                                NOT FOR PUBLICATION WITHOUT THE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-4587-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WALIF SMITH,

     Defendant-Appellant.
_______________________

                   Argued telephonically June 1, 2020 –
                   Decided July 7, 2020

                   Before Judges Sumners, Geiger and Natali

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 93-12-4185.

                   James K. Smith, Jr., Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; James K. Smith, Jr., of
                   counsel and on the briefs; Stephen William Kirsch, 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).

PER CURIAM

      Defendant Walif Smith robbed and murdered an elderly woman as a

juvenile. After being waived to adult court and convicted by a jury, he was

sentenced to a life term with a thirty-year parole-bar. In 2017, Smith moved to

correct an illegal sentence under State v. Zuber, 227 N.J. 422 (2017). The court

denied his motion finding Smith's sentence was not the functional equivalent of

life without parole. Smith challenges that decision in this appeal.

      Additionally, Smith claims for the first time that he was fourteen years

old when he committed his crimes. He argues that N.J.S.A. 2A:4A-26.1(c)(1)

(the revised waiver statute), which increased the minimum age for waiver to

adult court from fourteen to fifteen years old, should be applied retroactively to

his case. If this were the case, Smith would be resentenced as a juvenile in the

Family Part because the revised waiver statute does not permit fourteen-year-

old offenders to tried and sentenced as adults.      Smith also argues that the

possibility of being paroled is an inadequate remedy for what he labels a de facto

life sentence.

      We hold that the revised waiver statute does not apply retroactively to

Smith, who was waived to adult court, convicted by a jury, and sentenced long

                                                                          A-4587-17T2
                                        2
before the revision became effective. We further hold that his life term with a

thirty-year parole-bar is not the functional equivalent of life without parole and

does not violate the Eighth Amendment's prohibition of cruel and unusual

punishment. Accordingly, we affirm.

                                        I.

      In 1990, Smith approached a seventy-nine-year-old woman in her car,

robbed her, and shot her in the head. Smith was indicted in 1993 on charges of

murder, felony murder, first-degree armed robbery, third-degree unlawful

possession of a handgun, and second-degree possession of a handgun with an

unlawful purpose.

      Smith was waived by the Family Part judge to adult court pursuant to the

prior waiver statute, N.J.S.A. 2A:4A-26(a). A jury convicted Smith of felony

murder, the lesser included offense of aggravated manslaughter, armed robbery,

and the two weapons offenses.         After merging the robbery, aggravated

manslaughter, and possession of a weapon with an unlawful purpose counts into

the felony murder, the trial court sentenced Smith to life imprisonment with a

thirty-year parole-bar and a concurrent four-year term for the unlawful

possession of a weapon. The judgment of conviction was entered on November

9, 1994.


                                                                          A-4587-17T2
                                        3
      Notably, the presentence report twice lists Smith's date of birth as being

in February 1975 in two separate places. During the sentencing hearing, defense

counsel stated he had no exceptions to the report. The judgment of conviction

likewise lists a date of birth in February 1975.      The offenses occurred on

September 21, 1990. Thus, according to the presentence report and judgment of

conviction, Smith was fifteen years old when he committed the murder.

      Smith challenged his conviction and sentence on direct appeal, and we

affirmed. State v. Smith, No. A-4621-94 (App. Div. Feb. 18, 1997). The

Supreme Court denied certification. State v. Smith, 151 N.J. 72 (1997). We

detailed the crimes, Smith's subsequent conduct, statements, and the

investigation conducted by the police in that opinion and need not repeat them

here. Smith, slip op. at 2-10. Smith argued that his sentence "was manifestly

excessive and unsupported by a proper weighing of aggravating and mitigating

factors." Id. at 11. We rejected this argument, finding it meritless. Id. at 20.

      In 2007, Smith filed a petition for post-conviction relief (PCR), claiming

ineffective assistance of trial and appellate counsel. The PCR court denied his

petition on the merits. We affirmed. State v. Smith, No. A-1651-07 (App. Div.

