STATE OF NEW JERSEY VS. WALTER A. TORMASI (97-04-0234, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3534-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

January 13, 2021
v.
APPELLATE DIVISION
WALTER A. TORMASI,

Defendant-Appellant.
_________________________

Submitted November 18, 2020 – Decided January 13, 2021

Before Judges Alvarez, Sumners, and Geiger.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 97-04-
0234.

Joseph E. Krakora, Public Defender, attorney for
appellant (Alicia J. Hubbard, Assistant Deputy Public
Defender, of counsel and on the briefs; Walter A.
Tormasi, on the pro se briefs).

Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Anthony J. Parenti, Jr.,
Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

GEIGER, J.A.D.
 Defendant Walter A. Tormasi appeals from a February 5, 2018 Law

Division order that denied without prejudice his Rule 3:21-10(b)(5) motion to

correct an illegal sentence. We affirm.

We briefly recount the pertinent facts and extended procedural history.1

In 1996, defendant shot his mother more than ten times with a 9-mm handgun—

four of those shots were directed at her heart. He was sixteen at the time.

Defendant was waived to the Law Division and tried as an adult. In 1998,

defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), and

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a).

During sentencing, the trial court noted that defendant had prior

adjudications of juvenile delinquency for criminal mischief and obstructing the

administration of law and was on probation for those offenses when he

committed the murder. The court found the following aggravating factors: (a)

the murder was committed in a "particularly cruel and depraved" manner,

N.J.S.A. 2C:44-1(a)(1); (b) the risk defendant would "commit further offenses,"

N.J.S.A. 2C:44-1(a)(3); and (c) "[t]the need for deterring [defendant] and others

1
The facts are set forth in detail in our opinion on direct appeal. State v.
Tormasi, No. A-5530-97 (App. Div. July 20, 2001) (slip op. at 4-15) (Tormasi
I), certif. denied, 171 N.J. 42 (2002).
A-3534-17T4
2
from violating the law," N.J.S.A. 2C:44-1(a)(9). The court found no mitigating

factors and concluded that the aggravating factors substantially outweighed the

non-existent mitigating factors.

On March 27, 1998, following merger, defendant was sentenced to life

imprisonment subject to a thirty-year period of parole ineligibility. 2 He was

awarded 612 days of jail credit. In 2001, we affirmed the conviction and

sentence on direct appeal. Tormasi I.

Between 2002 and 2011, defendant filed four unsuccessful petitions for

post-conviction relief (PCR). We affirmed the denial of his first petition for

PCR, which included a claim of ineffective assistance of counsel. State v.

Tormasi, No. A-2248-07 (App. Div. May 26, 2009), certif. denied, 200 N.J. 474

(2009).

In 2011, defendant filed a PCR petition based on a claim that newly

discovered evidence—an "affidavit" of his deceased father, Attila Tormasi,

Sr.—demonstrated his innocence. State v. Tormasi, 443 N.J. Super. 146, 150

(App. Div. 2015). The document lacked the affiant's signature or jurat. Id. at

149. It purported to contain Attila Sr.'s "acknowledgement that he hired a

2
Defendant was also sentenced to a concurrent four-year term for third-degree
receiving stolen property on an unrelated indictment that is not the subject of
this appeal. He pled guilty to that crime.
A-3534-17T4
3
private detective to commit the murder for which defendant was convicted." Id.

at 150. Defendant also alleged that his father had paid funds to his appointed

trial counsel to avoid being implicated in the murder. Ibid. The PCR judge

denied the petition, ruling that the document was inadmissible because it lacked

Attila Sr.'s signature and was "a hearsay document which [did] not meet any

exceptions to the hearsay rule." Ibid. We reversed and remanded "because, if

sufficiently authenticated, the document was admissible pursuant to N.J.R.E.

803(c)(25)." Id. at 149.

On remand, the PCR judge found that the document was sufficiently

authenticated and admissible but concluded the document was "not believable"

and lacked "sufficient weight" to "probably alter the outcome of the [original]

verdict." We affirmed. State v. Tormasi, No. A-4261-16 (App. Div. Oct. 31,

2018) (slip op. at 1), certif. denied, 237 N.J. 568 (2019).

