                                 NOT FOR PUBLICATION WITHOUT THE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-1230-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES COMER, a/k/a
JAMES B. COMER,
JAMES F. COMER, and
JAMESA COMER,

     Defendant-Appellant.
_________________________

                   Argued telephonically March 23, 2020 –
                   Decided May 6, 2020

                   Before Judges Sabatino, Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 03-01-0231.

                   Lawrence S. Lustberg argued the cause for appellant
                   (Gibbons, PC, and American Civil Liberties Union
                   New Jersey Foundation, attorneys; Lawrence S.
                   Lustberg, Avram D. Frey and Alexander Shalom, on the
                   briefs).
            Frank J. Ducoat, Special Deputy Attorney General/
            Acting Assistant Prosecutor, argued the cause for
            respondent (Theodore N. Stephens II, Acting Essex
            County Prosecutor, attorney; Frank J. Ducoat, of
            counsel and on the brief).

            Alicia J. Hubbard, Assistant Deputy Public Defender,
            argued the cause for amicus curiae the New Jersey
            Office of the Public Defender (Joseph E. Krakora,
            Public Defender, attorney; Alicia J. Hubbard, of
            counsel and on the brief).

            Jennifer E. Kmieciak, Deputy Attorney General, argued
            the cause for amicus curiae the Office of the Attorney
            General (Gurbir S. Grewal, Attorney General, attorney;
            Jennifer E. Kmieciak, of counsel and on the brief).

PER CURIAM

      This juvenile offender sentencing case 1 involving defendant James Comer

was the companion matter heard and decided by the New Jersey Supreme Court

in State v. Ricky Zuber, 227 N.J. 422, cert. denied, ___ U.S. ___, 138 S. Ct. 152

(2017). In its consolidated opinion, the Court remanded Comer's case to the trial

court for resentencing, to be conducted with adherence to certain youth-related

mitigating principles under the Eighth Amendment of the United States

Constitution. Id. at 453.



1
   This appeal was argued back to back with Zuber's own post-remand appeal,
A-2677-18, and with another juvenile offender murder case, State v. James
Zarate, A-2001-17, which poses some related Eighth Amendment issues. We
issue opinions in all three cases today.
                                                                      A-1230-18T2
                                       2
      On resentencing, the trial court re-imposed on Comer the statutory

minimum of a thirty-year custodial sentence for first-degree felony murder, as

mandated by N.J.S.A. 2C:11-3(a)(3). The trial court made concurrent other

related offenses that had been previously imposed on Comer.

      Comer now appeals, principally arguing that our State's mandatory

minimum sentence of thirty years for murder, when it is imposed upon a juvenile

offender such as him who is tried as an adult, violates the Eighth Amendment

and contemporary penological standards.

      We affirm. We reject Comer's argument of unconstitutionality, adhering

to our earlier precedential opinion in State v. Pratt, 226 N.J. Super. 307 (App.

Div.), certif. denied, 114 N.J. 314 (1988) that upheld the thirty-year mandatory

minimum sentence as applied to offenders who commit murder under the age of

eighteen. In doing so, we recognize the Legislature has the policy prerogative

to amend the statute to abate the sentencing impact upon juvenile offenders, and

that bills have been introduced in recent years proposing to do so.

                                       I.

                                       A.

      The Supreme Court in Zuber summarized the facts underlying Comer's

convictions:



                                                                      A-1230-18T2
                                       3
           Defendant James Comer participated in four armed
           robberies in the evening of April 17 and the early
           morning of April 18, 2000. During the second robbery,
           Ibn Adams, an accomplice, shot and killed a victim
           [George T. Paul]. Comer was seventeen years old at the
           time of the robberies.

           [Zuber, 227 N.J. at 433.]

A grand jury charged Comer and Adams in an indictment that contained the

following eighteen counts:

   count one -- conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2;

   count two -- purposeful and knowing murder, contrary to N.J.S.A. 2C:11-
    3(a)(1) and (2) (applicable to Adams only);

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

   count four -- first-degree robbery of Paul, contrary to N.J.S.A. 2C:15-1;

   count five -- possession of a firearm (a handgun) without a permit,
    contrary to N.J.S.A. 2C:39-5(b);

   count six -- possession of a weapon (a handgun) with the intention to use
    it unlawfully against another, contrary to N.J.S.A. 2C:39-4(a);

   count seven -- first-degree robbery of Daru Abernathy, contrary to
    N.J.S.A. 2C:15-1;

   count eight -- possession of a firearm (a handgun) without a permit,
    contrary to N.J.S.A. 2C:39-5(b);

   count nine -- possession of a weapon (a handgun) with the intention to use
    it unlawfully against another, contrary to N.J.S.A. 2C:39-4(a);

   count ten -- first-degree robbery of Alison Adebola, contrary to N.J.S.A.

