STATE OF NEW JERSEY v. D.P.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0918-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.P.H.,

Defendant-Appellant.

___________________________________________

November 7, 2012

Argued May 23, 2012 - Decided

Before Judges Lihotz, Waugh and St. John.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-09-1395.

James J. Gerrow, Jr. argued the cause for appellant (Sitzler and Sitzler, attorneys; Mr. Gerrow, on the brief).

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).

PER CURIAM

On April 27, 2011, defendant D.P.H. pled guilty, pursuant to a negotiated agreement, to one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b).1 The sexual assault occurred before 1985 and the victim, defendant's daughter, was younger than six-years old at that time. After reviewing the record in light of the contentions advanced on appeal, we reverse in part and affirm in part.

I.

At the plea hearing, it was explained to defendant that he would be required to register as a sex offender, N.J.S.A. 2C:7-2, and be subject to community supervision for life (CSL).2 N.J.S.A. 2C:43-6.4. With the assistance of his attorney, defendant reviewed and signed a form concerning the conditions of CSL. Defendant thereby acknowledged the "Megan's Law" consequences of his plea. See L. 1994, c. 130. Defendant then provided a factual basis for his offense.

At the conclusion of the plea hearing, defense counsel notified the court that he would be making a motion to argue that CSL for defendant's 1985 offense violates the United States and New Jersey Constitutions. However, counsel acknowledged that the outcome of this motion would not affect defendant's guilty plea.

Based on a report prepared by a staff psychologist at the Adult Diagnostic and Treatment Center (ADTC), N.J.S.A. 2C:47-2, the court found defendant's conduct to be of a compulsive and repetitive nature. Consequently, on September 9, 2011, consistent with his plea agreement,3 the court sentenced defendant to a three-year term of imprisonment to be served at the ADTC, where he would participate in sex offender treatment. N.J.S.A. 2C:47-3. The court also ordered defendant to register as a sex offender, N.J.S.A. 2C:7-2, and to be subject to CSL.

Defendant subsequently filed a notice of appeal regarding the court's denial of his motion to preclude the imposition of CSL. This appeal ensued.

II.

Defendant raises the following point on appeal:

RETROACTIVE APPLICATION OF A SPECIAL SENTENCE OF COMMUNITY SUPERVISION FOR LIFE, PURSUANT TO N.J.S.A. 2C:43-6.4, TO DEFENDANT WHO COMMITTED A SEX OFFENSE BEFORE ITS ENACTMENT IS PROHIBITED BY THE EX POST FACTO CLAUSES OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

Both the United States and New Jersey Constitutions forbid the Legislature from passing ex post facto laws. U.S. Const. art. I, 9, cl. 3; U.S. Const. art. I, 10, cl. 1; N.J. Const. art. IV, 7, P 3; State v. Fortin, 198 N.J. 619, 626-27 (2009). New Jersey interprets its Ex Post Facto Clause in a manner consistent with the United States Supreme Court's interpretation of the federal clause. Doe v. Poritz, 142 N.J. 1, 42-43 n.10 (1995). Accordingly, to violate the Ex Post Facto Clause, the statute in question must "(1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." State v. Muhammad, 145 N.J. 23, 56 (1996).

There is extensive regulation of sex offenders throughout the United States. "Sex offenders are a serious threat in this Nation," Conn. Dep't. of Pub. Safety v. Doe, 538 U.S. 1, 4, 123 S. Ct. 1160, 1163, 155 L. Ed. 2d 98, 103 (2003), and state legislatures have found that "sex offenders pose a high risk of reoffending, and [have] identified protecting the public from sex offenders as the primary governmental interest of the law." Smith v. Doe, 538 U.S. 84, 93, 123 S. Ct. 1140, 1147, 155 L. Ed. 2d 164, 177 (2003) (internal citations and quotations omitted) (holding that the retroactive application of a sex offender registry does not violate the Ex Post Facto Clause).

For these reasons, a national effort to regulate sex offenders commenced on September 13, 1994, when President Clinton signed into law the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act, 42 U.S.C.A. 14071. The goal of this statute was to encourage states to enact and enforce sex offender registration statutes. States that failed to implement a registry would be penalized via Congress withholding ten percent of the funds they would ordinarily receive pursuant to 42 U.S.C.A. 3765, the Omnibus Crime Control and Safe Streets Act of 1968; the forfeited money would then be reallocated to complying states. 42 U.S.C.A. 14071(g)(2)(A). In 1996, the Jacob Wetterling Act was amended to include "Megan's Law," which required states to provide community notification of sex offenders by releasing or making available certain information on a publicly viewable registry. By 1996, every State, the District of Columbia, and the Federal Government had enacted some form of an offender registry law.4 See Smith, supra, 538 U.S. at 90, 123 S. Ct. at 1146, 155 L. Ed. 2d at 175 (2003).

Thereafter, in Smith v. Doe, the United States Supreme Court concluded that Alaska's Sex Offender Registration Act, which is very similar to New Jersey's, did not violate the Ex Post Facto Clause of the United States Constitution. See Smith, supra, 538 U.S. at 105-06, 123 S. Ct. at 1154, 155 L. Ed. 2d at 185 (2003). In reaching its conclusion, the Court applied its previously derived "intent-effects" test to determine whether the Sex Offender Registration Act imposed an ex post facto punishment. Id. at 92. The intent-effects test requires a court to first determine whether the legislature meant for the statute in question to establish civil proceedings. Ibid. If the intention of the legislature was to impose punishment, then the inquiry ends because the statute impermissibly violates the Ex Post Facto Clause. Ibid. If, however, the court concludes that the legislature intended a non-punitive regulatory scheme, the court must move to the next step.