Jan. 2, 2009). The Supreme Court denied certification. State v. Smith, 199 N.J.

132 (2009).


                                                                          A-4587-17T2
                                        4
      In March 2013, Smith filed a pro se petition to vacate or correct his

sentence pursuant to Miller v. Alabama, 567 U.S. 460 (2012). Defense counsel

was appointed to represent him. Smith claimed his sentence was illegal and

violated the Eighth Amendment, arguing the sentencing judge failed to conduct

the proportionality analysis required by Miller. Specifically, Smith claimed the

judge failed to consider his youth and did not adequately account for his "less

developed brain and lack of maturity" when imposing a life sentence.

      The trial court heard oral argument in June 2013. Defense counsel argued

Miller rendered N.J.S.A. 2C:11-3(b) unconstitutional because it requires the

sentencing court to impose a period of parole ineligibility of no less than thirty

years, thereby preventing the court from individualizing or tailoring the sentence

specifically to a juvenile.   Counsel also argued Miller should be applied

retroactively because it is based upon the Eighth Amendment's "fundamental

right to be free of cruel and unusual punishment" and did not establish a new

rule of law.

      The State argued Miller did not apply retroactively to Smith's sentence

because it establishes a new procedural, rather than substantive, rule of law. It

also maintained that Smith's sentence was appropriate under the totality of the

circumstances.


                                                                          A-4587-17T2
                                        5
      The court entered an August 21, 2013 order, accompanied by written

decision, denying the petition. It found Miller inapplicable because Smith "was

not sentenced to a mandatory life sentence without the possibility of parole," but

rather would "be eligible for parole thirty (30) years from his sentencing date."

The court further found the sentencing court had considered Smith's youth, his

sentence was "grounded in competent, reasonably credible evidence," and

concluded the sentence did "not shock the conscience."

      Smith appealed, raising numerous issues challenging the constitutionality

of mandatory sentences imposed on juvenile offenders.          We found Smith's

arguments lacked merit and affirmed substantially for the reasons expressed by

the trial court. State v. Smith, A-0679-13 (App. Div. Jan. 8, 2016). The

Supreme Court denied certification. State v. Smith, 225 N.J. 339 (2016). We

added the following comment:

            The Court's decision [in Miller] did not . . . prohibit the
            mandatory imposition of a term-of-years sentence for
            juvenile offenders, nor did it prohibit the discretionary
            imposition of a life sentence with a mandatory period
            of parole ineligibility for juveniles, as was the case
            here.

                  Unless we are confronted with a court sentencing
            a juvenile offender to a mandatory term of life without
            the possibility of parole, the constitutional infirmities
            identified in Miller do not apply.


                                                                          A-4587-17T2
                                        6
            [Id., slip op. at 10 (citations omitted).]

      In May 2017, Smith moved to correct an illegal sentence pursuant to

Zuber. Although initially agreeing that Smith was entitled to a new sentencing

hearing under Zuber, the motion court ultimately reached the opposite

conclusion, issuing an April 20, 2018 oral decision and order denying the

motion. This appeal followed.

      The appeal was scheduled for hearing on a sentencing oral argument

calendar, but at Smith's request, we transferred it to a plenary calendar and

allowed him to amend his notice of appeal. Smith then submitted a certified

copy of a birth certificate indicating he was born in February 1976, making him

fourteen at the time of his crimes. Smith's amended notice of appeal included a

challenge to his sentence as unlawful under the revised waiver statute.

      Smith raises the following points for our consideration.

            POINT I

            THE 2015 STATUTE, N.J.S.A. 2A:4A-26.1(c)(1),
            WHICH CHANGED THE AGE TO 15-PLUS FOR
            WAIVER FROM JUVENILE TO ADULT COURT,
            RETROACTIVELY APPLIES TO DEFENDANT'S
            CASE;   CONSEQUENTLY,      A    JUVENILE
            SENTENCING   PROCEEDING     SHOULD      BE
            SCHEDULED AND DEFENDANT SENTENCED AS
            A JUVENILE OFFENDER, AND HIS ILLEGAL
            ADULT   CONVICTIONS    AND    SENTENCES
            SHOULD BE VACATED.