                                                                    A-1230-18T2
                                       4
      2C:15-1;

    count eleven -- possession of a firearm (a handgun) without a permit,
     contrary to N.J.S.A. 2C:39-5(b);

    count twelve -- possession of a weapon (a handgun) with the intention to
     use it unlawfully against another, contrary to N.J.S.A. 2C:39-4(a);

    count thirteen -- first-degree robbery of Tasandra Wright, contrary to
     N.J.S.A. 2C:15-1;

    count fourteen -- possession of a firearm (a handgun) without a permit,
     contrary to N.J.S.A. 2C:39-5(b);

    count fifteen -- possession of a weapon (a handgun) with the intention to
     use it unlawfully against another, contrary to N.J.S.A. 2C:39-4(a);

    count sixteen -- theft of a 1994 Honda automobile, contrary to N.J.S.A.
     2C:20-3(a);

    count seventeen -- possession of a firearm (a .380 caliber handgun)
     without a permit, contrary to N.J.S.A. 2C:39-5(b); and

    count eighteen -- possession of a firearm (a .25 caliber handgun) without
     a permit, contrary to N.J.S.A. 2C:39-5(b).

      Comer was prosecuted for these offenses as an adult. After a joint trial

with Adams, a jury found Comer guilty of all of the counts related to the

robberies, including the one count of felony murder.

      The Court summarized in Zuber the corresponding sentences originally

imposed on Comer:




                                                                   A-1230-18T2
                                      5
             (1) 30 years' imprisonment with 30 years of parole
             ineligibility for first-degree felony murder, N.J.S.A.
             2C:11–3(a)(3);

             (2–4) three consecutive terms of 15 years'
             imprisonment with an 85 percent period of parole
             ineligibility for three counts of first-degree armed
             robbery, N.J.S.A. 2C:15–1;
              (5–9) five concurrent terms of 4 years' imprisonment
             for weapons offenses, N.J.S.A. 2C:39–5(b);

             (10) one concurrent term of 4 years' imprisonment for
             theft, N.J.S.A. 2C:20–3(a).

             [Id. at 433.]

      All told, Comer’s aggregate sentence was 75 years in prison with 68 years

and 3 months of parole ineligibility. Based on that original sentence, Comer

would not be eligible for parole until 2068, when he would be eighty-five years

old. Ibid.

      Comer filed a direct appeal challenging his convictions and arguing his

sentence was excessive. Ibid. We upheld his convictions and sentence in 2006,

a ruling which the Supreme Court affirmed. State v. Adams, 194 N.J. 186, 191

(2008).

      Comer thereafter filed a petition for post-conviction relief in 2008, in

which he contested his consecutive sentences and raised several other claims.

The trial court denied relief. We remanded for an evidentiary hearing. State v.

Comer, No. A-1675-10 (App. Div. Oct. 23, 2012). The trial court conducted the

                                                                      A-1230-18T2
                                       6
hearing, and again denied relief, an outcome which we affirmed. State v. Comer,

No. A-2725-15 (App. Div. Dec. 30, 2015).

      By this point, Comer sought to gain relief based on the series of United

States Supreme Court opinions holding that, under the Eighth Amendment, the

sentencing of offenders who commit crimes as minors must take into account

the special characteristics of their immaturity. See, e.g., Graham v. Florida, 560

U.S. 48 (2010) (holding that sentencing a juvenile offender to life in prison

without parole for a non-homicide offense violates the Cruel and Unusual

Punishment Clause of the Eighth Amendment), and Miller v. Alabama, 567 U.S.

460, 479-80 (2012) (holding that, to comply with the Eighth Amendment, youth

and its attendant characteristics must be considered when sentencing a juvenile

to life without parole in homicide cases).

      As the Court recounted these developments:

            In 2014, Comer filed a motion to correct an illegal
            sentence. He argued that his sentence amounted to life
            without parole, and was therefore illegal under Graham
            and Miller. When Comer was first sentenced in 2004,
            the trial judge was not required to evaluate the
            mitigating effects of youth, which Miller later
            addressed. In a detailed written opinion, the same trial
            judge concluded in 2014 that, because he had not
            considered the Miller factors, Comer was entitled to be
            resentenced.

            [Zuber, 227 N.J. at 434.]


                                                                       A-1230-18T2
                                        7
      The Supreme Court granted Comer’s motion for direct certification of the

trial court’s 2014 judgment. State v. Comer, 226 N.J. 205 (2016). Because an

appeal by Zuber posed related issues, the Court consolidated the cases in a single

opinion. Zuber, 227 N.J. at 434.

