SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4363-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH KIETT, JR.,

Defendant-Appellant.

_______________________

Argued November 10, 2021 – Decided July 7, 2022

Before Judges Fuentes, Gilson and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment Nos. 85-04-0588 

and 85-04-0589.

Ashley T. Brooks, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Joseph J. Russo, Deputy 

Public Defender, and Ashley T. Brooks, of counsel and 

on the briefs). 

John J. Santoliquido, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Cary Shill, Acting Atlantic County 

Prosecutor, attorney; John J. Lafferty, IV, Special 

NOT FOR PUBLICATION WITHOUT THE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-4363-18

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the briefs; Debra B. Albuquerque, 

Special Deputy Attorney General/Acting Assistant

Prosecutor, on the briefs).

PER CURIAM

Defendant Ralph Kiett appeals from the April 11, 2019 Law Division 

order denying his motion to correct an illegal sentence. We affirm.

We recount the pertinent facts and extensive procedural history of the 

case. In 1983, defendant was detained and charged as a seventeen-year-old 

juvenile with first-degree murder stemming from the fatal stabbing of nineteenyear-old Elizabeth Ann Coutee. Our Supreme Court poignantly described the 

crime and characterized the evidence supporting guilt as follows:

Nineteen-year-old Elizabeth Ann Coutee disappeared 

on the night of February 25, 1982. Six days later, her 

body, nude except for her socks, was found in a marshy 

area near Westend Avenue in Atlantic City. She had 

been stabbed twenty-eight times. The evidence that 

defendant committed the crime was overwhelming.

[State v. Kiett, 121 N.J. 483, 485 (1990).]

Jurisdiction was waived to the Law Division where defendant was 

prosecuted as an adult and charged in a seven-count indictment with three counts

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

2C:39-4(d) and 2C:39-5(d); and two counts of aggravated sexual assault, 
3

A-4363-18

N.J.S.A. 2C:14-2(a) (4) and (6). The murder was designated as a capital offense

under the death penalty that was then in effect. A second three-count indictment 

charging two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5), 

and one count of second-degree escape, N.J.S.A. 2C:29-5(a), was also returned 

against defendant arising from his attempted escape while in custody on the 

murder-related charges. 

In 1985, defendant entered a negotiated guilty plea to one count of murder

and escape. Under the terms of the plea agreement, the State agreed to

essentially refrain from seeking the death penalty and move to dismiss the 

remaining charges in both indictments at sentencing. In accordance with the 

plea agreement, the trial court sentenced defendant to life imprisonment, with 

thirty years of parole ineligibility, on the murder conviction, and a consecutive 

ten-year term, with five years of parole ineligibility, on the escape conviction. 

At sentencing, as mitigating factors, the court expressly considered defendant's 

age, intellectual disability, early childhood emotional and physical trauma, and 

substance abuse history.

On appeal, our Supreme Court reversed our decision affirming defendant's 

convictions and sentence, see State v. Kiett, No. A-2113-85 (App. Div. Oct. 5, 

1988), and remanded to allow defendant to "withdraw his guilty plea," Kiett, 
4

A-4363-18

121 N.J. at 499. The Court determined that "[a]voiding the death penalty was a 

material factor in Kiett's decision to plead guilty." Id. at 491. However, because 

"Kiett was a juvenile at the time the crime was committed," the death penalty 

never applied to him, and he therefore "entered his guilty plea relying on 

misinformation about his eligibility for execution." Id. at 489-91.

On the remand, defendant negotiated a new plea agreement and, in 1991,

entered a retraxit plea of guilty to the same charges. In accordance with the new 

plea agreement, defendant was sentenced to life in prison, with a thirty-year 

parole disqualifier on the murder conviction and a concurrent, rather than a 

consecutive, ten-year term, with a five-year parole disqualifier, on the escape 

conviction. At sentencing, the court considered the fact that defendant had no 

prior criminal history as a mitigating factor. We affirmed the sentence on appeal

and the Supreme Court denied certification. State v. Kiett, No. A-5087-90 (App. 

Div. June 1, 1992), certif. denied, 130 N.J. 19 (1992).

