STATE OF NEW JERSEY VS. ELIAH HAWKINS (15-08-1893, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3707-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELIAH HAWKINS,
Defendant-Appellant.
Submitted October 26, 2021 – Decided December 13, 2021
Before Judges Fisher and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 15-08-1893.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alyssa Aiello, Assistant Deputy Public
Defender, of counsel and on the briefs).
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
Eighteen-year-old defendant Eliah Hawkins and another man approached
the victim who was standing outside an ATM machine. They pretended to have
a gun and told the victim to withdraw money. After the victim did so, defendant
took the money and the victim's cellphone. They had previously robbed the
same victim earlier that day at a bus stop.
Defendant pleaded guilty to first-degree robbery, N.J.S.A. 2C:15-1, and
second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2. The remaining
five counts were dismissed. In 2016, the court sentenced defendant to ten years'
imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. This
was the recommended sentence in the plea bargain.
On appeal, defendant presents two points for our consideration:
POINT I
THE LAW REQUIRING SENTENCING
MITIGATION FOR YOUTHFUL DEFENDANTS
DEMANDS RETROACTIVE APPLICATION
BECAUSE THE LEGLISLATURE 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.
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2. The other language of the mitigating factor
indicates retroactive application; the presumption
of prospective application is inapplicable; and the
law is clearly ameliorative.
i. 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. Because Retroactive Application of the Youth
Mitigator Could Result in a Lower Sentence, A Remand
Is Required as a Matter of Fundamental Fairness, and
to Effectuate the Remedial Purpose of the Sentencing
Commission's Efforts Regarding Juvenile Sentencing.
POINT II
A REMAND FOR RESENTENCING IS REQUIRED
BECAUSE THE JUDGE DID NOT PROPERLY
CONSIDER WHETHER SENTENCING IN THE
SECOND-DEGREE RANGE WAS WARRANTED.
In assessing defendant's arguments regarding his sentence, we apply well
settled principles that afford considerable deference to sentencing judges.
As a general proposition, appellate courts may not substitute their
judgment for that of the sentencing court, unless the application of
the sentencing guidelines to the facts "makes the sentence clearly unreasonable
so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65
(1984); see also State v. Liepe, 239 N.J. 359, 370 (2019) (quoting State v.
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McGuire, 419 N.J. Super. 88, 158 (App. Div. 2011)). "[W]hen [trial judges]
exercise discretion in accordance with the principles set forth in the Code [of
Criminal Justice] and defined by [the Court] . . . , they need fear no second-
guessing." State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations
omitted) (quoting State v. Ghertler, 114 N.J. 383, 384-85 (1989)). Once the trial
court has balanced the aggravating and mitigating sentencing factors set forth
in N.J.S.A. 2C:44-1(a) and – 1(b), it "may impose a term within the permissible
range for the offense." Id. at 608; see also State v. Case, 220 N.J. 49, 54
(2014); State v. Fuentes, 217 N.J. 57, 70-71 (2014).
During the sentencing hearing, the court merged count two into count one.
Defense counsel acknowledged defendant had eleven arrests and seven
adjudications as a juvenile, one for a robbery less than a year before the present
offense. Nevertheless, defense counsel requested the court sentence defendant
in the second-degree range.
The judge found there were no "interests of justice" to warrant a second-
degree sentence. She found no mitigating factors and one aggravating factor,
N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the
law).
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Defendant contends the court erred in rejecting defendant's request to be
sentenced within the second-degree range for first-degree robbery. We disagree.
Under N.J.S.A. 2C:44-1f(2) a court may impose a sentence for a crime
one degree lower if certain criteria are met. The court must be "clearly
convinced" that the mitigating factors substantially outweigh the aggravating
factors and it is in the "interests of justice" to do so. Defendant cannot establish
either prong of the statute. Therefore, there was no error in the sentencing.
Defendant also contends the case should be remanded for application of
the mitigating factor of youth to be considered in sentencing as espoused
in L. 2020, c. 110 (eff. Oct. 19, 2020), which amended N.J.S.A. 2C:44-1(b) by
adding the defendant's youth (i.e., less than twenty-six years of age) to the
mitigating sentencing factors. Our case law has rejected the claim that this
statute applies retroactively in the absence of an independent basis to remand
a sentence. See State v. Tormasi, 466 N.J. Super. 51, 67 (App. Div. 2021).
Since we are not remanding the sentence there is no basis to consider the new
"youth factor."
Affirmed.
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