      The Court's opinion in Zuber explained in depth the analysis and

consequences of the United States Supreme Court's recent decisions in this arena

of Eighth Amendment jurisprudence. In particular, the Court highlighted the

need for judges who sentence minors who have been waived up and convicted

of serious adult crimes to take into account the mitigating factors of youth

delineated in Graham, Miller, and their progeny. The Court found that Comer

was entitled to resentencing under Miller because his lengthy sentence was a de

facto life term. Id. at 448.

      The Court remanded Comer's case to the trial court with these instructions,

which were likewise applicable to Zuber:

             At a new sentencing hearing, the trial court should
             consider the Miller factors when it determines the
             length of his sentence and when it decides whether the
             counts of conviction should run consecutively. In short,
             the court should consider factors such as 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."
             [citation omitted] The sentencing judge should also

                                                                        A-1230-18T2
                                        8
            "view defendant as he stands before the court" at
            resentencing and consider any rehabilitative efforts
            since his original sentence. State v. Randolph, 210 N.J.
            330, 354 (2012).

            [Id. at 453].

      On remand from the Supreme Court, the trial court in October 2018

reconsidered Comer's aggregate sentence. After considering the Miller factors

and finding statutory aggravating factors three (risk of reoffending), N.J.S.A.

2C:44-1(a)(3), and nine (need for deterrence), N.J.S.A. 2C:44-1(a)(9), the court

re-imposed the minimum 30-year term with a 30-year parole disqualifier on the

felony murder count, plus the following concurrent terms of imprisonment:

    4 years on count five;

    15 years on count seven with an 85% parole bar, pursuant to the No Early
     Release Act ("NERA"), N.J.S.A. 2C:43-7.2;

    4 years on count eight;

    15 years on count ten with an 85% percent NERA parole bar and a 50%
     Graves Act parole bar under N.J.S.A. 2C:43-6(c);

    4 years on count eleven;

    15 years on count thirteen with an 85% NERA parole bar and a 50%
     Graves Act parole bar;

    4 years on count fourteen;

    4 years on count sixteen; and



                                                                       A-1230-18T2
                                       9
    4 years on count seventeen.

The court merged the remaining counts.

      The net result of the resentencing is that it made concurrent all of the

consecutive prison terms that had been previously stacked upon Comer's

mandatory 30-year sentence for felony murder. Under that revised sentence,

Comer is now eligible for release after serving 30 years, rather than the

previously imposed 68 years and 3 months of parole ineligibility. It is obvious

that Comer thereby received an enormous "real time" benefit from the

application of the Miller factors.

      Nonetheless, Comer pursues his present appeal, this time making a more

generic argument. He contends that the mandatory minimum sentence of thirty

years prescribed by N.J.S.A. 2C:11-3(b)(1) is unconstitutional when applied to

juvenile offenders. Comer is joined in this contention by the Office of the Public

Defender and the American Civil Liberties Union as amici. The contention is

opposed by the Essex County Prosecutor on behalf of the State, and also by the

Attorney General as amicus.

                                       B.

      Specifically, Comer raises the following points in his appellate brief:

            (1)    The Trial Court Sentenced Comer Pursuant to
                   N.J.S.A. 2C:11-3b(1), the Constitutionality of
                   Which Is Accordingly Before the Court.

                                                                       A-1230-18T2
                                       10
      (2)    The Mandatory Minimum Sentence of 30 Years
             without Eligibility for Parole Required by
             N.J.S.A. 2C:11-3(b)(1) Is Unconstitutional As
             Applied to Juvenile Offenders.

             (a)   Objective Indicia of Society’s Standards
                   Show A Consensus Against Mandatory
                   Terms of 30 Years Imprisonment Without
                   Parole for Juvenile Homicide Offenders.

             (b)   Juvenile Offenders Are Less Culpable
                   Than Adults.

             (c)   A Term of 30 Years without Eligibility for
                   Parole Is Appropriately Understood To Be
                   Harsh Punishment.

             (d)   The Recognized Purposes of Punishment
                   Do Not Support a Mandatory Minimum
                   Penalty of 30 Years without Parole for
                   Juveniles.

             (e)   Caselaw Both Within and Beyond New
                   Jersey Confirms That a Mandatory
                   Minimum Sentence of 30 Years for
                   Juveniles Is Unconstitutional.

In his reply brief, Comer makes the following additional contentions:

      I.     Legislative Deference Is Improper in Resolving
             Comer’s Constitutional Challenge.

      II.    No Authority Forecloses Comer’s Challenge.

      III.   Proportionality Analysis Compels the Relief
             Comer Seeks.

             (a)   Objective Indicia of Societal Values.

