State of New Jersey v. Melvin Hester , 449 N.J. Super. 314 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0068-16T1
A-0069-16T1
A-0070-16T1
A-0071-16T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v. APPROVED FOR PUBLICATION
March 23, 2017
MELVIN HESTER,
APPELLATE DIVISION
Defendant-Respondent.
_____________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MARK WARNER,
Defendant-Respondent.
______________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ANTHONY MCKINNEY,
Defendant-Respondent.
_______________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LINWOOD ROUNDTREE,
Defendant-Respondent.
_______________________________
Argued March 7, 2017 – Decided March 23, 2017
Before Judges Yannotti, Fasciale and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
16-04-1150, 15-12-2878, 15-10-2330, and 16-
02-0481.
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney;
Mr. Ducoat, of counsel and on the briefs).
Molly O'Donnell Meng, Assistant Deputy
Public Defender, argued the cause for
respondents Melvin Hester, Mark Warner, and
Anthony McKinney (Joseph E. Krakora, Public
Defender, attorney; Ms. Meng, of counsel and
on the briefs).
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for respondent
Linwood Roundtree (Joseph E. Krakora, Public
Defender, attorney; Mr. Smith, of counsel
and on the brief).
The opinion of the court was delivered by
FASCIALE, J.A.D.
These four cases, which we have consolidated in rendering
this opinion, involve application of the Ex Post Facto Clauses
of the United States and New Jersey Constitutions. The State
2 A-0068-16T1
appeals from orders dismissing indictments against Melvin Hester
(Hester), Mark Warner (Warner), Anthony McKinney (McKinney), and
Linwood Roundtree (Roundtree) (collectively defendants) charging
them with third-degree violations of their special sentences of
community supervision for life (CSL), N.J.S.A. 2C:43-6.4(d).
The State maintains that the trial judges who entered the orders
erred by relying on the Ex Post Facto Clauses.
Defendants committed their original or predicate crimes,
which led to the imposition of special CSL sentences, prior to
2014. Before defendants allegedly violated their CSL
conditions, the Legislature amended N.J.S.A. 2C:43-6.4,
effective July 2014 (the 2014 amended law or 2014 amendment).
The 2014 amended law, as applied to defendants, increased the
punishment for defendants' predicate crimes if they subsequently
violated the conditions of their CSL sentence.
In determining whether the 2014 amended law "make[s] more
burdensome the punishment for a crime, after its commission,"
the narrow legal issue is whether the "crime" refers to the
commission of the predicate offense or the violation of a
condition of CSL. State v. Muhammad, 145 N.J. 23, 56 (1996)
(citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68-
69, 70 L. Ed. 216, 217 (1925)). We hold that the commission of
the predicate crime, for which defendants received the special
3 A-0068-16T1
sentence of CSL, is the operative "crime" for determining
whether the 2014 amended law violates the Ex Post Facto Clauses.
Because the 2014 amended law retroactively increased defendants'
punishment for committing their predicate crimes by raising the
degree of the CSL violations from a fourth degree to a third
degree, mandating the imposition of Parole Supervision for Life
(PSL), and subjecting them to extended prison terms, the trial
courts in these cases properly relied on the Ex Post Facto
Clauses and dismissed the indictments. Accordingly, we affirm
the orders under review.
I.
We begin by generally addressing the penal post-sentence
supervisory schemes of CSL and PSL, setting forth the legal
principles governing the Ex Post Facto Clauses, and summarizing
the facts leading to these appeals.
(a)
The Legislature has described CSL, which is punitive in
nature, as a "special sentence." N.J.S.A. 2C:43-6.4(a). The
purpose of CSL is to protect the public from recidivism by
sexual offenders. CSL is a component of the Violent Predator
Incapacitation Act, N.J.S.A. 2C:43-6.4, which is also a
4 A-0068-16T1
component of a series of laws commonly known as "Megan's Law."1
State v. Perez, 220 N.J. 423, 436-37 (2015). Megan's Law was in
effect at the time defendants committed their predicate sexual
offenses for which the court imposed CSL as part of their
special sentence. An offender subject to CSL is required to
abide by twenty-three enumerated "general conditions." N.J.A.C.
