STATE OF NEW JERSEY VS. CALVIN BASS (83-06-2420, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0407-17T4

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, November 14, 2018

v. APPELLATE DIVISION

CALVIN BASS,

Defendant-Appellant.
____________________________

Submitted October 31, 2018 – Decided November 14, 2018

Before Judges Alvarez, Reisner, and Mawla.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 83-06-2420.

John Vincent Saykanic, attorney for appellant.

Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Tiffany M.
Russo, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

MAWLA, J.A.D.

Defendant Calvin Bass appeals from a September 7, 2017 order denying

his fourth petition for post-conviction relief (PCR). We affirm, and hold
N.J.S.A. 2A:4A-26.1(c)(1), which does not authorize the waiver to adult court

of a juvenile under the age of fifteen, has no retroactive application where a

defendant's conviction and sentence have been adjudicated with finality.

The following facts are taken from the record. In March 1983,

defendant and two other minors were arrested for entering the home of an

elderly man and fatally beating him with a wooden nail-studded board to near

decapitation, while he lay in bed. Defendant was fourteen years and one

month old at the time of the arrest. He was found in possession of the wooden

board, as well as two color televisions and an eight-track player belonging to

the victim.

Following a competency hearing, the Family Part judge granted the

State's motion to waive jurisdiction pursuant to N.J.S.A. 2A:4A-26.

Subsequently, a jury convicted defendant of first-degree felony murder,

N.J.S.A. 2C:11-3(a)(3); second-degree burglary, N.J.S.A. 2C:18-2(b)(2); first-

degree robbery, N.J.S.A. 2C:15-1(b); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d).

Defendant was sentenced to life imprisonment with thirty years of parole

ineligibility for the first-degree felony murder conviction, and ten years with

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five years of parole ineligibility for the second-degree burglary—which ran

consecutively. Defendant was sentenced to eighteen months each on the

fourth-degree unlawful possession of a weapon and third-degree possession of

a weapon for an unlawful purpose, which ran concurrently with the felony

murder and burglary sentences. All other charges were merged. Defendant's

aggregate sentence was life imprisonment with thirty-five years of parole

ineligibility.

Defendant appealed from his conviction and sentence, and we affirmed.

State v. Bass, No. A-0056-84 (App. Div. Sept. 26, 1986) (slip op. at 10). The

Supreme Court denied certification. State v. Bass, 107 N.J. 70 (1987).

Defendant's first PCR petition was denied without an evidentiary hearing

in 1988. He did not appeal from the denial, but filed a federal writ of habeas

corpus, which was dismissed. Defendant's second PCR petition was denied,

and we affirmed on appeal. State v. Bass, No. A-5963-95 (App. Div. Jan. 22,

1998) (slip op. at 2). The Supreme Court denied certification. State v. Bass,

153 N.J. 404 (1998). Defendant filed a second federal writ of habeas corpus,

which was terminated on March 12, 1999.

In June 2011, defendant filed a third PCR petition, which was denied.

He subsequently filed a third federal writ of habeas corpus, which was denied

in October 2013.

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 The matter currently on appeal arises from defendant's fourth PCR

petition, filed in February 2017. In his petition, defendant argued the revised

waiver statute, N.J.S.A. 2A:4A-26.1(c)(1), enacted in 2015, should be applied

retroactively to his case. Defendant challenged his sentence and argued it was

tantamount to a life sentence without parole, and thus, illegal. Defendant also

argued his subsequent rehabilitation during incarceration refuted the

sentencing judge's finding defendant was not amenable to rehabilitation.

The PCR judge issued a written opinion denying defendant's petition

without an evidentiary hearing. Reviewing the plain language of N.J.S.A.

