# State of New Jersey v. Ernest Jones

> New Jersey Superior Court Appellate Division · January 19, 2016 · 443 N.J. Super. 515

URL: https://www.frixlaw.com/law-library/cases/3170335

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** January 19, 2016
- **Citations:** 443 N.J. Super. 515; 129 A.3d 383
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5383-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

January 19, 2016
v.
APPELLATE DIVISION
ERNEST JONES, a/k/a EARNEST
JONES, ERNEST EVERET JONES,
and ERNEST EVERETT JONES,

Defendant-Appellant.
______________________________

Argued December 7, 2015 - Decided January 19, 2016

Before Judges Messano, Carroll, and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Docket No. 13-06-00635.

John Douard, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Douard, of counsel and on the
briefs).

Jeffrey P. Mongiello, Deputy Attorney
General, argued the cause for respondent
(John J. Hoffman, Acting Attorney General,
attorney; Mr. Mongiello, of counsel and on
the brief).

The opinion of the court was delivered by

CARROLL, J.A.D.
In Riley v. New Jersey State Parole Board, 219 N.J. 270

(2014), a divided Supreme Court determined that retroactive

application of the monitoring and supervision requirements of

the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to

-123.95, to a convicted sex offender who had completely served

his sentence and was released under no form of parole

supervision, violated the Ex Post Facto Clauses of the United

States and New Jersey Constitutions. Left unanswered in Riley

was whether those ex post facto provisions similarly apply to a

defendant who was placed on either community supervision for

life (CSL) or parole supervision for life (PSL) prior to the

enactment of SOMA, and who was later subjected to the additional

condition of Global Position Satellite (GPS) monitoring for the

duration of his parole supervision. Id. at 291. We address

that unresolved issue in the present appeal.

I.

In September 1999, defendant Ernest Jones was convicted of

second-degree sexual assault, N.J.S.A. 2C:14-2b. He was

sentenced to a five-year term of imprisonment in February 2000.

Additionally, "Megan's Law"1 and CSL applied to defendant's

sentence.

1
"Megan's Law", L. 1994, c. 127 to 134, established a system of
registration and community notification for certain sex
(continued)

2 A-5383-13T1
Defendant was released from prison in December 2002.

Following his release, defendant was convicted of violating the

conditions of his CSL eight times prior to the conviction that

is the subject of the present appeal. On August 14, 2012, while

defendant was serving a one-year prison term for his eighth CSL

conviction, the New Jersey State Parole Board served him with

"Notice of Imposition of Special Condition of Global Positioning

System Monitoring (G.P.S.) Participation." The notice stated

that a determination had been made to refer defendant for

participation in the GPS program based on the following:

Since beginning CSL supervision on 12-15-02
[defendant has] been charged nine times with
violating the conditions of supervision. Of
those nine [defendant was] convicted eight
times with the ninth being merged with the
eighth. The violations on those complaints
resulted from [defendant] not reporting, not
participating in random drug and alcohol
screening, not residing at an approved

(continued)
offenders, and set forth various sentencing and community
supervision requirements pertaining to such offenders. N.J.S.A.
2C:43-6.4 was also adopted as part of Megan's Law, and provided
that a judge imposing sentence on a person convicted of certain
designated sexual offenses "shall include" a special sentence of
community supervision for life. See L. 1994, c. 130. A 2003
amendment replaced all references to "community supervision for
life" with "parole supervision for life." See State v. Perez,
220 N.J. 423, 429 (2015) (citing L. 2003, c. 267, § 1, eff. Jan.
14, 2004). Because defendant committed this crime before these
revisions were enacted, he remains under the former designation,
community supervision for life. N.J.A.C. 10A:71-6.11(a).

