them genuine hope to spend some years outside of

prison, beyond a mere geriatric release. That approach, the

Center submits, would also avoid the difficulties of life-

expectancy calculations. The Center alternatively argues that

the Eighth Amendment requires “an individualized analysis of

12
each juvenile’s life expectancy that accounts for his

incarcerated status, race, and gender.”

The American Civil Liberties Union of New Jersey (ACLU),

also appearing as amicus, echoes Zuber’s arguments about the

scope of Graham and Miller. The ACLU proposes a bright-line

rule that would allow juveniles to petition for resentencing and

release at a point no later than thirty years into their

sentences. For support, the ACLU points to social science

evidence that juveniles tend to retreat from criminal activity

as they enter adulthood, and that few continue to offend past

age forty. The ACLU also cautions against the use of life-

expectancy tables.

The Attorney General, as amicus, agrees with the State that

Graham does not apply to Zuber’s consecutive term-of-years

sentences for offenses committed against two different victims.

The Attorney General also argues against the use of life-

expectancy tables that would result in a “race-based, gender-

based, and income-based sentencing scheme.” According to the

Attorney General, New Jersey’s traditional case law protects

juvenile defendants against unreasonably long sentences.

B.

The State argues that Comer’s motion is time-barred and

also procedurally barred under Rules 3:21-10(a), 3:22-5, and

3:22-12. On the merits, the State maintains that Comer’s

13
sentence does not violate the Eighth Amendment because he was

not sentenced to mandatory life without parole, which Miller

prohibits. The State also contends that Comer’s aggregate

sentence is not the functional equivalent of life without

parole. In addition, the State argues that Comer’s sentence for

felony murder, a homicide offense, does not run afoul of Graham.

The Attorney General, appearing as amicus, agrees with the

State that Comer’s term-of-years sentence neither implicates nor

violates Miller or Graham. The Attorney General observes that

other jurisdictions have not extended those rulings to term-of-

years sentences. The Attorney General maintains that Comer

received four individualized, consecutive sentences for his

offenses, as the law permits.

Comer raises the following arguments: there are no

procedural or other bars to the relief he seeks; his sentence is

indistinguishable from a sentence of life without parole; life

without parole, including de facto life without parole, is

unconstitutional for all juveniles regardless of the offense;

both the Federal and State Constitutions protect against life

without parole for juveniles; Graham forbids life without parole

for juveniles who neither kill nor intend to kill; and his

sentence was imposed in violation of Miller and Montgomery v.

Louisiana, 577 U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599

(2016).

14
 The Fair Punishment Project, as amicus, submits that

Comer’s sentence is unconstitutional because it “ignores the

fundamental differences between children and adults that the

U.S. Supreme Court has repeatedly held are constitutionally

relevant to juvenile sentencing.” The Project argues that

because juveniles continue to develop and mature, their

sentences should be reviewed within ten to fifteen years of the

offense and at regular intervals afterward.

IV.

A defendant may challenge an illegal sentence at any time.

R. 3:21-10(b)(5); State v. Acevedo, 205 N.J. 40, 47 n.4 (2011).

An “illegal sentence” is one “not imposed in accordance with the

law.” Id. at 45 (quoting State v. Murray, 162 N.J. 240, 247

(2000)). That includes a sentence “imposed without regard to

some constitutional safeguard,” State v. Tavares, 286 N.J.

Super. 610, 618 (App. Div.), certif. denied, 144 N.J. 376

(1996), which defendants claim is the case here.

In addition, although Comer challenged certain aspects of

his sentence on direct appeal and in a post-conviction motion,

he now raises for the first time arguments based on the Supreme

Court’s recent rulings in Graham, Miller, and Montgomery.

Because the law permits both defendants to challenge the

legality of their sentences, we proceed to the merits.

15
 V.

The Eighth Amendment to the United States Constitution

provides that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII. The provision applies to

the States through the Fourteenth Amendment. Roper v. Simmons,

543 U.S. 551, 560, 125 S. Ct. 1183, 1190, 161 L. Ed. 2d 1, 16

(2005); Robinson v. California, 370 U.S. 660, 666, 82 S. Ct.

1417, 1420, 8 L. Ed. 2d 758, 763 (1962).

The Eighth Amendment prohibition against excessive

punishment “flows from the basic ‘precept of justice that

punishment for crime should be graduated and proportioned to the

offense.’” Roper, supra, 543 U.S. at 560, 125 S. Ct. at 1190,

161 L. Ed. 2d at 16 (brackets removed) (quoting Atkins v.

Virginia, 536 U.S. 304, 311, 122 S. Ct. 2242, 2246, 153 L. Ed.

