Opinion

State v. Hakum Brown; State v. Rodney Brown

Court: Supreme Court of New Jersey
Filed: Jan 25, 2021
Status: Published
Cited by: 0 cases
Authority: More cited than 41.6%

The opinion

SYLLABUS

This syllabus is not part of the Court’s opinion. 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

Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Hakum Brown; State v. Rodney Brown (A-39-19) (083353)

Argued October 14, 2020 -- Decided January 25, 2021

LaVECCHIA, J., writing for the Court.

These consolidated 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 noncompliance was raised a degree.

In 1995, Rodney Brown (R.B.) was convicted of sexual assault. In 2000, Hakum

Brown (H.B.) was convicted of sexual assault and endangering the welfare of a child. 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. 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. However, in 2007, the Legislature upgraded

failure to register to a third-degree offense. In 2014, H.B. failed to timely register with

his local police department. R.B. similarly failed to register in 2015. Each was charged

with third-degree failure to register.

H.B. pleaded guilty but appealed, 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. R.B. pleaded

not guilty. He moved to dismiss his indictments on ex post facto grounds, and the trial

court granted R.B.’s motion in its entirety. The State appealed the dismissal of R.B.’s

indictments. The Appellate Division consolidated the State’s appeal in R.B.’s matter

with H.B.’s appeal from his conviction. Relying on State v. Timmendequas, 460 N.J.

Super. 346 (App. Div. 2019), the appellate court reversed H.B.’s conviction and affirmed

the dismissal of R.B.’s indictment. The Court granted certification. 240 N.J. 426 (2020).

HELD: Defendants suffered no ex post facto violation as a result of being charged with

failure-to-register offenses bearing the increased degree. 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.

1. In Doe v. Poritz, the Court found the Megan’s Law registration requirement to be

regulatory and remedial rather than punitive and therefore held that Megan’s Law’s

retroactive application to persons who had already been convicted of eligible sex offenses

did not subject past offenders to additional punishment and did not offend the Ex Post

Facto Clauses. 142 N.J. 1, 75 (1995). (pp. 9-12)

2. Two findings must be made for a law to violate the constitutional prohibition on ex

post facto laws. The court must determine: first, whether the law is retrospective, meaning

it applies to events occurring before its enactment or changes the legal consequences of

acts completed before its effective date; second, whether the law, as retrospectively

applied, imposes additional punishment to an already completed crime. (pp. 12-13)

3. Doe placed the registration scheme decidedly in the nonpunitive category as a civil,

administrative consequence. That the violation of that regulatory scheme is enforced

through separate criminal charges when and if the violation occurs does not make the

registration requirement itself penal. The registration requirement is not part of the penal

sentence for the predicate sex offense. Distilled to its essence, registration is retroactive

but not punitive. Prosecution for failing to register, however, is different. It addresses a

separate crime and is punitive but not retroactive. Viewed accordingly, just as the

Legislature was permitted to affix a criminal penalty for the prospective violation

denominated as failure to register, so too may it prospectively enhance the degree of such

a penalty. Federal courts and other state supreme courts have similarly held that failure

to register is an offense distinct from the original underlying sex offense. (pp. 13-17)

4. Megan’s Law imposed a term of community supervision for life (CSL) on individuals

convicted of certain sex offenses. In 2003, the Legislature replaced CSL with parole

supervision for life (PSL), a more restrictive post-release regime. In State v. Perez, 220

N.J. 423 (2015), the Court considered whether the Legislature could retroactively convert

an offender’s sentence of CSL to a sentence of PSL. Stressing that both “CSL and PSL

were and are intended to be penal rather than remedial post-sentence supervisory

schemes,” the Court held that such retroactive enhancement of an offender’s sentence

violated the Ex Post Facto Clause. Id. at 441-42. (pp. 17-19)

5. And in State v. Hester, 233 N.J. 381 (2018), the Court considered whether -- after a

2013 amendment that raised the degree of violation of CSL and mandated conversion

from CSL to PSL -- those heightened sanctions could be imposed on individuals who

began serving CSL prior to the amendment. The Court concluded that the defendants’

CSL violations should not be viewed as independent crimes but as “violations of the

general conditions of their supervised release” that were “integral parts” of the

defendants’ sentences. Id. at 397. By enhancing the penalty for violating those

requirements, the Legislature had impermissibly sought to “materially alter[] defendants’

prior sentences to their disadvantage.” Id. at 398. Increasing the defendants’ penalty for

violating CSL violated the Ex Post Facto Clause, just as in Perez. Id. at 398. (pp. 19-21)

6. The Court stresses the foundational reasoning of Doe v. Poritz. Doe recognized the

registration requirement as an administrative obligation rather than a penal consequence

of the original predicate sex offense; the fact that violations of that administrative

obligation are themselves separately punishable does not alter the nature of the obligation

itself. Thus, imposition of that obligation did not involve a retroactive increase in

punishment for the predicate crime. And, by extension, increasing the penal

consequences for a violation of that obligation is similarly distinct from the punishment

imposed for the predicate crime. (pp. 21-22)

7. Hester involved aspects of the application of CSL and PSL, which are not

administrative obligations, but rather punitive measures imposed as part of the supervised

release of an offender convicted of a qualifying offense. Doe is the most relevant to the

circumstances present here, and adherence to Doe’s determination that registration is not

punitive should have precluded reliance on cases dealing with punitive consequences

such as PSL, CSL, and the requirements of the Sex Offender Monitoring Act, see Riley v.

