                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4169-11T2

STATE OF NEW JERSEY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                         October 30, 2015
v.
                                        APPELLATE DIVISION

RICKY ZUBER,

     Defendant-Appellant.
___________________________________

          Argued December 1, 2014 – Decided October 30, 2015

          Before Judges Sabatino, Guadagno and Leone.

          On appeal from the Superior Court of New
          Jersey,   Law    Division,   Essex    County,
          Indictment Nos. 81-00-03729 and 81-00-03730.1

          Mark P. Stalford, Designated Counsel, argued
          the cause for appellant (Joseph E. Krakora,
          Public Defender, attorney; Mr. Stalford, on
          the brief).

          Andrew R. Burroughs, Special Deputy Attorney
          General/Acting Assistant Prosecutor, argued
          the cause for respondent (Carolyn A. Murray,
          Acting Essex County Prosecutor, attorney;
          Mr. Burroughs, on the brief).

          Appellant filed a pro se supplemental brief.




1
  Indictment No. 81-00-03730 was consolidated with Indictment No.
81-00-02663, which is not at issue in this appeal.
      The opinion of the court was delivered by

LEONE, J.A.D.

      Defendant        Ricky     Zuber     was       born   on     April    14,    1964.      He

committed two separate gang rapes in November and December of

1981, when he was nearly eighteen years old.                               He is currently

serving consecutive sentences for numerous offenses arising out

of these two criminal episodes.                      Those sentences total 110 years

in prison with fifty-five years of parole ineligibility.

      Defendant now claims that his sentences are illegal under

the recent United States Supreme Court decision in Graham v.

Florida, 560 U.S. 48, 74, 130 S. Ct. 2011, 2030, 176 L. Ed. 2d

825, 845 (2010), which held that "for a juvenile offender who

did     not     commit    homicide         the       Eighth      Amendment    forbids       the

sentence of life without parole."

      We      hold    that    Graham       applies      retroactively         to    sentences

previously imposed.              To apply Graham to defendant's sentences,

Graham        would    have     to    be    extended          to    cover     terms-of-year

sentences, aggregated from consecutive sentences for different

crimes, from different criminal episodes, imposed in different

sentencing proceedings.              Even making the assumptions that Graham

could      be     thus        extended,       we       reject       defendant's         claim.

Defendant's           sentence       of     fifty-five           years      before     parole

eligibility is not the functional equivalent of life without




                                                 2                                    A-4169-11T2
parole,    because      it   gives    him       a   meaningful     and    realistic

opportunity for parole well within the predicted lifespan for a

person of defendant's age.

                                          I.

       The sentencing judge related the following facts.                       From

late 1979 to 1981, defendant accumulated thirty-eight juvenile

delinquency complaints, and six adjudications for robbery and

other offenses.      He was an escapee from a state institution, and

was seventeen years and seven months old, when he committed the

crimes at issue here.

       On November 23, 1981, defendant led a vicious gang rape of

a woman whose car broke down.             He was charged in Indictment No.

81-00-03730 and was referred for trial as an adult.                      In 1983, a

jury convicted him of four offenses, for which he is currently

serving the following sentences: (1) twenty years in prison with

ten years of parole ineligibility for first-degree kidnapping,

N.J.S.A. 2C:13-1(b)(1); (2) a consecutive ten years in prison

with    five   years    of   parole       ineligibility      for    second-degree

robbery, N.J.S.A. 2C:15-1; (3) a consecutive twenty years in

prison with ten years of parole ineligibility for first-degree

aggravated     sexual    assault     by        vaginal   penetration,      N.J.S.A.

2C:14-2; and (4) a concurrent twenty years in prison with ten

years of parole ineligibility for first-degree aggravated sexual




                                          3                                A-4169-11T2
assault     by    anal       penetration,         N.J.S.A.       2C:14-2.         Defendant's

total sentence under Indictment No. 81-00-03730 is fifty years

in prison with twenty-five years of parole ineligibility.

      On    December         9,   1981,      while       still    at     large,    defendant

instigated and participated in the gang rape of a sixteen-year-

old girl who was on her way to school.                                 He was charged in

Indictment No. 81-00-03729 and referred for trial as an adult.

In a separate trial held in 1983, a jury convicted him of six

offenses,        for   which      he    is       currently       serving    the    following

sentences: (1) twenty years in prison with ten years of parole

ineligibility          for     first-degree            kidnapping,       N.J.S.A.         2C:13-

1(b)(1); (2) a consecutive twenty years in prison with ten years

of    parole      ineligibility          for      first-degree          robbery,     N.J.S.A.

2C:15-1; (3) a consecutive twenty years in prison with ten years

of    parole      ineligibility          for      first-degree          aggravated       sexual

assault     by     vaginal        penetration,            N.J.S.A.       2C:14-2;        (4)     a

concurrent       twenty       years     in   prison       with    ten    years     of    parole

ineligibility for first-degree aggravated sexual assault by anal

penetration, N.J.S.A. 2C:14-2; (5) a concurrent twenty years in

prison with ten years of parole ineligibility for first-degree

aggravated sexual assault by oral penetration, N.J.S.A. 2C:14-2;

and   (6)   a     concurrent       five      years       in    prison    for   third-degree

unlawful         possession        of        a        knife,     N.J.S.A.        2C:39-4(d).




                                                  4                                     A-4169-11T2
Defendant's total sentence under Indictment No. 81-00-03729 is

sixty years in prison with thirty years of parole ineligibility.

    The     sentencing      judge     made    all    of    the   sentences    under

Indictment No. 81-00-03729 consecutive to the sentences under

Indictment No. 81-00-03730.           As a result, defendant is currently

serving an aggregate sentence on both indictments of 110 years

with fifty-five years of parole ineligibility.

    Originally,       in   1983     and   1984,     the    sentencing   judge    had

imposed an aggregate sentence on the two indictments of 150

years in prison with seventy-five years of parole ineligibility.

We affirmed in separate orders, State v. Zuber, No. A-5323-85

(App. Div. Feb. 5, 1985); State v. Zuber, No. A-5330-84 (App.