10A:71-6.11(b). Pursuant to N.J.A.C. 10A:71-6.11, the Parole
Board is obligated to supervise defendants who are subject to
CSL. Perez, supra, 220 N.J. at 437.
In 2003, the Legislature amended the law (the 2003
amendment) and replaced all references to CSL with PSL for
individuals convicted of certain sexual offenses enumerated
within N.J.S.A. 2C:43-6.4(a). Ibid.; see also J.B. v. N.J.
State Parole Bd., 433 N.J. Super. 327, 336 (App. Div. 2013),
certif. denied, 217 N.J. 296 (2014). Like CSL, PSL protects the
public from recidivism by sexual offenders. The 2003 amendment
provided that "the custodial term imposed upon the defendant
related to the special sentence of [PSL] shall be deemed to be a
term of life imprisonment." N.J.S.A. 2C:43-6.4(b). PSL
therefore enhanced the penal exposure of certain persons
previously sentenced to CSL. It did so by allowing the Parole
1
Megan's Law includes registration and community notification
for certain sex offenders. See N.J.S.A. 2C:7-1 to -23.
5 A-0068-16T1
Board to return offenders to prison for violating their parole,
rather than exposing them to committing a separate fourth-degree
crime, and by exposing such individuals to mandatory extended
prison terms if they committed certain predicate offenses.
The 2014 amended law further increased the penal exposure
of those individuals, like defendants, who had previously
committed a predicate crime and had received a special sentence
for CSL. The 2014 amended law provided in part that
a. [A] judge imposing sentence on a person
who has been convicted of [certain
enumerated crimes] shall include, in
addition to any sentence authorized by this
Code, a special sentence of [PSL].
. . . .
d. A person who violates a condition of a
special sentence of [CSL] or [PSL] imposed
pursuant to this section . . . is guilty of
a crime of the third degree . . . . [A]
person sentenced pursuant to this subsection
shall be sentenced to a term of
imprisonment, unless the court is clearly
convinced that the interests of justice so
far outweigh the need to deter this conduct
and the interest in public safety that a
sentence to imprisonment would be a manifest
injustice.
[N.J.S.A. 2C:43-6.4 (emphasis added).]
Thus, the 2014 amended law made more burdensome the
punishment for the commission of the predicate crimes defendants
committed before 2014. Defendants, who had been sentenced to
CSL before the effective date of the 2014 amended law, were now
6 A-0068-16T1
subject to a prison term of three to five years, instead of
eighteen months. They also faced the mandatory imposition of
extended prison terms and PSL which, unlike the remedial
registration and notification requirements of Megan's Law, is
considered to be a penal post-sentence supervisory scheme. See
Perez, supra, 220 N.J. at 441.
(b)
The United States Constitution provides that "[n]o State
shall . . . pass any . . . ex post facto Law . . . ." U.S.
Const. art. I, § 10, cl. 1. The New Jersey Constitution
similarly provides that "[t]he Legislature shall not pass any
. . . ex post facto law . . . ." N.J. Const. art. IV, § 7, ¶ 3.
"The purpose of the Ex Post Facto Clauses is to guarantee that
criminal statutes 'give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed.'"
Muhammad, supra, 145 N.J. at 56 (emphasis omitted) (quoting
Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L.
Ed. 2d 17, 23 (1981)). "Critical to relief under the Ex Post
Facto Clause is not an individual's right to less punishment,
but the lack of fair notice and governmental restraint when the
legislature increases punishment beyond what was prescribed when
the crime was consummated." Weaver, supra, 450 U.S. at 30, 101
S. Ct. at 965, 67 L. Ed. 2d at 24 (emphasis omitted).
7 A-0068-16T1
"The Ex Post Facto Clause is 'aimed at laws that
retroactively alter the definition of crimes or increase the
punishment for criminal acts.'" Perez, supra, 220 N.J. at 438
(quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115
S. Ct. 1597, 1601, 131 L. Ed. 2d 588, 594 (1995)).
[T]o violate the Ex Post Facto Clauses, the
statute in question must either (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.
[Muhammad, supra, 145 N.J. at 56 (emphasis
omitted) (citing Beazell, supra, 269 U.S. at
169-70, 46 S. Ct. at 68-69, 70 L. Ed. at
217).]