2d 335, 344 (2002)). Courts interpret the Eighth Amendment

“according to its text, by considering history, tradition, and

precedent, and with due regard for its purpose and function in

the constitutional design.” Ibid. That often requires

“refer[ence] to ‘the evolving standards of decency that mark the

progress of a maturing society.’” Id. at 561, 125 S. Ct. at

1190, 161 L. Ed. 2d at 16 (quoting Trop v. Dulles, 356 U.S. 86,

101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958) (plurality

opinion)).

16
 Article I, Paragraph 12 of the New Jersey Constitution also

bars “cruel and unusual punishments.” N.J. Const. art. I, ¶ 12.

“The test to determine whether a punishment is cruel and unusual

. . . is generally the same” under both the Federal and State

Constitutions. State v. Ramseur, 106 N.J. 123, 169 (1987). The

test poses three questions: “First, does the punishment for the

crime conform with contemporary standards of decency? Second,

is the punishment grossly disproportionate to the offense?

Third, does the punishment go beyond what is necessary to

accomplish any legitimate penological objective?” Ibid. (citing

Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L.

Ed. 2d 859, 874-75 (1976)).

As in other contexts, the State Constitution can offer

greater protection in this area than the Federal Constitution

commands. See, e.g., State v. Gerald, 113 N.J. 40, 76 (1988)

(finding that Article I, Paragraph 12 “affords greater

protections to capital defendants than does the eighth amendment

of the federal constitution”), superseded by constitutional

amendment, N.J. Const. art. 1, ¶ 12 (effective Dec. 3, 1992).

A.

On four occasions in the past dozen years, the United

States Supreme Court has considered how the Eighth Amendment

applies to sentences imposed on juveniles. In each instance,

the Court set limits on those sentences after it considered

17
relevant social science evidence about how juveniles differ from

adults.

1.

We begin with the Supreme Court’s groundbreaking decision

in Roper v. Simmons. In that case, the Court declared capital

punishment unconstitutional for juvenile offenders. Roper,

supra, 543 U.S. at 578, 125 S. Ct. at 1200, 161 L. Ed. 2d at 28.

The defendant, Christopher Simmons, had planned and committed a

murder when he was seventeen years old and still a junior in

high school. Id. at 556, 125 S. Ct. at 1187, 161 L. Ed. 2d at

13. He was tried and convicted as an adult, and the trial judge

accepted the jury’s recommendation to impose the death penalty.

Id. at 558, 125 S. Ct. at 1189, 161 L. Ed. 2d at 14-15.

In a post-conviction proceeding, the Missouri Supreme Court

pointed to “a national consensus . . . against the execution of

juvenile offenders” and set aside Simmons’ sentence in favor of

life imprisonment without parole. Id. at 559-60, 125 S. Ct. at

1189, 161 L. Ed. 2d at 15.

The United States Supreme Court affirmed. Id. at 560, 125

S. Ct. at 1190, 161 L. Ed. 2d at 15. At first, the Court

catalogued the trend among a majority of States that “have

rejected the imposition of the death penalty on juvenile

offenders.” Id. at 564-68, 125 S. Ct. at 1192-94, 161 L. Ed. 2d

at 18-21. The Court then explained that “the death penalty is

18
reserved for a narrow category of crimes and offenders.” Id. at

569, 125 S. Ct. at 1195, 161 L. Ed. 2d at 21. At the heart of

the Court’s analysis are its observations of “[t]hree general

differences between juveniles under 18 and adults,” which

“demonstrate that juvenile offenders cannot with reliability be

classified among the worst offenders.” Ibid.

First, the Court explained, “as any parent knows and as the

scientific and sociological studies . . . tend to confirm, ‘[a]

lack of maturity and an underdeveloped sense of responsibility

are found in youth more often than in adults and are more

understandable among the young.’” Ibid. (quoting Johnson v.

Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 2668, 215 L. Ed. 2d

290, 306 (1993)). Because of those qualities, juveniles are

more likely to take “impetuous and ill-considered actions,”

ibid., and are “overrepresented statistically in virtually every

category of reckless behavior,” id. at 569, 125 S. Ct. at 1195,

161 L. Ed. 2d at 21-22 (citing Jeffrey Arnett, Reckless Behavior

in Adolescence: A Developmental Perspective, 12 Developmental

Rev. 339 (1992)).

Second, the Court observed that “juveniles are more

vulnerable or susceptible to negative influences and outside

pressures, including peer pressure.” Id. at 569, 125 S. Ct. at

1195, 161 L. Ed. 2d at 22. They “have less control, or less

experience with control, over their own environment.” Ibid.