Div. Feb. 5, 1985).        The Supreme Court summarily remanded to the

trial court for reconsideration of defendant's sentences under

State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S.

1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).                  State v. Zuber,

111 N.J. 643 (1988); State v. Zuber, 111 N.J. 650 (1988).                         On

October    28,    1988,    the   sentencing       judge    imposed   the   revised

sentences    detailed        above,       changing        from   consecutive      to

concurrent the sentence on the count in each indictment charging

aggravated sexual assault by anal penetration.                   In an order, we

affirmed    the   revised    sentences,       rejecting      defendant's     claims




                                          5                                A-4169-11T2
that the sentences were excessive.                State v. Zuber, No. A-1768-

88 (App. Div. Aug. 15, 1989).

      Defendant filed a petition for post-conviction relief (PCR)

that was denied in 2003.            We affirmed.         State v. Zuber, No. A-

3284-03 (App. Div. Feb. 17, 2005).                  The Supreme Court denied

certification.     State v. Zuber, 184 N.J. 212 (2005).                      There is

no indication that defendant claimed, in his PCR appeal or his

prior appeals, that his sentence violated the Cruel and Unusual

Punishment    Clause    of     the      United          States    or   New     Jersey

Constitutions.

      In 2010, defendant filed a motion to correct his sentence

as unconstitutional under Graham.               After hearing argument, Judge

Michael A. Petrolle denied the motion on July 26, 2012, ruling

defendant's revised sentence did not violate Graham.                     The judge

found: "defendant does not have a sentence without parole.                          He

has a sentence that carries a stipulated date that he could at

the   time   be   released    if     the       parole    board    thought     it   was

appropriate."     The judge concluded: "There is parole opportunity

here, it's just not as soon as he wants it."

      Defendant's appeal was originally heard before an Excessive

Sentencing Oral Argument panel, and then was transferred to the

plenary   calendar   for     full    briefing      and     oral   argument,     after

which we received supplemental briefing.




                                           6                                 A-4169-11T2
                                      II.

      In his brief, defendant raises the following arguments:

             POINT I - DEFENDANT'S SENTENCE OF 110 YEARS,
             55 YEARS TO BE SERVED WITHOUT ELIGIBILITY
             FOR PAROLE IMPOSED FOR OFFENSES COMMITTED
             WHEN HE WAS A JUVENILE CONSTITUTES CRUEL AND
             UNUSUAL PUNISHMENT AS PROHIBITED BY U.S.
             CONST. AMEND VIII; AND N.J. CONST. ART. I, ¶
             12.

             POINT II - DEFENDANT'S AGGREGATE SENTENCE AS
             IMPOSED CONSTITUTES AN ILLEGAL SENTENCE
             WHICH MAY BE CORRECTED AT ANY TIME.

      "[A]    truly   'illegal'   sentence    can    be    corrected   'at   any

time.'"      State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting

R. 3:21-10(b)(5)).       "[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.'"

Id. at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000)

(noting that "not imposed in accordance with law" includes "a

disposition [not] authorized by the Code")).                 Defendant argues

he can raise his claim now because a sentence is illegal if it

constitutes cruel and unusual punishment.

      We need not reach this argument for two reasons.                   First,

the State does not dispute the timeliness of defendant's claim.

Second, defendant filed his motion within one year of the Graham

decision.      It is not contested that "the constitutional right

asserted [by defendant] was initially recognized by the United




                                       7                               A-4169-11T2
States Supreme Court" in Graham.               R. 3:22-12(a)(2)(A).           Further,

we find that right was "made retroactive" by that Court.                         Thus,

we   can   and    do   consider    defendant's        motion    as    a   second     PCR

petition.    Ibid.; see R. 3:22-4(b)(2)(A).

      Whether     defendant's      sentence      is    unconstitutional         is    an

issue of law subject to de novo review.                 State v. Pomianek, 221

N.J. 66, 80 (2015).          We must hew to that standard of review.

                                        III.

      We begin by addressing the constitutional decisions invoked

by   defendant.        The    Eighth    Amendment      of   the      United    States

Constitution bars "cruel and unusual punishments."                        U.S. Const.

amend. VIII.       The Eighth Amendment is "made applicable to the

States by the Due Process Clause of the Fourteenth Amendment."

Graham, supra, 560 U.S. at 53, 130 S. Ct. at 2018, 176 L. Ed. 2d

at 832; accord State v. Ramseur, 106 N.J. 123, 169 (1987).

      In    Graham,     the    United    States       Supreme     Court     addressed

whether the Eighth Amendment prohibited a State from imposing a

sentence     of   "life       imprisonment     without      the      possibility      of

parole" on a juvenile for a nonhomicide offense.                      Graham, supra,

560 U.S. at 53-54, 130 S. Ct. at 2018, 176 L. Ed. 2d at 832.

The Court adopted "a categorical approach," analogizing to its

"categorical rule[] prohibiting the death penalty for defendants

who committed their crimes before the age of 18 [in] Roper v.




                                          8                                   A-4169-11T2
Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)."

Id. at 61, 130 S. Ct. at 2022, 176 L. Ed. 2d at 837.                        The Court

announced   a      "categorical    rule[]"     that    "those    who    were     below

th[e] age [of 18] when the offense was committed may not be

sentenced to life without parole for a nonhomicide crime."                           Id.

at 74-75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845.

      The Graham Court offered several rationales to support its

categorical rule.         First, the Court found that, though the laws

of   thirty-seven        states   and   the   federal      government       permitted

juveniles     to    be    sentenced     to    life     without     parole      for     a

nonhomicide offense, the actual imposition of such sentences "is

exceedingly     rare.       And   'it   is    fair    to   say   that   a    national

consensus has developed against it.'"                 Id. at 62-67, 130 S. Ct.

at 2023-26, 176 L. Ed. 2d at 837-41 (citation omitted).2

      Second, the Graham Court considered "the culpability of the

offenders at issue in light of their crimes and characteristics,

along with the severity of the punishment in question."                        Id. at

67, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841.                               The Court

reaffirmed that "juveniles have lessened culpability" because,

"[a]s compared to adults, juveniles have a '"lack of maturity


2
  The Court also noted that "the United States is the only Nation
that   imposes  life   without  parole   sentences   on  juvenile
nonhomicide offenders." Id. at 81, 130 S. Ct. at 2034, 176 L.
Ed. 2d at 849.