                                                                          A-4587-17T2
                                         7
A. The New Jersey Juvenile-Waiver Changes are
Clearly Ameliorative; For Either of Two Separate
Reasons, the "Savings Statute," N.J.S.A. 1:1-15,
Mandates Retroactive Application of the 15-Plus
Waiver Rule to Defendant's Case, Fundamental
Fairness Requires the Same Result.

     (1) The New Juvenile Waiver Statute,
Especially the New Prohibition on Waiver of
Under-15-Year-Olds, is Plainly an Ameliorative
Correction to the Prior Waiver Statute.

      (2)    Because    the    Recently-Enacted
Restriction in the New Juvenile-Waiver Statute –
Regarding Waiver Only of Those 15 or Older at
the Time of the Offense – Merely Limits the
Circumstances in Which Transfer of the Cases
From the Chancery Division to the Law Division
May Occur, It Addresses a "Mode of Procedure"
in the Case, and, Thus, Should be Applied
Retroactively to Defendant.

      (3) Alternatively, Even if the 15-Plus
Waiver Rule is Viewed as a Direct Change to an
"Offense Committed" or a "Penalty . . . Incurred,"
It Should Be Retroactively Applied to
Defendant's Case. Even if this Court views the
15-Plus Change in the Waiver Statute to be a
Direct Change to Liability and/or Penalty for
Juveniles Rather Than a Procedural Change as in
Y.S., that Statutory Change Should Still be
Retroactively Applied to Defendant's Case Under
the Savings Statute. As Noted, the First Portion
of the Savings Statute Has Been Interpreted –
Despite its Strict-Sounding Language (i.e., that
there Should be No retroactivity "Unless it is
Expressly Declared in the (New) Act") – to
Mandate that a Statute be Applied Retroactively

                                                     A-4587-17T2
                     8
                   When the "Expression of Legislative Intent" is
                   "Either Express . . . or Implied[;] that is, [When]
                   Retroactive Application May be Necessary to
                   Make the Statute Workable or to Give it the Most
                   Sensible Interpretation." [Gibbons v. Gibbons,
                   86 N.J. 515, 522 (1981)].

                   B. The Proper Remedy Is to Vacate the Illegal
                   Adult Conviction and Sentence, Transfer the
                   Matter to the Chancery Division, Convert the
                   Finding of Guilt to a Finding of Delinquency on
                   Those Same Counts, and Set a Date for
                   Sentencing as a Juvenile Matter.

             POINT II

             PURSUANT TO THE PRINCIPLES SET FORTH IN
             STATE V. ZUBER, JUVENILE OFFENDERS SUCH
             AS WALIF SMITH WHO ARE SERVING LIFE
             SENTENCES SHOULD BE RESENTENCED AND
             GIVEN THE OPPORTUNITY TO DEMONSTRATE
             THAT THEY HAVE BEEN REHABILITATED AND
             ARE AMENDABLE TO RELEASE FROM PRISION.

                                         II.

      We first address the retroactivity of the revised waiver statute. In August

2015, the Legislature repealed the juvenile waiver statute and replaced it with

the revised statute, effective March 1, 2016. L. 2015, c. 89, §§ 1-7.

      Smith argues the revised waiver statute, which precludes waiver to adult

court of juveniles fourteen or less at the time of their crimes, should retroactively

apply to him because: (1) it is an ameliorative statute intended to remedy in


                                                                             A-4587-17T2
                                         9
subjecting young offenders to harsh adult punishment; and (2) it changes the

procedure by which juveniles are transferred to adult court, thus entitling it to

retroactive application under N.J.S.A. 1:1-15 (the Savings Statute). He also

claims that it would be cruel to deny retroactive application of the statute. Smith

does not seek a new trial but requests his conviction be converted to a

delinquency adjudication and that he be resentenced as a juvenile by the Family

Part.