3 A-5383-13T1
residence, admission of alcohol and CDS use
and [noncompliance] with counseling.

The notice informed defendant that he had the right to

contest the referral and to submit a written statement

explaining his reasons for contesting it. It further indicated

that if defendant chose to contest the referral, the matter

would then be reviewed by the Director of the Division of Parole

and the Chairman of the State Parole Board. Defendant signed

the notice, and marked the box next to the statement "I contest

the allegation or the basis that supports the rationale for the

referral to the G.P.S. program." As the basis for his protest,

defendant submitted a one-line written statement explaining

"[b]ecause [] the [c]ourts didn't refer[] me to be on this

program."

On August 22, 2012, the Chairman of the Parole Board

adopted the referral. In its final decision, the Board noted

defendant's eight prior convictions for CSL violations and

determined that "GPS offers [defendant] the best chance . . . to

not re-offend while optimizing public safety." The Board

elaborated that:

During his time under CSL supervision,
[defendant] has repeatedly absconded from
supervision. His other violations of CSL
conditions include failure to report as
instructed, failure to reside at an approved
address, residing with minors without
approval, failure to refrain from alcohol

4 A-5383-13T1
use, failure to participate in an outpatient
alcohol counseling program, failure to
participate in sex offender counseling and
failure to participate in alcohol and drug
screening. [Defendant's] adjustment to
community supervision has been poor, and he
has not made any progress toward a
successful reentry back into the community.

[Defendant] is a flight risk at all
times while in the community, and should he
abscond again from supervision, the Division
of Parole would be unaware of his
whereabouts and activities, which may
include contact with minors and alcohol use,
thereby making him a threat to public
safety. Therefore, GPS monitoring is being
recommended as a way to deter [defendant]
from absconding from supervision, to deter
him from frequenting areas where minors
mainly or exclusively congregate, to help
ensure that [defendant] is residing full-
time at his approved residence and not at
locations unknown to and unapproved by the
Division of Parole and to assist the
Division of Parole to more effectively
supervise [defendant] in the community.

Defendant did not appeal the final agency decision.

Rather, immediately prior to his release, defendant signed a

notice of conditions for the GPS monitoring program. The

November 1, 2012 notice informed defendant that:

Pursuant to the "Sex Offender Monitoring
Act," P.L. 2005 c. 189, which was enacted on
August 6, 2007, you shall be monitored under
the . . . GPS Monitoring Program. The GPS
Monitoring Program requires that your
physical location be monitored 24 hours a
day/7 days a week. The Division of Parole
of the State Parole Board administers the
GPS Monitoring Program. You shall adhere to
the conditions cited below. Your failure to

5 A-5383-13T1
comply with any of the conditions shall
constitute a crime of the third degree and
is punishable by up to five (5) years in
prison and/or a fine of $15,000.

The notice went on to set forth a detailed list of eleven

conditions that defendant was required to abide by while on the

GPS program.

On November 17, 2012, defendant purposely removed his

tracking device. He then remained at large until he was

arrested on July 29, 2013. Consequently, he was charged in

Gloucester County Indictment No. 13-06-00635 with fourth-degree

violation of CSL, N.J.S.A. 2C:43-6.4d, by failing to comply with

the GPS monitoring system.

At trial, the parties stipulated that

for all relevant dates in this matter, [CSL]
had been imposed upon defendant as a
condition of a sentence, and on November
1[], 2012, as part of [CSL], [] defendant
was subject to the GPS Monitoring program.
[] Defendant knew he was subject to the
conditions of both [CSL] and the GPS
Monitoring program.

Following the two-day trial, at which defendant testified, the

jury convicted him of the CSL violation. On June 20, 2014,

defendant was sentenced to an eighteen-month prison term, with a

nine-month period of parole ineligibility.

6 A-5383-13T1
In this appeal, defendant does not challenge the

sufficiency of the evidence supporting his conviction. Rather,

he advances two issues for our consideration:

POINT I

THE RETROACTIVE APPLICATION OF THE SEX
OFFENDER MONITORING ACT TO MR. JONES MORE
THAN TEN 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 (NOT RAISED BELOW)

POINT II

MR. JONES'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
ASSISTANCE OF COUNSEL

II.

