State v. Zuber

• Decision Date: 30 October 2015
• Citation: 442 N.J.Super. 611,126 A.3d 335
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Ricky ZUBER, Defendant–Appellant.
• Court: New Jersey Superior Court — Appellate Division

442 N.J.Super. 611

126 A.3d 335

STATE of New Jersey, Plaintiff–Respondent,

v.Ricky ZUBER, Defendant–Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 1, 2014.

Decided Oct. 30, 2015.

Mark P. Stalford, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Stalford, on the brief).

Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, on the brief).

Appellant filed a pro se supplemental brief.

Before Judges SABATINO, GUADAGNO and LEONE.

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Ricky Zuber was born on April 14, 1964. He committed two separate gang rapes in November and December of 1981, when he was nearly eighteen years old. He is currently serving consecutive sentences for numerous offenses arising out of these two criminal episodes. Those sentences total 110 years in prison with fifty-five years of parole ineligibility.

Defendant now claims that his sentences are illegal under the recent United States Supreme Court decision in Graham v. Florida, 560 U.S. 48, 74, 130 S.Ct. 2011, 2030, 176 L.Ed. 2d 825, 845 (2010), which held that "for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole."

We hold that Graham applies retroactively to sentences previously imposed. To apply Graham to defendant's sentences, Graham would have to be extended to cover terms-of-year sentences, aggregated from consecutive sentences for different crimes, from different criminal episodes, imposed in different sentencing proceedings. Even making the assumptions that Graham could be thus extended, we reject defendant's claim. Defendant's sentence of fifty-five years before parole eligibility is not the functional equivalent of life without parole, because it gives him a meaningful and realistic opportunity for parole well within the predicted lifespan for a person of defendant's age.

I.

The sentencing judge related the following facts. From late 1979 to 1981, defendant accumulated thirty-eight juvenile delinquency complaints, and six adjudications for robbery and other offenses. He was an escapee from a state institution, and was seventeen years and seven months old, when he committed the crimes at issue here.

On November 23, 1981, defendant led a vicious gang rape of a woman whose car broke down. He was charged in Indictment No. 81–00–03730 and was referred for trial as an adult. In 1983, a jury convicted him of four offenses, for which he is currently serving the following sentences: (1) twenty years in prison with ten years of parole ineligibility for first-degree kidnapping, N.J.S.A. 2C:13–1(b)(1) ; (2) a consecutive ten years in prison with five years of parole ineligibility for second-degree robbery, N.J.S.A. 2C:15–1 ; (3) a consecutive twenty years in prison with ten years of parole ineligibility for first-degree aggravated sexual assault by vaginal penetration, N.J.S.A. 2C:14–2 ; and (4) a concurrent twenty years in prison with ten years of parole ineligibility for first-degree aggravated sexual assault by anal penetration, N.J.S.A. 2C:14–2. Defendant's total sentence under Indictment No. 81–00–03730 is fifty years in prison with twenty-five years of parole ineligibility.

On December 9, 1981, while still at large, defendant instigated and participated in the gang rape of a sixteen-year-old girl who was on her way to school. He was charged in Indictment No. 81–00–03729 and referred for trial as an adult. In a separate trial held in 1983, a jury convicted him of six offenses, for which he is currently serving the following sentences: (1) twenty years in prison with ten years of parole ineligibility for first-degree kidnapping, N.J.S.A. 2C:13–1(b)(1) ; (2) a consecutive twenty years in prison with ten years of parole ineligibility for first-degree robbery, N.J.S.A. 2C:15–1 ; (3) a consecutive twenty years in prison with ten years of parole ineligibility for first-degree aggravated sexual assault by vaginal penetration, N.J.S.A. 2C:14–2 ; (4) a concurrent twenty years in prison with ten years of parole ineligibility for first-degree aggravated sexual assault by anal penetration, N.J.S.A. 2C:14–2 ; (5) a concurrent twenty years in prison with ten years of parole ineligibility for first-degree aggravated sexual assault by oral penetration, N.J.S.A. 2C:14–2 ; and (6) a concurrent five years in prison for third-degree unlawful possession of a knife, N.J.S.A. 2C:39–4(d). Defendant's total sentence under Indictment No. 81–00–03729 is sixty years in prison with thirty years of parole ineligibility.

The sentencing judge made all of the sentences under Indictment No. 81–00–03729 consecutive to the sentences under Indictment No. 81–00–03730. As a result, defendant is currently serving an aggregate sentence on both indictments of 110 years with fifty-five years of parole ineligibility.

