Submitted October 31, 2018
appeal from Superior Court of New Jersey, Law Division, Essex
County, Indictment No. 83-06-2420.
Vincent Saykanic, attorney for appellant.
Theodore N. Stephens II, Acting Essex County Prosecutor,
attorney for respondent (Tiffany M. Russo, Special Deputy
Attorney General/Acting Assistant Prosecutor, of counsel and
on the brief).
Judges Alvarez, Reisner, and Mawla.
Calvin Bass appeals from a September 7, 2017 order denying
his fourth petition for post-conviction relief (PCR). We
affirm, and hold N.J.S.A. 2A:4A-26.1(c)(1), which does not
authorize the waiver to adult court of a juvenile under the
age of fifteen, has no retroactive application where a
defendant's conviction and sentence have been adjudicated
following facts are taken from the record. In March 1983,
defendant and two other minors were arrested for entering the
home of an elderly man and fatally beating him with a wooden
nail-studded board to near decapitation, while he lay in bed.
Defendant was fourteen years and one month old at the time of
the arrest. He was found in possession of the wooden board,
as well as two color televisions and an eight-track player
belonging to the victim.
a competency hearing, the Family Part judge granted the
State's motion to waive jurisdiction pursuant to N.J.S.A.
2A:4A-26. Subsequently, a jury convicted defendant of
first-degree felony murder, N.J.S.A. 2C:11-3(a)(3);
second-degree burglary, N.J.S.A. 2C:18-2(b)(2); first-degree
robbery, N.J.S.A. 2C:15-1(b); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A.
was sentenced to life imprisonment with thirty years of
parole ineligibility for the first-degree felony murder
conviction, and ten years with five years of parole
ineligibility for the second-degree burglary-which ran
consecutively. Defendant was sentenced to eighteen months
each on the fourth-degree unlawful possession of a weapon and
third-degree possession of a weapon for an unlawful purpose,
which ran concurrently with the felony murder and burglary
sentences. All other charges were merged. Defendant's
aggregate sentence was life imprisonment with thirty-five
years of parole ineligibility.
appealed from his conviction and sentence, and we affirmed.
State v. Bass, No. A-0056-84 (App. Div. Sept. 26,
1986) (slip op. at 10). The Supreme Court denied
certification. State v. Bass, 107 N.J. 70 (1987).
first PCR petition was denied without an evidentiary hearing
in 1988. He did not appeal from the denial, but filed a
federal writ of habeas corpus, which was dismissed.
Defendant's second PCR petition was denied, and we
affirmed on appeal. State v. Bass, No. A-5963-95
(App. Div. Jan. 22, 1998) (slip op. at 2). The Supreme Court
denied certification. State v. Bass, 153 N.J. 404
(1998). Defendant filed a second federal writ of habeas
corpus, which was terminated on March 12, 1999.
2011, defendant filed a third PCR petition, which was denied.
He subsequently filed a third federal writ of habeas corpus,
which was denied in October 2013.
matter currently on appeal arises from defendant's fourth
PCR petition, filed in February 2017. In his petition,
defendant argued the revised waiver statute, N.J.S.A.
2A:4A-26.1(c)(1), enacted in 2015, should be applied
retroactively to his case. Defendant challenged his sentence
and argued it was tantamount to a life sentence without
parole, and thus, illegal. Defendant also argued his
subsequent rehabilitation during incarceration refuted the
sentencing judge's finding defendant was not amenable to
judge issued a written opinion denying defendant's
petition without an evidentiary hearing. Reviewing the plain
language of N.J.S.A. 2A:4A-26.1(c)(1), the PCR judge found no
express language permitting the retroactive application of
the statute. Referencing our decision in State in
Interest of J.F., 446 N.J.Super. 39, 56 (App. Div.
2016), where we applied the statute retroactively, the judge
concluded the ameliorative purpose of the revised waiver
statute was procedural in nature and did not "affect a
criminal penalty." The judge found there was no
expectation the revised statute would apply to defendant
because he had already been
waived, indicted, tried, and sentenced nearly [thirty-three]
years before the revision came into effect. His conviction
and sentence were affirmed. He filed three PCR petitions
which were denied and affirmed on appeal. He has filed three
times for a federal writ of habeas corpus which were then
respectively dismissed, terminated, and denied.
While the majority in [J.F.] makes a compelling
argument for why N.J.S.A. 2A:4A-26.1 should apply
retroactively in that particular case, its instruction to the
lower courts is unclear as to how it would apply to an aged,
[extensively] litigated case such as the one before this
court. In light of that ambiguity, the preference for
applying new laws prospectively must control, as should a
plain language reading of the statute, which does not
expressly mention retroactivity.
judge rejected defendant's arguments regarding his
sentence. He concluded:
Defendant's sentence is not functionally equivalent to
life without parole: his parole disqualifier is [thirty-five]
years. He is, in fact, currently scheduled for a parole board
hearing on September 1, 2018, at which time he will be
[forty-nine] years old. Pursuant to the life expectancy chart
adopted for use in the New Jersey Courts, [defendant] is
currently expected to live another 32.2 years. [Life
Expectancies for All Races and Both Sexes, Pressler &
Verniero, Current N.J. Court Rules, Appendix I-A,
judge rejected defendant's claim that his rehabilitation
during incarceration warranted revisiting his sentence,
because there was no means for the sentencing judge to
consider defendant's rehabilitation as a factor. The
judge concluded defendant's ...