State of New Jersey v. Ernest Jones , 443 N.J. Super. 515 ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5383-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
January 19, 2016
v.
APPELLATE DIVISION
ERNEST JONES, a/k/a EARNEST
JONES, ERNEST EVERET JONES,
and ERNEST EVERETT JONES,
Defendant-Appellant.
______________________________
Argued December 7, 2015 - Decided January 19, 2016
Before Judges Messano, Carroll, and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Docket No. 13-06-00635.
John Douard, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Douard, of counsel and on the
briefs).
Jeffrey P. Mongiello, Deputy Attorney
General, argued the cause for respondent
(John J. Hoffman, Acting Attorney General,
attorney; Mr. Mongiello, of counsel and on
the brief).
The opinion of the court was delivered by
CARROLL, J.A.D.
In Riley v. New Jersey State Parole Board, 219 N.J. 270
(2014), a divided Supreme Court determined that retroactive
application of the monitoring and supervision requirements of
the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to
-123.95, 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. Left unanswered in Riley
was whether those ex post facto provisions similarly apply to a
defendant who was placed on either community supervision for
life (CSL) or parole supervision for life (PSL) prior to the
enactment of SOMA, and who was later subjected to the additional
condition of Global Position Satellite (GPS) monitoring for the
duration of his parole supervision. Id. at 291. We address
that unresolved issue in the present appeal.
I.
In September 1999, defendant Ernest Jones was convicted of
second-degree sexual assault, N.J.S.A. 2C:14-2b. He was
sentenced to a five-year term of imprisonment in February 2000.
Additionally, "Megan's Law"1 and CSL applied to defendant's
sentence.
1
"Megan's Law", L. 1994, c. 127 to 134, established a system of
registration and community notification for certain sex
(continued)
2 A-5383-13T1
Defendant was released from prison in December 2002.
Following his release, defendant was convicted of violating the
conditions of his CSL eight times prior to the conviction that
is the subject of the present appeal. On August 14, 2012, while
defendant was serving a one-year prison term for his eighth CSL
conviction, the New Jersey State Parole Board served him with
"Notice of Imposition of Special Condition of Global Positioning
System Monitoring (G.P.S.) Participation." The notice stated
that a determination had been made to refer defendant for
participation in the GPS program based on the following:
Since beginning CSL supervision on 12-15-02
[defendant has] been charged nine times with
violating the conditions of supervision. Of
those nine [defendant was] convicted eight
times with the ninth being merged with the
eighth. The violations on those complaints
resulted from [defendant] not reporting, not
participating in random drug and alcohol
screening, not residing at an approved
(continued)
offenders, and set forth various sentencing and community
supervision requirements pertaining to such offenders. N.J.S.A.
2C:43-6.4 was also adopted as part of Megan's Law, and provided
that a judge imposing sentence on a person convicted of certain
designated sexual offenses "shall include" a special sentence of
community supervision for life. See L. 1994, c. 130. A 2003
amendment replaced all references to "community supervision for
life" with "parole supervision for life." See State v. Perez,
220 N.J. 423, 429 (2015) (citing L. 2003, c. 267, § 1, eff. Jan.
14, 2004). 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 A-5383-13T1
residence, admission of alcohol and CDS use
and [noncompliance] with counseling.
The notice informed defendant that he had the right to
contest the referral and to submit a written statement
explaining his reasons for contesting it. It further indicated
that if defendant chose to contest the referral, the matter
would then be reviewed by the Director of the Division of Parole
and the Chairman of the State Parole Board. Defendant signed
the notice, and marked the box next to the statement "I contest
the allegation or the basis that supports the rationale for the
referral to the G.P.S. program." As the basis for his protest,
defendant submitted a one-line written statement explaining
"[b]ecause [] the [c]ourts didn't refer[] me to be on this
program."
