NOT FOR PUBLICATION WITHOUT THE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-1928-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YERO TAKUMA a/k/a ANDREW
GRIFFITH,
Defendant-Appellant.
_____________________________
Argued May 30, 2018 – Decided July 6, 2018
Before Judges Fisher, Moynihan and Natali.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 84-
05-1653 and 84-05-1654.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
James K. Smith, Jr., of counsel and on the
brief).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Robert D. Laurino,
Acting Essex County Prosecutor, attorney;
Frank J. Ducoat, of counsel and on the brief).
PER CURIAM
Defendant Yero Takuma appeals from the denial of his motion
to correct an illegal sentence, arguing:
POINT I
BECAUSE THE EIGHTH AMENDMENT AND OUR STATE
CONSTITUTION GIVE JUVENILE OFFENDERS
SENTENCED TO LENGTHY PRISON TERMS "SOME
MEANINGFUL OPPORTUNITY TO OBTAIN RELEASE BASED
ON DEMONSTRATED MATURITY AND REHABILITATION,"
DEFENDANT TAKUMA, WHO HAS ALREADY SERVED IN
EXCESS OF 33 YEARS IN PRISON, MUST BE
RESENTENCED.
A. THE EIGHTH AMENDMENT AND JUVENILE
OFFENDERS.
B. THE RECOGNITION THAT JUVENILE
OFFENDERS ARE SUSCEPTIBLE TO CHANGE.
C. THE ZUBER[1] OPINION AND OUR STATE
CONSTITUTION.
D. UNDER THE ANALYSIS SET FORTH IN
MILLER[2] AND ZUBER, JUVENILE OFFENDERS
WHO HAVE SERVED MORE THAN 30 YEARS IN
PRISON ARE ENTITLED TO A RESENTENCING.
We decline to extend defendant's interpretation of the precepts
of Miller and Zuber to this case and affirm.
1
State v. Zuber, 227 N.J. 422, cert. denied, ___ U.S. ___, 138 S.
Ct. 152 (2017).
2
Miller v. Alabama, 567 U.S. 460 (2012).
2 A-1928-16T1
Defendant, having been charged under two indictments for
crimes committed when he was sixteen years old,3 pleaded guilty to
all four counts of the first indictment: felony murder of Preston
McGhee, N.J.S.A. 2C:11-3(a)(3) (count one); first-degree robbery
of McGhee, N.J.S.A. 2C:15-1 (count two); third-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count four); and to aggravated manslaughter
as a lesser included offense of count one of the second
indictment.4 The State agreed to recommend: (1) a sentence of
thirty years to life for felony murder under count one of the
first indictment with a minimum parole ineligibility of thirty
years; (2) a concurrent term for the sentence imposed for
aggravated manslaughter under the second indictment; and (3)
dismissal of the remaining counts of the second indictment. In
accordance with the range set forth in the plea agreement,
3
The crimes were committed on February 13, 1984. Defendant was
born on May 15, 1967.
4
The second indictment charged defendant with the purposeful or
knowing murder of Edmond Leslie, N.J.S.A. 2C:11-3(a)(1), (2)
(count one); felony murder of Leslie, N.J.S.A. 2C:11-3(a)(3)
(count two); first-degree robbery of Leslie, N.J.S.A. 2C:15-1
(count three); third-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five).
3 A-1928-16T1
defendant was sentenced in January 1985 to life imprisonment with
a thirty-year parole ineligibility period for felony murder, and
to concurrent terms of twenty years for robbery, five years for
unlawful possession of a handgun, and ten years for possession of
a weapon for an unlawful purpose. On the second indictment, he
was sentenced to a concurrent term of ten years for aggravated
manslaughter.5
Before addressing defendant's arguments, we turn to the
State's claims that this appeal is procedurally barred under Rule
3:22-5 and is moot.
