STATE OF NEW JERSEY v. ALTOWAN NIXON
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4073-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALTOWAN NIXON,
Defendant-Appellant.
_______________________________
Argued November 30, 2017 – Decided December 14, 2017
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 94-
06-2161.
Lauren S. Michaels, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Lauren S. Michaels, of counsel and on the
briefs).
Sarah D. Brigham, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Sarah
D. Brigham, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from the January 13, 2016 order of the Law
Division denying his motion to correct an illegal sentence. We
affirm.
We begin by referencing the essential background facts set
forth in our prior opinion on defendant's direct appeal of his
conviction and sentence. State v. Nixon, No. A-5055-94 (App. Div.
Mar. 24, 1998). At approximately 4:00 a.m. on September 28, 1993,
defendant and three or four of his friends were standing on a
Newark street, where one member of the group was selling cocaine.
Nixon, slip op. at 3. Defendant was fifteen years old at the
time. Id. at 1.
The two victims approached the group and one of them began
asking the dealer questions about the quality of the cocaine. Id.
at 3. In response, defendant took out a handgun and "brandished
it" at the victims before putting it away. Ibid. The men then
paid for the drugs and began walking back to their car. Ibid.
At that point, defendant and two of his companions stopped
the victims. Ibid. Defendant again took out his handgun and told
the victims "to hand over the drugs they had bought, in addition
to any money they were carrying." Ibid. One of the victims gave
back the cocaine. Ibid. However, the other victim "lunged at
defendant, and defendant's gun discharged, shooting the victim in
the left upper breast." Id. at 4. As the victim attempted to get
2 A-4073-15T4
to his car, defendant shot him "in the backside." Ibid. The
victim later died at the hospital.1 Ibid.
After defendant was "waived to adult court," a jury convicted
him of felony murder,
N.J.S.A. 2C:11-3(a)(3); aggravated
manslaughter,
N.J.S.A. 2C:11-4(a); first-degree robbery,
N.J.S.A.
2C:15-1; criminal conspiracy,
N.J.S.A. 2C:5-2; and two weapons
offenses,
N.J.S.A. 2C:39-5(d) and
N.J.S.A. 2C:39-4(a). Id. at 1.
At oral argument at defendant's sentencing, his attorney
acknowledged that because defendant had been convicted of felony
murder, the trial judge did not "have too many options, he has to
get at least [thirty] years in jail before he's eligible for
parole." See
N.J.S.A. 2C:11-3(b)(5) (stating that "[a] juvenile
who has been tried as an adult and convicted of murder shall be
sentenced pursuant to"
N.J.S.A. 2C:11-3(b)(1), which provides that
a defendant may be sentenced to a term of thirty years without
parole, or to a specific term of years between thirty and life,
with a thirty-year period of parole ineligibility).
Defendant's attorney went on to highlight defendant's age at
the time he committed the offense, his immaturity, and his poor
family and home environment. The attorney stated that because
1
Just one week earlier, defendant had been "charged with a
separate murder" for beating another man to death with a baseball
bat. Id. at 15.
3 A-4073-15T4
defendant's mother was "a crack addict" and his father "was not
around[,] . . . nobody taught him right or wrong, he just lived
on the streets and, unfortunately, he got on the street where he
had a gun, somebody got shot." Defense counsel also asserted that
"[w]hen [defendant's] in some structured environment, there's
nothing wrong with this person[.]" In arguing for the imposition
of a life sentence with a thirty-year period of parole
ineligibility, the prosecutor noted that defendant could be
released in his mid-40's, which was approximately the same age as
the man he murdered.
After considering these arguments and reviewing defendant's
presentence report, the judge imposed a life sentence with a
thirty-year period of parole ineligibility on the felony murder
charge. Nixon, slip op. at 12-13. The judge imposed concurrent
sentences on the remaining charges that did not merge into the
felony murder conviction. Id. at 2.
On direct appeal, we affirmed defendant's conviction and
sentence. Id. at 16. We concluded defendant's sentence was "in
accord with the applicable statutory guidelines," and that the
trial judge "properly considered" the aggravating and mitigating
factors. Id. at 13, 16. "We [also] note[d] that defendant may,
4 A-4073-15T4
at some point when the combined terms[2] of parole ineligibility
are served, be considered for parole, notwithstanding the life
term." Id. at 16.
The Supreme Court denied defendant's petition for
certification. State v. Nixon,
156 N.J. 384 (1998). Defendant
subsequently filed three unsuccessful petitions for post-
conviction relief between 1999 and 2010.
