SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4819-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEVANTE DORMENA,

Defendant-Appellant.

_______________________

Submitted September 20, 2021 – Decided September 27, 2021

Before Judges Fasciale and Vernoia.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 18-06-0519.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Ashley Brooks, Assistant Deputy Public 

Defender, of counsel and on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Stephanie Davis Elson, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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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Following a guilty plea, defendant appeals from his conviction for seconddegree aggravated assault, N.J.S.A. 2C:12-1(b)(1). We remand for resentencing for reasons unrelated to the enactment of N.J.S.A. 2C:44-1(b)(14)—

a new mitigating factor—specifically because the judge made no findings as to 

N.J.S.A. 2C:44-1(b)(13). But on remand, the judge will view defendant as he 

stands before the court on that day and therefore may consider mitigating factor 

fourteen. 

On appeal, defendant argues:

POINT I

RESENTENCING IS REQUIRED BECAUSE THE 

[JUDGE] FAILED TO FIND CLEARLY PRESENT 

MITIGATING FACTOR THIRTEEN; 

[DEFENDANT] WAS SUBSTANTIALLY 

INFLUENCED BY HIS MORE MATURE 

CODEFENDANT, WHO WAS PRIMARILY 

RESPONSIBLE FOR THE OFFENSE. (Not Raised 

Below).

POINT II

[DEFENDANT] SHOULD BE RESENTENCED 

BECAUSE JUVENILE DEFENDANTS . . . DESIST 

FROM CRIME, AND THE [JUDGE] THUS ERRED 

IN FINDING AGGRAVATING FACTORS THREE 

AND NINE AND ASSIGNING THEM "VERY, VERY 

SUBSTANTIAL" AND "OVERWHELMING" 

WEIGHTS. (Not Raised Below).
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POINT III

THE LAW REQUIRING SENTENCING 

MITIGATION FOR YOUTHFUL DEFENDANTS 

MUST BE RETROACTIVELY APPLIED TO 

PENDING CASES. (Not Raised Below).

A. The Legislature Did Not Express [A] Clear 

Intent [F]or Prospective Application [I]n [T]he 

Plain Language [O]f [T]he Statute.

B. The Legislative History [A]nd Purpose [T]o 

Require Broad Consideration [O]f Youth [I]n 

Sentencing Militates [I]n Favor [O]f Retroactive 

Application. 

C. The Ameliorative Nature [O]f The Law 

Strongly Suggests [T]hat [T]he Legislature 

Would Have Intended [F]or Retroactive 

Application.

D. Because No Manifest Injustice Would Result 

[F]rom Applying [T]he Statute [T]o Cases 

Pending [O]n Direct Appeal, [T]he Statute 

Should Be So Applied.

E. The Savings Statute Does Not Preclude 

Retroactive Application [O]f Ameliorative 

Legislative Changes, Like [T]he One [A]t Issue 

Here. 

In January 2019, defendant pled guilty to second-degree aggravated 

assault. Under the plea agreement, defendant understood the State would 

recommend ten years in prison subject to the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2. However, defendant could argue for less than ten years 
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"based on [mitigating] factor [twelve]," which defendant's sentencing counsel 

argued warranted a four-year prison term subject to NERA. In May 2019, the 

judge imposed a seven-year prison term subject to NERA. 

On appeal, defendant argues the judge erred by failing to find mitigating 

factor N.J.S.A. 2C:44-1(b)(13) (stating "[t]he conduct of a youthful defendant 

was substantially influenced by another person more mature than the 

defendant"), and by finding aggravating factors N.J.S.A. 2C:44-1(a)(3) (stating 

"[t]he risk that the defendant will commit another offense") and N.J.S.A. 2C:44-

1(a)(9) (stating "[t]he need for deterring the defendant and others from violating 

the law"). For these reasons alone, defendant urges us to vacate the conviction 

for aggravated assault and remand for re-sentencing.

A year and one-half after the judge sentenced defendant, the Legislature 

enacted N.J.S.A. 2C:44-1(b)(14), a mitigating factor that may apply when "[t]he 

defendant was under [twenty-six] years of age at the time of the commission of 

the offense." Defendant initially argued in his merits brief that N.J.S.A. 2C:44-

1(b)(14) applies retroactively and that the judge should have considered the new 

factor on remand. But after we later rendered our opinion in State v. Bellamy,

___ N.J. Super. ___ (App. Div. 2021) (allowing consideration of the new 

mitigating factor because a re-sentencing was unrelated to the adoption of the 
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statute), defendant's appellate counsel submitted a letter under Rule 2:6-11(d) 

pointing out that we need not reach the question of retroactivity because we 

should remand for reasons unrelated to the enactment of the statute. If we agree, 

defendant argues—like in Bellamy—then the remand judge should be permitted 

to consider mitigating factor fourteen because that judge would view defendant 

as he stands before the judge on that day. 

In his May 8, 2019 letter to the judge, defendant's sentencing counsel1

conceded that aggravating factor nine "certainly applies." And in fairness to the 

judge, defendant's sentencing counsel did not argue for mitigating factor thirteen 

or against aggravating factor three. Even though the judge did not explicitly 

analyze mitigating factor thirteen, he remarked "I understand you were young 

[and are] still young," and—potentially referring to defendant's nineteen-yearold friend who also pled guilty to a more serious charge—that defendant may 

have behaved more like a follower.2 The State contends, and might very well 

1

 This individual is not defendant's appellate counsel. 

2

 Defendant was seventeen years old at the time of this senseless incident.

Defendant, who was nineteen years old at sentencing, was waived up and treated 

as an adult. 

 
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be correct,3that mitigating factor thirteen is inapplicable because a more mature 

person did not substantially influence defendant. However, the judge did not 

explicitly make such findings, even though he remarked that defendant was and 

is young. 

We therefore remand for re-sentencing anew, which we leave to the 

discretion of the judge. At that time, the judge will view defendant as he stands 

before the court on the day of re-sentencing, and like in Bellamy, the judge may 

also consider mitigating factor fourteen as doing so would be a prospective 

application of the new statute. On remand, counsel may argue the applicability 

or inapplicability of any aggravating or mitigating factor. We do not retain

jurisdiction.

3

 On remand, we in no way imply or suggest the applicability or inapplicability 

of any aggravating or mitigating factor. And, in this opinion, we need not reach 

the question of retroactivity.