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

NOT FOR PUBLICATION WITHOUT THE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 

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 seconddegree 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-inthe-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 twentysix 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.