On May 5, 2013, defendant moved to correct an illegal sentence under

Rule 3:21-10(b)(5). Counsel was appointed to represent him. Defendant argued

that the sentencing court had not consider his youth and associated mitigating

factors. He noted that he committed the homicide when he was only sixteen and

that he had already served more than twenty years of his sentence. Defendant

asserted that "his life term of imprisonment deprive[d] him of an opportunity to

A-3534-17T4
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earn his release through demonstrated maturity and rehabilitation." He

contended that it is likely that he will serve much longer than thirty years

because the State Parole Board can repeatedly deny parole despite a showing of

maturity and rehabilitation.

Defendant claimed he was entitled to resentencing under State v. Zuber,

227 N.J. 422 (2017), and Article I, Paragraph 12, of the New Jersey Constitution,

which prohibits "cruel and unusual punishments." He relied on United States

Supreme Court precedent that held the death penalty and mandatory life

imprisonment without the opportunity for parole were unconstitutional when

applied to crimes committed by a juvenile.

Defendant also relied on Miller v. Alabama, 567 U.S. 460 (2012), which

held that a sentencing court must consider a juvenile offender's youth and

attendant characteristics when imposing a life without parole sentence. He

emphasized that Miller and Graham v. Florida, 560 U.S. 48 (2010), recognized

that juveniles are different from adult offenders and are entitled to special

treatment, even when sentenced for serious crimes.

In Zuber, our Supreme Court explained that "[t]hree general differences

between juveniles under 18 and adults" make it "difficult even for expert

psychologists to differentiate between the juvenile offender whose crime reflects

A-3534-17T4
5
unfortunate yet transient immaturity, and the rare juvenile offender whose crime

reflects irreparable corruption." Zuber, 227 N.J. at 439, 440 (alteration in

original) (quoting Roper v. Simmons, 543 U.S. 551, 569, 573 (2005)).

Defendant asserted that Zuber should be extended to apply the Miller factors to

any lengthy sentence imposed upon a juvenile offender.

Defendant contended that a juvenile sentenced as an adult to a life

sentence with a substantial parole disqualifier should be heard as to their claim

of rehabilitation with "consideration of the factors that are responsible for his or

her crime, including immature neurological development and damage caused by

childhood abuse and other environmental factors." He also sought an

opportunity to demonstrate that the homicide did "not reflect 'irreparable

corruption,'" including a determination of whether he was "sufficiently

rehabilitated . . . to rejoin society." (Quoting Miller, 567 U.S. at 480-81.)

The State argued that although defendant's youth was not a statutory

mitigating factor when defendant was sentenced, the trial court had considered

the fact that defendant was sixteen when he committed the murder. It contended

that the Miller factors were not implicated because defendant was not sentenced

A-3534-17T4
6
to life without parole or its functional equivalent since he will be eligible for

parole in 2026.3 The State asserted that defendant's sentence is not illegal.

In the judge's February 5, 2018 decision denying the motion, he noted that

defendant presented materials detailing the rehabilitative efforts he had made

while incarcerated, including graduating from high school, completing several

programs, obtaining a patent, forming an intellectual property holding company,

and working in the prison's law library. Defendant committed no disciplinary

infractions while in prison.

The court distinguished Zuber, which involved much longer sentences and

periods of parole ineligibility. 4 It also noted that sentencing a juvenile offender

to life without parole was not prohibited by Graham, Miller, or Zuber if the

"crime reflects irreparable corruption." (Quoting Zuber, 227 N.J. at 451.)

3
It appears that defendant will be eligible for parole in July 2026 since he was
sentenced on March 27, 1998 and received 612 days of jail credit. At that point,
defendant will be forty-seven years old and will have served thirty years of his
sentence.
4
Defendant Ricky Zuber was sentenced to an aggregate 150-year term with a
75-year period of parole ineligibility, which made him eligible for parole at age
92. Zuber, 227 N.J. at 428. Defendant James Comer was sentenced to an
aggregate 75-year term with a 68.25-year period of parole ineligibility, which
made him eligible for parole at age 85. Id. at 430, 433, 448.
A-3534-17T4
7
 The court recognized that defendant "may be incarcerated long past his

fifties" because he may not be released when initially eligible for parole but

"will still have [that] opportunity." The court declined to "speculate as to

whether [d]efendant will or will not be denied parole at a future date"; but

instead should focus "on the actual time" he will serve before he is eligible for

parole. Furthermore, "[i]f [d]efendant is denied parole, despite the many

rehabilitative efforts he's made[,] . . . then perhaps at that time [d]efendant would

be able to demonstrate that his sentence would be the functional equivalent of

life without parole." This appeal followed.

