State v. Richard Perez (072624) , 220 N.J. 423 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Richard Perez (A-25-13) (072624)
Argued September 8, 2014 – Decided February 2, 2015
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court assesses the sufficiency of the factual basis of defendant’s guilty plea and the
legality of the extended-term sentences imposed thereafter.
On July 9, 2010, defendant placed three phone calls to N.C., a 13-year-old boy. That same night, defendant
sent four text messages to N.C. in which he expressed a desire to engage in sexual activity with the child. N.C.
showed the text messages to his grandfather, who contacted the police. Defendant was subsequently indicted for
second-degree child luring and third-degree endangering the welfare of a child. On April 13, 2011, defendant pled
guilty to both counts, specifically admitting that he attempted to lure N.C. to engage in sexual relations with him.
Defendant later moved to withdraw his guilty plea. The court denied the motion and sentenced him to
concurrent, extended terms of ten years’ imprisonment, with a ten-year parole disqualifier, for luring and five years’
imprisonment, with a five-year parole disqualifier, for endangering the welfare of a child. Both terms were imposed
pursuant to N.J.S.A. 2C:43-6.4, which applies to individuals who commit an enumerated offense while serving
parole supervision for life (PSL). At the time of defendant’s offense, he was serving a special sentencing condition
of community supervision for life (CSL) stemming from a 1998 conviction for aggravated sexual assault that was
imposed pursuant to an earlier version of the statute. A 2003 amendment to the statute replaced all references to
CSL with PSL.
Defendant appealed, claiming that the trial court should have rejected his guilty plea to child luring because
there was no evidence that he tried to entice N.C. to meet him at a particular place. He further claimed that the
extended-term sentences were illegal because he was serving CSL, not PSL. In an unpublished opinion, the
Appellate Division affirmed both the conviction and sentences, holding that the legislative history of the child luring
statute did not require defendant to explicitly state the location where he planned to meet N.C. The panel further
reasoned that the word-for-word substitution of “parole” for “community” suggested that the amendment was a
matter of form and not substance. This Court granted defendant’s petition for certification. 213 N.J. 568 (2013).
HELD: Defendant’s admissions during the colloquy, in combination with the text messages introduced at the plea
hearing, set forth a sufficient factual basis to support his guilty plea. However, because CSL and PSL are non-
interchangeable, distinct post-sentence supervisory schemes for certain sex offenders, defendant’s extended-term
sentences were illegal and the matter is remanded to the trial court for resentencing.
1. Prior to accepting a guilty plea, the court must elicit, from the defendant, a comprehensive factual basis that
addresses each element of the charged offense in detail. A defendant must do more than agree to a version of events
presented by the prosecutor. Rather, a defendant must admit that he engaged in the charged offense and provide a
factual statement or acknowledge all of the facts that comprise the essential elements of the offense to which he is
pleading guilty. (pp. 9-11)
2. A person is guilty of child luring in the second-degree if he attempts, by way of electronic or other means, to lure a
child, or one who he reasonably believes to be a child, into a motor vehicle, structure, or isolated area, or to meet or
appear at any other place, with a purpose to commit a criminal offense with or against the child. N.J.S.A. 2C:13-
6(a). The original version of the statute applied only to attempts to lure a child into a motor vehicle. However,
successive amendments were designed to capture a broader array of contacts or events that may lead to a kidnapping
or sexual offense. In its current version, the offense has three elements: (1) the accused attempted to lure or entice
into a motor vehicle, structure, or isolated area, or to meet or appear at any place, (2) a child under the age of
eighteen, (3) with a purpose to commit a criminal offense with or against that child. (pp. 12-13)
3. For a defendant to set forth an adequate factual basis to plead guilty to child luring, he must admit to sufficient
facts to distinguish between an actual attempt to lure and mere expressions of fantasy. Further, even where a
defendant has explicitly expressed a desire to engage in sexual conduct with a child, he must admit that he intended
for the conduct to culminate in a meeting and the commission of the offense. Here, defendant provided an adequate
factual basis to support his plea because he: (1) admitted that he sent text messages to N.C., (2) admitted that the
messages proposed that they engage in sexual contact, (3) agreed that the messages contained in the joint exhibit at
the hearing were the messages he sent to N.C., (4) admitted that he knew N.C. was under the age of eighteen, and
(5) admitted that he sent the messages in an attempt to lure N.C. to a place where they could engage in sexual
relations. While defendant’s reluctance to speak of his communications with his victim was palpable, he responded
affirmatively to the questions posed by his attorney, thereby admitting that he attempted to lure the child to engage
in sexual relations. As such, his conviction was properly affirmed. (pp. 13-15)
