STATE OF NEW JERSEY v. FRANKLIN JACK BURR, II

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANKLIN JACK BURR, II,

Defendant-Appellant.

________________________________________________________________

October 31, 2016

Argued May 10, 2016 Decided

Before Judges Espinosa, Rothstadt and Currier.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-0726.

Evelyn F. Garcia argued the cause for appellant (Ms. Garcia, attorney; Frank M. Gennaro, Designated Counsel, on the brief).

Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; (Ms. Piderit, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant Franklin Jack Burr, II appeals from the Law Division's July 3, 2013 order denying his motion to correct an illegal sentence, in which he challenged the portions of his sentence that required him to be placed under community supervision for life (CSL), N.J.S.A. 2C:43-6.4,1 to comply with "Megan's Law," N.J.S.A. 2C:7-1 to -23, and be subjected to wearing a Global Positioning Satellite (GPS) monitor as a condition of CSL, pursuant to the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to -123.95. The Law Division determined that his arguments were, in part, procedurally barred by the fact that defendant failed to raise them on direct appeal and otherwise lacked merit. On appeal, defendant raises essentially the same arguments, challenging the constitutionality of his being required to comply with CSL's and SOMA's requirements and arguing that his conviction and sentence violated the prohibition against double jeopardy and the imposition of ex post facto laws.2

Having considered defendant's arguments in light of the record, we conclude his challenge to wearing the monitor is moot, as he is no longer required to wear one, and the balance of his arguments lack merit. We affirm, therefore, substantially for the reasons expressed by the Law Division.

The salient facts can be summarized as follows. After a jury trial, defendant was convicted of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), for an offense committed in 2004 and for which he was sentenced in August 2010 to a three-year prison sentence, CSL and required to comply with Megan's Law. The facts leading to defendant's arrest and conviction are summarized in our earlier opinion addressing defendant's initial conviction, in which we ordered a retrial and the Supreme Court affirmed, see State v. Burr, 392 N.J. Super. 538, 542-555 (App. Div. 2007), aff'd, 195 N.J. 119 (2008), and in our later opinion affirming his subsequent conviction after a second trial. State v. Burr, A-2671-10 (App. Div. May 13, 2013) (slip op. at 3-10), certif. denied, 216 N.J. 365 (2013), cert. denied, __ U.S. __, 135 S. Ct. 484, 190 L. Ed. 2d 366 (2014).3 Those facts need not be repeated here for the purpose of addressing defendant's present appeal.

Pertinent to our consideration, however, is defendant being subjected to GPS monitoring after his conviction. According to New Jersey State Parole Board records, defendant was placed on a GPS monitor on August 27, 2010, shortly after his release from jail, until August 22, 2012, when it was removed. The monitor was again placed on defendant on June 5, 2013, until August 29, 2014, when the device was removed and it has not been, to our knowledge, replaced since that time.

After unsuccessfully appealing his conviction and sentence, defendant filed an earlier motion to correct an illegal sentence, which the trial court denied in May 2013, finding that in defendant's direct appeal we rejected the same contentions defendant raised in his motion. He then filed a second motion for the same relief, challenging the court's imposition of CSL and Megan's Law's requirements, which resulted in the order now under appeal.

In his second motion, defendant challenged the court's ability to impose CSL and Megan's Law based upon the "de minimis" nature of his offense and for constitutional reasons, including the prohibition against ex post facto laws and double jeopardy. He specifically contended that requiring him to wear a GPS monitor for a conviction for a 2004 offense "violates the ex post facto clause of the U.S. Constitution." The motion judge considered defendant's motion without oral argument and issued an order setting forth the court's findings of facts and conclusions of law. The court concluded that defendant's arguments about his sentence should have been raised on direct appeal, his sentencing "was not inconsistent with controlling statutes or constitutional principles and that the sentence did no[t] exceed minimum penalties authorized by law. Moreover, the substance of the relief sought by defendant [had] already been denied by both the Appellate Division and by the [Law Division]."

On appeal defendant, through assigned counsel specifically argues

POINT I

THE IMPOSITION OF THE GPS MONITORING PROVISIONS OF THE SEX OFFENDER MONITORING ACT CONSTITUTE A VIOLATION OF THE EX POST FACTO CLAUSE AS APPLIED TO THIS APPELLANT AND THOSE SIMILARLY SITUATED.