                                                                A-1230-18T2
                                11
                  (b)    Whether the Punishment Fits the Offense.

                  (c)    Whether Any Penological Purpose
                         Justifies the Punishment.

            IV.   The Court Should Strike Down N.J.S.A. 2C:11-
                  3b(1) As Applied to Juveniles.

      Comer has favored us with cases from other jurisdictions and scholarly

articles to support his contention that he and other similarly situated minors who

commit murder should not be subjected to a mandatory minimum sentence of

thirty years without parole. Instead, Comer and his aligned amici contend that

the sentencing of such minors should not be so rigid. They maintain that the

Constitution requires such offenders to receive greater individualized

consideration of the special characteristics of their youth and immaturity.

      Comer argues that the murder statute's thirty-year mandatory minimum

term is unconstitutional as applied to juveniles because it imposes a

disproportionately harsh punishment that does not comply with evolving notions

of appropriate punishment for juvenile offenders. He relies heavily on the

principles set forth in Miller and Zuber regarding the ways in which juveniles

are different from adults and how those differences undermine the traditional

justifications for punishment. He notes that in State in the Interest of C.K., 233

N.J. 44 (2018), our Court relied on those same principles to declare


                                                                       A-1230-18T2
                                       12
unconstitutional the lifetime reporting requirements required by Megan's Law.

He does not contend that a juvenile may never be sentenced to a thirty-year term.

Rather, he advocates that it is unconstitutional to mandate that minimum

sentence without any consideration of the Miller factors or the circumstances of

the crime.

      The Public Defender takes this argument a step further and asserts that

under the principles set forth in Miller and Zuber, all mandatory parole bars are

unconstitutional as applied to juveniles because they do not allow the sentencing

court to consider the attributes of youth and the circumstances of the crime in

imposing a sentence that fits the crime and the offender. The Public Defender

underscores that Comer's conviction is for felony murder, which it asserts is the

type of crime that often results from a juvenile's inability to appreciate and

foresee the consequences of his actions.

      Comer and the defense amici base their arguments upon a well-established

three-part test of unconstitutionality under the Eighth Amendment:

             First, does the punishment for the crime conform with
             contemporary standards of decency? Second, is the
             punishment grossly disproportionate to the offense?
             Third, does the punishment go beyond what is
             necessary to accomplish any legitimate penological
             objective?

             [Zuber, 227 N.J. at 438 (citation omitted).]


                                                                      A-1230-18T2
                                       13
      1. Contemporary Standards of Decency

      With respect to the first part of the cruel and unusual punishment test

(whether the punishment complies with current societal notions of decency or

shocks the collective conscience and violates principles of fundamental

fairness), Comer points to changes in other states' laws regarding punishment of

juveniles. He notes that three States (California, Wyoming and West Virginia)

have passed legislation setting maximum parole bars for juveniles at terms less

than thirty years, thereby effectively precluding thirty-year parole bars for all

juveniles. Three other States (Florida, North Dakota and Washington) and the

District of Columbia now allow juveniles to petition for parole eligibility or a

reduced sentence after serving twenty- or twenty-five-years' imprisonment. In

four other States (Arizona, Georgia, Illinois and Rhode Island), legislation has

been introduced that would allow juveniles to be paroled prior to thirty years.

      Notably, the New Jersey Legislature recently considered the issue in A.

1233 (2018), which would allow a juvenile sentenced to twenty years or more

without parole to: (1) petition for resentencing ten years after the date of

conviction and (2) be eligible for parole after twenty years of incarceration. 2



2
  The Legislature has also considered S. 3079 (2017), reintroduced as S. 428
(2018), which would allow a juvenile sentenced to thirty years or more without


                                                                        A-1230-18T2
                                       14
      Comer also cites Supreme Court decisions from Iowa, Washington and

Kansas, and an unpublished district court decision in Florida that have found

mandatory sentencing requirements unconstitutional as applied to juveniles

because they do not allow a sentencing court to consider the attributes of youth

prescribed by Miller.

      Comer also submitted a letter to us before oral argument under Rule 2:6-

11(d), calling this court's attention to a recent Oregon Court of Appeals case,

State v. Link, 441 P.3d 664 (Or. Ct. App. 2019), rev. granted, 451 P.3d 1000,

holding that a thirty-year mandatory minimum sentence for juveniles in that

State violated the Eighth Amendment.

      As further support, Comer cites a report from the Campaign for Fair

Sentencing of Youth regarding resentencing under Miller of approximately

1,300 juveniles who were tried as adults and initially sentenced to life

imprisonment without parole. The median resentence for those juveniles was

twenty-five years before release eligibility, and some received lesser terms.