State Parole Bd., 219 N.J. 270 (2014), in the context of a challenge predicated on the

registration requirement. (pp. 22-25)

8. The Court disapproves of the analysis of Timmendequas and reverses the Appellate

Division’s decision in this matter, which relied on Timmendequas. If the Legislature has

the authority to create new penalties for noncompliance with administrative obligations,

as it did in Megan’s Law, it would be incongruous if it could not prospectively upgrade

the penalty for violating an existing administrative obligation. (p. 25)

REVERSED. R.B.’s matter is REMANDED to the trial court. H.B.’s

conviction and sentence are REINSTATED.

JUSTICE ALBIN, dissenting, does not see any basis to treat retroactively

imposed increased punishments for violations of CSL requirements and Megan’s Law

registration requirements differently for ex post facto purposes. Justice Albin notes that

both the CSL requirements and the Megan’s Law registration requirements are conditions

imposed at the time of sentencing for a defendant’s predicate sex offense; both mandate

lifetime compliance; and violations of both are punishable as crimes, subjecting offenders

to potential prison terms. In Justice Albin’s view, the Court should not retroactively

aggravate the penalty for failing to register based on an arbitrary distinction between CSL

and Megan’s Law registration. Justice Albin concludes that the 2007 amendment

increased the punishment for defendants’ violation of a condition of their sentences -- the

registration requirement -- and therefore materially altered their sentences to their

disadvantage in violation of the prohibition on ex post facto laws.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,

SOLOMON, and PIERRE-LOUIS join in JUSTICE LaVECCHIA’s opinion.

JUSTICE ALBIN filed a dissent.

SUPREME COURT OF NEW JERSEY

A-39 September Term 2019

083353

State of New Jersey,

Plaintiff-Appellant,

Hakum Brown a/k/a Hakeem Brown,

Defendant-Respondent.

________________________________________________________________

State of New Jersey,

Plaintiff-Appellant,

Rodney Brown,

Defendant-Respondent.

On certification to the Superior Court,

Appellate Division.

Argued Decided

October 14, 2020 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

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 (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.

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).

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

The State did not raise a waiver argument before either the Appellate

Division or this Court, hence waiver is not an issue in this appeal.

motion in its entirety. In doing so, the court applied State v. F.W., 443 N.J.

Super. 476 (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.

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 (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. 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

his disadvantage.” Id. at 357 (alterations omitted) (quoting Hester, 233 N.J. at

398).

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 (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.

A motion for leave to appeal in Timmendequas is currently pending before

this Court.

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 offense without violating the Ex Post Facto

Clauses of the State and Federal Constitutions. The ACLU urges, consistent

with the position of defendants, that mandatory registration under Megan’s

Law be viewed as part-and-parcel of defendants’ sentences for their underlying

offenses and that therefore, as was held in Hester for CSL, failure to register

should not be regarded as a new offense. Amicus thus contends that the 2007

amendment retroactively makes the punishment more burdensome for the same

offense in violation of the Ex Post Facto Clauses.

III.

In 1994, the Legislature enacted Megan’s Law, now codified at N.J.S.A.

2C:7-1 to -23, for the express purpose of establishing a sex offender registry

that would “provide law enforcement with additional information critical to

preventing and promptly resolving incidents involving sexual abuse and

missing persons.” N.J.S.A. 2C:7-1(b). The law requires any individual

convicted of certain sex offenses to register with the police department of the

municipality in which he or she resides. N.J.S.A. 2C:7-2(c). Megan’s Law

further provided at the time that failure to register was punishable as a fourth-

degree offense. L. 1994, c. 133, § 2(a). In addition, annual address

verification obligations and registration requirements are imposed on a

registrant who moves into or out of New Jersey or changes his or her

residence. See N.J.S.A. 2C:7-2(c), (d).3

In Doe v. Poritz, 142 N.J. 1 (1995), this Court upheld Megan’s Law

against a series of constitutional challenges. In relevant part, this Court held

the law’s registration requirements could be imposed on individuals whose

predicate sex offenses predated the law’s passage without running afoul of

State or Federal Ex Post Facto Clauses. Id. at 75. Integral to that holding was

the conclusion that the law’s registration requirements were remedial rather

than punitive. Id. at 73. Our Court acknowledged that although the State

cannot impose retroactive punishment on individuals for their past offenses,

the law’s registration requirements were instead a “collateral consequence” of

an individual’s conviction, id. at 77 n.18, which did not raise the same

constitutional concerns, id. at 75. That determination was key. Because the

In 2014, legislative amendments to subsection (d) increased to an offense of

the third degree the penalty for failing to notify and re-register upon

relocation. Because both defendants were being released from prison when

charged with their offenses in this matter, they were not charged under

subsection (d), although subsection (d)’s obligations apply to them.