The Rule 3:22-5 bar stems from defendant's January 2013 motion
for reduction of sentence under Rule 3:21-10 based on the United
States Supreme Court's holding in Miller. Because we affirmed the
trial court's denial of that motion,6 the State argues defendant
is seeking "a second bite at the same apple," which should be
precluded inasmuch as our decision was a "prior adjudication upon
the merits of any ground for relief [which] is conclusive whether
made in the proceedings resulting in the conviction or in any
post-conviction proceeding brought pursuant to this rule or prior
5
We affirmed defendant's sentence but merged the robbery
conviction with his felony murder conviction and vacated the
robbery sentence. State v. Griffith, No. A-2903-84 (App. Div.
Nov. 19, 1985).
6
State v. Takuma, No. A-4784-13 (App. Div. Feb. 10, 2015).
4 A-1928-16T1
to the adoption thereof, or in any appeal taken from such
proceedings," R. 3:22-5.
Notwithstanding that defendant's present claim directly
references Miller, he avers in his reply brief that he "is not
seeking to relitigate a Miller claim, he is seeking relief based
on Zuber." Setting aside for a moment that Zuber was decided by
the Supreme Court after the motion judge had already entered the
order that is the basis for this appeal – and before this appeal
was filed7 – we will allow defendant's challenge to what he alleges
is an illegal sentence. See Zuber, 227 N.J. at 437 (recognizing
that Rule 3:21-10(b)(5) permits a defendant to "challenge an
illegal sentence at any time").
We also determine the State's mootness argument – based on
defendant's present parole-eligible status after having served
thirty years — to be without sufficient merit to warrant discussion
here. R. 2:11-3(e)(2). Defendant's parole status could be
impacted if we were to order defendant to be resentenced, and a
judge reduced the life term. See In re Registrant J.S., 444 N.J.
Super. 303, 313 (App. Div. 2016) (acknowledging a case is moot
"when the decision sought in a matter, when rendered, can have no
7
The motion judge's order was entered November 17, 2016. Our
Supreme Court decided Zuber on January 11, 2017. Defendant filed
this appeal six days later.
5 A-1928-16T1
practical effect on the existing controversy" (quoting Greenfield
v. N.J. Dep't of Corr., 382 N.J. Super. 254, 258 (App. Div.
2006))).
Despite appellate counsel's advancement of an argument
unraised to the trial court, we will consider defendant's argument
that he is entitled to resentencing under the Supreme Court's
holding in Zuber, by extension of Miller.8 See ACLU v. Cty. of
Hudson, 352 N.J. Super. 44, 72 (App. Div. 2002) (recognizing that
an argument not raised in the trial court may be considered on
appeal where "an arguably superseding . . . decisional development
occur[red] between the time a court rendered its decision and
appellate consideration of the judgment or order" and "the focal
issue [was] entirely a question of law"). "We consider legal and
constitutional questions de novo." State v. Galicia,
210 N.J. 364, 381 (2012); see also State v. Hudson, 209 N.J. 513,
529 (2012) (noting that questions of law in sentencing are reviewed
de novo).
We first conclude that the Eighth Amendment prohibition on
"a sentencing scheme that mandates life in prison without
8
The trial court did consider our now overturned decision in State
v. Zuber, 442 N.J. Super. 611 (App. Div. 2015), concluding that
defendant's thirty-year period of parole ineligibility "did not
amount to a de facto life sentence as it afforded him the
opportunity to have a meaningful and realistic opportunity for
parole."
6 A-1928-16T1
possibility of parole for juvenile offenders," as determined by
the Miller court, 567 U.S. at 479, is not implicated here. In
considering the reach of Miller and other related decisions, the
Zuber Court considered the sentences of two offenders who were
juveniles when they committed their crimes: Zuber, who was
convicted of two rapes and sentenced to an aggregate of 110 years
with fifty-five years of parole ineligibility – first eligible for
parole at age seventy-two; and Comer, who was convicted of four
armed robberies and sentenced to an aggregate of seventy-five
years with just over sixty-eight years of parole ineligibility –
first eligible at age eighty-five. Zuber, 227 N.J. at 428, 430,
433. Although the Court determined both sentences were "not
officially 'life without parole,'" they nonetheless "trigger[ed]
the protections of Miller under the Federal and State
Constitutions." Id. at 448.