4. When defendant was convicted of aggravated sexual assault and armed burglary in 1998, in addition to concurrent
terms of incarceration, the court imposed CSL, which is designed to protect the public from recidivism by sexual
offenders. Defendants subject to CSL are supervised by the Parole Board (Board) and face a variety of conditions
beyond those imposed on non-sex-offender parolees. A 2003 amendment to N.J.S.A. 2C:43-6.4 replaced all
references to CSL with PSL and its current version contains numerous provisions that were absent from the pre-
2003 version of the statute. The current version also provides that an individual who commits one of the
enumerated sex offenses while on PSL shall be sentenced to an extended term of imprisonment that must be served
in its entirety before resumption of PSL. In contrast, pursuant to the pre-amendment version of the statute, a
defendant on CSL status who committed an enumerated offense was subject to a mandatory extended term but was
also eligible for parole. (pp. 15-17)
5. Defendant contends that the extended terms the trial court imposed are unconstitutional under the Ex Post Facto
Clauses of the United States Constitution and New Jersey Constitution because the conditions of PSL enhance the
penal consequences of his existing CSL status. To constitute an ex post facto penal law, a change in the law must
apply to events that occurred before its enactment and must disadvantage the offender. Here, the resolution of
defendant’s contention turns on whether the special sentencing condition of CSL is penal or remedial. The Court
previously held that the supervision imposed pursuant to CSL expresses the Legislature’s view that CSL is an
integral part of a sentence and that a trial court may not modify a previously imposed sentence to include CSL once
the defendant has completed his sentence. State v. Schubert, 212 N.J. 295 (2012). (pp. 18-21)
6. PSL is similarly punitive. Its restrictions commence once a defendant completes his probationary or custodial
sentence. Further, examination of the pre- and post-2003 versions of the statute belie the contention that the
amendment is simply a clarification of prior law as opposed to a substantive change to the CSL post-sentence
supervisory scheme. A violation of CSL is punishable only as a crime; the Board cannot return a defendant to
prison through the parole-revocation process. The Board’s only recourse is to refer the matter to the county
prosecutor, who may or may not seek to present the matter to a grand jury. By contrast, following the 2003
amendment, a defendant who is sentenced to PSL is in the legal custody of the Commissioner of Corrections and is
supervised by the Division of Parole for life. (pp. 21-23)
7. In its current form, N.J.S.A. 2C:43-6.4 provides that the extended term shall be “served in its entirety prior to the
person’s resumption of the term of parole supervision for life.” In other words, a person serving a special sentence
of PSL who commits an enumerated offense is not eligible for parole and will spend more years in prison than a
person serving a special sentence for CSL who commits the same offense. This is not a difference in form. The
elimination of any prospect for parole enhances the penal consequences for a person placed on CSL status before
January 14, 2004. Applying the current version of N.J.S.A. 2C:43-6.4 to defendant requires him to spend many
additional years in prison due to this so-called clarification. As applied to defendant, the 2003 amendment to
N.J.S.A. 2C:43-6.4 enhances the punitive consequences of the special sentence of CSL to his detriment and violates
the federal and state prohibition against ex post facto legislation. Therefore, the Court affirms defendant’s
convictions, but vacates the sentences imposed and remands for resentencing in accordance with the law governing
those sentenced to CSL. (pp. 24-26)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the trial court for resentencing.
2
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUDGE CUFF’S opinion.
3
SUPREME COURT OF NEW JERSEY
A-25 September Term 2013
072624
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD PEREZ, a/k/a JOSE R.
PEREZ,
Defendant-Appellant.
Argued September 8, 2014 – Decided February 2, 2015
On certification to the Superior Court,
Appellate Division.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Megan B. Kilzy, Assistant Prosecutor, argued
the cause for respondent (Gaetano T.
Gregory, Acting Hudson County Prosecutor,
attorney).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
In April 2011, defendant Richard Perez pled guilty to child
luring and endangering the welfare of a child. During the plea
colloquy, the State introduced text messages in which defendant
expressed a desire to engage in explicit sexual activity with
the thirteen-year-old victim. The messages, however, did not
propose a specific meeting time or place. In response to
leading questions from counsel, defendant admitted that he had
“attempt[ed] to lure a child whose initials are N.C. to a place
where the two of [them] might engage in sexual activity.”
The court accepted the guilty plea and sentenced defendant
to extended terms of ten years’ imprisonment on the luring count
and a concurrent five years’ imprisonment on the endangering
count, both to be served in their entirety. The extended terms
were imposed pursuant to N.J.S.A. 2C:43-6.4, which applies to
individuals who commit an enumerated offense while serving
parole supervision for life (PSL). At the time of his offense,
defendant was serving a special sentencing condition of
community supervision for life (CSL).
