SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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A

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- 18 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. JASON BAKER, Defendant

- Appellant.

_______________________ STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. LUIS BELTRAN, Defendant

- Appella nt.

_______________________

Argued (A

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– Decided February 4 , 2022 Before Judges Alvarez, Mawla, and Mitterhoff.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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- 18 On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 94

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- 0667. James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant Jason Baker (Joseph E. Krakora, Public Defender, attorney; James K. Smith, Jr., of counsel and on the briefs )

. Joseph E. Krakora, Public Defe nder, attorney for appellant Luis Beltran (Andrew R. Burroughs, Designated Counsel, on the briefs). Kaila L. Diodati, Assistant Prosecutor , argued the cause for respondent in A

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- 18 (Jennifer Webb

- McRae, Cumberland County Prosecutor, attorney; Danielle R. Pennino , Assistant Prosecutor , of counsel and on the brief). Andrew J. Bruck, Acting Attorney General, attorney for respondent in A

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- 18 (Lauren Bonfiglio, Deputy Attorney General, of counsel and on the brief). Appellant Luis Beltran filed a pro se supplemental brief.
PER CURIAM
Co

- defendants Jason Baker and Luis Beltran appeal from the January 29, 2019 imposition of concurrent life terms entered after a rese ntence hearing

. W e affirm , but remand for a third hearing in light of the Supreme C ourt's decision
in State v. Comer

. 1

1 State v. Comer , ___ N.J. __

_ (2022).3 A

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D efendants 2 murdered an elderly couple during a home invasion burglary on March 2, 1994

. Before breaking into the isolated home through a basement window, then sixteen

- year - old Beltran cut wires he believed activated a burglar alarm system , and almost immediately shot the wife four times , execution

- style. The group dragged the victim's body down the stairs and left her in a corner of
the basement.
T he victim's husband returned home some forty

- five minutes later. B aker shot twice, striking t h e husband' s cheek with the second bullet. T he husband fled the house and ran down the driveway , attempt ing to escape. The burglars gave chase. When they caught him, one of them smashed the husband's head with the butt of the gun , knocking him down to the ground, before the group kick ed and beat h i m. The tri o dragged the husband back into the house where they stabbed and pummeled him to death. The medical examiner found the husband suffered twenty

- seven separate injuries , including thirteen cut wounds, four tear wounds, four fractured ribs, a bullet wound , and numerous defensive wounds. Beltran and Baker were prosecuted as adult s. A jury convicted Beltran of the following charges: (1) burglary , N.J.S.A. 2C:18

- 2 (count o ne); (2) murder

2 A third participa n t is not involved in this appeal.4 A

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of Margaret McLoughlin (Margaret) , N.J.S.A. 2C:11

- 3(a)(1) and (2) (count two); (3) felony murder of Margaret , N.J.S.A. 2C:11

- 3(a)(3) (count three); (4) murder of George McLoughlin (George) , N.J.S.A. 2C:11

- 3(a)(1) and (2) (count four); (5) f elony murder of George , N.J.S.A. 2C:11

- 3(a)(3) (count five); (6) robbery of Margaret , N.J.S.A. 2C:15

- 1 (count six); (7) robbery of George , N.J.S.A. 2C:15

- 1 (count seven); (8) possession of a handgun for an unlawful
purpose , N.J.S.A. 2C:39

- 4(a) (count eight ); (9) possession of a knife for an unlawful purpose , N.J.S.A. 2C:39

- 4(d) (count nine); (10) unlawful possession of a handgun , N.J.S.A. 2C:39

- 5(b) (count ten); (11) unlawful possession of a
knife , N.J.S.A. 2C:39

- 5(d) (count eleven); (12) criminal mischief , N.J.S.A.
2C:17

- 3(a)(1) (count twelve); and (13) false incrimination, N.J.S.A. 2C:28

- 4(a) (count thirteen).
O n January 13, 1995 , 3 the trial judge sentenced Beltran to two consecutive life terms for the two murder convictions , each carrying the minimum mandatory thirty

- year parole ineligibility period. The judge merged the felony murders and possession of a weapon for unlawful purposes , impos ing c oncurrent terms for the remaining offenses. We a ffirmed the convictions and sentences. State v. Beltran , No. A

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- 94 (App. Div. May 23, 1997). Beltran appealed no further.

3 The judgment of conviction (JOC) was dated January 27, 1995.5 A

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Beltran's third post

- conviction relief petition (PCR) a sse r t ed his sentence violated Miller v. Alabama , 567 U.S. 4 60 (2012), wh ich declared mandatory life terms imposed for juveniles convicted of homicide unconstitutional under the Eighth Amendment

. In light of State v. Zuber , 227 N.J. 422, cert. denied , ___ U.S. ___, 138 S. Ct. 152 (2017), the Court summarily remanded for resent ence. Zuber extended the Miller doctrine to apply to aggregate sentence s functional ly equivalent to life sentence s . See State v. Beltran , 229 N.J. 151 (2017). After Beltran's trial and sentence in 1995 , Baker pled guilty to felony murder as to one vic tim and murder as to the other

