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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4888-17T2






                   Submitted June 1, 2020 – Decided June 26, 2020

                   Before Judges Sumners, Geiger and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 76-03-0377.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Laura B. Lasota, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Ali Y. Ozbek, Assistant
                   Prosecutor, of counsel and on the brief).

      In 1976, defendant Eugene Belton was sentenced to a life term for murder

and was initially eligible for parole after serving less than seventeen years. A

few years before Belton reached his first parole eligibility date, he participated

in a prison riot and was criminally prosecuted and convicted, receiving a

consecutive term of fifteen years' imprisonment with seven-and-one-half years

of parole ineligibility. Thereafter, he was repeatedly denied parole. In 2014,

the Parole Board (Board) imposed a 144-month future eligibility term (FET).

      After unsuccessfully appealing the Board's decision, Belton moved to

correct an illegal sentence under State v. Zuber,  227 N.J. 422 (2017). The

motion court denied the application, determining that his sentence was not the

functional equivalent of life without parole and his prolonged imprisonment was

due primarily to his inmate infractions and conviction for crimes committed

while incarcerated. In this appeal, Belton challenges that decision.


      In March 1976, Belton and a co-defendant were indicted under Title 2A—

which has since been repealed and replaced by Title 2C—on the following

charges in relation to a January 1976 incident: murder,  N.J.S.A. 2A:113-1;

armed robbery,  N.J.S.A. 2A:151-5; robbery,  N.J.S.A. 2A:141-1; conspiracy to

commit robbery,  N.J.S.A. 2A:98-1; and entering a dwelling with intent to steal,

 N.J.S.A. 2A:94-1. Belton was seventeen years old at the time.

      The following month, two additional indictments were returned against

Belton. The first charged him with an October 1974 assault with the intent to

rob,  N.J.S.A. 2A:90-2. The second charged, in relation to a November 1974

incident, escape from a youth corrections center,  N.J.S.A. 2A:104-6; entering

with intent to steal,  N.J.S.A. 2A:94-1; and theft of a vehicle,  N.J.S.A. 2A:119-


      Belton was waived to adult court. In April 1976, Belton entered a plea of

non vult to the January 1976 murder charge and the November 1974 entering

with intent to steal charge in exchange for dismissal of the remaining charges.

      At the plea hearing, Belton testified he had completed the sixth grade and

was able to read and write English "a little bit." He acknowledged that he

understood that by pleading non vult to murder he could be sentenced to life


      Belton admitted that on January 23, 1976, he went to an apartment in

Paterson with a knife intending to commit robbery. He and his co-defendant

pushed open the door and he stabbed the victim in the throat. While looking for

money to steal, Belton saw a hammer and used it to strike the victim on the head

causing his death. Belton then stole a television.

      Belton also admitted that on November 3, 1974, he broke into a garage in

Wayne and stole a vehicle. Belton said he understood the penalty for this

offense was up to seven years' imprisonment or a $2000 fine. The trial court

accepted both guilty pleas.

      During the sentencing hearing, defense counsel urged the court to

recommend placement in a reformatory, arguing that "all of the authorities seem

to think he needs some kind of a structural environment." Counsel asserted that

when Belton was five years old his mother died, and his father abandoned the

family. "From that point up until today . . . all he did was drift from foster home

to foster home, institution to institution."

      Counsel argued that no one except one of his sisters cared what happened

to Belton. His behavior in the institutions was aggressive and assaultive, and

while the institutions made recommendations for him, counsel alleged Belton

never received the "psychological or psychiatric help, which he obviously

need[ed]." Counsel urged the court to not "double up on him at this juncture"

by imposing consecutive terms and by placing him in prison with adults. Given

Belton's aggressive behavior, psychiatric problems, and young age, counsel

argued that placing him in adult prison would be "pretty much the end of this


      The State urged the court to impose the maximum term of life

imprisonment for the murder due to the heinous and "extremely violent" nature

of the crime. It sought a consecutive term for the November 1974 breaking and

entering, based on Belton's criminal history.