Subsequently, defendant filed two petitions for post-conviction relief

(PCR) pursuant to Rule 3:22-1, one in 2008 and one in 2015, and one motion 

for a new trial pursuant to Rule 3:20-2 in 2014. The first PCR petition, termed 

a motion to correct an illegal sentence and alleging excessive sentence and 

ineffective assistance of counsel, was denied by the PCR court on procedural 
5

A-4363-18

and substantive grounds, and we affirmed. State v. Kiett, No. A-5166-09 (App. 

Div. June 17, 2011). The motion for a new trial, alleging that the case was 

improperly waived to the Law Division, was also denied by the trial court. We 

affirmed, and the Supreme Court denied certification. State v. Kiett, No. A2457-14 (App. Div. July 20, 2016), certif. denied, 228 N.J. 432 (2016). The 

second PCR petition, also termed a motion to correct an illegal sentence and 

alleging ineffective assistance of PCR counsel, was denied by the PCR court on

procedural grounds, and we affirmed on appeal. State v. Kiett, No. A-5316-15 

(App. Div. March 29, 2017).1 

In 2019, defendant again moved to correct an illegal sentence, arguing his 

sentence of life imprisonment with thirty years of parole ineligibility

contravened the rulings in Miller v. Alabama, 567 U.S. 460 (2012) and State v. 

Zuber, 227 N.J. 422 (2017). On April 11, 2019, the judge entered an order 

denying the motion. In an accompanying written opinion, the judge ruled the

motion was time-barred under Rule 3:22-12. Further, because the argument had 

been previously litigated in defendant's prior PCR petition, the judge found the 

1

 Defendant also filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, 

which was rejected by the federal district court on May 24, 2017, because the 

petition was filed twenty years too late, and defendant was not entitled to 

statutory tolling. Kiett v. Bonds, No. 17-2543, 2017 U.S. Dist. LEXIS 80887, 

at *4 (D.N.J. May 24, 2017). 
6

A-4363-18

motion was procedurally barred under Rule 3:22-5. Nonetheless, addressing the 

merits, the judge relied on State v. Bass, 457 N.J. Super. 1, 13-14 (App. Div. 

2018), and rejected defendant's contention, determining defendant's "sentence 

[was] not the functional equivalent of a life sentence without parole" to warrant 

relief under Zuber.

2

 

On June 11, 2019, defendant filed a notice of appeal (NOA) from the April 

11, 2019 order. Subsequently, on February 12, 2020, defendant filed a motion 

to expand the record to include parole statistics obtained from the New Jersey 

State Parole Board in response to a January 14, 2020 Open Public Records Act 

(OPRA), N.J.S.A. 47:1A-1 to -13, request. On March 3, 2020, we denied the 

motion.

In this ensuing appeal, defendant raises the following points for our 

consideration:

POINT I

THE LAW DIVISION ERRED IN FINDING THAT A 

MOTION TO CORRECT AN ILLEGAL SENTENCE 

BASED UPON MILLER V. ALABAMA, 567 U.S. 460 

(2012), AND STATE V. ZUBER, 227 N.J. 422 (2017) 

WAS "TIME-BARRED."

2

 Because defendant's moving papers were not included in the record, we rely 

on the judge's decision to discern defendant's argument. 
7

A-4363-18

POINT II

THE LAW DIVISION ERRED IN FINDING THAT A 

MOTION TO CORRECT AN ILLEGAL SENTENCE 

BASED UPON MILLER V. ALABAMA, 567 U.S. 460 

(2012), AND STATE V. ZUBER, 227 N.J. 422 (2017) 

WAS PRECLUDED UNDER [RULE] 3:22-5.

POINT III

THIS MATTER MUST BE REMANDED FOR 

RECONSIDERATION AND/OR EXPANSION OF 

THE RECORD GIVEN THAT THE FACTUAL 

PREDICATE RELIED ON BY THE LAW DIVISION, 

NAMELY THAT [DEFENDANT] FACED ONLY 

[THIRTY] YEARS OF PAROLE INELIGIBILITY, 

WAS IN ERROR.

POINT IV

THE LAW DIVISION ERRED IN ITS APPLICATION 

OF STATE V. BASS BY UTILIZING LIFEEXPECTANCY GIVEN THE UNEQUIVOCAL 

LANGUAGE IN STATE V. ZUBER INSTRUCTING 

COURTS NOT TO EMPLOY LIFE-EXPECTANCY 

TABLES WHEN ASSESSING THE OVERALL 

LENGTH OF A SENTENCE.

