State of New Jersey v. F.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1635-13T3

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION

Plaintiff-Respondent,

January 14, 2016

v.

APPELLATE DIVISION

F.W.,

Defendant-Appellant.

__________________________________

Submitted September 22, 2015 - Decided January 14, 2016

Before Judges Reisner, Leone and Whipple.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 12-09-02209.

Joseph E. Krakora, Public Defender, attorney

for appellant (Susan Remis Silver, Assistant

Deputy Public Defender, of counsel and on

the brief).

John J. Hoffman, Acting Attorney General,

attorney for respondent (Jeffrey P. Mongiello,

Deputy Attorney General, of counsel and on

the brief).

The opinion of the court was delivered by

REISNER, P.J.A.D.

Defendant appeals from his conviction, after a bench trial,

for the fourth-degree offense of violating the conditions of his

special sentence of community supervision for life (CSL) by

failing to report to his parole officer, N.J.S.A. 2C:43-6.4(d),

and for the third-degree offenses of violating two provisions of

the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.94

(failure to comply with any SOMA monitoring requirement) and

N.J.S.A. 30:4-123.95 (interfering with his SOMA-required

electronic monitoring device). Defendant also challenges the

sentence imposed, consisting of five years in prison for the

SOMA convictions, concurrent to eighteen months in prison for

the CSL conviction.1 He raises the following issues on his

appeal:

I. [F.W.'S] DUE PROCESS RIGHTS WERE VIOLATED

WHEN THE STATE PLACED HIM ON CONTINUOUS GPS

MONITORING WITHOUT PROVIDING ANY BASIS FOR

THE SURVEILLANCE AND WITHOUT PROVIDING ANY

HEARING WHERE HE COULD CHALLENGE THE GPS

MONITORING THROUGH CROSS-EXAMINATION AND

PRESENTATION OF WITNESSES WITH THE

ASSISTANCE OF COUNSEL.

II. THE RETROACTIVE APPLICATION OF THE SEX

OFFENDER MONITORING ACT TO THE DEFENDANT

MORE THAN TWO YEARS AFTER HIS RELEASE FROM

PRISON ON COMMUNITY SUPERVISION FOR LIFE

VIOLATES HIS RIGHTS UNDER THE EX POST FACTO

CLAUSES OF THE UNITED STATES CONSTITUTION

AND NEW JERSEY CONSTITUTION.

III. THE TRIAL COURT ERRED WHEN IT

CONSIDERED AS AGGRAVATING FACTORS THE

1

When defendant was convicted, N.J.S.A. 2C:43-6.4(d) provided

that a CSL violation was a fourth-degree crime. In 2014, the

Legislature amended N.J.S.A. 2C:43-6.4(d) to provide that a CSL

violation is punishable as a third-degree crime. See L. 2013,

c. 214 (approved Jan. 17, 2014).

2 A-1635-13T3

DEFENDANT'S ALLEGED LACK OF REMORSE AND

FAILURE TO ACCEPT RESPONSIBILITY, AND WHEN

THE COURT FAILED TO PROPERLY WEIGH

AGGRAVATING AND MITIGATING FACTORS AND

IMPOSED AN EXCESSIVE SENTENCE.

We affirm defendant's conviction for violating the terms of

his CSL, N.J.S.A. 2C:43-6.4(d). His appeal from the eighteen-

month prison term imposed for that conviction is now moot

because he has served that entire term.2 On the other hand,

consistent with the Supreme Court's recent opinions in Riley v.

New Jersey State Parole Board, 219 N.J. 270 (2014), and State v.

Perez, 220 N.J. 423 (2015), we hold that prosecuting and

punishing defendant for third-degree crimes, created by SOMA

after he committed his predicate offense, violated the Ex Post

Facto Clause. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art.

IV; § 7, ¶ 3; see State v. Fortin, 178 N.J. 540, 608 n.8 (2004).

Defendant's SOMA-related convictions, and the five-year prison

term imposed for those convictions, must therefore be reversed.

