SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2505- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. RASHON BARKLEY, a/k/a RASHAUN BARKLEY, ARMED R. BARKLEY, and LAMONT CARTER, Defendant-Appellant.

Argued October 31, 2023

– Decided November 16, 2023 Before Judges Rose and Perez Friscia. On appeal from the Superior Court of New Jersey, Essex County, Law Division, Indictment No. 93

- 04

- 1390. Peter T. Blum argued the cause for appellant (Josep h E. Krakora, Public Defender, attorney; Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the briefs ). Hannah F. Kurt, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cau se

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2505

- 21 for respondent (Theodore N. Stephens, II, Acting Es sex County Prosecutor, attorney; Hannah F. Kurt, of counsel and on the brief). Appellant filed a pro se supplemental brief.
PER CURIAM A jury convicted defendant Rashon Barkley of consp iracy, felony murder , aggravated manslaughter, five counts of robbery, th eft, simple assault, and weapons offenses for his participation in four viol ent robberies during the late night of January 15, 1993, into the early morning hours o f the next day. The incidents occurred in Newark, East Orange, and Irvington

– and left one person dead. Born in February 1974, defendant was a few w eeks shy of his nineteenth birthday at the time of the incidents. He was sent enced to an aggregat e prison term of life plus fifty years without parole. We a ffirmed defendant's convictions and sentence in an unpublished opinion. State v. B arkley, No. A- 0467 -94 (App. Div. Feb. 10, 1997 ). Thereafter, defendant filed a litany of post-co nviction relief (PCR) applications in state and federal court, all of which were denied by the courts and affirmed on appeal. 1

1 See State v. Barkley, No. A- 0657 -99 (App. Div. Feb. 7, 2001) (affirming denial of defendant's first PCR petition); State v. Barkley, No. A- 2464

- 05 (App. Div. Aug. 26, 2008) (affirming denial of defendant' s second PCR petition); State v. Barkley, No. A- 5508 -11 (App. Div. Feb. 25, 2013) (affirming denial of3 A- 2505

- 21

In March 2021, defendant filed a pro se motion seek ing resentencing under mitigating factor fourteen , permitting a sentencing court to consider "defendant was under 26 years of age at the time of the commission of the offense," N.J.S.A. 2C:44-1(b)(14), enacted in Octob er 2020. On April 21, 2021 , the motion judge issued an order denying defendant' s motion and an accompanying statement of reasons finding the legis lative intent of the statute demonstrated the mitigating factor applies prospect ively. Thereafter, defendant was assigned counsel, who mov ed for

re consideration of the April 21, 2021 order and sough t resentencing on two additional bases: (1) his sentence for first-degre e robbery on count three was illegal because the grand jury indicted him for sec ond-degree robbery; and (2) as an eighteen-year-old offender, he "should have b een tried and sentenced as a juvenile." On March 28, 2022, the same judge issue d an order accompanied by another cogent statement of reasons, denying all cl aims for relief without an

defendant's third PCR petition) ; State v. Barkley, No. A- 4257 -14 (App. Div. Oct. 12, 2016) (affirming denial of defendant's fou rth PCR petition); State v. Barkley, No. A- 4205 -16 (App. Div. Mar. 6, 2018) (affirming denial of de fendant's fifth PCR petition). Defendant also unsu ccessfully sought habeas corpus relief in the federal district and circuit c ourts, culminating in two successive denials of certiorari by the United Stat es Supreme Court. See Barkley v. Glover, 562 U.S. 1 114 (2010); Barkley v. Ortiz , 565 U.S. 1214 (2012).4 A- 2505

- 21

evidentiary hearing. See R. 3:21 -10(c) (providing a hearing "need not be conducted" on a motion for a change of sentence unl ess the court determines "a hearing is required in the interest of justice"). In his counseled brief , defendant raises the following points for our consideration 2 : POINT I

