STATE OF NEW JERSEY v. MICHAEL LASANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL LASANE,

Defendant-Appellant.

_______________________________________________________

September 28, 2016

Submitted April 13, 2016 Decided

Before Judges Fuentes and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-02-00365.

Michael Lasane, appellant pro se.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (John C. Tassini, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

KENNEDY, J.A.D.

Defendant appeals the denial of his post-conviction relief (PCR) petition in which he argued that his aggregate sentence of life imprisonment plus thirty years, subject to forty-five years of parole ineligibility, was illegal. The background of the present matter is found in three opinions: State v. Lasane (Lasane I), 371 N.J. Super. 151 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005); State v. Lasane (Lasane II), No. A-5242-06 (App. Div. Jan. 8, 2010), certif. denied, 201 N.J. 442 (2010); and State v. Lasane (Lasane III), No. A-1872-11 and A-1418-12 (App. Div. December 13, 2013), certif. denied, 218 N.J. 274 (2014). Familiarity with those opinions is assumed.

Following a jury trial in 2007, defendant was convicted of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A. 2C:15-1(a) and (b); and first-degree carjacking, N.J.S.A. 2C:15-2(a), based upon events that took place in March 1996, a day before his seventeenth birthday. On appeal, we affirmed the conviction, but because of a sentencing merger problem, we remanded for the entry of an amended judgment of conviction that reflected an aggregate sentence of life imprisonment plus thirty years, with forty-five years to be served before parole eligibility. Lasane II, supra, at p. 7.

Defendant had also pursued a number of PCR petitions in which he argued, among other things, ineffective assistance of counsel and excessive sentencing. See generally Lasane III, supra. None of these were successful.

Then, on June 10, 2014, defendant filed a PCR petition in which he argued, inter alia, that his sentence was illegal under Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The Law Division denied the petition, holding that Miller "only forbids a sentence of life imprisonment without parole for juvenile offenders" and that because defendant's sentence explicitly limits parole ineligibility to forty-five years, it does not run afoul of Miller. This appeal followed.

Defendant raises the following arguments on appeal

POINT I

THE APPELLANT'S SENTENCE WAS IMPOSED IN VIOLATION OF THE UNITED STATES SUPREME COURT'S RULING IN MILLER V. ALABAMA AND THEREFORE VIOLATES THE UNITED STATES CONSTITUTION'S 8TH AMENDMENT BAN ON CRUEL AND UNUSUAL PUNISHMENT

POINT II

THE SENTENCE IMPOSED BY THE APPELLATE DIVISON ON DIRECT APPEAL INCORPORATED ELEMENTS OF AN ILLEGAL SENTENCE AND SHOULD BE CORRECTED ON RESENTENCING

We have considered these arguments in light of the record and the law, and we affirm. Moreover, while we find that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), we add the following brief comments.

In Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), the United States Supreme Court considered a case that is instructive for our case. There, the defendant was convicted of non-homicide crimes that he committed when he was sixteen years old and sentenced to life imprisonment. Because the State of Florida had abolished its parole system, Graham's life sentence was, in effect, a mandatory life term. Id. at 57, 130 S. Ct. at 2020, 176 L. Ed. 2d at 834-35. The Court held that Graham's sentence violated his Eighth Amendment constitutional protections because it virtually guaranteed he would die in prison without any meaningful opportunity to obtain release. Ibid. The Graham Court concluded that all mandatory life sentences for juvenile non-homicide offenders are unconstitutional unless such defendants have some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Id. at 74, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845.

Two years after Graham, in Miller, supra, the United States Supreme Court extended these principles to juveniles convicted of homicide offenses. 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. Miller declared that any codified sentencing scheme that mandates a sentence of life in prison without the possibility of parole for juvenile homicide offenders is unconstitutional. Ibid.

In Miller, as we have noted, the Supreme Court held that "a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders" violates the Eighth Amendment. Ibid. Conversely, where a juvenile offender retains the prospect of parole within his lifetime, Miller does not apply. In Lockyer v. Andrade, 538 U.S. 63, 74, 123 S. Ct. 1166, 1174, 155 L. Ed. 2d 144, 157 (2003), the United States Supreme Court reasoned that a sentence of two consecutive terms of 25 years to life was "materially []distinguishable" from a sentence of life without parole, given that the defendant there could reasonably expect to be eligible for parole during his lifetime.

Here, defendant received a life sentence with a forty-five year period of parole ineligibility. Miller and Graham only prohibit certain life sentences without the possibility of parole. These decisions do not require a guarantee of release, but only require courts sentencing juveniles a "realistic opportunity to obtain release before the end of that term." Ibid. The concerns underpinning those decisions are absent in this case; defendant will be eligible for parole and thus has "a meaningful and realistic opportunity for release during" defendant's life expectancy. State v. Zuber, 442 N.J. Super. 611, 627 (App. Div. 2015), certif. granted, 224 N.J. 245 (2016).

The facts of the instant case are "not materially indistinguishable" from the facts of Miller and its progeny, and consequently the sentence imposed on defendant does not run afoul of the Miller standard. A state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 406, 120 S. Ct. 1495, 1519-20, 146 L. Ed. 2d 389, 426 (2000) (O'Connor, J., for the Court, Part II). Accordingly, even if we were to assume that Miller applied retroactively here1, we do not find that its principles have been violated by defendant's sentence for murder and related crimes in this case.

1Teague v. Lane, 489 U.S. 288, 306 10, 109 S. Ct. 1060, 1073-75, 103 L. Ed. 2d 334, 352-56 (1989), generally bars retroactive application of new constitutional rules of criminal procedure on collateral review. Teague's retroactivity rule has not been addressed by the parties. See also Rule 3:22-12.