STATE OF NEW JERSEY VS. EDWARD VICTOR ROBINSON (321-78, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1004-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD VICTOR ROBINSON,
Defendant-Appellant.
____________________________
Argued October 14, 2021 – Decided November 3, 2021
Before Judges Hoffman, Whipple, and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 321-78.
Kevin G. Byrnes, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Kevin G. Byrnes, on the briefs).
Hannah M. Franke, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Jill S. Mayer, Acting Camden County
Prosecutor, attorney; Kevin J. Hein, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Edward Victor Robinson appeals a September 16, 2019 Law
Division order denying his motion to correct an illegal sentence. Considering
the record and applicable legal principals, we affirm.
Defendant's Underlying Conviction and Sentence
Defendant was born in May 1961. On November 8, 1978, defendant, then
a seventeen-year-old juvenile, and two co-defendants attempted to rob a man in
Camden. When the victim attempted to drive away, defendant shot at the car
with a handgun. The bullet struck the victim in the back of his head, fatally
wounding him.
On December 5, 1978, defendant was waived from Juvenile and Domestic
Relations Court to adult criminal jurisdiction for prosecution as an adult
offender. Nine days later, a Camden County Grand Jury indicted defendant and
two co-defendants for: murder, N.J.S.A. 2A:113-11 (count one); armed murder,
N.J.S.A. 2A:151-5 (count two); unlawful possession of a firearm, 2A:151-41(a)
(count three); conspiracy to commit armed robbery, N.J.S.A. 2A:98-1 (count
1
The offenses were committed prior to the effective date of the New Jersey
Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to -98-4. See L. 1978, c. 98
(the Code's effective date was September 1, 1979).
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four); attempted armed robbery, N.J.S.A. 2A:85-5 and 2A:141-1 (count five);
and attempted armed robbery, N.J.S.A. 2A:151-5 (count six).
On March 19, 1979, defendant entered pleas of non vult2 to armed murder,
and guilty to unlawful possession of a firearm, conspiracy, and attempted armed
robbery. The pleas were entered without a recommended sentence.
On May 10, 1979, the trial court sentenced defendant to a term of life
imprisonment on the armed murder and concurrent lesser terms on the other
three offenses. The sentencing judge noted defendant's extensive juvenile
record that included eleven offenses, five probation violations, and detention
seven times. The judge found defendant had "a very serious repetitive pattern."
Finding the murder to be "a very heinous and senseless crime" that "climaxe[d]
a youthful crime career," the judge determined that "defendant should receive
the maximum sentence for punishment[,] for deterrence[,] for retribution[,] and
to protect society from his further criminal activity." Co-defendant Dwayne
Michael Thomas was sentenced to a term of twenty-nine to thirty years.
2
Under the then-existing statutory scheme, a defendant was not permitted to
plead guilty to an indictment for murder. State v. Brown, 22 N.J. 405, 414
(1956). Instead, a defendant could plead non vult or nolo contendere, in which
case, "the sentence . . . shall be either life imprisonment or that imposed for
murder in the second degree, i.e., imprisonment for not more than 30 years." Id.at 414-15 (citing N.J.S.A. 2A:113-3, -4).
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Defendant's ensuing efforts to reduce his sentence have thus far been
unsuccessful. See State v. Robinson, No. 3968-78 (App. Div. May 30, 1980)
(affirming defendant's sentence on direct appeal); State v. Robinson, No. 3731-
83 (App. Div. Apr. 18, 1986) (affirming subsequent denial of post-conviction
relief (PCR))3; State v. Robinson, Nos. A-2625-01 & A-4296-01 (App. Div. June
4, 2003) (affirming the denial of defendant's second PCR petition and his motion
to withdraw his plea), certif. denied, 178 N.J. 30 (2003); State v. Robinson, No.
A-3618-08 (App. Div. Feb. 17, 2010) (affirming denial of defendant's second
motion to withdraw his plea) 4; State v. Robinson, No. A-5906-08 (App. Div.
May 20, 2010) (affirming denial of defendant's fourth PCR petition), certif.
denied, 204 N.J. 40 (2010); State v. Robinson, No. A-3811-09 (App. Div. May
23, 2012) (affirming the denial of defendant's third plea withdrawal motion).
Defendant also moved for resentencing under N.J.S.A. 2C:1-1(d)(2).
Relying on State v. Maguire, 84 N.J. 508 (1980), the trial court denied the
motion on December 15, 1986.