A RESENTENCING SHOULD OCCUR BECAUSE THE LANDMARK COMER [3] DECISION

– WHICH ENTITLES JUVENILE OFFENDERS TO A RESENTENCING AFTER TWENTY YEARS

– SHOULD EXTEND TO EIGHTEEN- YEAR -OLD OFFENDERS LIKE DEFENDANT BARK LEY , WHO SHARE THE SAME CHARACTERISTICS AS JUVENILES. U.S. CONST. AMEND. VIII, XIV; N.J. CONST. ART. I, ¶ 12.
POINT II
A RESENTENCING SHOULD OCCUR BECAUSE THE SENTENCE FOR FIRST-DEGREE ROBBERY ON COUNT [THREE] WAS ILLEGAL WHERE THE

2 Defendant did not reprise his mitigating factor f ourteen argument. In June 2022

– after the court's decision and before defendant fi led his merits brief, the Supreme Court decided State v. Lane , holding mitigating factor fourteen applies "prospectively to defendants sentenced on or after its effective date of October 19, 2020." 251 N.J. 84, 97 (2022). The factor also appli es on resentencing "for reasons unrelated to mitigating factor fourteen." I d. at 97 n.3.

3 State v. Comer , 249 N.J. 359 (2022).5 A- 2505

- 21GRAND JURORS INDICTED FOR SECONDDEGREE ROBBERY. N.J. CONST. ART. I, ¶ 8. In his pro se supplemental brief, defendant raises an additional point:
THIS COURT SHOULD REMAND FOR RESENTENCING BECAUSE THE TRIAL COURT DID NOT EXPLICITLY FIND THAT THE AGGREGATE SENTENCE WAS FAIR, NOR DID IT CONSIDER DEFENDANT'S AGE IN IMPOSING A CONSECUTIVE SENTENCE, REQUIRED BY STATE V. TORRES, 246 N.J. 246 (2021). (Not raised below) We reject defendant's contentions and affirm. Well-settled principles guide our review. "[A]n il legal sentence is one that 'exceeds the maximum penalty . . . for a parti cular offense' or a sentence 'not imposed in accordance with law.'" State v. Ac evedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000))

. "That includes a sentence 'imposed without regard to some constitutional safeguar d.'" State v. Zuber, 227 N.J. 422, 437 (2017) (quoting State v. Tavares, 286 N.J. Super. 610, 618 (App. Div. 1996)). There is no temporal limit on a court 's ability to review an illegal sentence; it "can be corrected 'at any time.'" Ace vedo, 205 N.J. at 47 n.4 (quoting R. 3:21 -10(b)(5); R. 3:22 -12). "We review the legality of a sentence de novo." State v. Steingraber, 465 N.J. Super. 322 , 327 (App. Div. 2020 ).6 A- 2505

- 21

The crux of defendant's constitutional argument, ra ised in his first point, is that he is entitled to "immediate resentencing" pursuant to the Supreme Court's decision in Comer because, as an eighteen-year-old offender, he shared the same "diminished culpability" and "likelihood o f reform" that the Court found appliable to juvenile offenders. See 249 N.J . at 370. Alternatively, defendant argues a remand is necessary for the mo tion judge " to consider expert testimony on the developmental science, and to deci de if the Comer lookback should extend to eighteen-year- olds ." In Comer, the Court created a procedure for juvenil e offenders

– prosecuted as adults and sentenced to the murder st atute's mandatory thirty-year parole bar

– to seek a hearing after serving at least twenty ye ars in prison. Ibid. Under those discrete circumstances, on resentencing , the court must assess the "series of factors the United States Supreme Court set forth in Miller v. Alabama which are designed to consider the 'mitigating qual ities of youth.'" Ibid. (quoting Miller, 567 U.S. 460, 476-78 (2012)). The court should also consider "whether the juvenile offender still fails to appre ciate risks and consequences;" "whether [the juvenile offender] has matured or bee n rehabilitated ;" and "the juvenile offender's behavior in prison since the ti me of the offense." Comer , 249 N.J. at 370 ; see also Zuber, 277 N.J. at 4 46

