STATE OF NEW JERSEY v. NICHOLAS WATSON

NOT FOR PUBLICATION WITHOUT THE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-4293-17

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

NICHOLAS WATSON,

     Defendant-Appellant.
_______________________

                   Argued January 25, 2021 – Decided February 12, 2021

                   Before Judges Sabatino and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 07-01-0069.

                   Douglas R. Helman, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Douglas R. Helman,
                   Assistant Deputy Public Defender, of counsel and on
                   the brief).

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

        This is another "Zuber issue"1 case involving a juvenile offender who was

waived to adult court, found guilty of serious crimes, and received a lengthy

prison sentence. The offender, defendant Nicholas Watson, contends his thirty-

nine-year custodial term violates the federal Eighth Amendment and the New

Jersey Constitution. He also presents non-constitutional arguments alleging his

sentence was imposed with a flawed analysis of the aggravating and mitigating

factors. The trial court denied relief to defendant, and we affirm its sound

decision.

        We incorporate by reference the facts and procedural history detailed in

our previous unpublished opinions in this case. Briefly, defendant was charged

with numerous offenses stemming from his role in a series of armed robberies

he and others committed one early morning in August 2006. A gas station

attendant was killed in the course of one of the robberies. Defendant, who was

age seventeen at the time of the offenses, was waived to the adult criminal court

and tried before a jury.

        Following the jury trial, defendant was convicted of four counts of first-

degree armed robbery, N.J.S.A. 2C:15–1, three counts of second-degree


1
    State v. Zuber,  227 N.J. 422 (2017).
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                                           2
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a), two

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

single count of third-degree aggravated assault, N.J.S.A. 2C:12–1(b)(7), and one

count of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5–2, 2C:15–

1. He was found not guilty of felony murder.

      In January 2009, defendant was sentenced on two of the robbery

convictions to consecutive seventeen-year terms, each with eighty-five percent

parole ineligibility periods mandated under the No Early Release Act ("NERA"),

N.J.S.A. 2C:43–7.2. In addition, the court imposed a consecutive five-year term

for one count of unlawful possession of a weapon. The remainder of the

convictions were either merged or sentenced concurrently.

      All in all, defendant's aggregate sentence was thirty-nine years. The

NERA parole disqualifier for the two robberies applied to the thirty-four years

of that sentence. Consequently, defendant is not eligible for parole until he has

served twenty-eight years and 329 days of the thirty-four years. By that point

he will be in his late forties.

      This court affirmed defendant's convictions and sentence in an

unpublished opinion on direct appeal. State v. Watson, No. A-3662-08 (App.




                                                                          A-4293-17
                                        3 Div. July 13, 2010). The Supreme Court denied certification. State v. Watson,

 205 N.J. 98 (2010).

      Defendant next filed a petition for postconviction relief ("PCR"), which

was rejected by the trial court without an evidentiary hearing. That denial of

PCR was affirmed by this court in an unpublished opinion. State v. Watson, No.

A-5646-11 (App. Div. Dec. 15, 2014). The Supreme Court once again denied

certification. State v. Watson,  221 N.J. 287 (2015).

      In April 2017, defendant filed a motion to correct what he characterized

as an illegal sentence under Rule 3:21-10(b)(5). On August 2, 2017, Judge

Marilyn C. Clark, P.J.Cr., denied his motion in a written opinion. Defendant

now appeals that decision.

      Defendant's primary contention is that his thirty-nine-year sentence,

imposed on him for offenses he committed as a juvenile, is unconstitutionally

excessive under principles enunciated by the United States Supreme Court in

Miller v. Alabama,  567 U.S. 460, 473 (2012) and its progeny, as applied in this

State under Zuber,  227 N.J. at 429. He further argues his sentence violates the

New Jersey Constitution. For the first time on appeal, he also challenges the

application of the statutory sentencing factors on the same constitutional

grounds and, independently, as excessive and based on factual errors.


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Specifically, defendant raises the following points in his brief:

      POINT I

      WATSON’S SENTENCE, 39 YEARS WITH A
      NEARLY 30 YEAR PAROLE DISQUALIFIER,
      IMPOSED FOR A CRIME COMMITTED WHEN HE
      WAS A JUVENILE, VIOLATED THE UNITED
      STATES AND NEW JERSEY CONSTITUTIONS
      BECAUSE IT WAS IMPOSED WITHOUT
      CONSIDERATION OF HIS AGE AT THE TIME OF
      THE CRIME. THIS ILLEGAL SENTENCE
      DEMANDS RESENTENCING UNDER STATE V.
      ZUBER.