POINT II

THE IMPOSITION OF A SENTENCE OF COMMUNITY SUPERVISION FOR LIFE WAS ILLEGAL, AS IT VIOLATED THE PROHIBITION AGAINST DOUBLE JEOPARDY.

Defendant submitted a pro se supplemental brief in which he also argued

POINT I

THE IMPOSITION OF THE GPS MONITORING PROVISIONS OF SOMA CONSTITUTES A VIOLATION OF THE EX POST FACTO CLAUSE AS APPLIED TO THIS APPELLANT AND THOSE SIMILARLY SITUATED. (Raised below).

POINT II

THE IMPOSITION OF A SENTENCE OF CSL WAS ILLEGAL, AS IT VIOLATED THE PROHIBITION AGAINST DOUBLE JEOPARDY. (Raised below).

POINT III

IMPOSITION OF RCNL AND CSL FOR A DE MINIMIS ACT AMOUNTS TO DISPROPORTIONATE PUNISHMENT IN VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. (Raised below).

POINT IV

EACH POINT BRIEFED BELOW IS RE-ALLEGED ON DE-NOVO REVIEW. (Raised below).

POINT V

THE ENTIRE RETRIAL WAS TAINTED BY RETRYING EWOC WITH DUTY, AFTER ACQUITTAL IN 2004, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE. (Raised below).

POINT VI

FAILURE TO TRY ON INDICTMENT, IN VIOLATION OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION, REQUIRES THAT THE JUDGMENT OF CONVICTION AND RESULTING SENTENCE BE VACATED. (Raised below).

POINT VII

THE STATED LEGISLATIVE PURPOSE OF AMENDING [N.J.S.A. 2C:24-4(a)] IN 2013 IS A CONCESSION THAT THE STATUTE WAS VAGUE IN 2010. (Raised below).

In response to defendant's arguments regarding his being subjected to GPS monitoring, the State contends defendant's claim is now moot because he is no longer required to be monitored. Defendant disagrees and argues that "absent a judicial decision on this issue, the Parole Board's internal decision could be reversed, thus improperly exposing [him], and others similarly situated . . . to those provisions."

We reject defendant's contention that the possibility of him being placed on a monitor again warrants our review of what is now a moot issue. An issue is considered "moot when 'the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" State v. Davila, 443 N.J. Super. 577, 584 (App. Div. 2016) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 258 (App. Div. 2006)). "When a party's rights lack concreteness from the outset or lose it by reason of developments subsequent to the filing of suit, the perceived need to test the validity of the underlying claim of right in anticipation of future situations is, by itself, no reason to continue the process." Ibid. (quoting JUA Funding Corp. v. CNA Ins./Cont'l Cas. Co., 322 N.J. Super. 282, 288 (App. Div. 1999)). Indeed, courts of New Jersey "do not resolve issues that have become moot due to the passage of time or intervening events," ibid. (quoting City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999)), and "should not render advisory opinions or exercise jurisdiction in the abstract." State v. Abeskaron, 326 N.J. Super. 110, 117 (App. Div. 1999), certif. denied, 163 N.J. 394 (2000). Occasionally, however, "the courts will consider the merits of an issue notwithstanding its mootness where significant issues of public import appear." Davila, supra, 443 N.J. Super. at 589.

We do not discern any issue of public importance in this matter that would warrant our addressing an issue that is not of any legal consequence at the moment. Our decision, however, is not intended to thwart defendant from pursuing any future arguments he wishes to raise, when and if he is ever placed on a GPS monitor, challenging the impact of the monitor on his liberty. See Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 250 (2008) (holding that "a [CSL] offender, who, for some time, has been released into the community, must be afforded due process of law before the Parole Board can impose a curfew confining the offender to his home"); see also N.J.A.C. 10A:72-2.4(b)(3)(ii); N.J.A.C. 10A:72-10.1 to -10.9; N.J.A.C. 10A:72-11.1 to -11.6. "The regulations [governing CSL and GPS monitors] provide an offender the due process right to be heard before monitoring is imposed, with a review after 90 days, and set a maximum time limit of 180 days for the monitoring, after which it will be terminated if no longer warranted." F.W., supra, 443 N.J. Super. at 480, 491 (noting that the "regulations . . . provide for both time limits on the monitoring and due process in its imposition. Thus, defendant will have a well-defined means of administratively challenging any future monitoring that may be imposed, and an appeal from that process would come to this court on a more complete record than was presented to us here.").

