STATE OF NEW JERSEY v. FRANKLIN JACK BURR, II

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4628-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

FRANKLIN JACK BURR, II,

Defendant-Appellant.
_________________________

Submitted September 27, 2021 – Decided October 27, 2021

Before Judges Rothstadt, Mayer, and Natali.

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

Evelyn F. Garcia, attorney for appellant.

Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
Franklin Jack Burr, II (Registrant) appeals from the Law Division's July

16, 2020 denial of his motion for reconsideration of a January 24, 2020 order

that denied his motion to terminate his obligations under Community

Supervision for Life (CSL), 1 N.J.S.A. 2C:43-6.4, and the Registration and

Community Notification Law, N.J.S.A. 2C:7-1 to -23, also known as Megan's

Law,2 which were imposed at his sentencing in 2010, after he was tried for a

1
"A 2003 amendment replaced all references to '[CSL]' with 'parole supervision
for life [(PSL)].'" In re J.S., 444 N.J. Super. 303, 306 n.2 (App. Div. 2016)
(quoting State v. Perez, 220 N.J. 423, 429 (2015) (quoting L. 2003, c. 267, § 1)).
And, as amended, the statute imposed a higher burden of proof on registrants
seeking to be terminated from PSL. N.J.S.A. 2C:43-6.4(c) (2004). In this case,
registrant was not subjected to that higher burden of proof.

"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.'" Perez, 220 N.J. at 436-37 (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. PSL's "restrictions . . . monitor every aspect of
the daily life of an individual convicted of a qualifying sexual offense and
expose that individual to parole revocation and incarceration on the violation of
one, some, or all conditions." In the Matter of H.D., 241 N.J. 412, 421 (2020)
(quoting State v. Hester, 233 N.J. 381, 441 (2018)). 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).
2
"Megan's Law requires 'prescribed categories of sex offenders [to] register
with law enforcement agencies through a central registry maintained by the

A-4628-19
2
second time for offenses he committed in 2004. On appeal, registrant argues the

following points:

POINT I

THE [MOTION] JUDGE ERRED BY RELYING ON
THE CURRENT AMENDMENT OF LAW TO
SUPPORT HER DECISION TO DENY THE
REGISTRANT'S PETITION FOR TERMINATION
OF CSL AND MEAGAN'S [SIC] LAW
REGISTRATION, INSTEAD OF THE LAW THAT
WAS IN EFFECT ON THE DATE OF THE OFFENSE.

POINT II

[REGISTRANT] HAS BEEN CONTINUOUSLY
UNDER COMMUNITY SUPERVISION SINCE 2004.

POINT III

TO DENY [REGISTRANT'S] PETITION TO BE
RELEASED FROM CSL AND MEGAN'S LAW
REQUIREMENTS CONSTITUTES CRUEL AND
UNUSUAL PUNISHMENT. [(Not Raised Below).]

POINT IV

THE [MOTION] JUDGE ERRED IN RELYING ON
STATUTORY LANGUAGE THAT DID NOT EXIST
AT THE TIME OF THE OFFENSE. [3]

Superintendent of State Police. N.J.S.A. 2C:7-2(a)(1), 4(d).'" J.S., 444 N.J.
Super. at 306 n.1 (quoting In re Registrant N.B., 222 N.J. 87, 89 (2015)).
3
Additionally, registrant argues a new issue in his reply brief, contending that
if we "accept[] the State's position, then the State is exposed to a double jeopardy

A-4628-19
3
We are not persuaded by registrant's arguments and affirm, substantially

for the reasons stated by Judge Diane Pincus in her January 24, 2020 and July

16, 2020 written decisions.

The salient facts are generally undisputed and are summarized from the

motion record as follows. On August 2, 2001, registrant was arrested and

eventually charged with second-degree sexual assault, N.J.S.A. 2C:14-2(b), and

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He pled

guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a),

and, on April 22, 2002, was sentenced to two-years-probation. This sentence

did not include the imposition of CSL or Megan's Law requirements.

