                                NOT FOR PUBLICATION WITHOUT THE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-4429-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KONTAR ANTHONY a/k/a
DOUGH BOY and ANTHONY
KONTAR,

     Defendant-Appellant.
___________________________

                   Submitted March 30, 2020 – Decided June 10, 2020

                   Before Judges Fasciale and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 95-10-3301.

                   Kontar Anthony, appellant pro se.

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Kontar Anthony appeals from an order denying his motion to

correct an illegal sentence and related order denying his motion for

reconsideration, arguing:

              POINT I

              THE [MOTION JUDGE] ERRED IN FAILING TO
              GRANT [DEFENDANT'S] MOTION TO CORRECT
              AN ILLEGAL SENTENCE TO ENSURE A
              UNIFORM     APPLICATION    AND      FULL
              IMPLEMENTATION OF STATE V. ZUBER, 227 N.J.
              422 (2017).

              POINT II

              THE [MOTION JUDGE'S] RULING IS NOT
              SUPPORTED    BY   SUFFICIENT, CREDIBLE
              EVIDENCE IN THE RECORD.

After considering the record and the briefs, we conclude that defendant's Point

II arguments are "without sufficient merit to warrant discussion in a written

opinion." R. 2:11-3(e)(2). We are also unpersuaded by his remaining argument

and affirm.

      Defendant was sixteen years old when he committed the offenses of which

he was found guilty by jury:   second-degree conspiracy to commit robbery

and/or murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:11-3 (count

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

degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); first-degree

                                                                       A-4429-18T4
                                      2
robbery, N.J.S.A. 2C:15-1 (count four); third-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b) (count five); and second-degree possession of a

weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count six). 1 Defendant was

sentenced to a forty-year prison term with thirty years of parole ineligibility for

felony murder.2 We affirmed his convictions on direct appeal. State v. Anthony,

No. A-1741-96 (App. Div. May 13, 1998).             Our Supreme Court denied

defendant's petition for certification. State v. Anthony, 156 N.J. 408 (1998).

Defendant subsequently filed a motion to correct an illegal sentence.

      The motion judge rejected defendant's contention that the United States

Supreme Court's holding in Miller v. Alabama, 567 U.S. 460 (2012), required




1
   Defendant was also charged in a single count under Indictment No. 15-09-
2082 with third-degree aggravated assault – simple assault on a law enforcement
officer, N.J.S.A. 2C:12-1(b)(5)(a). Defendant does not appeal from the
eighteen-month prison term imposed, concurrent to the felony-murder sentence,
after that charge was downgraded to fourth-degree obstructing, N.J.S.A. 2C:29-
1(b).
2
   After merger of offenses, sentences on the remaining counts were run
concurrent to the felony-murder sentence. Defendant does not appeal the
sentences on the other counts.
                                                                           A-4429-18T4
                                        3
resentencing, and that the factors announced by the Court should be considered, 3

ruling defendant's "sentence is not the equivalent to '[l]ife without parole' and is


3
    The Miller Court set forth five factors a sentencing court must consider before

"irrevocably sentencing [a juvenile offender] to a lifetime in prison." Id. at 480.

Such a mandatory sentence, without possibility of parole,

              [1] precludes consideration of his 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.

              [Id. at 477-78 (citations omitted).]
                                                                            A-4429-18T4
                                          4
not in violation of the ruling within [Zuber]." The motion judge later rejected

defendant's reconsideration argument that he was "not seeking to have [Zuber]

apply to [his] case," and instead based his claim

            on the newly accepted scientific evidence accepted and
            credited by the United States Supreme Court in . . .
            Roper v. Simmons, 543 U.S. 551, 569 (2005)[;]
            Graham v. Florida, 560 U.S. 48, 68 (2010)[;] and Miller
            . . . and accepted by the New Jersey Supreme Court in
            Zuber, which extended even greater protections under
            the New Jersey Constitution than the [f]ederal
            counterpart.

The motion judge found "the 'newly accepted scientific evidence' defendant

refer[red] to does not render his sentence illegal."

      Whether a defendant's 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). "A

sentence is illegal if it 'exceeds the maximum penalty provided in the Code for

a particular offense,' is 'not imposed in accordance with law,' or fails to include

a mandatory sentencing requirement." State v. Locane, 454 N.J. Super. 98, 117

(App. Div. 2018) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)). In

addition, we review the denial of a motion for reconsideration for an abuse of

discretion, Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996), which

"arises when a decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis.'" Flagg

                                                                           A-4429-18T4
                                         5
v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez

v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

      The Eighth Amendment to the United States Constitution prohibits cruel

and unusual punishment and "guarantees individuals the right not to be subjected

to excessive sanctions." Roper, 543 U.S. at 560. The Eighth Amendment's

provisions are "applicable to the States through the Fourteenth Amendment."