. H e negotiated for two life terms, each subject to a thirty

- year parole bar , with the understanding that the State would argue for consecutive sentences. The trial court conducted the sentencing hearing on May 18, 1995, and entered the JOC on May 23, 1995. The trial judge granted the State's application and imposed consecutive terms. Baker appealed, we affirmed, and the Supreme Court denied certification. State v. Baker , 153 N.J. 48 (1998); State v. Baker , No. A

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- 94 (App. Div. Oct. 27, 1997). On April 10, 2017, on reconsideration of his third appeal of unsuccessful
PCR petitions , we remanded for resentenc ing in light of Zuber

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On September 4, 2018, a different judge 4 conducted an extensive sentence hearing . D efendants submitted the ir psychological evaluations, testimony f rom B a ker's psychologist, statements from the victims ' family , a nd statement s from defendants' families . Defendants demonstrated that they had not committed infraction s in prison f or many years, obtained several ce rtifications and diplomas, and enjoyed their respective families ' support

. T he victims' grandson , among the victims' family members who made statements, lamented that , due to constant updates about defendants' various legal proceedings, "f or almost two

thirds of my life, I have not been able to go more than a month or two without direct interaction with this crime

. " Beltran 's lengthy statement includ ed a discussion of caselaw he considered relevant, and a complaint that he only received the sentencing memoranda from his lawyer and the State a few days prior. Before the judge formally imposed the new sentence on January 29, 2019, the court heard Beltr an's supplemental written statement , which he had prepared the prior weekend. During this additional statement, Beltran disagreed with his lawyer's presentation regarding Zuber :

My confession does contain some facts about this case but in the

. . . sense , that we went there for guns and

4 The trial judge had since retired

.7 A

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W hat happened and who did [ what ] isn't as clear. For example, I have no idea why I confessed to kicking [the husband]. Yeah, I don't remember doing so nor confessing to it but I've seen that it's down in my confession. I don't know why I said that. Beginning with the submissions regarding Beltran, the judge thoughtfully reviewed the information presented at the hearing , the trial , and the first sentencing. He found aggravating factor one because of the horrific nature of the crimes. N.J.S.A. 2C:44

- 1(a)(1) . He also found aggravating factor three, based not only on the more than forty total juvenile complaints pending or adjudicate d against Beltran at the time of the murders, but also because he continued to pos e " a substantial risk of [committing] new offenses if released."
N.J.S.A. 2C:44

- 1(a)(3) . The judge gave substantial weight to aggravating factor nine. N.J.S.A. 2C:44

- 1(a)(9) . He also afforded great w eight to aggravating factor twelve, citing the ages and vulnerability of the victims . N.J.S.A. 2C:44

- 1(a)(12)

. In discussing Miller and Zuber , the judge noted that this crime did not result from impulse , or the casual possession of a gun. Defendants concocted a plan, selected targets, and schemed ahead of time to shoot any occupants in the
home. The judg e described this home invasion burglary as atypical because of8 A

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the purposeful nature of the homicides, including the multiple assaults up on the husband. The judg e found that despite the passage of time and Beltran's positive growth, he still lack ed appropriate maturity, still thought " in concrete ways, " and failed to grasp the broader impact of his crimes. Beltran 's limited insights
and remorse caused the judge to opine he had not been rehabilitated. The judge therefore sentence d Beltran to the original life term subject to thirty years of parole ineligibility, with the major change that Zuber "demand[ed]" the terms be concurrent. The judge added that , considering the weight of the aggravating factors

a n d total lack of any mitigating factors , t he Yarbough 5 factors would ordinarily require a consecutive sentence but for Miller and Zuber . But Miller and Zuber , in his opinion , mandat ed concurrent sentences. Yarbough would have ordinarily result ed in consecutive sentences for two pre - planned murders committed forty

five minutes apart during a home invasion

. The judge applied the same legal analysis to Baker. He noted Baker had only three juvenile adjudications when originally sentenced. As with Beltran, and for the same reasons, h e found aggravating factor one . He also found

5 State v. Yarbough , 100 N.J. 627 (1985).9 A

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aggravating factor s three and nine. The judge did not believe Beltran had been the "ringleader , " but characterized the crime as a "collaborative effort." He even called Baker the "precipitator of the action against [ the husband ] ." Baker shot the newly widowed husband in the face, in his own home, from two feet away . Baker then chased the husband down the driveway, beat him with the gun , knock ed him to the ground, "and

. . . kicked him in the head and stomped on him
. . . ." Baker and his cohorts carried the husband back inside his home, stomped him some more, then ended his life by stabbing him multip le times with his own kitchen knives. The judge reiterated that this was not the typical situation where, for instance, a convenience store clerk is shot incidental to juveniles committing a theft. Under Yarbough , consecutive sentences would have been w arranted had
Baker been an adult when he committed murder s . While Baker appeared more
matur e than Beltran, approach ing rehabilitation, t he judge had concern about hi s psychological profile , including his history of animal abuse. Unlike Be ltran , who grew up in an un favora ble environment , the judge expressed fears that "there's something else going on with

