State v. Hester
| Decision Date | 30 May 2018 |
| Docket Number | 079228,A–91 Sept. Term 2016 |
| Citation | 233 N.J. 381,186 A.3d 236 |
| Parties | STATE of New Jersey, Plaintiff–Appellant, v. Melvin HESTER, Defendant–Respondent. State of New Jersey, Plaintiff–Appellant, v. Mark Warner, Defendant–Respondent. State of New Jersey, Plaintiff–Appellant, v. Anthony McKinney, Defendant–Respondent. State of New Jersey, Plaintiff–Appellant, v. Linwood Roundtree, Defendant–Respondent. |
| Court | New Jersey Supreme Court |
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the briefs).
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for respondent Linwood Roundtree (Joseph E. Krakora, Public Defender, attorney; James K. Smith, Jr., of counsel and on the letter brief).
Molly O'Donnell Meng, Assistant Deputy Public Defender, argued the cause for respondents Melvin Hester, Mark Warner, and Anthony McKinney (Joseph E. Krakora, Public Defender, attorney; Molly O'Donnell Meng, of counsel and on the letter brief).
Under the Violent Predator Incapacitation Act, L. 1994, c. 130, §§ 1 and 2, a defendant convicted of certain sex offenses pursuant to N.J.S.A. 2C:43–6.4 is required to serve a special sentence of community supervision for life (CSL).1 We must determine the constitutionality of the retroactive application of the 2014 Amendment to N.J.S.A. 2C:43–6.4 (2014 Amendment), L. 2013, c. 214, § 4 (effective July 1, 2014), which increased the punishment for the CSL violations committed by the four defendants in this case.
As a result of their sex-offense convictions, all four defendants were required to serve a special sentence of community supervision for life after completion of their prison terms. The commission of their offenses, the judgments of their convictions, and the commencement of their sentences all preceded passage of the 2014 Amendment. Before the 2014 Amendment, a violation of the terms of CSL was punishable as a fourth-degree crime. See L. 1994, c. 130, § 2. The 2014 Amendment increased a CSL violation to a third-degree crime punishable by a presumptive term of imprisonment, and such a violation converted CSL to parole supervision for life (PSL). See N.J.S.A. 2C:43–6.4(a) and (d) ; see also L. 2013, c. 214, § 4. Unlike CSL, PSL authorizes the New Jersey Parole Board to revoke an offender's supervised release for a PSL violation and to return the offender to prison. See N.J.S.A. 2C:43–6.4(b).
After enactment of the 2014 Amendment, all four defendants allegedly violated the terms of their CSL. They were indicted for committing third-degree offenses and faced the increased penalties provided by that Amendment. The trial courts presiding over defendants' cases concluded that the 2014 Amendment's enhanced penalties, as applied to defendants, violated the Ex Post Facto Clauses of the United States and New Jersey Constitutions and dismissed the indictments. The Appellate Division affirmed. State v. Hester, 449 N.J. Super. 314, 318, 157 A.3d 865 (App. Div. 2017).
We now hold that the Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to defendants' CSL violations. A law that retroactively increases or makes more burdensome the punishment of a crime is an ex post facto law. Riley v. Parole Bd., 219 N.J. 270, 284–85, 98 A.3d 544 (2014). Community supervision for life was a punishment imposed on defendants at the time they were sentenced. See id. at 288–89, 98 A.3d 544. The 2014 Amendment retroactively increased the punishment for defendants' earlier committed sex offenses by enhancing the penalties for violations of the terms of their supervised release. The Amendment, therefore, is an ex post facto law that violates our Federal and State Constitutions as applied to defendants.
We affirm the judgment of the Appellate Division dismissing defendants' indictments.
In separate proceedings, defendants Melvin Hester, Mark Warner, Anthony McKinney, and Linwood Roundtree were convicted of sex offenses and sentenced to serve special sentences of community supervision for life in accordance with N.J.S.A. 2C:43–6.4, after completion of the custodial portions of their sentences.2 All four defendants had committed their sex offenses more than ten years before the enactment of the 2014 Amendment to N.J.S.A. 2C:43–6.4 and were sentenced under an earlier iteration of that statute.