POINT V

THE LAW DIVISION ERRED IN DENYING 

[DEFENDANT] RELIEF UPON THE MERITS OF 

HIS APPLICATION TO CORRECT AN ILLEGAL 

SENTENCE BASED UPON MILLER V. ALABAMA, 

567 U.S. 460 (2012), AND STATE V. ZUBER, 227 

N.J. 422 (2017).
8

A-4363-18

POINT VI

THE HEARING AND SUBSEQUENT DECISION 

WERE SO INFECTED WITH ERROR THAT EVEN 

IF EACH INDIVIDUAL ERROR DOES NOT 

REQUIRE REVERSAL, THE AGGREGATE OF THE 

ERRORS DENIED [DEFENDANT] A FAIR 

HEARING. (NOT RAISED BELOW). 

"A defendant may challenge an illegal sentence at any time." Zuber, 227 

N.J. at 437 (citing R. 3:21-10(b)(5); State v. Acevedo, 205 N.J. 40, 47 n.4 

(2011)). "[A]n illegal sentence is one that 'exceeds the maximum penalty . . . 

for a particular offense' or a sentence 'not imposed in accordance with law.'" 

Acevedo, 205 N.J. at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000)). 

"That includes a sentence 'imposed without regard to some constitutional 

safeguard.'" Zuber, 227 N.J. at 437 (quoting State v. Tavares, 286 N.J. Super. 

610, 618 (App. Div. 1996)). Thus, a statutorily permissible sentence, as here,

"may still violate the constitutional prohibition against cruel and unusual 

punishment," rendering the sentence illegal. State v. Tormasi, 466 N.J. Super. 

51, 62 (App. Div. 2021). 

In Points I and II of his brief, defendant argues the judge erred in finding 

that his motion to correct an illegal sentence based on Miller and Zuber was 

procedurally barred because it was filed twenty-eight years after his 1991 guilty

plea and had been previously litigated in his 2010 PCR petition. The State 
9

A-4363-18

concedes that "[t]he language in Zuber is clear that motions related to the 

legality of a sentence can be brought at any time," and "Zuber provides a new 

basis to argue that his sentence was illegal" that did not exist in 2010. 

Nevertheless, according to the State, the judge's "ruling . . . on the substance of 

[defendant's] motion was correct." We agree. 

"In Miller, the Supreme Court declared that mandatory life imprisonment 

without parole imposed upon a juvenile sentenced as an adult violates the Eighth 

Amendment." Tormasi, 466 N.J. Super. at 62 (citing Miller, 567 U.S. at 479). 

"The Miller Court did not preclude the possibility of a life sentence for a juvenile 

convicted of homicide but reaffirmed and expanded its determination in Graham

[v. Florida, 560 U.S. 48 (2010)] that a life sentence may not be mandatory and 

should be 'uncommon' given a juvenile's 'diminished culpability and heightened 

capacity for change.'" Tormasi, 466 N.J. Super. at 63 (quoting Miller, 567 U.S. 

at 479). In so doing, the Miller Court identified factors unique to juvenile 

offenders "('the Miller factors') to be considered by sentencing judges." State v. 

Thomas, 470 N.J. Super. 167, 181 (App. Div. 2022).

In Zuber, the Court extended the holding of 

Miller to juveniles who receive a "lengthy, aggregate 

sentence that amounts to life without parole." 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 
10 A-4363-18

must consider the Miller factors in addition to the 

statutory aggravating and mitigating sentencing factors. 

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.'"

The Court did not define a de facto life term by 

any specific length and rejected the use of lifeexpectancy tables in deciding whether a lengthy term is 

effectively a life term. 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.

[Tormasi, 466 N.J. Super. at 64 (citations omitted) 

(quoting Zuber, 227 N.J. at 447, 450-51).3]

In Bass, we held that an aggregate term of life imprisonment with thirtyfive years of parole ineligibility for felony murder and burglary was not the 

functional equivalent of a life sentence, noting that the defendant was "eligible 

for parole" at age forty-nine. 457 N.J. Super. at 4, 12-13. We rejected the 

defendant's "argument that his sentence was illegal . . . and thus, warranted 

3

 "Defendant Ricky Zuber was sentenced to an aggregate 150-year term with a 

75-year period of parole ineligibility, which made him eligible for parole at age 

92." Tormasi, 466 N.J. Super. at 59 n.4 (citing Zuber, 227 N.J. at 428). 