Court found the registration requirement to be regulatory and remedial, the

Court held that Megan’s Law’s retroactive application to persons who had

already been convicted of eligible sex offenses in this and other jurisdictions

did not subject past offenders to additional punishment and did not offend the

Ex Post Facto Clauses. Ibid. That foundational determination has never been

shaken. This Court has consistently treated the registration requirement as a

civil consequence. State v. Perez, 220 N.J. 423, 440 (2015) (describing the

registration requirement as an “administrative obligation” distinct from a

punitive consequence); see also Riley v. State Parole Bd., 219 N.J. 270, 297

(2014) (referring to Megan’s Law as a “nonpunitive civil statute”); In re

Commitment of J.M.B., 197 N.J. 563, 601 (2009) (describing Megan’s Law as

a “remedial, non-punitive statute[]”).

In 2007, the Legislature amended Megan’s Law, upgrading failure to

§ 1. The enhanced penalties applicable to an offense graded as third degree

are significant. While a fourth-degree offense carries a prison term of no

greater than eighteen months, an individual convicted of a third-degree offense

may be sentenced to a term of imprisonment between three and five years.

N.J.S.A. 2C:43-6(a)(3) to (4). The 2007 amendments took effect on March 1,

2007. L. 2007, c. 19, § 3.

That increase in penalty for failure to register gives rise to the present ex

post facto challenge.

Both the New Jersey and United States Constitutions prohibit the

Legislature from passing ex post facto laws. N.J. Const. art. IV, § 7, ¶ 3 (“The

Legislature shall not pass any . . . ex post facto law . . . .”); accord U.S. Const.

art. I, § 10, cl. 1. We have interpreted the Ex Post Facto Clause in the State

Constitution in the same manner as its federal counterpart. Doe, 142 N.J. at

42. Those clauses proscribe “any statute which . . . makes more burdensome

the punishment for a crime, after its commission.” Beazell v. Ohio, 269 U.S.

167, 169 (1925); see also Weaver v. Graham, 450 U.S. 24, 30 (1981)

(emphasizing that the Ex Post Facto Clause seeks not to guarantee “an

individual’s right to less punishment, but [to guard against] the lack of fair

notice and [to promote] governmental restraint when the legislature increases

punishment beyond what was prescribed when the crime was consummated”) .

The prohibition on ex post facto laws thus advances two primary purposes: “It

assures that individuals can rely on laws until they are ‘explicitly changed,’

and it restricts the government from passing ‘potentially vindictive

legislation.’” Riley, 219 N.J. at 284 (quoting Carmell v. Texas, 529 U.S. 513,

566 (2000)).

Two findings must be made for a law to violate the prohibition on ex

post facto laws. First, the court must determine whether “the law is

‘retrospective,’” meaning “it ‘appl[ies] to events occurring before its

enactment’ or . . . ‘changes the legal consequences of acts completed before its

effective date.’” Id. at 285 (first alteration in original) (quoting Miller v.

Florida, 482 U.S. 423, 430 (1987)). “Second, the court must determine

whether the law, as retrospectively applied, imposes additional punishment to

an already completed crime.” Ibid. (citing Kansas v. Hendricks, 521 U.S. 346,

370 (1997)).

IV.

In considering the question at hand, we find that Doe v. Poritz’s lantern

lights the way to our conclusion.

Since this Court first upheld the Megan’s Law registration of sex

offenders, including sex offenders whose predicate convictions occurred prior

to Megan’s Law’s enactment, the registration requirement has been viewed as

a nonpunitive consequence of the predicate conviction, no matter when the

predicate conviction occurred. Doe, 142 N.J. at 43. Scrutinized under an ex

post facto lens, the registration obligation was held in Doe v. Poritz to be a

regulatory scheme, remedial in legislative intent and effect, and “designed

simply and solely to enable the public to protect itself from the danger posed

by sex offenders.” Id. at 73; cf. United States v. Salerno, 481 U.S. 739, 747

(1987) (“There is no doubt that preventing danger to the community is a

legitimate regulatory goal.”). Moreover, the Doe Court noted that simply

because a regulatory program has “some deterrent punitive impact . . . does not

. . . transform those provisions into ‘punishment.’” 142 N.J. at 75.

Doe placed the registration scheme decidedly in the nonpunitive

category, and ever since it has been treated accordingly by this Court as a civil,

administrative consequence for individuals who have been convicted of an

eligible sex offense in New Jersey or another jurisdiction and are deemed

repetitive and compulsive. See Perez, 220 N.J. at 440 (describing registration

as an “administrative obligation”). That the violation of that regulatory

scheme is enforced through separate criminal charges when and if the violation

occurs does not make the registration requirement itself penal, as Doe

recognized. Therefore, the registration requirement survived its initial ex post

facto challenge in Doe -- it is not part of the penal sentence for the predicate

sex offense.4

The registration and regulatory scheme also has overcome Double Jeopardy

Clause challenges, which use a similar analysis for determining whether

registration imposes a “punishment” on an individual. Federal courts have

reached the same conclusion that we did in Doe: the law’s registration

requirements constitute non-punitive civil remedies rather than criminal

Distilled to its essence then, registration is retroactive but not punitive.

