                                NOT FOR PUBLICATION WITHOUT THE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-4419-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT Q. COOK, a/k/a
LITTLE RAH, ROBERT
QUENTIN COOK, and
ROBERT QUINTIN COOK,

     Defendant-Appellant.
________________________

                   Submitted March 9, 2020 – Decided March 23, 2020

                   Before Judges Geiger and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 04-03-1113.

                   Robert Cook, appellant pro se.

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

PER CURIAM
      Defendant Robert Cook appeals from an April 26, 2019 Law Division

order denying his motion to correct an illegal sentence. We affirm substantially

for the reasons stated in the cogent written opinion of Judge Mayra V. Tarantino,

which we amplify with the following comments.

                                      I.

      On March 24, 2004, defendant was charged with first-degree knowing or

purposeful murder, contrary to N.J.S.A. 2C:11-3(a)(1) or (2), third-degree

unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b), and second-

degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A.

2C:39-4(a). The charges stemmed from the death of Reginald Taylor after he

was shot in the head at point blank range while standing on a street in Irvington.

Two eyewitnesses identified defendant, then nineteen-years old, as the shooter.

After a jury trial, defendant was convicted on all counts.

      On July 21, 2006, defendant was sentenced to a fifty-year custodial term,

subject to an eighty-five percent period of parole ineligibility pursuant to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced

to concurrent terms of four years on the unlawful possession of a weapon

conviction, and seven years on the possession of a handgun for an unlawful

purpose conviction.


                                                                           A-4419-18T4
                                           2
      Defendant appealed and we affirmed his convictions and sentences but

issued a limited remand to merge the possession of a weapon for an unlawful

purpose conviction with the murder conviction. State v. Cook, No. A-0727-06

(App. Div. April 3, 2009) (Cook I). The Supreme Court denied certification.

State v. Cook, 200 N.J. 207 (2009). Defendant also filed a pro-se petition for

post-conviction relief (PCR) which the trial court denied. We affirmed, State v.

Cook, No. A-3666-11 (App. Div. June 21, 2013), and the Supreme Court again

denied certification. State v. Cook, 217 N.J. 53 (2014).

      Defendant then filed the instant motion to correct an illegal sentence. He

argued that N.J.S.A. 2C:11-3 was unconstitutional because it allowed for

arbitrary and capricious sentencing for defendants convicted of first-degree

murder, his sentence was grossly disproportionate because he was a youthf ul

offender sentenced to the equivalent of life without parole, and he should be

allowed to present evidence of his rehabilitation in a re-evaluation of the

aggravating and mitigating factors applicable to his sentence.

      Judge Tarantino denied defendant's motion in an April 26, 2019 order. In

an accompanying written opinion, she found that "it was within [the sentencing

judge's] discretion to sentence [defendant] to [fifty] years in prison, subject to

[NERA]," and that "[t]he fact that other defendants have received greater or


                                                                          A-4419-18T4
                                        3
lesser sentences for first[-]degree murder [was] irrelevant." Judge Tarantino

further found that defendant's sentence was not "grossly disproportionate" as

defendant was nineteen years old when he was sentenced and did not fall within

the class of juvenile defendants protected by Graham v. Florida, 560 U.S. 48

(2010) and Miller v. Alabama, 567 U.S. 460 (2012). Finally, she concluded that

defendant's rehabilitation efforts were not relevant to any of the exceptions set

forth in Rule 3:21-10(b).

      Defendant filed this appeal, raising the following arguments which largely

mirrored those he made in the Law Division:

            POINT I

            DEFENDANT'S SENTENCE IS ILLEGAL AND
            UNCONSTITUTIONAL AND THEREFORE MUST
            BE SET ASIDE AND VACATED.

            POINT II

            [THE] TRIAL COURT ERRED WHEN IT FOUND
            DEFENDANT'S SENTENCE WAS NOT GROSSLY
            DISPROPORTIONATE AND THEREFORE IN
            VIOLATION OF THE UNITED STATES AND NEW
            JERSEY CONSTITUTIONS; THUS DEFENDANT'S
            SENTENCE IS ILLEGAL IN NATURE AND MUST
            BE CORRECTED.