      Comer asserts these resentencing statistics and the changes in other states'

laws "is powerful evidence that society does not consider a mandatory minimum




parole to petition for review of the sentence after thirty years if convicted of
murder and twenty years for all other crimes.


                                                                       A-1230-18T2
                                      15
penalty of 30 years without parole appropriate for all juvenile homicide

offenders."

      2. Gross Proportionality

      As to the second factor of the cruel and unusual standard (whether the

sentence is grossly disproportionate to the offense) Comer argues that the thirty-

year minimum term without parole is a particularly harsh sentence for juveniles

because juveniles are less culpable than adult offenders for the reasons set forth

in Miller and Zuber, and they are usually capable of rehabilitation before

expiration of the thirty-year term. He underscores that a juvenile sentenced to

a minimum term of thirty years will likely serve that full term, whereas adults

sentenced to the same term may not, simply based on the age at which the

offender begins the prison term.       For this reason, he says the thirty-year

minimum disproportionately effects juveniles.

      Comer points to studies reflecting that long-term inmates are at greater

risk of "accelerated aging," or the development of illness and disability at a

young age. They are also prone to "institutionalization," or the dependency upon

the institutional structure, the resulting effect of which is often low self-esteem,

alienation, lack of self-control and adoption of prison norms and culture. He

further opines that juveniles are more likely to be assaulted and sexually abused

in prison. Because they serve time during the most formative years, they are

                                                                         A-1230-18T2
                                        16
more likely to struggle with relationships, job skills and independence upon

release.

      3. Punishment Beyond What is Necessary to Accomplish a Valid Policy

      Objective

      With respect to the third factor of the cruel and unusual standard (whether

the punishment goes beyond that which is necessary to accomplish any

legitimate penal aim), Comer relies on Graham, Miller, and Zuber in asserting

that the defining characteristics of youth render inapplicable the traditional

justifications for punishment (i.e., retribution, deterrence, incapacitation and

rehabilitation). He cites studies that show eighty-five to ninety percent of

juveniles will cease committing crimes by their mid-to-late twenties, and only

five-to-six percent will continue to commit crimes into their forties; indeed,

many are "immediate desisters," or individuals whose first crime is their only

crime.

      Thus, Comer argues a thirty-year minimum term is excessive and

unnecessary for most juvenile offenders. He also notes that prison does not

provide sufficient rehabilitative services, citing studies that show recidivism

rates are higher for those incarcerated, as opposed to those who receive

community-based sanctions.



                                                                      A-1230-18T2
                                      17
                                        C.

      The State and the Attorney General respond that the constitutionality of

the mandatory sentence for murder is settled law. The statute was upheld in

Pratt, 226 N.J. Super. at 326-27, and they maintain that Miller and Zuber do not

render that decision invalid. They say there is no need at this time for this court

to repudiate this precedent. They further maintain that, even if the special

characteristics of youth are duly considered, the thirty-year mandated sentence

is not so extreme as to amount to cruel and unusual punishment under the Eighth

Amendment.

      Responding to the defense's policy-laden arguments, the State disputes the

existence of a national trend away from mandatory minimums for juveniles tried

as adults. The State argues that the handful of jurisdictions that have rejected

thirty-year terms for juveniles do not represent the national consensus, and it

cites cases where jurisdictions rejected this approach.

      The State also underscores that society is entitled to impose "severe

sanctions on a juvenile nonhomicide offender to express its condemnation of the

crime and to seek restoration of the moral imbalance caused by the offense."

Graham, 560 U.S. at 71. A thirty-year parole bar does this without subjecting a

juvenile to an excessive term of imprisonment.

      The State further argues that three recent actions by the Legislature show

                                                                        A-1230-18T2
                                       18
that it still considers the thirty-year minimum appropriate. The first action it

cites is the 2017 amendment to the murder statute, L. 2017, c. 150, which

eliminated life without parole for juveniles but maintained the thirty-year

minimum sentence. The second action is the 2015 amendment to the waiver

statute, L. 2015. c. 89, which increased to fifteen the minimum age at which a

juvenile may be waived to adult court, but otherwise continued the practice of

waiving juveniles to adult court for certain crimes. The third action is the

Legislature's non-passage of A. 1233 (2018), a bill which would allow a juvenile

sentenced to twenty years or more without parole to petition for resentencing or

parole.

                                      II.

      As noted in the introduction, we do not have a clean slate before us. We

have previously considered the constitutionality of the thirty-year minimum

sentence mandated by the murder statute in Pratt.

      Pratt was waived to adult court and convicted of two weapons offenses

and murder for a homicide he committed at age fifteen. Pratt, 226 N.J. Super.

at 309.   The court sentenced him to a thirty-year term without parole for the

murder and imposed concurrent terms for the weapon offenses. Ibid.