19
 Third, the Court noted “that the character of a juvenile is

not as well formed as that of an adult. The personality traits

of juveniles are more transitory, less fixed.” Id. at 570, 125

S. Ct. at 1195, 161 L. Ed. 2d at 22.

Taken together, those differences mean that the

“irresponsible conduct [of juveniles] is not as morally

reprehensible as that of an adult.” Ibid. (quoting Thompson v.

Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 2699, 101 L. Ed.

2d 702, 719 (1988) (plurality opinion)). Juveniles “have a

greater claim than adults to be forgiven for failing to escape

negative influences in their whole environment,” and there is “a

greater possibility . . . that a minor’s character deficiencies

will be reformed.” Id. at 570, 125 S. Ct. at 1195-96, 161 L.

Ed. 2d at 22.

Because “the signature qualities of youth are transient,”

“impetuousness and recklessness . . . can subside” as juveniles

mature. Id. at 570, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22

(quoting Johnson, supra, 509 U.S. at 368, 113 S. Ct. at 2669,

125 L. Ed. 2d at 306). However, the Court recognized that “[i]t

is difficult even for expert psychologists to differentiate

between the juvenile offender whose crime reflects unfortunate

yet transient immaturity, and the rare juvenile offender whose

crime reflects irreparable corruption.” Id. at 573, 125 S. Ct.

at 1197, 161 L. Ed. 2d at 24.

20
 2.

The Supreme Court’s decision in Graham v. Florida built on

that foundation. In 2010, Graham, supra, held that the Eighth

Amendment categorically forbids sentences of life without parole

for juveniles convicted of non-homicide offenses. 560 U.S. at

82, 130 S. Ct. at 2034, 176 L. Ed. 2d at 850.

The defendant, Terrance Jamar Graham, tried to rob a

restaurant when he was sixteen years old. Id. at 53, 130 S. Ct.

at 2018, 176 L. Ed. 2d at 832. He was arrested and charged as

an adult with armed burglary and attempted armed robbery.

Ibid. Graham pled guilty to both charges and was sentenced to

probation. Id. at 54, 130 S. Ct. at 2018, 176 L. Ed. 2d at 832.

Less than six months later, he violated probation; the trial

court found he committed a home invasion robbery and possessed a

firearm. Id. at 55, 130 S. Ct. at 2019, 176 L. Ed. 2d at 833.

The court revoked Graham’s probation and sentenced him on the

original charges to “life imprisonment for the armed burglary

and 15 years for the attempted armed robbery.” Id. at 57, 130

S. Ct. at 2020, 176 L. Ed. 2d at 834. Because Florida had

abolished its parole system, he had “no possibility of release.”

Id. at 57, 130 S. Ct. at 2020, 176 L. Ed. 2d at 834-35.

The United States Supreme Court reversed the state court’s

judgment and rested its ruling on a number of grounds. First,

as in Roper, the Court pointed to “objective indicia of national

21
consensus.” Id. at 62, 130 S. Ct. at 2023, 176 L. Ed. 2d at

837. The Court found that although relatively few States barred

life without parole for juveniles for non-homicide offenses,

ibid., “actual sentencing practices” revealed how rarely those

sentences are imposed, id. at 64-65, 130 S. Ct. at 2024, 176 L.

Ed. 2d at 839.

Second, the Court stressed its findings in Roper about the

nature of juveniles. Id. at 68, 130 S. Ct. at 2026, 176 L. Ed.

2d at 841. The Court noted that “developments in psychology and

brain science continue to show fundamental differences between

juvenile and adult minds.” Ibid. The Court identified, as a

key difference, that “parts of the brain involved in behavior

control continue to mature through late adolescence.” Ibid. As

a result, “[j]uveniles are more capable of change than are

adults, and their actions are less likely to be evidence of

‘irretrievably depraved character.’” Ibid. (quoting Roper,

supra, 543 U.S. at 570, 125 S. Ct. at 1195, 161 L. Ed. 2d at

22).

As to the types of offenses to which life without parole

might apply, the Court “recognized that defendants who do not

kill, intend to kill, or foresee that life will be taken are

categorically less deserving of the most serious forms of

punishment than are murderers.” Id. at 69, 130 S. Ct. at 2027,

176 L. Ed. 2d at 842. Although robbery and rape, for example,

22
are serious crimes that warrant serious punishment, they “differ

from homicide crimes in a moral sense.” Ibid. Thus, “a

juvenile offender who did not kill or intend to kill has a twice

diminished moral culpability.” Ibid.