In reaching our decision, we do not hold that defendant and

other sex offenders whose predicate offenses predated SOMA

cannot be placed on Global Positioning Satellite (GPS)

monitoring. The CSL statute, when enacted in 1994, authorized

2

Defendant was sentenced on August 16, 2013, and received 365

days of jail credit. His brief indicates that he is no longer

confined, and clearly his CSL sentence has been served. We need

not address his SOMA-based sentencing argument because we are

reversing his SOMA conviction.

3 A-1635-13T3

the Parole Board to subject CSL offenders to "conditions

appropriate to protect the public." See L. 1994, c. 130, § 2

(then codified as N.J.S.A. 2C:43-6.4(b)). We perceive no reason

why that could not include GPS monitoring of a CSL offender in

appropriate circumstances, regardless of the date on which he

committed the predicate offenses. For example, we note that the

Board has adopted regulations governing electronic monitoring of

offenders subject to CSL and parole supervision for life (PSL),

which would permit monitoring as a result of a violation of CSL

or PSL. See N.J.A.C. 10A:72-10.1(a)(3); see also N.J.A.C.

10A:72-2.4(b)(3)(ii). The regulations provide an offender the

due process right to be heard before monitoring is imposed, with

a review after 90 days, and set a maximum time limit of 180 days

for the monitoring, after which it will be terminated if no

longer warranted. See N.J.A.C. 10A:72-10.1 to -10.9; see also

N.J.A.C. 10A:72-11.1 to -11.6.3 Nothing in this opinion would

preclude application of those regulations to defendant.

3

The CSL regulations were first adopted in 2011, in response to

the Court's decision in Jamgochian v. New Jersey State Parole

Board, 196 N.J. 222, 250 (2008), holding that a CSL offender was

entitled to due process before imposition of a curfew as a

special condition of CSL. See 43 N.J.R. 1408(a). The Board

adopted similar regulations governing GPS monitoring under SOMA

in 2012, apparently in response to the Appellate Division's

decision in Riley v. New Jersey State Parole Board, 423 N.J.

Super. 224 (App. Div. 2011), aff'd, 219 N.J. 270 (2014). See 44

N.J.R. 2098(a) (Aug. 20, 2012).

4 A-1635-13T3

I

In 1999, a jury convicted defendant of fourth-degree

lewdness and third-degree endangering the welfare of a child

(the predicate offenses), crimes he committed in 1997. On April

4, 2000, he was sentenced to five years of probation,

conditioned on 562 days in the county jail which he had already

served. As part of his sentence, he was also required "to

comply with . . . Megan's Law including community supervision

for life." Defendant violated the terms of his probation and

was re-sentenced to prison. He was released on parole in 2006

and, after he served the maximum time on parole, he was placed

on CSL supervision.

According to a report later issued by the Parole Board, a

few months after defendant was placed on CSL, he was arrested

for a CSL violation for having contact with minors and failing

to attend required counseling. He was arrested for similar CSL

violations in April 2007. He was arrested a third time in

December 2007 for failing to notify his parole officer of a

change in his residence. According to the pre-sentence report

issued in connection with the current convictions, defendant was

criminally prosecuted three times for violating N.J.S.A. 2C:43-

6.4(d). At his trial leading to the current appeal, defendant

admitted the previous violations, although he claimed he did not

5 A-1635-13T3

commit them "intentionally." He confirmed that the three prior

prosecutions were resolved by "plea offer."4

After defendant's December 2007 CSL violation, his Parole

Officer recommended that he "be enrolled in the Sex Offender GPS

Monitoring Program." The Chairman of the State Parole Board

(Parole Board Chairman) adopted that recommendation on June 6,

2008. See N.J.S.A. 30:4-123.91(a). On June 23, 2008, defendant

signed a notice advising him that he was being assigned to the

GPS monitoring program "[p]ursuant to [SOMA], which was enacted

on August 6, 2007." The notice did not specify any time limit

on defendant's obligation to wear a GPS tracking device twenty-

four hours a day. Defendant was not given notice of a right to

any due process, nor was he given an opportunity to be heard,

before this new and onerous lifetime condition was imposed. Nor

was he advised of a right to appeal the decision to this court. 5

The notice warned defendant that a violation of SOMA was a

third-degree crime punishable by up to five years in prison.

