STATE OF NEW JERSEY VS. KONTAR ANTHONY (95-10-3301, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4429-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KONTAR ANTHONY a/k/a
DOUGH BOY and ANTHONY
KONTAR,
Defendant-Appellant.
___________________________
Submitted March 30, 2020 – Decided June 10, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 95-10-3301.
Kontar Anthony, 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 Kontar Anthony appeals from an order denying his motion to
correct an illegal sentence and related order denying his motion for
reconsideration, arguing:
POINT I
THE [MOTION JUDGE] ERRED IN FAILING TO
GRANT [DEFENDANT'S] MOTION TO CORRECT
AN ILLEGAL SENTENCE TO ENSURE A
UNIFORM APPLICATION AND FULL
IMPLEMENTATION OF STATE V. ZUBER, 227 N.J.
422 (2017).
POINT II
THE [MOTION JUDGE'S] RULING IS NOT
SUPPORTED BY SUFFICIENT, CREDIBLE
EVIDENCE IN THE RECORD.
After considering the record and the briefs, we conclude that defendant's Point
II arguments are "without sufficient merit to warrant discussion in a written
opinion." R. 2:11-3(e)(2). We are also unpersuaded by his remaining argument
and affirm.
Defendant was sixteen years old when he committed the offenses of which
he was found guilty by jury: second-degree conspiracy to commit robbery
and/or murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:11-3 (count
one); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count two); first-
degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); first-degree
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robbery, N.J.S.A. 2C:15-1 (count four); third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b) (count five); and second-degree possession of a
weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count six). 1 Defendant was
sentenced to a forty-year prison term with thirty years of parole ineligibility for
felony murder.2 We affirmed his convictions on direct appeal. State v. Anthony,
No. A-1741-96 (App. Div. May 13, 1998). Our Supreme Court denied
defendant's petition for certification. State v. Anthony, 156 N.J. 408 (1998).
Defendant subsequently filed a motion to correct an illegal sentence.
The motion judge rejected defendant's contention that the United States
Supreme Court's holding in Miller v. Alabama, 567 U.S. 460 (2012), required
1
Defendant was also charged in a single count under Indictment No. 15-09-
2082 with third-degree aggravated assault – simple assault on a law enforcement
officer, N.J.S.A. 2C:12-1(b)(5)(a). Defendant does not appeal from the
eighteen-month prison term imposed, concurrent to the felony-murder sentence,
after that charge was downgraded to fourth-degree obstructing, N.J.S.A. 2C:29-
1(b).
2
After merger of offenses, sentences on the remaining counts were run
concurrent to the felony-murder sentence. Defendant does not appeal the
sentences on the other counts.
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resentencing, and that the factors announced by the Court should be considered, 3
ruling defendant's "sentence is not the equivalent to '[l]ife without parole' and is
3
The Miller Court set forth five factors a sentencing court must consider before
"irrevocably sentencing [a juvenile offender] to a lifetime in prison." Id. at 480.
Such a mandatory sentence, without possibility of parole,
[1] precludes consideration of his chronological age
and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and
consequences.
[2] It prevents taking into account the family and home
environment that surrounds him—and from which he
cannot usually extricate himself—no matter how brutal
or dysfunctional.
[3] It neglects the circumstances of the homicide
offense, including the extent of his participation in the
conduct and the way familial and peer pressures may
have affected him.
[4] Indeed, it ignores that he might have been charged
and convicted of a lesser offense if not for
incompetencies associated with youth — for example,
his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to
assist his own attorneys.
[5] And finally, this mandatory punishment disregards
the possibility of rehabilitation even when the
circumstances most suggest it.
[Id. at 477-78 (citations omitted).]
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not in violation of the ruling within [Zuber]." The motion judge later rejected
defendant's reconsideration argument that he was "not seeking to have [Zuber]
apply to [his] case," and instead based his claim
on the newly accepted scientific evidence accepted and
credited by the United States Supreme Court in . . .
Roper v. Simmons, 543 U.S. 551, 569 (2005)[;]
Graham v. Florida, 560 U.S. 48, 68 (2010)[;] and Miller
. . . and accepted by the New Jersey Supreme Court in
Zuber, which extended even greater protections under
the New Jersey Constitution than the [f]ederal
counterpart.
The motion judge found "the 'newly accepted scientific evidence' defendant
refer[red] to does not render his sentence illegal."
