State v. Richard Perez (072624)

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 In an unpublished opinion, the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