- 47 (extending the protections7 A- 2505

- 21

espoused in Miller to juvenile offenders sentenced to a term that is "the practical equivalent of life without parole"). Defendant acknowledges the juvenile offender in Com er was seventeen years old , Comer, 249 N.J. at 371, and the juvenile offender i n the companion case, State v. Zarate , was fourteen years old, id . at 374, when they committed murder. Nonetheless, he argues the Court relied on articles about brain science that explain why many youths do not reach maturity until years after they turn eighteen and, as such, that science is applicable h ere. We decline defendant's invitation to extend the hol d ing in Comer for two reasons. Initially, the Court's decision was limit ed to juvenile offenders tried and convicted of murder in adult court; the Court d id not extend this right of sentence review to offenders who were eighteen years of age or older when they committed their crimes. Notably , in State v. Ryan , decided one month after its decision in Comer , the Court stated: "The Legislature has chosen eigh teen as the threshold age for adulthood in criminal sentenc ing. Although this choice may seem arbitrary, 'a line must be drawn,' and '[t ]he age of [eighteen] is the point where society draws the line for many purpose s between childhood and adulthood.'" 249 N.J. 581, 600 n.10 (2022) (altera tions in original) (quoting8 A- 2505

- 21

Roper v. Simmons, 543 U.S. 551, 574 (2005)); see al so Graham v. Florida, 560 U.S. 48, 74-75 (2010). Moreover, our institutional role as an intermediat e appellate court is a limited one. We are bound to follow the precedents of the United States Supreme Court and the Supreme Court of New Jersey, regardless of whether those precedents might be outmoded. See, e.g. , State v

. Carrero, 428 N.J. Super. 495, 511 (App. Div. 2012) (declining defendant's request that we reconsider the Supreme Court's holding on the admissibility of Alc otest results); State v. Breitweiser, 373 N.J. Super. 271, 282-83 (App. Div. 2004) (recognizing that, as an intermediate appellate court, we are bound by th e Supreme Court's holdings and dicta). In essence, defendant's sentence was authorized by the Criminal Code and affirmed on direct appeal. It remains a legal sent ence. We therefore discern no reason to disturb the motion judge's decision, whic h emphasized the Supreme Court in Comer limited its decision to juveniles. Nor are we persuaded by the contentions raised in defendant's second point . Nearly thirt y years after he was indicted; twelve years after he discovered

– or could have discovered

– an error in the indictment; and four years after w e decided his fifth PCR application, defendant moved for resente ncing arguing the9 A- 2505

- 21

sentence imposed on count three was illegal because he "was convicted of a crime for which he was not indicted." Asserting his sentence was illegal, defendant argues his application was not time-barre d

. To support his argument before the motion judge, de fendant contended the handwritten notation on the grand jury "tally shee t ," 4 i.e., "Ct. 3 . . . 2° Robbery (Phillisa James)," demonstrated he was inco rrectly charged with firstdegree robbery in count three of the indictment. T hat count, unlike the other first-degree robbery counts, does not allege defend ant was armed with a handgun during commission of the offense. Citing the grand jury transcript, defendant claim ed the prosecutor suggested the jurors charge defenda nt with

sec ond -degree robbery on count three and, as such, his tw enty-year sentence with a ten-year parole disqualifier was illegal

. Unpersuaded that the indictment failed to charge de fendant with firstdegree robbery, the judge rejected defendant's appl ication for resentencing as a second-degree offender. The judge found defendant' s contentions were "assertions of defects in the indictment" and, as s uch, they fell squarely within

4 In his counseled merits brief, defendant note s the Essex County Clerk's Office mailed the grand jury tally sheets to him "in response to his pro se request for court records," and that generally, these documents are not provided to the defense in discovery.10 A- 2505

- 21

the scope of Rule 3:10 -2(c). Pertinent to this appeal, the Rule requires a defendant to raise "defects . . . in the indictment . . . before trial" and provides the failure to do so "constitutes a waiver thereof, " unless the court otherwise finds "good cause. " Ibid. ; see also State v. Del Fino, 100 N.J. 154, 160 (1985 ) (" The failure of timely assertion, even of constituti onal rights, may result in such a waiver."). Noting defendant first raised the arg ument "nearly thirty years" after he was indicted, the judge found defendant fa iled to demonstrate good