Prosecution for failing to register, however, is different. It addresses a

separate crime and is punitive but not retroactive.

Viewed accordingly, just as the Legislature was permitted to affix a

criminal penalty for the prospective violation denominated as failure to

did not before constitute enhancement of punishment for the original predicate

offense, and now, when increased by a degree, it is simply a prospective

enhancement of an offense for which defendants had fair notice.

Thus, the legislative increase in punishment that the 2007 amendments

prescribed for those subject to Megan’s Law’s registration requirements who

fail to register after the amendments’ effective date does not contravene the

fair-notice requirement that the prohibition against ex post facto legislation

protects -- it does not “increase[] punishment beyond what was prescribed

when the crime was consummated.” See Weaver, 450 U.S. at 30.

penalties. The Third Circuit held in Artway v. Attorney General that Megan’s

Law’s registration requirements were not punitive for purposes of ex post facto

or double jeopardy analysis. 81 F.3d 1235, 1271 (3d Cir. 1996). The court

observed that registration “historically is a regulatory technique with a salutary

purpose.” Id. at 1266. The Third Circuit similarly upheld Megan’s Law’s

notification requirements in the face of ex post facto and double jeopardy

challenges. E.B. v. Verniero, 119 F.3d 1077, 1081, 1105-07 (3d Cir. 1997).

We add, in closing on this point, that federal cases in the Third Circuit

addressing the federal Sex Offender Registration and Notification Act

(SORNA), 42 U.S.C. §§ 16901 to 16962, treat similarly ex post facto

challenges to failure-to-register offenses by individuals whose original sex

offenses predated the federal law’s passage. See United States v. Shenandoah,

595 F.3d 151, 158-59 (3d Cir. 2010), abrogated in other part by Reynolds v.

United States, 565 U.S. 432 (2012); see also Pavulak v. United States, 248 F.

Supp. 3d 546, 569 (D. Del. 2017) (finding such a conviction lawful). Other

circuits have reached similar conclusions. See, e.g., United States v. Wass,

954 F.3d 184, 190-92 (4th Cir. 2020); United States v. Felts, 674 F.3d 599,

606 (6th Cir. 2012) (“[C]ircuit courts have consistently held that SORNA does

not violate the Ex Post Facto Clause.”). Those cases all rely on the proposition

that failure to register is an offense distinct from the original underlying sex

offense, which is consistent with the Supreme Court’s dicta in Smith v. Doe:

“A sex offender who fails to comply with the reporting requirement may be

subjected to a criminal prosecution for that failure, but any prosecution is a

proceeding separate from the individual’s original offense.” 538 U.S. 84, 101-

02 (2003) (emphasis added).

And, as the State correctly points out in its argument, other state

supreme courts also have concluded that failure to register is a separate crime

from the original sex offense. See State v. Cook, 187 P.3d 1283, 1290 (Kan.

2008) (“[T]he principles underlying the Ex Post Facto Clause do not apply to

protect [a defendant’s] failure to register after the amendments became

effective.”); Buck v. Commonwealth, 308 S.W.3d 661, 668 (Ky. 2010)

(“[C]riminal liability for failure to register is prospective and not a punishment

for past crimes.”); State v. Howard, 983 N.E.2d 341, 348 (Ohio 2012) (holding

that the defendant’s notice of the increased penalty for failure to register was

fatal to his ex post facto claim); State v. Gibson, 182 A.3d 540, 558 (R.I.

2018).

Defendants’ argument, buttressed by the ACLU and espoused both in the

Appellate Division decision in this matter and in the earlier decision in

Timmendequas, takes its foundation from a body of case law that has

considered the ex post facto implications of amendments to other aspects of

Megan’s Law. The extrapolation from those decisions is misplaced, as we

explain.

Since Doe v. Poritz settled the question of the ex post facto impact of

imposition of a registration requirement on sex offenders, including persons

whose predicate offenses predated the enactment of Megan’s Law, much of our

subsequent examination of ex post facto considerations in connection with

Megan’s Law has focused on a specific component of Megan’s Law, namely

the Violent Predator Incapacitation Act, which imposed a term of CSL on

individuals convicted of certain sex offenses. See L. 1994, c. 130, §§ 1, 2.

Individuals subject to CSL are supervised by the Parole Board and face

limitations on their liberty, including requirements of

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.A.C. 10A:71-6.11(b)(17); and

restrictions on access to and use of the internet,

N.J.A.C. 10A:71-6.11(b)(22).

[Perez, 220 N.J. at 437.]

In 2003, the Legislature replaced CSL with parole supervision for life

(PSL), a more restrictive post-release regime. L. 2003, c. 267. Unlike CSL,

an individual sentenced to serve PSL can be returned to prison without a trial

by jury. N.J.S.A. 30:4-123.63. Instead, the Parole Board need only produce

clear and convincing evidence of a parole violation at a hearing held by an

administrative officer. Ibid.