We find the balance of defendant's arguments to be without sufficient merit to warrant further discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons expressed by the motion judge. We only note that we previously addressed many of the issues raised by defendant in earlier unrelated opinions, issued after defendant filed his appeal, which rendered defendant's remaining arguments meritless. See State v. Jones, 443 N.J. Super. 515, 527 (App. Div. 2016)4; F.W., supra, 443 N.J. Super. at 479 ("We perceive no reason why [conditions of CSL] could not include GPS monitoring of a CSL offender in appropriate circumstances, regardless of the date on which he committed the predicate offenses." (emphasis added)).5

Dismissed in part and affirmed in part.

1 "CSL is a component of the Violent Predator Incapacitation Act, which is also a component of a series of laws, enacted in 1994, commonly referred to as 'Megan's Law.'" State v. Perez, 220 N.J. 423, 436-37 (2015) (quoting State v. Schubert, 212 N.J. 295, 305 (2012)). "CSL is designed to protect the public from recidivism by sexual offenders. To that end, defendants subject to CSL are supervised by the Parole Board and face a variety of conditions beyond those imposed on non-sex-offender parolees." Id. at 437. The term of CSL "follows immediately after the parolee's release from incarceration, if applicable . . . ." J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 336-37 (App. Div. 2013), certif. denied, 217 N.J. 296 (2014) (citing N.J.S.A. 2C:43-6.4(b)). "A 2003 amendment replaced all references to 'community supervision for life' with 'parole supervision for life.'" Perez, supra, 220 N.J. at 429 (quoting L. 2003, c. 267, 1).

2 The Double Jeopardy Clause of the United States Constitution "protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999). The protections against double jeopardy under the New Jersey Constitution, N.J. Const. art. I, 11, are co-extensive with the protections afforded by the federal clause. Id. at 490.

The Ex Post Facto Clause of the U.S. Constitution prohibits "any statute which punishes . . . an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available . . . at the time when the act was committed."

[State v. F.W., 443 N.J. Super. 476, 487 (App. Div.), certif. denied, __ N.J. __ (2016) (emphasis omitted) (alterations in original) (quoting Perez, supra, 220 N.J. at 438-39).]

3 Defendant did not challenge his sentence in his last appeal.

4 In Jones, we stated

'[A]n offender serving a special sentence of [CSL] shall be supervised by the Division of Parole as if on parole and subject to any special conditions established by the appropriate Board panel,' as well as the numerous general conditions set forth in N.J.A.C. 10A:71-6.11(b). The Parole Board is specifically authorized to impose special conditions of supervision when 'it is [of] the opinion that [they] would reduce the likelihood of recurrence of criminal behavior.' N.J.A.C. 10A:71-6.11(k). Substantially similar regulations also apply to offenders sentenced to [CSL, now Parole Supervision for Life (PSL)]. See N.J.A.C. 10A:71-6.12. The Parole Board can impose a special condition of electronic monitoring for offenders serving a special sentence of CSL or PSL, N.J.A.C. 10A:72-10.1, separate and apart from the regulations that authorize enrollment of those offenders in the GPS monitoring program. See N.J.A.C. 10A:72-11.1 to -11.6.

[Jones, supra, 443 N.J. Super. at 527.]

After we issued our opinion in Jones, the defendant filed a petition for certification. Subsequently, "on the State's motion, the trial court . . . vacated defendant's conviction and dismissed the indictment with prejudice, the State having conceded that under the circumstances presented . . . , defendant should not have been indicted for violating a special condition of community supervision for life . . . ." State v. Jones, __ N.J. __, ___ (2016) (slip op. at 1). Accordingly, the Court permitted defendant to withdraw his petition for certification. Ibid.

5 In Riley v. New Jersey State Parole Board, 219 N.J. 270 (2014), the Court found "that retroactive application of the monitoring and supervision requirements of [SOMA] to a convicted sex offender who had completely served his sentence and was released under no form of parole supervision, violated the Ex Post Facto Clauses of the United States and New Jersey Constitutions." Jones, supra, 443 N.J. Super. at 518-19. Unlike the convicted plaintiff in Riley, defendant was still serving his sentence when GPS monitoring was imposed.