On August 22, 2012, the Chairman of the Parole Board
adopted the referral. In its final decision, the Board noted
defendant's eight prior convictions for CSL violations and
determined that "GPS offers [defendant] the best chance . . . to
not re-offend while optimizing public safety." The Board
elaborated that:
During his time under CSL supervision,
[defendant] has repeatedly absconded from
supervision. His other violations of CSL
conditions include failure to report as
instructed, failure to reside at an approved
address, residing with minors without
approval, failure to refrain from alcohol
4 A-5383-13T1
use, failure to participate in an outpatient
alcohol counseling program, failure to
participate in sex offender counseling and
failure to participate in alcohol and drug
screening. [Defendant's] adjustment to
community supervision has been poor, and he
has not made any progress toward a
successful reentry back into the community.
[Defendant] is a flight risk at all
times while in the community, and should he
abscond again from supervision, the Division
of Parole would be unaware of his
whereabouts and activities, which may
include contact with minors and alcohol use,
thereby making him a threat to public
safety. Therefore, GPS monitoring is being
recommended as a way to deter [defendant]
from absconding from supervision, to deter
him from frequenting areas where minors
mainly or exclusively congregate, to help
ensure that [defendant] is residing full-
time at his approved residence and not at
locations unknown to and unapproved by the
Division of Parole and to assist the
Division of Parole to more effectively
supervise [defendant] in the community.
Defendant did not appeal the final agency decision.
Rather, immediately prior to his release, defendant signed a
notice of conditions for the GPS monitoring program. The
November 1, 2012 notice informed defendant that:
Pursuant to the "Sex Offender Monitoring
Act," P.L. 2005 c. 189, which was enacted on
August 6, 2007, you shall be monitored under
the . . . GPS Monitoring Program. The GPS
Monitoring Program requires that your
physical location be monitored 24 hours a
day/7 days a week. The Division of Parole
of the State Parole Board administers the
GPS Monitoring Program. You shall adhere to
the conditions cited below. Your failure to
5 A-5383-13T1
comply with any of the conditions shall
constitute a crime of the third degree and
is punishable by up to five (5) years in
prison and/or a fine of $15,000.
The notice went on to set forth a detailed list of eleven
conditions that defendant was required to abide by while on the
GPS program.
On November 17, 2012, defendant purposely removed his
tracking device. He then remained at large until he was
arrested on July 29, 2013. Consequently, he was charged in
Gloucester County Indictment No. 13-06-00635 with fourth-degree
violation of CSL, N.J.S.A. 2C:43-6.4d, by failing to comply with
the GPS monitoring system.
At trial, the parties stipulated that
for all relevant dates in this matter, [CSL]
had been imposed upon defendant as a
condition of a sentence, and on November
1[], 2012, as part of [CSL], [] defendant
was subject to the GPS Monitoring program.
[] Defendant knew he was subject to the
conditions of both [CSL] and the GPS
Monitoring program.
Following the two-day trial, at which defendant testified, the
jury convicted him of the CSL violation. On June 20, 2014,
defendant was sentenced to an eighteen-month prison term, with a
nine-month period of parole ineligibility.
6 A-5383-13T1
In this appeal, defendant does not challenge the
sufficiency of the evidence supporting his conviction. Rather,
he advances two issues for our consideration:
POINT I
THE RETROACTIVE APPLICATION OF THE SEX
OFFENDER MONITORING ACT TO MR. JONES MORE
THAN TEN YEARS AFTER HIS RELEASE FROM PRISON
ON COMMUNITY SUPERVISION FOR LIFE VIOLATES
HIS RIGHTS UNDER THE EX POST FACTO CLAUSES
OF THE UNITED STATES CONSTITUTION AND NEW
JERSEY CONSTITUTION (NOT RAISED BELOW)
POINT II
MR. JONES'S DUE PROCESS RIGHTS WERE VIOLATED
WHEN THE STATE PLACED HIM ON CONTINUOUS GPS
MONITORING WITHOUT PROVIDING ANY BASIS FOR
THE SURVEILLANCE AND WITHOUT PROVIDING ANY
HEARING WHERE HE COULD CHALLENGE THE GPS
MONITORING THROUGH CROSS-EXAMINATION AND
ASSISTANCE OF COUNSEL
II.