While this appeal was pending, counsel was appointed to represent

defendant and moved for leave to submit supplemental material on parole

statistics. We denied the motion and reconsideration of our decision, concluding

that the supplemental materials were not "probative of the legal issues presented

on appeal."

Defendant raises the following points in his self-represented brief, which

we have edited for brevity:

POINT I

DEFENDANT'S THIRTY-TO-LIFE SENTENCE
QUALIFIES AS "LENGTHY"; ACCORDINGLY,
PURSUANT TO THE STANDARD SET FORTH IN
[ZUBER, 227 N.J. at 451], DEFENDANT WAS

A-3534-17T4
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 ENTITLED TO THE MILLER PROTECTIONS, IN
WHICH EVENT RESENTENCING IS REQUIRED.

POINT II

ASSUMING, ARGUENDO, THAT [ZUBER]
APPLIES ONLY TO SENTENCES AMOUNTING TO
LIFE WITHOUT PAROLE, THE ZUBER/MILLER
PROTECTIONS SHOULD BE EXTENDED TO
THIRTY-TO-LIFE SENTENCES UNDER THE NEW
JERSEY CONSTITUTION IN LIGHT OF OUR
SOCIETY'S EVOLVING STANDARDS OF
DECENCY TOWARD ADULT-PROSECUTED
JUVENILES.

POINT III

GIVEN DEFENDANT'S INTERVENING
MATURITY AND REHABILITATION, THE TRIAL
COURT DURING RESENTENCING MUST
REEVALUATE THE AGGRAVATING AND
MITIGATING FACTORS (INCLUDING THE
MILLER CRITERIA) AND MUST IMPOSE THE
LOWEST TERM-OF-YEARS SENTENCE
ALLOWED BY LAW.

Counsel raises the following additional points:

POINT I

BECAUSE THE SENTENCING COURT DID NOT
PROPERLY CONSIDER THE MITIGATING
ASPECTS OF YOUTH IN DETERMINING
WHETHER MR. TORMASI WAS ONE OF THE
RARE JUVENILE OFFENDERS WHOSE CRIMES
REFLECT IRREPARABLE CORRUPTION, A
RESENTENCING HEARING IS NECESSARY.

A-3534-17T4
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POINT II

THE MOTION COURT ERRED IN RELYING ON
THE FACT THAT THERE WAS A THEORETICAL
POSSIBILITY OF PAROLE IN DENYING A
MILLER HEARING BECAUSE IN NEW JERSEY
THE MERE ELIGIBILITY FOR PAROLE DOES NOT
PROVIDE A MEANINGFUL AND REALISTIC
OPPORTUNITY FOR RELEASE, BASED UPON
DEMONSTRATED MATURITY AND
REHABILITATION, AS MANDATED BY ZUBER,
MILLER, THE EIGHTH AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARTICLE
1, ¶ 12 OF OUR STATE CONSTITUTION.

A. United States Supreme Court Precedent.

B. The Zuber Opinion and Our State
Constitution.

C. Mere Eligibility for Parole Does Not
Amount to a Meaningful Opportunity for
Release Pursuant to Graham v. Florida
Because Regardless of Evidence that He
Was Not the Rare Incorrigible Youth, and
that He Has Engaged in Rehabilitation, Mr.
Tormasi May Never Be Released Without
Judicial Intervention.

1. The Parole Board Regularly
Contravenes the Intentions and
Expectations of Sentencing Judges and,
therefore, Parole Eligibility Does Not
Satisfy the Sentencing Requirements Set
Forth in Graham, Miller, or Zuber or Their
Progeny.

A-3534-17T4
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 2. The Parole Board’s Decision-Making
Process Is Statutorily and Constitutionally
Deficient for Purposes of Setting Sentence
on a Juvenile and, therefore, Eligibility for
Parole Cannot Serve as a Meaningful
Opportunity for Release.

I.