In Perez, we considered whether the Legislature could retroactively

convert an offender’s sentence of CSL to a sentence of PSL. Defendant

Richard Perez, who was serving CSL as a result of a 1998 conviction, pled

guilty to an additional sex offense in 2011. 220 N.J. at 427, 429. Perez was

sentenced pursuant to N.J.S.A. 2C:43-6.4, which provides for an enhanced

term without parole for “individuals who commit an enumerated offense while

serving [PSL].” Id. at 427. The State argued that the enhanced term applied to

Perez because the Legislature’s change of CSL to PSL was one of form rather

than substance. Id. at 432. This Court rejected that argument, holding that the

State could not treat CSL and PSL identically because converting individual s

from CSL to PSL status retroactively would enhance the punitive

consequences of their sentences. Id. at 442. We stressed that both “CSL and

PSL were and are intended to be penal rather than remedial post-sentence

supervisory schemes.” Id. at 441 (citing State v. Schubert, 212 N.J. 295, 314

(2012)). Because the conversion of CSL to PSL worked such consequences as

eliminating an offender’s opportunity for future parole and placing offenders

“in the legal custody of the Commissioner of Corrections,” we held that such

retroactive enhancement of an offender’s sentence violated the Ex Post Facto

Clause. Id. at 441-42 (quoting N.J.S.A. 2C:43-6.4).

In a subsequent decision, we were called on to consider amendments to

CSL, which still applies to certain sex offenders. In 2013, the Legislature

amended N.J.S.A. 2C:43-6.4 so that violation of a condition of CSL,

previously a fourth-degree offense, was made punishable as a third-degree

offense; the Legislature also compelled a mandatory conversion from CSL to

PSL. L. 2013, c. 214, § 4; see also N.J.S.A. 2C:43-6.4(a), (d). In Hester, we

held that it violated the Ex Post Facto Clause to impose those heightened

sanctions on individuals who began serving CSL prior to enactment of those

provisions. 233 N.J. at 385.

The defendants in Hester had each been placed on CSL when violations

were punishable as a fourth-degree offense. Id. at 395-96. After the

defendants violated the terms of their CSL, they were charged with third-

degree offenses under the 2013 amendments to N.J.S.A. 2C:43-6.4. Id. at 385.

We first concluded that the defendants’ CSL violations should not be viewed

as independent crimes but as “violations of the general conditions of their

supervised release.” Id. at 397. Because CSL’s release requirements were

“integral parts” of the defendants’ sentences, “[t]he punishment for violating

those regulatory requirements . . . was established when defendants committed

their crimes and received their sentences [of CSL].” Ibid. By enhancing the

penalty for violating those requirements, the Legislature had impermissibly

sought to “materially alter[] defendants’ prior sentences to their disadvantage.”

Id. at 398. We noted in particular the inequity of changing the terms of an

offender’s sentence to permit conversion to PSL:

Under PSL, the Parole Board has the authority to

simply revoke a defendant’s supervised release for a

violation of a general condition and bypass the panoply

of procedural rights afforded under the criminal justice

system, such as the rights to trial by jury and to have

guilt proven beyond a reasonable doubt. In Perez, the

State conceded “that the almost-universal practice since

the enactment of [PSL] is to revoke a defendant’s

parole and return him to prison” for a condition-of-

release violation rather than prosecute him for a crime.

[Id. at 396 (alteration in original) (footnote omitted).]

Accordingly, we held in Hester that increasing the defendants’ penalty for

violating CSL violated the Ex Post Facto Clause by retroactively “enhanc[ing]

the punitive consequences” of their sentences to their detriment, just as it had

in Perez. Id. at 398 (quoting Perez, 220 N.J. at 442).

The logic advanced by defendants and amicus, and adopted by the

Appellate Division in this matter and in the prior published opinion in

Timmendequas, is inconsistent with the foundational reasoning of Doe v.

Poritz. Doe recognized the registration requirement as an administrative

obligation rather than a penal consequence of the original predicate sex

offense; the fact that violations of that administrative obligation are themselves

separately punishable does not alter the nature of the obligation itself. Thus,

imposition of that obligation did not involve a retroactive increase in

punishment for the predicate crime. And, by extension, increasing the penal

consequences for a violation of that obligation is similarly distinct from the

punishment imposed for the predicate crime.

To the extent that the Appellate Division’s analysis in this matter and in

Timmendequas is rooted in in the reasoning espoused in Hester, moreover, it

fails to account for the key distinguishing feature in that appeal. Hester

involved aspects of the application of CSL and PSL. Both are recognized not

as administrative obligations, but rather as punitive measures imposed as part

of the supervised release of an offender convicted of a qualifying offense . As

Perez noted, when comparing CSL to registration, CSL is different in kind

because it is punishment for the predicate offense -- the offense that caused the

sentence to include CSL. 220 N.J. at 440. And as for PSL, our case law is

replete with the acknowledgment that parole is continued punishment for the

offense that carries it as part of the sentence, rendering the individual in the

continued custody of the Department of Corrections. Thus, in Hester as in

Perez, claims of retroactive imposition of punishment related to enhancement

of supervised release that was a condition of a sex offense sentence.