Whether a defendant's sentence is illegal is an issue of law that we review
de novo. State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2016). "A
sentence is illegal if it 'exceeds the maximum penalty provided in the Code for
a particular offense,' is 'not imposed in accordance with law,' or fails to include
a mandatory sentencing requirement." State v. Locane, 454 N.J. Super. 98, 117
(App. Div. 2018) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)). In
addition, we review the denial of a motion for reconsideration for an abuse of
discretion, Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996), which
"arises when a decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" Flagg
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v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez
v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
The Eighth Amendment to the United States Constitution prohibits cruel
and unusual punishment and "guarantees individuals the right not to be subjected
to excessive sanctions." Roper, 543 U.S. at 560. The Eighth Amendment's
provisions are "applicable to the States through the Fourteenth Amendment."
Ibid. New Jersey's analog to the Eighth Amendment similarly declares that
"cruel and unusual punishments shall not be inflicted." N.J. Const. art. I, ¶ 12.
In Miller, the United States Supreme Court held that a mandatory life sentence
without the possibility of parole for juveniles under the age of eighteen at the
time of their offense violates the Eighth Amendment's prohibition on cruel and
unusual punishment. 567 U.S. at 479.
We agree with the motion judge that defendant's reliance on Miller is
misplaced. Our Supreme Court recognized protections under the Federal and
State Constitutions apply to juveniles sentenced to "'life without parole' or
multiple term-of-years sentences that, in all likelihood, will keep [them] in jail
for the rest of [their lives]." Zuber, 227 N.J. at 446. The factors announced in
Miller, therefore, need be applied in cases where a juvenile's sentence "is the
practical equivalent of life without parole." Id. at 446-47. "Defendants who
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serve lengthy term-of-years sentences that amount to life without parole should
be no worse off than defendants whose sentences carry that formal designation."
Id. at 447.
Defendant's sentence does not fall into the same category that requires
consideration of the Miller factors. In Zuber, the Court ruled the imposition of
minimum terms on the companion juvenile offenders—fifty-five years, in one
case, and more than sixty-eight years in the other, "trigger[ed] the protections
of Miller under the Federal and State Constitutions." Id. at 428, 448.
Defendant, in contrast, was sentenced to the minimum period of parole
ineligibility allowed by law for felony murder, thirty years. N.J.S.A. 2C: 11-
3(b)(1). He will be first eligible for parole when he is forty-six years-old; at
maximum, he will be released when his is fifty-six if he serves a full forty-year
base term. The juvenile defendants in Zuber would not be first eligible for
parole until they were about seventy-two and eighty-five years-old, respectively.
Id. at 428. Unlike those defendants, defendant does not face "potential release
after five or six decades of incarceration, when [he] would be in [his] seventies
and eighties[.]" Id. at 448.
The sentenced defendants in the cases cited in defendant's merits brief in
support of his argument faced similar lengthy parole ineligibility periods. See
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State v. Beltran, No. A-4721-13 (App. Div. Mar. 15, 2016) (finding defendant's
sentence to a sixty-year period of parole ineligibility legal), certif. granted in
part and summarily remanded for resentencing, 229 N.J. 151 (2017); State v.
Zarate, No. A-4090-13 (App. Div. Mar. 21, 2016) (remanding for resentencing
where defendant's period of parole ineligibility was 63.75 years), certif. granted
and summarily remanded for resentencing, 229 N.J. 140 (2017); State v. James,
No. A-5248-13 (App. Div. Dec. 13, 2016) (affirming defendant's sentence to a
267.75-year period of parole ineligibility), certif. granted and summarily
remanded for resentencing, 230 N.J. 349 (2017); and State v. Herd, No. A-4582-
13 (App. Div. Mar. 9, 2016) (affirming defendant's sentence to a sixty-year
period of parole ineligibility), certif. granted and summarily remanded for
resentencing, 229 N.J. 135 (2017).
Inasmuch as defendant was sentenced to the minimum thirty-year period
of parole ineligibility provided by statute—not the equivalent to life without
parole, even considering the forty-year base term—the Miller factors need not
have been considered by the judge at his sentencing hearing. So too, the
scientific principles underlying the Miller decision, and the other cases cited by
defendant in support of his reconsideration motion, do not mandate application
of the Miller factors. As the Court noted in Zuber: "[T]he principles in Graham
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are at the heart of Roper, Miller, and Montgomery 4 as well. They teach us, in
essence, that youth matters under the Constitution. We believe that youth
matters in each case that calls for a lengthy sentence that is the practical
equivalent of life without parole." 227 N.J. at 448. Defendant's is not such a
case; the sentence imposed here does not suggest a violation of constitutional
principles. As such, both defendant's motions were correctly denied.
Affirmed.
4
Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. 718 (2016).
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