        The State claims that we should not address this argument because Smith

raised it for the first time on appeal and questions the authenticity of Smith's

purported birth certificate. We note that Smith previously moved for final

remand or, in the alternative, to supplement the record. We entered a November

19, 2018 order allowing Smith to file an amended notice of appeal "raising the

retroactivity issue." However, the State is correct when it asserts that no court

has determined Smith's actual date of birth.

        Our Supreme Court's recent opinion in State v. J.V., ___ N.J. ___ (2020),

resolves whether the revised waiver statute should be applied prospectively or

retroactively.1 The Court held that the statute only applies prospectively "to


1
  We have considered the letters submitted by the parties pursuant to Rule 2:6-
11(d), calling the court's attention the significance of J.V., issued after the
submission of their briefs.
                                                                           A-4587-17T2
                                       10
those juvenile waiver proceedings conducted after the statute's effective date."

Id., slip op. at 15.

      In April 2013, J.V., then seventeen years old, robbed and repeatedly

stabbed a man, causing serious injuries. Id. at 3. J.V. was charged with acts of

delinquency which, if committed by an adult, would have constituted attempted

murder, armed robbery, and two weapons charges. Id. at 4-5. In October 2013,

the State's motion to waive J.V. to adult court was granted and he subsequently

pled guilty to attempted murder and robbery and was sentenced in September

2015. Id. at 6-7.

      The Court noted that "[g]enerally, new criminal statutes are presumed to

have solely prospective application." Id. at 13. "To overcome the presumption

of prospective application, we must find the 'Legislature clearly intended a

retrospective application' of the statute . . . ." Id. at 14 (quoting Weinstein v.

Inv'rs Sav. & Loan Ass'n, 154 N.J. Super. 164, 167 (App. Div. 1977). The Court

recognized the "three exceptions to the presumption of prospective application

of a new law," but explained that "we look to those exceptions only in instances

'where there is no clear expression of intent by the Legislature that the statute is

to be prospectively applied only.'" Id. at 14-15 (quoting Gibbons v. Gibbons,

86 N.J. 515, 522 (1981)).


                                                                            A-4587-17T2
                                        11
      The Court noted that the revised waiver statute "was not made effective

immediately, but instead, became effective on March 1, 2016, which was "years

after J.V. was waived to adult court." Id. at 2, 7 (citing L. 2015, c. 89, § 7). The

Court found this "is clear evidence that the Legislature intended the statute to

apply prospectively only." Id. at 15.

      "Based on the plain and unambiguous language of the statute, [the Court

found] the Legislature intended to afford Section 26.1(c)(3) only prospective

application to those juvenile waiver proceedings conducted after the [revised]

statute's effective date." Id. at 15. Therefore, the revised waiver statute does

not apply to "a juvenile who was waived to adult court, pled guilty, and was

sentenced long before Section 26.1 became effective." Id. at 21. Consequently,

the Court determined it "need not consider the exceptions to the presumption of

prospective application," or "the parties' Saving Statute arguments." Id. at 16,

21.

      Smith murdered his victim on September 21, 1990. He was waived to

adult court in August 1993; indicted in December 1993; arrested in January

1994; found guilty by a jury in October 1994; and sentenced on November 9,

1994. Since Smith was waived to adult court, convicted, and sentenced long

before the revised waiver statute became effective, the revised waiver statute


                                                                            A-4587-17T2
                                        12
does not apply to him. Id. at 21.2 Accordingly, there is no basis to convert his

conviction to a delinquency adjudication or to remand for resentencing by the

Family Part.

                                      III.

      We next address Smith's contention that the motion court erred in denying

resentencing under Zuber and Miller. He claims that juvenile offenders "serving

life sentences should be resentenced and given the opportunity to demonstrate

that they [are] rehabilitated and are amendable to release from prison."