In sum, Hester involved a different and distinguishable setting than the

one posed here -- an increase in offense degree imposed on prospective

violations of the Megan’s Law registration requirement.

Finally, the logic espoused by the Appellate Division and the defendants

here is further undermined by Riley, in which we considered whether the

requirements of the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-

123.89 to -123.95, could be applied to an individual whose predicate offenses

predated the law’s enactment. 219 N.J. at 274. SOMA requires qualifying sex

offenders to wear an electronic ankle bracelet that tracks their movements via

global positioning satellite (GPS). Id. at 277. Individuals subject to this

monitoring were required to ensure that their bracelet was continuously

charged, provide advance notice of any out-of-state travel, and report their

weekly work schedules to a parole officer. Id. at 276-77. We concluded that

the burdens of twenty-four-hour GPS monitoring and the attendant

requirements of reporting to a parole officer “clearly place[d] this law in the

category of a penal rather than civil law.” Id. at 275. Applying the factors set

forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963), we noted

that SOMA’s monitoring regime “looks like parole, monitors like parole,

restricts like parole, serves the general purpose of parole, and is run by the

Parole Board.” Id. at 294. That similarity with parole, which this Court has

consistently held to be punitive, see Schubert, 212 N.J. at 308, compelled the

conclusion that SOMA was a punitive law subject to the Ex Post Facto Clause,

Riley, 212 N.J. at 297.

Riley illustrates that Megan’s Law registration requirements are not

rendered punitive merely because they are policed by penal means. Our focus

in Riley was on the punitive or nonpunitive nature of SOMA’s GPS

monitoring imposed retroactively on certain individuals, not on the

unquestionably penal nature of a prospective prosecution for failure to comply

with that monitoring. Under the logic of the argument in support of defendants

and the decision under review, Riley’s conclusion that continuous GPS

monitoring is punitive was purely superfluous -- the decision could have rested

simply on the fact that the monitoring was policed by punitive means, namely

the threat of prosecution for non-compliance. But Riley expressly found that

“[t]he constraints and disabilities imposed on Riley by SOMA, and SOMA’s

similarity to parole supervision for life, clearly place this law in the category

of a penal rather than civil law.” Id. at 275. And just as the potential

prosecution for a SOMA violation was not what rendered SOMA punitive, the

potential prosecution for failure to register does not render the registration

obligation punitive in its own right.

Review of those cases reveals that Doe is the most relevant to the

circumstances present here, and adherence to Doe’s determination that

registration is not punitive should have precluded reliance on cases dealing

with punitive consequences such as PSL, CSL, and SOMA in the context of a

challenge predicated on the registration requirement.

For those reasons, we disapprove of the analysis of Timmendequas and

reverse the Appellate Division’s decision in this matter, which relied on

Timmendequas to find an ex post facto violation in the third-degree charges

brought against defendants.

In rejecting the arguments pressed on behalf of defendants, we agree

with the position advanced by the State that adoption of such a view would

raise uncertainty regarding the State’s ability to enforce Megan’s Law’s

registration requirements against any offender whose predicate convictions

predated the law’s passage -- a position clearly understood in Doe. Those

requirements have been in place for over two decades, and we are unaware of

any support for the proposition that their enforcement against pre-1994

offenders raises ex post facto concerns. See, e.g., State v. S.R., 175 N.J. 23,

26 (2002) (noting such a conviction). And, if the Legislature has the authority

to create new penalties for noncompliance with administrative obligations, as

it did in Megan’s Law, it would be incongruous if it could not prospectively

upgrade the penalty for violating an existing administrative obligation.

VI.

The judgment of the Appellate Division is reversed. R.B.’s matter is

remanded to the trial court for further proceedings consistent with this

opinion’s holding. We reinstate H.B.’s conviction and sentence.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON,

FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE

LaVECCHIA’s opinion. JUSTICE ALBIN filed a dissent.

State of New Jersey,

Plaintiff-Appellant,

Hakum Brown a/k/a Hakeem Brown,

Defendant-Respondent.

________________________________________________________________

State of New Jersey,

Plaintiff-Appellant,

Rodney Brown,

Defendant-Respondent.

JUSTICE ALBIN, dissenting.

“Like cases should be treated alike” is an ancient maxim and a central

theme in our modern-day constitutional jurisprudence. The judicial principle

to treat like cases alike instructs courts to avoid arbitrary distinctions and

fictional labels to distinguish one case from another. That principle is at the

heart of this case.

In State v. Timmendequas, in a persuasive and well-reasoned opinion

authored by Judge Messano, the Appellate Division determined that, for ex

post facto purposes, retroactively increasing the punishment for a violation of

a condition of the Megan’s Law registration requirements was no different

than what this Court declared unconstitutional in State v. Hester, 233 N.J. 381

(2018) -- retroactively increasing the punishment for a violation of a condition

of community supervision for life (CSL). See 460 N.J. Super. 346 (App. Div.