                                         9                                    A-4169-11T2
and an underdeveloped sense of responsibility"'; they 'are more

vulnerable        or   susceptible        to    negative       influences       and    outside

pressures, including peer pressure'; and their characters are

'not as well formed.'"               Id. at 68, 130 S. Ct. at 2026, 176 L.

Ed. 2d at 841 (quoting Roper, supra, 543 U.S. at 569-70, 125 S.

Ct. 1195, 161 L. Ed. 2d at 21-22).                          The Court also reiterated

that "[j]uveniles are more capable of change than are adults,

and    their       actions        are     less        likely    to       be     evidence      of

'irretrievably           depraved       character'       than      are    the    actions       of

adults."      Ibid. (quoting Roper, supra, 543 U.S. at 570, 125 S.

Ct. at 1195, 161 L. Ed. 2d at 22).

       The Graham Court stressed that "life without parole is 'the

second most severe penalty permitted by law.'"                                Id. at 69, 130

S.    Ct.   at    2027,     176     L.   Ed.     2d    at    842    (citation       omitted).

"[L]ife without parole sentences share some characteristics with

death sentences that are shared by no other sentences."                                   Ibid.

"[T]he sentence alters the offender's life by a forfeiture that

is    irrevocable."          Ibid.        The    Court      added    that       life   without

parole      was    "an    especially       harsh       punishment        for    a   juvenile"

because of the increased years and percentage of his life he

would serve.           Id. at 70, 130 S. Ct. at 2028, 176 L. Ed. 2d at

843.




                                                10                                     A-4169-11T2
       Third, the Graham Court examined "whether the challenged

sentencing practice serves legitimate penological goals."                              Id.

at 67, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841.                               The Court

found that: "retribution does not justify imposing the second

most severe penalty on the less culpable juvenile nonhomicide

offender";     "[d]eterrence          does        not    suffice     to    justify     the

sentence,"        because        juveniles        are     "'less      susceptible       to

deterrence'"        and        have   "diminished          moral     responsibility";

incapacitation       "is        inadequate        to    justify     that    punishment"

because      it      is        "questionable"            whether      juveniles        are

"incorrigible";          and     rehabilitation          cannot      justify    such     a

sentence because it "den[ies] the defendant the right to reenter

the community," which is inappropriate "in light of a juvenile

nonhomicide       offender's      capacity        for   change     and    limited    moral

culpability."       Id. at 71-74, 130 S. Ct. at 2028-30, 176 L. Ed.

2d at 844-45 (citations omitted).

       The Graham Court found that the inadequacy of penological

theory "to justify life without parole for juvenile nonhomicide

offenders";       "the    limited     culpability         of   juvenile     nonhomicide

offenders; and the severity of life without parole sentences all

lead   to   the     conclusion        that    the       sentencing       practice    under

consideration is cruel and unusual."                     Id. at 74, 130 S. Ct. at

2030, 176 L. Ed. 2d at 845.                  The Court concluded that "[t]he




                                             11                                 A-4169-11T2
Constitution prohibits the imposition of a life without parole

sentence on a juvenile offender who did not commit homicide."

Id. at 82, 130 S. Ct. at 2034, 176 L. Ed. 2d at 850.

    The Court struck down Graham's sentence of life without

parole for a nonhomicide offense even though there was judicial

discretion to choose a lesser sentence.                   Id. at 77, 130 S. Ct.

at 2031, 176 L. Ed. 2d at 847.                  Graham's conviction for armed

burglary        with   assault        or   battery       carried        "the    minimum

nondeparture       sentence"     of    five     years,    and     the    trial    court

exercised its judgment to sentence the juvenile to life without

parole.    Id. at 55-57, 130 S. Ct. at 2019-20, 176 L. Ed. 2d at

832-34.     However, the Court ruled it "is inconsistent with the

Eighth Amendment" to "sentenc[e] a juvenile nonhomicide offender

to life without parole based on a subjective judgment that the

defendant's       crimes      demonstrate       an   'irretrievably            depraved

character.'"       Id. at 76, 130 S. Ct. at 2031, 176 L. Ed. 2d at

846 (citation omitted).

    The     Court      also   rejected     a    "case-by-case       approach"      that

"would allow courts to account for factual differences between

cases     and     to   impose     life     without       parole     sentences        for

particularly heinous crimes."              Id. at 77, 130 S. Ct. at 2031,

176 L. Ed. 2d at 847.            The Graham Court found that nonhomicide

offenders were "categorically less deserving of the most serious




                                           12                                  A-4169-11T2
forms of punishment than are murderers."                    Id. at 69, 130 S. Ct.

at 2027, 176 L. Ed. 2d at 842.                        "Although an offense like

robbery    or     rape   'is       a     serious      crime    deserving    serious

punishment,' those crimes differ from homicide crimes in a moral

sense."    Ibid. (citation omitted).

    Two years after Graham, the United States Supreme Court

held that for convictions of murder, "mandatory life without

parole for those under the age of 18 at the time of their crimes

violates    the    Eighth     Amendment's           prohibition   on   'cruel     and

unusual punishments.'"          Miller v. Alabama, __ U.S. __, __, 132

S. Ct. 2455, 2460, 183 L. Ed. 2d 407, 414-15 (2012) (emphasis

added).    The Miller Court noted that its decision retained a

distinction between homicide and nonhomicide offenses: "Graham

established     one   rule    (a       flat    ban)   for   nonhomicide    offenses,

while we set out a different one (individualized sentencing) for

homicide offenses."          Id. at __, 132 S. Ct. at 2466 n.6, 183 L.

Ed. 2d at 420 n.6.