We begin by reviewing the statutory framework that guides

our analysis. "[CSL] has its statutory source in N.J.S.A.

2C:43-6.4, the Violent Predator Incapacitation Act. The statute

is one component of a series of laws that are referred to

generally as Megan's Law." State v. Schubert, 212 N.J. 295, 305

(2012). Unlike the registration and notification requirements

embodied in Megan's Law, which are deemed to be remedial and not

punitive, Doe v. Poritz, 142 N.J. 1 (1995), the CSL statute is

7 A-5383-13T1
"punitive rather than remedial at its core." Schubert, supra,

212 N.J. at 308.

At the time of defendant's 2000 sentence that subjected him

to CSL, N.J.S.A. 2C:43-6.4 provided in pertinent part:

(a) Notwithstanding any provision of law
to the contrary, a court imposing sentence
on a person who has been convicted of . . .
sexual assault . . . shall include, in
addition to any sentence authorized by this
Code, a special sentence of community
supervision for life.

(b) . . . Persons 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.

. . . .

(d) A person who violates a condition of a
special sentence of community supervision
without good cause is guilty of a crime of
the fourth degree.

[Violent Predator Incapacitation Act of
1994, L. 1994, c. 130, § 2, eff. Oct. 31,
1994.]

CSL is "designed to protect the public from recidivism by

defendants convicted of serious sexual offenses." Jamgochian v.

N.J. State Parole Bd., 196 N.J. 222, 237-38 (2008) (quoting

Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181 (App.

Div.), certif. granted, 182 N.J. 140 (2004)). "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-

8 A-5383-13T1
offender parolees." Perez, supra, 220 N.J. at 437. N.J.A.C.

10A:71-6.11 sets forth the general conditions that attach to sex

offenders subject to CSL. These include approval of their

residence and 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. They are also

subject to random drug and alcohol testing, N.J.A.C. 10A:71-

6.11(b)13; 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 the use of a computer and the internet,

N.J.A.C. 10A:71-6.11(b)22. See Perez, supra, 220 N.J. at 437;

Schubert, supra, 212 N.J. at 306.

"In addition to those general conditions, special

conditions may be imposed to meet the individual's particular

situation." Schubert, supra, 212 N.J. at 306. In such instances,

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

Additional special conditions may be imposed
by the District Parole Supervisor, an
Assistant District Parole Supervisor or the
designated representative of the District
Parole Supervisor when it is the opinion
that such conditions would reduce the
likelihood of recurrence of criminal
behavior. The offender and the Board shall
be given written notice upon the imposition
of such conditions.

Notably, the regulations specifically authorize the imposition

of a special condition of electronic monitoring for those

9 A-5383-13T1
offenders serving a special sentence of community or parole

supervision for life. N.J.A.C. 10A:72-10.1(a)3-(b).2

SOMA was enacted effective August 6, 2007, and governs the

continued monitoring of serious and violent sexual offenders.

The legislative findings underlying its adoption are set forth

in the statute, as follows:

a. Offenders who commit serious and
violent sex crimes have demonstrated high
recidivism rates and, according to some
studies, are four to five times more likely
to commit a new sex offense than those
without such prior convictions, thereby
posing an unacceptable level of risk to the
community.

b. Intensive supervision of serious and
violent sex offenders is a crucial element
in both the rehabilitation of the released
inmate and the safety of the surrounding
community.

c. Technological solutions currently
exist to provide improved supervision and
behavioral control of sex offenders
following their release.

d. These solutions also provide law
enforcement and correctional professionals
with new tools for electronic correlation of
the constantly updated geographic location
of supervised sex offenders following their
release with the geographic location of

2
See also N.J.A.C. 10A:72-2.4(b)3(ii) (authorizing, upon
violation of parole by a regular parolee, the imposition of a
special condition requiring "[a]ssignment to and successful
completion of the electronic monitoring program, wherein
electronic monitoring serves to address violations of conditions
of supervision").