      Smith claims he is not the same violent young man that he was thirty years

ago when he committed his crimes. He asserts that at a resentencing hearing,

he would present material information regarding the circumstances of his

childhood and the factors set forth in Miller, 567 U.S. at 477. Smith claims this

would require an evidentiary hearing so that he could introduce "testimony from

family members, . . . psychological or psychiatric evaluations, and . . . prison

disciplinary and achievement records." Absent an evidentiary hearing, he will

be denied "some meaningful opportunity to obtain release based on




2
  Consequently, we need not address whether Smith was fourteen when he
committed the crimes, as it does not affect the outcome of this appeal.
                                                                           A-4587-17T2
                                      13
demonstrated maturity and rehabilitation." Zuber, 227 N.J. at 443 (quoting

Graham v. Florida, 560 U.S. 48, 75 (2010)).

      Relying on State v. Bass, 457 N.J. Super. 1 (App. Div. 2018), the State

contends Smith's life term with a thirty-year parole-bar is not the functional

equivalent of a life sentence. It emphasizes that Smith will be eligible for parole

in 2024 when he is forty-seven years old.

      The motion court found the sentence was not an unconstitutional de facto

life term because Smith will soon be eligible for parole after serving thirty years.

Based on our careful review of the record, we concur.

      A similar request for relief was denied in Bass, where the defendant

received a life term with a thirty-five-year parole-bar. 457 N.J. Super. at 4. We

affirmed the trial court's denial of a request for resentencing finding that the

sentence was not the functional equivalent of life without parole. Id. at 13-14.

In so holding, we rejected Bass's argument that the rehabilitative steps he had

taken during incarceration rendered his sentence illegal. Id. at 14. While we

did "not minimize" the numerous steps Bass took in prison to rehabilitate

himself, we concluded that "consideration of these accomplishments [was]

exclusively the province of the parole board and not a means of collateral attack

on [a] sentence – which has been affirmed on direct appeal." Ibid.


                                                                            A-4587-17T2
                                        14
       In State v. Pratt, 226 N.J. Super. 307 (App. Div. 1988), the defendant was

waived to adult court and convicted of murder and two weapons he committed

at age fifteen. Id. at 308-09. The court sentenced him to a thirty-year term

without parole and imposed concurrent terms for the weapons offenses. Id. at

309.

       On appeal, Pratt argued the statutory minimum of thirty years'

imprisonment without parole violated the Federal and State Constitutions

because "it fails to accord individualized sentencing treatment to juveniles." Id.

at 325. We rejected that argument, relying on State v. Johnson, 206 N.J. Super.

341 (App. Div. 1985), which held the statutory thirty-year mandatory minimum

did not constitute cruel and unusual punishment as applied to adults. Pratt, 226

N.J. Super. at 324.    In Johnson, we noted that 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." Johnson, 206 N.J. Super. at 348 (citations omitted). In Pratt

we held that the same rationale applied even where the defendant was a juvenile

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

       Although we recognize that Pratt was issued years before Montgomery v.

Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), Graham, Miller, and Zuber, it


                                                                          A-4587-17T2
                                       15
is directly on point and remains good law as to prison terms that are not the

substantial equivalent of life without parole. A thirty-year parole-bar is far from

a life sentence without eligibility for parole, particularly as applied to a juvenile

offender who will be eligible for parole when he is forty-seven years old. In the

absence of a premature death, Smith will have an opportunity to experience

some meaningful years outside of prison.3 See Graham, 560 U.S. at 73.