"Defendant James Comer was sentenced to an aggregate 75-year term with a 

68.25-year period of parole ineligibility, which made him eligible for parole at 

age 85." Ibid. (citing Zuber, 227 N.J. at 430, 433, 448).
11 A-4363-18

review pursuant to Rule 3:21-10(b)(5)" and disagreed with his contention "that 

his rehabilitation while he was incarcerated ha[d] any bearing on the legality of 

his sentence." Bass, 457 N.J. Super. at 12-13. 

We reasoned that any rehabilitative actions the defendant had undertaken 

while incarcerated were matters for the parole board to consider and did not 

render the sentence unconstitutional under Zuber. Bass, 457 N.J. Super. at 14. 

We explained:

[D]efendant's sentence is not illegal because he now 

claims to be rehabilitated as a result of his 

incarceration. We do not minimize defendant's efforts 

to rehabilitate himself . . . . However, consideration of 

these accomplishments is exclusively the province of 

the parole board and not a means of collateral attack on 

defendant's sentence—which has been affirmed on 

direct appeal.

[Ibid.]

Similarly, in Tormasi, where defendant was sentenced to life 

imprisonment with a thirty-year period of parole ineligibility for murder, we 

held that the "[d]efendant's sentence d[id] not amount to the functional 

equivalent of life without parole" to warrant resentencing under Zuber. Tormasi, 

466 N.J. Super. at 66. We explained that the sentence was "far from a de facto 

life sentence without parole when imposed on a juvenile offender, who [would]

be eligible for release by age forty-seven." Ibid.
12 A-4363-18

Here, we agree with the judge that defendant's sentence of life 

imprisonment with a thirty-year parole bar is not the functional equivalent of a 

life sentence without parole to warrant resentencing under Zuber. Defendant 

argues the judge erred in relying on Bass because the Bass court "erroneously 

relied upon data from life expectancy charts" which "is directly contrary to the 

law clearly enunciated in Zuber." However, we find no merit in defendant's 

argument and no error in the judge's reliance on Bass to deny defendant's motion. 

Defendant further asserts the court inherently reasoned "that [defendant]

is likely to be paroled at the conclusion of his [thirty]-year period of parole 

ineligibility" and "[t]hus . . . denied relief upon its perception that [defendant]

would have a reasonable likelihood of being paroled when eligible." However, 

according to defendant, "given the statistics provided by the . . . Parole Board, 

the greater likelihood is that, regardless of any proof of rehabilitation," 

defendant "will not be paroled upon his first date, rendering his de facto period 

of parole ineligibility more likely to be at least [forty] years," "if not 

substantially longer in light of the systematic and routine denials of parole for 

inmates sentenced to life." Thus, defendant urges that we either "remand for 

consideration of de facto periods of parole ineligibility" to "evaluat[e 
13 A-4363-18

defendant's] sentence under Zuber" or "expand the record on appeal" to include 

the parole statistics.4 

We decline either invitation. First, nowhere in the judge's decision is it 

either stated or implied that defendant is likely to be paroled when eligible. 

Further, as we noted in Tormasi, "the fact that other inmates convicted of murder 

have been initially denied parole is presumably based on an individualized 

consideration of the regulatory factors as applied to those inmates. Accordingly, 

data showing the frequency of parole denial is not probative." Id. at 69.

Additionally, "[b]oth federal and State precedent on cruel and unusual 

punishment support a finding that the possibility of parole provides a meaningful 

opportunity for release." Id. at 67. Because "Zuber implicitly approve[d] of the 

parole process," the possibility, rather than a guarantee, of parole "provides a 

meaningful opportunity at release for purposes of the Eighth Amendment." 

Tormasi, 466 N.J. Super. at 67-68; see also Graham, 560 U.S. at 75 (stating "[a] 

State is not required to guarantee eventual freedom to a juvenile offender" but 

must "give defendants . . . some meaningful opportunity to obtain release based 

on demonstrated maturity and rehabilitation").

