STATE OF NEW JERSEY v. CHARLES E. HUNT

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NOT FOR PUBLICATION WITHOUT THE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.

CHARLES E. HUNT,

Defendant-Appellant.

______________________________

June 17, 2014

Submitted June 3, 2014 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-03-0522.

Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The issue in this appeal is whether the Legislature's 2007 amendment to N.J.S.A. 2C:7-2, L. 2007, c. 19, 1, which upgraded the failure to register as a convicted sex offender to a third-degree crime, violates the prohibition against ex post facto laws, U.S. Const. art. I, 10, cl. 1, N.J. Const. art. IV, 7, 3, when applied to a sex offender convicted before the 2007 amendment. We decide it does not.

Defendant was charged in a March 2012 Monmouth County indictment with one count of third-degree failure to register as a convicted sex-offender. His obligation to register was based on his January 12, 1996, conviction, after a jury trial, of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). After merger, defendant was sentenced to an aggregate thirty-year term subject to Megan's Law. Although the date of defendant's offenses is unclear, his judgment of conviction (JOC) states he was arrested on October 3, 1994. The JOC included the registration requirement.

Defendant was released from prison in 2011. The indictment charged that he failed to register between December 19, 2011, and January 12, 2012. Defendant moved to dismiss the indictment, arguing it violated the ex post facto clause, because the failure to register was a fourth-degree crime when he was sentenced in 1996. Judge Francis J. Vernoia denied the motion in a cogent oral opinion, concluding that the 2007 amendment did not increase punishment for defendant's underlying offenses. Defendant subsequently entered a guilty plea, conditioned on his ability to appeal the order denying his dismissal motion. On January 18, 2013, the court sentenced defendant to five years of probation, with credit for seventy-one days of incarceration.

On appeal, defendant presents the following point:

DEFENDANT'S INDICTMENT FOR THIRD-DEGREE FAILURE TO REGISTER IS A VIOLATION OF EX POST FACTO BECAUSE THE CONVICTION THAT SUBJECTED HIM TO MEGAN'S LAW OCCURRED IN 1994 WHEN FAILURE TO REGISTER WAS A FOURTH-DEGREE OFFENSE.1

Although we generally review for an abuse of discretion a trial court's decision whether to dismiss an indictment, see, e.g., State v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010), the issue whether a prosecution is prohibited by the ex post facto clause is an issue of law. Consequently, we exercise plenary review of the issue presented here. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Both the United States and New Jersey Constitutions forbid the Legislature from passing an ex post facto law. U.S. Const. art. I, 10, cl. 1; N.J. Const. art. IV, 7, 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. Poritz, supra, 142 N.J. at 42-43 n.10.

A statute is an ex post facto law if it "(1) punish[es] as a crime an act previously committed, which was innocent when done; (2) make[s] more burdensome the punishment for a crime, after its commission; or (3) deprive[s] 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). The purpose of the clause is "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981); see also Fortin, supra, 198 N.J. at 627.

Defendant argues that the 2007 statute is the second form of ex post facto law described in Muhammad. "[T]he ex post facto prohibition . . . forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred." Weaver, supra, 450 U.S. at 30, 101 S. Ct. at 965, 67 L. Ed. 2d at 24. "To prevail on this sort of ex post facto claim, [a defendant] must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted." Johnson v. United States, 529 U.S. 694, 699, 120 S. Ct. 1795, 1800, 146 L. Ed. 2d 727, 735 (2000); see also Weaver, supra, 450 U.S. at 29, 101 S. Ct. at 964, 67 L. Ed. 2d at 23 (stating that the prohibition covers laws that satisfy two elements: the law "must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it"); State v. Natale, 184 N.J. 458, 491 (2005).

Defendant challenges the Legislature's increase in the criminal sanctions for the failure to register by classifying the offense as a third-degree instead of a fourth-degree crime. Unquestionably, defendant's failure to register occurred no earlier than 2011 four years after the enactment of the 2007 law. To that extent, defendant fails to satisfy the retroactivity element. Consequently, to sustain his ex post facto challenge, defendant argues that the 2007 statute increases the punishment of the sex offenses for which defendant was convicted in 1996. To support that argument, defendant likens the 2007 upgrade to an increase of penalties for a violation of parole or supervised release after the initial imposition of a sentence. We are unpersuaded.

Defendant principally relies on Johnson, supra, 529 U.S. 694, 120 S. Ct. 1795, 146 L. Ed. 2d 727. Although the Supreme Court ultimately determined that the challenged statute was not intended to be retroactive, the Court recognized that sanctions for violations of supervised release are part of the penalty for the initial offense. Id. at 700-01, 120 S. Ct. at 1800-01, 146 L. Ed. 2d at 736. Consequently, such post-revocation sanctions may not be increased for prisoners sentenced before their enactment. Id. at 701, 120 S. Ct. at 1801, 146 L. Ed. 2d at 736 (citing Greenfield v. Scafati, 390 U.S. 713, 20 L. Ed. 2d 250, 88 S. Ct. 1409 (1968)). Our Court has likewise recognized that:

laws changing qualifications for parole consideration that are likely to result in added time in prison, or that eliminate 'good time' as a credit against a term of imprisonment, and that are practically certain to result in added time in prison, violate the 'additional punishment' provision of the Ex Post Facto Clause.