The Court next considered the nature of life-without-parole

sentences, “the second most severe penalty permitted by law.”

Ibid. (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.

Ct. 2680, 2705, 115 L. Ed. 2d 836, 869 (1991) (Kennedy, J.,

concurring)). The Court noted that for a defendant, life

without parole “means denial of hope; it means that good

behavior and character improvement are immaterial; it means that

whatever the future might hold in store for the mind and spirit

of [the convict], he will remain in prison for the rest of his

days.” Id. at 70, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842

(alteration in original) (quoting Naovarath v. State, 779 P.2d

944, 944 (Nev. 1989)). The Court also observed that

[l]ife without parole is an especially harsh
punishment for a juvenile. Under this
sentence a juvenile offender will on average
serve more years and a greater percentage of
his life in prison than an adult offender. A
16-year-old and a 75-year-old each sentenced
to life without parole receive the same
punishment in name only. This reality cannot
be ignored.

[Id. at 70-71, 130 S. Ct. at 2028, 176 L. Ed.
2d at 843 (citations omitted).]

23
 The Court found that none of the traditional goals of

sentencing provide an “adequate justification” for life without

parole for a juvenile. Id. at 71, 130 S. Ct. at 2028, 176 L.

Ed. 2d at 843 (citation omitted). Retribution, which relates

directly to the offender’s personal culpability, “does not

justify imposing the second most severe penalty on the less

culpable juvenile nonhomicide offender.” Id. at 71-72, 130 S.

Ct. at 2028, 176 L. Ed. 2d at 843-44.

Deterrence fails as a justification for a similar reason.

Because juveniles are less responsible and more prone to

“‘impetuous and ill-considered actions and decisions,’ they are

less likely to take a possible punishment into consideration

when making decisions.” Id. at 72, 130 S. Ct. at 2028-29, 176

L. Ed. 2d at 844 (quoting Johnson, supra, 509 U.S. at 367, 113

S. Ct. at 2669, 125 L. Ed. 2d at 306).

Incapacitation also does not justify life without parole

because it assumes that a juvenile convicted of a non-homicide

crime “forever will be a danger to society.” Id. at 72, 130 S.

Ct. at 2029, 176 L. Ed. 2d at 844. The Court repeated its

warning in Roper that even experts cannot determine at the

outset that a juvenile is irreparably corrupt. Id. at 72-73,

130 S. Ct. at 2029, 176 L. Ed. 2d at 844.

The Court also dismissed the notion that life without

parole could promote rehabilitation, because defendants are

24
denied the right to reenter society. Id. at 74, 130 S. Ct. at

2029-30, 176 L. Ed. 2d at 845.

The Court held that the Eighth Amendment “forbids” life

without parole “for a juvenile offender who did not commit

homicide,” but added that “[a] State is not required to

guarantee eventual freedom to” those offenders. Id. at 74-75,

130 S. Ct. at 2029-30, 176 L. Ed. 2d at 845. The State must,

however, “give defendants like Graham some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.” Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d

at 845-46. The Court did not define “meaningful opportunity.”

Instead, it noted that “[i]t is for the State, in the first

instance, to explore the means and mechanisms for compliance.”

Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 846.

The Court concluded that “[t]he Eighth Amendment does not

foreclose the possibility that persons convicted of nonhomicide

crimes committed before adulthood will remain behind bars for

life.” Ibid. But the Constitution “does prohibit states from

making the judgment at the outset that those offenders never

will be fit to reenter society.” Ibid. (emphasis added).

3.

Miller v. Alabama adds another important dimension to the

law on juvenile sentencing. In Miller, supra, the Court held

that “the Eighth Amendment forbids a sentencing scheme that

25
mandates life in prison without possibility of parole for

juvenile offenders.” 567 U.S. at ___, 132 S. Ct. at 2469, 183

L. Ed. 2d at 424.

Miller involved two fourteen-year-olds convicted of murder

and sentenced to mandatory life without parole. Id. at ___, 132

S. Ct. at 2460, 183 L. Ed. 2d at 414. One juvenile, Kuntrell

Jackson, was charged as an adult with capital felony murder and

aggravated robbery for his role in the robbery of a video store.

Id. at ___, 132 S. Ct. at 2461, 183 L. Ed. 2d at 415. An

accomplice shot and killed the store clerk during the robbery.

Ibid. A jury convicted Jackson of both crimes, and a judge

imposed a sentence of life without parole, which Arkansas law

required. Ibid. (citing Ark. Code. Ann. § 5-5-104(b) (1997)).