2A:4A-26.1(c)(1), the PCR judge found no express language permitting the

retroactive application of the statute. Referencing our decision in State in

Interest of J.F., 446 N.J. Super. 39, 56 (App. Div. 2016), where we applied the

statute retroactively, the judge concluded the ameliorative purpose of the

revised waiver statute was procedural in nature and did not "affect a criminal

penalty." The judge found there was no expectation the revised statute would

apply to defendant because he had already been

waived, indicted, tried, and sentenced nearly [thirty-
three] years before the revision came into effect. His
conviction and sentence were affirmed. He filed three
PCR petitions which were denied and affirmed on
appeal. He has filed three times for a federal writ of
habeas corpus which were then respectively
dismissed, terminated, and denied.

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 The judge concluded:

While the majority in [J.F.] makes a compelling
argument for why N.J.S.A. 2A:4A-26.1 should apply
retroactively in that particular case, its instruction to
the lower courts is unclear as to how it would apply to
an aged, [extensively] litigated case such as the one
before this court. In light of that ambiguity, the
preference for applying new laws prospectively must
control, as should a plain language reading of the
statute, which does not expressly mention
retroactivity.

The PCR judge rejected defendant's arguments regarding his sentence.

He concluded:

Defendant's sentence is not functionally equivalent to
life without parole: his parole disqualifier is [thirty-
five] years. He is, in fact, currently scheduled for a
parole board hearing on September 1, 2018, at which
time he will be [forty-nine] years old. Pursuant to the
life expectancy chart adopted for use in the New
Jersey Courts, [defendant] is currently expected to live
another 32.2 years. [Life Expectancies for All Races
and Both Sexes, Pressler & Verniero, Current N.J.
Court Rules, Appendix I-A, www.gannlaw.com
(2017).]

The PCR judge rejected defendant's claim that his rehabilitation during

incarceration warranted revisiting his sentence, because there was no means

for the sentencing judge to consider defendant's rehabilitation as a factor. The

judge concluded defendant's rehabilitation was a consideration for the parole

board. This appeal followed.

On appeal, defendant raises the following arguments:

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POINT I

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF SINCE N.J.S.A. 2A:4A-
26.1(c)(1), WHICH PROVIDES THAT A JUVENILE
CANNOT BE WAIVED TO THE LAW DIVISION
UNLESS THE STATE CAN ESTABLISH THAT
THE JUVENILE WAS 15 YEARS OF AGE OR
OLDER AT THE TIME OF THE DELINQUENT
ACT, APPLIED RETROACTIVELY TO THE
DEFENDANT'S CASE, IN WHICH HE WAS 14
YEARS OLD AT THE TIME OF THE OFFENSE IN
QUESTION.

POINT II

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S MOTION TO CORRECT AN
ILLEGAL SENTENCE UNDER [RULE] 3:21-
10(b)(5) AS THE SENTENCE VIOLATES THE
EIGHTH AMENDMENT PROHIBITION AGAINST
[THE] CRUEL AND UNUSUAL PUNISHMENT
CLAUSE, FOURTEENTH AMENDMENT DUE
PROCESS CLAUSE OF THE UNITED STATES
CONSTITUTION, AND THE NEW JERSEY
CONSTITUTION'S CRUEL AND UNUSUAL
PUNISHMENT CLAUSE. (N.J. CONST. ARTICLE
I, PARAGRAPH 12).

POINT III

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF/MOTION TO CORRECT AN
ILLEGAL SENTENCE AS HE HAS BEEN
REHABILITATED CONTRARY TO THE
SENTENCING JUDGE'S DETERMINATION THAT
DEFENDANT COULD NOT BE REHABILITATED.

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 I.

"Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v.

Preciose, 129 N.J. 451, 459 (1992)). The process affords an adjudged criminal

defendant a "last chance to challenge the fairness and reliability of a criminal

verdict[.]" State v. Nash, 212 N.J. 518, 540 (2013) (internal quotations and

citations omitted); see also Rule 3:22-1. "Post-conviction relief is neither a

substitute for direct appeal, [Rule] 3:22-3, nor an opportunity to relitigate

cases already decided on the merits, [Rule] 3:22-5." Preciose, 129 N.J. at 459;

see also State v. Echols, 199 N.J. 344, 357 (2009).