2019). The Timmendequas court did no more than follow the inescapable

logic of Hester in applying a like principle to a like case. In this case, the

same appellate panel hewed to the holding of Timmendequas and determined

that defendants’ Megan’s Law registration violations were not punishable as

third-degree crimes because, at the time of the imposition of their sentences, a

registration violation was punishable as only a fourth-degree crime.

I agree with the Appellate Division that to punish defendants as third-

degree offenders would violate the Ex Post Facto Clauses of the United States

and New Jersey Constitutions. I therefore respectfully dissent.

Defendants Rodney Brown (R.B.) and Hakum Brown (H.B.) both pled

guilty to having committed sex offenses and were sentenced to terms of

incarceration, R.B. in 1995 and H.B. in 2000. In both cases, trial courts

sentenced defendants to CSL and to comply with the lifetime registration

requirements of Megan’s Law after they completed the custodial portion of

their sentences.

At the time of defendants’ sentences, a violation of a term of CSL was a

fourth-degree offense. L. 1994, c. 130, § 2. In 2014, the Legislature upgraded

the penalty for a CSL violation from a fourth-degree to a third-degree offense.

L. 2013, c. 214, § 4 (codified at N.J.S.A. 2C:43-6.4(d)). Also at the time of

their sentences, a violation of the Megan’s Law registration requirements was

a fourth-degree offense. L. 1994, c. 133, § 2(a). In 2007, the Legislature

upgraded the penalty for failure to register pursuant to Megan’s Law from a

fourth-degree to a third-degree offense. L. 2007, c. 19, § 1 (codified at

N.J.S.A. 2C:7-2(a)(3)).

In Hester, we declared that the Federal and State Ex Post Facto Clauses

forbid subjecting defendants sentenced to CSL before enactment of the 2014

amendment to the enhanced punishment of a third-degree crime for a CSL

violation committed after passage of the amendment. 233 N.J. at 385-86. For

ex post facto purposes, we held that the CSL violations in Hester related back

to the conditions made part of the defendants’ sentences for their sex offenses

-- their original “completed crime[s].” Id. at 392. We determined that

retroactively increasing the punishment from a fourth-degree offense to a

third-degree offense violated the Ex Post Facto Clauses. Id. at 398.

Accordingly, the defendants could not be sentenced as third-degree offenders

for committing CSL violations under the conditions of their original sentences.

In 2016, both R.B and H.B. were charged not only with third-degree

failure to register as sex offenders for not registering with municipal police

departments within forty-eight hours of their release from county jails, but also

with third-degree CSL violations. No one disputes that, based on Hester, the

Ex Post Facto Clauses bar the imposition of a third-degree sentence for the

CSL violations. The Appellate Division held that the same result should be

reached for the Megan’s Law violations because “the ‘additional punishment’

attached to the registration requirements of Megan’s Law, which were

‘condition[s] of defendants’ sentences,’ the ‘“completed crime” necessarily

relate[d] back’” to the earlier predicate sex offenses to which they pled guilty,

quoting Hester, 233 N.J. at 392 (alterations in original). The Appellate

Division concluded that the 2007 amendment, by increasing the punishment

for a violation of a condition of their original sentences from a fourth-degree

to a third-degree crime, “materially altered defendant[s’] prior sentence[s] to

[their] disadvantage,” in violation of the Federal and State Ex Post Facto

Clauses. (quoting Timmendequas, 460 N.J. Super. at 354 (alterations in

original) (quoting, in turn, Hester, 233 N.J. at 398)).

The Appellate Division reached a sensible conclusion because of the

many similarities between CSL’s regulatory requirements and Megan’s Law’s

registration requirements.

CSL requires an offender to secure the approval of a parole officer

before moving into a residence or changing residence. N.J.A.C. 10A:71-

6.11(b)(2), (7) to (8). Megan’s Law requires an offender to annually register

with the local police department his present address and, within ten days

before moving to any new residence, any change of address. N.J.S.A. 2C:7-

2(d)(1).

CSL requires an offender to secure the approval of a parole officer

before accepting employment or changing employment. N.J.A.C. 10A:71-

6.11(b)(16) to (17). Megan’s Law requires an offender to notify the

appropriate law enforcement agency of any change in employment within five

days or about enrollment in an institution of higher education. N.J.S.A. 2C:7 -

2(d)(1).

Both the CSL requirements and the Megan’s Law registration

requirements are conditions imposed at the time of sentencing for a

defendant’s predicate sex offense. Both CSL and Megan’s Law mandate

lifetime compliance. Both CSL and Megan’s Law violations are punishable as

crimes, subjecting offenders to potential prison terms.