      The sentencing court imposed a term of life on the murder conviction and

a concurrent term of six-to-seven years on the breaking and entering conviction.

Both judgments of convictions recommended transferring Belton to the New

Jersey Youth Correction Institution for the beginning of his term.

      In so sentencing Belton, the court began by stating: "It's a terrible thing

to see you before this [c]ourt charged with an offense of this type at [age

seventeen]." The court said that it had never seen "such a completely anti-social

person" who had "completely refused to accept the fact that you are part of

society and as part of society you do owe certain obligations to society just as

we owe to you." The court noted that the amount of time Belton would serve in

prison depended on his activities while incarcerated. The court declined to

impose consecutive terms because it did not "think any purpose would be

served" by doing so.

      Belton appealed his sentence. We affirmed, explaining that "the entire

record, including the circumstances attendant upon the commission of these

offenses and the presentence report (inclusive of defendant's prior convictions),

satisfies us that the sentences are neither unduly punitive nor manifestly

excessive." State v. Belton, No. A-0331-76 (App. Div. May 1, 1978) (slip op.

at 1-2).

      Belton was not a model prisoner. From October 1976 to August 1987,

Belton was found guilty of thirty-nine serious asterisk infractions,1 which

included: fighting; conduct that interfered with or disrupted prison security;

possession of drugs or a prohibited substance; threatening another; engaging in

or encouraging group demonstration; rioting; assault; and weapon possession.

From October 1976 to January 1990, he was found guilty of sixty-two additional

infractions, which included: refusing to obey an order; being in an unauthorized

area; unexcused absence from work or assignment; obscene or abusive language;

unauthorized possession of an object; interfering with the taking of a count;

failing to stand count; possession of another's property; destroying or damaging

  Asterisk infractions denote the most severe offenses committed by an inmate.
See N.J.A.C. 10A:9-2.13(a), (b), (c).
property; failure to follow safety or sanitary regulations; and refusing to work

or accept an assignment.

      In August 1990, when he was thirty-two years old, Belton participated in

a prison riot that prison authorities believed he and his cohorts had organized

and preplanned. According to prison records, Belton and four other inmates

used shanks and five-pound weights to attack seven unarmed prison guards in a

gym corridor, including a captain and senior officer. Belton and two others

stabbed the captain "in the face and head and bludgeoned him in the head with

a weight." The captain also suffered a collapsed lung.

      Belton and his cohorts "stabbed and bludgeoned" the senior officer "into

an unconscious state."     They "struck [his] head, stabbed and kicked [him]

repeatedly and his cheekbone was crushed by a weight." Another officer was

forced into an area where Belton and his cohorts "repeatedly tried to stab him in

the face." The five inmates then fled the attack and fought the responding


      In May 1991, a grand jury indicted Belton and the other four inmates on

multiple charges relating to the riot. A jury convicted Belton of four counts of

varying degrees of aggravated assault and possession of a weapon for an

unlawful purpose.

      On July 30, 1993, the sentencing court imposed an aggregate term of

twenty-one years and six months' imprisonment with a parole-bar of ten years

and nine months to run consecutively to his life sentence. Belton successfully

appealed this sentence, and on September 26, 1997, he was resentenced to an

aggregate term of fifteen years' imprisonment with seven-and-one-half-years of

parole ineligibility, to run consecutively to his life sentence.

      In 2006, Belton was first denied parole due to his extensive criminal

history, the substantial likelihood that he would commit another crime, prison

infractions, a lack of deterrence, and a lack of attempt to participate in programs.

      The following year he was again denied parole for similar reasons. By

that point, he had incurred a total of 127 institutional infractions from October

1976 to September 2003, forty-three of which were considered serious. The

Parole Board found that he continued to minimize his participation in his crimes,

displayed insufficient problem resolution skills, and tended to react to stress and

confrontation with violent behavior.      However, the panel also recognized as

mitigating factors that Belton had participated in some programs, attempted to

enroll in others but was not admitted, received "average" institutional reports,

and had commutation credits restored.