Applicable to these appeals is whether the 2014 amended law
violates the Ex Post Facto Clauses by making "more burdensome
the punishment for a crime, after its commission." Ibid.
Significantly, "two critical elements must be present for a
criminal or penal law to be ex post facto: [I]t must be
retrospective, that is, it must apply to events occurring before
its enactment, and it must disadvantage the offender affected by
it." Weaver, supra, 450 U.S. at 29, 101 S. Ct. at 964, 67 L.
Ed. 2d at 23 (emphasis and footnotes omitted).
Under the first element, a "law is retrospective if it
'appl[ies] to events occurring before its enactment' or [like
8 A-0068-16T1
here] 'if it changes the legal consequences of acts completed
before its effective date.'" Riley v. N.J. State Parole Bd.,
219 N.J. 270, 285 (2014) (first alteration in original) (quoting
Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96
L. Ed. 2d 351, 360 (1987)). In Riley, the Court held that the
Ex Post Facto Clauses precluded retroactive application of the
New Jersey Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-
123.89 to -123.99, to the defendant, who had completed his
sentence and was under no form of parole supervision before
passage of SOMA. Id. at 298.
Under the second element, and unlike here, "[t]here is no
ex post facto violation . . . if the change in the law is merely
procedural and does not increase the punishment, nor change the
ingredients of the offen[s]e or the ultimate facts necessary to
establish guilt." Perez, supra, 220 N.J. at 438-39 (emphasis
omitted) (quoting State v. Natale, 184 N.J. 458, 491 (2005));
see Doe v. Poritz, 142 N.J. 1, 73 (1995) (holding that the
imposition of post-release registration and notification
requirements of Megan's Law did not violate ex post facto
prohibitions because it did not constitute punishment).
(c)
In May 2005, a jury found Hester guilty of second-degree
sexual assault, N.J.S.A. 2C:14-2(c); third-degree endangering
9 A-0068-16T1
the welfare of a child, N.J.S.A. 2C:24-4(a); and fourth-degree
sexual contact, N.J.S.A. 2C:14-3(b). These convictions were for
crimes committed in 2003. In August 2005, the court sentenced
him to CSL, Megan's Law, and seven years in prison. At that
time, a violation of CSL constituted a fourth-degree offense.
After the effective date of the 2014 amendment, Hester allegedly
violated conditions of his CSL by failing to reside at a
residence approved by a parole officer, N.J.A.C. 10A:71-6.11(7);
obtain permission to change his address, N.J.A.C. 10A:71-
6.11(8); and comply with curfew requirements, N.J.A.C. 10A:71-
6.11(19). In April 2016, a grand jury indicted and charged
Hester with three counts of third-degree violations of the
conditions of his CSL, N.J.S.A. 2C:43-6.4(d).
In June 1997, Warner pled guilty to third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). In
September 1997, the court sentenced him to CSL, Megan's Law, and
three years in prison. At that time, a violation of CSL
constituted a fourth-degree offense. After the effective date
of the 2014 amendment, Warner allegedly violated conditions of
his CSL by failing to reside at a residence approved by a parole
officer, N.J.A.C. 10A:71-6.11(7); and obtain permission to
change his address, N.J.A.C. 10A:71-6.11(8). In December 2015,
a grand jury indicted and charged Warner with two counts of
10 A-0068-16T1
third-degree violations of the conditions of his CSL, N.J.S.A.
2C:43-6.4(d).
In 1997, McKinney pled guilty to third-degree criminal
restraint, N.J.S.A. 2C:13-2; three counts of second-degree
sexual assault, N.J.S.A. 2C:14-2(c); and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4. In 1998,
the court sentenced McKinney to CSL, Megan's Law, and imposed a
ten-year prison term with five-year period of parole
ineligibility. At that time, a violation of CSL constituted a
fourth-degree offense. After the effective date of the 2014
amendment, McKinney allegedly violated a condition of his CSL by
absconding from parole supervision, N.J.A.C. 10A:71-6.11(2). In
2015, a grand jury indicted and charged McKinney with a third-
degree violation of a condition of his CSL, N.J.S.A. 2C:43-
6.4(d).