The other juvenile, Evan Miller, was charged as an adult with

murder in the course of arson for beating a neighbor with a

baseball bat and then lighting two fires to cover up the crime.

Id. at ___, 132 S. Ct. at 2462-63, 183 L. Ed. 2d at 416-17. A

jury found Miller guilty of the crime, which “carries a

mandatory minimum punishment of life without parole” in Alabama.

Id. at ___, 132 S. Ct. at 2463, 183 L. Ed. 2d at 417 (citing

Ala. Code §§ 13A-5-40(9), 13A-6-2(c) (1982)).

To review those sentences, the Court returned to principles

it had outlined in Roper and Graham, namely, that “children are

constitutionally different from adults for purposes of

26
sentencing” and “have diminished culpability and greater

prospects for reform.” Id. at ___, 132 S. Ct. at 2464, 183 L.

Ed. 2d at 418. The Court reiterated that “youth matters in

determining the appropriateness of a lifetime of incarceration

without the possibility of parole.” Id. at ___, 132 S. Ct. at

2465, 183 L. Ed. 2d at 420. But mandatory penalty schemes, the

Court noted, “prevent the sentencer from taking account of”

“youth and its attendant characteristics.” Id. at ___, 132 S.

Ct. at 2460, 2466, 183 L. Ed. 2d at 414, 420. “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 421.

The Court also invoked a second line of precedent that

“demand[s] individualized sentencing when imposing the death

penalty.” Id. at ___, 132 S. Ct. at 2467, 183 L. Ed. 2d at 421-

22 (citations omitted). In those rulings, the Court “insisted

. . . that a sentencer have the ability to consider the

‘mitigating qualities of youth.’” Id. at ___, 132 S. Ct. at

2467, 183 L. Ed. 2d at 422 (quoting Johnson, supra, 509 U.S. at

367, 113 S. Ct. at 2669, 125 L. Ed. 2d at 306).

Against that backdrop, the Court outlined five factors

(“the Miller factors”), which are particularly instructive for

sentencing judges:

27
 Mandatory life without parole for a juvenile

[1] precludes consideration of his
chronological age and its hallmark features
-- among them, immaturity, impetuosity, and
failure to appreciate risks and consequences.

[2] It prevents taking into account the
family and home environment that surrounds him
-- and from which he cannot usually extricate
himself -- no matter how brutal or
dysfunctional.

[3] It neglects 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] Indeed, it ignores that he might have
been charged and convicted of a lesser offense
if not for 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.

[5] And finally, this mandatory punishment
disregards the possibility of rehabilitation
even when the circumstances most suggest it.

[Id. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d
at 423. (citations omitted).]

Once again, the Supreme Court did not “foreclose” life

without parole for juveniles convicted of a homicide offense.

Id. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. But the

Court required sentencing judges “to take into account how

children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison.”

Ibid. In the end, citing Roper and Graham, the Court observed

28
that the “harshest possible penalty will be uncommon” because of

how difficult it is to conclude at an early age that a juvenile

is irreparably corrupt. Ibid.

4.

In 2016, the Court held that Miller “announced a

substantive rule of constitutional law” that applies

retroactively. Montgomery, supra, 577 U.S. at ___, 136 S. Ct.

at 734, 193 L. Ed. 2d at 619. The defendant, Henry Montgomery,

was sentenced to life without parole for killing a deputy

sheriff in 1963, when Montgomery was seventeen years old. Id.

at ___, 136 S. Ct. at 725-26, 193 L. Ed. 2d at 610. The Court

captured the essence of the ruling at the very end of the

decision:

Henry Montgomery has spent each day of the
past 46 years knowing he was condemned to die
in prison. Perhaps it can be established
that, due to exceptional circumstances, this
fate was a just and proportionate punishment
for the crime he committed as a 17-year-old
boy. In light of what this Court has said in
Roper, Graham, and Miller about how children
are constitutionally different from adults in
their level of culpability, however, prisoners
like Montgomery 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
prison walls must be restored.

[Id. at ___, 136 S. Ct. at 736-37, 193 L.
Ed. 2d at 622-23.]

29
 B.

Will a juvenile be imprisoned for life, or will he have a

chance at release? It does not matter to the juvenile whether

he faces formal “life without parole” or multiple term-of-years

sentences that, in all likelihood, will keep him in jail for the

rest of his life. We believe it does not matter for purposes of

the Federal or State Constitution either.

Miller’s command that a sentencing judge “take into account

how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison,”

Miller, supra, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed.