      In December 2010, Belton was denied parole. The Board panel found that

he also had a substance abuse problem that he had not sufficiently addressed and

that while he was "beginning to direct his attention to his criminal thinking," he

"remain[ed] unaware of the depth of his anger." In June 2012, the Parole Board

once again denied parole for similar reasons.

      In June 2014, a two-member Board panel denied parole, writing that

Belton "need[ed] to address some emotional/mental issues; especially anger

issues" and did not have an adequate plan to assist him with reintegration. As

mitigating factors, the panel recognized that his last infraction was in 2003 and

he had participated in various programs since. Belton sought further review. In

November 5, 2014, a three-member Board panel denied parole and imposed a

144-month FET, concluding that "the depth of [Belton's] pathology renders the

usual presumptive [twenty-seven-month] FET insufficient."

      In its January 26, 2015 decision, a three-member Board panel found there

was little evidence that anything had reduced Belton's "propensity for criminal

and antisocial activity." The panel wrote that Belton's early criminal behavior,

which began at age eight when he set fire to a chair and inappropriately touched

a younger child, had progressed with time and resulted in placement in the State

Home for Boys (SHB) by age twelve.          SHB reported that Belton "made no

progress" and became "more aggressive, insubordinate and assaultive" while

there. A psychiatric evaluation concluded he was "emotionally explosive under

stress." The panel noted that his criminal behavior also included three robberies,

arson, burglary, and larceny before he committed the murder.

      According to the panel, his record while in prison did not show that he

had progressed from an angry child to a "balanced individual who no longer

presents as a substantial threat of criminal activity." When asked to explain why

he had committed the murder at age seventeen, Belton repeatedly blamed it on

being under the influence of alcohol, heroin, and cocaine, which he claimed he

had begun using "routinely" by age twelve. He expressed remorse for what he

had done and said, "emotionally, I was dealing with a lot." According to the

panel, his responses, coupled with the heinous nature of the murder, the

numerous infractions he had committed in prison, and the assaultive behavior

he exhibited during the 1990 prison riot, demonstrated that he still lacked insight

into his criminal behavior.

      The panel also found that Belton had no plan to address his substance

abuse issues, seek employment, and secure housing if he were released. Belton

indicated he planned to live in an unspecified "placement" setting and obtain a

job, hopefully as a guidance counselor, before requesting permission to move to

the South to be with his family. Belton was then fifty-five years old and had no

more than a seventh-grade education. The panel deemed his intention to work

as a guidance counselor, which required at least a bachelor's degree, to be

unrealistic. His plan to live in a "placement" facility, with no other support and

no job skills, was insufficient. Further, while he had participated in a narcotics

abuse program, he still had "no insight" into his addiction, stressors , and factors

that contributed to his criminal behavior.

      The panel considered Belton's mitigation letter, in which he claimed he

better understood his behavior and had taken steps to "adopt[] rehabilitative

techniques" that he had learned in the programs he completed.               Belton

underscored that he had remained infraction free for the past eleven years. The

panel found these steps did not outweigh the factors supporting a FET far beyond

the presumptive term. Based on the 144-month FET, less commutation credit

he had earned, the panel noted that Belton's parole eligibility date was March 7,

2023, but if he continued to accrue work credits, that date could be further


      Belton filed an administrative appeal of the panel's decision; it was

affirmed by the full Parole Board. Belton appealed the parole denial and FET

to this court. We affirmed, finding that the Parole Board's decision was not

arbitrary, capricious, or unreasonable and was supported by substantial and

credible evidence in the record. Belton v. State Parole Bd., No. A-4181-14

(App. Div. Aug. 3, 2017) (slip op. at 5-7).

      Belton then moved to correct an illegal sentence under Miller v. Alabama,

 567 U.S. 460 (2012), and Zuber. Belton argued he was seventeen years old

when he committed the original offenses, he was now a changed person, and his

de facto life sentence violated the prohibition against cruel and unusual

punishment. Belton also asserted that the sentencing court did not consider that

he acted under the influence of his adult co-defendant.