"[W]here the [PCR] court does not hold an evidentiary hearing, we may

exercise de novo review over the factual inferences the trial court has drawn

from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373

(App. Div. 2014) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). Thus,

if warranted, we may "conduct a de novo review of both the factual findings

and legal conclusions of the PCR court." Ibid. (citing Harris, 181 N.J. at 421

(emphasis omitted)).

A petition for PCR may be granted upon the following grounds:

(a) Substantial denial in the conviction proceedings of
defendant's rights under the Constitution of the United
States or the Constitution or laws of the State of New
Jersey;

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 (b) Lack of jurisdiction of the court to impose the
judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise
not in accordance with the sentence authorized by law
if raised together with other grounds cognizable under
paragraph (a), (b), or (d) of this rule. Otherwise a
claim alleging the imposition of sentence in excess of
or otherwise not in accordance with the sentence
authorized by law shall be filed pursuant to [Rule]
3:21-10(b)(5).

(d) Any ground heretofore available as a basis for
collateral attack upon a conviction by habeas corpus
or any other common-law or statutory remedy.

[R. 3:22-2.]

Furthermore, "[a] truly illegal sentence can be corrected at any time."

State v. Zuber, 442 N.J. Super. 611, 617 (App. Div. 2015), rev'd on other

grounds, 227 N.J. 422 (2017) (internal citations and quotations omitted). "A

sentence is illegal if it 'exceeds the maximum penalty provided in the Code for

a particular offense,' is 'not imposed in accordance with law,' or fails to include

a mandatory sentencing requirement." State v. Locane, 454 N.J. Super. 98,

117 (App. Div. 2018) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)).

"Whether [a] defendant's sentence is unconstitutional is an issue of law subject

to de novo review." Zuber, 442 N.J. Super. at 618 (citing State v. Pomianek,

221 N.J. 66, 80 (2015)).

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 II.

Defendant argues the PCR judge erred in failing to apply N.J.S.A.

2A:4A-26.1(c)(1) retroactively pursuant to J.F. because federal law and

fundamental principles of fairness favor a retroactive application of the waiver

statute. We disagree.

In J.F., we undertook a detailed analysis of the revised waiver statute

and affirmed a trial court's denial of a waiver request involving a murder

allegedly committed by a fourteen-year-old child. 446 N.J. Super. at 41-42.

The trial court in J.F. found "strong and compelling prospects for rehabilitation

substantially outweigh[ed] the standard of the attenuated argument of

deterrence in the case." Id. at 51 (internal quotations omitted). The trial judge

made the waiver decision on August 13, 2015, three days after the Governor

signed the revised waiver statute into law. Id. at 52. The trial judge did not

apply the new statute, which would become effective March 1, 2016. Ibid.

Following the submission of supplemental briefs, we addressed whether

N.J.S.A. 2A:4A-26.1(c)(1) barred waiver of J.F. for prosecution as an adult

because he was under the age limit prescribed by the statute. Id. at 53. We

noted, "[u]nder the revised waiver statute, a juvenile cannot be waived to the

Law Division unless the State can establish that 'the juvenile was [fifteen]

years of age or older at the time of the delinquent act.'" J.F. at 52-53 (citing

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N.J.S.A. 2A:4A-26.1(c)(1)). We concluded the revised statute applied to J.F.

because the new statute

ameliorate[d] the punitive sentencing previously
meted out to adolescent offenders after waiver. The
legislative action was also intended to address the
treatment needs of children. The increase in the
minimum waiver age is part of that emphasis on
rehabilitation rather than punishment, a part of the
effort to ensure that children do not become prey to
adult inmates nor suffer the many societal
consequences of an adult criminal record.

[Id. at 55 (footnotes omitted).]