4

Neither party's appendix provides us with those judgments of

conviction.

5

Because the GPS condition was imposed pursuant to SOMA rather

than as a special condition of defendant's CSL, the Board also

did not follow the then-existing CSL regulations, which required

review and approval by a Board Panel prior to the imposition of

any special condition of CSL supervision. See N.J.A.C. 10A:71-

6.11(k).

6 A-1635-13T3

Defendant wore the GPS tracker until 2012, when he removed

the device and ceased reporting to his assigned parole officer.

On that basis, he was prosecuted and convicted for a CSL

violation (failing to report to the parole officer), and two

SOMA violations (failure to comply with a SOMA monitoring

requirement and interfering with the GPS device while subject to

SOMA).

II

Megan's Law was enacted in 1994, as a complex of

legislation designed to protect the public from sex offenders.

See Perez, supra, 220 N.J. at 436-37. Since the 1994 enactment,

the Legislature has imposed additional requirements and

restrictions on convicted sex offenders. A brief review of the

history provides some helpful background.

We begin by considering the CSL statute, N.J.S.A. 2C:43-

6.4, as it existed when defendant committed his predicate

offenses. The statute creating community supervision for life

was enacted in 1994, L. 1994, c. 130, § 2, as part of Megan's

Law, and was not amended until 2003. Perez, supra, 220 N.J. at

436-37. In Jamgochian, supra, the Court summarized the 1994

version of the statute as follows:

Community supervision for life was "designed

to protect the public from recidivism by

defendants convicted of serious sexual

offenses."

7 A-1635-13T3

In 1998, N.J.S.A. 2C:43-6.4(b) provided

that "[p]ersons serving a special sentence

of community supervision shall be supervised

as if on parole and subject to conditions

appropriate to protect the public and foster

rehabilitation." (emphasis added). Those

offenders serving a "special sentence" are

under the supervision of the State Parole

Board's Division of Parole. N.J.A.C. 10A:71-

6.11(b). One of the twenty-one general

conditions applicable to community-

supervised-for-life offenders is

"[c]ompl[iance] with any curfew established

by the assigned parole officer." N.J.A.C.

10A:71-6.11(b)(17). In addition to the

general conditions, supervised offenders are

required to abide by "any special

conditions established by the appropriate

[Parole] Board panel." Ibid. A violation

of a "condition of a special sentence" is a

fourth-degree crime carrying a presumption

of imprisonment. N.J.S.A. 2C:43-6.4(d).

[Jamgochian, supra, 196 N.J. at 237-38

(additional citations omitted).]

In addition to the curfew, offenders subject to CSL "face a

variety of conditions beyond those imposed on non-sex-offender

parolees." Perez, supra, 220 N.J. at 437. For example, as set

forth in the Parole Board's regulations, N.J.A.C. 10A:71-6.11,

those subject to CSL must obtain the Board's approval of their

residence and any change of residence; must obtain approval of

employment and notify the Board of any change in employment

status; may be subjected to annual polygraph examinations; and

are restricted in their access to and use of the internet.

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

8 A-1635-13T3

In 2003, the Legislature adopted the parole supervision for

life statute, which specifically defined a convicted sex

offender's post-sentence supervision as "parole" instead of "as

if on parole." See N.J.S.A. 2C:43-6.4(b), as amended by L.

2003, c. 267, § 1. Most recently, the Court has held that PSL

and CSL "are distinct special post-sentence supervisory schemes

for certain sex offenders," and they cannot be treated as

interchangeable, notwithstanding the Legislature's

characterization of the PSL statute as a "clarification" of the

CSL statute. Perez, supra, 220 N.J. at 428, 442. In Perez, the

Court explained the difference between CSL and PSL:

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, 845 A.2d 687 (App. Div.

2004), appeal dismissed per stipulation, 187

N.J. 487, 901 A.2d 951 (2006). . . . 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). . . . [T]he almost-universal

9 A-1635-13T3

practice . . . is to revoke a [PSL]

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). 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. . . .

