STATE OF NEW JERSEY v. RONALD MCGRAW

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2266-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RONALD MCGRAW,

     Defendant-Appellant.
________________________

                   Argued November 15, 2021 – Decided December 8, 2021

                   Before Judges Fasciale and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 02-07-0950.

                   Peter T. Blum, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Peter T. Blum, of counsel
                   and on the briefs).

                   Mark Niedziela, Assistant Prosecutor, argued the cause
                   for respondent (Camelia M. Valdes, Passaic County
                   Prosecutor, attorney; Mark Niedziela, of counsel and on
                   the brief).

PER CURIAM
      In 2004, a jury convicted defendant Ronald McGraw of the first-degree

murder of Michael Carter, first-degree conspiracy to commit murder, and related

weapons offenses. The court imposed a fifty-year sentence with a forty-two-

and-one-half year period of parole ineligibility under the No Early Release Act

(NERA),  N.J.S.A. 2C:43-7.2. Defendant appeals from a January 7, 2020 order

denying his motion under Rule 3:21-10(b) to correct what he contends is an

illegal sentence.

      Defendant offers the following argument in support of his appeal:

            POINT I

            THE PAROLE BAR OF APPROXIMATELY FORTY-
            THREE YEARS WAS CRUEL AND UNUSUAL
            PUNISHMENT BECAUSE THE COURT IMPOSED
            IT UPON AN EIGHTEEN-YEAR-OLD OFFENDER
            IN THE FACE OF SCIENCE THAT COUNSELED
            STRONGLY AGAINST IMPOSING SUCH A
            SENTENCE UPON A PERSON OF THAT AGE. U.S.
            CONST. AMEND. VIII, XIV; N.J. CONST. ART. I, ¶
            12.

      We have considered defendant's argument in light of the record presented

to the motion court and the applicable legal principles. We are satisfied the

court did not err by rejecting defendant's claim his sentence is illegal and

denying his motion. We therefore affirm.




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                                        I.

      On March 31, 2002, three months before his nineteenth birthday,

defendant entered a bar with two fellow members of the Bloods street gang,

George Jacobs and Rashawn Cooks. A witness reported to the police that each

of the men had guns. Defendant later testified at his trial that he, Jacobs, and

Cooks went to the bar to confront fellow gang member Michael Carter because

he had associated with a member of a rival gang. According to defendant, he,

Jacobs, and Cooks planned to administer a "thirty-one second beat down" of

Carter, meaning they intended to beat Carter for thirty-one seconds in retribution

for his association with the rival gang member. Instead, when the three men

entered the bar, shots were fired from two separate guns, and Carter was killed.

Defendant testified at trial he did not have a gun and that Cooks shot Carter.

      A jury convicted defendant of the four charges in the indictment returned

against him: first-degree conspiracy to commit murder,  N.J.S.A. 2C:5-2 and

 N.J.S.A. 2C:11-3(a)(1); first-degree murder,  N.J.S.A. 2C:11-3(a)(1); second-

degree possession of a weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(a);

and third-degree unlawful possession of a weapon,  N.J.S.A. 2C:39-5(b).  1 The

 1
 In 2002,  N.J.S.A. 2C:39-5(b) provided that unlawful possession of a handgun
without first having obtained a permit to carry same was a third-degree offense.


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court merged the conspiracy and second-degree weapons offense into

defendant's murder conviction, and the court imposed a fifty-year year sentence

subject to the requirements of the NERA,  N.J.S.A. 2C:43-7.2.        The court

imposed a concurrent sentence on defendant's conviction for unlawful

possession of a weapon.     We affirmed defendant's murder conviction and

sentence on his direct appeal. 2 State v. McGraw, No. A-2250-04 (App. Div.

Nov. 8, 2006). The Supreme Court denied defendant's petition for certification.

State v. McGraw,  189 N.J. 427 (2007). Defendant later filed a post-conviction

relief petition that was denied. See State v. McGraw, No. A-5803-07 (App. Div.

Mar. 15, 2010).

