STATE OF NEW JERSEY VS. ROBERT M. HARMON (88-01-0039, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0944-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT M. HARMON,

Defendant-Appellant.
___________________________

Submitted May 1, 2019 – Decided May 20, 2019

Before Judges Koblitz and Mayer.

On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 88-01-
0039.

Robert M. Harmon, appellant pro se.

Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Robert Harmon appeals from the trial court's denial of his

petition for post-conviction relief (PCR) to correct an illegal sentence without

an evidentiary hearing. He claims a violation of Miller v. Alabama, 567 U.S.

460 (2012). We affirm.

On February 27, 1987, when defendant was seventeen years old, he was

charged with juvenile delinquency, N.J.S.A. 2A:4A-23, for acts that, if

committed by an adult, would constitute murder, robbery and possession of a

weapon for an unlawful purpose. After waiver to adult court, defendant was

convicted of purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2);

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d); and theft as a lesser included

offense of armed robbery, N.J.S.A. 2C15-1.

In 1988, defendant was sentenced to an aggregate term of life in prison,

with thirty years of parole ineligibility. We affirmed defendant's convictions

and sentence. State v. Harmon, No. A-2532-88 (App. Div. Sept. 25, 1991) (slip

op. at 8), certif. denied, 127 N.J. 559 (1992).

In 1994, the Law Division denied defendant's first PCR petition. We

affirmed. State v. Harmon, No. A-3819-95 (App. Div. June 10, 1998) (slip op.

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at 1, 8), certif. denied, 156 N.J. 411 (1998). We also affirmed the denial of

defendant's second PCR petition. State v. Harmon, No. A-5219-99 (App. Div.

Nov. 14, 2001).

In 2006, the Law Division denied defendant's third PCR petition. In 2007,

the Law Division denied defendant's motion to correct an illegal sentence. In

2009, the Law Division denied defendant's second motion to correct an illegal

sentence, finding that defendant's claims were barred pursuant to Rule 3:22-5

because the same issues were addressed in 2007. According to the State,

defendant filed a third motion to correct an illegal sentence in 2010, but that

motion was not heard, because the Law Division had already ruled on the same

motion. In November 2016, the Law Division denied defendant's fourth motion

to correct an illegal sentence. On August 18, 2017, the Law Division denied

defendant's fifth motion to correct an illegal sentence because "no grounds

[were] proffered to reconsider the [2016] decision . . . ." This appeal followed

that 2017 denial.

We previously described the facts leading up to defendant's convictions

in his direct appeal. Harmon, No. A-2532-88 (slip op. at 2-3). When defendant

appeared for sentencing for murder and related charges on December 12, 1988,

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he was nineteen years old. Defense counsel acknowledged that the court had

limited sentencing options, saying:

[T]he law requires your Honor to sentence my client to
a mandatory [thirty] year term without parole. The only
discretion this court has is whether or not to sentence
him to a [thirty] year sentence with no parole for [thirty]
years or to a life sentence with no parole for [thirty]
years.

After reviewing aggravating and mitigating factors, N.J.S.A. 2C:44-1(a)

and (b), the court sentenced defendant to an aggregate term of life in prison with

thirty years of parole ineligibility.

Pointing to Miller v. Alabama, 567 U.S. 460 (2012) and State v. Zuber,

227 N.J. 422 (2017), defendant argued most recently before the Law Division

that because he had been incarcerated for more than thirty years without a

"realistic and meaningful opportunity for release based on demonstrated

maturity and rehabilitation," his sentence amounted to the "functional[]

equivalent of life [in prison] without parole." Defendant argued his sentence

was illegal because: (a) he "received the same sentence as an adult offender";

(b) the court did not take into account defendant's status as a juvenile or consider

the Miller factors; (c) defendant's sentence was improperly "offense based and

not offender based"; (d) "mandatory sentences unconstitutionally deprive

juveniles of any relevant characteristics of youth;" (e) "mandatory sentences for

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juveniles impermissibly undermine[] the reliability of the sentence as it relates

to moral culpability and potential for maturity and reform;" (f) "juveniles are

particularly vulnerable to negative influences and outside pressures;" (g)

because defendant was seventeen years old at the time of the crime, his sentence

"serve[d] no legitimate penological justification and violate[d] the prohibition

against cruel and unusual punishment under both the state and federal

constitution[s];" and (h) defendant had matured and sought post-sentencing

rehabilitation.