cause. Citing several of our opinions, the judge was convi nced any "irregularities in the grand jury proceeding [we]re generally rende red harmless by a convicti on of the charged crime following trial." See e.g. , State v. Simon, 421 N.J. Super. 547, 551 (App. Div 2011 ) (recognizing "a guilty verdict is universally considered to render error in the grand jury process harmle ss") (quoting State v. Lee, 211 N.J. Super. 590, 599 (App. Div. 1986)). The judge elaborated: A review of the partial grand jury transcript that was attached to the motion contains the prosecutor's comments to the grand jury that they may wish to return a second-degree robbery count as to . . . James . . . and the reading of the text from . . . James's statemen t in response to the question, "Was this man armed?" tha t "he kept reaching under the front of his hood[ie], like he had a gun."11 A- 2505

- 21 . . . . A review of the complete grand jury transcript reveals the prosecutor read N.J.S.A. 2C:15-1 to the grand jury in its entirety, including the subsectio n b grading provisions, which in pertinent part provide that a robbery is a first-degree robbery if in the cours e of committing the theft the actor attempts to kill any one or purposely inflicts or attempts to inflict seriou s bodily injury or []is armed with or uses or threatens the immediate use of a deadly weapon. The complete version of the grand jury transcript reveals additi onal information contained in . . . James's statement th at when [defendant] approached her as she was running back up the steps to the diner he stated, "I'll kil l you bitch." He then dragged her down the stairs headfi rst, punched her in the lip, stole her coat, and escaped in the Gray Acura. These facts would support a first-degr ee robbery charge regardless of whether the prosecutor "suggested" a second-degree robbery charge. The charge is in the province of the grand jur[ors], and they are not bound by the prosecutor's view. They direc t how the charges are to be lodged. The grand jur[ors] may well have concluded based on the above information that [defendant] was armed when robbing James, and there was sufficient evidence before the m to draw that conclusion. There is no evidence that th e text of count three of the indictment, the actual chargi ng document, and the charge that [defendant] was convicted of by a jury, is an error, as opposed to a handwritten notation that is not part of the chargi ng document itself. The judge further noted that defendant failed to pr ovide the trial transcripts but there "[wa]s no reason to second guess the jury's v erdict."12 A- 2505

- 21

Having considered defendant's renewed contentions i n view of the governing law and the record provided on appeal, we conclude they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11

- 3(e)(2). We affirm substantially for the reasons s tated by the motion judge in his well-reasoned decision. We add only the follow ing brief comments. Although the grand jury "tally sheet" was not provided to defendant until several years after trial, the indictment was provi ded pretrial. The protracted procedural history in this matter does not reveal a ny indication whatsoever that defendant was not properly noticed pretrial of the first-degree robbery charge pertaining to James. As the judge found, the grand jury was presented with her statement, which supported the first-degree charge. Moreover, defendant was charged in count four with second-degree aggravated assault by "purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life caus[ing] or attempt[ing ] to cause seri ous bodily injury to Phillisa James." Clearly, the indictment provided defendant notice of the first-degree charge a nd , as such, he was sufficiently apprised to "prepare an adequate defense." State v. Catlow, 206 N.J. Super. 186, 1 94 (App. Div. 1985). For the first time on appeal, defendant argues his application is not timebarred because clerical mistakes under Rule 1:13 -1 can be raised "at any time."13 A- 2505

- 21

The Rule provides, in pertinent part: "Clerical mistakes in judgments, orders or other parts of the record and errors therein arisin g from oversight and omission may at any time be corrected by the court on its ow n initiative or on the motion of any party. . . ." Defendant has not cited, and our research has not disclosed, any binding authority that an indictment constitute s a "part of the record" that can be corrected at any time or would otherwise circumvent th e dictates of Rule
3:10 -2(c). Defendant's pro se argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(2). We simply add the Court in Torres did not announce a new rule of law but reaffirmed the e xisting requirement that sentencing courts explain the "overall fairness" of sentences imposed consecutively under the factor set forth in State v . Yarbough, 100 N.J. 627, 643- 44 (198 5) . See Torres, 246 N.J. at 252- 53

. Because Torres did not depart from existing law, there is no need to remand for resent encing. Affirmed.