10 A-5383-13T1
reported crimes, to possibly link released
offenders to crimes or to exclude them from
ongoing criminal investigations.

e. Continuous 24 hours per day, seven
days per week, monitoring is a valuable and
reasonable requirement for those offenders
who are determined to be a high risk to
reoffend, were previously committed as
sexually violent predators and conditionally
discharged, or received or are serving a
special sentence of community or parole
supervision for life. A program to monitor
these sex offenders should be established.

[N.J.S.A. 30:4-123.90.]

SOMA authorizes GPS monitoring of those offenders whose

"risk of re-offense has been determined to be high [under

Megan's Law],"3 and who have been deemed appropriate for

continued GPS monitoring by the Chairperson of the State Parole

Board. N.J.S.A. 30:4-123.91a(1)-(2); N.J.A.C. 10A:72-11.1.

Additionally, the individual to be monitored must fall into one

of several categories, which include offenders who have been

sentenced to CSL or PSL. N.J.S.A. 30:4-123.91a(2)(b); N.J.A.C.

10A:72-11.1(a)2ii. Failure to comply with SOMA's monitoring

requirements, N.J.S.A. 30:4-123.94, and interference with a

monitoring device, N.J.S.A. 30:4-123.95, are punishable as

third-degree crimes.

3
N.J.S.A. 2C:7-8 describes the factors and considerations that
are relevant to determining the risk of re-offense.

11 A-5383-13T1
III.

A.

Defendant contends for the first time on appeal that

retroactive application of SOMA's GPS monitoring program to him

violates the Ex Post Facto Clauses of both the Federal and New

Jersey Constitutions, U.S. Const. art. I, § 10; N.J. Const. art.

IV, § 7, ¶ 3. Specifically, relying on Riley, supra, defendant

argues that the GPS monitoring program retroactively enhances

the penal consequences of his existing CSL sentence and thereby

violates the ex post facto prohibition.

"Generally, an appellate court will not consider issues,

even constitutional ones, which were not raised below." State

v. Galicia, 210 N.J. 364, 383 (2012). "[A]ny error or omission

shall be disregarded by the appellate court unless it is of such

a nature as to have been clearly capable of producing an unjust

result." Id. at 386 (quoting R. 2:10-2). Here, while we

address the constitutional issue now raised by defendant in

light of the Court's recent ruling in Riley, we nonetheless find

it insufficient to disturb the jury's verdict for the reasons

that follow.

In Riley, supra, 219 N.J. at 275, the Parole Board sought

to apply the GPS monitoring provisions of SOMA to Riley, who had

committed a predicate sexual offense in 1986, prior to the

12 A-5383-13T1
enactment of the CSL statute. Riley was released from prison in

2009 under no form of parole supervision, although he was

required to comply with the registration and notification

provisions of Megan's Law. Id. at 274. Six months later, and

more than twenty years after he committed his last offense, the

Parole Board advised Riley that he was subject to SOMA's GPS

monitoring program. Ibid.

Riley filed an appeal with the Parole Board, arguing that

the retroactive application of SOMA to him, based on his 1986

conviction, violated the bar against ex post facto laws. Ibid.

In its analysis, the Court focused on "whether the law, as

retrospectively applied, imposes additional punishment to an

already completed crime." Id. at 285 (citing Kansas v.

Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 2086, 138 L. Ed.

2d 501, 520 (1997)). For purposes of its analysis, the Court

"accept[ed] that the Legislature, in passing SOMA, intended to

enact a remedial, regulatory scheme that was civil and

nonpunitive in nature." Id. at 292. Nonetheless, by a four-to-

three majority, the Court "conclude[d] that SOMA's adverse

effects are so punitive . . . as to negate the State's intent to

deem it only civil and regulatory." Id. at 297 (alteration in

original) (quoting Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct.