      The motion court assigned counsel to represent Belton. Counsel argued

that the motion court should reduce Belton's sentence under the Miller factors

because he was serving the functional equivalent of life without parole. Counsel

contended that Belton's childhood had been chaotic and that his juvenile

offenses and the homicide were substantially the result of the lack of a stable

family structure and absence of emotional support.

      The State argued that parole eligibility for a life sentence under Title 2A

was far different than under Title 2C, noting that under Title 2C, a life sentence

would result in sixty-three years and nine-months of parole ineligibility pursuant

to the No Early Release Act,  N.J.S.A. 2C:43-7.2. The State contended that

Belton remained imprisoned because of the heinous crimes and numerous

infractions he committed while in prison, coupled with his failure to recognize

the underlying reason for his violent behavior; concerns about his resumption of

drug use if released; and the lack of any plan for housing upon release. The

State further argued that the facts and sentences imposed in Graham v. Florida,

 560 U.S. 48 (2010) (upon which Miller was partially premised), Miller, and

Zuber, were readily distinguishable from this case.

      Following oral argument, the motion court issued a May 1, 2018 order

denying Belton's motion. In its subsequent written statement of reasons, the

court comprehensively reviewed the crimes Belton committed, his plea

agreement, the sentencing process, his inmate infractions, and the parole

decisions. It explained that the sentencing court had considered Belton's youth

and his difficult upbringing when it sentenced him in 1976, that he had been

previously eligible for parole, and that he was denied parole because of his

behavior in prison, which this court affirmed.

      The motion court noted Belton's "sad and chaotic childhood" and that "he

was raised primarily in foster homes, as well as in a juvenile reformatory," after

his mother died and his father left the family when he was five years old. The

court found these circumstances had a "devastating" and "tragic" impact on his


      The Parole Board advised the motion court that Belton's initial parole

eligibility date for his life sentence was September 28, 1992—sixteen years, four

months, and eighteen days from his date of sentence. That date considered the

award of 109 days of jail credit and the application of 3027 days of projected

commutation credit. The Parole Board noted his parole eligibility date could

have been further reduced to November 28, 1991, by applying the 305 days of

work credit Belton had earned. Inmates serving a life term imposed under Title

2A generally become eligible for parole in the range of fourteen and one-half

years to fifteen and one-half years.

      The court noted that the Miller and Zuber factors "are largely intertwined

with the factors considered by the Parole Board." It emphasized that the assaults

of the corrections officers in 1990 were committed when Belton was thirty-two

years old. Further, his "multiple and serious institutional infractions spanned

the first twenty-seven years of his custodial term." Moreover, "Belton had

already accumulated a long and serious and violent juvenile offender history"

before committing the murder.

      The court found Belton has remained in prison far beyond his initial parole

eligibility date "as a direct result of his post-sentence behavior while in prison"

and the reasons cited by the Parole Board.

      This appeal followed. Belton raises the following single point:



      In Miller,  567 U.S.  at 479, the Supreme Court declared mandatory life

imprisonment without parole for a juvenile sentenced as an adult

unconstitutional under the Eighth Amendment. In so ruling, the Court built upon

prior decisions, which recognized 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).

      The Miller Court stated 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
            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.

            [ 567 U.S.  at 477-78.]

      Miller did not preclude the possibility of a life sentence for a juvenile but

reaffirmed the determination made in Graham that such a sentence may not be

mandatory and should be "uncommon" given a juvenile's "diminished

culpability and heightened capacity for change." Miller,  567 U.S.  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 v. Simmons,  543 U.S. 551, 573 (2005)).

      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. 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, our Supreme Court extended the holding of Miller to any life

sentence without parole or its functional equivalent.  227 N.J. at 447-48. The

Court held that when a juvenile is tried as an adult and is subject to a lengthy

aggregate term that is "the practical equivalent of life without parole," the

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

and mitigating sentencing factors set forth in  N.J.S.A. 2C:44-1(a) and (b).