Ibid. New Jersey's analog to the Eighth Amendment similarly declares that

"cruel and unusual punishments shall not be inflicted." N.J. Const. art. I, ¶ 12.

In Miller, the United States Supreme Court held that a mandatory life sentence

without the possibility of parole for juveniles under the age of eighteen at the

time of their offense violates the Eighth Amendment's prohibition on cruel and

unusual punishment. 567 U.S. at 479.

      We agree with the motion judge that defendant's reliance on Miller is

misplaced. Our Supreme Court recognized protections under the Federal and

State Constitutions apply to juveniles sentenced to "'life without parole' or

multiple term-of-years sentences that, in all likelihood, will keep [them] in jail

for the rest of [their lives]." Zuber, 227 N.J. at 446. The factors announced in

Miller, therefore, need be applied in cases where a juvenile's sentence "is the

practical equivalent of life without parole." Id. at 446-47. "Defendants who


                                                                          A-4429-18T4
                                        6
serve lengthy term-of-years sentences that amount to life without parole should

be no worse off than defendants whose sentences carry that formal designation."

Id. at 447.

      Defendant's sentence does not fall into the same category that requires

consideration of the Miller factors. In Zuber, the Court ruled the imposition of

minimum terms on the companion juvenile offenders—fifty-five years, in one

case, and more than sixty-eight years in the other, "trigger[ed] the protections

of Miller under the Federal and State Constitutions." Id. at 428, 448.

      Defendant, in contrast, was sentenced to the minimum period of parole

ineligibility allowed by law for felony murder, thirty years. N.J.S.A. 2C: 11-

3(b)(1). He will be first eligible for parole when he is forty-six years-old; at

maximum, he will be released when his is fifty-six if he serves a full forty-year

base term. The juvenile defendants in Zuber would not be first eligible for

parole until they were about seventy-two and eighty-five years-old, respectively.

Id. at 428. Unlike those defendants, defendant does not face "potential release

after five or six decades of incarceration, when [he] would be in [his] seventies

and eighties[.]" Id. at 448.

      The sentenced defendants in the cases cited in defendant's merits brief in

support of his argument faced similar lengthy parole ineligibility periods. See


                                                                         A-4429-18T4
                                       7
State v. Beltran, No. A-4721-13 (App. Div. Mar. 15, 2016) (finding defendant's

sentence to a sixty-year period of parole ineligibility legal), certif. granted in

part and summarily remanded for resentencing, 229 N.J. 151 (2017); State v.

Zarate, No. A-4090-13 (App. Div. Mar. 21, 2016) (remanding for resentencing

where defendant's period of parole ineligibility was 63.75 years), certif. granted

and summarily remanded for resentencing, 229 N.J. 140 (2017); State v. James,

No. A-5248-13 (App. Div. Dec. 13, 2016) (affirming defendant's sentence to a

267.75-year period of parole ineligibility), certif. granted and summarily

remanded for resentencing, 230 N.J. 349 (2017); and State v. Herd, No. A-4582-

13 (App. Div. Mar. 9, 2016) (affirming defendant's sentence to a sixty-year

period of parole ineligibility), certif. granted and summarily remanded for

resentencing, 229 N.J. 135 (2017).

      Inasmuch as defendant was sentenced to the minimum thirty-year period

of parole ineligibility provided by statute—not the equivalent to life without

parole, even considering the forty-year base term—the Miller factors need not

have been considered by the judge at his sentencing hearing. So too, the

scientific principles underlying the Miller decision, and the other cases cited by

defendant in support of his reconsideration motion, do not mandate application

of the Miller factors. As the Court noted in Zuber: "[T]he principles in Graham


                                                                          A-4429-18T4
                                        8
are at the heart of Roper, Miller, and Montgomery 4 as well. They teach us, in

essence, that youth matters under the Constitution.    We believe that youth

matters in each case that calls for a lengthy sentence that is the practical

equivalent of life without parole." 227 N.J. at 448. Defendant's is not such a

case; the sentence imposed here does not suggest a violation of constitutional

principles. As such, both defendant's motions were correctly denied.

       Affirmed.




4
    Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. 718 (2016).
                                                                       A-4429-18T4
                                       9
