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 (Joseph 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 cause 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-2505-21

for respondent (Theodore N. Stephens, II, Acting Essex 

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 conspiracy, felony murder, 

aggravated manslaughter, five counts of robbery, theft, simple assault, and 

weapons offenses for his participation in four violent robberies during the late 

night of January 15, 1993, into the early morning hours of 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 weeks shy of his nineteenth 

birthday at the time of the incidents. He was sentenced to an aggregate prison 

term of life plus fifty years without parole. We affirmed defendant's convictions 

and sentence in an unpublished opinion. State v. Barkley, No. A-0467-94 (App. 

Div. Feb. 10, 1997). Thereafter, defendant filed a litany of post-conviction 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 of 
3 A-2505-21

In March 2021, defendant filed a pro se motion seeking 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 October 2020. On April 21, 2021, 

the motion judge issued an order denying defendant's motion and an 

accompanying statement of reasons finding the legislative intent of the statute 

demonstrated the mitigating factor applies prospectively. 

Thereafter, defendant was assigned counsel, who moved for 

reconsideration of the April 21, 2021 order and sought resentencing on two 

additional bases: (1) his sentence for first-degree robbery on count three was 

illegal because the grand jury indicted him for second-degree robbery; and (2) 

as an eighteen-year-old offender, he "should have been tried and sentenced as a 

juvenile." On March 28, 2022, the same judge issued an order accompanied by 

another cogent statement of reasons, denying all claims 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 fourth PCR petition); State v. 

Barkley, No. A-4205-16 (App. Div. Mar. 6, 2018) (affirming denial of 

defendant's fifth PCR petition). Defendant also unsuccessfully sought habeas 

corpus relief in the federal district and circuit courts, culminating in two 

successive denials of certiorari by the United States Supreme Court. See 

Barkley v. Glover, 562 U.S. 1114 (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 unless the court determines "a 

hearing is required in the interest of justice"). 

In his counseled brief, defendant raises the following points for our 

consideration2: 

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 BARKLEY, 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 fourteen argument. In June 

2022 – after the court's decision and before defendant filed 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 applies on resentencing "for 

reasons unrelated to mitigating factor fourteen." Id. at 97 n.3. 

3

 State v. Comer, 249 N.J. 359 (2022). 
5 A-2505-21

GRAND 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 illegal sentence is one 

that 'exceeds the maximum penalty . . . for a particular offense' or a sentence 

'not imposed in accordance with law.'" State v. Acevedo, 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 safeguard.'" 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.'" Acevedo, 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, raised 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 of reform" that the Court 

found appliable to juvenile offenders. See 249 N.J. at 370. Alternatively, 

defendant argues a remand is necessary for the motion judge "to consider expert 

testimony on the developmental science, and to decide if the Comer lookback 

should extend to eighteen-year-olds." 

In Comer, the Court created a procedure for juvenile offenders –

prosecuted as adults and sentenced to the murder statute's mandatory thirty-year 

parole bar – to seek a hearing after serving at least twenty years 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 qualities of youth.'" Ibid. 

(quoting Miller, 567 U.S. 460, 476-78 (2012)). The court should also consider 

"whether the juvenile offender still fails to appreciate risks and consequences;" 

"whether [the juvenile offender] has matured or been rehabilitated;" and "the 

juvenile offender's behavior in prison since the time of the offense." Comer, 

249 N.J. at 370; see also Zuber, 277 N.J. at 446-47 (extending the protections 
7 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 Comer was seventeen 

years old, Comer, 249 N.J. at 371, and the juvenile offender in 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 here. 

We decline defendant's invitation to extend the holding in Comer for two 

reasons. Initially, the Court's decision was limited to juvenile offenders tried 

and convicted of murder in adult court; the Court did 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 eighteen as 

the threshold age for adulthood in criminal sentencing. 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 purposes between childhood and 

adulthood.'" 249 N.J. 581, 600 n.10 (2022) (alterations in original) (quoting 
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Roper v. Simmons, 543 U.S. 551, 574 (2005)); see also Graham v. Florida, 560 

U.S. 48, 74-75 (2010). 

 Moreover, our institutional role as an intermediate 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 Alcotest 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 the 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 sentence. We therefore discern no 

reason to disturb the motion judge's decision, which 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 thirty years after he was indicted; twelve years after he discovered 

– or could have discovered – an error in the indictment; and four years after we 

decided his fifth PCR application, defendant moved for resentencing arguing the 
9 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-barred. 

To support his argument before the motion judge, defendant contended 

the handwritten notation on the grand jury "tally sheet,"4 i.e., "Ct. 3 . . . 2° 

Robbery (Phillisa James)," demonstrated he was incorrectly charged with firstdegree robbery in count three of the indictment. That count, unlike the other 

first-degree robbery counts, does not allege defendant was armed with a 

handgun during commission of the offense. Citing the grand jury transcript, 

defendant claimed the prosecutor suggested the jurors charge defendant with 

second-degree robbery on count three and, as such, his twenty-year sentence 

with a ten-year parole disqualifier was illegal. 

Unpersuaded that the indictment failed to charge defendant with firstdegree robbery, the judge rejected defendant's application for resentencing as a 

second-degree offender. The judge found defendant's contentions were 

"assertions of defects in the indictment" and, as such, they fell squarely within 

4

 In his counseled merits brief, defendant notes 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 constitutional rights, may result in such 

a waiver."). Noting defendant first raised the argument "nearly thirty years" 

after he was indicted, the judge found defendant failed to demonstrate good 

cause. 

Citing several of our opinions, the judge was convinced any "irregularities 

in the grand jury proceeding [we]re generally rendered harmless by a conviction

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 harmless") (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 statement in 

response to the question, "Was this man armed?" that 

"he kept reaching under the front of his hood[ie], like 

he had a gun." 
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. . . . 

 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 subsection b 

grading provisions, which in pertinent part provide that 

a robbery is a first-degree robbery if in the course of 

committing the theft the actor attempts to kill anyone 

or purposely inflicts or attempts to inflict serious 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 additional 

information contained in . . . James's statement that 

when [defendant] approached her as she was running 

back up the steps to the diner he stated, "I'll kill you 

bitch." He then dragged her down the stairs headfirst, 

punched her in the lip, stole her coat, and escaped in the 

Gray Acura. These facts would support a first-degree 

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 direct 

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 them to 

draw that conclusion. There is no evidence that the text 

of count three of the indictment, the actual charging 

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 charging 

document itself. 

The judge further noted that defendant failed to provide the trial transcripts but 

there "[wa]s no reason to second guess the jury's verdict." 
12 A-2505-21

Having considered defendant's renewed contentions in 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 stated by the motion judge in 

his well-reasoned decision. We add only the following brief comments. 

Although the grand jury "tally sheet" was not provided to defendant until 

several years after trial, the indictment was provided pretrial. The protracted 

procedural history in this matter does not reveal any 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 serious bodily 

injury to Phillisa James." Clearly, the indictment provided defendant notice of 

the first-degree charge and, as such, he was sufficiently apprised to "prepare an 

adequate defense." State v. Catlow, 206 N.J. Super. 186, 194 (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 arising from oversight and omission 

may at any time be corrected by the court on its own initiative or on the motion 

of any party. . . ." Defendant has not cited, and our research has not disclosed, 

any binding authority that an indictment constitutes a "part of the record" that 

can be corrected at any time or would otherwise circumvent the 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 existing 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 (1985). See Torres, 246 N.J. at 252-53. Because Torres did not depart from 

existing law, there is no need to remand for resentencing. 

 Affirmed.