      In 2019, defendant filed a motion to correct an illegal sentence. He

claimed his fifty-year sentence and forty-two-and-one-half period of parole

ineligibility under NERA were "grossly disproportionate" and constituted cruel

and unusual punishment under the Eighth Amendment to the United States




The statute was amended in 2007, L. 2007, c. 284, § 1, grading the offense a
second-degree crime.
2
  On his direct appeal, we reversed defendant's sentence on the third-degree
unlawful possession of a weapon charge and remanded for resentencing on that
charge. State v. McGraw, No. A-2250-04 (App. Div. Nov. 8, 2006) (slip op. at
23). On remand, the court imposed a four-year sentence on the charge.
Defendant's resentencing on the charge is not an issue on this appeal.

                                      4                                  A-2266-19
Constitution and Article I, Paragraph 12, of the New Jersey Constitution. He

also argued that because he was eighteen years old when he committed the

murder and thus will not be eligible for parole until he is sixty-one years old,

his sentence violates the principles established by the United States Supreme

Court in Miller v. Alabama,  567 U.S. 460 (2012), and our Supreme Court in

State v. Zuber,  227 N.J. 422 (2017).

      The court denied defendant's motion, finding the sentence was not grossly

disproportionate and did not constitute cruel and unusual punishment. The court

further determined the holdings in Miller and Zuber do not support a finding

defendant's sentence is illegal because the holdings are applicable to juveniles,

and defendant was an adult when he committed the murder for which he was

convicted. The court entered an order denying defendant's motion. This appeal

followed.

                                       II.

      Whether a sentence is illegal is an issue of law that we review de novo.

State v. Drake,  444 N.J. Super. 265, 271 (App. Div. 2016). See also State v.

Pomianek,  221 N.J. 66, 80 (2015) (explaining whether a sentence is

unconstitutional is an issue of law subject to de novo review). Under Rule 3:21-




                                       5                                   A-2266-19
10(b), "an order may be entered at any time . . . correcting a sentence not

authorized by law including the Code of Criminal Justice[.]"

      "There are two categories of illegal sentences: those that exceed the

penalties authorized for a particular offense, and those that are not authorized

by law." State v. Hyland,  238 N.J. 135, 145 (2019) (citation omitted). The two

categories "have been 'defined narrowly.'" Ibid. (quoting State v. Murray,  162 N.J. 240, 246 (2000)). "[E]ven sentences that disregard controlling case law or

rest on an abuse of discretion by the sentencing court are legal so long as they

impose penalties authorized by statute for a particular offense and include a

disposition that is authorized by law." Id. at 146. A sentence that is "imposed

without regard to some constitutional safeguard" is an illegal sentence that may

be challenged at any time under Rule 3:21-10(b)(5). Zuber,  227 N.J. at 437

(quoting State v. Tavares,  286 N.J. Super. 610, 618 (App. Div. 1996)).

      Defendant argues his sentence is illegal because it constitutes

unconstitutional cruel and unusual punishment "[u]nder a series of

decisions . . . that limit[] the severity of the sentence that may be imposed" on

what defendant characterizes as a "young offender."          More particularly,

defendant relies on the United States Supreme Court's holdings in Roper v.

Simmons, that a death penalty sentence for a juvenile offender constitutes cruel


                                       6                                   A-2266-19
and unusual punishment,  543 U.S. 551, 568 (2005); Graham v. Florida, that a

sentence of life without parole for a juvenile offender who does not commit a

homicide constitutes cruel and unusual punishment,  560 U.S. 48, 74 (2010); and

Miller, that a mandatory sentence of life of without parole for a juvenile

convicted of a homicide offense constitutes cruel and unusual punishment,  567 U.S.  at 479. Defendant also relies on Zuber, where our Supreme Court held a

sentence imposed on juvenile offender that is the functional equivalent of a life

sentence constitutes cruel and unusual punishment unless supported by findings

based on the five factors identified in Miller for imposition of a life sentence

without parole for a juvenile offender.  227 N.J. at 447-48; see also Miller,  567 U.S.  at 477-48 (explaining pertinent factors courts should consider in

determining whether to impose a sentence of life without parole for juveniles

convicted of homicide offenses). 3


3
   The Miller factors include: the defendant's "chronological age and its hallmark
features — among them, immaturity, impetuosity, failure to appreciate risks and
consequences"; "the family and home environment that surrounds [the defendant]—
from which he [or she] cannot usually extricate himself" or herself; "the
circumstances of the homicide offense, including the extent of [the defendant's]
participation in the conduct and the way familial and peer pressures may have
affected" the defendant; "that [the defendant] might have been charged and
convicted of a lesser offense if not for the incompetence[] associated with youth";
and that "mandatory punishment disregards the possibility of rehabilitation even
when the circumstances most suggest it."  567 U.S. at 477-78; see also Zuber,  227 N.J. at 453 (summarizing Miller factors).

