In re M.H.

IN THE MATTER OF REGISTRANT M.H.

DOCKET NO. A-2632-18T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued telephonically May 7, 2020

May 19, 2020

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Alvarez and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. 18040006.

Jesse M. DeBrosse, Assistant Deputy Public Defender, argued the cause for appellant/cross-respondent M.H. (Joseph E. Krakora, Public Defender, attorney; Jesse M. DeBrosse, of counsel and on the briefs).

Matthew T. Spence, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent/cross-appellant State of New Jersey (Jill S. Mayer, Acting Camden County Prosecutor, attorney; Matthew T. Spence, of counsel and on the briefs).

PER CURIAM

M.H. was originally charged in Pennsylvania with forty-three counts of sexual assault, involving both his minor son R.H. and his minor daughter A.H. The charges were brought after he admitted in a family counseling session to committing sexual acts against both children. He pled guilty to one count of "Involuntary Deviate Sexual Intercourse With a Child," involving his then five-year-old son. The Pennsylvania Board of Probation and Parole's Sexual Offenders Assessment Board found that he met the state's criteria for pedophilia and Sexually Violent Predator status. In accord with his negotiated plea, on September 27, 2005, M.H. was sentenced to a minimum of five, maximum of ten years, and paroled on November 15, 2013.

M.H. eventually relocated to New Jersey, and on February 7, 2019, after a Megan's Law classification hearing, was assessed as a Tier II moderate risk offender, with notification to community organizations and law enforcement agencies likely to encounter him. See N.J.S.A. 2C:7-8(c)(2). M.H. appeals, contending he should have been classified as a Tier I low-risk offender. The judge also found that because M.H. pled guilty and was sentenced on only one offense, involving conduct against only one of his two victims, he fell within the household/incest exception to Internet registration. See N.J.S.A. 2C:7-13(d)(2). The State cross-appeals the decision. We affirm.

At the hearing, M.H. presented a psychosexual risk assessment in support of his position that he should be classified as a Tier I offender. The expert whoauthored the report found "no counter-indication to downward modification of [M.H.'s] registration requirements," that M.H. was at low risk for sexual recidivism, and did not pose a significant risk of sexually inappropriate or deviant behavior or sexual coercion of children.

The expert's actuarial risk assessment of M.H. was based on a number of factors, including his presence in his community for five years without sexual recidivism. His age at the time, forty-eight, also reduced his risk of recidivism. M.H. had no convictions for nonsexual violence, no other sexual offense charges or convictions, and his victims were not unrelated or strangers. The only risk factor was that one of his victims was male.

The expert weighed several dynamic risk factors. They included sexual interest, distorted attitudes to sexual assault or sexual contact, difficulties with self-management, and social emotional functioning. He evaluated M.H.'s potential for sexual recidivism in the low range.

In October 2017, M.H. was diagnosed with "autism spectrum disorder (ASD)." At the hearing, he also provided the court with a report from the ARC of New Jersey on the disorder as it relates to the criminal justice system. The report stated that M.H.'s diagnosis placed him in a group "considered at low risk of reoffending because, once they had been educated on societal norms andexpectations, they adhere to them very carefully and closely." The report also discussed certain factors specific to people with the ASD diagnosis in relation to their risk of re-offense. The trial judge did not mention the report when rendering her oral decision.

M.H. has a "live-in patient advocate," funded by the Department of Developmental Disabilities (DDD), who assists M.H. with his day-to-day life including "medical needs, access to resources, house repairs, job applications, financial management, and daily living needs." Additionally, M.H. participated in sex offender treatment.

The trial court found M.H.'s Registrant Risk Assessment Scale (RRAS) score of forty-six placed him in the moderate risk range. See N.J.S.A. 2C:7-8(c). M.H. did not dispute his actual score.

Nonetheless, M.H. argued that, based on the expert report, he was not in the "heartland" of Tier II offenders. Because the expert relied upon M.H.'s live-in advocate's characterization that he is a highly functioning autistic adult, the judge gave the expert report little weight and refused to classify him outside the "heartland" of moderate risk offenders.

The judge also discounted the expert's report because he did not discuss M.H.'s Pennsylvania Sexually Violent Predator assessment, nor explain how thatassessment fit with his diagnosis. In rendering her decision, the judge said "the defense has failed to show the court by clear and convincing evidence that an out of the heartland application should be granted."

