NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2146-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TOMAS DELEON,
Defendant-Appellant.
_________________________
Submitted September 29, 2021 – Decided December 6, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment Nos. 19-02-0253
and 19-04-0537.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel; Catherine A. Foddai, Legal Assistant, on the
brief).
PER CURIAM
This appeal presents one issue: whether N.J.S.A. 2C:44-1(b)(14), which
added a new mitigating factor for crimes committed by persons under the age of
twenty-six, should be applied retroactively to require the resentencing of a
defendant sentenced before the mitigating factor was added. We hold that it
does not. Accordingly, we affirm defendant's sentence that was imposed in
December 2019 before mitigating factor fourteen was added in October 2020.
I.
On October 31, 2018, a police officer attempted to arrest defendant on an
outstanding warrant and ordered him to stop his car. Defendant disregarded the
officer's order and, as he was fleeing, struck the officer and another person with
the car. In a separate incident, on March 17, 2019, another police officer, acting
on a report of a stolen vehicle, ordered defendant to stop his car. Defendant
disregarded that order and sped away, at times driving over one hundred miles
per hour. He eventually struck another vehicle, causing injury to a person riding
in it.
Defendant was indicted separately for each incident. On February 27,
2019, defendant was indicted for the October 2018 incident and charged with
fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); third-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(3)(a); second-degree eluding, N.J.S.A. 2C:29-2(b);
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third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-
1(b)(5)(a); and second-degree aggravated assault in the course of eluding,
N.J.S.A. 2C:12-1(b)(6). On April 24, 2019, defendant was indicted for the
March 2019 incident and charged with second-degree eluding, N.J.S.A. 2C:29-
2(b); second-degree aggravated assault in the course of eluding, N.J.S.A. 2C:12-
1(b)(6); third-degree burglary, N.J.S.A. 2C:18-2(a)(1); and third-degree theft,
N.J.S.A. 2C:20-3(a).
On September 30, 2019, pursuant to a negotiated plea agreement,
defendant pleaded guilty on the first indictment to second-degree eluding,
N.J.S.A. 2C:29-2(b), and third-degree aggravated assault of a law enforcement
officer, N.J.S.A. 2C:12-1(b)(5)(a), and on the second indictment to second-
degree eluding, N.J.S.A. 2C:29-2(b), and second-degree aggravated assault in
the course of eluding, N.J.S.A. 2C:12-1(b)(6). In pleading guilty, defendant
admitted that in both incidents the police officers had ordered him to stop his
car, he responded by fleeing, and he struck others with his car while he was
attempting to elude apprehension. Defendant was twenty-three years old at the
time he committed these crimes.
At the December 6, 2019 sentencing hearing, the court imposed the
recommended sentence that had been negotiated by the State in exchange for
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defendant's guilty pleas. In connection with the October 2018 incident,
defendant was sentenced on the eluding conviction to seven years in prison and
on the aggravated-assault conviction to a concurrent three-year term. In
connection with the March 2019 incident, defendant was sentenced on the
eluding conviction to seven years in prison and on the aggravated-assault-in-
the-course-of-eluding conviction to a concurrent seven-year term, eighty-five
percent to be served without parole, with three years of parole supervision. The
result was an aggregate term of seven years in prison, subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentences resulting from both
indictments were made to run concurrent to each other and concurrent to any
sentences that might be imposed on a violation of probation.
In imposing the sentences on defendant, the court found three aggravating
factors: factor three, the risk of re-offense, N.J.S.A. 2C:44-1(a)(3); factor six,
defendant's criminal history, N.J.S.A. 2C:44-1(a)(6); and factor nine, the need
to deter, N.J.S.A. 2C:44-1(a)(9). In finding those aggravating factors, the court
noted defendant had "a long history of substance abuse" and "multiple prior
indictable convictions at a very young age." The court gave "some weight" to
mitigating factor eleven, the imprisonment of the defendant would entail
excessive hardship to the defendant or the defendant's dependents, N.J.S.A.
