STATE OF NEW JERSEY v. ELIAH HAWKINS

NOT FOR PUBLICATION WITHOUT THE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-3707-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ELIAH HAWKINS,

          Defendant-Appellant.


                   Submitted October 26, 2021 – Decided December 13, 2021

                   Before Judges Fisher and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 15-08-1893.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alyssa Aiello, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Eighteen-year-old defendant Eliah Hawkins and another man approached

the victim who was standing outside an ATM machine. They pretended to have

a gun and told the victim to withdraw money. After the victim did so, defendant

took the money and the victim's cellphone. They had previously robbed the

same victim earlier that day at a bus stop.

      Defendant pleaded guilty to first-degree robbery,  N.J.S.A. 2C:15-1, and

second-degree conspiracy to commit robbery,  N.J.S.A. 2C:5-2. The remaining

five counts were dismissed. In 2016, the court sentenced defendant to ten years'

imprisonment subject to the No Early Release Act,  N.J.S.A. 2C:43-7.2. This

was the recommended sentence in the plea bargain.

      On appeal, defendant presents two points for our consideration:

            POINT I

            THE    LAW     REQUIRING   SENTENCING
            MITIGATION FOR YOUTHFUL DEFENDANTS
            DEMANDS    RETROACTIVE     APPLICATION
            BECAUSE THE LEGLISLATURE INTENDED IT,
            THE NEW LAW IS AMELIORATIVE IN NATURE,
            THE SAVINGS [STATUTE] IS INAPPLICABLE,
            AND FUNDAMENTAL FAIRNESS REQUIRES
            RETROACTIVITY.

            A. The Legislature Intended Retroactive Application

                   1. The Legislature did not express a clear intent
                   for prospective application.


                                                                          A-3707-19
                                        2
                  2. The other language of the mitigating factor
                  indicates retroactive application; the presumption
                  of prospective application is inapplicable; and the
                  law is clearly ameliorative.

                  i. There is no manifest injustice to the State in
                  applying the mitigating factor retroactively.

            B. The Savings Statute Does Not Preclude Retroactive
            Application of Ameliorative Legislative Changes, Like
            the One at Issue Here.

            C. Because Retroactive Application of the Youth
            Mitigator Could Result in a Lower Sentence, A Remand
            Is Required as a Matter of Fundamental Fairness, and
            to Effectuate the Remedial Purpose of the Sentencing
            Commission's Efforts Regarding Juvenile Sentencing.

            POINT II

            A REMAND FOR RESENTENCING IS REQUIRED
            BECAUSE THE JUDGE DID NOT PROPERLY
            CONSIDER WHETHER SENTENCING IN THE
            SECOND-DEGREE RANGE WAS WARRANTED.

      In assessing defendant's arguments regarding his sentence, we apply well

settled principles that afford considerable deference to sentencing judges.

      As a general proposition, appellate courts may not substitute their

judgment for that of the sentencing court, unless the application of

the sentencing guidelines to the facts "makes the sentence clearly unreasonable

so as to shock the judicial conscience." State v. Roth,  95 N.J. 334, 364-65

(1984); see also State v. Liepe,  239 N.J. 359, 370 (2019) (quoting State v.

                                                                              A-3707-19
                                        3
McGuire,  419 N.J. Super. 88, 158 (App. Div. 2011)). "[W]hen [trial judges]

exercise discretion in accordance with the principles set forth in the Code [of

Criminal Justice] and defined by [the Court] . . . , they need fear no second-

guessing." State v. Bieniek,  200 N.J. 601, 607-08 (2010) (internal quotations

omitted) (quoting State v. Ghertler,  114 N.J. 383, 384-85 (1989)). Once the trial

court has balanced the aggravating and mitigating sentencing factors set forth

in  N.J.S.A. 2C:44-1(a) and – 1(b), it "may impose a term within the permissible

range for the offense."     Id. at 608; see also State v. Case,  220 N.J. 49, 54

(2014); State v. Fuentes,  217 N.J. 57, 70-71 (2014).

        During the sentencing hearing, the court merged count two into count one.

Defense counsel acknowledged defendant had eleven arrests and seven

adjudications as a juvenile, one for a robbery less than a year before the present

offense. Nevertheless, defense counsel requested the court sentence defendant

in the second-degree range.

        The judge found there were no "interests of justice" to warrant a second-

degree sentence. She found no mitigating factors and one aggravating factor,

 N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the

law).




                                                                            A-3707-19
                                        4
      Defendant contends the court erred in rejecting defendant's request to be

sentenced within the second-degree range for first-degree robbery. We disagree.

      Under  N.J.S.A. 2C:44-1f(2) a court may impose a sentence for a crime

one degree lower if certain criteria are met.        The court must be "clearly

convinced" that the mitigating factors substantially outweigh the aggravating

factors and it is in the "interests of justice" to do so. Defendant cannot establish

either prong of the statute. Therefore, there was no error in the sentencing.

      Defendant also contends the case should be remanded for application of

the mitigating factor of youth to be considered in sentencing as espoused

in L. 2020, c. 110 (eff. Oct. 19, 2020), which amended  N.J.S.A. 2C:44-1(b) by

adding the defendant's youth (i.e., less than twenty-six years of age) to the

mitigating sentencing factors. Our case law has rejected the claim that this

statute applies retroactively in the absence of an independent basis to remand

a sentence. See State v. Tormasi,  466 N.J. Super. 51, 67 (App. Div. 2021).

Since we are not remanding the sentence there is no basis to consider the new

"youth factor."

      Affirmed.




                                                                              A-3707-19
                                         5