                                          IV.

    Defendant's claim under Graham poses numerous issues not

resolved in Graham or Miller.                      Moreover, neither Graham nor

Miller have been applied in a published opinion in New Jersey.

See In re State ex rel. A.D., 212 N.J. 200, 215 n.6 (2012)




                                              13                            A-4169-11T2
(noting Graham's ruling barring "the imposition of life without

parole" on juveniles "is not an issue in this case").

                                          A.

      The first issue is whether Graham applies retroactively to

sentences imposed prior to that decision.                   The parties agree it

applies retroactively.           We concur.

      "Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed.

2d 334 (1989), governs retroactivity under federal law."                      State

v. Gaitan, 209 N.J. 339, 364 (2012).              "A new rule generally does

not apply retroactively to a case where direct appeal is over

and the case is only being reviewed on a collateral basis."

Ibid. (citing Teague, supra, 489 U.S. at 310, 109 S. Ct. at

1075,     103    L.   Ed.   2d   at    356).     "A   new    rule   only   applies

retroactively on collateral review if it fits into one of two

exceptions: either it render[s] types of primary conduct beyond

the power of the criminal law-making authority to proscribe, or

it   is   a     watershed   rule[]      that   implicate[s]     the   fundamental

fairness of the trial."               Id. at 365 (internal quotation marks

omitted).       We need address only the first exception here.

      "The first, limited exception is for new rules 'forbidding

criminal punishment of certain primary conduct [including] rules

prohibiting a certain category of punishment for a class of

defendants because of their status or offense.'"                       O'Dell v.




                                          14                               A-4169-11T2
Netherland, 521 U.S. 151, 157, 117 S. Ct. 1969, 1973, 138 L. Ed.

2d 351, 358 (1997) (quoting Penry v. Lynaugh, 492 U.S. 302, 330,

109 S. Ct. 2934, 2953, 106 L. Ed. 2d 256, 285 (1989)).                   Thus, in

Penry, the United State Supreme Court ruled that if "the Eighth

Amendment prohibits the execution of mentally retarded persons

such as Penry regardless of the procedures followed, such a rule

would fall under the first exception to the general rule of

nonretroactivity     and    would     be    applicable    to   defendants       on

collateral review."        Penry, supra, 492 U.S. at 330, 109 S. Ct.

at 2953, 106 L. Ed. 2d at 285-86.

      In   Graham,   the   Court    expressly   prohibited     "a   particular

type of sentence as it applies to an entire class of offenders."

Graham, supra, 560 U.S. at 61, 130 S. Ct. at 2022-23, 176 L. Ed.

2d at 837.      Because Graham "bars the imposition of a sentence of

life imprisonment without parole on a juvenile offender," it

falls within the first Teague exception as explained by Penry,

and thus "was therefore made retroactive on collateral review by

the   [United    States]    Supreme    Court    as   a   matter     of    logical

necessity[.]"      In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011)

(citing Tyler v. Cain, 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed.

2d 632 (2001)).

      The federal and state courts that have decided the issue

have unanimously found Graham retroactive.               See, e.g., Moore v.




                                       15                                A-4169-11T2
Biter, 725 F.3d 1184, 1190-91 (9th Cir. 2013), reh'g denied, 742

F.3d 917 (9th Cir. 2014); In re Moss, 703 F.3d 1301, 1303 (11th

Cir. 2013); St. Val v. State, 107 So. 3d 553, 554 (Fla. Dist.

Ct. App. 2013); Bonilla v. State, 791 N.W.2d 697, 700-01 (Iowa

2010); Beach v. State, 348 P.3d 629, 641 (Mont. 2015); see In re

Williams, 759 F.3d 66, 70 (D.C. Cir. 2014) (federal prosecutors

agree "Graham is retroactive to cases on collateral review").3

We agree with those decisions, and hold that            Graham applies

retroactively to defendant's case under Teague.4

                                 B.

     Second,   defendant's   appeal   raises   the   issue   of   whether

Graham's holding is restricted to a sentence of "life without


3
  By contrast, courts have differed on the retroactivity of
Miller, which does not categorically ban life without parole
sentences for juveniles convicted of homicide.     Beach, supra,
248 P.3d at 639; Davis v. McCollum, 798 F.3d 1317, __ (10th Cir.
2015); State v. Lyle, 854 N.W.2d 378, 389 n.5 (Iowa 2014). The
United States Supreme Court has granted certiorari in cases
considering Miller's retroactivity. Montgomery v. Louisiana, __
U.S. __, 135 S. Ct. 1546, 191 L. Ed. 2d 635 (2015); see Toca v.
Louisiana, __ U.S. __, 135 S. Ct. 781, 190 L. Ed. 2d 649 (2014),
cert. dismissed, __ U.S. __, 135 S. Ct. 1197, 191 L. Ed. 2d 149
(2015).
4
  Because Graham's new rule is retroactive under the first Teague
exception, "'United States Supreme Court precedents control the
scope of retroactivity.'"    State v. Purnell, 161 N.J. 44, 53
(1999) (quoting State v. Lark, 117 N.J. 331, 335 (1989)); see
Danforth v. Minnesota, 552 U.S. 264, 266, 128 S. Ct. 1029, 1032,
169 L. Ed. 2d 859, 862 (2008).      Thus, we need not determine
whether we would "reach the same conclusion using a state
retroactivity analysis." Gaitan, supra, 209 N.J. at 373.



                                 16                               A-4169-11T2
parole," or can be extended to cover a sentence expressed in a

term of years.               "The Supreme Court has not yet decided the

question          whether        a    lengthy       term-of-years           sentence        is,    for

constitutional            purposes,           the      same     as    a     sentence        of    life

imprisonment without the possibility of parole."                                    United States

v. Cobler, 748 F.3d 570, 580 n.4 (4th Cir.), cert. denied, ___

U.S. ___, 135 S. Ct. 229, 190 L. Ed. 2d 173 (2014).                                     We assume,

without deciding, that Graham could be extended to apply to a

sentence for a single offense expressed, not as "life without

parole,"      but       as   a       term    of   years       without      parole      equaling        or

exceeding the life expectancy of a person of defendant's age.

