                        NOT FOR PUBLICATION WITHOUT THE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-3537-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GARY GUIONS,

     Defendant-Appellant.
_________________________________

              Submitted October 17, 2017 – Decided October 26, 2017

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 99-
              08-2813.

              Gary Guions, appellant pro se.

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (LeeAnn
              Cunningham,    Special    Deputy    Attorney
              General/Acting Assistant Prosecutor, on the
              brief).

PER CURIAM

        Defendant, who was sixteen years old when he murdered two

victims, appeals from a March 28, 2016 order denying his motion

to correct what he argued was an illegal sentence.                 Judge Michael
A. Petrolle entered the order and rendered a written opinion.      We

conclude the judge did not impose a sentence that violates the

Eighth Amendment's ban on cruel and unusual punishment.            We

therefore affirm.

     In 2000, the court waived defendant to adult court and

defendant pled guilty to the murders.   In accordance with the plea

agreement, the court sentenced defendant to concurrent forty-year

prison terms, with thirty-four years of parole ineligibility.      In

2001, we affirmed defendant's sentence on our excessive sentence

oral argument calendar.   State v. Guions, No. A-5983-99 (App. Div.

Jan. 23, 2001).

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

which the court denied in November 2007.    We affirmed the denial

of defendant's PCR petition.   State v. Guions, No. A-3843-07 (App.

Div. June 22, 2010), certif. denied, 212 N.J. 459 (2012).    Pro se

defendant then filed his motion to correct the sentence, which led

to the order under review.

     On appeal, defendant raises the following arguments:

          POINT [I]
          THE [DEFENDANT'S] JUVENILE DE FACTO LIFE
          WITHOUT PAROLE SENTENCE IS UNCONSTITUTIONAL
          PURSUANT TO THE . . . EIGHTH AMENDMENT OF THE
          UNITED STATES CONSTITUTION AND MILLER [v.]
          ALABAMA, 132 S. CT. 2455 (2012), THE
          PROCEDURAL PROTECTION ENVISIONED IN MILLER
          [v.] ALABAMA WAS NEVER CONSIDERED BY THE
          SENTENCING COURT BEFORE [DEFENDANT'S] DE FACTO

                                 2                          A-3537-15T2
LIFE WITHOUT PAROLE SENTENCE WAS IMPOSED [AND]
THEREFORE IS AN ILLEGAL SENTENCE.

SUBPOINT A
THE DEFENDANT RECEIVED THE SAME SENTENCE AS
AN ADULT[,] THE EIGHTH AMENDMENT REQUIRES A
SEPARATE ANALYSIS FOR JUVENILE OFFENDERS
PROPORTIONALITY[.]

SUBPOINT B
THE SENTENCE WAS OFFENSE BASED AND NOT
OFFENDER BASED AS ENVISIONED IN MILLER[.]

SUBPOINT C
MANDATORY    SENTENCES     UNCONSTITUTIONALLY
DEPRIVE JUVENILES OF ANY CONSIDERATION OF THE
RELEVANT CHARACTERISTICS OF YOUTH[.]

SUBPOINT D
JUVENILES ARE PARTICULARLY VULNERABLE TO
NEGATIVE INFLUENCES AND OUTSIDE PRESSURES[.]

SUBPOINT E
MANDATORY     SENTENCES      FOR     JUVENILES
IMPERMISSIBLY UNDERMINE THE RELIABILITY OF THE
SENTENCE AS IT RELATES TO THE DEFENDANT['S]
MORAL CULPABILITY AND POTENTIAL FOR MATURITY
AND REFORM AND PREVENT THE TRIAL COURT FROM
FULFILLING    ITS    CONSTITUTIONAL     REVIEW
FUNCTION[.]

SUBPOINT F
BECAUSE [DEFENDANT] WAS [SEVENTEEN] YEARS OLD
AT THE TIME OF THE OFFENSE, THE DE FACTO LIFE
WITHOUT   PAROLE  OR   VIRTUAL   FUNCTIONALLY
EQUIVALENT LIFE WITHOUT PAROLE SENTENCE THAT
HE RECEIVED VIOLATED THE PROHIBITION AGAINST
CRUEL AND UNUSUAL PUNISHMENT UNDER BOTH THE
STATE AND FEDERAL CONSTITUTIONS[.]

SUBPOINT G
THE DEFENDANT GARY GUIONS TODAY IS NOT [THE]
SAME GARY GUIONS HE WAS WHEN HE WAS
[SEVENTEEN] YEARS OLD AND WHEN THE OFFENSE
OCCURRED[.]

                      3                          A-3537-15T2
           POINT [II]
           THE LOWER COURT ERRED AND ABUSED ITS
           DISCRETION IN MISAPP[L]YING THE LAW IN DENYING
           [DEFENDANT'S] MOTION TO CORRECT AN ILLEGAL
           SENTENCE WIHTOUT AFFORDING AN EVIDENTIARY
           HEARING TO DETERMINE THE QUESTION OF THE
           LEGALITY OF HIS SENTENCE DENIED HIM OF THE
           RIGHT TO BE HEARD IN FULL.

     After considering the record and the briefs, we conclude that

defendant's arguments are "without sufficient merit to warrant

discussion in a written opinion."          R. 2:11-3(e)(2).   We conclude

an evidentiary hearing was unwarranted and affirm substantially

for the reasons expressed by Judge Petrolle.         We add the following

brief remarks.

     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 v.

Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 1190, 161 L. Ed. 2d

1, 16 (2005).    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 v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.

Ed. 2d 407 (2012), the United States Supreme Court held that a

mandatory life sentence without the possibility of parole for


                                     4                             A-3537-15T2
those under the age of eighteen at the time of their offense

violates the Eighth Amendment's prohibition on cruel and unusual

punishments.    Miller, supra, 567 U.S. at 479, 132 S. Ct. at 2469,

183 L. Ed. 2d at 424.     Miller rejected a "categorical bar on life

without parole for juveniles."        Ibid.   Unlike in Miller, defendant

did   not   receive   a   mandatory    life   sentence   without   parole.

Defendant received concurrent forty-year prison terms with thirty-

four years of parole ineligibility.           Nothing in Miller prevents

the court from imposing such a sentence.             Finally, the court

complied with Miller and considered defendant's age at sentencing.

Id. at 479-80, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424.

      Affirmed.




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