We begin by reviewing the statutory framework that guides
our analysis. "[CSL] has its statutory source in N.J.S.A.
2C:43-6.4, the Violent Predator Incapacitation Act. The statute
is one component of a series of laws that are referred to
generally as Megan's Law." State v. Schubert, 212 N.J. 295, 305
(2012). Unlike the registration and notification requirements
embodied in Megan's Law, which are deemed to be remedial and not
punitive, Doe v. Poritz, 142 N.J. 1 (1995), the CSL statute is
7 A-5383-13T1
"punitive rather than remedial at its core." Schubert, supra,
212 N.J. at 308.
At the time of defendant's 2000 sentence that subjected him
to CSL, N.J.S.A. 2C:43-6.4 provided in pertinent part:
(a) Notwithstanding any provision of law
to the contrary, a court imposing sentence
on a person who has been convicted of . . .
sexual assault . . . shall include, in
addition to any sentence authorized by this
Code, a special sentence of community
supervision for life.
(b) . . . Persons serving a special
sentence of community supervision shall be
supervised as if on parole and subject to
conditions appropriate to protect the public
and foster rehabilitation.
. . . .
(d) A person who violates a condition of a
special sentence of community supervision
without good cause is guilty of a crime of
the fourth degree.
[Violent Predator Incapacitation Act of
1994, L. 1994, c. 130, § 2, eff. Oct. 31,
1994.]
CSL is "designed to protect the public from recidivism by
defendants convicted of serious sexual offenses." Jamgochian v.
N.J. State Parole Bd., 196 N.J. 222, 237-38 (2008) (quoting
Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181 (App.
Div.), certif. granted, 182 N.J. 140 (2004)). "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-
8 A-5383-13T1
offender parolees." Perez, supra, 220 N.J. at 437. N.J.A.C.
10A:71-6.11 sets forth the general conditions that attach to sex
offenders subject to CSL. These include approval of their
residence and any change of residence, N.J.A.C. 10A:71-6.11(b)5-
6; and approval of employment and notice of any change in
employment status, N.J.A.C. 10A:71-6.11(b)14-15. They are also
subject to random drug and alcohol testing, N.J.A.C. 10A:71-
6.11(b)13; a yearly polygraph examination, N.J.A.C. 10A:71-
6.11(b)21; imposition of a curfew, N.J.A.C. 10A:71-6.11(b)17;
and restrictions on the use of a computer and the internet,
N.J.A.C. 10A:71-6.11(b)22. See Perez, supra, 220 N.J. at 437;
Schubert, supra, 212 N.J. at 306.
"In addition to those general conditions, special
conditions may be imposed to meet the individual's particular
situation." Schubert, supra, 212 N.J. at 306. In such instances,
N.J.A.C. 10A:71-6.11(k) provides:
Additional special conditions may be imposed
by the District Parole Supervisor, an
Assistant District Parole Supervisor or the
designated representative of the District
Parole Supervisor when it is the opinion
that such conditions would reduce the
likelihood of recurrence of criminal
behavior. The offender and the Board shall
be given written notice upon the imposition
of such conditions.
Notably, the regulations specifically authorize the imposition
of a special condition of electronic monitoring for those
9 A-5383-13T1
offenders serving a special sentence of community or parole
supervision for life. N.J.A.C. 10A:72-10.1(a)3-(b).2
SOMA was enacted effective August 6, 2007, and governs the
continued monitoring of serious and violent sexual offenders.
