State v. Brown, 012521 NJSC, A-39-19

Docket NºA-39-19
Opinion JudgeLaVECCHIA JUSTICE.
Party NameState of New Jersey, Plaintiff-Appellant, v. Hakum Brown a/k/a Hakeem Brown, Defendant-Respondent.
AttorneyJennifer E. Kmieciak, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the briefs). James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for respondents (Joseph E. Krakora, Public Defe...
Judge PanelJUSTICE ALBIN, dissenting, CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a dissent. JUSTICE ALBIN, dissenting.
Case DateJanuary 25, 2021
CourtSupreme Court of New Jersey

State of New Jersey, Plaintiff-Appellant,

v.

Hakum Brown a/k/a Hakeem Brown, Defendant-Respondent.

No. A-39-19

Supreme Court of New Jersey

January 25, 2021

Argued October 14, 2020

On certification to the Superior Court, Appellate Division.

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 briefs).

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

Molly Linhorst argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Molly Linhorst, Alexander Shalom, and Jeanne LoCicero, on the brief).

LaVECCHIA, J., writing for the Court.

These consolidated appeals present a common legal issue: whether state or federal constitutional ex post facto prohibitions permit defendants to be charged with and convicted of the enhanced third-degree offense of failure to comply with sex offender registration requirements when each defendant's registration requirement arose from a conviction that occurred before the penalty for noncompliance was raised a degree.

In 1995, Rodney Brown (R.B.) was convicted of sexual assault. In 2000, Hakum Brown (H.B.) was convicted of sexual assault and endangering the welfare of a child. As a result of those predicate convictions, H.B. and R.B. were subject to the sex offender registration requirements imposed by Megan's Law. At the time of H.B.'s and R.B.'s sex-offender convictions, failure to comply with the registration requirements was punishable as a fourth-degree offense. However, in 2007, the Legislature upgraded failure to register to a third-degree offense. In 2014, H.B. failed to timely register with his local police department. R.B. similarly failed to register in 2015. Each was charged with third-degree failure to register.

H.B. pleaded guilty but appealed, asserting there is an ex post facto violation in being charged with third-degree failure to register when, at the time of his predicate sex-offender conviction, failure to register was only a fourth-degree offense. R.B. pleaded not guilty. He moved to dismiss his indictments on ex post facto grounds, and the trial court granted R.B.'s motion in its entirety. The State appealed the dismissal of R.B.'s indictments. The Appellate Division consolidated the State's appeal in R.B.'s matter with H.B.'s appeal from his conviction. Relying on State v. Timmendequas, 460 N.J.Super. 346 (App. Div. 2019), the appellate court reversed H.B.'s conviction and affirmed the dismissal of R.B.'s indictment. The Court granted certification. 240 N.J. 426 (2020).

HELD: Defendants suffered no ex post facto violation as a result of being charged with failure-to-register offenses bearing the increased degree. The Legislature is free to increase the penalty for the offense of failure to comply with the regulatory registration requirement -- which is separate and apart from defendants' predicate sex offenses --without violating ex post facto principles as to those predicate offenses.

1. In Doe v. Poritz, the Court found the Megan's Law registration requirement to be regulatory and remedial rather than punitive and therefore held that Megan's Law's retroactive application to persons who had already been convicted of eligible sex offenses did not subject past offenders to additional punishment and did not offend the Ex Post Facto Clauses. 142 N.J. 1, 75 (1995). (pp. 9-12)

2. Two findings must be made for a law to violate the constitutional prohibition on ex post facto laws. The court must determine: first, whether the law is retrospective, meaning it applies to events occurring before its enactment or changes the legal consequences of acts completed before its effective date; second, whether the law, as retrospectively applied, imposes additional punishment to an already completed crime. (pp. 12-13)

3. Doe placed the registration scheme decidedly in the nonpunitive category as a civil, administrative consequence. That the violation of that regulatory scheme is enforced through separate criminal charges when and if the violation occurs does not make the registration requirement itself penal. The registration requirement is not part of the penal sentence for the predicate sex offense. Distilled to its essence, registration is retroactive but not punitive. Prosecution for failing to register, however, is different. It addresses a separate crime and is punitive but not retroactive. Viewed accordingly, just as the Legislature was permitted to affix a criminal penalty for the prospective violation denominated as failure to register, so too may it prospectively enhance the degree of such a penalty. Federal courts and other state supreme courts have similarly held that failure to register is an offense distinct from the original underlying sex offense. (pp. 13-17)