"[A]n illegal sentence is one that 'exceeds the maximum penalty . . . for a

particular offense' or a sentence '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)). "That includes a sentence 'imposed without regard to some

constitutional safeguard.'" Zuber, 227 N.J. at 437 (quoting State v. Tavares, 286

N.J. Super. 610, 618 (App. Div. 1996)). "A defendant may challenge an illegal

sentence at any time." Ibid. (citing R. 3:21-10(b)(5); Acevedo, 205 N.J. at 47

n.4).

Determining the appropriate sentencing range, mandatory terms, and

parole eligibility for crimes is exclusively the province of the Legislature. See

State v. Des Marets, 92 N.J. 62, 80-81 (1983); State v. Lagares, 247 N.J. Super.

392, 400 (App. Div. 1991), aff'd, 127 N.J. 20 (1992). The sentencing range for

purposeful or knowing murder at the time defendant was sentenced was thirty

years to life, subject to a thirty-year period of parole ineligibility. N.J.S.A.

A-3534-17T4
11
2C:11-3(b)(1).5 Defendant's sentence does not exceed the maximum penalty for

murder.

Nevertheless, a statutorily permissible sentence may still violate the

constitutional prohibition against cruel and unusual punishment. In Miller, the

Supreme Court declared that mandatory life imprisonment without parole

imposed upon a juvenile sentenced as an adult violates the Eighth Amendment.

567 U.S. at 479. In so ruling, the Court built upon prior decisions, which had

established that "children are constitutionally different from adults for purposes

of sentencing" because they "have diminished culpability and greater prospects

for reform," and thus "are less deserving of the most severe punishments." Id.

at 471 (quoting Graham, 560 U.S. at 68) (holding life imprisonment without

parole for a juvenile convicted of a non-homicide offense unconstitutional).

The Miller Court found that a mandatory life sentence without parole for

a juvenile convicted of homicide:

[1] precludes consideration of [the juvenile's]
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

5
Prior to 2001, NERA did not apply to murder. See, e.g., State v. Allen, 337
N.J. Super. 259, 271-74 (App. Div. 2001).
A-3534-17T4
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 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 477-78.]

We refer to these five aspects of mandatory sentencing as "the Miller factors."

The Miller Court did not preclude the possibility of a life sentence for a

juvenile convicted of homicide but reaffirmed and expanded its determination

in Graham that a life sentence may not be mandatory and should be "uncommon"

given a juvenile's "diminished culpability and heightened capacity for change."

Id. at 479. In the "rare" situation where the juvenile's "crime reflects irreparable

corruption" or incorrigibility, the court may impose a life sentence. Id. at 479-

80 (quoting Roper, 543 U.S. at 573).

A-3534-17T4
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 In Graham, the Court determined that a sentencing court may not make

the determination "at the outset" that the juvenile will forever pose a risk to

society. 560 U.S. at 75. Instead, the juvenile must have "some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation." Ibid. The Court left the "means and mechanisms for

compliance" with its decision to the States. Ibid.

In Montgomery v. Louisiana, the Court determined that Miller was

entitled to retroactive effect and held that where a sentence was imposed

contrary to Miller, the constitutional infirmity could be remedied by a

resentencing or consideration for parole. 577 U.S. ___, ___, 136 S. Ct. 718,

733-36 (2016). The Court explained: "Allowing those offenders to be

considered for parole ensures that juveniles whose crimes reflected only

transient immaturity—and who have since matured—will not be forced to serve

a disproportionate sentence in violation of the Eighth Amendment." Id. at 736.

In Zuber, the Court extended the holding of Miller to juveniles who

receive a "lengthy, aggregate sentence that amounts to life without parole." 227

N.J. at 450. The Court held that when a juvenile is tried as an adult and is subject

to a lengthy sentence that is "the practical equivalent of life without parole," the

sentencing court must consider the Miller factors in addition to the statutory

A-3534-17T4
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aggravating and mitigating sentencing factors. Zuber, 227 N.J. at 429, 445-47,

450. The Court did not preclude the possibility of a de facto life term but

instructed that few juveniles should receive one because "it is only the 'rare

juvenile offender whose crime reflects irreparable corruption.'" Id. at 451

(quoting Miller, 567 U.S. at 479-80).