Second, the court must determine whether the statutory scheme is nevertheless so punitive in effect that it negates the legislature's non-punitive intention, thereby transforming what had been intended as a civil regulatory scheme into a criminal penalty. Ibid. While courts make these determinations, the Supreme Court was careful to note that "[b]ecause we ordinarily defer to the legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Ibid. (internal quotations omitted).

In assessing a statute's effects, the Supreme Court indicated that the seven factors articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 568, 9 L. Ed. 2d 644, 661 (1963), "provide[] some guidance." United States v. Ward, 448 U.S. 242, 249, 100 S. Ct. 2636, 2642, 65 L. Ed. 2d 742, 750 (1980).5 These seven factors are:

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

[Mendoza-Martinez, supra, 372 U.S. at 168-69, 83 S. Ct. at 568, 9 L. Ed. 2d at 661 (footnotes omitted).]

The Supreme Court has not allocated a specific weight to each factor, but has observed that the factors "often point in differing directions" and that no one factor is determinative. Hudson v. United States, 522 U.S. 93, 101, 118 S. Ct. 488, 494, 139 L. Ed. 2d 450, 460 (1997) (quoting Mendoza-Martinez, supra, 372 U.S. at 169).

Here, defendant argues that our decision in Riley should inform our opinion, and must inevitably lead us to the conclusion that defendant's CSL sentence violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions. Supra, 423 N.J. Super. 224. The issue presented in Riley was whether retroactive application of the intensive monitoring of sex offenders provided under the Sex Offender Monitoring Act, N.J.S.A. 30:4-123.89 to -123.95, to persons who committed sex offenses before its enactment, was prohibited by the Ex Post Facto Clauses of the United States and New Jersey Constitutions. We note that "the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish. . . ." Doe v. Poritz, supra, 142 N.J. at 12. In Riley, this court held that forcing defendant to wear a GPS ankle monitor, as well as the other disabilities and restraints imposed by the Act, were substantial and thus transformed the requirements from regulatory to punitive. Riley, supra, 423 N.J. Super. at 245.

Our Supreme Court has recently provided guidance on whether CSL is punitive or remedial. In State v. Schubert, __ N.J. __ (2012) (slip op. 16), the Court contrasted the obligations imposed on a defendant by CSL and the registration and notification provisions imposed on a defendant by N.J.S.A. 2C:7-1 to -11, which were also enacted as part of Megan's Law. The registration and notification requirements were previously found by the Court to be remedial and not punitive. Doe v. Poritz, supra, 142 N.J. 1. In Schubert, the Court analyzed the significant distinctions between the registration and notification requirements and the CSL requirements. The Court concluded that CSL is "punitive rather than remedial at its core[.]" Schubert, supra, slip op. at 16. The Court having determined that CSL is punitive, we conclude that the sex offender CSL requirement imposed on defendant is a punitive measure and constitutes punishment for purposes of ex post facto analysis.

Therefore, we vacate the imposition of CSL on defendant but affirm the imposition of the registration and notification requirements contained in Megan's Law.

Reversed in part, and affirmed in part.

1 The original indictment, returned by a Middlesex County grand jury, charged defendant with four counts of sexual misconduct. The State agreed to dismiss three of these counts in return for defendant's plea of guilty to the aggravated criminal sexual contact count.

2 Although the CSL statute was amended in 2003 to change "community supervision for life" to "parole supervision for life," G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 401 n.4 (App. Div. 2008), aff'd, 199 N.J. 135 (2009), because defendant committed this crime before these revisions were enacted, he remains under the former designation, community supervision for life. N.J.A.C. 10A:71-6.11(a).

3 Defendant's plea agreement reflected that his plea to what is a second-degree offense would be sentenced as a third-degree offense.

4 On July 27, 2006, President Bush signed into law the Adam Walsh Act. Title I of the Act is referred to as the Sex Offender Registration and Notification Act (SORNA). SORNA greatly expanded the availability of state sex offender registry information and promoted exchange of that information by law enforcement officials. SORNA 129 repealed the Jacob Wetterling Act, effective either on July 27, 2009, or one year after software described in 123 of SORNA is available, whichever is later.

5 In George C. Riley v. New Jersey State Parole Bd., 423 N.J. Super. 224, 238 n.3 (App. Div. 2011), cert. granted, 209 N.J. 596 (2012), we stated "[i]n Poritz, supra, 142 N.J. at 63-73, our Supreme Court held that the Mendoza-Martinez factors should not be applied in determining whether retroactive application of the registration and notification provisions of Megan's Law violate the Ex Post Facto Clauses. However, this part of Poritz was rejected in Smith, which upheld retroactive application of the registration and notification provisions of Alaska's Megan's Law based on the Mendoza-Martinez factors." We assume our Supreme Court would now apply the Mendoza-Martinez factors in interpreting the New Jersey Constitution's Ex Post Facto Clause.