We recognize that defendant was not sentenced to life without parole or life with a lengthy period of parole ineligibility and was eligible for parole after serving only thirteen years. “Nevertheless, a statutorily permissible sentence may still violate the constitutional prohibition against cruel and unusual punishment.” We focus “on the amount of real time” defendant has spent in prison “and not on the formal label attached to his sentence.”
Here, there is seemingly no end to defendant’s imprisonment. Despite his exemplary behavior during more than forty years in prison, he has been denied parole seven times and received lengthy FETs each time. As we recognized in Tormasi, a defendant who “serves a substantial period in prison due to a parole denial or denials . . . may . . . 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.” The record establishes that defendant has met that threshold. Defendant “must be given the opportunity to show his crimes did not reflect irreparable corruption” and thereby avoid cruel and unusual punishment.
We also recognize that in Bass, we stated that a “defendant’s sentence is not illegal because he claims to be rehabilitated as a result of his incarceration.” The facts in Bass are distinguishable. Bass was sentenced to an aggregate sentence of life with thirty-five years of parole ineligibility. Unlike in this case, Bass had not undergone a series of parole denials and lengthy FETs, and the case focused on whether the defendant was entitled to PCR, based on his argument that the revised waiver statute applied retroactively to his case. We rejected that argument and concluded that his sentence was not illegal. We also concluded that consideration of the defendant’s efforts at rehabilitation was “exclusively the province of the parole board and not a means of collateral attack on the defendant’s sentence–which has been affirmed on direct appeal.” The Bass court did not engage in a full analysis of whether the defendant’s sentence violated the Federal or State constitutions. To the extent that Bass may be interpreted as barring a Miller/Zuber/Comer hearing under the facts of this case, we reject that conclusion. In any event, Bass does not comport with the holding in Comer.
FET stands for Future Eligibility Term. The defendant was convicted of murdering two teenagers in Atlantic County in 1980. The defendant was 17 years old at the time of the murders.
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