In this appeal, as in State v. Gregory, ___ N.J. ___ (2015)
and State v. Tate, ___ N.J. ___ (2015), both decided this date,
the Court assesses the sufficiency of the factual basis of
defendant’s guilty plea. In addition, we consider the legality
of the extended-term sentences imposed on defendant. We
conclude that defendant’s admissions during the plea colloquy,
in combination with the text messages introduced at the hearing,
established a sufficient factual basis to support his guilty
plea to child luring. On the other hand, the imposed sentences
are illegal. Defendant was subject to CSL at the time he
committed both offenses. CSL and PSL are distinct special post-
sentence supervisory schemes for certain sex offenders. The
2
extended term authorized for those who commit statutorily
designated offenses while serving the special sentencing
condition of CSL does not preclude parole. We, therefore,
affirm the conviction on the child-luring count and remand for
resentencing on both counts.
I.
On July 9, 2010, defendant Richard Perez placed three phone
calls, each going unanswered, to a thirteen-year-old boy (N.C.).
Later that evening, defendant sent N.C. a series of four text
messages:
[10:50 p.m.]: Yo u know y i ask u if u ever
did it with a man for money dont say nothing
but I would like to suck your dick and i want
u to fuck me i ll pay don’t say anything
[10:53 p.m.]: Think about i ll look out for
u just dont say anything to no body that s
between u and me
[10:59 p.m.]: Talk to me yes or no
[11:26 p.m.]: Yo i was only playing with u i
wanted to know were u were at i m not gay i
was only playing with u ok
Without sending a response, N.C. showed the text messages to his
grandfather, who contacted the police.
A Hudson County Grand Jury returned an indictment charging
defendant with second-degree child luring, in violation of
N.J.S.A. 2C:13-6, and third-degree endangering the welfare of a
child, in violation of N.J.S.A. 2C:24-4(a).
3
On April 13, 2011, defendant pled guilty to both counts.
At the plea hearing, the following exchange took place:
THE COURT: And are you pleading guilty to
these charges because you are, in fact, guilty
of each offense?
[DEFENDANT]: Yes, sir.
THE COURT: [Defense counsel]?
[DEFENSE COUNSEL]: Judge, I’ll hand you up as
a part of the factual basis, what’s been
marked J-1, which is a photocopy of one text
message and I will now make reference to that
in my questioning of Mr. Perez.
Mr. Perez, on the 9th day of July, 2010,
or on or about the 9th day of July 2010 in the
Town of West New York, did you attempt to lure
a child whose initials are N.C. to a place
where the two of you might engage in sexual
relations?
[DEFENDANT]: Yes.
THE COURT: And as a matter of doing that, I
am going to show you a copy of what has been
marked J-1 for purposes of this Plea Hearing,
is this a copy of one of the text messages
that you sent?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And I would stipulate to
the contents of that text message Judge. And
just to complete it, would you agree, Mr.
Perez, that that act of luring or enticing and
the sending of that text message would tend to
impair or debauch the morals of the child that
you were attempting to lure?
[DEFENDANT]: Yes.
[PROSECUTOR]: Stipulate to that the victim
was 13 at the time?
4
[DEFENSE COUNSEL]: Yeah, I will stipulate the
birthday of N.C. December 24, 1996.
On September 23, 2011, represented by different counsel,
defendant moved to withdraw his plea. The trial court denied
the motion and proceeded with sentencing.
The trial court sentenced defendant to extended terms of
ten years’ imprisonment with a ten-year parole disqualifier on
the luring count and a concurrent five years’ imprisonment with
a five-year parole disqualifier on the endangering count. Both
extended terms were imposed pursuant to N.J.S.A. 2C:43-6.4(e),
which, in relevant part, provides the following: “A person who,
while serving a special sentence of parole supervision for life
imposed pursuant to this section, commits a violation of . . .
[N.J.S.A. 2C:13-6 and N.J.S.A. 2C:24-4] . . . shall be sentenced
to an extended term of imprisonment[.]” At the time of the
incident in question, defendant was serving a sentence of CSL
stemming from a 1998 conviction for aggravated sexual assault
and imposed pursuant to an earlier version of N.J.S.A. 2C:43-
6.4. A 2003 amendment replaced all references to “community
supervision for life” with “parole supervision for life.” See
L. 2003, c. 267, § 1 (eff. Jan. 14, 2004).
Defendant filed a notice of appeal. He advanced two
arguments before the Appellate Division: first, that the trial
court should not have accepted defendant’s plea to luring
5
because there was no evidence he had tried to entice the child
to “meet” him at a “place,” and second, that the extended-term
sentences were illegal because defendant was serving CSL, not
PSL.1
The Appellate Division affirmed the conviction and
sentences. According to the panel, “[a]lthough a specific
location was not identified in the allocution, and may not have
even been determined by defendant before he abandoned his plan,
the legislative history indicates that such specificity is not
required by the statute.” Rather, “[i]t is sufficient if the
evidence showed defendant’s intent generally ‘to meet or appear
at any other place’ for the purpose of engaging in sexual acts
‘with or against the child.’” (Quoting N.J.S.A. 2C:13-6).