Zuber,  227 N.J. at 429, 445-47, 450.

       Where consecutive terms are an option, the court must consider the

Yarbough2 factors under "a heightened level of care." Id. at 450. While the

Court did not define the meaning of a "heightened level of care," it couched it

in terms of the "concerns that Graham and Miller highlight" and the "overriding

importance" of Miller. Ibid. Like the Miller Court, the Court in Zuber did not

preclude the possibility of a life sentence for a juvenile but instructed that few

juveniles should receive de facto life terms 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 Zuber 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." Id. at 447.

    State v. Yarbough,  100 N.J. 627, 643-44 (1985).
      It 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. The defendant 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 consequences, or whether he may be, or has

been, rehabilitated." Id. at 452 (citing Miller,  567 U.S. at 477).

      In State v. Bass, we addressed the length of sentence that may qualify as

a de facto life term.  457 N.J. Super. 1, 13-14 (App. Div. 2018), certif. denied,

 238 N.J. 364 (2019). We held that a life sentence with a thirty-five-year parole-

bar imposed on a juvenile 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 sentence. Ibid. We further held that any rehabilitative actions the

defendant had taken while incarcerated were matters for the parole board to

consider and did not render the sentence unconstitutional.           Id. at 14.   We


             [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.


      Belton contends the motion court erred in denying his motion to correct

an illegal sentence because he was sentenced to life sentence for the murder he

committed when he was seventeen years old and under Zuber, a court may not

impose a life sentence, or a de facto life sentence, without first considering the

Miller factors. He argues the sentencing court did not properly consider his

youth or the Miller factors, and the mere possibility of parole is insufficient to

satisfy Zuber.

      Belton claims a court must consider the real-time he has served in prison

and underscores that he has now been incarcerated over forty-four years. He

labels the reasons for denying his most recent requests for parole as "hollow and

circular." He emphasizes that his most recent infraction was in 2003 and that

his failure to provide a suitable release plan should be understandable given the

length of his incarceration. He also notes that the Parole Board did not consider

his youth or the Miller factors. We are unpersuaded by these arguments.

      We reject the contention that Belton received the functional equivalent of

life without parole. He received a life sentence subject to a parole-bar of less

than seventeen years for the murder he committed at age seventeen. He was

initially eligible for parole when he was thirty-three or thirty-four years old,

depending on the amount of work credits he earned. We adhere to the reasoning

in Bass. A life sentence with a less than seventeen-year parole-bar was not the

functional equivalent of a life sentence, and thus, Belton was not entitled to

resentencing under Zuber, even though the sentencing court had not considered

the Miller factors. The rehabilitative actions Belton has taken while incarcerated

are matters for the Parole Board to consider and did not render the sentence


      Belton remains imprisoned for four principal reasons. First, his conduct

in prison, from 1976 to 2003, was abysmal. He incurred some 127 infractions,

forty-three of which were serious. As a result, he received sanctions, including

the loss of commutation and work credits. Second, he committed new serious

crimes in prison, at age thirty-two, for which he ultimately received an aggregate

consecutive fifteen-year sentence with seven-and-one-half years of parole

ineligibility. Third, the Parole Board imposed a 144-month FET for reasons we

previously found supported by the record. Fourth, the Parole Board remained

concerned about Belton's unresolved anger issues, lack of insight into why he

committed the homicide, future substance abuse, and lack of suitable living


      Belton committed every prison infraction and the riot-related crimes as an

adult, after he was sentenced for the murder. His defiant conduct while serving

his murder sentence refutes any claim that he is reformed and rehabilitated.

Further, the murder and other crimes Belton committed hardly "reflect[s] only

transient immaturity." Montgomery,  136 S. Ct.  at 736.

      More fundamentally, we are unaware of any published opinion that has

extended the principles announced in Miller and Zuber to prolonged

incarceration primarily resulting from prison infractions. We decline to do so.



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