The Court did not define a de facto life term by any specific length and

rejected the use of life-expectancy tables in deciding whether a lengthy term is

effectively a life term. Id. at 450. The Court instructed sentencing courts to

consider "the real-time consequences of the aggregate sentence" and held that

the aggregate terms at issue in that consolidated case—110 years with a 55-year

parole-bar and 75 years with a 68-year and 3-month parole-bar—were the

functional equivalent of life terms. Id. at 447, 449, 453.

The Court suggested the possibility that a lawfully imposed sentence of

life, or the functional equivalent of life, may later be rendered unconstitutional

by subsequent facts that establish reform and rehabilitation before expiration of

the parole-bar. Id. at 451-52. A defendant receiving such a sentence might "ask

the court to review factors that could not be fully assessed when he was

originally sentenced—like whether he still fails to appreciate risks and

A-3534-17T4
15
consequences, or whether he may be, or has been, rehabilitated." Id. at 452

(citing Miller, 567 U.S. at 477).

The Zuber Court invited the Legislature to examine this issue, noting that

"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.'" Id. at 452 (quoting Graham, 560

U.S. at 75). In the intervening years, the Legislature has considered this issue

but has not yet enacted any law on point. 6 We place little value on legislative

proposals that are not enacted into law. See In re Adoption of N.J.A.C. 5:25-

1.1, 266 N.J. Super. 625, 632 n.1 (App. Div. 1993) ("pending legislation is of

little persuasive effect, and is not proof of prior legislative intent").

Defendant asks this court to extend the protections adopted in Zuber and

Miller to all "lengthy sentences" imposed on a juvenile offender that are subject

to a thirty-year parole-bar. We decline to do so.

6
The Legislature has considered the issue on several occasions. See S. 2591/A.
4372 (2020) (permitting a juvenile sentenced to an aggregate term of thirty years
or more to request a resentencing after serving at least twenty years of the
sentence); A. 1233 (2018) (allowing a juvenile sentenced to twenty years or
more without parole to petition for resentencing ten years after conviction and
to be eligible for parole after twenty years of incarceration); and S. 3079 (2017),
reintroduced as, S. 428 (2018) (allowing a juvenile sentenced to thirty years or
more without parole to petition for review of the sentence after thirty years of
incarceration if convicted of murder and twenty years for all other crimes).
A-3534-17T4
16
 In State v. Bass, we addressed the type of sentence that may qualify as a

de facto life term. 457 N.J. Super. 1 (App. Div. 2018), certif. denied, 238 N.J.

364 (2019). We held that an aggregate term of life with a thirty-five-year parole-

bar was not the functional equivalent of a life sentence, and thus, the defendant

was not entitled to resentencing under Zuber, even though the sentencing court

had not considered the Miller factors when it imposed the sentence. Id. at 13-

14. We further held that any rehabilitative actions the defendant had undertaken

while incarcerated were matters for the parole board to consider and did not

render the sentence unconstitutional. Id. at 14. We explained:

[D]efendant'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 . . . . 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.

[Ibid. (citation omitted).]

As we have noted, defendant will be eligible for parole in mid-2026, when

he will be forty-seven years old. Defendant's mandatory thirty-year parole-bar

is five years shorter than the parole bar in Bass and decades shorter than those

in Zuber, 227 N.J. at 429. A life sentence subject to a thirty-year parole-bar is

far from a de facto life sentence without parole when imposed on a juvenile

A-3534-17T4
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offender, who will be eligible for release by age forty-seven. Defendant's

sentence does not amount to the functional equivalent of life without parole.

Accordingly, resentencing is not required by Zuber.

We do not decide here in the abstract what would constitute an appropriate

amount of time in prison to justify a "return to court" to demonstrate that

defendant has sufficiently reformed himself to a degree that serving his original

sentence in full is no longer constitutional under the Eighth Amendment. See

Zuber, 227 N.J. at 451-52. That said, we discern no reason to depart from our

decision in Bass.

II.

While this appeal was pending, N.J.S.A. 2C:44-1(b) was amended

effective October 19, 2020, to add the defendant's youth (i.e., less than twenty-

six years of age) to the statutory mitigating sentencing factors. N.J.S.A. 2C:44-

1(b)(14). Unlike mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13), mitigating

factor fourteen does not require a finding that the defendant was substantially

influenced by another; it only requires a finding that "[t]he defendant was under

26 years of age at the time of the commission of the offense." N.J.S.A. 2C:44 -

1(b)(14).