      On appeal, Pratt argued that the murder statute's imposition of a minimum

of thirty years' imprisonment without parole constituted cruel and unusual

                                                                     A-1230-18T2
                                      19
punishment as applied to a juvenile because "it fail[ed] to accord individualized

sentencing treatment to juveniles." Id. at 325. In so arguing, Pratt relied on two

United States Supreme Court decisions, Woodson v. North Carolina, 428 U.S.

280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), which held

unconstitutional under the Eighth Amendment statutes that mandated the death

penalty for murder as inconsistent with contemporary standards of capital

punishment and with the requirement that sentencing be individualized. Pratt,

226 N.J. Super. at 325. We found both cited decisions distinguishable because

they addressed death sentences, not mandatory parole bars. Ibid.

      We relied in Pratt upon State v. Johnson, 206 N.J. Super. 341, 343 (App.

Div. 1985), certif. denied, 104 N.J. 382 (1986), a case in which we held that the

murder statute's thirty-year mandatory minimum did not constitute cruel and

unusual punishment as applied to an adult convicted of felony murder. Pratt,

226 N.J. Super. at 324. Like Pratt, Johnson had relied on Woodson and Roberts

in claiming that the mandatory minimum for murder constituted cruel and

unusual punishment because it did not allow the court to consider the individual

circumstances of the defendant and the crime. Johnson, 206 N.J. Super. at 343-

45. Johnson also distinguished those cases on the ground that they addressed

death sentences, not thirty-year parole bars. Id. at 345. Moreover, our courts

had upheld mandatory sentencing schemes even though they did not allow for

                                                                       A-1230-18T2
                                       20
consideration of individualized circumstances. Id. at 346-47 (citing State v. Des

Marets, 92 N.J. 62, 81-82 (1983) (Graves Act parole bar); State v. Corbitt, 74

N.J. 379 (1977), aff'd, 439 U.S. 212 (1978) (mandatory life without parole for

first-degree murder); State v. Smith, 58 N.J. 202, 212 (1971) (mandatory license

forfeiture); State v. Gantt, 186 N.J. Super. 262, 272 (Law Div. 1982), aff'd, 195

N.J. Super. 114 (App. Div. 1983) (mandatory Graves Act sentencing)).

      Underscoring that the setting of punishment was inherently a function of

the Legislature, the Johnson court quoted Chief Justice Wilentz's declaration in

Des Marets that it was not for the judiciary to "pass on the wisdom of" a

mandatory minimum term under the Graves Act. Id. at 347.

            That is a matter solely for the Legislature to decide.
            Once the Legislature has made that decision, and has
            made it within constitutional bounds, our sole function
            is to carry it out. Judges have no business imposing
            their views of "enlightened" sentencing on society,
            (citation omitted), including notions of discretionary,
            individualized treatment, when the Legislature has so
            clearly opted for mandatory prison terms for all
            offenders. It may be that the Legislature is more
            enlightened than the judges. Our clear obligation is to
            give full effect to the legislative intent, whether we
            agree or not.

            [Ibid. (quoting Des Marets, 92 N.J. at 65-66).]

      In relation to the thirty-year mandatory minimum term for felony murder,

we stated in Johnson:


                                                                      A-1230-18T2
                                      21
            There can be no doubt that "[m]urder is the most
            heinous and vile offense proscribed by our criminal
            laws." State v. Serrone, 95 N.J. 23, 27 (1983). In
            considering the constitutionality of punishment
            imposed for this offense, great deference must be given
            to the Legislature's will, as evidenced by the sentencing
            statute.

            [Id. at 347-48.]

Our case law has held the mandatory term for felony murder does not exceed

"what appears to be a reasonable expedient to achieve the public purpose of

punishment for an egregious offense." Id. at 348; Accord State v. Hodge, 95 N.J.

369, 377 (1984) ("the sentence imposed must reflect the Legislature's intention

to focus on the degree of the crime itself as opposed to other factors personal to

the defendant").

      We held in Pratt that the same rationale applied where the defendant was

a juvenile tried and convicted as an adult. Pratt, 226 N.J. Super. at 324. We

observed that "public concern about unrehabilitated, violent youthful offenders

has 'stimulated a 'just deserts' approach to juvenile crime.'" Id. at 326 (quoting

State v. R.G.D., 108 N.J. 1, 8 (1987)). We also reasserted that murder was "the

most heinous and vile offense proscribed by our criminal laws." Ibid. (quoting

Serrone, 95 N.J. at 27). It therefore could not "fairly be said" that the mandatory

minimum     violated   principles   of    fundamental   fairness,   was     "grossly

disproportionate" to the seriousness of the offense or went beyond what was

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"necessary to accomplish any legitimate penal aim." Id. at 326-27.