By contrast, . . . 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.

[Id. at 441-42 (footnote omitted).]

Because PSL imposes greater punishment on an offender than

CSL does, an offender sentenced to CSL cannot later be subjected

to the harsher special sentencing provisions of the PSL statute.

Perez, supra, 220 N.J. at 442.

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

10 A-1635-13T3

and state prohibition of ex post facto

legislation.

[Ibid.]

Likewise, because CSL is a form of punishment, it cannot be

imposed as a new requirement on an offender who has successfully

served his entire original sentence. See State v. Schubert, 212

N.J. 295, 312-13 (2012).

In 2007, the Legislature enacted the Sex Offender

Monitoring Act, N.J.S.A. 30:4-123.89 to -123.95, which in some

cases requires and in other cases authorizes the Parole Board

Chairman to impose GPS monitoring on certain convicted sex

offenders. Notably, SOMA either requires or permits the

imposition of GPS monitoring based on the type of sexual offense

an individual committed in the past, his Megan's Law tier

designation based on that offense, and his status as a CSL or

PSL parolee. N.J.S.A. 30:4-123.91(a) (defining "monitored

subject").

On its face, the statute appears to require GPS monitoring

of all tier three sex offenders. See N.J.S.A. 30:4-

123.91(a)(1). In addition, the statute gives the Parole Board

Chairman discretion to require GPS monitoring of any person "who

the chairman deems appropriate for continuous [GPS] monitoring"

and who: has been discharged from commitment as a sexually

violent predator, has been sentenced to CSL or PSL, or has been

11 A-1635-13T3

convicted of a listed sexual offense against a victim under age

eighteen or over age sixty. N.J.S.A. 30:4-123.91(a)(2). In

exercising discretion, the Parole Board Chairman is to consider

static or unchangeable factors, including "the risk to the

public posed by the subject, based on relevant risk factors such

as the seriousness of the offense, the age of the victim or

victims, [and] the degree of force and contact." N.J.S.A. 30:4-

123.91(b).6 That list does not include a finding that the

individual has committed a new offense or has violated the

conditions of his CSL or PSL.

In addition to the static risk factors, which reflect the

offense for which the individual was convicted, the chairman may

consider "any other factors [he or she] deems appropriate."

N.J.S.A. 30:4-123.91(b); N.J.A.C. 10A:72-11.1(b). Neither the

statute nor the implementing regulations define those "other

factors." Moreover, at least at the time GPS monitoring was

imposed on defendant, once the Parole Board Chairman decided to

impose GPS monitoring on an individual, it became a lifetime

requirement. See Riley, supra, 219 N.J. at 295.

6

The statute also states that it does not preclude a judge from

sentencing a convicted sex offender to GPS "or other electronic

monitoring . . . as a condition or requirement of supervision"

in connection with sentencing a defendant to CSL or PSL pursuant

to N.J.S.A. 2C:43-6.4. See N.J.S.A. 30:4-123.91(c).

12 A-1635-13T3

In Riley, the Court held that the Ex Post Facto Clause

precluded SOMA from being applied retroactively to an individual

who committed his sexual offense before SOMA was adopted, had

served his entire sentence before that date, was not on any form

of parole when SOMA was adopted, but was nonetheless notified by

the Parole Board in 2009 that pursuant to SOMA he would be

subject to GPS monitoring for the rest of his life. The Court

noted the limitations of the question it was considering in

Riley:

Initially, it is important to note the

scenarios not implicated here. This is not

a case about a defendant who committed a

crime after the passage of SOMA or about a

defendant who was subjected to the

additional condition of GPS monitoring for

the duration of his probation or parole. The

only question we address is whether a

defendant who committed a past offense and

completed his sentence before enactment of

SOMA can be subjected to the Parole Board's

regime of GPS monitoring.

[Id. at 291 (emphasis added).]