1140, 1147, 155 L. Ed. 2d 164, 176 (2003)).

13 A-5383-13T1
The majority noted that "[CSL] and its corollary [PSL] are

merely indefinite forms of parole." Id. at 288. It recognized

that SOMA shares these same essential characteristics. "SOMA

looks like parole, monitors like parole, restricts like parole,

and is run by the Parole Board. Calling this scheme by another

name does not alter its essential nature." Id. at 294.

Accordingly, the Court held that the retroactive application of

SOMA to Riley violated the Ex Post Facto Clauses of the Federal

and State Constitutions, and remanded to the Parole Board for

enforcement of its judgment. Id. at 298.

Importantly, the Court noted that the case did not concern

"a defendant who was subjected to the additional condition of

GPS monitoring for the duration of his probation or parole."

Id. at 291. It further stated: "[w]e 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. We view this as a critical

distinction.

Unlike Riley, in the present case defendant was still

serving his CSL sentence when the Parole Board sought to impose

SOMA's GPS monitoring program as a special condition. As noted,

"[a]n offender serving a special sentence of [CSL] shall be

supervised by the Division of Parole as if on parole and subject

14 A-5383-13T1
to any special conditions established by the appropriate Board

panel," as well as the numerous general conditions set forth in

N.J.A.C. 10A:71-6.11(b). The Parole Board is specifically

authorized to impose special conditions of supervision when "it

is [of] the opinion that [they] would reduce the likelihood of

recurrence of criminal behavior." N.J.A.C. 10A:71-6.11(k).

Substantially similar regulations also apply to offenders

sentenced to PSL. See N.J.A.C. 10A:71-6.12. The Parole Board

can impose a special condition of electronic monitoring for

offenders serving a special sentence of CSL or PSL, N.J.A.C.

10A:72-10.1, separate and apart from the regulations that

authorize enrollment of those offenders in the GPS monitoring

program. See N.J.A.C. 10A:72-11.1 to -11.6.

To the extent it may be relevant, we recognize that "CSL

and PSL are distinct special post-sentence supervisory schemes

for certain sex offenders." See Perez, supra, 220 N.J. at 427-

28 (noting that a defendant subject to CSL who is sentenced to

an extended term is eligible for parole in instances where those

on PSL are not). Nonetheless, for present purposes, we discern

no meaningful distinction. CSL and PSL are "corollary"

sentencing schemes, Riley, supra, 219 N.J. at 288, and are penal

in nature, Perez, supra, 220 N.J. at 443. As noted above,

offenders sentenced under CSL and PSL are both subject to the

15 A-5383-13T1
supervision of the Division of Parole "as if on parole," and

both are subject to substantially similar general and special

parole conditions. When deemed appropriate, both are also

eligible to be monitored under SOMA. N.J.S.A. 30:4-

123.91a(2)(b); N.J.A.C. 10A:72-11.1(a)2ii.

Here, unlike the petitioner in Riley, defendant was already

subject to the constraints attendant to parole supervision when

the special condition of GPS monitoring was imposed.

Additionally, defendant had previously violated CSL eight times,

including periods when he had absconded. In contrast, Riley had

committed no other offenses. It is beyond cavil that defendant

was already an eligible candidate for electronic monitoring when

the GPS monitoring condition was imposed. While arguably the

duration of the period that defendant may be subject to GPS

monitoring is longer than traditional electronic monitoring, 4 we

do not classify any added burden attendant to the GPS program as

sufficiently punitive to constitute an ex post facto violation.