      Comer argues that Pratt is not dispositive today because it was issued

decades before Roper v Simmons, 543 U.S. 551 (2005), Graham, Miller,

Montgomery v. Alabama, __ U.S. __, 136 S. Ct. 718 (2016) and Zuber.              He

underscores that the principles set forth in Miller are not crime-specific; they

apply when a juvenile commits murder and when a botched robbery turns into a

murder. He argues that the Court's decision in C.K. shows that those principles

are entitled to broad application. We disagree.

      Pratt is directly on point and remains good law. Neither Miller nor Zuber

require reversal of Pratt, since both cases addressed life sentences and their

equivalents.

      As the State contends, a thirty-year parole bar is far from a life sentence,

particularly as applied to a juvenile. A juvenile tried as an adult who receives a

thirty-year minimum sentence will be eligible for parole by forty-seven at the

latest. He or she will have an opportunity for some meaningful years outside of

prison. See Graham, 560 U.S. at 73. Thus, just as the Woodson and Roberts

capital punishment cases were distinguishable in Pratt, Miller and Zuber are

distinguishable here.    The severity of the sentences imposed is markedly

different.

      Likewise, we do not believe that C.K. requires otherwise. Rather, that

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case supports the State's expression of caution because the trial court and this

court agreed that a change in constitutional law had to come from the Supreme

Court.

      The statute at issue in C.K. was N.J.S.A. 2C:7-2(g) of Megan's Law, which

precluded anyone convicted or adjudicated delinquent of certain enumerated sex

offenses from ever being able to petition for termination of Megan's Law

registration and community notification requirements. 233 N.J. at 47. Section

(f) of N.J.S.A. 2C:7-2, however, permitted offenders who did not commit a

section (g) enumerated offense to petition for termination of the registration and

notification requirements if the offender had been offense free for fifteen yea rs

following conviction or release from prison, whichever was later, and could

establish that he or she was unlikely to pose a threat to others. N.J.S.A. 2C:7 -

2(f). Because C.K. committed an offense enumerated under section (g), he was

unable to petition for termination of the lifetime reporting requirements after

fifteen years. C.K., 233 N.J. at 47-48.

      When C.K. was twenty-three years old, the State charged him with

aggravated sexual assault of his adopted brother, who claimed that C.K. began

sexually assaulting him when he was seven years old, and C.K. was fifteen years

old, and continued doing so for two years. C.K., 233 N.J. at 49. Between the

time that the assaults ended, and the brother reported them to police, C.K. had

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graduated college with a bachelor's degree in psychology and had earned a

master's degree in counseling. Ibid. He was working as a teacher's assistant for

children with autism at the time of his arrest. Id. at 50.

      The State moved to try C.K. as an adult but withdrew the motion after

C.K. agreed to plead guilty in the Family Part. Id. at 49. In 2003, he admitted

to performing oral sex on his brother when he was between the ages of fifteen

and seventeen. Ibid. The court imposed three years of probation and required

C.K. to attend sex-offender treatment and to comply with Megan's Law. Id. at

50. The State classified him as a Tier One offender, the lowest risk category for

reoffending, but because he was adjudicated delinquent for a section (g)

enumerated offense, C.K. was subject to the lifetime registration and

notification requirements with no possibility of petitioning for their termination.

Id. at 47-48.

      The Supreme Court agreed that C.K.'s arguments and supporting evidence

were compelling, and it declared section (f) of N.J.S.A. 2C:7-2 unconstitutional

under the substantive due process guarantee of Article I, Paragraph 1 of the New

Jersey Constitution. Id. at 48. The Court found that the statute's permanent bar

from termination of the reporting requirements lacked a rational relation to any

legitimate government objective. Ibid. The purpose of the registration and

notification requirements was "to 'permit law enforcement officials to identify

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and alert the public' about sex offenders who may pose a danger to children." Id.

at 59 (quoting N.J.S.A. 2C:7-1(a)). But the lifetime reporting requirement was

based only on a presumption that the offender would forever be a danger to

society. Id. at 66. The evidence disproved this presumption. Id. at 76.

        After discussing the principles set forth in Miller, Zuber, and other case

law regarding the differences between juveniles and adults, the Court said in

C.K.:

               Our laws and jurisprudence recognize that juveniles are
               different from adults—that juveniles are not fully
               formed, that they are still developing and maturing, that
               their mistakes and wrongdoing are often the result of
               factors related to their youth, and therefore they are
               more amenable to rehabilitation and more worthy of
               redemption.