Originally, in 1983 and 1984, the sentencing judge had imposed an aggregate sentence on the two indictments of 150 years in prison with seventy-five years of parole ineligibility. We affirmed in separate orders, State v. Zuber, No. A–5323–85 (App.Div. Feb. 5, 1985); State v. Zuber, No. A–5330–84 (App.Div. Feb. 5, 1985). The Supreme Court summarily remanded to the trial court for reconsideration of defendant's sentences under State v. Yarbough, 100 N.J. 627, 498 A. 2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). State v. Zuber, 111 N.J. 643, 546 A. 2d 553 (1988) ; State v. Zuber, 111 N.J. 650, 546 A. 2d 559 (1988). On October 28, 1988, the sentencing judge imposed the revised sentences detailed above, changing from consecutive to concurrent the sentence on the count in each indictment charging aggravated sexual assault by anal penetration. In an order, we affirmed the revised sentences, rejecting defendant's claims that the sentences were excessive. State v. Zuber, No. A–1768–88 (App.Div. Aug. 15, 1989).

Defendant filed a petition for post-conviction relief (PCR) that was denied in 2003. We affirmed. State v. Zuber, No. A–3284–03 (App.Div. Feb. 17, 2005). The Supreme Court denied certification. State v. Zuber, 184 N.J. 212, 876 A. 2d 285 (2005). There is no indication that defendant claimed, in his PCR appeal or his prior appeals, that his sentence violated the Cruel and Unusual Punishment Clause of the United States or New Jersey Constitutions.

In 2010, defendant filed a motion to correct his sentence as unconstitutional under Graham. After hearing argument, Judge Michael A. Petrolle denied the motion on July 26, 2012, ruling defendant's revised sentence did not violate Graham. The judge found: "defendant does not have a sentence without parole. He has a sentence that carries a stipulated date that he could at the time be released if the parole board thought it was appropriate." The judge concluded: "There is parole opportunity here, it's just not as soon as he wants it."

Defendant's appeal was originally heard before an Excessive Sentencing Oral Argument panel, and then was transferred to the plenary calendar for full briefing and oral argument, after which we received supplemental briefing.

II.

In his brief, defendant raises the following arguments:

POINT I—DEFENDANT'S SENTENCE OF 110 YEARS, 55 YEARS TO BE SERVED WITHOUT ELIGIBILITY FOR PAROLE IMPOSED FOR OFFENSES COMMITTED WHEN HE WAS A JUVENILE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AS PROHIBITED BY U.S. CONST. AMEND VIII ; AND N.J. CONST. ART. I, ¶ 12.

POINT II—DEFENDANT'S AGGREGATE SENTENCE AS IMPOSED CONSTITUTES AN ILLEGAL SENTENCE WHICH MAY BE CORRECTED AT ANY TIME.

"[A] truly 'illegal' sentence can be corrected 'at any time.' " State v. Acevedo, 205 N.J. 40, 47 n. 4, 11 A. 3d 858 (2011) (quoting R. 3:21–10(b)(5)). "[A]n illegal sentence is one that 'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.' "

Id. at 45, 11 A. 3d 858 (quoting State v. Murray, 162 N.J. 240, 247, 744 A. 2d 131 (2000) (noting that "not imposed in accordance with law" includes "a disposition [not] authorized by the Code")). Defendant argues he can raise his claim now because a sentence is illegal if it constitutes cruel and unusual punishment.

We need not reach this argument for two reasons. First, the State does not dispute the timeliness of defendant's claim. Second, defendant filed his motion within one year of the Graham decision. It is not contested that "the constitutional right asserted [by defendant] was initially recognized by the United States Supreme Court" in Graham. R. 3:22–12(a)(2)(A). Further, we find that right was "made retroactive" by that Court. Thus, we can and do consider defendant's motion as a second PCR petition. Ibid.; see R. 3:22–4(b)(2)(A).

Whether defendant's sentence is unconstitutional is an issue of law subject to de novo review. State v. Pomianek, 221 N.J. 66, 80, 110 A. 3d 841 (2015). We must hew to that standard of review.

III.

We begin by addressing the constitutional decisions invoked by defendant. The Eighth Amendment of the United States Constitution bars "cruel and unusual punishments." U.S. Const. amend. VIII. The Eighth Amendment is "made applicable to the States by the Due Process Clause of the Fourteenth Amendment." Graham, supra, 560 U.S. at 53, 130 S.Ct. at 2018, 176 L.Ed. 2d at 832 ; accord State v. Ramseur, 106 N.J. 123, 169, 524 A. 2d 188 (1987).

In Graham, the United States Supreme Court addressed whether the Eighth Amendment prohibited a State from imposing a sentence of "life imprisonment without the possibility of parole" on a juvenile for a nonhomicide offense. Graham, supra, 560 U.S. at 53–54, 130 S.Ct. at 2018, 176 L.Ed. 2d at 832. The Court adopted "a categorical approach," analogizing to its "categorical rule[ ] prohibiting the death penalty for defendants who committed their crimes before the age of 18 [in...