On January 14, 2004, registrant was arrested for an offense committed on

or about January 7, 2004. He was eventually charged with second-degree sexual

assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a). After a jury trial, registrant was convicted of

violation." Because registrant raised this argument for the first time before us
in his reply brief, we do not consider it properly before us and is deemed waived.
State v. Amboy Nat'l Bank, 447 N.J. Super. 142, 148 n.1 (App. Div. 2016) (citing
Drinker Biddle & Reath, LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011); Pressler and Verniero, Current N.J. Court Rules,
comment 4 on R. 2:6-2 (2016)). Moreover, registrant raised a substantially
similar argument before us in his appeal from the denial of his motion to correct
an illegal sentence. See State v. Burr, No. A-1255-13 (App. Div. Oct. 31, 2016)
(slip op. at 5-6).
A-4628-19
4
second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On April 22, 2005,

registrant was sentenced to a six-year term, Megan's Law registration, and CSL. 4

Registrant was taken into custody pursuant to that sentence..

Registrant successfully appealed the April 2005 conviction, which we

vacated on May 8, 2007, and remanded for a new trial. State v. Burr, 392 N.J.

Super. 538, 576 (App. Div. 2007), aff'd as modified, 195 N.J. 119 (2008).

Registrant posted bond and was released from prison on August 29, 2007,

pending the State's unsuccessful appeal to the New Jersey Supreme Court and

his new trial.

After a new jury trial, registrant was convicted of third-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On August 20, 2010,

he was sentenced to a three-year term, Megan's Law registration and CSL, and

he was remanded to State prison. A judgment of conviction reflecting his

sentence was entered on August 26, 2010. The next day, registrant was released

from incarceration based upon the jail credits he received for the time he served

4
Registrant was subjected to CSL rather than PSL because his crime occurred
days before the effective date of the amendment that created PSL.
A-4628-19
5
before his original conviction was vacated. On September 10, 2010, registrant

signed an acknowledgment of his obligations under Megan's Law and CSL.5

Registrant then appealed from his 2010 conviction. We affirmed, the New

Jersey Supreme Court denied certification, and the United States Supreme Court

rejected his petition for certiorari. State v. Burr, No. A-2671-10 (App. Div. May

13, 2013) (slip op. at 3-10), certif. denied, 216 N.J. 365 (2013), cert. denied, 574 U.S. 995 (2014).

In 2016, registrant unsuccessfully appealed from the denial of a motion to

correct an illegal sentence that challenged, among other things, his being placed

under CSL and Megan's Law. We held his arguments were without merit to the

extent they were not otherwise moot. State v. Burr, No. A-1255-13 (App. Div.

Oct. 31, 2016) (slip op. at 3). The New Jersey Supreme Court denied his petition

for certification. State v. Burr, 229 N.J. 583 (2017).

5
Neither party has included in their appendix a copy of the Megan's Law
registration form, but Judge Pincus referred to it in her July 2020 decision.
Neither party indicated on appeal that the judge was wrong about her
observation. In fact, as mentioned infra, registrant claims the judge should not
have considered the form, which was part of the court's record.

A-4628-19
6
On November 4, 2019, registrant filed a motion to terminate his Megan's

Law and CSL obligations. 6 On January 24, 2020, after hearing oral argument,

Judge Pincus denied registrant's motion, setting forth her reasons in a

comprehensive written decision.

According to the judge's decision, registrant's argument was that he met

the requirements for being relieved of his CSL and Megan Law's obligations

because "he has been offense free for fifteen years since October 28, 2004, and

is unlikely to pose a threat to the safety of others." The judge rejected that

contention and explained that under Megan's Law, N.J.S.A. 2C:7-2(f), registrant

had to prove "that [he] ha[d] not committed an offense within [fifteen] years

following conviction or release from a correctional facility for any term of

imprisonment imposed, whichever is later, and is not likely to pose a threat to

the safety of others." And, under CSL, that he could "petition the Superior Court

for release from [CSL and be released]" "upon proof by clear and convincing

evidence that [he] ha[d] not committed a crime for [fifteen] years since the last

conviction, and that [he was] not likely to pose a threat to the safety of others if

released."