The appellate panel noted that since its enactment, the
child-luring statute has been amended multiple times to expand
the scope of its protection. According to the panel, “[t]he
legislative history makes clear the primary intent of the
statute is to create greater protection for children by
expanding the reach of the statute and by increasing the
penalties associated with the crime’s commission.”
1 After defendant filed his notice of appeal, the Chairman of the
State Board of Parole wrote to the trial judge questioning the
parole ineligibility provision. The Chairman noted that
defendant was subject to CSL, not PSL. The judge responded that
he considered the statutory change from CSL to PSL a matter of
form not substance.
6
Addressing the sentence, the panel reasoned that the word-
for-word substitution of “parole” for “community” suggests that
the amendment was “a matter of form and not substance.” All
that changed was the phrase used to describe a defendant’s
status. The panel further relied on State v. Jamgochian, 363
N.J. Super. 220, 227 (App. Div. 2003), in which the Appellate
Division held that “the nature of community supervision for life
[is] the functional equivalent of life-time parole.”
We granted defendant’s petition for certification, State v.
Perez, 213 N.J. 568 (2013).
II.
A.
In the present appeal, defendant renews the same arguments
presented to the Appellate Division. He continues to assert
that his guilty plea to luring was not supported by an adequate
factual basis.
Specifically, defendant contends that he was not guilty of
child luring “because his entreaties never reached the point of
trying to lure or entice the boy into meeting him.” While
conceding that his first text message “clearly indicates a
desire to have sex with the boy,” defendant argues that his
conduct does not satisfy the “geographic component” of the
child-luring statute.
7
Turning to the sentence, defendant contends that the
imposition of mandatory extended terms without parole
eligibility, based on his CSL status, constitutes a violation of
the United States and New Jersey Constitutions’ prohibitions
against ex post facto penal laws. U.S. Const. art. I, § 10, cl.
1; N.J. Const., art. IV, § 7, ¶ 3.
B.
The State responds that there was an adequate factual
basis. It asserts that the text messages provide a clear
indication of defendant’s attempt to entice the child from his
home to engage in sexual conduct. This intention is further
substantiated by defendant’s admissions during the plea
colloquy. Referring to this Court’s decision in State v. Perez
(Manuel), the State notes that the purpose of the luring statute
is “to ‘criminalize the early stages of what may develop into a
kidnapping or a sex offense.’” 177 N.J. 540, 548 (2003)
(quoting Cannel, New Jersey Criminal Code Annotated, N.J.S.A.
2C:13-6 cmt. 1 (2000)). The State urges that defendant’s
conduct was “exactly what the statute was intended to protect
against.” Furthermore, the State argues that legislative
history reflects a broadening of the statute’s language and
supports a more generalized interpretation of “place” that
captures an attempt to meet “somewhere,” and does not require a
specific or identifiable place.
8
Addressing the challenge to the mandatory extended term
without parole, the State argues that the two terms, “community”
and “parole,” are interchangeable and, as such, the sentences
were permissible. The State refers to a statement by the
Committee on Law and Public Safety which provides that the 2003
amendment “clarifies that lifetime community supervision for
life for sex offenders is parole supervision.” S. Law & Pub.
Safety & Veterans’ Affairs Comm. Statement to S. 2659 (2004).
Additionally, the State emphasizes that persons under CSL are
supervised by the Parole Board. For these reasons, the State
contends that the distinction between CSL and PSL is one of form
not substance.
III.
A.
Our evaluation begins with an assessment of defendant’s
guilty plea to the child-luring count.
As a general matter, a court may accept a guilty plea only
after determining “by inquiry of the defendant . . . that there
is a factual basis for the plea.” R. 3:9-2. The rule provides
in relevant part that
the court . . . shall not accept such plea
without first questioning the defendant
personally, under oath or by affirmation, and
determining by inquiry of the defendant and
others . . . that there is a factual basis for
the plea and that the plea is made
voluntarily, not as a result of any threats or
9
of any promises or inducements not disclosed
on the record, and with an understanding of
the nature of the charge and the consequences
of the plea. In addition to its inquiry of
the defendant, the court may accept a written
stipulation of facts, opinion, or state of
mind that the defendant admits to be true,
provided the stipulation is signed by the
defendant, defense counsel, and the
prosecutor.
[R. 3:9-2.]
Indeed, “it is essential to elicit from the defendant a
comprehensive factual basis, addressing each element of a given
offense in substantial detail.” State v. Campfield, 213 N.J.
218, 236 (2013). The “court must be ‘satisfied from the lips of
the defendant,’” State v. Smullen, 118 N.J. 408, 415 (1990)
(quoting State v. Barboza, 115 N.J. 415, 422 (1989)), that he
committed every element of the crime charged, State v. Sainz,
107 N.J. 283, 293 (1987).
The requirement of a factual basis “is designed to protect
a defendant who is in the position of pleading voluntarily with
an understanding of the nature of the charge but without
realizing that his conduct does not actually fall within the
charge.” Barboza, supra, 115 N.J. at 421 (internal quotation
marks omitted). In fact, “[e]ven if the defendant wished to
plead guilty to a crime he or she did not commit, he or she may
not do so.” Smullen, supra, 118 N.J. at 415.
