State v. Tormasi

Decision Date13 January 2021
Docket NumberDOCKET NO. A-3534-17T4
Citation245 A.3d 586,466 N.J.Super. 51
Parties STATE of New Jersey, Plaintiff-Respondent, v. Walter A. TORMASI, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

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).

Before Judges Alvarez, Sumners, and Geiger.

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 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, 983 A.2d 199 (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, 128 A.3d 182 (App. Div. 2015). The document lacked the affiant's signature or jurat. Id. at 149, 128 A.3d 182. It purported to contain Attila Sr.'s "acknowledgement that he hired a private detective to commit the murder for which defendant was convicted." Id. at 150, 128 A.3d 182. 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, 128 A.3d 182.

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, 206 A.3d 962 (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 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, 152 A.3d 197 (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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (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, 130 S.Ct. 2011, 176 L.Ed.2d 825 (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 unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." Zuber, 227 N.J. at 439, 440, 152 A.3d 197 (alteration in original) (quoting Roper v. Simmons, 543 U.S. 551, 569, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (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, 132 S.Ct. 2455.)

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 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, 152 A.3d 197.)

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, 152 A.3d 197 ], DEFENDANT WAS 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.

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