      A. Miller and Zuber Require Consideration of a
      Juvenile’s Age And Attendant Circumstances Because
      Children Are Constitutionally Different From Adults
      For Purposes Of Sentencing, And These Requirements
      Are Not Limited To Life Sentences.

      B. The Motion Judge Erred In Denying Watson’s
      Motion To Correct An Illegal Sentence Because The
      Sentencing Judge Ignored The Procedure Now
      Mandated By Miller And Zuber.

      POINT II

      THE MOTION JUDGE MISSED THAT, AT
      SENTENCING,   THE   JUDGE IMPROPERLY
      APPLIED AGGRAVATING FACTOR THREE
      WHOLLY ON ACCOUNT OF WATSON’S
      JUVENILE HISTORY, RESULTING IN AN
      EXCESSIVE SENTENCE.

      A. The Judge Erred In Applying Aggravating Factor
      Three Based Only On Juvenile History, and Based On
      An Incorrect Factual Finding.

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                                  5
            B. The Constitutional Safeguards Identified In Miller
            And Zuber Demand A Different Application Of
            Aggravating Factor Three For Juveniles.

            i.     Juvenile Recidivism Is Different.

            ii.    The Concerns That Animate Miller Also Apply
                   To Juvenile Reoffending.

            iii.   Watson Does Not Pose A High Risk Of
                   Reoffense.

            POINT III

            THE MOTION JUDGE MISSED THAT THE
            APPLICATION OF AGGRAVATING FACTOR NINE
            TO JUVENILES WHO ARE UNLIKELY TO
            REOFFEND VIOLATES MILLER AND ZUBER.

            POINT IV

            THE MOTION JUDGE MISSED THAT THE
            SENTENCING JUDGE FAILED TO ACCOUNT FOR
            WATSON’S YOUTH AS A NONSTATUTORY
            MITIGATING FACTOR, RESULTING IN AN
            EXCESSIVE SENTENCE.

      Beyond these arguments, defense counsel has submitted an additional

citation letter to this court, contending that the New Jersey Legislature's recent

October 2020 amendment to the sentencing statutes applies here retroactively.

The referenced amendment, among other things, added as a mitigating factor in

 N.J.S.A. 2C:44-1(b)(14) the youth of an offender under the age of twenty-six.


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                                        6
      Having considered these arguments, we affirm defendant's sentence and

the denial of his motion for relief, substantially for the reasons detailed in Judge

Clark's opinion. We add a few comments by way of amplification.

      In Miller,  567 U.S.  at 479, the United States Supreme Court held that,

except in rare instances of incorrigibility, under the Eighth Amendment a

juvenile generally cannot be sentenced to life without the possibility of parole.

The Court identified five reasons why life without parole ("LWOP"), or its

functional equivalent, unconstitutionally failed to differentiate between adults

and juveniles, factors subsequently described as "the Miller factors." Zuber,  227 N.J. at 445.2 Several years later, the Court held Miller was entitled to retroactive

effect. Montgomery v. Alabama,  136 S. Ct. 718, 732-36 (2016).

      Our State Supreme Court addressed these youth offender sentencing

concerns in Zuber,  227 N.J. 422.        It held that "Miller's command that a

sentencing judge 'take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison'

[ ] applies with equal strength to a sentence that is the practical equivalent of


2
    As described in Zuber, those factors are a "defendant’s 'immaturity,
impetuosity, and failure to appreciate risks and consequences'; 'family and home
environment'; family and peer pressures; 'inability to deal with police officers
or prosecutors' or his own attorney; and 'the possibility of rehabilitation.'" Id.
at 453 (quoting Miller,  567 U.S. at 477-78).
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                                         7
[LWOP]." Id. at 446-47 (quoting Miller,  567 U.S. at 480) (internal citations

omitted). The Court explained that the "proper focus" under the Eighth

Amendment is "the amount of real time a juvenile will spend in jail and not the

formal label attached to his sentence." Id. at 429.