See id. at 580 ("assuming, without deciding, that Cobler's 120-

year       term    of    imprisonment             is     functionally           equivalent        to    a

sentence          of    life         imprisonment         without         the    possibility           of

parole").

                                                    C.

       Third,          defendant's          appeal       raises      the    issue      of    whether

Graham's holding, which barred a life without parole sentence

for    a    single       nonhomicide          offense,         can   be     extended        to    cover

aggregate sentences imposed consecutively for multiple offenses.

"The [Graham] Court did not address juvenile offenders . . . who

received          consecutive,              fixed-term        sentences          for    committing

multiple nonhomicide offenses."                          Bunch v. Smith, 685 F.3d 546,




                                                    17                                       A-4169-11T2
551 (6th Cir. 2012), cert. denied, __ U.S. __, 133 S. Ct. 1996,

185 L. Ed. 2d 865 (2013).                     "[C]ourts across the country are

split    over     whether    Graham           bars       a   court      from      sentencing             a

juvenile      nonhomicide        offender           to       consecutive,            fixed         terms

resulting in an aggregate sentence that exceeds the defendant's

life expectancy."          Id. at 552; compare State v. Kasic, 265 P.3d

410, 414 (Ariz. Ct. App. 2011), People v. Gay, 960 N.E.2d 1272

(Ill.    App.    Ct.    2011),     appeal       denied,           981    N.E.2d        1000        (Ill.

2012),   State     v.     Brown,    118       So.    3d      332,    336-37,         341-42         (La.

2013), and State v. Ramos, __ P.3d __, __ (Wash. Ct. App. Aug.

13, 2015) (slip op. at 1-3), with People v. Caballero, 282 P.3d

291, 295 (Cal. 2012), and Henry v. State, __ So. 3d __, __, 2015

Fla.    LEXIS    533    (Fla.      Mar.       19,    2015).             We    assume,           without

deciding, that Graham could be extended to apply to a situation

where    a    defendant     commits       a    number        of    offenses          in     a    single

criminal episode and receives a number of term-of-year sentences

that    are     imposed    consecutively             and      result         in   an      aggregate

sentence equaling or exceeding the life expectancy of a person

of defendant's age.

                                               D.

       Fourth,    defendant's        appeal          raises       the        issue     of       whether

Graham can be extended to cover sentences imposed for multiple

criminal       episodes,     including           those         addressed             in     separate




                                               18                                               A-4169-11T2
sentencings.     See, e.g., Carmon v. State, 456 S.W.3d 594, 601

(Tex. App. 2014) ("Nothing in Graham precludes . . . sentences

[]   for   a   different       criminal    episode    .    .   .   from    running

consecutively.").         We    assume,    without    deciding,     that     Graham

could be extended to apply to a situation where a defendant

commits separate criminal episodes and is separately sentenced

to term-of-year sentences which are imposed consecutively and

result in an aggregate sentence equaling or exceeding the life

expectancy of a person of defendant's age.

                                          V.

     Thus,     assuming    Graham    could     be    extended      to   apply     to

defendant's total sentence, even though it was aggregated from

consecutive sentences for six offenses in two criminal episodes,

imposed in two separate sentencing hearings, we consider whether

defendant's aggregate sentence violates Graham.

     In Graham, the United States Supreme Court found sentencing

juveniles to life without parole unconstitutional because "[i]t

deprives the convict of the most basic liberties without giving

hope of restoration[.]"          Graham, supra, 560 U.S. at 69-70, 130

S. Ct. at 2027, 176 L. Ed. 2d at 842.                      Life without parole

"'means    denial   of     hope;    it     means    that   good    behavior      and

character improvement are immaterial; it means that whatever the

future might hold in store for the mind and spirit of [the




                                          19                               A-4169-11T2
convict], he will remain in prison for the rest of his days.'"

Id. at 70, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842 (citation

omitted).

    The Graham Court required States to "give defendants like

Graham some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation."                    Id. at 75, 130 S.

Ct. at 2030, 176 L. Ed. 2d at 846.                     The Court found Graham's

sentence of life without parole "guarantee[d] he will die in

prison without any meaningful opportunity to obtain release" and

"denied him any chance to later demonstrate that he is fit to

rejoin society."        Id. at 79, 130 S. Ct. at 2033, 176 L. Ed. 2d

at 848.     The Court ruled that "[a] State need not guarantee the

offender eventual release, but if it imposes a sentence of life

it must provide him or her with some realistic opportunity to

obtain release before the end of that term."                     Id. at 82, 130 S.

Ct. at 2034, 176 L. Ed. 2d at 850.

    This       language    from      Graham     indicates     that     life   without

parole    is   barred     because     it    prevents      a   juvenile      defendant

convicted of a nonhomicide offense from having a meaningful and

realistic      opportunity      to    obtain         parole   review    during       his

lifespan.       If   Graham's     holding       is    extended   to    term-of-years

sentences,     the   prediction       of   a    defendant's      lifespan     must    be

based on life expectancy.              See, e.g., State v. Springer, 856




                                           20                                 A-4169-11T2
N.W.2d 460, 468-69 (S.D. 2014) (rejecting a Graham claim because

defendant failed to present evidence of life expectancy).

       Caballero, the case on which defendant relies, held that

"sentencing a juvenile offender for a nonhomicide offense to a

term of years with a parole eligibility date that falls outside

the    juvenile        offender's   natural       life    expectancy     constitutes

cruel     and    unusual      punishment         in   violation    of    the    Eighth

Amendment."       Caballero, supra, 282 P.3d at 295; see id. at 294

n.3 (finding "that the term 'life expectancy' means the normal

life    expectancy       of   a   healthy    person      of   defendant's      age   and

gender living in the United States").                    Other courts have ruled

similarly.        See, e.g., Henry, supra, __ So. 3d at __ (Graham

requires        that     juvenile     defendants         receive    a     meaningful

opportunity for release "during their natural lives"); People v.