Furthermore, we noted "[t]he State ma[de] no argument that it would

suffer an 'unconstitutional interference with [a] vested right[] or a manifest

injustice.'" Id. at 56 (quoting Ardan v. Bd. of Review, 444 N.J. Super. 576,

589 (2016)). "Retroactively applying the age requirement of the revised

waiver statute would impose no 'unfairness [or] inequity.'" Id. at 56-57

(alteration in original) (citing Oberhand v. Dir., Div. of Taxation, 193 N.J.

558, 572 (2008)). We also noted if we had disagreed with the trial judge's

waiver decision, a new hearing on remand would have required the judge to

apply the revised waiver statute, which had become effective. Id. at 57.

Additionally, we held the savings statute, N.J.S.A. 1:1-15, supported the

retroactive application of the revised waiver statute because of considerations

regarding "utilization of [the] more lenient sentencing provisions enacted prior

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to the imposition of the penalty." Ibid. (citing N.J.S.A. 1:1-15). We relied on

our decision in State in Interest of C.F., 444 N.J. Super. 179 (App. Div. 2016).

Id. at 57-58.

In C.F., the defendant had committed felony murder when he was a

juvenile, but was not discovered as the perpetrator until DNA evidence

connected him to the crime thirty-four years later when the defendant was

fifty-one years of age. 444 N.J. Super. at 181-82. We affirmed a trial judge's

imposition of the current sentencing law, pursuant to the savings statute, rather

than the law in effect at the time of the offense, because although "C.F.

'committed' his offense in 1976[,] [he] did not 'incur' a penalty until 2013." Id.

at 189. We stated the need to deter future criminal conduct and the need to

rehabilitate the offender were "not necessarily served by imposing a penalty

society no longer deems proper." Id. at 190. "In this sense [we] recognized

that an 'ameliorative' statute 'may be applied retroactively.'" Ibid. (citations

omitted). Therefore, we concluded the "presumption in favor of application of

a subsequent ameliorative statute warrant[ed] our affirmance of [the trial

judge's] decision to apply the sentencing laws in effect at the time he

incarcerated C.F., and not the harsher law on the books when the murder was

committed." Id. at 191.

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 Adopting this logic, in J.F., we concluded "[f]or the very reasons

expressed in C.F., the current age provision should be applied to a juvenile

such as J.F. who, under the revised statute, would no longer face the possibility

of waiver as a result of any offenses he committed as a fourteen-year-old."

J.F., 446 N.J. Super. at 58. In this sense, we held the savings statute rendered

the revised waiver statute to be more than merely a procedural device because

its application in the event we remanded for a new hearing "would control that

hearing." Id. at 58-59.

In J.F., our concurring colleague, Judge Gilson, noted he did not join the

part of the majority opinion that retroactively applied the revised waiver

statute because the affirmance of the trial judge's decision to deny a waiver on

separate grounds completely resolved the appeal. Id. at 59-60. Moreover,

Judge Gilson noted the Legislature had been silent on the issue of retroactive

application of the revised statute. Id. at 60. Judge Gilson's concurrence also

posed questions which are now raised by the parties and facts of this case.

Judge Gilson stated:

Although the majority would apply the revised statute
retroactively to this appeal, it does not clarify whether
the revised statute applies in other circumstances. For
example, does the revised statute apply to a case
where the juvenile has already been waived to adult
court and the trial is pending or has actually begun?
Does the revised statute apply to a case where the

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 juvenile was waived to adult court, was convicted, and
is pending sentencing or appeal?

[Ibid.]

Defendant urges us to answer these questions in the affirmative.

However, we are of a different view.

Subsequent to our decision in J.F., the Supreme Court in State in Interest

of N.H., 226 N.J. 242 (2016), addressed whether a juvenile was entitled to

discovery prior to a waiver hearing. The Court stated: "On a number of prior

occasions, we have recognized how important waiver hearings are. They mark

a critical stage in juvenile proceedings and have significant, long-lasting

consequences." Id. at 245. The Court further noted: "Existing case law

highlights how important the juvenile waiver decision is. As this Court

observed decades ago, the waiver of a juvenile to adult court 'is the single most

serious act that the [Family Part] can perform.'" Id. at 252 (citation omitted).