In rejecting the State's argument that Riley's tier

classification was a new event that warranted the imposition of

GPS monitoring, the Court reasoned that the tier classification

itself was a product of Riley's past conduct:

Riley's Tier 3 designation was based on his

1986 conviction and other prior sexual

offense convictions. At the Megan's Law

hearing, the court made no independent

assessment of Riley's current dangerousness

13 A-1635-13T3

unrelated to his prior convictions. The

predicate events responsible for Riley's

current regime of GPS monitoring are his

1986 sexual offense and earlier offenses,

and therefore the question is whether SOMA

can retroactively apply to completed conduct

without offending the Constitution.

[Id. at 292.]

In determining that SOMA imposed punishment, despite its

claimed remedial purpose, the Court noted that GPS monitoring

was in some respects even more "onerous" than lifetime parole

supervision:

SOMA looks like parole, monitors like

parole, restricts like parole, serves the

general purpose of parole, and is run by the

Parole Board. Calling this scheme by another

name does not alter its essential nature.

SOMA does not share the exact conditions of

parole supervision for life. Cf. N.J.A.C.

10A:71-6.12(d) (defining conditions of

parole supervision for life). In some ways,

SOMA is both more and less onerous than

parole supervision for life. Nevertheless,

SOMA plays a role sufficiently similar to

allow the comparison. Moreover, Riley cannot

do anything to alter his Tier 3 (high risk)

designation, which is based on his prior

convictions. Unlike the Sexually Violent

Predator Act, which permits for yearly

review to determine whether the committee

continues to pose a danger to the public and

which allows for his release if he does not,

N.J.S.A. 30:4-27.35 to -27.36, SOMA ensures

that Riley's future is static—he is

condemned to wear the electronic monitoring

device for the rest of his life.

[Id. at 294-95.]

14 A-1635-13T3

Ultimately, the Court determined that the full panoply of

restrictions imposed by SOMA, including lifetime GPS monitoring,

was so punitive that its imposition on Riley years after he

committed his crime and completed his sentence violated ex post

facto principles.

In the end, we conclude that SOMA's adverse

effects are "so punitive . . . as to negate

the State's intent to deem it only civil and

regulatory." The retroactive application of

SOMA to George Riley twenty-three years

after he committed the sexual offense at

issue and after he fully completed his

criminal sentence violates the Ex Post Facto

Clauses of the United States and New Jersey

Constitutions.

[Id. at 297 (citations omitted).]

On the other hand, earlier in its discussion, the Court

indicated: "We do not suggest that GPS monitoring may not be

added as a condition of parole supervision that is ongoing — that

is, while the offender is still serving his sentence." Id. at

290 (emphasis added).7

Neither Perez nor Riley directly answers the question posed

by this case, namely whether a person in defendant's situation,

who committed his crime a decade before SOMA was enacted but who

7

Had the Court not added that sentence, Riley might have drawn

in question Parole Board regulations which authorize the Board

to impose limited electronic monitoring, on a case-by-case

basis, on any parolee who violates parole. See N.J.A.C. 10A:72-

2.4(b)(3)(ii).

15 A-1635-13T3

was on lifetime CSL at the time SOMA was enacted, may be

subjected to SOMA, including prosecution for SOMA's newly

created third-degree crimes. To address the question, we first

consider what the Ex Post Facto Clause prohibits:

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." The Ex Post Facto Clause is

"aimed at laws that 'retroactively alter the

definition of crimes or increase the

punishment for criminal acts.'" 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 must

disadvantage the offender affected by it.'"

"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.'" New Jersey's ex post

facto jurisprudence follows the federal

jurisprudence.

[Perez, supra, 220 N.J. at 438-39 (emphasis

added) (citations omitted).]

In Riley, the Court specifically recognized that SOMA was a

"penal rather than civil law." Riley, supra, 219 N.J. at 275.

Therefore, its application can implicate ex post facto

considerations. The Court also recognized the harshness of

imposing GPS monitoring as a lifetime requirement, with no

16 A-1635-13T3

possibility of relief, and acknowledged that in some respects

SOMA's application is even more onerous than lifetime parole.