The judge considered the Internet registry statute to be clearly written, allowing for little interpretation. Relying on In the Matter of Registrant N.B., 222 N.J. 87 (2015), she concluded that despite the fact defendant was charged with multiple acts against two victims, the Internet exception did not apply because he was convicted of only one offense against one child.

On appeal, M.H. argues the following:

POINT I

THE LAW DIVISION CORRECTLY EXCLUDED M.H. FROM THE INTERNET REGISTRY UNDER N.J.S.A. 2C:7-13(D)(2), THE HOUSEHOLD EXCEPTION, BECAUSE HIS CONVICTION FOR ONE COUNT INVOLVING HIS SON WHO LIVED WITH HIM WAS A "SINGLE CONVICTION" FOR A SEX OFFENSE INVOLVING "MEMBERS OF NO MORE THAN A SINGLE HOUSEHOLD."

A. Although M.H. offended against both his son and daughter, his predicate conviction only involved one victim, and thus the issue could be resolved on narrow grounds.

B. Since the phrase "members of no more than a single household" is plural, it applies to cases involving more than one victim, provided the offenses were committed within a single household.

POINT II

THE LAW DIVISION ERRED BY SHIFTING THE BURDEN OF PROOF TO M.H. ON HIS REQUEST FOR TIER 1 NOTIFICATION, AS THE [NEW JERSEY] SUPREME COURT HAS RULED THAT THE STATE ALWAYS BEARS THE BURDEN OF PROOF ON THE SCOPE OF NOTIFICATION.

POINT III

THE LAW DIVISION ABUSED ITS DISCRETION BY ORDERING NOTICE TO COMMUNITY ORGANIZATIONS, AS M.H. IS A HOUSEHOLD OFFENDER WHO HAS BEEN OFFENSE FREE IN THE COMMUNITY FOR 10 YEARS, IS SUPERVISED BY A LIVE-IN CARE PROVIDER, AND IS ENGAGED IN TREATMENT.

On cross-appeal, the State contends:

POINT I

THE LAW DIVISION WAS CORRECT WHEN IT ALLOWED NOTIFICATION TO SCHOOLS AND COMMUNITY GROUPS.

POINT II

THE LAW DIVISION WAS INCORRECT WHEN IT DID NOT ALLOW PUBLICATION ON THE INTERNET REGISTRY.

I.

It is black-letter law that a trial court's interpretation of a statute is subject to de novo review. State v. Nance, 228 N.J. 378, 393 (2017).

Furthermore, "the ultimate determination of a registrant's risk of reoffense and the scope of notification is reserved to the sound discretion of the trialcourt." In re G.B., 147 N.J. 62, 79 (1996). Any classification based on the RRAS is subject to judicial review for an abuse of that discretion. Id. at 81.

New Jersey's Megan's Law requires that the state "develop and maintain a system for making certain information in the central registry . . . publicly available by means of electronic Internet technology." N.J.S.A. 2C:7-13(a). The statute provides exceptions to Internet registration when

the sole sex offense committed by the offender which renders him subject to the requirements of [Megan's Law] is one of the following:

. . . .

(2) A conviction or acquittal by reason of insanity for a violation of N.J.S.[A.] 2C:14-2 or N.J.S.[A.] 2C:14-3 under circumstances in which the offender was related to the victim by blood or affinity to the third degree or was a resource family parent, a guardian, or stood in loco parentis within the household . . . .

. . . .

For purposes of this subsection, "sole sex offense" means a single conviction, adjudication of guilty or acquittal by reason of insanity, as the case may be, for a sex offense which involved no more than one victim, no more than one occurrence or, in the case of an offense which meets the criteria of paragraph (2) of this subsection, members of no more than a single household.

[N.J.S.A. 2C:7-13(d).]

Subsection (d)(2) is known as the household/incest exception. The issue here is whether M.H. qualifies under the exception because he was convicted of only one charge against one victim but admitted to repeated acts against two victims.

II.

M.H. pled guilty to one count of "involuntary deviate sexual intercourse" with only R.H. The trial court found this to be "a single conviction" as defined by the statute, qualifying M.H. for the exception. M.H. contends that this was the correct interpretation; the State cross-appeals claiming the decision was error.

Statutory interpretation requires this court to "determine . . . the intent of the Legislature, and to give effect to that intent." N.B., 222 N.J. at 98 (quoting State v. Lenihan, 219 N.J. 251, 262 (2014)). The best indicator of the Legislature's intent is the plain language of the statute. Ibid. A statute's "words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the Legislature . . . be given their generally accepted meaning, according to the approved usage of the language." I...