In March 1998, Roundtree pled guilty to first-degree
aggravated sexual assault of a minor, N.J.S.A. 2C:14-2(a); and
second-degree impairing the morals of a minor, N.J.S.A. 2C:24-
4(a). In July 1998, the court sentenced Roundtree to CSL,
Megan's Law, and fifteen years in prison. After the effective
date of the 2014 amendment, Roundtree allegedly violated his CSL
by failing to report for parole, N.J.A.C. 10A:71-6.11(2); reside
at an approved residence, N.J.A.C. 10A:71-6.11(7); and obtain
11 A-0068-16T1
approval to change his residence, N.J.A.C. 10A:71-6.11(8). In
February 2016, a grand jury indicted and charged Roundtree with
three counts of third-degree violations of the conditions of his
CSL, N.J.S.A. 2C:43-6.4(d).
Defendants filed motions to dismiss the indictments
charging them with these third-degree CSL violations. They
asserted that the 2014 amended law increased their penal
exposure for violating their pre-2014 CSL sentences. Defendants
argued that before the effective date of the 2014 amended law,
violations of CSL constituted fourth-degree offenses. They
contended that the 2014 amended law raised the penalty for CSL
violations to a third-degree crime and added the imposition of
PSL. As a result, defendants urged the trial judges who heard
the motions to dismiss the indictments as violating the Ex Post
Facto Clauses of the United States and New Jersey Constitutions.
The judges agreed, granted the motions to dismiss, and entered
the orders under review.
II.
On appeal, the State argues that the court erred by
dismissing the indictments because the 2014 amended law does not
violate the Ex Post Facto Clauses of the Federal and State
Constitutions. The State treats defendants' alleged post-2014
violations of CSL, rather than the predicate offenses that
12 A-0068-16T1
originally led to the imposition of CSL, as the "crimes" for
purposes of conducting its ex post facto analysis. As a result,
the State contends that application of the 2014 amended law does
not make more burdensome the punishment for the commission of a
"crime."
The State concedes, however, that defendants received their
CSL special sentences for committing predicate crimes before the
effective date of the 2014 amended law, and that defendants had
faced only a fourth-degree offense for any pre-2014 violation of
their CSL. For ex post facto purposes, it logically follows
therefore that if the commission of the predicate offense is the
"crime," instead of the CSL violations as the State maintains,
then the 2014 amended law increased the defendants' punishment.
The punishment for committing a predicate crime, as a result of
a pre-2014 CSL violation, was limited to fourth-degree exposure;
but as applied, the 2014 amended law increased the punishment
for committing the predicate offense, as a result of a post-2014
CSL violation, to third-degree exposure, PSL, and imposition of
a mandatory extended prison term for the commission of certain
predicate offenses.
Although we generally review for an abuse of discretion a
court's decision on whether to dismiss an indictment, see, e.g.,
State v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010),
13 A-0068-16T1
the issue of whether a prosecution is prohibited by the Ex Post
Facto Clauses of the Federal and State Constitutions is an issue
of law. Consequently, we exercise plenary review of the issue
presented here. See State v. Mann, 203 N.J. 328, 337 (2010).
It is well-settled that "[a] presumption of validity
attaches to every statute." State v. Lenihan, 219 N.J. 251, 266
(2014). We may invalidate a statute as unconstitutional on its
face or as applied. Id. at 267. "Facial invalidation is,
manifestly, strong medicine that has been employed by the Court
sparingly and only as a last resort." J.B., supra, 433 N.J.
Super. at 344 (quoting Binkowski v. State, 322 N.J. Super. 359,
375-76 (App. Div. 1999)). "[A] statute . . . is facially
unconstitutional only if the constitution is necessarily
violated every time the law is enforced." Ran-Dav's Cty. Kosher
v. State, 129 N.J. 141, 174-75 (1992) (Stein, J. dissenting),
cert. denied sub nom., Nat'l Jewish Comm'n on Law & Pub. Affairs
v. Ran-Dav's Cty. Kosher, Inc., 507 U.S. 952, 113 S. Ct. 1366,
122 L. Ed. 2d 744 (1993). "[A] statute . . . may be valid on
its face but invalid in a particular application." Id. at 174.