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2C:44-1(b)(11), specifically defendant's four-year old son. The court found the
aggravating factors substantially outweighed the mitigating factors.
On January 17, 2020, the court issued amended Judgments of Conviction
to clarify that the sentences imposed on the two indictments were to run
concurrent to any sentence imposed for violations of probation and to any Drug
Court sentence. Defendant appeals from the amended Judgments of Conviction.
On appeal, defendant focuses his argument solely on the sentences
imposed on him on December 6, 2019. Defendant submits he is entitled to a
resentence given the Legislature's amendment of N.J.S.A. 2C:44-1(b) to include
youth as a mitigating factor to be applied to defendants under the age of twenty-
six at the time of their crimes. Defendant articulates his argument as follows:
POINT I
DEFENDANT SHOULD BE RESENTENCED IN
LIGHT OF THE NEWLY ENACTED AGE RELATED
MITIGATING FACTOR.
II.
On October 19, 2020, the Legislature passed, and the Governor signed
into law, several recommendations of the Criminal Sentencing and Disposition
Commission. See L. 2020, c. 106; L. 2020, c. 109; L. 2020, c. 110. One of the
new laws added a new mitigating factor for a court to consider in imposing a
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criminal sentence. L. 2020, c. 110. Specifically, mitigating factor fourteen was
added so that a court "may properly consider" the mitigating circumstance that
"defendant was under 26 years of age at the time of the commission of the
offense." N.J.S.A. 2C:44-1(b)(14).
The question of whether a newly enacted law applies retroactively "is a
purely legal question of statutory interpretation" based on legislative intent.
State v. J.V., 242 N.J. 432, 442 (2020), as revised (June 12, 2020) (quoting
Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)). "To determine
the Legislature's intent, we look to the statute's language and give those terms
their plain and ordinary meaning." Id. at 442 (citing DiProspero v. Penn, 183
N.J. 477, 492 (2005)). If the language of the statute clearly reflects the
Legislature's intent, then courts apply the law as written, affording the terms
their plain meaning. Ibid. If the language is ambiguous, "we may resort to
'extrinsic interpretative aids, including legislative history,' to determine the
statute's meaning." Id. at 443 (quoting State v. S.B., 230 N.J. 62, 68 (2017)).
"When the Legislature does not clearly express its intent to give a statute
prospective application, a court must determine whether to apply the statute
retroactively." Ibid. (quoting Twiss v. Dep't of Treasury, 124 N.J. 461, 467
(1991)). When considering criminal laws, courts presume that the Legislature
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intended them to have prospective application only. Ibid. Consistent with the
presumption in favor of prospective application, the savings statute also
"establishes a general prohibition against retroactive application of penal laws."
State v. Chambers, 377 N.J. Super. 365, 367 (App. Div. 2005); see also N.J.S.A.
1:1-15.
Our Supreme Court has recognized three exceptions to the presumption of
prospective application of statutes. J.V., 242 N.J. at 444. Those exceptions
apply when:
(1) the Legislature provided for retroactivity expressly,
either in the language of the statute itself or its
legislative history, or implicitly, by requiring
retroactive effect to "make the statute workable or to
give it the most sensible interpretation"; (2) "the statute
is ameliorative or curative"; or (3) the parties'
expectations warrant retroactive application.
[Ibid. (quoting Gibbons v. Gibbons, 86 N.J. 515, 522-
23 (1981)).]
An ameliorative statute "refers only to criminal laws that effect a
reduction in a criminal penalty." Perry v. N.J. State Parole Bd., 459 N.J. Super.
186, 196 (App. Div. 2019) (quoting Street v. Universal Mar., 300 N.J. Super.
578, 582 (App. Div. 1997)). To be afforded retroactive application, an
ameliorative statute "must be aimed at mitigating a legislatively perceived undue
severity in the existing criminal law." State in the Interest of J.F., 446 N.J.