3
   Smith's sentence stands in stark contrast to the sentences imposed on the
juvenile offenders in Miller, Montgomery, Graham, and Zuber. In Miller, the
juvenile offender was sentenced to mandatory life without parole. 567 U.S. at
465. In Montgomery, the juvenile offender was likewise sentenced to life
without parole. 136 S. Ct. at 726. In Graham, the juvenile offender was
sentenced to life for armed burglary and fifteen years for attempted armed
robbery, which gave him "no possibility of release unless he is granted executive
clemency" because "Florida has abolished its parole system." 560 U.S. at 57.
In Zuber, our Supreme Court summarily remanded the juvenile offender's
consecutive prison sentences aggregating 150 years, subject to a seventy -five-
year aggregate parole-bar, for a first resentencing. State v. Zuber, 111 N.J. 650
(1988). At the first resentencing in 1988, the trial court revised Zuber's sentence
to an aggregate term of 110 years, with a fifty-five-year parole bar; we affirmed
the revised sentence. State v. Zuber, 442 N.J. Super. 611, 614, 635 (App. Div.
2015). The Supreme Court reversed and remanded, holding that the revised
sentence should be analyzed as one that is the functional equivalent of life
without parole, and remanded for the trial court to reconsider Zuber's lengthy
sentence in light of the Miller factors. Zuber, 227 N.J. at 450-53. On remand,
the trial court resentenced Zuber to an aggregate term of eighty-six years, with
an aggregate forty-three-year parole-bar. We remanded for a third resentencing
because the sentencing court did not adequately explain its basis for imposing
consecutive terms under a heightened State v. Yarbough, 100 N.J. 627 (1985)
standard. State v. Zuber, No. A-2677-18 (App. Div. May 6, 2020) (slip op. at
4, 38-40). We did not decide whether the sentence imposed was the functional


                                                                             A-4587-17T2
                                        16
      We adhere to our analysis and holdings in Bass and Pratt and reach the

same conclusion here. Smith's life sentence with the statutory minimum thirty-

year parole-bar is not the functional equivalent of life without parole.         As

correctly noted by the State, Smith will be eligible for parole in February 2024,

when he is forty-seven years old. We recognize that Zuber rejected the use of

general life-expectancy tables to determine whether a sentence amounts to life

without parole. Zuber, 227 N.J. at 450. We are nevertheless unpersuaded that

the prospect for release on parole before the age of fifty is tantamount to a life

sentence without parole.

      Smith acknowledges our holding in Bass but argues the mere possibility

of parole "is insufficient" to remedy the alleged sentencing error. He argues that

in determining whether an inmate is fit for release, the Parole Board "would

have virtually no knowledge about the offender's life and family situation at the

time of the offense." We disagree.

      In Graham, the Court made clear 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


equivalent of life without parole. We are not aware of any published or
unpublished appellate opinion in this State that has found a life term with a
thirty-year parole-bar to be the functional equivalent of life imprisonment.
                                                                           A-4587-17T2
                                       17
term." 560 U.S. at 82. As we have noted, Smith is eligible for parole in less

than four years.

      "The statutory minimum sentence for felony murder is thirty years with

thirty years of parole ineligibility; the maximum is a term of years between thirty

years and life imprisonment with a mandatory thirty[-]year parole ineligibility

period." State v. McQuaid, 147 N.J. 464, 496 (1997) (citing N.J.S.A. 2C:11-

3(b)). Smith's sentence falls within the permissible sentencing range. No court

has held that N.J.S.A. 2C:11-3(b) is unconstitutional because it requires the

sentencing court to impose a period of parole ineligibility of thirty years. We

decline to do so.

      While we recognize that Zuber affords an opportunity to a juvenile

offender to seek relief from a sentence that is the practical equivalent of life

without parole, the Court did not address whether a juvenile offender sentenced

without consideration of the Miller factors to a lengthy parole-bar that is not the

practical equivalent of life without parole, may seek relief from his sentence

other than parole.    Instead, the Court "ask[ed] the Legislature to consider

enacting a scheme that provides for later review of juvenile sentences with

lengthy periods of parole ineligibility, and to consider whether defendants

should be entitled to appointed counsel at that hearing." Zuber, 227 N.J. at 453.