3
Fourteen years after the Appellate Division affirmed denial of defendant's first
PCR petition, he moved for leave to file a petition for certification nunc pro
tunc, but, on July 21, 2000, the motion was denied by the Supreme Court.
4
On June 18, 2010, the Supreme Court dismissed for lack of prosecution
defendant's petition for certification challenging the affirmance of the denial of
his second plea withdrawal motion.
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In October 2016, defendant filed his fifth PCR petition, which the trial
court construed as a motion to correct an illegal sentence. Defendant argued the
life sentence was unconstitutional under Miller v. Alabama, 567 U.S. 460(2012). The trial court denied the motion, determining that the sentencing judge
considered mitigating circumstances and did not impose a mandatory life
sentence. We remanded for the trial court to reconsider the petition in light of
State v. Zuber, 227 N.J. 422, 438 (2017). State v. Robinson, No. A-3353-16
(App. Div. May 24, 2018) (slip op. at 3-4). On remand, the trial court again
denied the motion to correct an illegal sentence. This appeal followed.
Because they are relevant to the issue raised in this appeal, we briefly
review the serious crimes and innumerable disciplinary infractions defendant
has committed while incarcerated.
Defendant's Crimes While Incarcerated
On October 27, 1988, while an inmate at Northern State Prison, defendant
and another inmate held two civilian female staff members hostage, holding
homemade knives to their throats. At one point, defendant shouted, "[g]et back,
get back or I'll kill her." One hostage was held more than four hours and the
other for almost seven hours.
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An Essex County Grand Jury indicted defendant for kidnapping,
terroristic threats, possession of an implement of escape, and conspiracy , and,
on June 19, 1989, defendant pled guilty to all counts. On September 8, 1989,
defendant was sentenced to a consecutive fifteen-year term, subject to a seven-
year-and-six-month period of parole ineligibility on the kidnapping, a
concurrent five-year term on the terroristic threats, and a concurrent ten-year
term on the possession of an implement of escape. 5 This sentence, which was
imposed for crimes committed when defendant was twenty-seven years old,
significantly impacted his parole eligibility.
Defendant's Institutional Infractions While Incarcerated
In 2005, a three-member Parole Board panel found that defendant
committed nearly ninety institutional infractions while incarcerated. Thirty of
those infractions were deemed serious "and represent[ed] a continuous pattern
of dangerous and otherwise extremely maladaptive behavior while
incarcerated." Among those charges were an assault defendant committed at
age twenty-three, two assaults he committed at age twenty-five, and the crimes
he committed at age twenty-seven.
5
For purposes of sentencing, the conspiracy count merged into the kidnapping
count.
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Following the kidnapping incident, defendant was cited for battery,
attempted battery, threatening to kill someone, inciting a riot, and concealing a
shank and a "hit list" of correctional staff in the hollowed-out area of a Koran.
On August 20, 1998, when defendant was thirty-seven years old,
defendant was charged with: arson; creating a health, safety, or fire hazard;
failing to obey an order; assault; disorderly or threatening behavior; damage or
destruction of property; and inmate demonstration—stemming from defendant
setting his cell on fire, refusing to come out of his cell, and then, when staff
pushed the cell door open, striking a corrections officer in the jaw.
Notably, many of defendant's institutional infractions occurred after he
turned twenty-seven years old. By way of example, while incarcerated in New
Jersey, defendant committed nine institutional infractions when he was thirty-
four years old, and ten infractions when he was thirty-five years old. He
committed additional institutional infractions while incarcerated in Wisconsin
under the Interstate Corrections Compact.
The Denials of Parole
Defendant was not sentenced to life without parole. He has twice been
considered for and denied parole. Each time, a lengthy month future eligibility
term (FET) was imposed.
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Defendant initially became eligible for parole in 2005, when he was
approximately forty-four years old. 6 Based on defendant's record, a Parole
Board panel concluded there was "no evidence . . . that would indicate a positive
evolution in [defendant's] behavior" as he "progressed through adolescen ce,
young adulthood and into adulthood." The Board panel found that incarceration
had not decreased defendant's "desire to control and victimize others." It noted
a "deeply disturbing[,] violent[,] and disruptive institutional history that ha[d]
forced New Jersey Correctional authorities" to relocate him to out-of-state
facilities "numerous times." The panel added that defendant remained "unable
to understand [his] criminal personality[,] develop adequate insight into the
6
The parole statute applicable to defendant's 1978 crimes, N.J.S.A. 30:4-
123.51(b), repealed by L. 1979, c. 441, § 27 (1980), had provided that an inmate
sentenced to life imprisonment without a period of parole ineligibility is eligible
for parole after serving twenty-five years, less commutation credits and work
credits. When that statute was repealed by the Parole Act of 1979, N.J.S.A.
