SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3831-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

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

NOT FOR PUBLICATION WITHOUT THE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.
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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.

I.

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-possessionof-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-controlleddangerous-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-OFDECISION 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 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 

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 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 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.