Indeed, in some ways it may prove less onerous than the present

electronic monitoring, as "we have every reason to believe that

the dimensions of the system, while not presently conspicuous,

will only become smaller and less cumbersome as technology

progresses." Doe v. Bredesen, 507 F.3d 998, 1000, 1005 (6th

4
See N.J.A.C. 10A:72-10.2.

16 A-5383-13T1
Cir. 2007), reh'g en banc denied, 521 F.3d 680 (6th Cir. 2008),

cert. denied, 555 U.S. 921, 129 S. Ct. 287, 172 L. Ed. 2d 210

(2008) (rejecting an ex post facto challenge to the Tennessee

Serious and Violent Sex Offender Monitoring Pilot Project Act,

which "subject[s] a convicted sexual offender to a satellite-

based monitoring program for the duration of his probation").

Moreover, the GPS monitoring condition does not increase

the length of defendant's CSL sentence. Nor does it restrict

defendant's movements or travel in any material manner beyond

the restrictions attendant to his CSL supervision. Importantly,

defendant was only charged with violating CSL, a fourth-degree

crime, consistent with the punishment established in N.J.S.A.

2C:43-6.4d at the time of his 2000 sentence. Defendant was not

charged under statutes criminalizing violations of SOMA, in

which event the result we reach might well be different. See

N.J.S.A. 30:4-123.94 (third-degree failure to comply with terms

of GPS monitoring); N.J.S.A. 30:4-123.95 (third-degree tampering

with GPS device).

We also distinguish this case from Perez. There,

defendant's CSL sentence was improperly enhanced by application

of post-2003 amendments to N.J.S.A. 2C:43-6.4. Perez, supra,

220 N.J. at 442. N.J.S.A. 2C:43-6.4(e), for example, now

requires the imposition of a mandatory extended term without

17 A-5383-13T1
parole if certain enumerated offenses are committed while the

actor is on PSL. A similarly-situated defendant on CSL status

is not subject to a mandatory extended term sentence and remains

parole-eligible. Id. at 437-38. In contrast to Perez, in the

present case, defendant's sentence was not so enhanced.

Summarizing, defendant was sentenced to CSL in 2000.

Accordingly, he fell within the supervision of the Parole

Division, which has the authority to impose general and special

conditions to both ensure the protection of the public and

reduce the likelihood that defendant will re-offend. Defendant

demonstrated a virtually uninterrupted pattern of violating his

CSL, including a history of absconding during which absences his

whereabouts could not be ascertained. The GPS monitoring

program represents a technological upgrade over the special

condition of electronic monitoring for convicted CSL offenders

that the parole authorities no doubt have the authority to

impose. We are not persuaded that the GPS monitoring materially

increased defendant's punishment. Nor do we conclude that this

special condition is significantly more onerous or punitive than

electronic monitoring or any other regulatory requirement that

may be imposed as part of defendant's CSL sentence.

Accordingly, we find no ex post facto violation.

18 A-5383-13T1
B.

As a component of his ex post facto argument, defendant

contends that his counsel was ineffective for failing to move to

dismiss the indictment on such grounds. He argues that counsel

should have been aware of our September 22, 2011 decision in

Riley5 that formed the basis for such a successful challenge to

the indictment.

To prove ineffective assistance of counsel, a defendant

must demonstrate a reasonable likelihood of success under the

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). That is, the defendant must

show: (1) the deficiency of his counsel's performance and (2)

prejudice to his defense. Id. at 687, 104 S. Ct. at 2064, 80 L.

Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987)

(adopting the Strickland two-pronged analysis in New Jersey).

Generally, we do not entertain ineffective assistance of

counsel claims on direct appeal "because such claims involve

allegations and evidence that lie outside the trial record."

State v. Preciose, 129 N.J. 451, 460 (1992). The appropriate

procedure for their resolution commonly is not direct appeal,

but rather a post-conviction relief (PCR) application attended

5
Riley v. New Jersey State Parole Bd., 423 N.J. Super. 224 (App.
Div. 2011).

19 A-5383-13T1
by a hearing if a prima facie showing of ineffectiveness is

shown. Id. at 460, 463. Where defendant's claim of

ineffectiveness relates solely to his allegation of a

substantive legal error contained completely within the trial

record, however, we can consider it. See State v. Quezada, 402

N.J. Super. 277, 280 (App. Div. 2008).

