State v. Timmendequas

• Decision Date: 22 July 2019
• Docket Number: DOCKET NO. A-1243-16T2
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Paul TIMMENDEQUAS, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

460 N.J.Super. 346

215 A.3d 554

STATE of New Jersey, Plaintiff-Appellant,

v.Paul TIMMENDEQUAS, Defendant-Respondent.

DOCKET NO. A-1243-16T2

Superior Court of New Jersey, Appellate Division.

Argued February 4, 2019

Decided July 22, 2019

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the brief).

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; James K. Smith, Jr., of counsel and on the brief).

Before Judges Messano, Fasciale and Gooden Brown.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

In 1998, defendant Paul Timmendequas pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge sentenced defendant in 1999 to two concurrent seven-year terms of imprisonment at the Adult Diagnostic and Treatment Center, the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23, and community supervision for life (CSL), pursuant to the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4(a), a "component" of Megan's Law. State v. Schubert, 212 N.J. 295, 305, 53 A.3d 1210 (2012).

N.J.S.A. 2C:7-2(a) criminalizes the failure to register as required by subsections (c) and (d) of the statute. Subsection (c) governs the obligations to initially register, and subsection (d) specifically criminalizes the failure to notify the appropriate authorities and re-register upon relocation. When defendant was convicted, a person committed a fourth-degree crime if he failed to register as a sex offender or failed to notify the appropriate authorities and re-register upon relocating. N.J.S.A. 2C:7-2(a) and (d) (1999). Similarly, violating conditions of CSL was a fourth-degree crime. N.J.S.A. 2C:43-6.4(d) (1999). The Legislature increased the penalty for failing to register as a sex offender under subsection (a) to a third-degree crime in 2007. L. 2007, c. 19. It increased the penalties for failing to notify and re-register upon relocation, and for violating conditions of CSL, to third-degree crimes in 2014. L. 2013, c. 214.¹

In 2015, a Middlesex County grand jury indicted defendant for third-degree violation of conditions of CSL, N.J.S.A. 2C:43-6.4(d) (count one); third-degree absconding from parole, N.J.S.A. 2C:29-5(b) (count two); two counts of third-degree failure to register as a sex offender and to notify law enforcement of relocation and re-register, N.J.S.A. 2C:7-2(a) and (d) (counts three and four); and third-degree theft, N.J.S.A. 2C:20-9 (count five).² Defendant moved to dismiss counts one, three and four, arguing that when he was convicted of the underlying sex offenses, see N.J.S.A. 2C:7-2(b), the crimes charged in those counts were not third-degree offenses. Defendant contended that increasing his potential sentence exposure violated the Ex Post Facto Clauses.³

In a thoughtful written opinion, Judge Colleen M. Flynn agreed. She entered an order dismissing counts one, three and four without prejudice to the State's ability to re-indict defendant "with appropriate grading of the charges." We granted the State leave to appeal.

We stayed this appeal and several others because the Court had granted certification in State v. Hester, 233 N.J. 115, 182 A.3d 1283 (2017). There, the defendant, who was convicted prior to the 2014 amendment to N.J.S.A. 2C:43-6.4(d), argued the increased penalty for violating the conditions of CSL ran afoul of the Ex Post Facto Clauses. The Court agreed. State v. Hester, 233 N.J. 381, 385, 186 A.3d 236 (2018) ("[T]he Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to defendants' CSL violations."). As a result, the State withdrew its appeal of that part of Judge Flynn's order dismissing count one.

The State now contends:

POINT I

THERE IS NO EX POST FACTO VIOLATION WHEN A SEX OFFENDER WHO FAILS TO REGISTER AFTER MARCH 1, 2007 IS CHARGED WITH A THIRD[-]DEGREE CRIME.

The State's primary argument is that charging defendant with a third-degree offense does not violate the Ex Post Facto Clauses because "the amended statute applies only prospectively to defendant's new crimes of failing to register after March 1, 2007[,]" and "does not retroactively increase the penalties for defendant's 1999 ... convictions." The State contends that Hester does not compel a contrary result.