                                        7                                    A-2266-19
      Defendant's reliance on the foregoing cases is misplaced. Each of the

cases addresses the constitutionality of punishments imposed on children under

the age of eighteen, and individuals eighteen and over who are adults under the

law. And the reasoning of each of case is founded on the notion that juveniles

under eighteen are different than adults. For example, in Miller, the Court

explained that sentences must "take into account how children are different, and

how those differences counsel against irrevocably sentencing them to a lifetime

in prison,"  567 U.S.  at 480. The Court also noted "Graham's (and also Roper's)

foundational principle; that imposition of a State's most severe penalties on

juvenile offenders cannot proceed as though they were not children." Id. at 474.

And, in Roper, the Court recognized that while "[t]he qualities that distinguish

juveniles from adults do not disappear when an individual turns [eighteen]," that

age is nevertheless "the point where society draws the line for many purposes

between childhood and adulthood" and categorical rules setting eighteen as a

dividing line for sentencing purposes are therefore appropriate.  543 U.S.  at 574.

      Defendant was not a juvenile when he committed the murder for which he

was convicted and sentenced. He is therefore not entitled to application of the

principles announced in Graham, Roper, Miller, and Zuber. For that reason




                                       8                                   A-2266-19
alone, we affirm the court's order denying his motion to correct what he alleges

is his illegal sentence.

      Defendant offers citations to numerous sources explaining what he

contends is developmental science and neuroscience supporting his contention

that eighteen-year-old individuals are "different" from adults in the same manner

as the "children" discussed in Graham, Roper, Miller, and Zuber. Defendant

contends the reasoning and principles in those cases therefore should apply

equally to him in determining whether his sentence constitutes an

unconstitutional cruel and unusual punishment. We reject the claim because we

cannot properly consider the purported scientific evidence referenced in

defendant's brief because it was not submitted to the motion court. See Friedman

v. Martinez,  242 N.J. 449, 475 (2020) (noting "parties are entitled to have their

case decided on the basis of the record before the trial court"); see also Scott v.

Salerno,  297 N.J. Super. 437, 447 (App. Div. 1997) (stating "appellate review is

confined to the record made in the trial court, and appellate courts will not

consider evidence submitted on appeal that was not in the record before the trial

court" (citation omitted)).

      Moreover, the Courts in Roper, Graham, Miller, and Zuber recognized the

developmental differences between child and adults — and indeed relied on the


                                        9                                    A-2266-19
differences in determining the constitutionality of certain punishments — and

imposed constitutional limitations on the imposition of sentences applicable

only to juveniles. See, e.g., Roper,  543 U.S.  at 569 (noting "differences between

juveniles under [eighteen] and adults" cited in psychological literature);

Graham,  560 U.S.  at 68 (noting "developments in psychology and brain science

continue to show fundamental differences between juvenile and adult minds");

Miller,  567 U.S.  at 471 (noting the Court's decisions concerning the differences

between juveniles and adults "rested not only on common sense . . . but on

science and social sciences as well"); Zuber,  227 N.J. at 440-46 (noting the

United States Supreme Court's reliance on social science developments showing

differences between juveniles and adults).

      In those cases, despite the respective Court's manifest awareness of the

type of social science and neuroscience evidence defendant attempts to offer for

the first time on appeal here, there is no suggestion their holdings extend beyond

individuals – juveniles – who commit offenses while under the age of eighteen.

Thus, we discern no basis to conclude the Supreme Court of the United States,

or the New Jersey Supreme Court in interpreting our State Constitution, intended

that the holdings in the cases relied on by defendant should be extended to

individuals who commit crimes as adults. We therefore decline defendant's


                                       10                                   A-2266-19
invitation to find that the constitutional principles applicable to juvenile

offenders render unconstitutional the sentence imposed for the murder he

committed as an adult.

      Any arguments made on behalf of defendant that we have not directly

addressed are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

      Affirmed.




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