Here, since defendant presents an entirely legal issue, we

opt to address his claim of ineffective assistance of counsel.

Upon doing so, we conclude that defendant is unable to satisfy

Strickland's prejudice prong. Even had counsel moved to dismiss

the indictment on the grounds that the GPS monitoring

requirement constituted an ex post facto violation, such motion

would have been unsuccessful, for the reasons we have expressed

above.

C.

Finally, defendant contends that his due process rights

were violated when he was subjected to GPS monitoring without

any advance notice or opportunity to be heard. We disagree.

It is well-settled that "parolees, probationers, and even

prisoners have liberty interests that implicate the commands of

due process." Jamgochian, supra, 196 N.J. at 240. "The minimum

requirements of due process . . . are notice and the opportunity

to be heard." Doe v. Poritz, supra, 142 N.J. at 106.

20 A-5383-13T1
"[T]he requirements of due process are . . . flexible,

calling for such procedural protections as the situation

demands. Simply put, not all situations calling for procedural

safeguards call for the same kind of procedure." Jamgochian,

supra, 196 N.J. at 240 (quoting State ex rel. D.G.W., 70 N.J.

488, 502 (1976)).

In many cases in which the supervised
offender wishes to contest the matter, due
process will be satisfied by giving him both
specific notice of the claimed misconduct or
improper behavior and the opportunity to
respond by letter with supporting
attachments, such as certifications or
affidavits. To merit a hearing, the
supervised offender must deny the
allegations or contest the conclusions to be
drawn from the allegations or the rationale
supporting the [condition sought to be
imposed]. A community-supervised-for-life
offender is not shielded, as is the accused
in a criminal case, by the presumption of
innocence.

[Id. at 247-48.]

A hearing is generally required only when there are material

facts in dispute that need to be resolved by credibility

determinations. Id. at 248-49.

In the present case, on August 14, 2012, the Parole Board

served defendant with written notice of its intention to impose

GPS monitoring as a special condition of his CSL. The notice

clearly specified that the proposed action was being taken based

on defendant's eight convictions for CSL violations, and

21 A-5383-13T1
detailed the nature of those violations. The notice also

clearly advised defendant that he had the right to contest the

proposed monitoring, and set forth the procedure for him to do

so.

In accordance with the notice, defendant submitted a

written statement in which he contested implementation of the

GPS monitoring "[b]ecause [] the courts didn't refer [him] to be

on this program." Defendant did not dispute his eight prior

convictions, or the facts underlying those convictions. In

short, he raised no factual or credibility dispute that required

a hearing.

On August 22, 2012, the Parole Board issued its final

decision imposing GPS monitoring "as a way to deter [defendant]

from absconding" and as a means to ensure compliance with the

other conditions of his CSL. Unlike the petitioners in Riley

and Jamgochian, defendant did not appeal the Parole Board's

decision. Rather, by ridding himself of the monitoring device

he chose to engage in self-help, a remedy that is generally

disfavored. See e.g., State v. Crawley, 187 N.J. 440, 459,

cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563

(2006); State v. Gandhi, 201 N.J. 161, 190 (2010).

Defendant retains the right to seek administrative relief

from the special condition of his GPS monitoring. See N.J.A.C.

22 A-5383-13T1
10A:72-11.2(h) (setting forth the procedure to challenge the

basis for GPS monitoring); N.J.A.C. 10A:72-11.4 (requiring

periodic review to assess whether GPS monitoring remains

appropriate); N.J.A.C. 10A:72-11.6 (establishing appeal

procedure). Nothing in our decision should be deemed to

preclude defendant from pursuing any available administrative

remedy. We express no opinion on the merits of such an

application should it be filed.

Affirmed.

23 A-5383-13T1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3170335. Public record. Not legal advice.