STATE OF NEW JERSEY VS. RAQUAN B. FRANK (16-03-0734, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 1, 2021
• Docket: A-0809-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0809-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAQUAN B. FRANK, a/k/a RA'QUAN FRANK,

Defendant-Appellant. ________________________

Submitted October 6, 2021 – Decided December 1, 2021

Before Judges Fuentes and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-03-0734.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

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

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

2017, more than three years before mitigating factor fourteen was added in 2020.

I.

In the early morning of March 29, 2015, T.T. was shot and killed as he

left a lounge in Newark. 1 Approximately a year later, in March 2016, defendant

Raquan Frank was indicted for the murder of T.T. The indictment charged

defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1;

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); and three weapons offenses.

In February 2017, defendant pled guilty to first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1), as an amended charge to the charge of

murder, and second-degree conspiracy to commit robbery. In pleading guilty,

defendant admitted that he conspired with another adult and two juveniles to rob

1 We use initials to protect the privacy interests of the victim's family. A-0809-19 2 patrons as they were leaving the lounge. He also admitted that he was armed

with a handgun, he fired his gun at people leaving the lounge, and his actions

had a high probability of causing someone to be shot. Defendant was eighteen

years old at the time that he committed those crimes.

At sentencing on March 31, 2017, the court imposed the recommended

sentence that had been negotiated by the State in exchange for defendant's guilty

pleas. On the aggravated manslaughter conviction, defendant was sentenced to

twelve years in prison with eighty-five percent of that term ineligible for parole

as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant was also sentenced to a concurrent term of ten years in prison for the

conviction of conspiracy to commit robbery. Both those sentences were run

concurrent to a separate sentence for a weapons conviction that defendant was

already serving.

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 a "significant" history of being adjudged delinquent as a juvenile

A-0809-19 3 and that as an adult he had already been convicted of a separate weapons offense.

The court found no mitigating factors.

Defendant did not appeal from his convictions or sentence. Instead, two

years after he was sentenced, in February 2019, defendant moved to reduce his

sentence under Rule 3:21-10(a). Defendant argued that he had matured since

committing his crimes and that he had benefitted from various rehabilitative

programs during his incarceration. In an order issued on April 11, 2019, the

trial court denied defendant's motion to reduce his sentence, finding that he had

not met the standards under Rule 3:21-10(a) and (b). Defendant appealed from

that order.

While that appeal was pending, defendant's judgment of conviction was

amended on April 28, 2020, to correct the jail and gap time credited to

defendant. Thereafter, we granted defendant's motion to amend his notice of

appeal to include an appeal from the amended judgment of conviction.

II.

On this appeal, defendant focuses his arguments on the sentence that was

imposed on him in March 2017. He contends that the matter should be remanded

for resentencing so that the court can consider mitigating factor fourteen, which

A-0809-19 4 was enacted more than three years after defendant was sentenced. Defendant

articulates his arguments as follows:

POINT I – THE LAW REQUIRING SENTENCING MITIGATION FOR YOUTHFUL DEFENDANTS DEMANDS RETROACTIVE APPLICATION BECAUSE THE LEGISLATURE 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.

2. The Other Language of the Statute Establishing the Mitigating Factor Indicates Retroactive Application; the Presumption of Prospective Application is Inapplicable; and the Law is Clearly Ameliorative.

3. 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. Retroactive Application Of The Mitigating Factor Is Required As A Matter Of Fundamental Fairness.

A-0809-19 5 Initially, we clarify the issue on this appeal. Defendant did not file a

timely notice of appeal from his sentence imposed in March 2017. Instead, he

moved to reduce his sentence and appealed from the April 11, 2019 order

denying that motion. We did grant defendant's motion to appeal from the

amended judgment of conviction that was entered on April 28, 2020.

The argument presented on this appeal relates to defendant's original

sentence imposed on March 31, 2017. Nevertheless, we will consider

defendant's arguments on the merits. We do so, however, in the procedural

context where defendant did not seek the retroactive application of miti gating

factor fourteen while he had a pending appeal. Instead, defendant is seeking a

remand for resentencing more than three years after his sentence became final

and the Legislature added mitigating factor fourteen.

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

A-0809-19 6 "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

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

A-0809-19 7 "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.

Super. 39, 55 (App. Div. 2016) (quoting Kendall v. Snedeker, 219 N.J. Super.

283, 286 n. 1 (App. Div. 1987)).

A-0809-19 8 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

A-0809-19 9 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 2017, well 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).

A-0809-19 10 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. Moreover,

pipeline retroactivity does not apply to defendant's case because he did not seek

retroactive application of mitigating factor fourteen while he had a pending

appeal. See State v. G.E.P., 234 N.J. 362, 370 (2020) (pipeline retroactivity

refers to the retroactive application of a new law to a case in the direct appeal

process when the new law became effective). As defendant was sentenced in

A-0809-19 11 March 2017, 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.

A-0809-19 12