The legislative findings underlying its adoption are set forth
in the statute, as follows:
a. Offenders who commit serious and
violent sex crimes have demonstrated high
recidivism rates and, according to some
studies, are four to five times more likely
to commit a new sex offense than those
without such prior convictions, thereby
posing an unacceptable level of risk to the
community.
b. Intensive supervision of serious and
violent sex offenders is a crucial element
in both the rehabilitation of the released
inmate and the safety of the surrounding
community.
c. Technological solutions currently
exist to provide improved supervision and
behavioral control of sex offenders
following their release.
d. These solutions also provide law
enforcement and correctional professionals
with new tools for electronic correlation of
the constantly updated geographic location
of supervised sex offenders following their
release with the geographic location of
2
See also N.J.A.C. 10A:72-2.4(b)3(ii) (authorizing, upon
violation of parole by a regular parolee, the imposition of a
special condition requiring "[a]ssignment to and successful
completion of the electronic monitoring program, wherein
electronic monitoring serves to address violations of conditions
of supervision").
10 A-5383-13T1
reported crimes, to possibly link released
offenders to crimes or to exclude them from
ongoing criminal investigations.
e. Continuous 24 hours per day, seven
days per week, monitoring is a valuable and
reasonable requirement for those offenders
who are determined to be a high risk to
reoffend, were previously committed as
sexually violent predators and conditionally
discharged, or received or are serving a
special sentence of community or parole
supervision for life. A program to monitor
these sex offenders should be established.
[N.J.S.A. 30:4-123.90.]
SOMA authorizes GPS monitoring of those offenders whose
"risk of re-offense has been determined to be high [under
Megan's Law],"3 and who have been deemed appropriate for
continued GPS monitoring by the Chairperson of the State Parole
Board. N.J.S.A. 30:4-123.91a(1)-(2); N.J.A.C. 10A:72-11.1.
Additionally, the individual to be monitored must fall into one
of several categories, which include offenders who have been
sentenced to CSL or PSL. N.J.S.A. 30:4-123.91a(2)(b); N.J.A.C.
10A:72-11.1(a)2ii. Failure to comply with SOMA's monitoring
requirements, N.J.S.A. 30:4-123.94, and interference with a
monitoring device, N.J.S.A. 30:4-123.95, are punishable as
third-degree crimes.
3
N.J.S.A. 2C:7-8 describes the factors and considerations that
are relevant to determining the risk of re-offense.
11 A-5383-13T1
III.
A.
Defendant contends for the first time on appeal that
retroactive application of SOMA's GPS monitoring program to him
violates the Ex Post Facto Clauses of both the Federal and New
Jersey Constitutions, U.S. Const. art. I, § 10; N.J. Const. art.
IV, § 7, ¶ 3. Specifically, relying on Riley, supra, defendant
argues that the GPS monitoring program retroactively enhances
the penal consequences of his existing CSL sentence and thereby
violates the ex post facto prohibition.
"Generally, an appellate court will not consider issues,
even constitutional ones, which were not raised below." State
v. Galicia, 210 N.J. 364, 383 (2012). "[A]ny error or omission
shall be disregarded by the appellate court unless it is of such
a nature as to have been clearly capable of producing an unjust
result." Id. at 386 (quoting R. 2:10-2). Here, while we
address the constitutional issue now raised by defendant in
light of the Court's recent ruling in Riley, we nonetheless find
it insufficient to disturb the jury's verdict for the reasons
that follow.
In Riley, supra, 219 N.J. at 275, the Parole Board sought
to apply the GPS monitoring provisions of SOMA to Riley, who had
committed a predicate sexual offense in 1986, prior to the
12 A-5383-13T1
enactment of the CSL statute. Riley was released from prison in
2009 under no form of parole supervision, although he was
required to comply with the registration and notification
provisions of Megan's Law. Id. at 274. Six months later, and
more than twenty years after he committed his last offense, the
Parole Board advised Riley that he was subject to SOMA's GPS
monitoring program. Ibid.
Riley filed an appeal with the Parole Board, arguing that
the retroactive application of SOMA to him, based on his 1986
conviction, violated the bar against ex post facto laws. Ibid.