4

 The parole statistics defendant relies on were presented for the first time on 

appeal and were the subject of his motion to supplement the record, which we 

denied.
14 A-4363-18

"Moreover, '[t]he granting of parole is within the discretion of the [Parole] 

Board, and we must give great deference to the expertise of the Board in its 

parole decisions and not upset them unless it clearly and convincingly appears 

that the Board has abused its discretion.'" Tormasi, 466 N.J. Super. at 68 

(quoting Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437, 470 (1997)). "If 

defendant is denied parole, he has the right to appeal that decision to this court." 

Ibid. 

"[T]hat would be the appropriate time" for this court to 

consider whether the Parole Board adequately 

considered the rehabilitation and maturity defendant 

achieved while in prison, and if "judicially ordered 

parole of a convicted murderer might be in order. 

However, that possibility must await completion of the 

parole process in its entirety."

[Ibid. (quoting Acoli v. N.J. State Parole Bd., 224 N.J. 

213, 232 (2016)).]

"If [a defendant] serves a substantial period in prison due to a parole denial 

or denials, he may even have a basis to file a motion to correct an illegal sentence 

based on 'factors that could not be fully assessed when he was originally 

sentenced.'" Id. at 71 (quoting Zuber, 227 N.J. at 452). Those factors include 

"whether he may be, or has been, rehabilitated." Zuber, 227 N.J. at 452.

Since filing his NOA from the April 11, 2019 order, defendant was again 

denied parole on June 22, 2021. His current parole eligibility date is September 
15 A-4363-18

16, 2023. By leave granted, defendant filed a supplemental brief raising the 

following additional point for our consideration:

[DEFENDANT] IS ENTITLED TO A ZUBER

RESENTENCING BECAUSE HIS SENTENCE IS 

THE PRACTICAL EQUIVALENT TO A LIFE TERM 

AND HE HAS NOT BEEN AFFORDED A 

MEANINGFUL OPPORTUNITY FOR RELEASE. 

GIVEN THAT [DEFENDANT] HAS AGAIN BEEN 

DENIED PAROLE, RESULTING IN A FORTYYEAR SENTENCE AT MINIMUM, HIS MOTION TO 

CORRECT AN ILLEGAL SENTENCE MUST BE 

RECONSIDERED AND GRANTED.

Defendant has not indicated whether he appealed his parole denial. 

Nonetheless, the development of defendant's latest parole denial does not alter 

our decision. On this record, defendant has not established that his sentence is 

the functional equivalent of a life sentence without parole or that the prospect 

of release at the age of fifty-eight,

5

after serving forty years, is tantamount to a 

life sentence. "Despite the lengthy sentence defendant has served, there are no 

similarities between his sentence and the sentences reviewed in Zuber." Bass, 

457 N.J. Super. at 14. 

That said, we do not foreclose the possibility that defendant may be able 

to return to court to show that he has sufficiently reformed himself to a degree 

5

 Defendant was born in July 1965.
16 A-4363-18

that his sentence is no longer constitutional under the Eighth Amendment. See

State v. Comer, 249 N.J. 359, 370 (2022) (creating a procedure for juvenile 

offenders sentenced to the murder statute's mandatory thirty-year parole bar to 

petition the court for a hearing after serving at least twenty years in prison for 

the sentencing court to assess the Miller factors, including "whether the juvenile 

offender still fails to appreciate risks and consequences, and whether he has 

matured or been rehabilitated," as well as "the juvenile offender's behavior in 

prison since the time of the offense"); Thomas, 470 N.J. Super. at 193-94, 197, 

199 (ordering "an adversarial, evidentiary hearing under Comer" for a defendant 

who "perpetrated a horrific double murder when he was seventeen years old," 

"was sentenced to life in prison without a specified period of parole 

ineligibility," served more than forty years in prison due to seven parole denials,

yet "ha[d] been a model prisoner" with "a blemish-free disciplinary record" and 

received "numerous positive psychological evaluations").

To the extent we have not specifically addressed any of defendant's 

remaining arguments, we deem them without sufficient merit to warrant 

discussion in a written opinion. See R. 2:11-3(e)(2).

Affirmed.