      In a consolidated opinion, the Court in Zuber reviewed the sentences of

two offenders who were juveniles when they committed their crimes: Zuber,

who was convicted of two sexual assaults and sentenced to an aggregate of 110

years with fifty-five years of parole ineligibility, and Comer, who was convicted

of four armed robberies and sentenced to an aggregate of seventy-five years with

just over sixty-eight years of parole ineligibility.  227 N.J. at 430-33. The Court

deemed these sentences to be the functional equivalent of LWOP. Id. at 448. It

declared that when a sentencing court imposes "a lengthy, aggregate sentence

that amounts to life without parole" it must consider the factors set forth in

Miller. Id. at 450.

      The Zuber Court further instructed that a judge must consider the Miller

factors, along with the state-law sentencing principles set forth in State v.

Yarbough,  100 N.J. 627, 643-44 (1985), when imposing consecutive sentences

upon juvenile offenders. Zuber,  227 N.J. at 449-50.           Sentencing judges

considering the imposition of substantial consecutive sentences are now obliged


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                                        8
to "exercise a heightened level of care before they impose multiple consecutive

sentences on juveniles which would result in lengthy jail terms." Id. at 429–30.

      In the present case, Judge Clark concluded that defendant's sentence is not

the functional equivalent of LWOP because he will be eligible for parole in his

late forties and will "almost certainly be released" by the time he is forty-nine.

Therefore, the heightened constitutional protections expressed in Miller and

Zuber do not apply. We agree.

      Defendant advocates an expansion of the Court's holding in Zuber,

arguing "for all juveniles, a legal sentence is reached only when" the sentencing

court considered the Miller factors in imposing that sentence.         (Emphasis

added). This broad argument is contrary to Zuber, which requires a heightened

analysis only where a juvenile received "a lengthy, aggregate sentence that

amounts to life without parole." Zuber,  227 N.J. at 450.

      In State v. Bass,  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 was not a functional LWOP, and therefore did not require heightened

scrutiny under Zuber and Miller. Id. at 14 ("Despite the lengthy sentence

defendant has served, there are no similarities between his sentence and the

sentences reviewed in Zuber.").


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                                        9
      More recently, in our January 13, 2021 published opinion in State v.

Tormasi, __ N.J. Super. __ (App. Div. Jan. 13, 2021), we likewise held that a

life sentence with a thirty-year parole bar imposed upon a juvenile offender was

not an LWOP-equivalent sentence. Defendant's parole ineligibility period of

under thirty years should be similarly classified. The Miller youth factors

simply do not apply here under either the federal or state constitution.

      We are unpersuaded that the measure of an LWOP depends, as defendant

argues, on whether the custodial term was imposed for a non-homicide offense

or a homicide offense. In its consolidated opinion in Zuber, for example, the

Court applied the LWOP analysis equally to a juvenile offender found guilty of

felony murder, James Comer, and to a non-homicide offender, Ricky Zuber.

Zuber,  227 N.J. at 449-50. Both Zuber and Comer received sentences with

parole disqualifiers far longer than the under-thirty-year period that this

defendant was ordered to serve.

      Defendant argues that at the time of sentencing his case was analogous to

Comer's, whose sentence was overturned in the Zuber decision, because they

both faced multiple counts for armed robbery, and therefore "[t]here is no reason

to treat these cases differently." This ignores that Comer was actually sentenced

to seventy-five years with over sixty-eight years of parole ineligibility. Zuber,


                                                                           A-4293-17
                                       10
 227 N.J. at 449. Zuber's holding applies to "the real-time consequences of the

aggregate sentence," not to prospective penalties. Id. at 447.

      We appreciate the scientific literature cited by defendant concerning

human behavioral development and his related policy arguments. Those policy

arguments, to some extent, have now been addressed prospectively by the

Legislature in the October 2020 amendments to the sentencing code. Moreover,

it is not our function as an intermediate appellate court to alter or expand the

Supreme Court's holding in Zuber on policy grounds. State v. Carrero,  428 N.J.

Super. 495, 511 (App. Div. 2012); State v. Hill,  139 N.J. Super. 548, 551 (App.

Div. 1976).

      Aside from his constitutional assertions, defendant further argues that the

combined effect of his thirty-four-year consecutive sentences is excessive and

should be reconsidered. This court has already considered on direct appeal

whether his consecutive sentences were excessive under the Yarbough standards

for consecutive terms and determined they were "entirely proper." State v.

Watson, No. A-3662-08 (App. Div. July 13, 2010) (slip op. at 12). We discern

no reason to disavow that conclusion here.