In its analysis, the Court focused on "whether the law, as
retrospectively applied, imposes additional punishment to an
already completed crime." Id. at 285 (citing Kansas v.
Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 2086, 138 L. Ed.
2d 501, 520 (1997)). For purposes of its analysis, the Court
"accept[ed] that the Legislature, in passing SOMA, intended to
enact a remedial, regulatory scheme that was civil and
nonpunitive in nature." Id. at 292. Nonetheless, by a four-to-
three majority, the Court "conclude[d] that SOMA's adverse
effects are so punitive . . . as to negate the State's intent to
deem it only civil and regulatory." Id. at 297 (alteration in
original) (quoting Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct.
1140, 1147, 155 L. Ed. 2d 164, 176 (2003)).
13 A-5383-13T1
The majority noted that "[CSL] and its corollary [PSL] are
merely indefinite forms of parole." Id. at 288. It recognized
that SOMA shares these same essential characteristics. "SOMA
looks like parole, monitors like parole, restricts like parole,
and is run by the Parole Board. Calling this scheme by another
name does not alter its essential nature." Id. at 294.
Accordingly, the Court held that the retroactive application of
SOMA to Riley violated the Ex Post Facto Clauses of the Federal
and State Constitutions, and remanded to the Parole Board for
enforcement of its judgment. Id. at 298.
Importantly, the Court noted that the case did not concern
"a defendant who was subjected to the additional condition of
GPS monitoring for the duration of his probation or parole."
Id. at 291. It further stated: "[w]e do not suggest that GPS
monitoring may not be added as a condition of parole supervision
that is ongoing – that is, while the offender is still serving
his sentence." Id. at 290. We view this as a critical
distinction.
Unlike Riley, in the present case defendant was still
serving his CSL sentence when the Parole Board sought to impose
SOMA's GPS monitoring program as a special condition. As noted,
"[a]n offender serving a special sentence of [CSL] shall be
supervised by the Division of Parole as if on parole and subject
14 A-5383-13T1
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 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.
To the extent it may be relevant, we recognize that "CSL
and PSL are distinct special post-sentence supervisory schemes
for certain sex offenders." See Perez, supra, 220 N.J. at 427-
28 (noting that a defendant subject to CSL who is sentenced to
an extended term is eligible for parole in instances where those
on PSL are not). Nonetheless, for present purposes, we discern
no meaningful distinction. CSL and PSL are "corollary"
sentencing schemes, Riley, supra, 219 N.J. at 288, and are penal
in nature, Perez, supra, 220 N.J. at 443. As noted above,
offenders sentenced under CSL and PSL are both subject to the
15 A-5383-13T1
supervision of the Division of Parole "as if on parole," and
both are subject to substantially similar general and special
parole conditions. When deemed appropriate, both are also
eligible to be monitored under SOMA. N.J.S.A. 30:4-
123.91a(2)(b); N.J.A.C. 10A:72-11.1(a)2ii.
Here, unlike the petitioner in Riley, defendant was already
subject to the constraints attendant to parole supervision when
the special condition of GPS monitoring was imposed.
Additionally, defendant had previously violated CSL eight times,
including periods when he had absconded. In contrast, Riley had
committed no other offenses. It is beyond cavil that defendant
was already an eligible candidate for electronic monitoring when
the GPS monitoring condition was imposed. While arguably the
duration of the period that defendant may be subject to GPS
monitoring is longer than traditional electronic monitoring, 4 we
do not classify any added burden attendant to the GPS program as
sufficiently punitive to constitute an ex post facto violation.
Indeed, in some ways it may prove less onerous than the present
electronic monitoring, as "we have every reason to believe that
the dimensions of the system, while not presently conspicuous,
will only become smaller and less cumbersome as technology
progresses." Doe v. Bredesen, 507 F.3d 998, 1000, 1005 (6th
4
See N.J.A.C. 10A:72-10.2.