Beginning in 2005, the United States Supreme Court issued a
series of four opinions concerning the sentencing of juvenile
offenders. In Roper v. Simmons,
543 U.S. 551, 578 (2005), the
Court declared capital punishment unconstitutional under the
Eighth Amendment for juvenile offenders. Five years later, in
Graham v. Florida,
560 U.S. 48, 82 (2010), the Court held that the
Eighth Amendment prohibits sentences of life without parole for
juveniles convicted of non-homicide offenses.
In its next case on this subject, the Court held that "the
Eighth Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders."
2
Following sentencing in this case, defendant pled guilty to
aggravated manslaughter in connection with the beating death of
the victim in defendant's earlier case. The trial court sentenced
defendant to fifteen years in prison, concurrent to the life
sentence imposed in this case, with a five-year parole disqualifier
consecutive to the thirty-year period of parole ineligibility
imposed in this case. Defendant does not challenge this subsequent
sentence in this appeal.
5 A-4073-15T4
Miller v. Alabama,
567 U.S. 460, 479 (2012). Significantly, the
Court did not bar trial courts from imposing life sentences without
parole for juveniles convicted of a homicide offense. Id. at 480.
However, before imposing a life sentence without parole,
sentencing judges must consider the following five factors (the
Miller factors):
Mandatory life without parole for a
juvenile
[1] precludes consideration of his [or her]
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
[or her] – and from which he [or she] cannot
usually extricate himself [or herself] – no
matter how brutal or dysfunctional.
[3] It neglects the circumstances of the
homicide offense, including the extent of his
[or her] participation in the conduct and the
way familial and peer pressures may have
affected him [or her].
[4] Indeed, it ignores that he [or she] might
have been charged and convicted of a lesser
offense if not for incompetencies associated
with youth – for example, his [or her]
inability to deal with police officers or
prosecutors (including on a plea agreement)
or his [or her] incapacity to assist his [or
her] own attorneys.
[5] And finally, this mandatory punishment
disregards the possibility of rehabilitation
even when the circumstances most suggest it.
6 A-4073-15T4
[State v. Zuber,
227 N.J. 422, 445 (2017),
cert. denied, ___ U.S. ___ (2017) (quoting
Miller,
567 U.S. at 477 (citations omitted).]
Finally, in Montgomery v. Louisiana, 577 U.S. ___ (2016)
(slip op. at 29), the Court held that Miller "announced a
substantive rule of constitutional law" that applies
retroactively.
Thereafter, our Supreme Court extended Miller to a juvenile
offender who was sentenced to "the practical equivalent of life
without parole[,]" and subject to "multiple terms-of-years
sentences that, in all likelihood, will keep him [or her] in jail
for the rest of his [or her] life." Zuber,
227 N.J. at 446, 448.
In the first of the two cases that were considered in Zuber, the
trial court sentenced defendant to 110 years in prison with fifty-
five years of parole ineligibility. Id. at 428. In the second
case, the juvenile was serving a seventy-five-year term and was
ineligible for parole for sixty-eight years and three months.
Ibid.
The two juveniles, the Court observed, may not have been
"officially" sentenced to life without the possibility of parole,
but the practical effect of the "real-time consequences" of their
sentences was the same. Id. at 447-48. Thus, the Court held
"that youth matters in each case that calls for a lengthy sentence
that is the practical equivalent of life without parole" and,
7 A-4073-15T4
accordingly, the sentencing judge must consider the Miller factors
before imposing such a sentence. Id. at 448 (emphasis added).
On May 27, 2015, after the United States Supreme Court's
decisions in Graham and Miller, but before its decision in
Montgomery, and our Supreme Court's decision in Zuber, defendant
filed a motion to correct an illegal sentence. Defendant argued
that his sentence violated Graham and Miller because the sentencing
court did not adequately consider his age at the time of
sentencing.
Following oral argument, the motion judge rendered a thorough
written decision denying defendant's motion. The judge found that
Graham did not apply because defendant was convicted of homicide
and not sentenced to life without parole. The judge found that
defendant's sentence did not violate Miller because
N.J.S.A.
2C:11-3(b)(1), as applied to juveniles under
N.J.S.A. 2C:11-
3(b)(5), does not impose a mandatory sentence of life without
parole and, in any event, defendant had not been sentenced to a
life sentence without parole.
The judge also concluded that even if Miller applied, "[t]he
motion record shows that the sentencing court did in fact give
appropriate consideration to all mitigating factors, including
age." As discussed above, defendant's attorney specifically
discussed defendant's age, immaturity, family and home
8 A-4073-15T4
environment, lack of a prior juvenile record,3 and need for
structure in his life. After considering these arguments, the
sentencing judge concluded that the appropriate sentence was life
with a thirty-year period of parole ineligibility, and the judge
did not impose consecutive sentences on defendant's other
convictions. Under these circumstances, the motion judge found
no constitutional infirmity in defendant's sentence. This appeal
followed.