      Defendant additionally contends his sentence is illegal because the

sentencing court improperly considered his juvenile history and made a factual


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                                      11
error in finding that he was on juvenile supervision at the time he committed the

relevant crimes.    The State argues the sentencing court properly applied

aggravating factor three,  N.J.S.A 2C:44-1(a)(3), the risk of re-offense, by

considering defendant's history of frequent juvenile arrests, his role in the

underlying offenses, and other relevant factors.

      We decline to alter defendant's sentence on this basis. First, defendant's

arguments are procedurally improper because he already challenged the

excessiveness of his sentence on direct appeal, and this court found no error in

the sentencing court's decision.

      We are mindful that through the vehicle of Rule 3:21-10(b)(5), a

defendant may challenge an "illegal" sentence at any time.         Even so, the

Supreme Court has held that an "excessive" sentence, or a challenge to the

proper weighing of aggravating and mitigating factors, is distinct from an

"illegal" sentence and not cognizable outside of a direct appeal.       State v.

Acevedo,  205 N.J. 40, 47 (2011); State v. Flores,  228 N.J. Super. 586, 592 (App.

Div. 1988) (quoting State v. Clark,  65 N.J. 426, 437 (1974)) ("[M]ere

excessiveness of sentence otherwise within authorized limits, as distinct from

illegality by reason of being beyond or not in accordance with legal

authorization, is not an appropriate ground for post-conviction relief and can


                                                                          A-4293-17
                                      12
only be raised on direct appeal from the conviction."); see also Tormasi, __ N.J.

Super. at ___ (slip op. at 7). Hence, insofar as defendant challenges the original

sentencing court's findings because they improperly accounted for certain

erroneous facts, or improperly weighed the aggravating and mitigating factors,

these claims are not appropriately before us at this time.

      Second, even if we accepted as true defendant's factual contention that he

was not actually on juvenile supervision for any matters at the time of the instant

offenses—a contention that is suggested but not conclusively proven by the

March 31, 2015 letter from a probation officer concerning one of his prior

juvenile dockets—we remain unpersuaded that his sentence must be altered.

      The sentencing judge did not solely rely on juvenile supervision in

applying aggravating factor three.          The judge appropriately considered

defendant's juvenile record and the rapidity and escalating gravity of his

conduct. See State v. Torres,  313 N.J. Super. 129, 162 (App. Div. 1998) (noting

the propriety of using a defendant's prior juvenile record as a sentencing

consideration). 3


3
   We acknowledge defendant's argument that, by analogy, the Supreme Court's
language in State v. K.S.,  220 N.J. 190, 202 (2015), disapproving reliance on
prior unadjudicated arrests as a factor in denying pretrial intervention ("PTI")
might call into question the consideration of unadjudicated juvenile arrests in


                                                                            A-4293-17
                                       13
      In the year leading up to the present robbery offenses, defendant had been

arrested three times for theft and aggravated assault. He brought illegally owned

guns to the crime scene, and he encouraged his co-perpetrators to commit violent

acts. As the judge found, defendant was not under the influence of an older co -

perpetrator, but instead essentially acted as the main instigator.

      We discern no abuse of discretion in the sentence that was imposed, even

if the judge's oral comment about defendant being on juvenile supervision was

mistaken. State v. Bieniek,  200 N.J. 601, 607-08 (2010) (noting the high

deference on appeal that is accorded to sentencing judges, and disfavoring

appellate "second-guessing" of their weighing of the pertinent factors).

      Lastly, we are unpersuaded that the 2020 change in the sentencing laws to

add youth as a mitigating factor applies retroactively to this sentencing that

occurred more than a decade ago and was upheld on direct appeal. Tormasi, __

N.J. Super. at __ (slip op. at 7).




sentencing outside the PTI context. On the other hand, there may be sound
reasons to treat juvenile arrests differently as relevant background, since
juvenile cases often do not result in a final adjudication of delinquency. We are
not required to resolve that issue here, and simply note that Torres (a case which
defendant cites and relies upon in his brief for another point) has not been
repudiated.
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                                       14
      All other points raised on appeal lack sufficient merit to warrant

discussion. R. 2:11-3(e)(2).4

      Affirmed.




4
   As an administrative item, we direct the trial court to correct the judgment of
conviction to remove the check mark in the box erroneously noting that
defendant committed a sexual offense requiring parole supervision for life.
Judge Clark's opinion directed such a correction, but defense counsel advises
that has not yet been accomplished.
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                                       15