Defendant, appearing pro se, presents the following issue 1 on appeal:

POINT I: THE LOWER COURT ERRED IN ITS
DENIAL ORDER OF APPELLANT'S MOTION TO
CORRECT AN ILLEGAL SENTENCE ON THE
PAPERS ALONE WITHOUT AFFORDING, AT
LEAST, AN EVIDENTIARY HEARING TO ASSESS,
ON THE RECORD, THE ALLEGED ILLEGALITY
OF HIS SENTENCE, I.E., WHERE HE WAS NEVER
AFFORDED THE OPPORTUNITY TO PRESENT TO
A SENTENCING COURT OR HAVE A
SENTENCING COURT CONSIDER THE FIVE (5)
MITIGATING FACTORS OF "YOUTH AND ITS
ATTENDANT ASSOCIATED TRAITS AND
CHARACTERISTICS" SET FORTH BY THE U.S.
SUPREME COURT IN MILLER V. ALABAMA, 567
U.S. 460 (2012), APPLIED RETROACTIVELY VIA
MONTGOMERY V. LOUISIANA, 136 S. Ct. 718
(2016), RECOGNIZED AND APPLIED BY THIS
HONORABLE COURT IN STATE V. ZUBER, 227

1
We corrected minor citation, spelling and grammatical errors.
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 N.J. 422 (2017), THE MITIGATING FACTORS OF
"YOUTH AND ITS ATTENDANT
CHARACTERISTICS" MUST BE CONSIDERED IN
AN "INDIVIDUALIZED SENTENCING HEARING"
ADOPTING THE U.S. SUPREME COURT
POSITION THUS THE LOWER COURT'S DENIAL,
FINDING THAT IT FOUND NO GROUNDS FOR
RELIEF WAS AN ERROR AND IS IN COMPLETE
CONFLICT WITH AND CONTRARY TO THE U.S.
SUPREME COURT AND NEW JERSEY SUPREME
COURT CLEARLY ESTABLISHED PRECEDENTS
AND THEREFORE THE LOWER COURT'S DENIAL
MUST BE REVERSED AND THE MATTER
SHOULD BE REMANDED IN THE INTEREST OF
JUSTICE.

We review a denial of post-conviction relief without an evidentiary

hearing de novo. State v. Harris, 181 N.J. 391, 420-21 (2004). One ground for

post-conviction relief is an illegal sentence. R. 3:22-2(c). An illegal sentence

is one "not imposed in accordance with law." State v. Acevedo, 205 N.J. 40, 45

(2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)); see also State v.

Tavares, 286 N.J. Super. 610, 618 (App. Div. 1996) (noting that an illegal

sentence is one "imposed without regard to some constitutional safeguard or

procedural requirement"). A defendant may move to change an illegal sentence

at any time. R. 3:21-10(b)(5).

A person convicted of murder "shall be sentenced," unless otherwise

provided in the statute, "to a term of [thirty] years, during which the person shall

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not be eligible for parole, or be sentenced to a specific term of years which shall

be between [thirty] years and life imprisonment of which the person shall serve

[thirty] years before being eligible for parole." N.J.S.A. 2C:11-3(b)(1)

(emphasis added). "A juvenile who has been tried as an adult and convicted of

murder shall be sentenced pursuant to [N.J.S.A. 2C:11-3(b)(1)]." N.J.S.A.

2C:11-3(b)(5) (emphasis added).

In three landmark cases, the United States Supreme Court relied on

scientific data to find that age is an important factor when assessing juvenile

culpability at sentencing. Miller, 567 U.S. at 471-73; Graham v. Florida, 560

U.S. 48, 68-69 (2010); Roper v. Simmons, 543 U.S. 551, 568 -72 (2005). In

Roper, the Court held that the Eighth Amendment protection against cruel and

unusual punishment prohibits sentencing juveniles under eighteen years old to

the death penalty. 543 U.S. at 568, 578. In Graham, the Court held that the

Eighth Amendment also prohibits sentencing juveniles to life without parole for

non-homicide offenses. 560 U.S. at 74-75. Finally, in Miller, the Court

determined that a sentencing judge must consider youth-related factors "before

concluding that life without any possibility of parole was the appropriate

penalty." 567 U.S. at 479. The Court stated: "Although we do not foreclose a

sentencer's ability to make that judgment in homicide cases, we require it to take

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into account how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison." Id. at 480. The

holding in Miller applies retroactively to sentences of life without parole,

"regardless of when a conviction became final." Montgomery v. Louisiana, 136

S. Ct. 718, 729, 732 (2016).

In Zuber, Chief Justice Rabner stated: "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." Id. at 453. We

more recently held that a juvenile's sentence of life in prison with thirty-five

years of parole ineligibility, for a murder he committed at the age of fourteen,

was not illegal. State v. Bass, 457 N.J. Super. 1, 4, 12-13 (App. Div. 2018).

On January 28, 2019, we affirmed a New Jersey State Parole Board

decision denying defendant parole and imposing a 120-month future eligibility

term. Harmon v. N.J. State Parole Bd., No. A-1977-17 (App. Div. Jan. 28, 2019)

(slip op. at 2). Defendant had "incurred a litany of serious infractions . . . in

1991 to 1996, 1999, 2001 to 2002, 2006, 2008, and 2013, during [defendant's]

twenties, thirties, and forties." Id. at 3, 10. In October 2008, defendant fought

with several corrections officers, two of whom were sent to the hospital. Id. at

3. After this incident, defendant "was sentenced to a suspended term of eighteen

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months incarceration for aggravated assault." Ibid. Of the twenty-nine

infractions defendant committed while incarcerated, ten were deemed serious.

Ibid.

Defendant did not receive a sentence of life without the realistic

possibility of parole for offenses he committed as a juvenile. His continued

incarceration is based on his adult behavior in prison.

Affirmed.

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