                                                                           A-4587-17T2
                                       18
The court deferred the question of imposing "a maximum limit on parole

ineligibility for juveniles of thirty years" to the Legislature. Ibid.

      The Legislature has previously considered this very issue but has not yet

enacted any legislation on point. See A. 1233 (2018) (a bill that would allow a

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

resentencing ten years after conviction and to be eligible for parole after twenty

years of incarceration); S. 3079 (2017), reintroduced as, S. 428 (2018) (allowing

a juvenile sentenced to thirty years or more without parole to petition for review

of the sentence after thirty years of incarceration if convicted of murder and

twenty years for all other crimes).

      Most recently, two bills have been introduced that would reform the

sentencing of youthful offenders. See S. 2592 (2020) (allowing a sentencing

court to consider the age of a youthful defendant as a mitigating factor); S. 2591

(2020) (requiring the Commissioner of the Department of Corrections to issue a

Certificate of Eligibility for Resentencing to any inmate who committed a crime

as a juvenile, was waived to adult court, received an aggregate prison term of

thirty years or longer, has served at least twenty years of that sentence, and has

not been resentenced or previously sought such relief).




                                                                          A-4587-17T2
                                        19
      We reject the notion that a juvenile offender serving a life term with a

thirty-year parole-bar is automatically entitled to an evidentiary hearing, before

his initial parole eligibility date, without proffering any facts or evidence

supporting his claim that he should be released from prison early to comply with

Miller. We do not view Zuber as requiring an evidentiary hearing without first

presenting a prima facie case for such relief. The juvenile offender must present

more than bald, unsupported assertions in his moving papers. We hold the

juvenile offender must establish a prima facie case in support of relief under

Miller before being entitled to an evidentiary hearing or resentencing.4


4
   In other contexts, a defendant seeking relief from a conviction or sentence
must make a satisfactory preliminary showing to be entitled to an evidentiary
hearing. A defendant seeking post-conviction relief "shall be entitled to an
evidentiary hearing only upon the establishment of a prima facie case in support
of post-conviction relief." R. 3:22-10(b). Similarly, "the burden rests on the
defendant, in the first instance, to present some plausible basis for his request"
to set aside a guilty plea. State v. Slater, 198 N.J. 145, 156 (2009) (quoting State
v. Smullen, 118 N.J. 408, 416 (1990)). One factor is "[w]hether the defendant
has asserted a colorable claim of innocence." Id. at 150. Courts "consider
whether a defendant's assertion of innocence is more than a blanket, bald
statement and rests instead on particular, plausible facts." Id. at 159. Likewise,
a defendant seeking disclosure of the identity of a nonparticipant confidential
informant "must advance more than the ungrounded hope that if the informer
were called as a witness, he would say something which might possibly discredit
other witnesses and lead to an acquittal." State v. Morelli, 152 N.J. Super. 67,
74-75 (App. Div. 1977) (citing State v. Oliver, 50 N.J. 39, 42 (1967)). The court
"should not honor frivolous demands for information on unsubstantiated
allegations of need." State v. Milligan, 71 N.J. 373, 393 (1976). The defense


                                                                            A-4587-17T2
                                        20
      Notably, Smith proffered no evidence of progress he has made while in

prison the last twenty-six years. He submitted no proof of any programs he has

completed, educational goals he has achieved, job skills he has acquired, the

absence of inmate infractions, or that he is better able to deal with the factors

that led to his criminality. In short, Smith has not established a prima facie case

of reform, rehabilitation, or maturation in support of his claim for relief.

Accordingly, he has not presented any factual basis warranting an evidentiary

hearing or resentencing under Zuber.