2d at 424, applies with equal strength to a sentence that is the

practical equivalent of life without parole. Defendants who

serve lengthy term-of-years sentences that amount to life

without parole should be no worse off than defendants whose

sentences carry that formal designation. The label alone cannot

control; we decline to elevate form over substance.

Some State courts have reached the same conclusion. See,

e.g., People v. Caballero, 282 P.3d 291, 295 (Cal. 2012);

Casiano v. Comm’r of Corr., 115 A.3d 1031, 1044 (Conn. 2015),

cert. denied, ___ U.S. ___, 136 S. Ct. 1364, 194 L. Ed. 2d 376

(2016); Henry v. State, 175 So. 3d 675, 680 (Fla. 2015); Brown

v. State, 10 N.E.3d 1, 8 (Ind. 2014); State v. Null, 836 N.W.2d

41, 71 (Iowa 2013); Cloud v. State, 334 P.3d 132, 144 (Wyo.

30
2014); see also Moore v. Biter, 725 F.3d 1184, 1191-92 (9th Cir.

2013).

Others have not. See, e.g., Adams v. State, 707 S.E.2d

359, 365 (Ga. 2011); State v. Brown, 118 So. 3d 332, 332 (La.

2013); Vasquez v. Commonwealth, 781 S.E.2d 920, 926 (Va.), cert.

denied, ___ U.S. ___, ___ S. Ct. ___, 196 L. Ed. 2d 448 (2016);

see also Bunch v. Smith, 685 F.3d 546, 551 (6th Cir. 2012),

cert. denied, ___ U.S. ___, 133 S. Ct. 1996, 185 L. Ed. 2d 865

(2013).

The focus at a juvenile’s sentencing hearing belongs on the

real-time consequences of the aggregate sentence. To that end,

judges must evaluate the Miller factors when they sentence a

juvenile to a lengthy period of parole ineligibility for a

single offense. They must do the same when they consider a

lengthy period of parole ineligibility in a case that involves

multiple offenses at different times -- when judges decide

whether to run counts consecutively, and when they determine the

length of the aggregate sentence.2

2 The State suggests that New Jersey law already addresses
Miller’s concerns. We do not agree. Certain sentencing factors
touch on a defendant’s youthful status. See, e.g., N.J.S.A.
2C:44-1(b)(13) (“The conduct of a youthful defendant was
substantially influenced by another person more mature than the
defendant.”); see also N.J.S.A. 2C:44-1(b)(4) (“There were
substantial grounds tending to excuse or justify defendant’s
conduct, though failing to establish a defense.”). But youth
and its attendant circumstances, as discussed in Miller, are not
independently weighed as statutory mitigating factors.
31
 To be clear, we find that the force and logic of Miller’s

concerns apply broadly: to cases in which a defendant commits

multiple offenses during a single criminal episode; to cases in

which a defendant commits multiple offenses on different

occasions; and to homicide and non-homicide cases.

With regard to Comer, the State argues that Graham cannot

apply to a sentence for a homicide offense. “But none of what

[Graham] said about children -- about their distinctive (and

transitory) mental traits and environmental vulnerabilities --

is crime-specific. Those features are evident in the same way,

and to the same degree, when . . . a botched robbery turns into

a killing.” Miller, supra, 567 U.S. ___, 132 S. Ct. at 2465,

183 L. Ed. 2d at 420. Indeed, the principles in Graham are at

the heart of Roper, Miller, and Montgomery as well. They teach

us, in essence, that youth matters under the Constitution. We

believe that youth matters in each case that calls for a lengthy

sentence that is the practical equivalent of life without

parole.

The term-of-years sentences in these appeals -- a minimum

of 55 years’ imprisonment for Zuber and 68 years and 3 months

for Comer -- are not officially “life without parole.” But we

find that the lengthy term-of-years sentences imposed on the

juveniles in these cases are sufficient to trigger the

protections of Miller under the Federal and State Constitutions.

32
See Casiano, supra, 115 A.3d at 1044 (50-year sentence without

possibility of parole is subject to Miller); Null, supra, 836

N.W.2d at 71 (minimum sentence of 52.5 years’ imprisonment

invokes Miller). Defendants’ potential release after five or

six decades of incarceration, when they would be in their

seventies and eighties, implicates the principles of Graham and

Miller.