                                                                         A-4419-18T4
                                       4
            POINT III

            DEFENDANT SEEKS TO PRESENT EVIDENCE OF
            HIS REHABILITATION IN SUPPORT OF HIS
            MOTION TO CORRECT AN ILLEGAL SENTENCE.

                                       II.

      A petition to correct an illegal sentence can be filed at any time. R. 3:21–

10(b)(5); State v. Zuber, 227 N.J. 422, 437 (2017); State v. Acevedo, 205 N.J.

40, 47 n.4 (2011). An illegal sentence is defined as one "not imposed in

accordance with the law." Zuber, 227 N.J. at 437 (quoting Acevedo, 205 N.J. at

45). Whether a defendant's sentence is illegal or unconstitutional is "an issue of

law subject to de novo review." State v. Drake, 444 N.J. Super. 265, 271 (App.

Div. 2016) (citing State v. Pomianek, 221 N.J. 66, 80 (2015)).

                                     III.

      With respect to defendant's first argument, he maintains his sentence was

both unconstitutional and illegal because the applicable sentencing statutes are

ambiguous, his sentence is inconsistent with other defendants convicted of first-

degree murder, and he was entitled to discovery with respect to his PCR claims.

We disagree.

      Contrary to defendant's claim, neither N.J.S.A. 2C:11-3(b)(1) nor

N.J.S.A. 2C:43-7.2(d)(1) are unconstitutionally ambiguous. Defendant was


                                                                          A-4419-18T4
                                        5
sentenced within the legal range for first-degree murder, as clearly prescribed

by N.J.S.A. 2C:11-3(b)(1). Indeed, N.J.S.A. 2C:11-3(b)(1) provides that "a

person convicted of murder shall be sentenced . . . to a specific term of years

which shall be between [thirty] years and life imprisonment of which the person

shall serve [thirty] years before being eligible for parole." (emphasis added).

See also Cannel, N.J. Criminal Code Annotated, cmt. 4 on N.J.S.A. 2C:11-3

(2018) ("Murder has always been a crime of the first degree, and, as amended in

2007, the statute provides for only three sentences: [thirty] years without parole;

a specific term of years between [thirty] years and life imprisonment, with

[thirty] years required to be served before the person is eligible for parole; and

life imprisonment without parole.").

      There is nothing illegal under the circumstances here, which involved an

execution-style murder, of the court imposing a fifty-year sentence subject to an

85% period of NERA parole ineligibility. As we noted when we affirmed

defendant's sentence on direct appeal, "the trial judge's reasons for giving the

sentence he imposed [were] well documented in the record and [were] limited

to statutorily prescribed aggravating factors." Cook I, slip op. at 14.

      We also find no support for defendant's claim that his sentence is illegal

because other defendants convicted of first-degree murder received sentences


                                                                           A-4419-18T4
                                        6
less than defendant's fifty-year custodial term. As the trial court correctly

observed, that other defendants received different sentences is "irrelevant" to

the sentencing court's considered decision here. Further, the record is devoid of

any evidence regarding those other defendants' criminal histories or the facts

and circumstances of their crimes. Since the sentence in this case was within

the statutory range for first-degree murder, the aggravating and mitigating

factors were properly considered and supported by credible evidence, and the

sentence is not shocking to our judicial conscience, it is not illegal.

                                        IV.

      We turn to defendant's next argument that his sentence was grossly

disproportionate and violated both the Federal and State Constitutions primarily

because he was a youthful defendant effectively sentenced to life-without-

parole. He contends that since he is "expected to live until age [sixty-four], [his]

fifty . . . year sentence effectively amounts to life-without-parole, which is the

second most severe penalty available."