30:4-123.45 to -69, the Legislature provided that the prior law would be
"continued in effect" for inmates, such as defendant, serving life sentences,
N.J.S.A. 30:4-123.51(j). Trantino v. N.J. State Parole Bd., 166 N.J. 113, 125
(2001), modified, 167 N.J. 619 (2001). According to the State Parole Board's
Parole Eligibility Table, defendant became eligible for parole after serving
sixteen years, six months, and eighteen days, after applying commutation credits
but no work credits or minimum custody credits. Maximum possible work
credits would reduce this period by an additional 916 days. For a defendant
sentenced at age seventeen, this is hardly life without parole or its practical
equivalent, even if defendant earned no work credits or minimum custody
credits.
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nature of" or "address the causes of [his] criminal behavior," "accept genuine
responsibility" for it, or show remorse, and he "demonstrated a minimal interest
in participating in institutional programs."
On February 8, 2006, the State Parole Board denied parole and set a 240-
month FET. We affirmed the parole denial and the FET. Robinson v. State
Parole Bd., No. A-3797-04 (App. Div. July 13, 2007).
In 2016, defendant was again denied parole and a 200-month FET was set,
due to defendant's "lack of satisfactory progress in reducing [his] likelihood of
future criminal behavior." The Board panel noted that defendant committed four
institutional infractions since the previous parole hearing, including two assaults
of inmates. The Board panel further noted that defendant's "violent . . . actions
were as an adult and could no longer be blamed on the indiscretions of a young
man." The Board panel concluded that defendant needed "[m]ore work . . . done
. . . to understand the underlying motivations" for his anti-social actions and
violent, criminal behavior "when placed in certain situations . . . ." There is no
indication in the record that defendant appealed the second parole denial and
FET.
After applying appropriate commutation credits and projecting further
reductions due to potential earned minimum custody and work credits, defendant
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is projected to be eligible for parole in April 2025, when he will be nearly sixty-
four years old.
This Appeal
Defendant argues that his sentence is unconstitutional. He seeks
resentencing, claiming his life sentence for an offense committed when he was
a juvenile is unconstitutional when imposed without consideration of the
juvenile sentencing factors enumerated in Miller, 567 U.S. at 477-78. Relying
on Roper v. Simmons, 543 U.S. 551 (2006), and Zuber, 227 N.J. at 438,
defendant argues scientific research now reveals that the brains of juveniles are
still developing, and they are more susceptible to impulsive behavior and peer
pressure. Roper, 543 U.S. at 578. Defendant contends that due to their
undeveloped mental, emotional, and psychological capacities, juveniles do not
have the same degree of culpability as adults. Additionally, there is "a greater
possibility . . . that a minor's character deficiencies will be reformed." Id. at
570. While we recognize that scientific research has shown that "[t]he
development and maturation of the prefrontal cortex" is not "fully
accomplished," until at least "the age of 25 years," Mariam Arain et al.,
Maturation of the Adolescent Brain, 9 Neuropsych. Disease and Treatment 449,
459 (2013), we are unpersuaded that defendant's sentence, even as impacted by
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the denials of parole and FETs, is unconstitutional, considering defendant's
subsequent crimes and institutional infractions.
As we explained in State v. Tormasi, 466 N.J. Super. 51 (App. Div. 2021):
In Zuber, the Court extended the holding of
Miller to juveniles who receive a "lengthy, aggregate
sentence that amounts to life without parole." 227 N.J.
at 450. The Court held that when a juvenile is tried as
an adult and is subject to a lengthy sentence that is "the
practical equivalent of life without parole," the
sentencing court must consider the Miller factors in
addition to the statutory aggravating and mitigating
sentencing factors. Zuber, 227 N.J. at 429, 445-47,
450. The Court did not preclude the possibility of a de
facto life term but instructed that few juveniles should
receive one because "it is only the 'rare juvenile
offender whose crime reflects irreparable corruption.'"
