State v. Brown

245 N.J. 78

243 A.3d 1233

STATE of New Jersey, Plaintiff-Appellant,

v.Hakum BROWN a/k/a Hakeem Brown, Defendant-Respondent.

State of New Jersey, Plaintiff-Appellant,

v.Rodney Brown, Defendant-Respondent.

A-39 Sept. Term 2019

083353

Supreme Court of New Jersey.

Argued October 14, 2020

Decided January 25, 2021

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the briefs).

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for respondents (Joseph E. Krakora, Public Defender, attorney; James K. Smith, Jr., of counsel and on the briefs).

Molly Linhorst argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Molly Linhorst, Alexander Shalom, and Jeanne LoCicero, on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

New Jersey's law governing the sex offender registration and notification system, N.J.S.A. 2C:7-1 to -23, is commonly known as Megan's Law, after the victim of a tragedy that spurred the law's passage. Enacted in 1994, Megan's Law imposed a registration requirement on convicted sex offenders and, in its original form, made failure to register chargeable as a fourth-degree offense. The statutory scheme has been amended a number of times. Pertinent here is the 2007 amendment through which the Legislature prospectively elevated failure to register to a third-degree offense.

These consolidated criminal appeals present a common legal issue: whether state or federal constitutional ex post facto prohibitions permit defendants to be charged with and convicted of the enhanced third-degree offense of failure to comply with sex offender registration requirements when each defendant's registration requirement arose from a conviction that occurred before the penalty for registration noncompliance was raised a degree.

For both defendants in this appeal, failure to register was punishable as a fourth-degree offense at the time of the predicate convictions that subjected each to Megan's Law's requirements. However, defendants’ failures to register upon release from unrelated subsequent terms of incarceration occurred after the increased degree in penalty took effect.

We hold that defendants suffered no ex post facto violation as a result of being charged with failure-to-register offenses bearing the increased degree. Defendants committed the charged offenses after the effective date of the 2007 amendments, of which each had fair notice. This Court has consistently regarded the Megan's Law registration requirement as a legislatively imposed regulatory consequence of committing a sex offense, as defined under Megan's Law, even though the Legislature has chosen to enforce that administrative scheme with punitive consequences. The Legislature is free to increase the penalty for the offense of failure to comply with the regulatory registration requirement -- which is separate and apart from defendants’ predicate sex offenses -- without violating ex post facto principles as to those predicate offenses.

We distinguish in our holding today our prior decision in State v. Hester, 233 N.J. 381, 398, 186 A.3d 236 (2018), where we held that the punishment for a violation of a sentence of community supervision for life (CSL) cannot be made more onerous than it was at the time of the underlying crime under ex post facto principles because the CSL sentence is a punitive consequence of that underlying offense. In contrast, an individual who violates the registration requirement and is charged with the offense of noncompliance after the penalty increase became effective is not subjected to a prohibited retroactive increase in punishment for a past offense.

I.

A.

In 1995, Rodney Brown (R.B.) was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2, and was sentenced to three years in prison and CSL.

In 2000, Hakum Brown (H.B.) was convicted of second-degree sexual assault and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). H.B. was sentenced to six years in prison and CSL.

As a result of those predicate convictions, H.B. and R.B. were subject to the sex offender registration requirements imposed by Megan's Law. Specifically, upon release from incarceration, H.B. and R.B. each were required to register with the police department of the municipality in which he resided. N.J.S.A. 2C:7-2(a)(1), -2(c). At the time of H.B.’s and R.B.’s sex-offender convictions, failure to comply with the registration requirements was punishable as a fourth-degree offense. L. 1994, c. 133, § 2a. However, in 2007, the Legislature upgraded failure to register to a third-degree offense. L. 2007, c. 19, § 1 (codified at N.J.S.A. 2C:7-2(a)(3) ).

Pertinent to our present analysis, on August 25, 2014, H.B. was released from incarceration on an unrelated offense but failed to timely register with his local police department. R.B. similarly failed to register following his release from incarceration (again on an unrelated offense) on December 23, 2015. Each was charged with third-degree failure to register under N.J.S.A. 2C:7-2(a)(3), as well as third-degree violations of CSL, N.J.S.A. 2C:43-6.4(d).