Gipson, 34 N.E.3d 560, 580 (Ill. App. Ct. 2015).

       Here, we find that defendant's aggregate sentence does not

violate    Graham,        because   he   has      a   meaningful    and     realistic

opportunity for release during the life expectancy of a person

of defendant's age living in the United States.                         To make that

determination, we utilize the national life expectancy tables

issued by the federal government, which have long been used by

the New Jersey courts.




                                            21                                 A-4169-11T2
     In     our   Court    Rules,    we   have    adopted     a   table        of   "Life

Expectancies       for    All     Races   and    Both   Sexes."              Pressler    &

Verniero, Current N.J. Court Rules, Appendix I to R. 1:13-5 at

www.gannlaw.com (2016).            Appendix I is derived from the National

Vital     Statistics      Reports    (NVSR),     Vol.   52,    No.      14    (Feb.     18,

2004).5

     It is appropriate to use the NVSR to determine the average

life expectancies and predicted lifespan of defendants in the

context of Graham.              The NVSR are issued by the Centers for

Disease    Control       and    Prevention     (CDC).    The      CDC    states       that

"[t]he National Vital Statistics System is the oldest and most

successful example of inter-governmental data sharing in Public

Health[.]"6       The NVSR's "United States Life Tables" are based on

recent mortality statistics, the most recent available census

information, and Medicare data.              See, e.g., 2004 NVSR, supra, at

1.   Our Court Rules provide that Appendix I's life expectancy




5
   Available at http://www.cdc.gov/nchs/data/nvsr/nvsr52/nvsr52
_14.pdf [hereinafter "2004 NVSR"].
6
  Centers for Disease Control and Prevention, National Vital
Statistics    System,    http://www.cdc.gov/nchs/nvss.htm (last
updated Sept. 30, 2015).




                                          22                                    A-4169-11T2
tables, based on the NVSR, "shall be admissible in evidence as

prima facie proof of the facts therein contained."                   R. 1:13-5.7

      Trial courts sentencing juvenile defendants to substantial

periods     of   parole    ineligibility       should   use    the    NVSR's     most

recent      available     data    in     determining    what       sentence     meets

Graham's requirements.            Specifically, the court should locate

the most recent "United States Life Tables" and                        consult the

"Expectation of life at age x" column of Table 1, "Life table

for   the    total    population:      United    States,"     to    determine       the

average     life     expectancy    for    a    person   of    the    same     age   as

defendant's current age at the date of sentencing.                          The most

recent NVSR tables are based on the most current available data,

and thus provide a more accurate calculation of average life

expectancy.        The NVSR's most recent "United States Life Tables"

are readily available online.8

      Similarly, post-conviction courts addressing Graham claims

newly    raised     by   already-sentenced       defendants,        like   defendant


7
  Life    expectancy data from the NVSR has been used by numerous
courts    in adjudicating claims under Graham and Miller.    See,
e.g.,    People v. Lewis, 165 Cal. Rptr. 3d 624, 632 (Ct. App.
2013);    People v. Mendez, 114 Cal. Rptr. 3d 870, 882 (Ct. App.
2010).
8
  See Centers for Disease Control and Prevention, Publications
and   Info  Products   –  National   Vital  Statistics Reports,
http://www.cdc.gov/nchs/products/nvsr.htm (last visited October
15, 2015).



                                          23                                 A-4169-11T2
here, should use the NVSR's most recent available "United States

Life Tables."     Again, these most recent tables provide the most

accurate    available      calculation        of    average     life      expectancy.

Similar tables may not be readily available for the year in

which the inmate was originally sentenced.                     Even if such older

tables    were   available,    using     them       now   would      be   inaccurate,

because it would ignore that the defendant has lived to his

current    age   and   thus   is    likely         to   have   a     longer   average

lifespan.    The post-conviction court should use the most current

and accurate data available at the time the newly-raised Graham

claim is adjudicated, rather than try to turn back the clock to

apply outdated data to a hypothetical and outmoded "original

sentencing."9

     Thus, to determine whether defendant's current period of

parole    ineligibility     could   violate         Graham,     we    consider    life

expectancy for a person of defendant's age at the time Judge

Petrolle heard defendant's motion in July 2012.                       At that time,

defendant was forty-eight years old.                    The most recent "United

States    Life   Tables"    were    in    the      National     Vital      Statistics

9
  Once a defendant's Graham claim has been adjudicated by a
sentencing court or post-conviction court, neither the defendant
nor the State may ask the courts to revisit its life expectancy
analysis as the incarcerated defendant ages or the defendant's
health declines.    The constitutionality of the length of the
sentence should not be continually relitigated in successive
applications for relief.



                                         24                                   A-4169-11T2
Reports, Vol. 59, No. 9 (Sept. 28, 2011).10                            Under the 2011

NVSR's Table 1, "Life table for the total population: United

States, 2007," a person who is between forty-eight and forty-

nine years old has an average life expectancy of 32.7 years, and

thus is predicted to live to be more than eighty years old.                             Id.

at 8.11

       Defendant's current sentence provides for fifty-five years

of parole ineligibility.            As defendant has been in custody since

December     9,   1981,   it   is    undisputed        he    will   be    eligible      for

parole no later than 2036, when he will be seventy-two years

old.       Indeed,    defendant       may        be   eligible      for    parole     even

earlier.12        Thus,   defendant's        current        sentence      gives   him    an


10
   Available at http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_
09.pdf.
11
  The lifespan under the 2011 NVSR is longer than under Appendix
I, which states, based on the 2004 NVSR data, that a person who
is forty-eight years old has an average life expectancy of 32.0
years and thus a predicted lifespan of exactly eighty years old.
The lifespan under the 2011 NVSR is shorter than under the most
recently-issued National Vital Statistics Reports, Vol. 64, No.
11, "United States Life Tables, 2011" (Sept. 22, 2015),
available   at    http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64
_11.pdf. It predicts a person who is forty-eight years old has
an average life expectancy of 33.3 years, and thus is predicted
to live to be over eighty-one years old. Id. at 9. We do not
apply that most recent data, because it was not available at the
time of Judge Petrolle's decision. In any event, our conclusion
would be the same using these average life expectancies.
12
   Defendant notes that the Department of Corrections website
lists his parole eligibility date as March 31, 2033, when he is
                                                    (continued)


                                            25                                    A-4169-11T2
opportunity to be paroled approximately eight years before the

end of the eighty-year predicted lifespan of a forty-eight-year-

old.    Put another way, if paroled at that opportunity, he will

live at least the last ten percent of his predicted lifespan

outside   of    prison.         Thus,   defendant        has    an    opportunity      for

parole substantially before the end of the relevant predicted

lifespan.