16 A-5383-13T1
Cir. 2007), reh'g en banc denied, 521 F.3d 680 (6th Cir. 2008),
cert. denied, 555 U.S. 921, 129 S. Ct. 287, 172 L. Ed. 2d 210
(2008) (rejecting an ex post facto challenge to the Tennessee
Serious and Violent Sex Offender Monitoring Pilot Project Act,
which "subject[s] a convicted sexual offender to a satellite-
based monitoring program for the duration of his probation").
Moreover, the GPS monitoring condition does not increase
the length of defendant's CSL sentence. Nor does it restrict
defendant's movements or travel in any material manner beyond
the restrictions attendant to his CSL supervision. Importantly,
defendant was only charged with violating CSL, a fourth-degree
crime, consistent with the punishment established in N.J.S.A.
2C:43-6.4d at the time of his 2000 sentence. Defendant was not
charged under statutes criminalizing violations of SOMA, in
which event the result we reach might well be different. See
N.J.S.A. 30:4-123.94 (third-degree failure to comply with terms
of GPS monitoring); N.J.S.A. 30:4-123.95 (third-degree tampering
with GPS device).
We also distinguish this case from Perez. There,
defendant's CSL sentence was improperly enhanced by application
of post-2003 amendments to N.J.S.A. 2C:43-6.4. Perez, supra,
220 N.J. at 442. N.J.S.A. 2C:43-6.4(e), for example, now
requires the imposition of a mandatory extended term without
17 A-5383-13T1
parole if certain enumerated offenses are committed while the
actor is on PSL. A similarly-situated defendant on CSL status
is not subject to a mandatory extended term sentence and remains
parole-eligible. Id. at 437-38. In contrast to Perez, in the
present case, defendant's sentence was not so enhanced.
Summarizing, defendant was sentenced to CSL in 2000.
Accordingly, he fell within the supervision of the Parole
Division, which has the authority to impose general and special
conditions to both ensure the protection of the public and
reduce the likelihood that defendant will re-offend. Defendant
demonstrated a virtually uninterrupted pattern of violating his
CSL, including a history of absconding during which absences his
whereabouts could not be ascertained. The GPS monitoring
program represents a technological upgrade over the special
condition of electronic monitoring for convicted CSL offenders
that the parole authorities no doubt have the authority to
impose. We are not persuaded that the GPS monitoring materially
increased defendant's punishment. Nor do we conclude that this
special condition is significantly more onerous or punitive than
electronic monitoring or any other regulatory requirement that
may be imposed as part of defendant's CSL sentence.
Accordingly, we find no ex post facto violation.
18 A-5383-13T1
B.
As a component of his ex post facto argument, defendant
contends that his counsel was ineffective for failing to move to
dismiss the indictment on such grounds. He argues that counsel
should have been aware of our September 22, 2011 decision in
Riley5 that formed the basis for such a successful challenge to
the indictment.
To prove ineffective assistance of counsel, a defendant
must demonstrate a reasonable likelihood of success under the
test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). That is, the defendant must
show: (1) the deficiency of his counsel's performance and (2)
prejudice to his defense. Id. at 687, 104 S. Ct. at 2064, 80 L.
Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987)
(adopting the Strickland two-pronged analysis in New Jersey).
Generally, we do not entertain ineffective assistance of
counsel claims on direct appeal "because such claims involve
allegations and evidence that lie outside the trial record."
State v. Preciose, 129 N.J. 451, 460 (1992). The appropriate
procedure for their resolution commonly is not direct appeal,
but rather a post-conviction relief (PCR) application attended
5
Riley v. New Jersey State Parole Bd., 423 N.J. Super. 224 (App.
Div. 2011).