For "once waiver occurs, the child loses the protections and opportunities for

rehabilitation which the Family Part affords. The child also faces the real

possibility of a stiffer adult sentence." Ibid. (citations omitted).

Therefore, despite its procedural characteristics, a juvenile waiver is a

profoundly consequential event as it relates to the adjudication and

rehabilitation of a juvenile defendant. To that end, we reject the State's

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argument the waiver statute is purely procedural and without an ameliorative

effect.

However, a reliance on the savings statute is unavailing here because the

waiver law was not only the same at the time defendant committed the offense,

but also at the time of his waiver, conviction, and sentencing. There is no

evidence the Legislature intended the waiver statute to reach concluded cases

which have already passed through the proverbial "pipeline." Therefore, our

application of the savings statute in C.F.—which we also relied upon in J.F.—

has its limits, as demonstrated by this case, in which defendant's direct appeal

has long since been concluded.

As the State notes, those limits are demonstrated by the prejudice that

would be experienced by "requiring new waiver hearings for an unknown

number of individuals who had been waived up under the prior law, and the

release of numerous other [individuals] who . . . have now served more time

than they could have under the juvenile system." The prejudice to the State is

obvious, especially in cases where a defendant has begun, but not yet

completed his sentence. For example, the result suggested by the retroactive

application of the waiver statute where a defendant has served ten years of a

thirty year sentence would require the State to re-assemble its case to address

the proper disposition under the juvenile docket a decade after the fact. We

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discern no evidence this was the Legislature's intent when it enacted N.J.S.A.

2A:4A-26.1.

For these reasons, we affirm the PCR judge's decision not to

retroactively apply N.J.S.A. 2A:4A-26.1(c)(1). To the extent we have not

addressed defendant's other arguments for the retroactive application of

N.J.S.A. 2A:4A-26.1(c)(1), it is because those arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

III.

We reject defendant's argument that his sentence was illegal because it

was the functional equivalent of life without parole, and thus, warranted

review pursuant to Rule 3:21-10(b)(5). We also disagree with defendant's

argument that his rehabilitation while he was incarcerated has any bearing on

the legality of his sentence.

In State v. Zuber, the defendants committed serious violent crimes as

juveniles. 227 N.J. 422, 428 (2017). One defendant was serving a one -

hundred and ten year sentence with fifty-five years of parole ineligibility, and

another defendant was serving a seventy-five year sentence with sixty-eight

years and three months of parole ineligibility. Ibid.

The Supreme Court stated:

In the past decade, the United States Supreme Court
has sent a clear message in that regard: "children are

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 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.

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."

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.

[Id. at 429 (citing Miller v. Alabama, 567 U.S. 460
(2012)).]

Moreover, the Court stated:

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," 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.

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 [Id. at 446-47 (quoting Miller, 567 U.S. at 480).]

Here, defendant's sentence and circumstances are quite different than the

concerns outlined in Zuber. Defendant is now forty-nine years of age. As the

PCR judge noted, defendant's parole disqualifier was thirty-five years and he is

now eligible for parole. Defendant does not dispute the judge's finding that he

has a life expectancy of 32.3 years. Despite the lengthy sentence defendant

has served, there are no similarities between his sentence and the sentences

reviewed in Zuber.

Finally, defendant's sentence is not illegal because he now claims to be

rehabilitated as a result of his incarceration. We do not minimize defendant's

efforts to rehabilitate himself, which include: defendant's role as president of

the Lifers Group Juvenile Awareness Program, earning a GED high school

equivalency diploma, and success in various institutional programs. However,

consideration of these accomplishments is exclusively the province of the

parole board and not a means of collateral attack on defendant's sentence—

which has been affirmed on direct appeal. State v. Bass, Docket No. A-0056-

84 (App. Div. Sept. 26, 1986) (slip op. at 10).

Affirmed.

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