       Further,     that   opportunity           for   parole    is       meaningful   and

realistic.        Defendant is not "deprived of the opportunity to

achieve maturity of judgment and self-recognition of human worth

and potential," or of the "chance to demonstrate maturity and

reform" at his parole hearing.                   Graham, supra, 560 U.S. at 79,

130 S. Ct. at 2032, 176 L. Ed. 2d at 848.                            According to the

State, defendant will have access to the "counseling, education,

and rehabilitation programs for those who are []eligible for

parole consideration."           Id. at 79, 130 S. Ct. at 2033, 176 L.

Ed. 2d at 848.        His "'good behavior and character improvement'"

will be material in that hearing.                      Id. at 70, 130 S. Ct. at

2027,   176    L.   Ed.    2d   at   842.        This   is     not    a    sentence    that



(continued)
not yet seventy years old. He claims this is a miscalculation.
We need not resolve this apparent discrepancy for purposes of
our constitutional analysis. We leave the clarification of the
actual date to the Department or the Parole Board to address in
due course.



                                            26                                   A-4169-11T2
"den[ies] convicts the possibility of parole," id. at 70, 130 S.

Ct. at 2027, 176 L. Ed. 2d at 842, or leaves defendant with "no

chance    for   fulfillment    outside      prison    walls,      no   chance   for

reconciliation with society, no hope."               Id. at 79, 130 S. Ct. at

2032, 176 L. Ed. 2d at 848.

    Thus,       defendant's    sentence     gives     him    a   meaningful     and

realistic opportunity for release during his predicted lifespan,

and does not violate Graham, even assuming it could be extended

to apply to defendant's aggregate, separately-imposed term-of-

years    sentences   for    multiple   criminal       episodes.        See,   e.g.,

Smith v. State, 93 So. 3d 371, 374-75 (Fla. Dist. Ct. App. 2012)

(upholding a sixty-three-year sentence reduced by gain time);

Thomas v. State, 78 So. 3d 644, 646 (Fla. Dist. Ct. App. 2011)

(upholding a fifty-year sentence).            We reject defendant's claim

that his aggregate sentence is the "functional equivalent" of a

sentence of life without parole.

    Because the predicted lifespan of a forty-eight-year-old

person     exceeds    defendant's        parole       eligibility       date     by

approximately eight years, we need not decide what lesser number

of years would be sufficient.          However, we do not agree with the

assertion in State v. Null, 836 N.W.2d 41, 71 (Iowa 2013), and

Bear Cloud v. State, 334 P.3d 132, 142 (Wyo. 2014), that a

defendant's     so-called     "geriatric     release"       is   insufficient    to




                                       27                                 A-4169-11T2
satisfy Graham or Miller.            Unlike Casiano v. Comm'r of Corr.,

115 A.3d 1031, 1046-47 (Conn. 2015), we do not believe Graham

mandates    that    defendants      have    a   "meaningful        life   outside    of

prison" in which to "engage meaningfully" in a career or raising

a    family.       Rather,    Graham    only     requires      a    meaningful      and

realistic "opportunity to obtain release."                   Graham, supra, 560

U.S. at 75, 79, 82, 130 S. Ct. at 2030, 2033, 2034, 176 L. Ed.

2d at 846, 848, 850.         Nothing in Graham or Miller requires more.

                                        VI.

       Defendant    agrees     we   should      rely   on   CDC    life   expectancy

data.13    However, he argues that the pertinent CDC statistics are

those for black males at birth.                  At the hearing before Judge

Petrolle,      defendant     provided   "the     CVC   [sic]       lifespan   tables"

showing that "the average lifespan of a black male is 60" at the

time of defendant's birth in 1964, and "even to this day, it is

69 to 70 years of age."              Defendant's pro se brief on appeal

similarly argues that we should look at life expectancy of a




13
   Defendant has not argued that life expectancy must be
predicted based on his own individual health, personal life
history, and particular circumstances.    In any event, such an
inquiry would be wholly impractical, be prone to dispute and
error, and introduce widespread disparities.      It would turn
juvenile sentencings, and Graham motion hearings, into medical
guessing games and battles of experts.       Like defendant, we
believe the CDC data provides a more reliable, manageable, and
fair method of determining life expectancy.



                                           28                                 A-4169-11T2
black male at the time of defendant's birth, citing data from

the CDC's National Center for Health Statistics.14

     However, it is particularly inappropriate to use statistics

about newborns to determine the average life expectancy of a

juvenile who has survived the mortality risks of infancy and

childhood and reached almost eighteen years old.                          It is even

more inappropriate to apply statistics for newborns to adult

defendants    who   bring       a    Graham      claim   long   after     sentencing.

Since   committing       his    crimes,          defendant   had   survived     three

decades' worth of risks, and had reached the age of forty-eight

at the time of the hearing before Judge Petrolle.                         His motion

should be decided based on his age at the time of the hearing.

     Moreover, it is problematic to use statistics based on race

and sex.     We recognize that Tables 2 and 3 in the NVSR set forth

average life expectancy based on sex.                    See 2011 NVSR, supra, at

10-13 (showing that the average life expectancy of a forty-

eight-year-old      is   30.7       years   for     males,   and   34.5    years   for




14
  Using the more recent data from the 2011 NVSR, and the more
pertinent age of a forty-eight-year-old, the average life
expectancy is 27.0 years for black males and 26.7 years for non-
Hispanic black males. Id. at 22, 40. Either figure produces a
predicted lifespan exceeding defendant's parole eligibility date
by approximately three years or more.