Existing case law addresses some relevant concerns. In

Yarbough, the Court adopted six criteria to help trial courts

decide whether to impose consecutive sentences:

(1) there can be no free crimes in a system
for which the punishment shall fit the crime;

(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;

(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, including whether or not:

(a) the crimes and their objectives were
predominantly independent of each other;

(b) the crimes involved separate acts of
violence or threats of violence;

(c) the crimes were committed at
different times or separate places,
rather than being committed so closely in
time and place as to indicate a single
period of aberrant behavior;

(d) any of the crimes involved multiple
victims;

33
 (e) the convictions for which the
sentences are to be imposed are numerous;

(4) there should be no double counting of
aggravating factors;

(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense; and

(6) there should be an overall outer limit on
the cumulation of consecutive sentences for
multiple offenses not to exceed the sum of the
longest terms (including an extended term, if
eligible) that could be imposed for the two
most serious offenses.3

[Yarbough, supra, 100 N.J. at 643-44
(footnotes omitted).]

To be sure, the decision whether sentences for different

counts of conviction should run consecutively or concurrently

often drives the real-time outcome at sentencing. The cases

before us make that clear. For Zuber, six consecutive counts

resulted in 110 years’ incarceration with 55 years of parole

ineligibility. For Comer, four consecutive counts amounted to

75 years’ imprisonment with 68 years and 3 months of parole

ineligibility. Because of how young they were at the time of

their offenses, both defendants will likely serve more time in

jail than an adult sentenced to actual life without parole. See

Miller, supra, 567 U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed.

3 In 1993, the Legislature amended N.J.S.A. 2C:44-5(a) to
provide that “[t]here shall be no overall outer limit on the
cumulation of consecutive sentences for multiple offenses.” L.
1993, c. 223.
34
2d at 422; Graham, supra, 560 U.S. at 70, 130 S. Ct. at 2028,

176 L. Ed. 2d at 843.

Yarbough, however, does not cover the Miller factors. To

be faithful to the concerns that Graham and Miller highlight,

which our State Constitution embraces as well, a sentencing

court must consider not only the factors in Yarbough but also

the ones in Miller when it decides whether to impose consecutive

sentences on a juvenile which may result in a lengthy period of

parole ineligibility. Because of the overriding importance of

that decision, we direct trial judges to exercise a heightened

level of care before imposing multiple consecutive sentences on

juveniles.

In all of those cases, consistent with settled law, judges

must do an individualized assessment of the juvenile about to be

sentenced -- with the principles of Graham and Miller in mind.

Judges, of course, are to consider the nature of the offense,

the juvenile’s history, and relevant aggravating and mitigating

factors. They should apply Miller’s template as well when they

consider a lengthy, aggregate sentence that amounts to life

without parole.

Judges, however, should not resort to general life-

expectancy tables when they determine the overall length of a

sentence. Those tables rest on informed estimates, not firm

dates, and the use of factors like race, gender, and income

35
could raise constitutional issues. For that reason, the

Appellate Division did not use tables based on sex, race, or

ethnicity. Zuber, supra, 442 N.J. Super. at 633; see also Null,

supra, 836 N.W.2d at 71 (noting that whether Miller or Graham

should “apply in a given case should [not] turn on the niceties

of epidemiology, genetic analysis, or actuarial sciences in

determining precise mortality dates”).

C.

Neither Graham nor Miller foreclosed life without parole

for juveniles. Miller, supra, 567 U.S. at ___, 132 S. Ct. at

2469, 183 L. Ed. 2d at 424; Graham, supra, 560 U.S. at 75, 130

S. Ct. at 2030, 176 L. Ed. 2d at 846. At the same time, the

Court stressed that it is only the “rare juvenile offender whose

crime reflects irreparable corruption.” Miller, supra, 567 U.S.

at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (quoting Roper,

supra, 543 U.S. at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d at

24). And, even for experts, it is difficult at an early age to

differentiate between the immature offender who may reform and

the juvenile who is irreparably corrupt. Ibid.; Roper, supra,

543 U.S. at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24. It is

even harder for a judge to make that determination at the moment

the juvenile offender appears for sentencing.

These appeals require us to address what should happen when

a juvenile facing a very lengthy term of imprisonment is first

36
sentenced. As discussed above, we hold that sentencing judges

should evaluate the Miller factors at that time to “take into

account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in

prison.” Miller, supra, 567 U.S. ___, 132 S. Ct. at 2469, 183

L. Ed. 2d at 424.

But Graham adds a challenging dimension. It explains that

the Constitution “prohibit[s] States from making the judgment at

the outset that [a juvenile] never will be fit to reenter

society.” Graham, supra, 560 U.S. at 75, 130 S. Ct. at 2030,

176 L. Ed. 2d at 846 (emphasis added). The Court later

highlighted that Graham’s sentence violated the Eighth Amendment

because the State “denied him any chance to later demonstrate

that he is fit to rejoin society.” Id. at 79, 130 S. Ct. at

2033, 176 L. Ed. 2d at 848 (emphasis added).