[Doe, supra, 142 N.J. at 45.]

However, the sanction for violating the registration requirement is not a sanction, let alone an increased sanction, for the original sexual offense. It is a sanction for the failure to register. The United States Supreme Court highlighted this distinction in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), in which the Court rejected an ex post facto challenge to Alaska's registration scheme. The Court considered whether the ex post facto clause barred Alaska from retroactively requiring registration by offenders who committed their offenses before the registration law was enacted. Id. at 89, 123 S. Ct. at 1145, 155 L. Ed. 2d at 174. Finding that registration was not punitive, the Court held that the law could be retroactively applied. Id. at 105-06, 123 S. Ct. at 1154, 155 L. Ed. 2d at 185. The Court distinguished the non-punitive registration requirement, and the criminal statutes that would punish an offender who did not register; but the Court still found no ex post facto problem. "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." Id. at 101-02, 123 S. Ct. at 1152, 155 L. Ed. 2d at 182-83 (emphasis added).

We also find support for our conclusion in State v. Carrigan, 428 N.J. Super. 609 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013). The court in Carrigan rejected an ex post facto challenge to a statute that upgraded the penalty for driving with a suspended license by certain recidivist offenders of the drunk driving laws. Id. at 621. When the defendant was sentenced for his prior DWI in October 2010, driving with a revoked license was punishable under Title 39 for no more than a ninety-day sentence. Id. at 615; see N.J.S.A. 39:3-40(f)(2). Thereafter, the Legislature adopted L. 2009, c. 333, 1 (codified at N.J.S.A. 2C:40-26(b)), which made it a fourth-degree crime to drive on the revoked list if the defendant's license was suspended for a second or subsequent conviction for DWI or refusal to submit to a breath test. After the 2009 law became effective, defendant was arrested for driving while his license was suspended. Carrigan, supra, 428 N.J. Super. at 615-16.

We held the 2009 statute was not an ex post facto law because the statute applied to defendant's post-enactment behavior. Id. at 624. We specifically rejected an analogy to post-revocation sanctions discussed in Johnson, supra.

N.J.S.A. 2C:40-26(b) does not change the duration of the license suspensions that were previously imposed upon [defendant] before the new law took effect. His ten-year suspensions, duly imposed under N.J.S.A. 39:4-50(a)(3), have not been lengthened. Nor is he prohibited during his periods of suspension from doing anything that he could not have lawfully done before. The only thing that is different is that if defendant commits a new offense by getting behind the wheel after August 1, 2011 while still under suspension, he now faces a criminal penalty for that new conduct. There is nothing unconstitutional about treating such prior offenses as enhancement factors for wrongful conduct that post-dates the new law.

[Id. at 622.]

See also In re Frazier, 435 N.J. Super. 1, 8 (App. Div. 2014) (stating that a "law is not retroactive simply because it draws upon antecedent facts for its operation") (internal quotation marks and citation omitted).

Applying the same reasoning, we conclude that the 2007 statute did not change or enhance the sentence imposed on defendant for his 1994 crimes. Rather, the Legislature enhanced the penalty for his new offense of failing to register, and it did so before he committed that new offense.

Other jurisdictions have reached the same conclusion we do here, in analyzing statutes that enhanced the penalty for a sex offender's failure to register, where the enhancement post-dated the predicate sex offense, but preceded the failure to register. See State v. Cook, 187 P.3d 1283, 1289-90 (Kan. 2008); France v. Commonwealth, 320 S.W.3d 60, 65-66 (Ky. 2010); see also Frazier v. State, 668 S.E.2d 646, 647-48 (Ga. 2008) (construing statute criminalizing failure to register as a new crime distinct from the predicate offense, notwithstanding that the registration requirement is based on the offender's prior status). Applying a similar analysis, courts have rebuffed ex post facto challenges to enhanced penalties under felon-in-possession statutes that were enacted after the predicate felony conviction, but before the felon's prohibited possession of a firearm. See, e.g., United States v. Etheridge, 932 F.2d 318, 322-23 (4th Cir.), cert. denied, 502 U.S. 917, 112 S. Ct. 323, 116 L. Ed. 2d 264 (1991).

In sum, the 2007 upgrading of the punishment for failure to register is not an ex post facto law as applied to defendant, because the failure to register occurred after the 2007 amendment.

Affirmed.

1 As noted, defendant's conviction actually occurred in 1996, after a jury trial in October 1995. Based on the October 3, 1994, date of arrest, defendant committed the underlying offenses before the registration requirement was enacted on October 31, 1994. See L. 1994, c. 133. Chapter 133 was effective immediately, and required offenders already in the community to register within 120 days. L. 1994, c. 133, 2(c)(1). Our Supreme Court held that the registration requirement was not an ex post facto law as applied to persons who offended before its enactment because it was not "punishment." Doe v. Poritz, 142 N.J. 1, 40-77 (1995).