19 A-5383-13T1
by a hearing if a prima facie showing of ineffectiveness is
shown. Id. at 460, 463. Where defendant's claim of
ineffectiveness relates solely to his allegation of a
substantive legal error contained completely within the trial
record, however, we can consider it. See State v. Quezada, 402
N.J. Super. 277, 280 (App. Div. 2008).
Here, since defendant presents an entirely legal issue, we
opt to address his claim of ineffective assistance of counsel.
Upon doing so, we conclude that defendant is unable to satisfy
Strickland's prejudice prong. Even had counsel moved to dismiss
the indictment on the grounds that the GPS monitoring
requirement constituted an ex post facto violation, such motion
would have been unsuccessful, for the reasons we have expressed
above.
C.
Finally, defendant contends that his due process rights
were violated when he was subjected to GPS monitoring without
any advance notice or opportunity to be heard. We disagree.
It is well-settled that "parolees, probationers, and even
prisoners have liberty interests that implicate the commands of
due process." Jamgochian, supra, 196 N.J. at 240. "The minimum
requirements of due process . . . are notice and the opportunity
to be heard." Doe v. Poritz, supra, 142 N.J. at 106.
20 A-5383-13T1
"[T]he requirements of due process are . . . flexible,
calling for such procedural protections as the situation
demands. Simply put, not all situations calling for procedural
safeguards call for the same kind of procedure." Jamgochian,
supra, 196 N.J. at 240 (quoting State ex rel. D.G.W., 70 N.J.
488, 502 (1976)).
In many cases in which the supervised
offender wishes to contest the matter, due
process will be satisfied by giving him both
specific notice of the claimed misconduct or
improper behavior and the opportunity to
respond by letter with supporting
attachments, such as certifications or
affidavits. To merit a hearing, the
supervised offender must deny the
allegations or contest the conclusions to be
drawn from the allegations or the rationale
supporting the [condition sought to be
imposed]. A community-supervised-for-life
offender is not shielded, as is the accused
in a criminal case, by the presumption of
innocence.
[Id. at 247-48.]
A hearing is generally required only when there are material
facts in dispute that need to be resolved by credibility
determinations. Id. at 248-49.
In the present case, on August 14, 2012, the Parole Board
served defendant with written notice of its intention to impose
GPS monitoring as a special condition of his CSL. The notice
clearly specified that the proposed action was being taken based
on defendant's eight convictions for CSL violations, and
21 A-5383-13T1
detailed the nature of those violations. The notice also
clearly advised defendant that he had the right to contest the
proposed monitoring, and set forth the procedure for him to do
so.
In accordance with the notice, defendant submitted a
written statement in which he contested implementation of the
GPS monitoring "[b]ecause [] the courts didn't refer [him] to be
on this program." Defendant did not dispute his eight prior
convictions, or the facts underlying those convictions. In
short, he raised no factual or credibility dispute that required
a hearing.
On August 22, 2012, the Parole Board issued its final
decision imposing GPS monitoring "as a way to deter [defendant]
from absconding" and as a means to ensure compliance with the
other conditions of his CSL. Unlike the petitioners in Riley
and Jamgochian, defendant did not appeal the Parole Board's
decision. Rather, by ridding himself of the monitoring device
he chose to engage in self-help, a remedy that is generally
disfavored. See e.g., State v. Crawley, 187 N.J. 440, 459,
cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563
(2006); State v. Gandhi, 201 N.J. 161, 190 (2010).
Defendant retains the right to seek administrative relief
from the special condition of his GPS monitoring. See N.J.A.C.
22 A-5383-13T1
10A:72-11.2(h) (setting forth the procedure to challenge the
basis for GPS monitoring); N.J.A.C. 10A:72-11.4 (requiring
periodic review to assess whether GPS monitoring remains
appropriate); N.J.A.C. 10A:72-11.6 (establishing appeal
procedure). Nothing in our decision should be deemed to
preclude defendant from pursuing any available administrative
remedy. We express no opinion on the merits of such an
application should it be filed.
Affirmed.
23 A-5383-13T1