Here, the parties acknowledge that the 2014 amended law is
facially constitutional. It may be applied to persons who
commit predicate offenses and are sentenced to PSL after the
effective date of the 2014 amendment. We focus on whether it
14 A-0068-16T1
violates the Ex Post Facto Clauses as applied to these
defendants.
III.
We conclude that the 2014 amendment "makes more burdensome
the punishment of a crime after its commission." Perez, supra,
220 N.J. at 440. Defendants now face third-degree offenses,
rather than fourth-degree exposure. Certainly, "[b]eing
prosecuted for a third-degree crime rather than a fourth-degree
crime clearly [makes a] defendant 'worse off.'" State v. F.W.,
443 N.J. Super. 476, 489 (App. Div.) (quoting Johnson v. United
States, 529 U.S. 694, 701, 120 S. Ct. 1795, 1801, 146 L. Ed. 2d
727, 736 (2000)), certif. denied, 227 N.J. 150 (2016). And the
imposition of PSL as a consequence of violating their CSL
permits the Parole Board to return defendants to prison for
violating parole, and subjects defendants to mandatory extended
prison terms under N.J.S.A. 2C:43-6.4(e)(1). See also Perez,
supra, 220 N.J. at 441-42.
Of course, that begs the question of what "crime after its
commission" means. We reached our conclusion by determining
that the "crime," for purposes of applying the Ex Post Facto
Clauses, is not the violation of CSL, but rather, the commission
of the predicate offense for which the court originally imposed
the special sentence of CSL. In other words, the "crime" is the
15 A-0068-16T1
predicate sexual offense, which defendants committed before the
effective date of the 2014 amendment, rather than the post-2014
CSL alleged violations. The legal reasoning in Perez and F.W.
help inform our analysis.
In Perez, the defendant received CSL as part of his special
sentence for committing a predicate offense in 1998. Perez,
supra, 220 N.J. at 427, 436. In 2010, after the 2003 amendment
in which Legislature replaced all references to CSL with PSL,
the defendant violated the terms of his CSL. Id. at 428. On
the violation of his CSL, the court applied the 2003 amendment
and sentenced the defendant to the increased penalty of PSL.
Id. at 429.
The Court held that "[a]s applied to defendant, the 2003
amendment to N.J.S.A. 2C:43-6.4(e) enhance[d] the punitive
consequences of the special sentence of CSL to his detriment and
violate[d] the federal and state prohibition of ex post facto
legislation." Id. at 442. Importantly, the Court stated that
the 2003 amendment enhanced "the penal exposure of a person
previously sentenced to CSL for certain offenses committed while
sentenced to that status." Id. at 443. In other words, the
defendant's post-2003 CSL violation increased the punishment for
committing the predicate crime. That is so because prior to the
effective date of the 2003 amendment, the defendant was not
16 A-0068-16T1
subject to PSL as part of his special CSL sentence for
committing the predicate offense.
In F.W., the defendant received CSL as part of his special
sentence for committing a predicate offense in 1999. Supra, 443
N.J. Super. at 480. In approximately 2008, the defendant
violated the terms of his CSL. Id. at 481. On that violation,
the court, in accord with N.J.S.A. 2C:43-6.4(d), enrolled him in
GPS monitoring pursuant to SOMA, which the Legislature enacted
in 2007. Ibid. The defendant violated his CSL again by
removing the GPS tracker. Ibid. Before the effective date of
the 2014 amended law, the State charged the defendant with a
fourth-degree CSL violation and two third-degree SOMA
violations. Id. at 478. A judge found the defendant guilty of
those charges. Ibid. We reversed the SOMA convictions on ex
post facto grounds, stating:
The SOMA offenses did not exist when
defendant committed his predicate offenses
in 1997, and at that time, violating CSL was
a fourth-degree crime. It may be argued
that prosecution under SOMA was not
retrospective for ex post facto purposes,
because SOMA was enacted before defendant
committed his December 2007 violation of
CSL. However, GPS monitoring under SOMA was
imposed on [the defendant] because he "ha[d]
been sentenced to a term of community or
[PSL] pursuant to [N.J.S.A. 2C:43-6.4]."
. . . It was thus imposed as a further
element of [the] defendant's post-release
supervision during his CSL sentence for his
predicate offenses . . . . [Like here,] the
17 A-0068-16T1
Legislature could not retroactively increase
the punishment for a violation of
defendant's post-release supervision.