      In three landmark cases, the United States Supreme Court relied on

scientific data to find that age is an important factor when assessing juvenile

culpability at sentencing. See Roper v. Simmons, 543 U.S. 551, 568-72 (2005);

Graham, 560 U.S. at 68-69; Miller, 567 U.S. at 471-73. In Roper, the Court held


                                                                            A-4419-18T4
                                         7
that the Eighth Amendment protection against cruel and unusual punishment

prohibits sentencing juveniles under eighteen years old to the death penalty. 543

U.S. at 568, 578. In Graham, the Court held that the Eighth Amendment also

prohibits sentencing juveniles to life without parole for non-homicide offenses.

560 U.S. at 74-75. Finally, in Miller, the Court determined that a sentencing

judge must consider youth-related factors "before concluding that life without

any possibility of parole was the appropriate penalty." 567 U.S. at 479. The

Miller Court stated that "although we do not foreclose a sentencer's ability to

make that judgment in homicide cases, we require it to take into account how

children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison." Id. at 480.

      In Zuber, the New Jersey Supreme Court noted that "in the past decade,

the United States Supreme Court has sent a clear message . . . : 'children are

different' when it comes to sentencing, and 'youth and its attendant

characteristics' must be considered at the time a juvenile is sentenced to life

imprisonment without the possibility of parole." 227 N.J. at 429 (emphasis

added) (quoting Miller, 567 U.S. at 465, 480).            The Court approved

consideration of a number of sentencing factors cited in Miller and held "that[ ]

before a judge imposes consecutive terms that would result in a lengthy overall


                                                                         A-4419-18T4
                                        8
term of imprisonment for a juvenile, the court must consider the Miller factors

along with other traditional concerns." Ibid. (emphasis added) (citing State v.

Yarbough, 100 N.J. 627 (1985)).1

      Zuber and the aforementioned federal cases that defendant primarily relies

on have no impact on our review of his sentence as defendant was not a juvenile

when he shot Taylor. Indeed, he was a nineteen-year-old adult. There is simply

no legal basis for treating defendant as if he had been a juvenile, that is, under

the age of eighteen, when he committed that crime. See N.J.S.A. 2A:4A-22(a)

(Code of Juvenile Justice definition of a juvenile as an individual under the age

of eighteen).

                                        V.

      Finally, we address defendant's argument that evidence of his

rehabilitation warrants a re-evaluation of the aggravating and mitigating factors

applicable to his sentence.

      As our Supreme Court held in State v. Randolph, 210 N.J. 330, 354

(2012), at a resentencing the sentencing court should consider all relevant


1
   These factors include: "'the mitigating qualities of youth' . . . including
immaturity and 'failure to appreciate risks and consequences'; 'family and home
environment'; family and peer pressures; 'an inability to deal with police officers
or prosecutors' or the juvenile's own attorney; and 'the possibility of
rehabilitation.'" Zuber, 227 N.J. at 429 (quoting Miller, 567 U.S. at 478).
                                                                           A-4419-18T4
                                        9
evidence and factors as of the day defendant stands before the court. Thus, a

sentencing court may consider defendant's conduct and comportment, whether

positive or negative, and defendant is entitled to bring to the court's attention

any rehabilitative or other constructive measures he has taken since he was

sentenced.

      As discussed, however, defendant here is not entitled to a reevaluation of

his sentence as it is not illegal. And, although we do not minimize defendant's

laudable rehabilitation efforts after his convictions, evidence of those efforts has

no bearing on whether his sentence was illegal or warrants resentencing pursuant

to Rule 3:21-10(b)(5). As we stated in State v. Bass, 457 N.J. Super. 1, 14 (App.

Div. 2018), "defendant's sentence is not illegal because he now claims to be

rehabilitated as a result of his incarceration."      Rather, consideration of a

defendant's rehabilitation while incarcerated, "is exclusively the province of the

parole board and not a means of collateral attack on defendant's sentence –

which has been affirmed on direct appeal." Ibid.

                                         VI.

      To the extent we have not addressed any of defendant's arguments, it is

because we have determined that they lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).


                                                                            A-4419-18T4
                                         10
Affirmed.




                 A-4419-18T4
            11