               [Id. at 67.]

These principles negated the notion that juvenile sex offenders would forever

pose a threat to society so as to justify lifetime registration requirements. Ibid.

        C.K. had not committed any crime in twenty years and had complied with

his reporting requirements. Id. at 76. As noted, he earned an advanced degree

and consistently maintained employment. Ibid. He was a contributing member

of society, and a number of experts opined that he posed little threat of

reoffending.     Ibid.   Yet, "[s]olely because of the nature of the offense he

committed as a juvenile, C.K. is presumed under subsection (g) to be a

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permanent, lifetime risk to the safety of the public." Id. at 77. That presumption

was "not supported by scientific or sociological studies, our jurisprudence, or

the record in this case." Ibid.    It therefore did not further a legitimate state

interest and did not withstand scrutiny under Article I, Paragraph 1 of our

Constitution. Ibid.

      C.K. does not compel a ruling by this court that the thirty-year mandatory

minimum term for murder is unconstitutional. The statute at issue there was not

a criminal punishment statute challenged as cruel and unusual, but , rather, was

a regulatory statute challenged on substantive due process grounds. While the

Court relied in C.K., in part, on the principles set forth in Miller and Zuber

regarding the differences between juveniles and adults, the Court's decision

fundamentally was based on the lack of rational basis for the presumption that

all juvenile sex-offenders will forever be a danger to society.

      We decline to read the Court's decision in C.K. as expansively as Comer

wishes, and to repudiate the precedents in Pratt and Johnson. We must be

mindful that as an intermediate appellate court, our institutional role is limited.

See, e.g., Williams v. Raymour Furniture Co., Inc., 449 N.J. Super. 559, 564 n.3

(App. Div. 2017). The criminal statutes are presumptively valid, and we are not

persuaded that the defense has overcome that presumption. See, e.g., State v.

Pimentel, 461 N.J. Super. 468, 491 (App. Div. 2019) (upholding a statute

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mandating a minimum jail term for repeat drunk driving offenders).

      As the State argues, the actions (and inactions) of our Legislature show

that it still approves of courts trying certain juveniles as adults and subjecting

them to adult punishment. Although the Legislature has increased the age of

waiver to fifteen, it nonetheless maintained the process of trying certain

juveniles as adults. When it recently amended the murder statute to conform

with Miller and Zuber by eliminating the possibility of a life without parole

term for juveniles tried as adults, it nevertheless maintained the thirty-year

minimum for all offenders.

      Despite its substantial research and advocacy, the defense has failed to

establish that the thirty-year parole bar as applied to juvenile murderers fails to

conform with current standards of decency or "is such as to shock the general

conscience and to violate principles of fundamental fairness." Pratt, 226 N.J.

Super. at 325. Although Comer eloquently raises a number of policy arguments

that support imposition of a lesser term on juveniles, he has not shown that a

thirty-year minimum is grossly disproportionate to the offense.

      Murder is the most serious crime that a person can commit. Even taking

into account the articles and cases Comer cites from a few other jurisdictions,

we are not prepared to upset settled law and declare a thirty-year minimum is

grossly disproportionate to that crime when it is committed by a juvenile.

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      Nor has the United States Supreme Court ever held this. As that Court

noted in Graham, although the Eighth Amendment imposes certain limitations,

society is still generally entitled to impose severe punishments for severe crimes.

560 U.S. at 71. Murder is one of them.

      We have serious doubts that a thirty-year minimum imposed upon a

juvenile offender constitutionally amounts to a life without parole ("LWOP")

sentence or its functional equivalent. Where, as here, the juvenile commits the

murder at the age of seventeen, he will be eligible for parole at approximately

the age of forty-seven, assuming no other prior sentences need to be completed

first. We recognize the Court in Zuber rejected the use of life expectancy tables

to determine whether a sentence amounts to an LWOP sentence. Zuber, 227 N.J.

at 450. Even so, we are unpersuaded that a prospect of release before the age of

fifty is tantamount to a life sentence. The thirty years re-imposed here on Comer

at his resentencing did not violate any Supreme Court holdings.

                                       III.

      The issues before us are complex and have been well advocated. After

reflecting upon them carefully, we are not convinced that it is appropriate for

this intermediate appellate court to discard longstanding precedent, particularly

when no dispositive holding of the Supreme Courts of our nation or state

compels such drastic action.

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                                       29
      The debate over applying the thirty-year minimum to juvenile murderers

should instead proceed in the Legislature, subject of course to the ultimate

authority of the Supreme Court to assure compliance with the Constitution. In

the meantime, James Comer has received a very substantial reduction of his

original sentence. There is no constitutional imperative to go further.

      Affirmed.




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