We recognize that, even when judges begin to use the Miller

factors at sentencing, a small number of juveniles will receive

lengthy sentences with substantial periods of parole

ineligibility, particularly in cases that involve multiple

offenses on different occasions or multiple victims. Imagine a

sentence with a 50-year period of parole ineligibility imposed

on a juvenile today. Decades from now, before he becomes

eligible for parole, he might return to court to challenge the

constitutionality of his sentence. He might ask the court to

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review factors that could not be fully assessed when he was

originally sentenced -- like whether he still fails to

appreciate risks and consequences, or whether he may be, or has

been, rehabilitated. Miller, supra, 567 U.S. ___, 132 S. Ct.

at 2468, 183 L. Ed. 2d at 423.

We cannot address such a claim now. We simply recognize

that it would raise serious constitutional issues about whether

sentences for crimes committed by juveniles, which carry

substantial periods of parole ineligibility, must be reviewed at

a later date.

To avoid a potential constitutional challenge in the

future, we encourage the Legislature to examine this issue.

Graham left it to the States “to explore the means and

mechanisms” to give defendants “some meaningful opportunity to

obtain release based on demonstrated maturity and

rehabilitation.” Graham, supra, 560 U.S. at 75, 130 S. Ct. at

2030, 176 L. Ed. 2d at 846. Some legislatures have already

acted.4

4 See, e.g., Cal. Penal Code §§ 1170(d)(2)(A)(i) (allowing
juveniles sentenced to life without parole to petition court for
resentencing after 15 years), 3051(b) (2016) (providing parole
eligibility for juveniles after 15, 20, or 25 years, depending
on length of original sentence); Del. Code. Ann. tit. 11,
§ 4204A(d)(1)-(2) (2016) (providing for judicial review of
sentence for juvenile offenders after 30 years for first-degree
homicide and after 20 years for other offenses); Fla. Stat. §
921.1402 (2016) (providing for judicial review of sentences for
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 We ask the Legislature to consider enacting a scheme that

provides for later review of juvenile sentences with lengthy

periods of parole ineligibility, and to consider whether

defendants should be entitled to appointed counsel at that

hearing. To the extent the parties and amici urge this Court to

impose a maximum limit on parole ineligibility for juveniles of

thirty years, we defer to the Legislature on that question.

VI.

In light of the above analysis, Zuber is entitled to be

resentenced. At a new sentencing hearing, the trial court

should consider the Miller factors when it determines the length

of his sentence and when it decides whether the counts of

juvenile offenders of at least 15 years after 15, 20, or 25
years, depending on length of original sentence, and
establishing right to counsel); Mont. Code Ann. § 46-18-222(1)
(2016) (exempting juvenile offenders from sentences of life
without parole and restrictions on parole eligibility); N.C.
Gen. Stat. § 15A-1340.19A (2016) (providing parole eligibility
after 25 years for juvenile offenders convicted of first-degree
murder); Wash. Rev. Code § 9.94A.730(1) (2016) (allowing
juvenile offenders to petition sentence review board for release
after 20 years); W. Va. Code § 61-11-23(b) (2016) (providing
parole eligibility after 15 years for juvenile offenders
sentenced to more than 15 years); Wyo. Stat. Ann. § 6-10-301(c)
(2016) (providing parole eligibility after 25 years for juvenile
offenders sentenced to life in prison).
Our Legislature has expressed similar concerns in other
areas. Under the “Three Strikes Law,” N.J.S.A. 2C:43-7.1(e),
for example, certain offenders sentenced to life imprisonment
without parole who are at least 70 years old and have served at
least 35 years in prison shall be eligible for parole.
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conviction should run consecutively. In short, the court should

consider factors such as defendant’s “immaturity, impetuosity,

and failure to appreciate risks and consequences”; “family and

home environment”; family and peer pressures; “inability to deal

with police officers or prosecutors” or his own attorney; and

“the possibility of rehabilitation.” Miller, supra, 567 U.S. at

___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423. The sentencing

judge should also “view defendant as he stands before the court”

at resentencing and consider any rehabilitative efforts since

his original sentence. State v. Randolph, 210 N.J. 330, 354

(2012).

As the trial court found, defendant Comer is entitled to

the same type of resentencing hearing.

VII.

We reverse and remand Zuber’s case and affirm and remand

Comer’s case. Both defendants should be resentenced consistent

with the principles outlined above.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.

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