. . . Baker

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In sum, the judge concluded , after thoughtful consideration of the evidence , that the only thing that had meaningfull y changed since the original sentencing was the law

— not the fundamental character of defendants

. On appeal, Baker raises the following points:
POINT I
IN RESENTENCING THIS DEFENDANT PURSUANT TO THE DECISION IN STATE v. ZUBER , THE JUDGE FAILED TO ADDRESS THE BOTTOM

- LIN E ISSUE OF WHETHER DEFENDANT HAD BEEN REHABILITATED DURING HIS MANY YEARS IN PRISON AND WAS "FIT TO REJOIN SOCIETY." ACCORDINGLY, THE MATTER SHOULD BE REMANDED ONCE AGAIN FOR A PROPER RESENTENCING.
A. Zuber Requires That At A Resentencing The Judge Must Determine Whether, In Fact, A Juvenile Offender Has Been Rehabilitated, And If So, That Offender Must Be Resentenced To A Term That Will Allow For His Or Her "Release" From Prison.
B. The Judge Below Failed [To] Conduct A Full Resentencing In Compliance With Zuber

. 1. Zuber 's Directives For Resentencing 2. Jason Baker's Resentencing.
C. In New Jersey, Consideration For Release On Parole Does Not Constitute A "Meaningful Opportunity For Release Based Upon Demonstrated Maturity And Rehabilitation. "11 A

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On appeal, Beltran raises the following points:
POINT I
THE SENTENCE IMPOSED IS EXCESSIVE AND MANIFESTLY UNFAIR AS THE SENTENCING COURT FAILED TO PROPERLY CONSIDER AND WEIGH CERTAIN MITIGATING FACTORS.
POINT I I
THE SENTENCE IMPOSED IS EXCESSIVE AND UNFAIR AS THE SENTENCING COURT FAILED TO PROPERLY ANALYZE AND APPLY THE RELEVANT MILLER / ZUBER FACTORS.
POINT III
APPLICATION OF THE MANDATORY MINIMUM IN THIS CASE WAS UNCONSTITUTIONAL AS THE MINIMUM REQUIREMENT PR ECLUDED THE SENTENCING COURT FROM CONSIDERING AND IMPOSING A SENTENCE CONSISTENT WITH MILLER / ZUBER

. POINT IV
A LIFE SENTENCE WITH A THIRTY

- YEAR PERIOD OF PAROLE INELIGIBLITY IS ILLUSORY AS PAROLE BOARD STATISTICS SHOW THAT DEFENDANT IS HIGHLY UNLIKELY TO HAVE A REALISTIC OPPORTUNITY FOR PAROLE REGARDLESS WHETHER [OR NOT] HE PRESENTS EVIDENCE OF HIS REHABILITATION.12 A

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E xcept for defendants' contentions that the murder statute's parole ineligibility term is unconstitutional and that parole review does not provide a meaningful opportunity for release, this would have been excessive sentence appeal s , albeit through the avenue of post

- conviction relief because of Miller
and Zuber . However, the Court's recent decision in State v. Comer renders th em
moot. See State v. Comer , ___ N.J. ___ (slip op. at 6

- 7)

. T he judge addressed defendants' sentenc es understanding that the minimum sentenc e alternative for murder was thirty years of parole ineligibility. That is no longer the case. As in Comer , defendants were juveniles a t the time of the offense, although the double

- murder home

- invasion burglary does not appear to be an example of children "lack[ing] maturity and responsibility

. . . . " Id. (slip op. at
45 ). Defendants intended to comm it murder . The victims were not slain
in cidental to the burglary

. Be that as it may , a new sentencing alternative is now available

— namely, parole ineligibility of less than thirty years. See id. (slip op. at 5 8 ) . At th e
resentence hearing, the judge mu s t again consider the Miller factors to determine13 A

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whether defendants have been rehabilitated and are more cognizant of the risks and consequences of t h e i r actions. See ibid. Although the judge found neither defendant rehabilitated, he found neither to be incorrigibly corrupt. For that reason , we remand the matter again for fresh consideration of the sentence in light of Comer . Given the lapse in time since the last resentencing hearing, defendants are of course entitled to present up - to

date proofs regarding their conduct in the state prison system , or any other information they consider pertinent to their personal development or to prove rehabilitation

. Vacated and remanded for a sentencing rehearing to be conducted in light of State v. Comer . We do not reach defendants' additional issues as they are either made moot or irrelevant by this remand

. We express no opinion regarding the outcome of a Comer review of defendants' sentences. As the Court said, such review allows " minors a later opportunity to show they have matured, to present evidence of their rehabilitation, and to try to prove they are fit to reenter society . . . ." Id. ( s lip op. at 51 ). The Court also n oted that " ' [a ] n unacceptable likelihood exists that the ' brutal nature of an offen s e can 'overpo w er mitigating arguments based on youth.'" Id. ( slip op. at 54 ) (quoting Roper v. Simmons , 543 U.S. 551, 57314 A

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(2005)) . Thus, the court must "consider the totality of the evidence [ , ] " and "explain and make a thorough record of their findings to ensure fairness and facilitate review." Ibid. Vacated and remanded. We do not retain jurisdiction.