Id. at 295. That was the situation when the Board imposed GPS

monitoring on defendant and on Riley.8

Further, although Perez did not address SOMA, the Court

found that the ex post facto analysis "turn[ed] on whether the

2003 [PSL] amendment [made] more burdensome the punishment of a

crime after its commission." Perez, 220 N.J. at 440. The Court

concluded that, by eliminating "any prospect for parole" for

certain crimes committed by a person on PSL, the Legislature had

enhanced "the penal consequences for a person placed on CSL

status before" enactment of the PSL statute. Id. at 442. By

enhancing "the punitive consequences" of the CSL statute to the

defendant's detriment, application of the PSL law to the

defendant violated the Ex Post Facto Clause. Ibid.

In this case, we conclude that prosecuting defendant for

the third-degree crimes created by SOMA violated the Ex Post

Facto Clause. The SOMA offenses did not exist when defendant

committed his predicate offenses in 1997, and at that time,

8

By 2013, when defendant's trial took place, the Board had

regulations enabling GPS-monitored offenders to be released from

that requirement after a periodic Board review. N.J.A.C. 10A:72-

11.4. But those regulations did not exist in 2008, when

defendant was ordered into the SOMA GPS program, and nothing in

this record suggests that the Board imposed anything less than

lifetime GPS monitoring on this defendant.

17 A-1635-13T3

violating CSL was a fourth-degree crime. It may be argued that

prosecution under SOMA was not retrospective for ex post facto

purposes, because SOMA was enacted before defendant committed

his December 2007 violation of CSL. However, GPS monitoring

under SOMA was imposed on petitioner because he "ha[d] been

sentenced to a term of community or parole supervision for life

pursuant to [N.J.S.A. 2C:43-6.4]." N.J.S.A. 30:4-

123.91(a)(2)(b); see N.J.S.A. 30:4-123.90(e) (stating that GPS

tracking should be used for offenders who "received or are

serving a special sentence of community or parole supervision

for life"). It was thus imposed as a further element of

defendant's post-release supervision during his CSL sentence for

his predicate offenses. As discussed below, the Legislature

could not retroactively increase the punishment for a violation

of defendant's post-release supervision.

For purposes of ex post facto analysis of penalties for

violating the terms of post-release supervision, "postrevocation

sanctions" are treated "as part of the penalty for the initial

offense." Johnson v. United States, 529 U.S. 694, 700, 120 S.

Ct. 1795, 1800, 146 L. Ed. 2d 727, 736 (2000). See Riley,

supra, 219 N.J. at 292 (citing Johnson, supra, 529 U.S. at 701,

120 S. Ct. at 1801, 146 L. Ed. 2d at 736). In deciding whether

such a sanction offends ex post facto principles "[w]e . . .

18 A-1635-13T3

attribute postrevocation penalties to the original conviction."

Johnson, supra, 529 U.S. at 701, 120 S. Ct. at 1801, 146 L. Ed.

2d at 736. Thus, "[p]enalties for violation of the terms of

supervised release, including the penalty of additional

supervised release, are attributed to the original conviction

rather than to the violation." Commonwealth v. Cory, 911 N.E.

2d 187, 192 (Mass. 2009). "Since postrevocation penalties

relate to the original offense, to sentence [defendant] to a

further [punishment] would be to apply this section

retroactively" and would "raise the remaining ex post facto

question [of] whether that application makes him worse off."

Johnson, supra, 529 U.S. at 701, 120 S. Ct. at 1801, 146 L. Ed.

2d at 736.

In this case, application of those principles leads us to

conclude that the Ex Post Facto Clause barred defendant's

prosecution for a third-degree crime. Being prosecuted for a

third-degree crime rather than a fourth-degree crime clearly

made defendant "worse off." Ibid. Whether the increase in the

degree and sentencing range of the penalties for violating post-

release supervision for his predicate offenses was effected by

amending the penalty provision of the CSL statute, or by

enacting a new statute like SOMA, the increased penalties for

violating CSL, like those for violating any other form of

19 A-1635-13T3

supervised release, are "attribute[d] . . . to the original

conviction." Johnson, supra, 529 U.S. at 701, 120 S. Ct. at

1801, 146 L. Ed. 2d at 736. The Legislature could not increase

the penalty for violating defendant's supervised release and

apply it retroactively to him. Consequently, even if GPS

monitoring was imposed as a sanction for violating CSL,

defendant could not be prosecuted or sentenced under the third-

degree crime provisions of SOMA. See Perez, supra, 220 N.J. at

442.