10
A defendant may not plead guilty to an offense while
maintaining his innocence because this Court will not sanction
perjury as a permissible basis to resolve pending criminal
charges by way of a guilty plea. State v. Taccetta, 200 N.J.
183, 195-96 (2009). Receiving a factual statement directly from
a defendant or obtaining a defendant’s acceptance of the
veracity of facts in a written statement or report that
addresses each element of the charged offense reduces the
possibility that a defendant will enter a guilty plea to an
offense that he has not committed.2
Moreover, a defendant must do more than establish that he
or she discussed the case with counsel and family. State v.
T.M., 166 N.J. 319, 333 (2001). Such discussions only address
whether the plea is knowing and voluntary. A defendant must do
more than accede to a version of events presented by the
prosecutor. Ibid. Rather, a defendant must admit that he
engaged in the charged offense and provide a factual statement
or acknowledge all of the facts that comprise the essential
2 We recognize that, in certain limited circumstances, a
particular element of an offense may address a fact that is
beyond a defendant’s knowledge. For example, defendants may not
know whether an unlawful transaction occurred within 1000 feet
of a school. To satisfy such an element, prosecutors should
make an appropriate representation on the record at the time of
the hearing, so that defendants can acknowledge or dispute it.
11
elements of the offense to which the defendant pleads guilty.
Ibid.In the present case, our evaluation of the factual basis
requires an examination of the child-luring statute, which, in
relevant part, provides the following:
A person commits a crime of the second degree
if he attempts, via electronic or other means,
to lure or entice a child or one who he
reasonably believes to be a child into a motor
vehicle, structure, or isolated area, or to
meet or appear at any other place, with a
purpose to commit a criminal offense with or
against the child.
[N.J.S.A. 2C:13-6(a).]
The original version of this statute, as enacted in 1993,
applied only to attempts to lure a child into a motor vehicle.
L. 1993, c. 291, § 1. The statute was amended a year later to
extend to attempts to lure a child into a “structure, or
isolated area.” L. 1994, c. 91, § 1. The statute was amended
again in 1999 to establish a mandatory-minimum term of
imprisonment. L. 1999 c. 277, § 1. A 2001 amendment extended
the scope of the statute to attempts to lure or entice a child
“to meet or appear at any other place.” L. 2001, c. 233, § 1.
The amendment specifically criminalized attempts “via electronic
or other means,” as well as against individuals the offender
“reasonably believe[d] to be a child.” Ibid. The statute was
again amended in 2003 to upgrade the offense to a crime of the
12
second degree. L. 2003, c. 229, § 1. The purpose of the luring
statute is “to ‘criminalize the early stages of what may develop
into kidnapping or a sex offense.’” Perez (Manuel), supra, 177
N.J. at 548 (quoting Cannel, supra, New Jersey Criminal Code
Annotated, N.J.S.A. 2C:13-6 cmt. 1). The successive amendments
were designed to capture a broader array of contacts or events
that may lead to a kidnapping or sexual offense.
In its current iteration, the offense of luring has three
distinct elements: (1) the accused attempted to lure or entice
into a motor vehicle, structure, or isolated area, or to meet or
appear at any place, (2) a child under the age of eighteen, (3)
with a purpose to commit a criminal offense with or against that
child. See id. at 550.3
B.
In evaluating whether defendant has provided an adequate
factual basis to the charge of child luring, particularly when
the contact between him and the victim occurred by means of
electronic messages, it is imperative that defendant admitted to
sufficient facts to distinguish between an actual attempt to
lure from mere expressions of fantasy. Furthermore, even in the
face of messages explicitly expressing a desire to engage in
sexual conduct with a child, defendant had to admit that he
3 Perez (Manuel) pre-dated the 2001 amendment, which added the
“or to meet or appear at any place” language.
13
intended for his conduct to actually culminate in a meeting and
the commission of the offense.
In this case, we conclude that defendant provided an
adequate factual basis to support his plea of guilty to second-
degree child luring. Defendant admitted that he authored and
sent text messages to N.C. He admitted that the messages sent
to N.C. proposed that they engage in sexual contact. He agreed
that the messages contained in the joint exhibit were the
messages he sent to N.C. Defendant admitted that he knew that
N.C. was under the age of eighteen, and he admitted that he sent
the messages in an attempt to lure N.C. to a place where they
could engage in sexual relations.
