STATE OF NEW JERSEY v. DORIAN J. ROBERTS (02-12-4070, CAMDEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0270-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DORIAN J. ROBERTS,
a/k/a DORIAN ROBERTS,
Defendant-Appellant.
________________________
Submitted February 7, 2022 – Decided March 1, 2022
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 02-12-4070.
Joseph E. Krakora, Public Defender, attorney for
appellant (Candace Caruthers, Assistant Deputy Public
Defender, of counsel and on the brief).
Grace C. MacAulay, Acting Camden County
Prosecutor, attorney for respondent (Jason Magid,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Dorian J. Roberts appeals from a May 31, 2019 denial of his
motion to correct an illegal sentence. He also urges us to remand this matter for
resentencing due to the Legislature's amendment of N.J.S.A. 2C:44-1(b) to
include youth as a mitigating factor. We affirm.
I.
We glean the following facts from defendant's 2003 sentencing. On
January 19, 2002, defendant, then nineteen years old, went to the home of
Beverly Harper to collect ten dollars from her boyfriend, Stephen Holland.
Holland purportedly owed defendant this sum for a bag of crack cocaine. After
Holland informed defendant he "only had five dollars," the two men stepped
away from the home. Holland quickly returned and told Harper to call the
police, explaining defendant had taken Holland's five dollars at gunpoint.
Defendant immediately followed Holland back into the home and shot him
twice, killing him.
Harper was hiding under her kitchen table when the shots were fired.
Defendant found her, and as she tried to flee, he fired the gun at her head, grazing
her before she lost consciousness. When she regained consciousness, she
thought defendant had left her home, so she made her way to the bedroom.
Defendant was still in the house and proceeded to stab her multiple times with
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a screwdriver, warning he would "finish her off" if she tried to leave or told
anyone what she saw. As he left Harper's home, defendant blocked her bedroom
door with a sofa. She stayed in her home for two days before she managed to
leave and seek help. She was unable to use her phone because the line had been
cut.
In September 2003, defendant pled guilty to first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a)(1) and second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1). He was sentenced to a twenty-five-year prison term for
the manslaughter offense, and a ten-year prison term for the assault charge, with
the sentences running consecutive to each other and subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. At sentencing, the judge found aggravating
factors one (the nature and circumstances of the offense), two (the gravity and
seriousness of harm inflicted on the victim), three (risk of re-offense), and nine
(need to deter), N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9), but no mitigating
factors. The judgment of conviction was entered in November 2003. Defendant
filed a direct appeal of his aggregate thirty-five-year sentence, which this court
heard on an excessive sentencing calendar pursuant to Rule 2:9-11, and
affirmed. State v. Roberts, No. A-3920-03 (App. Div. Sept. 23, 2004).
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In April 2018, defendant filed a motion to correct an illegal sentence,
pursuant to Rule 3:21-10(b)(5). During argument on the motion, defendant's
counsel acknowledged he moved under Rule 3:21-10(b)(5) to avoid the time bar
under Rule 3:21-10(a),1 stating "[t]he only way I could get this before [the court]
was to make an argument that this was an illegal sentence, and so we made that
. . . argument." Defense counsel urged the judge to reconsider defendant's
sentences, noting they were "at the top of the . . . range" and should be
reexamined because when defendant was sentenced in 2003, the judge relied on
a paradigm rooted in presumptive prison terms, a practice that was eliminated
under State v. Natale, 184 N.J. 458, 487 (2005). Defense counsel stated that
based on the Court's holding in Natale, defendant's sentences were "per se,
illegal."
On May 31, 2019, the motion judge issued an oral decision, denying
defendant's application. The judge explained that when the Natale Court
prospectively eliminated presumptive sentences, it also allowed for its holding
to be "given pipeline retroactivity, which this [c]ourt defines as cases that were
still on direct appeal as of the date of the Natale decision, . . . on August 2nd of
1
Rule 3:21-10(a) provides that "a motion to reduce or change a sentence shall
be filed not later than [sixty] days after the date of the judgment of conviction. "
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2005." The judge found defendant's appeal was "not in the pipeline" when
Natale was decided, noting we affirmed his sentences in September 2004.
Moreover, the judge concluded defendant's sentences were within the proper
statutory range at the time of sentencing in 2003, so there was no basis for the
court to find his sentences were illegal.
II.
On appeal, defendant raises the following novel contention:
POINT I
THIS COURT SHOULD REMAND FOR
RESENTENCING FOR RETROACTIVE
APPLICATION OF THE NEW YOUTH
MITIGATING FACTOR BECAUSE DEFENDANT
WAS ONLY [NINETEEN]-YEARS-OLD AT THE
TIME OF THIS OFFENSE. [(NOT RAISED
BELOW).]
This argument is unavailing.
As a threshold matter, we note defendant no longer challenges the legality
of his sentence. Because the argument he now advances was not raised before
the motion judge, we need not consider it on appeal. Selective Ins. Co. of Am.
v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973). Appellate review is not limitless. "The jurisdiction of
appellate courts rightly is bounded by the proofs and objections critically
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explored on the record before the trial court by the parties themselves." State v.
Robinson, 200 N.J. 1, 19 (2009); see also Zaman v. Felton, 219 N.J. 199, 226-
27 (2014). Nevertheless, for the sake of completeness, we briefly address
defendant's contention.
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 a court "may properly consider" the mitigating circumstance that
"defendant was under [twenty-six] 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 rev. (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 . . . ." Ibid. (citing DiProspero v.
Penn, 183 N.J. 477, 492 (2005)). If the language of the statute clearly reflects
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the Legislature's intent, then courts apply the law as written, affording the terms
their plain meaning. Id. at 443. If the language is ambiguous, "we may resort
to 'extrinsic interpretative aids, including legislative history,' to determine the
statute's meaning." Ibid. (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)). But courts also presume when considering criminal laws 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[.]" 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
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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 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 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
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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 t o 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 section directing when the law would become effective." 242 N.J.
at 445 (quoting James, 216 N.J. at 568). Because we presume 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), before it
enacted 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
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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 2003, well before mitigating
factor fourteen was added, he is not entitled to a resentencing based purely on
that mitigating factor. Our holding in this regard is consistent with published
cases that have addressed whether mitigating factor fourteen should be applied
retroactively. See e.g., State v. Bellamy, 468 N.J. Super. 29 (App. Div.
2021); State v. Tormasi, 466 N.J. Super. 51 (App. Div. 2021). 2
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. But 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.
2
We are mindful the Court has granted certification in State v. Lane, No. A-
0092-20 (App. Div. Mar. 23, 2021), in which the pure legal question before the
Court is whether, and if so, to what extent, N.J.S.A. 2C:44-1(b)(14) applies
retroactively. Unless and until such time the Court holds to the contrary in Lane,
we abide by our holding in Bellamy.
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[Id. at 48.]
Also, in Tormasi, we held the adoption of mitigating factor fourteen does
not provide a basis to grant a new sentencing hearing because the factor relates
to the weight of the sentencing, a matter of excessiveness, not legality, and
"excessive [sentence arguments] must be raised on direct appeal." 466 N.J.
Super. at 67.
In sum, the new statutory mitigating factor does not retroactively apply to
defendant's 2003 convictions, and because he does not argue that any
independent basis unrelated to mitigating factor fourteen warrants a
resentencing, we perceive no reason to remand this matter for resentencing.
Affirmed.
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