                                            29                               A-4169-11T2
females).15     Other tables in the NVSR set forth average life

expectancies for whites, blacks, and Hispanics.                Id. at 14-43

(showing the average life expectancy of a forty-eight-year-old

is 32.9 years for whites, 29.7 years for blacks, and 35.3 years

for Hispanics).       Additional tables break down that data further,

including by sex.      Ibid.

       We believe using tables based on sex, race, or ethnicity

would     introduce     disparities     that     are   inconsistent       with

constitutional standards and penological goals.               See generally

State v. Ramseur, 106 N.J. 123, 330 (1987) (stressing that the

structure of capital sentencing must "prevent discrimination on

an impermissible basis, including, but not limited to, race and

sex").     Applying such tables to juvenile offenders would mean

that     females   would   receive     longer     sentences    than    males,

Hispanics would receive longer sentences than whites or blacks,

and Hispanic females would receive the longest sentences of all.

See 2011 NVSR, supra, at 14-43.            Also, allowing consideration of

sex, race, or ethnicity might lead to claims that courts must

differentiate      among   other      races,    ethnicities,     or    gender

identities (e.g., Asian-Americans) not yet covered by the NVSR


15
   Earlier versions of Appendix I did likewise. That practice
was abandoned when the rules were made gender neutral.    See
Pressler, Current N.J. Court Rules, Appendix I to R. 1:13-5
(1993).



                                      30                              A-4169-11T2
tables,   leading      to    problems     of    proof,    difficulties        of

administration,     and     additional     disparities.          Nor     should

sentencing    courts   be    required     to   resolve    disputes     over     a

defendant's race, ethnicity, or gender identity.

     Furthermore, using data based on race, ethnicity, or sex

ignores the equalizing effect of the shared environment provided

by   incarceration.          The   disparities     between       the     races,

ethnicities, and sexes — in wealth, housing, diet, health care,

occupation, and exposures to violence — that exist outside of

prison,   and    affect     life   expectancy,    are     much    reduced     or

eliminated in prison.16

     Nonetheless, defendant argues that his aggregate sentence

is the "functional equivalent" of life without parole.                 He cites

Caballero, but there the California Supreme Court found Graham

barred an aggregate sentence of 110 years to life, "requiring

defendant to serve a minimum of 110 years before becoming parole

eligible."      Caballero, supra, 282 P.3d at 295.               By contrast,

defendant's     sentence     of    fifty-five     years     before       parole

16
  Defendant has not argued that the average life expectancy of
persons is shorter if they are in prison.    That is not self-
evident, as our prisons are obligated to supply inmates with
steady nourishment, access to free medical care, and secure
housing which, while not perfect, may be superior to what they
had outside of prison.     In any event, such estimates are
unlikely to be as available or indisputable as the CDC tables
cited above, may add unmanageable complexity, and may create
additional disparities.



                                     31                                A-4169-11T2
eligibility is not the functional equivalent of life without

parole,    because         it       gives     him        a    meaningful         and    realistic

opportunity for parole well within the predicted lifespan for a

person of defendant's age.                   See, e.g., Smith, supra, 93 So. 3d

at 374-75.

       Defendant next argues that the intent of the sentencing

judge   was     to   incarcerate            him   for        the    remainder     of    his    life

without    the       opportunity        for       parole.             Defendant        cites    the

original 1983 sentencing hearing on Indictment No. 81-00-03730,

when the judge stated that "there is absolutely no prospect" of

rehabilitation for defendant, who did not "belong in society"

and    should    "be      isolated          for     as       long    as    the    law    allows."

Defendant also cites the original 1984 statement of reasons for

Indictment No. 81-00-03729, where the sentencing judge stated:

"The only way to protect society from this extremely dangerous

and immoral individual is to be absolutely assured that he will

be    incarcerated        for    the    rest      of     his       natural    life.       Society

should never be exposed to his likes again."

       However,      as    set      forth     above,          those       original     sentencing

proceedings      imposed        a    much     longer         aggregate       sentence     of    150

years in prison with seventy-five years of parole ineligibility.

After the Supreme Court remanded the case for reconsideration,

the sentencing judge removed forty years in prison and twenty




                                                  32                                     A-4169-11T2
years of parole ineligibility, "so that his overall sentence has

been    reduced     from        150     years     with        75        years    of     parole

ineligibility       to     110        years      with     55        years        of     parole

ineligibility."

                                          VII.

       Accordingly, we reject defendant's claim that his sentence

violates Graham's interpretation of the Eighth Amendment's Cruel

and Unusual Punishment Clause.                  We similarly reject defendant's

undeveloped claim that his sentence violates "the corresponding

provision    in    Article       I,      paragraph       12        of    the     New    Jersey

Constitution."          State v. Johnson, 166 N.J. 523, 548 (2001).

Defendant does not show a violation under New Jersey's "three-

part test," ibid., because he failed to make                               "a substantial

showing" that his punishment for leading these two brutal gang

rapes    does     not    "conform[]        with       contemporary             standards      of

decency," "is grossly disproportionate to the offense[s]," or

"goes   beyond    what     is    necessary       to    accomplish          any    legitimate

penological objective."               Ibid.; see Ramseur, supra, 106 N.J. at

169    (noting    that    the    three-part        test       under       the    New    Jersey

Constitution was "generally the same as that applied under the

federal Constitution").17


17
   Because we rule that defendant's sentence was not cruel and
unusual punishment even assuming that Graham could be extended
                                                    (continued)


                                           33                                          A-4169-11T2
    Affirmed.




(continued)
to cover aggregate, consecutive term-of-years sentences, arising
out of multiple criminal episodes, and imposed in different
sentencing proceedings, we need not reach the State's argument
that such an extension of Graham should not be retroactively
applied.



                               34                       A-4169-11T2