To be sure, it is always preferable for a defendant to
utter the words that describe specifically what he did on a
specific date or time that constitutes the offense to which he
pleads guilty, and that is so here. Defendant provided an
adequate factual statement. Some defendants, however, may find
it difficult to speak at length on any subject let alone in a
courtroom. The nature of the offense may also inhibit a
recitation of the facts of a particular charge. No matter how
difficult, an adequate factual basis must be provided.
T.M., supra, 166 N.J. at 331, illustrates this rule. In
T.M., the defendant was charged with a sexual offense against a
child victim. We have acknowledged that “‘child-sexual-assault
14
cases are extremely difficult, both for the defendants and the
victims. Courts taking pleas are undoubtedly conscious of the
need to end the suffering.’” Ibid. (quoting Smullen, supra, 118
N.J. at 418). Defendant’s reluctance to speak of his
communications with his thirteen-year-old victim was palpable.
Unlike the plea proceeding in T.M., however, defendant responded
affirmatively to the questions posed by his attorney, thereby
admitting that he “attempt[ed] to lure a child whose initials
are N.C. to a place where the two . . . might engage in sexual
relations.”
We therefore conclude that defendant provided an adequate
factual basis to the charge of luring and affirm the conviction.
IV.
A.
In 1998, defendant was convicted of aggravated sexual
assault and armed burglary. He was sentenced to concurrent
terms of sixteen years in prison on the aggravated sexual
assault offense and ten years in prison on the armed burglary
offense.4 The trial court also imposed a special sentence of
CSL.
4Defendant was initially sentenced to concurrent terms of
sixteen years in prison subject to an eight-year period of
parole ineligibility for the aggravated sexual assault offense
and ten years in prison subject to a five-year period of parole
ineligibility for the armed burglary offense. After several
15
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.” See State v.
Schubert, 212 N.J. 295, 305 (2012). The Legislature describes
CSL as “a special sentence.” N.J.S.A. 2C:43-6.4(a). CSL is
designed to protect the public from recidivism by sexual
offenders. J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327,
336 (App. Div. 2013) (citing Jamgochian v. N.J. State Parole
Bd., 196 N.J. 222, 237-38 (2008)), certif. denied, 217 N.J. 296(2014). 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. N.J.A.C. 10A:71-
6.11. N.J.A.C. 10A:71-6.11 sets forth general conditions that
govern the lives of sex offenders subject to CSL, including
approval of their residence, N.J.A.C. 10A:71-6.11(b)(5);
approval of 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). A
defendant under CSL may be subjected to a yearly polygraph
examination, N.J.A.C. 10A:71-6.11(b)(21); imposition of a
curfew, N.J.S.A. 10A:71-6.11(b)(17); and restrictions on access
modifications, defendant received concurrent terms of sixteen
years and ten years in prison for the aggravated sexual assault
and armed burglary offenses, respectively. At all times, the
sentence included CSL.
16
to and use of the internet, N.J.A.C. 10A:71-6.11(b)(22), J.B.,
supra, 433 N.J. Super. at 344.
A 2003 amendment to N.J.S.A. 2C:43-6.4 replaced all
references to “community supervision for life” with “parole
supervision for life.” L. 2003, c. 267, § 2 (eff. Jan. 14,
2004). Since then, N.J.S.A. 2C:43-6.4 has been amended several
times. The current version contains numerous provisions that
were absent from any pre-2003 version of the statute. For
example, the Legislature has directed that “for the purpose of
calculating the limitation on time served pursuant to [N.J.S.A.
30:4-123.65], the custodial term imposed upon the defendant
related to the special sentence of parole supervision for life
shall be deemed to be a term of life imprisonment.” N.J.S.A.
2C:43-6.4(b).
In addition, the current version of N.J.S.A. 2C:43-6.4(e)
provides that an individual who commits one of the enumerated
sex offenses while on PSL shall be sentenced to an extended term
of imprisonment that “shall . . . be served in its entirety
prior to the person’s resumption of the term of parole
supervision for life.” By contrast, pursuant to the pre-
amendment version of N.J.S.A. 2C:43-6.4(e), a defendant on CSL
status who committed an enumerated offense was subject to a
mandatory extended term but was also eligible for parole.
17
Defendant contends that the extended terms of imprisonment
imposed on him are unconstitutional. He argues that CSL and PSL
are not interchangeable statuses. Rather, he maintains that the
special sentencing condition of PSL enhances the penal
consequences of his existing CSL status and such an alteration
violates the Ex Post Facto Clauses of the United States
Constitution and the New Jersey Constitution. The State insists
that the amendment effected a change in nomenclature and merely
clarifies the intent of the Legislature.
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.” Baezell v. Ohio, 269 U.S.
167, 169, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925). The Ex
Post Facto Clause is “aimed at laws that ‘retroactively alter
the definition of crimes or increase the punishment for criminal
acts.’” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115
S. Ct. 1597, 1601, 131 L. Ed. 2d 588, 594 (1995) (quoting
Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715, 2719,
111 L. Ed. 2d 33, 39 (1990)). To constitute an ex post facto
penal law, a change in the law “‘must be retrospective, that is,
it must apply to events occurring before its enactment, and it
18
must disadvantage the offender affected by it.’” State v.