6
Neither party has included in their appendix a copy of the motion or the
supporting documents or those filed in opposition.
A-4628-19
7
Judge Pincus then applied the eligibility requirements to registrant's

situation and rejected his contention that the fifteen-year time period began with

his August 2004 conviction that was ultimately vacated. Relying on our opinion

in J.S., the judge stated that "the [fifteen]-year time frame does not begin until

after the registration requirements are imposed." The judge concluded by stating

the following:

In this case, the Registrant was incarcerated for
343 days from June 14, 2004 until August 30, 2007,
when he posted bail subsequent to the Appellate
Division's reversal of his conviction. Prior to August
30, 2007, the Registrant was not in a position to register
for Megan's law and CSL because he was incarcerated.
Moreover, when he was released on August 30, 2007,
his conviction had already been reversed by the
Appellate Division, therefore nullifying his obligation
to register for Megan's Law and CSL. It was not until
the registrant was convicted, sentenced, and discharged
from the [Department of Corrections] in 2010 that his
Megan's Law and CSL obligations were properly
imposed upon him. As such, August 27, 2010 is the
appropriate date from which to calculate the [fifteen]-
year offense free period. Therefore, the registrant has
not satisfied the provisions of N.J.S.A. 2C:7-2(f) and
N.J.S.A. 2C:43-6.4(c).

On February 3, 2020, registrant filed a motion for reconsideration in

which, according to Judge Pincus, he asserted numerous arguments that

continued to rely upon his contention that the beginning of the fifteen-year

A-4628-19
8
period was before August 2010.7 According to registrant, his August 2010

judgment of conviction acknowledged that he completed his sentence on August

30, 2007; his August 2010 date of release was from an illegal sentence that could

not be used as the commencement date for the fifteen-year term; the judge

improperly relied upon documents from the court's file which were not admitted

into evidence by either party, including his 2010 Megan's Law registration form;

the judge's January 2020 order improperly held that the State had the right to

hold him past his max date to complete the CSL and Megan's Law forms; and

the same order was entered in reliance upon N.J.S.A. 2C:43-6.4 which, as

applied to registrant, was an ex post facto law. 8 Moreover, according to

7
Again, we were not provided with a copy of the motion, any of its supporting
documents or those filed in opposition.
8
As we have previously explained:

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.
2016) (emphasis omitted) (quoting Perez, 220 N.J. at
438-39).]
A-4628-19
9
registrant, he was actually placed on Megan's Law and CSL in 2004, while he

was serving his initial sentence, but he did not provide any documents that

substantiated that claim.

On July 16, 2020, after considering oral argument, Judge Pincus denied

registrant's motion, setting forth her reasons in an eleven-page written decision

that she incorporated into her order. The judge explained that "because no

evidence has been presented to the [c]ourt which otherwise demonstrates that

[registrant] was subjected to registration requirements [before] beginning in

2010, the [c]ourt continues to find that [r]egistrant has not met the [fifteen]-year

offense-free period necessary for the termination of his Megan's Law and CSL

obligations." And, because the judge concluded the correct date to begin

calculating the fifteen-year offense free period was in 2010, not 2004, she held

the registrant's argument that she had not applied the correct version of Megan's

Law and CSL was moot. The judge also disagreed with his argument that

probation officers subjected him to Megan's Law requirements immediately

after his arrest in January 2004, because no evidence was presented to support

that contention.

Ultimately, the judge denied the motion for reconsideration because her

January 24, 2020 order was not based on "palpably incorrect or irrational basis;"

A-4628-19
10
she did not "fail[] to appreciate the significance of probative, competent

evidence;" and "[r]egistrant ha[d] not presented [her] with new or previously

unobtainable evidence which would not have been available to him prior to

January 24, 2020 Order." Registrant later filed this appeal from the judge's order

denying reconsideration.

At the outset, we initially observe that Judge Pincus correctly applied Rule

4:49-2 to registrant's motion for reconsideration. Under Rule 4:49-2, a court

"may reconsider final judgments or orders." Lee v. Brown, 232 N.J. 114, 126

(2018). Although Rule 4:49-2 does not expressly apply to criminal practice,

courts have nevertheless applied its standards to motions for reconsideration in

criminal actions. State v. Wilson, 442 N.J. Super. 224, 233 n.3 (App. Div.

2015), rev'd on other grounds, 227 N.J. 534 (2017); see State v. Puryear, 441 N.J. Super. 280, 294-95 (App. Div. 2015) (applying Rule 4:49-2 and Rule 1:7-

4(b) to a trial court's decision to grant reconsideration of its earlier decision on

a motion to suppress).

We review orders denying reconsideration for an abuse of discretion.

Granata v. Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016), aff'd, 231 N.J.
135 (2017); Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)

(stating reconsideration is "a matter within the sound discretion of the [c]ourt")

A-4628-19
11
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A court

abuses its discretion "when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.
378, 382 (App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002)).