[Id. at 488-89 (first and third alteration
in original) (emphasis added) (quoting
N.J.S.A. 30:4-123.91(a)(2)(b)).]
We stated further that "[f]or purposes of [our] ex post facto
analysis of penalties for violating the terms of post-release
supervision, 'postrevocation sanctions' are treated 'as part of
the penalty for the initial offense.'" Id. at 489 (quoting
Johnson, supra, 529 U.S. at 700, 120 S. Ct. at 1800, 146 L. Ed.
2d at 736).
In deciding whether sanctions violated ex post facto
principles, we attributed "postrevocation penalties to the
original conviction." Ibid. (quoting Johnson, supra, 529 U.S.
at 701, 120 S. Ct. at 1801, 146 L. Ed. 2d at 736). We stated
that "[p]enalties for violation of the terms of supervised
release, including the penalty of additional supervised release,
are attributed to the original conviction rather than to the
violation." Ibid. (alteration in original) (quoting
Commonwealth v. Cory, 911 N.E.2d 187, 192 (Mass. 2009)). We
concluded that
the Ex Post Facto Clause barred [the]
defendant's prosecution for a third-degree
crime [(the SOMA offense)]. Being
prosecuted for a third-degree crime rather
than a fourth-degree crime clearly made
defendant "worse off." Whether the increase
18 A-0068-16T1
in the degree and sentencing range of the
penalties for violating post-release
supervision for his predicate offenses was
effected by amending the penalty provision
of the CSL statute, or by enacting a new
statute like SOMA, the increased penalties
for violating CSL, like those for violating
any other form of supervised release, are
"attribute[d] . . . to the original
conviction." The Legislature could not
increase the penalty for violating
defendant's supervised release and apply it
retroactively to him. Consequently, even if
GPS monitoring was imposed as a sanction for
violating CSL, defendant could not be
prosecuted or sentenced under the third-
degree crime provisions of SOMA.
[Id. at 489-90 (third alteration in
original) (emphasis added) (quoting Johnson,
supra, 529 U.S. at 701, 120 S. Ct. at 1801,
146 L. Ed. 2d at 736).]
Here, for purposes of conducting our ex post facto analysis
of the enhanced post-2014 penalties for violating the pre-2014
special sentence of CSL, the commission of the pre-2014
predicate sexual offenses, not the post-2014 CSL violations,
constitute the "crime." See also Loftwich v. Fauver, 284 N.J.
Super. 530, 535 (App. Div. 1995) (indicating that the Ex Post
Facto Clause is violated when a parole violator is punished in a
way that adversely affects his release date under a statute
adopted after the violator committed the underlying offense but
before he violated the terms of his parole (citing United States
v. Paskow, 11 F.3d 873, 878 (9th Cir. 1993)).
19 A-0068-16T1
Finally, the State's reliance on the constitutionality of
certain recidivist statutes is unpersuasive. "Recidivist
statutes stiffen penalties for the latest crime; they do not
increase the penalty for a prior offense." State v. Zeikel, 423
N.J. Super. 34, 42 (App. Div. 2011). See United States v.
Rodriquez, 553 U.S. 377, 386, 128 S. Ct. 1783, 1789, 170 L. Ed.
2d 719, 728 (2008) (enhanced sentence is a stiffened penalty for
the latest crime, which is considered to be an aggravated
offense because it is a repetitive crime).
"The Supreme Court has held that recidivist statutes do not
violate the Ex Post Facto Clause if they were on the books at
the time the triggering offense was committed." State v.
Oliver, 162 N.J. 580, 587 (2000) (emphasis omitted) (citing
Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L.
Ed. 1683, 1687 (1948)); see also Nichols v. United States, 511
U.S. 738, 747, 114 S. Ct. 1921, 1927, 128 L. Ed. 2d 745, 754
(1994) (indicating that recidivist statutes do not violate ex
post facto prohibitions because they "do not change the penalty
imposed for the earlier conviction"); United States v. Arzate-
Nunez, 18 F.3d 730, 734 (9th Cir. 1994) (finding that, in
analyzing repeat offender statutes and statutes increasing
penalties for future crimes based on past crimes, the relevant
offense is the current crime, not the predicate crime). Here,
20 A-0068-16T1
the triggering offense is the commission of the predicate crime
for which defendants received CSL.