On appeal, defendant raises the following contentions:
POINT I
THE DEFENDANT'S SENTENCE OF LIFE IMPRISONMENT
WITH A [THIRTY]-YEAR PAROLE DISQUALIFIER,
IMPOSED UPON HIM FOR A CRIME COMMITTED WHILE
A JUVENILE, VIOLATED THE EIGHTH AMENDMENT AND
ARTICLE ONE, PARAGRAPH TWELVE BECAUSE IT WAS
IMPOSED BASED UPON A MISTAKE OF LAW, WITHOUT
CONSIDERATION OF HIS AGE AT THE TIME OF THE
CRIME. THEREFORE, HIS SENTENCE IS ILLEGAL,
REQUIRING RESENTENCING UNDER STATE V. ZUBER.
A. Miller v. Alabama and other United
States Supreme Court Cases
Requiring Consideration of A
Juvenile's Age and Attendant
Circumstances Because Children are
Constitutionally Different from
Adults for Purposes of Sentencing
Are Not Limited To Mandatory Life-
Without-Parole Sentences Or Non-
Homicide Cases.
3
As noted previously, defendant had a second murder charge
pending against him at the time of sentencing.
9 A-4073-15T4
B. In State v. Zuber, The Supreme Court
of New Jersey Held That Resentencing
Is Required When A Juvenile Is
Sentenced To A "Lengthy" Term
Without Consideration Of The Youth
Factors Set Forth in Miller.
C. The Motion Judge Erred In Denying
[Defendant's] Motion To Correct An
Illegal Sentence; His Case Must be
Remanded For A New Sentencing
Hearing Pursuant to Zuber.
1. Miller and Zuber Apply To A Life
Sentence With a [Thirty]-Year
Parole Disqualifier Imposed for
Felony Murder.
2. [Defendant's] Sentence Was Imposed
Contrary To The Eighth Amendment
Principles Set Forth In Graham,
Miller, Montgomery, and Zuber
Because It Was Imposed Solely Upon
A Finding That The Offense Was A
"Senseless Killing," Without Any
Consideration Of His Age And
Attendant Circumstances At The Time
Of The Crimes.
3. The Motion Was Neither Time- Nor
Procedurally-Barred Because An
Illegal-Sentence Motion Under Rule
3:21-[10(b)(5)] Can Be Brought At
Any Time.[4]
4
Defendant filed a pro se supplemental brief that does not include
any point headings to be argued as required by Rule 2:6-4(a) and
Rule 2:6-2(a)(6). Nevertheless, we have reviewed defendant's
supplemental contentions and conclude that they are clearly
without merit and do not warrant further discussion. R. 2:11-
3(e)(2).
10 A-4073-15T4
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We add the following comments.
As defendant correctly points out, a request to correct an
illegal sentence can be made at any time under Rule 3:21-10(b)(5).
State v. Schubert,
212 N.J. 295, 309 (2012). "[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.'" State v. Acevedo,
205 N.J. 40, 45 (2011)
(quoting State v. Murray,
162 N.J. 240, 247 (2000)). Contrary to
defendant's contention, however, the sentence imposed by the
sentencing judge was not an illegal sentence under Graham, Miller,
or Zuber.
As the motion judge properly found, Graham and Miller are not
applicable to the circumstances of this case. Here, and unlike
in Graham and Miller, defendant was not sentenced to life without
the possibility of parole. Instead, he received a life sentence
with the thirty-year period of parole ineligibility required by
N.J.S.A. 2C:11-3(b)(1). Under Graham and Miller, this sentence
clearly did not violate the Eighth Amendment.
Our Supreme Court's decision in Zuber does not change this
result. In Zuber, the Court held that a sentencing judge may not
11 A-4073-15T4
impose "a lengthy sentence that is the practical equivalent of
life without parole" without first considering the Miller factors.
Zuber,
227 N.J. at 448. Defendant's sentence in this case is
simply not "the practical equivalent of life without parole"
because he will be eligible for parole after serving thirty years.5
Moreover, the motion judge's finding that the sentencing judge
adequately considered defendant's age and the other Miller factors
as presented by defense counsel at the sentencing hearing is amply
supported by the record, and we discern no basis for disturbing
that principled determination.
Affirmed.
5
Defendant's current parole eligibility date is September 28,
2028. He will be fifty years old at that time. Defendant would
have been eligible for parole in 2023, at age forty-five, on his
felony murder conviction had he not been later convicted and
sentenced for aggravated manslaughter in connection with the man
he beat to death before killing the victim in this case.
12 A-4073-15T4
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