At the time of defendants' sentencing proceedings, under the 1994 version of N.J.S.A. 2C:43–6.4, a trial court was required to impose "a special sentence of community supervision for life" on any defendant who committed an enumerated sex offense before January 14, 2004.3 See L. 1994, c. 130, § 2 (codified at N.J.S.A. 2C:43–6.4 (1995) ); L. 2003, c. 267, § 1 (PSL effective Jan. 14, 2004); N.J.A.C. 10A:71–6.11(a) and (b). Under CSL, convicted sex offenders, such as defendants, are "supervised as if on parole and subject to conditions appropriate to protect the public and foster rehabilitation." L. 1994, c. 130, § 2; N.J.A.C. 10A:71–6.11(b); see also State v. Schubert, 212 N.J. 295, 305–08, 53 A.3d 1210 (2012).
As part of their CSL obligations, defendants were required to abide by more than twenty general conditions governing the terms of their supervised release. N.J.A.C. 10A:71–6.11(b). The general conditions relevant to this appeal obligated each defendant: to report to his "assigned parole officer as instructed," N.J.A.C. 10A:71–6.11(b)(2); to "[r]eside at a residence approved by the assigned parole officer," N.J.A.C. 10A:71–6.11(b)(7); to "[o]btain the permission of the assigned parole officer prior to any change of residence," N.J.A.C. 10A:71–6.11(b)(8); and to "[c]omply with any curfew established by the assigned parole officer," N.J.A.C. 10A:71–6.11(b)(19).
At the time defendants' sentences were imposed, a violation of any of the terms of the general conditions of CSL constituted a fourth-degree crime punishable by no more than eighteen months in prison. L. 1994, c. 130, § 2; see also N.J.S.A. 2C:43–6(a)(4). In the event of a prosecution for a violation, defendants were entitled to all of the procedural protections of the criminal justice process, including the right to a grand jury presentation and trial by jury. The 1994 version of N.J.S.A. 2C:43–6.4 did not authorize the Parole Board to revoke defendants' supervised release and return them to prison, as would be the case of a typical parolee. See L. 1994, c. 130, § 2.
A brief history of subsequent amendments to N.J.S.A. 2C:43–6.4 gives context to the issue before us.
In 2003, the Legislature amended N.J.S.A. 2C:43–6.4, replacing community supervision for life with parole supervision for life. L. 2003, c. 267, § 1 (2003 Amendment). The 2003 Amendment did not simply give CSL a new name. Rather, it provided that an offender sentenced to PSL would be in the legal custody of the Commissioner of the Department of Corrections and under the supervision of the State Parole Board for life. Ibid. Under the 2003 Amendment, a PSL violation could be prosecuted as a fourth-degree offense, N.J.S.A. 2C:43–6.4(d), or treated as a parole violation, N.J.S.A. 2C:43–6.4(b). In contrast, under CSL, in the event of a violation of a term of supervised release, the Parole Board's only option is referral to the appropriate prosecuting authority, which then decides whether to present the case to a grand jury. See Perez, 220 N.J. at 441, 106 A.3d 1212. The Parole Board has no power to "return a defendant [on CSL] to prison through the parole-revocation process." Ibid. (citing Sanchez v. Parole Bd., 368 N.J. Super. 181, 184, 845 A.2d 687 (App. Div. 2004) ).
One other noteworthy distinction between CSL and PSL is that a defendant on CSL who commits an enumerated offense is subject to a mandatory extended term, but is eligible for parole, N.J.S.A. 2C:43–6.4(e)(1) (), whereas a defendant on PSL who commits the same offense is subject to a mandatory extended term, but must serve the entirety of his sentence and then resume his PSL status, N.J.S.A. 2C:43–6.4(d). Perez, 220 N.J. at 441–42, 106 A.3d 1212.
In 2015, this Court concluded in Perez that the 2003 Amendment to N.J.S.A. 2C:43–6.4, which substituted PSL for defendants already on CSL, violated the Ex Post Facto Clauses of our Federal and State Constitutions because the conversion enhanced the penal exposure of those convicted of crimes when CSL was the applicable law. Id. at 442, 106 A.3d 1212.
In 2014, the Legislature again amended N.J.S.A. 2C:43–6.4. L. 2013, c. 214, § 4. That Amendment provides that a defendant on CSL who violates the terms of his supervised release may be prosecuted for committing a third-degree crime:
The statutory language makes clear that a defendant convicted of a CSL violation faces a presumption of imprisonment.
Under the 2014 Amendment, a conviction for a CSL violation also converts a defendant's CSL status to PSL status. The Amendment in relevant part provides:
Based on the 2014 Amendment, the Essex County Grand Jury returned four separate indictments charging defendants Hester, Warner, McKinney,...
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