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Super. 39, 55 (App. Div. 2016) (quoting Kendall v. Snedeker, 219 N.J. Super.
283, 286 n.1 (App. Div. 1987)).
A curative change to a statute is limited to actions that "remedy a
perceived imperfection in or misapplication of a statute." Pisack v. B & C
Towing, Inc., 240 N.J. 360, 371 (2020) (quoting James v. N.J. Mfrs. Ins. Co.,
216 N.J. 552, 564 (2014)). A curative change does not "alter the act in any
substantial way, but merely clarifie[s] the legislative intent behind the [previous]
act." Ibid. (alterations in original) (quoting James, 216 N.J. at 564).
N.J.S.A. 2C:44-1(b)(14) is not curative because it did not remedy an
imperfection; rather, it added a new mitigating factor based on new concerns
regarding youthful offenders. See L. 2020, c. 110. Moreover, while the new
mitigating factor is ameliorative, the Legislature stated that the statute was to
"take effect immediately," L. 2020, c. 110, thereby signaling that it was not to
be given retroactive effect.
In two recent decisions, our Supreme Court held that statutes that have an
immediate or future effective date evidence the Legislature's intent to afford
prospective application only. See Pisack, 240 N.J. at 370 (statute "take[s] effect
immediately" on the day it is signed into law); J.V., 242 N.J. at 435 (statute
applies in the future when effective date is after date of statute's enactment). In
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J.V., the Court explained that "[h]ad the Legislature intended an earlier date for
the law to take effect, that intention could have been made plain in the very
section directing when the law would become effective." 242 N.J. at 445
(quoting James, 216 N.J. at 568). Because we presume that the Legislature was
aware of the judicial construction of its statutes, N.J. Democratic Party, Inc. v.
Samson, 175 N.J. 178, 195 n.6 (2002), we assume the Legislature was aware of
Pisack (issued on Jan. 16, 2020) and J.V. (issued on June 12, 2020), both of
which were issued before the enactment of N.J.S.A 2C:44-1(b)(14) on October
19, 2020.
Moreover, the Legislature did not express any intent for the statute to be
applied retroactively. Silence on the question of retroactivity may be "akin to a
legislative flare, signaling to the judiciary that prospective application is
intended." Olkusz v. Brown, 401 N.J. Super. 496, 502 (App. Div. 2008).
Accordingly, because defendant was sentenced in 2019, before mitigating
fourteen was added, he is not entitled to a resentencing based purely on that
mitigating factor.
Our holding in that regard is consistent with the published cases that have
addressed whether mitigating factor fourteen should be applied retroactively.
We have discussed whether mitigating factor fourteen should be applied
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retroactively in two published opinions. See State v. Bellamy, 468 N.J. Super.
29 (App. Div. 2021); State v. Tormasi, 466 N.J. Super. 51 (App. Div. 2021).
In Tormasi, we held that the adoption of mitigating factor fourteen does
not provide a basis to grant a new sentencing hearing because the factor related
to the weight of the sentencing, which is a matter of excessiveness, not legality.
466 N.J. Super. at 67. In Bellamy, we held that when there is an independent
basis to order a new sentencing hearing, mitigating factor fourteen should be
applied in the new sentencing proceedings. 468 N.J. Super. at 47-48. We
explained:
This is not intended to mean cases in the pipeline in
which a youthful defendant was sentenced before
October 19, 2020, are automatically entitled to a
reconsideration based on the enactment of the statute
alone. Rather, it means where, for a reason unrelated
to the adoption of the statute, a youthful defendant is
resentenced, he or she is entitled to argue the new
statute applies.
[Id. at 48.]
Here, defendant has not argued that any independent basis unrelated to
mitigating factor fourteen warrants a resentencing. Because defendant was
sentenced on December 6, 2019, we hold that he is not entitled to a resentencing
based on the addition of mitigating factor fourteen, which was made effective
on October 19, 2020.
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Affirmed.
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