A-3534-17T4
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 Although defendant argues that the motion court inadequately considered

his youth at the time the murder was committed, he does not argue that the

amendment should be applied retroactively to this case. In any case, the new

sentencing factor would not provide a basis for relief because the factor is part

of the weighing process, which relates to the issue of excessiveness, not legality.

State v. Hess, 207 N.J. 123, 145 (2011); State v. Acevedo, 205 N.J. 40, 46-47

(2011). Claims that a sentence "within the range permitted by a verdict" is

excessive must be raised on direct appeal, Hess, 207 N.J. at 145, and "are not

cognizable . . . under the present Rule 3:21-10(b)(5)," Acevedo, 205 N.J. at 47.

Thus, even if the Legislature intended the youth factor to apply to sentences

imposed long ago and affirmed on direct appeal, it would not provide a basis to

render the sentence illegal or unconstitutional.

III.

Defendant sought to supplement the record with parole data and other

materials to establish that he will likely be denied parole and receive a future

eligibility term, resulting in his serving substantially more than thirty years

before release. We denied the motion and reconsideration for several reasons.

Both federal and State precedent on cruel and unusual punishment support

a finding that the possibility of parole provides a meaningful opportunity for

A-3534-17T4
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release. In Bass we approved the parole process in relation to Zuber cases by

holding that an otherwise lawful sentence under Zuber was not rendered

unconstitutional because the defendant had taken steps to rehabilitate himself.

Bass, 457 N.J. Super. at 13-14. Rather, those steps were matters for the Parole

Board to consider. Ibid. Additionally, Zuber implicitly approves of the parole

process, as it cited Montgomery with approval, and there the Court held that a

meaningful opportunity for release could be addressed through a resentencing

or parole. Zuber, 227 N.J. at 446 (discussing Montgomery, 136 S. Ct. at 736).

Thus, the opportunity for parole provides a meaningful opportunity at release

for purposes of the Eighth Amendment.

Moreover, "[t]he granting of parole is within the discretion of the Board,

and we must give great deference to the expertise of the Board in its parole

decisions and not upset them unless it clearly and convincingly appears that the

Board has abused its discretion." Trantino v. N.J. State Parole Bd., 296 N.J.

Super. 437, 470 (1997) (citing State v. Lavelle, 54 N.J. 315 (1969)). We do not

substitute our judgment for that of the full Parole Board. Acoli, 224 N.J. at 230-

31.

Based "on the diverse backgrounds of its members, the Parole Board

makes 'highly predictive and individualized discretionary appraisals .'" Acoli v.

A-3534-17T4
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N.J. State Parole Bd., 224 N.J. 213, 222 (2016) (quoting Beckworth v. N.J. State

Parole Bd., 62 N.J. 348, 359 (1973)). In undertaking that process, the Parole

Board is required to consider the twenty-three non-exclusive factors enumerated

in N.J.A.C. 10A:71-3.11(b), including the results of an "objective risk

assessment instrument," N.J.A.C. 10A:71-3.11(b)(23).

The Parole Board's decision is based on its assessment of the regulatory

factors as they exist at the time an inmate becomes eligible for parole. If

defendant is denied parole, he has the right to appeal that decision to this court.

Acoli, 224 N.J. at 232. "[T]hat would be the appropriate time" for this court to

consider whether the Parole Board adequately considered the rehabilitation and

maturity defendant achieved while in prison, and if "judicially ordered parole of

a convicted murderer might be in order. However, that possibility must await

completion of the parole process in its entirety." Ibid.

Defendant's contention that he will likely be denied parole in the future is

entirely speculative. We decline to consider defendant's conjecture that the

Parole Board will deny him parole because it frequently does so when convicted

murderers first become eligible. Moreover, the fact that other inmates convicted

of murder have been initially denied parole is presumably based on an

individualized consideration of the regulatory factors as applied to those

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inmates. Accordingly, data showing the frequency of parole denial is not

probative.