Applying that standard, we conclude that Judge Pincus did not abuse her

discretion by denying registrant's motion, substantially for the reasons expressed

in her written decisions filed in response to registrant's two motions. We only

add the following comments.

The relevant provision of Megan's Law that existed at the time of

registrant's offense in 2004 is as follows:

Except as provided in subsection g. of this section, a
person required to register under this act may make
application to the Superior Court of this State to
terminate the obligation upon proof that the person has
not committed an offense within [fifteen] years
following conviction or release from a correctional
facility for any term of imprisonment imposed,
whichever is later, and is not likely to pose a threat to
the safety of others.

[ N.J.S.A. 2C:7-2(f) (2003) (emphasis added).]

A-4628-19
12 Since 2003, N.J.S.A. 2C:7-2 has been amended on six occasions, yet subsection

(f), regarding eligibility for a registrant to terminate Megan's Law obligations

remained unchanged. Compare L. 2003, c. 34, § 1 with L. 2017, c. 141, § 3.

The relevant provision of the CSL statute that existed in 2004 when

registrant committed his offenses, contained a similar requirement for

termination. It stated:

A person sentenced to a term of community supervision
for life may petition the Superior Court for release from
community supervision. The court shall grant a petition
for release from a special sentence of community
supervision only upon proof that the person has not
committed a crime for [fifteen] years since last
conviction or release from incarceration, whichever is
later, and that the person is not likely to pose a threat to
the safety of others if released from supervision.

[N.J.S.A. 2C:43–6.4(c) (2003) (emphasis added).]

The Legislature amended this law on several occasions, but always left the

fifteen-year provision unchanged. Compare L. 1994, c. 130, § 2 with L. 2017,

c. 333, § 1.

In J.S., we clarified when the fifteen-year period commences. Relying on

the unaltered language of the statute, we held "the fifteen-year period for

termination of Megan's Law and CSL compliance commences upon imposition

of the registration requirements." J.S., 444 N.J. Super. at 313. And, registration

A-4628-19
13
requirements are imposed when the registrant is released from incarceration or

when a judgment of conviction is entered, whichever is later. Ibid.

Later, the Supreme Court, in H.D., 241 N.J. at 420-23, discussed Megan's

Law's fifteen-year period, described it as "unambiguous," and explained that it

"plainly refers to the conviction or release that triggers the registration

requirement." Id. at 421. The Court held that "[u]nder the plain language of

subsection (f), the fifteen-year period during which an eligible registrant must

remain offense-free to qualify for registration relief commences upon his or her

conviction or release from confinement for the sex offense that gave rise to his

or her registration requirement." Id. at 423 (emphasis added). The Court made

clear that "the fifteen-year clock will not start until release, no matter how long

or short the period of imprisonment." Id. at 421.

Registrant became subject to Megan's Law and CSL upon his conviction

and release from prison in 2010. Contrary to registrant's main contention before

Judge Pincus and now before us, he was not resentenced in 2010 on his 2005

conviction, because his original conviction was not left intact. See State v.

Biegenwald, 106 N.J. 13, 67 (1987). His 2005 conviction and sentence became

void upon our vacating them in 2007, placing registrant in the position that he

had been in before the first trial began—without a conviction or sentence. See

A-4628-19
14
State v. Williams, 30 N.J. 105, 110-11, 124 (1959). When he was retried and

convicted in 2010, it was the first conviction for an offense that required him to

incarcerated for only a few days following his conviction and release, his

obligations under Megan's Law and CSL commenced at that time and triggered

the period during which he had to remain conviction free for fifteen years in

order to be eligible for termination of both laws' requirements. Here, registrant's

application for termination was simply premature, and the judge correctly

determined that he was not entitled to relief. Registrant failed to demonstrate

that determination was based on a mistake or other reason that would support a

reconsideration of the judge's January 2020 order. We have no reason to disturb

the judge's denial of registrant's reconsideration motion.

As to registrant's remaining arguments about CSL and Megan's Law, we

conclude that they were either not raised before Judge Pincus, and therefore not

properly before us, see State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v.

Robinson, 200 N.J. 1, 20 (2009)) ("For sound jurisprudential reasons, with few

exceptions, 'our appellate courts will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such a presentation

A-4628-19
15
is available.'"), or they are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

A-4628-19
16

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