4. Megan's Law imposed a term of community supervision for life (CSL) on individuals convicted of certain sex offenses. In 2003, the Legislature replaced CSL with parole supervision for life (PSL), a more restrictive post-release regime. In State v. Perez, 220 N.J. 423 (2015), the Court considered whether the Legislature could retroactively convert an offender's sentence of CSL to a sentence of PSL. Stressing that both "CSL and PSL were and are intended to be penal rather than remedial post-sentence supervisory schemes," the Court held that such retroactive enhancement of an offender's sentence violated the Ex Post Facto Clause. Id. at 441-42. (pp. 17-19)

5. And in State v. Hester, 233 N.J. 381 (2018), the Court considered whether -- after a 2013 amendment that raised the degree of violation of CSL and mandated conversion from CSL to PSL -- those heightened sanctions could be imposed on individuals who began serving CSL prior to the amendment. The Court concluded that the defendants' CSL violations should not be viewed as independent crimes but as "violations of the general conditions of their supervised release" that were "integral parts" of the defendants' sentences. Id. at 397. By enhancing the penalty for violating those requirements, the Legislature had impermissibly sought to "materially alter[] defendants' prior sentences to their disadvantage." Id. at 398. Increasing the defendants' penalty for violating CSL violated the Ex Post Facto Clause, just as in Perez. Id. at 398. (pp. 19-21)

6. The Court stresses the foundational reasoning of Doe v. Poritz. Doe recognized the registration requirement as an administrative obligation rather than a penal consequence of the original predicate sex offense; the fact that violations of that administrative obligation are themselves separately punishable does not alter the nature of the obligation itself. Thus, imposition of that obligation did not involve a retroactive increase in punishment for the predicate crime. And, by extension, increasing the penal consequences for a violation of that obligation is similarly distinct from the punishment imposed for the predicate crime. (pp. 21-22)

7. Hester involved aspects of the application of CSL and PSL, which are not administrative obligations, but rather punitive measures imposed as part of the supervised release of an offender convicted of a qualifying offense. Doe is the most relevant to the circumstances present here, and adherence to Doe's determination that registration is not punitive should have precluded reliance on cases dealing with punitive consequences such as PSL, CSL, and the requirements of the Sex Offender Monitoring Act, see Riley v. State Parole Bd., 219 N.J. 270 (2014), in the context of a challenge predicated on the registration requirement. (pp. 22-25)

8. The Court disapproves of the analysis of Timmendequas and reverses the Appellate Division's decision in this matter, which relied on Timmendequas. If the Legislature has the authority to create new penalties for noncompliance with administrative obligations, as it did in Megan's Law, it would be incongruous if it could not prospectively upgrade the penalty for violating an existing administrative obligation. (p. 25)

REVERSED. R.B.'s matter is REMANDED to the trial court. H.B.'s conviction and sentence are REINSTATED.

JUSTICE ALBIN, dissenting, does not see any basis to treat retroactively imposed increased punishments for violations of CSL requirements and Megan's Law registration requirements differently for ex post facto purposes. Justice Albin notes that both the CSL requirements and the Megan's Law registration requirements are conditions imposed at the time of sentencing for a defendant's predicate sex offense; both mandate lifetime compliance; and violations of both are punishable as crimes, subjecting offenders to potential prison terms. In Justice Albin's view, the Court should not retroactively aggravate the penalty for failing to register based on an arbitrary distinction between CSL and Megan's Law registration. Justice Albin concludes that the 2007 amendment increased the punishment for defendants' violation of a condition of their sentences -- the registration requirement -- and therefore materially altered their sentences to their disadvantage in violation of the prohibition on ex post facto laws.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a dissent.

OPINION

LaVECCHIA JUSTICE.

New Jersey's law governing the sex offender registration and notification system, N.J.S.A. 2C:7-1 to -23, is commonly known as Megan's Law, after the victim of a tragedy that spurred...

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