Yet, the majority finds that upgrading the penalty for a CSL violation

from a fourth-degree offense to a third-degree offense is barred by the Ex Post

Facto Clauses but that upgrading the penalty for a Megan’s Law registration

violation from a fourth-degree offense to a third-degree offense -- carrying a

potential prison term of three to five years -- passes constitutional muster. In

my view, there is no logical basis, for ex post facto purposes, to distinguish

between increased criminal penalties -- that is, penalties beyond those

permissible at the time of sentence -- imposed for violations of Megan’s Law

and CSL. If the Megan’s Law registration requirements were folded into CSL

or given the name CSL then, presumably, the Ex Post Facto Clauses would

protect against the enhanced punishments imposed here. The historical

safeguards provided by the Ex Post Facto Clauses surely cannot depend on the

name given to conditions imposed as part of a sentence.

The majority submits that “Megan’s Law registration requirements are

not rendered punitive merely because they are policed by penal means.” Ante

at ___ (slip op. at 23). But defendants do not challenge whether Megan’s Law

registration requirements themselves are punitive; rather, defendants argue that

increasing the penalty from a fourth-degree offense to a third-degree offense

for failing to comply is punitive.

When defendants were originally sentenced to lifetime compliance with

Megan’s Law registration requirements, failure to register was punishable as a

fourth-degree offense, but the 2007 amendment has now increased that penalty

to a third-degree offense. Such an increase therefore unquestionably imposes

additional punishment to defendants’ already completed crimes -- the crimes

that subjected them to Megan’s Law compliance in the first place.

To evaluate whether the retroactive application of a statute imposes

additional punishment in violation of the Ex Post Facto Clauses, a court must

assess “whether the Legislature intended ‘to impose punishment,’” and if it

does find that the Legislature possessed a punitive intent, the inquiry ends.

Riley v. State Parole Bd., 219 N.J. 270, 285 (2014) (quoting Smith v. Doe, 538

U.S. 84, 92 (2003)). Increasing a criminal penalty for an offense, as the

Legislature did in passing the 2007 amendment, demonstrates a purely punitive

intent. Indeed, the Legislature stated that the purpose of the amendment was

to “upgrade[] the penalty for failure to register as a sex offender under

‘Megan’s Law.’” S. Law & Pub. Safety & Veterans’ Affairs Comm. Statement

to S. 716 & 832 (Jan. 26, 2006); Assemb. Judiciary Comm. Statement to S.

716 & 832 (Oct. 23, 2006).

In disposing of the ex post facto challenge, the majority ultimately relies

heavily on Doe v. Poritz, 142 N.J. 1 (1995), asserting that Megan’s Law

registration is a remedial measure, not a punitive one. Although Poritz ruled

that compelling persons convicted of certain sex offenses to comply with

Megan’s Law registration requirements was a remedial measure, id. at 73, the

constitutional propriety of enforcing this remedial legislation through a

criminal penalty was not squarely addressed by the Court.

Rather, in assessing whether the law was punitive or remedial, the Court

evaluated the objective of the registration and notification requirements

themselves. See id. at 73-75. Poritz did not directly focus on whether the

Megan’s Law enforcement provision, which at the time made failure to register

a fourth-degree crime punishable by up to eighteen months in jail, was

punitive and violative of the Ex Post Facto Clauses. I agree with the Appellate

Division in Timmendequas that “while the Court in Poritz held the overall

purpose of Megan’s Law is remedial in nature, the method chosen to enforce

its registration requirements is not,” and that the Legislature in enacting the

2007 amendment intended to increase punishment, which compels an ex post

facto analysis. 460 N.J. Super. at 355. Additionally, as the Appellate Division

noted in Timmendequas,

many federal and state courts have concluded that

subsequent amendments to an otherwise constitutional

remedial registration scheme, which make obligations

more onerous than when the crime was committed or

when registration was initially imposed, may result in

ex post facto violations, even though the amendments

did not increase the direct penal consequence for non-

compliance.

[Id. at 356.]

If the Legislature increased the punishment for a registration violation to

a second- or first-degree crime, would this Court still call the scheme remedial

in nature? When considering the constitutional import of a statute, we should

call a thing by what it is, not by another name. As the Poritz Court stated,

“[l]abels, of course, do not ‘immunize [a law] from scrutiny under the Ex Post

Facto Clause.’” Poritz, 142 N.J. at 62 (second alteration in original) (quoting

Collins v. Youngblood, 497 U.S. 37, 46 (1990)). A remedial statute may not

remain remedial when enforced by increased criminal penalties.

Whether the original Megan’s Law registration enforcement scheme is

penal rather than remedial, however, is not the issue before us. We should not

retroactively aggravate the penalty for failing to register, a requirement

necessarily imposed as part of defendants’ sentences for their predicate sex

offenses, to a three-to-five-year prison term based on an arbitrary distinction

between CSL and Megan’s Law registration.

II.

In the end, I conclude, as did the Appellate Division in this case and in

Timmendequas, that the 2007 amendment increased the punishment for

defendants’ violation of a condition of their sentences -- the registration

requirement -- and therefore materially altered their sentences to their

disadvantage in violation of the prohibition on ex post facto laws. See

Timmendequas, 460 N.J. Super. at 356-57.

I do not see any basis to treat retroactively imposed increased

punishments for violations of CSL requirements and Megan’s Law registration

requirements differently for ex post facto purposes. I therefore respectfully

dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.