Natale, 184 N.J. 458, 491 (2005) (quoting Weaver v. Graham, 450
U.S. 24, 29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981)).
“There 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 offence or the ultimate facts
necessary to establish guilt.’” Ibid. (alteration in original)
(internal quotation marks and citations omitted) (quoting Miller
v. Florida, 482 U.S. 423, 433, 107 S. Ct. 2446, 2452-53, 96 L.
Ed. 2d 351, 362 (1987)). New Jersey’s ex post facto
jurisprudence follows the federal jurisprudence. State v.
Fortin, 178 N.J. 540, 608 n.8 (2004).
Recently, this Court addressed whether imposition of newly
enacted restrictions on sex offenders could be applied,
consistent with federal and state ex post facto protections, to
an individual whose offense pre-dated the enactment of the
restrictions. Riley v. N.J. State Parole Bd., 219 N.J. 270(2014). In 2007, the Legislature enacted the Sex Offender
Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to -123.95, and the
Parole Board sought to apply it to Riley, who had committed a
predicate sexual offense in 1986 and had been released from
prison in 2009 under no form of parole supervision. Id. at 274-
75. Six months later, the Parole Board advised Riley that he
was subject to SOMA, under which he would have to wear a global
19
positioning system device twenty-four hours a day for the rest
of his life. Id. at 276-77. Riley was also advised that he
would be assigned a monitoring parole officer to whom he would
have to report and grant access to his home. Ibid. In
addition, certain restrictions were placed on his movements.
Ibid. Failure to comply would constitute a third-degree
offense. Id. at 277.
This Court held that “[t]he constraints and disabilities
imposed on Riley by SOMA . . . clearly place this law in the
category of a penal rather than civil law.” Id. at 275.
Therefore, its application to Riley, whose offense occurred
twenty-three years before the enactment of SOMA, violated the Ex
Post Facto Clauses of the federal and state constitutions. Id.
at 297.
B.
It is undisputed that defendant was serving a special
sentencing condition of CSL at the time he committed the second-
degree luring and third-degree endangering offenses for which he
received mandatory extended terms with no parole eligibility
pursuant to N.J.S.A. 2C:43-6.4(e). Resolution of defendant’s
contention that such terms violate the ex post facto
prohibitions of the federal and state constitutions turns on
whether the 2003 amendment makes more burdensome the punishment
of a crime after its commission. That inquiry turns on whether
20
the special sentencing condition of CSL is considered penal or
remedial.
In Doe v. Poritz, 142 N.J. 1, 40-77 (1995), this Court
determined that the registration and notification provisions
applicable to sexual offenders, N.J.S.A. 2C:7-1 to -23, which
form a significant part of “Megan’s Law,” did not constitute
punishment. By contrast, this Court has held that the breadth
of the supervision imposed on a defendant subject to CSL clearly
expressed the Legislature’s view that CSL was “an integral part
of a defendant’s sentence, imposed as part of a court’s
sentencing authority, rather than a defendant’s administrative
obligation following completion of the sentence.” Schubert,
supra, 212 N.J. at 307. Recognizing the punitive nature of CSL,
this Court determined that a trial court could not modify a
previously imposed sentence to include CSL once the defendant
had completed his sentence. Id. at 313.
PSL must similarly be considered a punitive rather than a
remedial or administrative obligation of a defendant convicted
of a qualifying sexual offense. Its numerous restrictions,
which 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, commence once a
defendant completes his probationary or custodial sentence.
21
In addition, a close examination of the pre- and post-2003
versions of N.J.S.A. 2C:43-6.4 belies the contention that the
2003 and subsequent amendments to the statute must be considered
simply a clarification of prior law rather than a substantive
change to the CSL post-sentence supervisory scheme. The changes
implemented by the Legislature go far beyond a simple change in
nomenclature. Rather, the Legislature has manifested that CSL
and PSL were and are intended to be penal rather than remedial
post-sentence supervisory schemes. See Schubert, supra, 212
N.J. at 314 (commenting that purported clarification of N.J.S.A.
2C:43-6.4 underscores legislative intent that CSL and PSL are
penal rather than remedial supervisory schemes). Several of the
alterations or clarifications effect substantive changes to the
CSL scheme.
Persons serving CSL are “supervised as if on parole.”