Defendant's counter-argument is simple. He contends that registration was a condition of his 1999 sentence. Increasing the penalties for failing to register or notify and re-register upon relocation, therefore, imposes additional punishment after he committed his crime, in violation of the Ex Post Facto Clauses.⁴

I.

In Hester, the defendants were sentenced to CSL prior to the 2014 amendment that increased the penalty for a violation of CSL from a fourth- to a third-degree crime punishable by a presumptive prison term, and converted CSL to PSL with additional restrictions and consequences in case of such a violation. 233 N.J. at 385, 186 A.3d 236. The trial judges concluded that applying the amended statute to the defendants violated the Ex Post Facto Clauses, and we affirmed on appeal. Id. at 390, 186 A.3d 236.

Before the Court, the State argued, "[b]ecause [the] defendants committed their CSL violations after the effective date of the [a]mendment, ... they committed new crimes subject to new statutory punishments and therefore the [a]mendment did not relate back or increase the punishment for [the] defendants' predicate sex offenses." Id. at 390-91, 186 A.3d 236. According to the State, because the defendants' offenses were new offenses, prosecuting them as third-degree offenses was not an ex post facto violation.

The Court rejected the argument. Justice Albin wrote:

An ex post facto law is defined by two critical elements. "[F]irst, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment’; and second, ‘it must disadvantage the offender affected by it.’ " A retroactive law that merely effects a procedural change to a statutory scheme will fall outside of the constitutional prohibition. In contrast, a law that retroactively "imposes additional punishment to an already completed crime" disadvantages a defendant, and therefore is a prohibited ex post facto law.

The State contends that the "completed crime" is the CSL violation, whereas [the] defendants assert that the "completed crime" is the predicate offense. Here, because the additional punishment attaches to a condition of [the] defendants' sentences, the "completed crime" necessarily relates back to the predicate offense.

[ Id. at 392, 186 A.3d 236 (first alteration in original) (citations omitted).]

Focusing on the precise issue before it, the Court noted that "[p]arole and probation are punishments imposed for the commission of a crime." Id. at 393, 186 A.3d 236 (citing Riley v. N.J. State Parole Bd., 219 N.J. 270, 288, 98 A.3d 544 (2014) ). "A statute that retroactively imposes increased ‘postrevocation penalties [on a scheme of supervised release] relate[s] to the original offense,’ raising the issue of whether the defendant is ‘worse off’ for ex post facto purposes." Ibid. (alterations in original) (quoting Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) ). As a result,

the 2014 [a]mendment materially altered [the] defendants' prior sentences to their disadvantage — increasing to a third-degree crime a violation of the terms of their supervised release and converting their CSL to PSL .... The 2014 [a]mendment effected not a simple procedural change but rather one that offends the very principles animating the Ex Post Facto Clauses of our Federal and State Constitutions.

[ Id. at 398, 186 A.3d 236.]

II.

Employing similar reasoning, we might conclude that the amendments to N.J.S.A. 2C:7-2 that increased penalties for failing to register and for failing to notify law enforcement and re-register upon relocation were both retroactive in their application and disadvantaged defendant. Id. at 392, 186 A.3d 236. The additional punishment attached to a "completed crime," because the community registration provisions of Megan's Law are "condition[s] of defendant['s] sentence[ ]." Ibid.

Recognizing the potential impact of Hester, the State alternatively asserts that this case is different "for at least three critical reasons." It contends that Hester only dealt with violations of CSL, and the Court made no mention of a "completely separate statute, N.J.S.A. 2C:7-2." The argument is unpersuasive because there is no indication that the defendants in Hester raised the issue, and therefore it was not before the Court.⁵

The State also argues that the United States Supreme Court has already held that because registration is not "punitive," "[a] sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense." Smith v. Doe, 538 U.S. 84, 101-02, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).

However, the sole issue before the Court in Smith was the constitutionality of Alaska's registration and community notification statute as applied to sex offenders convicted prior to its passage.⁶ Id. at 89-91, 123 S.Ct. 1140. Here, the State seeks to extend the import of the single sentence cited above by removing it from its context in the opinion:

A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are ... beyond the scope of this opinion. It suffices to say the registration

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