STATE OF NEW JERSEY v. EVAN SIEMASKO

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3831-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

EVAN SIEMASKO, a/k/a
EVAN JAMES SIEMASKO,

Defendant-Appellant.
__________________________

Submitted November 17, 2021 – Decided December 6, 2021

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 20-02-0058.

Joseph E. Krakora, Public Defender, attorney for
appellant (Al Glimis, Designated Counsel, on the
brief).

James L. Pfeiffer, Warren County Prosecutor, attorney
for respondent (Dit Mosco, Assistant Prosecutor, of
counsel and 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

April 2020 before mitigating factor fourteen was added in October 2020.

On November 15, 2019, a police officer received a report that defendant,

who was in a car parked at a Wawa, appeared to be passing out. The police

responded and ultimately searched his car, finding a can containing four bags of

methamphetamine and a Glock 19 handgun. Defendant did not have a permit

for the handgun and was ineligible to obtain a permit for it because he previously

had been convicted of distributing a controlled dangerous substance.

On February 20, 2020, defendant was charged with second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); second-degree being

a certain person not permitted to possess weapons, N.J.S.A. 2C:39-7(b)(1); and

third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-

10(a)(1). On that same day, defendant waived his right to have his case

presented to a grand jury and to a jury trial and pleaded guilty to all three

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charges. In pleading guilty, defendant admitted that on November 15, 2019, he

had possessed four bags containing methamphetamine and a Glock 19 handgun,

knowing he did not have and could not have a permit for a handgun. Defendant

was twenty-two years old at the time he committed these crimes.

At the April 9, 2020 sentencing hearing, the court imposed the

recommended sentence that had been negotiated by the State in exchange for

defendant's guilty pleas. Defendant was sentenced on the unlawful -possession-

of-a-handgun conviction to a term of five years in prison with forty-two months

of parole ineligibility; on the certain-persons conviction to five years in prison

with five years of parole ineligibility; and on the possession-of-a-controlled-

dangerous-substance conviction to five years in prison. All sentences were to

run concurrently to each other.

In imposing the sentence, 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 admitted to "a substance abuse history, involving alcohol,

marijuana, heroin, cocaine, methamphetamine, LSD and K2" and had two prior

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indictable convictions in New Jersey and prior convictions for unlawful

possession of a firearm and other drug-related offenses in Pennsylvania.

The court found mitigating factor four, there were substantial grounds

tending to excuse or justify the defendant's conduct, though failing to establish

a defense, N.J.S.A. 2C:44-1(b)(4), based on defendant's substance-abuse

history. The court also gave "light weight" to mitigating factor eight, the

defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A.

2C:44-1(b)(8), given defendant's character and attitude at sentencing.

On appeal, defendant focuses his arguments on the sentence he received

in April 2020 and 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 arguments as follows:

POINT I

DEFENDANT IS ENTITLED TO HAVE THE COURT
CONSIDER HIS YOUTH AS A MITIGATING
FACTOR IN ACCORDANCE WITH P.L. 2020,
CHAPTER 110. DEFENDANT'S SENTENCE
SHOULD BE VACATED AND THE MATTER
REMANDED FOR RESENTENCING.

1. The October 19, 2020, Statutory
Amendment to N.J.S.A. 2C:44-1(b)'s List
of Mitigating Factors.

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2. Defendant and Similarly Situated
Defendants Are Entitled To A Remand
Under The Provisions Of The Savings
Statute, N.J.S.A. 1:1-15, Because The
Amendment: Pertained To A Mode of
Procedure, The Proceedings On The
Indictment Are Ongoing, And A Remand
Is Practicable.

POINT II

THE AMENDMENT TO N.J.S.A. 2C:44-1(b)
SHOULD BE APPLIED TO DEFENDANT'S
PENDING APPEAL UNDER THE TIME-OF-
DECISION RULE, BECAUSE IT WAS AN
AMELIORATIVE REVISION THAT THE
LEGISLATURE ENACTED TO BE EFFECTIVE
IMMEDIATELY.

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

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).

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The question of whether a newly enacted law applies retroactively "is a

pure 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 sta tute'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

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."

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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.

Super. 39, 55 (App. Div. 2016) (quoting Kendall v. Snedeker, 219 N.J. Super.
283, 286 n.1 (App. Div. 1987)).

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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

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

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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 April 2020, before mitigating

factor 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

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).

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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 re lated

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 there is any independent basis

unrelated to mitigating factor fourteen warranting a resentencing. As defendant

was sentenced on April 9, 2020, 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.

Affirmed.

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