Id. at 451 (quoting Miller, 567 U.S. at 479-80).
The Court did not define a de facto life term by
any specific length and rejected the use of life-
expectancy tables in deciding whether a lengthy term is
effectively a life term. Id. at 450. The Court instructed
sentencing courts to consider "the real-time
consequences of the aggregate sentence" and held that
the aggregate terms at issue in that consolidated case—
110 years with a 55-year parole-bar and 75 years with
a 68-year and 3-month parole-bar—were the functional
equivalent of life terms. Id. at 447, 449, 453.
The Court suggested the possibility that a
lawfully imposed sentence of life, or the functional
equivalent of life, may later be rendered
unconstitutional by subsequent facts that establish
reform and rehabilitation before expiration of the
parole-bar. Id. at 451-52. A defendant receiving such
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a sentence might "ask the court to review factors that
could not be fully assessed when he was originally
sentenced—like whether he still fails to appreciate risks
and consequences, or whether he may be, or has been,
rehabilitated." Id. at 452 (citing Miller, 567 U.S. at
477).
[Id. at 64.]
The holding in Miller does not apply to defendant because his custodial
term is not the functional equivalent to a life-without-parole sentence. See id.
at 66; State v. Bass, 457 N.J. Super. 1, 13-14 (App. Div. 2018). He has twice
been considered for and denied parole based largely on his criminal and
institutional infraction record while incarcerated as an adult, much of which
occurred after he reached twenty-seven years old.
Unlike some inmates who avoid further criminal behavior, comply with
institutional requirements, participate in programs, and exhibit signs of
rehabilitation and maturation, defendant has exhibited no such progress while
incarcerated. His record hardly bespeaks rehabilitation or maturation.
Defendant's abysmal conduct while incarcerated has resulted in a fifteen-year
consecutive sentence, the denial of parole, and two lengthy FETs. Defendant's
offenses committed as a juvenile, coupled with his subsequent crimes, gang
activity while incarcerated, and institutional infractions committed as an adult,
led the 2016 Board panel to conclude that a 200-month FET was appropriate
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"due to [defendant's] lack of satisfactory progress in reducing the likelihood of
future criminal behavior."
Defendant will once again be eligible for parole in April 2025 if he earns
projected commutation and work credits. At that time the Parole Board will
consider his suitability for parole, including his efforts to rehabilitate himself
and behavior since the last parole hearing. See Tormasi, 466 N.J. Super. at 68,
70; Bass, 457 N.J. Super. at 14. "In undertaking that process, the Parole Board
is required to consider the twenty-three non-exclusive factors enumerated in
N.J.A.C. 10A:71-3.11(b), including the results of an 'objective risk assessment
instrument,' N.J.A.C. 10A:71-3.11(b)(23)." Tormasi, 466 N.J. Super. at 68.7
The Parole Board will consider defendant's: "[a]djustment to . . . incarceration,"
N.J.A.C. 10A:71-3.11(b)(4); "[p]articipation in institutional programs,"
N.J.A.C. 10A:71-3.11(b)(8); "[d]ocumented changes in attitude toward self or
others," N.J.A.C. 10A:71-3.11(b)(11); "[m]ental and emotional health,"
N.J.A.C. 10A:71-3.11(b)(13); and "[s]ubsequent growth and increased maturity
of the inmate during incarceration," N.J.A.C. 10A:71-3.11(b)(24).
7
Tormasi refers to "twenty-three" non-exclusive factors, but the twenty-fourth
factor, pertaining to an inmate's growth and maturity during incarceration, was
added to N.J.A.C 10A:71-3.11(b), and made effective shortly after Tormasi was
decided. 53 N.J.R. 250(c) (Feb. 16, 2021).
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"[T]he opportunity for parole provides a meaningful opportunity at release
for purposes of the Eighth Amendment." Tormasi, 466 N.J. Super. at 67-68. As
we have noted, defendant did not appeal his last parole denial and FET. If
defendant is again denied parole, he may appeal that decision to this court. Acoli
v. N.J. State Parole Bd., 224 N.J. 213, 232 (2016).
Finally, defendant did not provide evidence of rehabilitation, maturation,
or reform to the trial court or to this court. Absent such evidence, and
considering the length of defendant's parole ineligibility, his conduct while
incarcerated, his unexpired FET, and parole eligibility in April 2015, the Federal
and New Jersey constitutions do not require resentencing.
Affirmed.
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