To be clear, as the Court implied in Riley, our decision

does not mean that a CSL offender in defendant's situation can

never be subjected to GPS monitoring. As the Court appeared to

suggest in Riley, being subject to GPS monitoring is not

synonymous with being subject to SOMA. The CSL statute itself

gives the Parole Board authority to impose special conditions of

supervision on a CSL offender, as needed for the protection of

the public. N.J.S.A. 2C:43-6.4(b) (1994); Jamgochian, supra,

196 N.J. at 238. The fact that a CSL offender cannot be

prosecuted using the later-created third-degree SOMA offenses

does not preclude the Board from imposing some form of

electronic monitoring on an offender who has violated the

conditions of his ongoing CSL, regardless of when he committed

the underlying offense for which the CSL sentence was imposed.

20 A-1635-13T3

As previously noted, several years after the Parole Board

imposed lifetime GPS monitoring on defendant under SOMA, the

Board adopted regulations governing the measured and temporary

imposition of electronic monitoring on individuals who were on

CSL or PSL. N.J.A.C. 10A:72-10.1 to -10.9. Those regulations

provide due process procedures by which those persons may

challenge the imposition of such monitoring, and limit the

monitoring to 180 days, with a review after the first 90 days.

N.J.A.C. 10A:72-10.2. The regulations appear to be authorized

under the CSL statute, N.J.S.A. 2C:43-6.4(b), and nothing in our

opinion would preclude the Board from applying those regulations

to defendant now that he has been released from prison. "[N]ot

every change in parole regulation is of sufficient moment to

transgress the constitutional [ex post facto] prohibition," only

those which increase the punishment. Loftwich v. Fauver, 284

N.J. Super. 530, 536 (App. Div. 1995); see Trantino v. N.J.

State Parole Bd., 331 N.J. Super. 577, 610 (App. Div. 2000),

aff'd as modified, 166 N.J. 113 (2001).

In light of our disposition of this appeal, we need not

decide defendant's alternate argument, based on Riley and Perez,

that subjecting him to lifetime GPS monitoring under SOMA

increased the punitive burden of his CSL sentence and violated

the Ex Post Facto Clause. The Court has recognized the physical

21 A-1635-13T3

discomfort and stigma of wearing GPS equipment, and the

burdensome impact of lifetime GPS monitoring. Riley, supra, 219

N.J. at 294-96. Moreover, the Parole Board Chairman's decision

did not explain how defendant's CSL violations justified placing

him on lifetime GPS monitoring, and such a requirement,

untethered to a rational justification related to the purpose of

CSL, might have ex post facto implications. See Perez, supra,

220 N.J. at 442.

However, we decline to address the issue further for two

reasons. First, we have already reversed defendant's SOMA

conviction on other grounds. Second, we anticipate that if

defendant is subjected to GPS monitoring in the future, the

Board will abide by its new regulations, which provide for both

time limits on the monitoring and due process in its imposition.

Thus, defendant will have a well-defined means of

administratively challenging any future monitoring that may be

imposed, and an appeal from that process would come to this

court on a more complete record than was presented to us here.

To summarize, defendant was properly convicted of violating

the terms of his CSL, and he was sentenced to eighteen months in

prison, which at that time was the maximum term for a CSL

violation. However, because defendant could not lawfully be

prosecuted for the third-degree SOMA offenses enacted after he

22 A-1635-13T3

committed his predicate crimes, his conviction for violating

SOMA must be reversed and the five-year sentence vacated.9

Affirmed in part, reversed in part.

9

In light of our resolution of the ex post facto issue, we also

need not address defendant's contention that, regardless of ex

post facto considerations, he could not be prosecuted under SOMA

for violating his GPS monitoring requirements, because the

monitoring was imposed without a due process hearing.

23 A-1635-13T3