      Although we do not foreclose Smith from a future application for

resentencing based on his reformation efforts, we decline to hold in the abstract

whether Rule 3:21-10(b) or some other procedure would furnish such a pathway

for future relief. We also do not decide here the appropriate amount of time

served to justify such motions. Any such decisions should be based on a

properly supported application. See R. 3:21-10(c) ("A motion filed pursuant to

[Rule 3:21-10(b)] shall be accompanied by supporting affidavits and such other

documents and papers as set forth the basis for the relief sought.").




must show that "disclosure of his identity is essential to assure a fair
determination of the issues." N.J.R.E. 516.
                                                                           A-4587-17T2
                                       21
        For these reasons, we affirm the denial of Smith's motion to correct his

sentence without prejudice to the possibility of a future application for relief.

        In addition, to the extent Smith may have or subsequently develops

evidence of achieving reformation, rehabilitation, maturation, and his fitness to

return to society, he can present it to the parole board when he is eligible for

parole. Bass, 457 N.J. Super. at 14; N.J.A.C. 10A:71-3.9(b), -3.11(a). The

parole board is obligated to consider such evidence as part of its comprehensive

evaluation of whether it is appropriate to release an inmate on parole. See

N.J.A.C. 10A:71-3.11(a) (stating that "[p]arole decisions shall be based on the

aggregate of all pertinent factors, including material supplied by the inmate and

reports and material which may be submitted by any persons or agencies which

have knowledge of the inmate"). The hearing officer, board panel and full board

shall consider the twenty-three factors enumerated in N.J.A.C. 10A:71-3.11(b).5

In addition, each "may consider any other factors deemed relevant." Ibid.


5
    Factors enumerated in N.J.A.C. 10A:71-3.11(b) that are pertinent here include:

              1. Commission of an offense while incarcerated; 2.
              Commission of serious disciplinary infractions; 5.
              Facts and circumstances of the offense; 6. Aggravating
              and mitigating factors surrounding the offense; 7.
              Pattern of less serious disciplinary infractions; 8.
              Participation in institutional programs which could


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      Because Smith committed his crimes prior to August 19, 1997, "the

[b]oard panel shall determine whether evidence supplied in reports or developed

or produced at the hearing indicates by a preponderance of the evidence that




            have led to the improvement of problems diagnosed at
            admission or during incarceration. This includes, but is
            not limited to, participation in substance abuse
            programs, academic or vocational education programs,
            work assignments that provide on-the-job training and
            individual or group counseling; 9. Statements by
            institutional staff, with supporting documentation, that
            the inmate is likely to commit a crime if released; that
            the inmate has failed to cooperate in his or her own
            rehabilitation; or that there is a reasonable expectation
            that the inmate will violate conditions of parole; 11.
            Documented changes in attitude toward self or others;
            12. Documentation reflecting personal goals, personal
            strengths or motivation for law-abiding behavior; 13.
            Mental and emotional health; 14. Parole plans and the
            investigation thereof; 17. Statements by the inmate
            reflecting on the likelihood that he or she will commit
            another crime; the failure to cooperate in his or her own
            rehabilitation; or the reasonable expectation that he or
            she will violate conditions of parole; 19. Family and
            marital history; 20. Statement by the court reflecting
            the reasons for the sentence imposed; 21. Statements or
            evidence presented by the appropriate prosecutor's
            office, the Office of the Attorney General, or any other
            criminal justice agency; 22. Statement or testimony of
            any victim or the nearest relative(s) of a
            murder/manslaughter victim; 23. The results of the
            objective risk assessment instrument.



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there is a substantial likelihood that [Smith] will commit a crime . . . if released

on parole." N.J.A.C. 10A:71-3.10(a).

      Smith will thus have a full the opportunity to present relevant evidence at

the board hearing and argue that he should be paroled in 2024. We therefore

reject his claim that the Parole Board "would have virtually no knowledge about

[his] life and family situation at the time of the offense." By any measure, the

parole board will afford Smith a realistic and "meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation." Zuber, 227 N.J. at

443 (quoting Graham, 560 U.S. at 75). If it does not grant Smith parole, he may

appeal from that decision.

      Defendant's remaining arguments are without sufficient merit to warrant

discussion in this opinion. R. 2:11-3(e)(2).

      Affirmed.




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