Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Bass

Superior Court of New Jersey, Appellate Division

November 14, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
CALVIN BASS, Defendant-Appellant.

          Submitted October 31, 2018

          On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 83-06-2420.

          John 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).

          Before Judges Alvarez, Reisner, and Mawla.

          OPINION

          MAWLA, J.A.D.

         Defendant 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 with finality.

         The 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.

         Following 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. 2C:39-4(d).

         Defendant 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.

         Defendant 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).

         Defendant's 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.

         In June 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.

         The 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 rehabilitation.

         The PCR 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.

         The judge concluded:

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.

         The PCR 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, www.gannlaw.com (2017).]

         The PCR 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.