The important question considered by the Zuber Court – "Will
a juvenile be imprisoned for life, or will he have a chance at
release?" Id. at 446 – has already been answered in this case.
Defendant – who is not yet forty years old — has already been
considered for parole.9 Unlike the defendants in Zuber, defendant
9
The New Jersey Parole Board denied defendant's application in
May 2015. Takuma v. N.J. State Parole Bd., No. A-5672-14 (App.
Div. May 2, 2017) (slip op. at 5). We reversed the Parole Board's
7 A-1928-16T1
did not face "potential release after five or six decades of
incarceration, when they would be in their seventies and eighties."
Id. at 448. Defendant has not – in violation of the Eighth
Amendment – been "denied [by the State of] any chance to later
[after sentencing] demonstrate that he is fit to rejoin society."
Graham v. Florida, 560 U.S. 48, 79 (2009) (emphasis added).
Unlike the sentences imposed in Zuber, this was a bargained-
for term, pursuant to which defendant enjoyed the benefit of
sentences on all other counts that ran concurrent to the life term
with a mandated thirty years of parole ineligibility. The sentence
– which has already resulted in an opportunity to obtain release
– hardly amounts to the constitutionally infirm life without
effective chance of parole terms decried in Zuber. Further, the
sentencing judge said he was burdened "because the court realizes
the age of the [d]efendant when he perpetrated these crimes, and
he is young today," and found "there's one mitigating factor, his
age." The judge also noted that defendant did
not have a lengthy record because he's a
[juvenile] and as a [juvenile] he had one
possession in 1983 of a dangerous weapon which
was a gun. His background, he was attending
denial of defendant's parole application and remanded the matter
for the Board to conduct a new parole hearing within forty-five
days because it was unclear what standard the Board applied when
it reviewed defendant's application. Id. at 8-9. The record does
not contain the Parole Board's decision on remand.
8 A-1928-16T1
school but had to leave. He was always
involved in fights, showing the nature of the
person. He was involved in fights and as a
matter of fact was expelled, I think from
Barringer High School, because of many
incidents of fighting in school, indicating
violence within [defendant] that he expressed
one night in killing two people.
The judge imposed sentence after weighing the circumstances of the
crimes against defendant's age and background. We find no support
for defendant's contention that the sentencing judge believed
defendant "might be beyond rehabilitation."
Defendant did not raise to the trial court, likely because
Zuber had not yet been decided, his present argument that juveniles
who have served prison terms of thirty years or more should be
considered for resentencing or parole. Our Supreme Court declined
to address that issue in Zuber, and instead "encourage[d] the
Legislature to examine this issue," observing "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.'" Zuber, 227 N.J. at
452 (quoting Graham, 560 U.S. at 75). We follow the Court's
recommendation, noting the Legislature's introduction – and
referral to the Law and Public Safety Committee – of S. 428 (2018).
We also note defendant has had a "meaningful opportunity to obtain
release."
9 A-1928-16T1
We determine the balance of defendant's arguments to be
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). Inasmuch as we determine defendant is
not entitled to be resentenced under Zuber, we need not consider
defendant's musings that our Supreme Court chose resentencing as
the remedy because the Parole Board does not consider a juvenile's
youth and attendant circumstances. The Supreme Court made no such
pronouncement. Moreover, we will not consider an issue that
implicates the interplay of judicial sentencing and executive
parole raised for the first time in defendant's reply brief. See
Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super.
590, 596 (App. Div. 2001) (declining to consider an issue raised
"for the first time in a reply brief"); see also State v. Smith,
55 N.J. 476, 488 (1970).
Affirmed.
10 A-1928-16T1