For example, in Oliver, supra, 162 N.J. at 587, the Court
rejected the defendant's ex post facto challenge to the "Three-
Strikes Law," N.J.S.A. 2C:43-7.1. In that case, the Legislature
enacted the law in June 1995, and the defendant had committed
the offense constituting his third strike in December of that
year. Ibid. Citing to Gryger, supra, 334 U.S. at 732, 68 S. Ct.
at 1258, 92 L. Ed. at 1687, the Court held that the "Three-
Strikes Law" did not violate the Ex Post Facto Clause because it
had been enacted "at the time the triggering offense was
committed." Oliver, supra, 162 N.J. at 587.
Likewise, in State v. Carrigan, 428 N.J. Super. 609, 612-13
(App. Div. 2012), certif. denied, 213 N.J. 539 (2013), the
defendant was charged on September 27, 2011, with a violation of
N.J.S.A. 2C:40-26(b) (effective August 1, 2011), which makes it
a fourth-degree crime for a motorist to operate a vehicle at a
time when his driver's license has been suspended or revoked for
a second or subsequent conviction for driving while intoxicated
(DWI). The defendant had been convicted for DWI and refusal at
least thirteen times between 1983 and 2010, and his license was
accordingly suspended. Id. at 615. We stated that
a violation of N.J.S.A. 2C:40-26(b)
comprises a new offense based upon new
21 A-0068-16T1
conduct, and that the statute does not
impose retrospective punishment for a prior
offense. Hence, the law may be
constitutionally applied to drivers with
suspended licenses, such as defendant, who
are caught driving after August 1, 2011,
regardless of whether their DWI-based
suspensions were imposed before that date.
[Id. at 613.]
We explained:
Defendant likens his circumstances to an
instance where a new law unconstitutionally
attempts to make the terms of a criminal
sentence, such as the terms of parole or
probation, more stringent after the fact.
Cf. Johnson, supra, 529 U.S. 694, 120 S. Ct.
1795, 146 L. Ed. 2d 727 (involving a statute
that retroactively increased penalties for
violating the terms of parole). We reject
this conception of what N.J.S.A. 2C:40-26(b)
accomplishes.
N.J.S.A. 2C:40-26(b) does not change
the duration of the license suspensions that
were previously imposed upon him 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 621-22.]
22 A-0068-16T1
In contrast here, N.J.S.A. 2C:43-6.4 "enhances the punitive
consequences of [] CSL," a supervisory penal sentence, after the
fact. Perez, supra, 220 N.J. at 442. Notably, under the
recidivist statutes, penalties are increased for the latest
crime — every offense is an independent crime and the punishment
increases for each additional crime committed because it is
considered to be an aggravated offense. Vartelas v. Holder, 566
U.S. 257, 271-72, 132 S. Ct. 1479, 1490, 182 L. Ed. 2d 473, 488
(2012); Gryger, supra, 334 U.S. at 732, 68 S. Ct. at 1258, 92 L.
Ed. at 1687; Zeikel, supra, 423 N.J. Super. at 42. Here, such
is not the case.
Conversely, not all conduct violating the conditions of CSL
contrary to N.J.S.A. 2C:43-6.4 need be criminal. For example,
an offender sentenced to CSL must reside at a residence approved
by a parole officer, obtain permission prior to leaving the
state, and secure permission prior to engaging in any employment
or volunteer activity. N.J.A.C. 10A:71-6.11(7),(9),(16). None
of this conduct constitutes an independent criminal act.
For defendants, conduct violating the conditions of CSL
clearly constitutes a crime, but that is so solely because it
violates conditions imposed as part of the supervisory sentence,
which in turn, relates back to the commission of the initial
predicate offense. See State v. Schubert, 212 N.J. 295, 307
23 A-0068-16T1
(2012) (indicating that the Legislature viewed CSL "as an
integral part of a defendant's sentence, imposed as part of a
court's sentencing authority"). Defendants' violation of the
terms of their CSL is therefore not an aggravated offense
because it is not a repetitive crime.
Affirmed.
24 A-0068-16T1