N.J.S.A. 2C:43-6.4(b). Any violation of one or more conditions
of CSL is a fourth-degree offense. N.J.S.A. 2C:43-6.4(d). In
other words, a violation of CSL is punishable only as a crime;
the Parole Board cannot return a defendant to prison through the
parole-revocation process. Sanchez v. N.J. State Parole Bd.,
368 N.J. Super. 181, 184 (App. Div. 2004), appeal dismissed per
stipulation, 187 N.J. 487 (2006). The Parole Board’s “only
recourse” is to refer the matter to the county prosecutor, who
may or may not seek to present the matter to a grand jury. Id.22
at 185. By contrast, following the 2003 amendment, a defendant
who commits a predicate offense and is sentenced to PSL is “in
the legal custody of the Commissioner of Corrections [and] shall
be supervised by the Division of Parole of the State Parole
Board” for life. N.J.S.A. 2C:43-6.4. A violation of PSL may be
prosecuted as a fourth-degree offense, N.J.S.A. 2C:43-6.4(d),
but it may also be treated as a parole violation, N.J.S.A.
2C:43-6.4(b). The State conceded at oral argument that the
almost-universal practice since the enactment of the 2003
amendments is to revoke a defendant’s parole and return him to
prison.
In addition, a defendant serving a special sentence of CSL
who commits an enumerated offense is subject to a mandatory
extended term under N.J.S.A. 2C:43-6.4(e)(1).5 The prosecutor,
however, is required to notify the court and the defendant of
her intention to seek such a sentence, and the defendant has the
opportunity to controvert the grounds cited by the prosecutor,
N.J.S.A. 2C:43-6.4(e)(2). A defendant subject to CSL who is
sentenced to an extended term pursuant to N.J.S.A. 2C:43-
6.4(e)(1) is eligible for parole. In its original form, the
extended term authorized by N.J.S.A. 2C:43-6.4(e) seems to
reflect the holding in State v. Lagares, 127 N.J. 20, 32-33
5 When discussing CSL, we are referring to N.J.S.A. 2C:43-6.4 as
it existed before the 2003 amendment.
23
(1992), requiring the prosecutor to state the reasons for
seeking a mandatory extended term and permitting a defendant an
opportunity to establish that an extended term is an arbitrary
and capricious exercise of the prosecutor’s discretion. By
contrast, in its current form, N.J.S.A. 2C:43-6.4 provides that
the extended term shall be “served in its entirety prior to the
person’s resumption of the term of parole supervision for life.”
In other words, a person serving a special sentence of PSL who
commits an enumerated offense is not eligible for parole and
will spend more years in prison than a person serving a special
sentence for CSL who commits the same offense.
This is not a difference in form. The elimination of any
prospect for parole enhances the penal consequences for a person
placed on CSL status before January 14, 2004. Applying the
current version of N.J.S.A. 2C:43-6.4(e) to defendant requires
him to spend many additional years in prison due to this so-
called clarification. As applied to defendant, the 2003
amendment to N.J.S.A. 2C:43-6.4(e) enhances the punitive
consequences of the special sentence of CSL to his detriment and
violates the federal and state prohibition of ex post facto
legislation. We vacate the sentence imposed and remand for
resentencing in accordance with the law governing those
sentenced to CSL.
V.
24
In sum, to support a guilty plea to child luring in
violation of N.J.S.A. 2C:13-6a, we hold that defendant was
required to admit, or acknowledge the veracity of facts
presented to him, that he attempted to lure or entice into a
motor vehicle, structure, or isolated area, or to meet or appear
at any place, a child under the age of eighteen, with a purpose
to commit a criminal offense with or against that child. Here,
defendant provided an adequate factual basis for his plea when
he admitted that he composed and sent four text messages to a
child whom he knew was a minor. He also admitted that he sent
those text messages in an attempt to lure that child to a place
where they could engage in sexual relations. We therefore
affirm defendant’s conviction of second-degree luring contrary
to N.J.S.A. 2C:13-6.
We also hold that the 2003 and subsequent amendments to
N.J.S.A. 2C:43-6, by which the special sentence of PSL is
introduced to the sentencing scheme for some sexual offenders
and which substitutes PSL for CSL, cannot be considered a simple
clarification of the Legislature’s intent about the nature of
the special condition of post-sentence supervision of certain
sexual offenders. Rather, the 2003 amendment accomplishes two
substantive alterations. First, it confirms the penal nature of
the special conditions of CSL and PSL. Second, it enhances the
penal exposure of a person previously sentenced to CSL for
25
certain offenses committed while sentenced to that status. Such
an enhancement violates the Ex Post Facto Clauses of the federal
and state constitutions. We therefore vacate the sentence
imposed and remand for resentencing in accordance with the law
governing those sentenced to CSL.
VI.
The judgment of the Appellate Division is affirmed in part
and reversed in part and the matter is remanded for
resentencing.
CHIEF JUSTICE RABNER; and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUDGE CUFF’s
opinion.
26
SUPREME COURT OF NEW JERSEY
NO. A-25 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD PEREZ, a/k/a JOSE R.
PEREZ,
Defendant-Appellant.
DECIDED February 2, 2015
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM IN PART/
CHECKLIST REVERSE IN PART/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7