Defendant further argues that "mere eligibility for parole does not amount

to a meaningful opportunity for release" under Graham because "[t]he Parole

Board regularly contravenes the intentions and expectations of judges and,

therefore, parole eligibility does not satisfy the sentencing requirements set forth

in Graham, Miller, or Zuber or their progeny." He claims that the Parole Board

"has become a powerful sentencing entity with unfettered power to 'overrule'

sentencing decisions, thereby depriving inmates of a meaningful opportunity for

release and usurping the power of sentencing judges."

Defendant notes that even though the 1997 Parole Act creates a

presumption that inmates "shall be released" on parole, N.J.S.A. 30:4-123.53(a),

the Parole Board "could still deny him release" despite evidence of his

rehabilitation. Relying on an unpublished opinion 7 and the dissent in Acoli v.

N.J. State Parole Bd., 462 N.J. Super. 39, 67, 74 (App. Div. 2019) (Rothstadt,

7
"No unpublished opinion shall constitute precedent or be binding upon any
court." R. 1:36-3. Unreported decisions "serve no precedential value, and
cannot reliably be considered part of our common law." Trinity Cemetery v.
Wall Twp., 170 N.J. 39, 48 (2001) (Verniero, J., concurring).
A-3534-17T4
22
J., dissenting), defendant contends that "good behavior during incarceration that

demonstrates rehabilitation offers no assurance of release."

Defendant further argues that the Parole Board's decision making-process

is statutorily and constitutionally deficient because "[n]o statute, case law, or

administrative code provision demands that the Parole Board consider the court -

accepted brain science that 'children are constitutionally different' and 'not

deserving of the most severe punishments." (Quoting Zuber, 227 N.J. at 447-

48.) We are unpersuaded by these additional arguments.

We note that in response to a petition for rulemaking, the Parole Board

has proposed amending N.J.A.C. 10A:71-3.11 to add a new subsection (b)(24),

that reads, "[s]ubsequent growth and increased maturity of the inmate during

incarceration," as an additional factor to be considered at parole hearings of

adult inmates. 52 N.J.R. 1159(a) (June 1, 2020). In the accompanying summary

the Parole Board noted, however, "that the maturity developed by an offender

over the length of incarceration has been a factor taken into consideration by

Board members in the assessment of an offender for parole release." Ibid.

While the proposed amendment has not yet been adopted, the factors set

forth in N.J.A.C. 10A:71-3.11(b) are not exclusive. Instead, "[p]arole decisions

shall be based on all pertinent factors, including material supplied by the inmate

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and reports and material which may be submitted by any persons or agencies

which have knowledge of the inmate." N.J.A.C. 10A:71-3.11(a). Moreover, the

Parole Board is already required to consider the inmate's: "[a]djustment to . . .

incarceration," N.J.A.C. 10A:71-3.11(b)(4); "[p]articipation in institutional

programs," N.J.A.C. 10A:71-3.11(b)(8); "[d]ocumented changes in attitude

toward self or others," N.J.A.C. 10A:71-3.11(b)(11); and "[m]ental and

emotional health," N.J.A.C. 10A:71-3.11(b)(13).

That said, the additional issues raised by counsel are not ripe. Defendant

is ineligible for parole because he is still serving a thirty-year period of parole

ineligibility. "We will not render advisory opinions or function in the abstract.

Nor will we decide a case based on facts which are undeveloped or uncertain."

N.J. Ass’n for Retarded Citizens v. N.J. Dep’t of Human Servs., 89 N.J. 234,

241 (1982) (citations omitted).

If defendant is eventually denied parole and receives a future eligibility

term, he may appeal that decision and challenge the constitutionality of the

statutory and regulatory framework governing parole at that time. See Acoli,

224 N.J. at 223 ("It is settled law that the parole of an inmate may come about

through appellate review of the parole process when that process has been

completed . . . .").

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 To date, defendant's sentence has been declared constitutional by a trial

judge and this court. If he is denied parole, he may appeal. If he serves a

substantial period in prison due to a parole denial or denials, he may even have

a basis to file a motion to correct an illegal sentence based on "factors that could

not be fully assessed when he was originally sentenced." Zuber, 227 N.J. at 452.

But at this time, his sentence is legal and his speculative claims regarding the

likelihood of not being paroled do not change that.

Affirmed.

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