B.

H.B. pleaded guilty and was sentenced to three years’ imprisonment. He appealed his conviction, asserting there is an ex post facto violation in being charged with third-degree failure to register when, at the time of his predicate sex-offender conviction, failure to register was only a fourth-degree offense.¹

R.B. pleaded not guilty to a parallel set of charges. He moved to dismiss his indictments on ex post facto grounds, and the trial court granted R.B.’s motion in its entirety. In doing so, the court applied State v. F.W., 443 N.J. Super. 476, 129 A.3d 359 (App. Div. 2016), which held that it violated ex post facto principles to charge an individual with third-degree violations of CSL when, at the time of one's predicate sex-offense conviction, violation of CSL was a fourth-degree offense. After applying that reasoning to the CSL charges in R.B.’s indictment, the trial court determined that the logic of F.W. applied with equal force to R.B.’s indictment for third-degree failure to register.

The State appealed the dismissal of R.B.’s indictments; that appeal was stayed when we granted certification in Hester to consider the ex post facto argument in connection with the increase in offense degree for CSL violations. After we issued our decision in Hester, the State conceded that R.B. and H.B. could be charged with only a fourth-degree offense for their alleged violations of CSL. Thus, the State abandoned the portions of its appeals concerning defendants’ CSL violations. With respect to the remaining common issue permeating both appeals, on July 31, 2019, the Appellate Division consolidated the State's appeal in R.B.’s matter with H.B.’s appeal from his conviction. Thus, the consolidated appeals focused solely on the increase in offense degree for defendants’ failure-to-register offenses.

C.

In an unpublished decision, the Appellate Division reversed H.B.’s conviction for the third-degree offense of failure to register and affirmed the dismissal of R.B.’s indictment for the same offense.

The appellate court began by reviewing the decision in Hester, homing in on its conclusion that CSL is a condition of an offender's sentence and that violations of CSL therefore relate back to the date of the predicate sex offense for ex post facto purposes. The court then referenced a recent published opinion of the Appellate Division that considered whether to apply Hester’s holding in respect of CSL violations to the offense of failure to register. State v. Timmendequas, 460 N.J. Super. 346, 350, 215 A.3d 554 (App. Div. 2019). The Timmendequas decision, written by the same appellate panel as in the instant appeal, observed that the Legislature's intent in penalizing failure to register was punitive, even if the requirements themselves were not, and that an ex post facto analysis was therefore compelled. Id. at 355, 215 A.3d 554. The Timmendequas court concluded that, properly viewed, registration requirements are a condition of an offender's sentence, and the State's enhanced penalties for failure to register thus impermissibly "materially altered defendant's prior sentence to his disadvantage." Id. at 357, 215 A.3d 554 (alterations omitted) (quoting Hester, 233 N.J. at 398, 186 A.3d 236 ).

The appellate court followed the holding in Timmendequas in the instant appeal and similarly concluded that the logic of Hester should apply to Megan's Law's registration requirements. Accordingly, the Appellate Division held that H.B. and R.B. could be charged with failure to register only to the extent that the law permitted at the time of their predicate sex offenses, namely as a fourth-degree offense.

The State filed a petition for certification, which this Court granted. 240 N.J. 426, 222 A.3d 1106 (2020).² We also granted amicus curiae status to the American Civil Liberties Union of New Jersey (ACLU).

II.

Before this Court, the State maintains its position that there is no ex post facto violation in applying the 2007 amendment to N.J.S.A. 2C:7-2 to sex offenders who commit the new crime of failing to register after the effective date of the amendment. According to the State, the violation of the civil requirement of registration is a separate offense distinct from the original conviction that was the predicate for being placed on Megan's Law. The State maintains that applying the amendment to a post-amendment failure to register is not a retroactive increase in punishment for a past offense.

In a joint brief, defendants take the opposite view. Defendants argue that the 2007 amendment to Megan's Law, which had no purpose other than to increase the penalty for failure to register, may not be applied retroactively with respect to the predicate...