State of New Jersey v. Melvin Hester

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0068-16T1

A-0069-16T1

A-0070-16T1

A-0071-16T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v. APPROVED FOR PUBLICATION

March 23, 2017

MELVIN HESTER,

APPELLATE DIVISION

Defendant-Respondent.

_____________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MARK WARNER,

Defendant-Respondent.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANTHONY MCKINNEY,

Defendant-Respondent.

_______________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LINWOOD ROUNDTREE,

Defendant-Respondent.

_______________________________

Argued March 7, 2017 – Decided March 23, 2017

Before Judges Yannotti, Fasciale and Gilson.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment Nos.

16-04-1150, 15-12-2878, 15-10-2330, and 16-

02-0481.

Frank J. Ducoat, Special Deputy Attorney

General/Acting Assistant Prosecutor, argued

the cause for appellant (Carolyn A. Murray,

Acting Essex County Prosecutor, attorney;

Mr. Ducoat, of counsel and on the briefs).

Molly O'Donnell Meng, Assistant Deputy

Public Defender, argued the cause for

respondents Melvin Hester, Mark Warner, and

Anthony McKinney (Joseph E. Krakora, Public

Defender, attorney; Ms. Meng, of counsel and

on the briefs).

James K. Smith, Jr., Assistant Deputy Public

Defender, argued the cause for respondent

Linwood Roundtree (Joseph E. Krakora, Public

Defender, attorney; Mr. Smith, of counsel

and on the brief).

The opinion of the court was delivered by

FASCIALE, J.A.D.

These four cases, which we have consolidated in rendering

this opinion, involve application of the Ex Post Facto Clauses

of the United States and New Jersey Constitutions. The State

2 A-0068-16T1

appeals from orders dismissing indictments against Melvin Hester

(Hester), Mark Warner (Warner), Anthony McKinney (McKinney), and

Linwood Roundtree (Roundtree) (collectively defendants) charging

them with third-degree violations of their special sentences of

community supervision for life (CSL), N.J.S.A. 2C:43-6.4(d).

The State maintains that the trial judges who entered the orders

erred by relying on the Ex Post Facto Clauses.

Defendants committed their original or predicate crimes,

which led to the imposition of special CSL sentences, prior to

2014. Before defendants allegedly violated their CSL

conditions, the Legislature amended N.J.S.A. 2C:43-6.4,

effective July 2014 (the 2014 amended law or 2014 amendment).

The 2014 amended law, as applied to defendants, increased the

punishment for defendants' predicate crimes if they subsequently

violated the conditions of their CSL sentence.

In determining whether the 2014 amended law "make[s] more

burdensome the punishment for a crime, after its commission,"

the narrow legal issue is whether the "crime" refers to the

commission of the predicate offense or the violation of a

condition of CSL. State v. Muhammad, 145 N.J. 23, 56 (1996)

(citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68-

69, 70 L. Ed. 216, 217 (1925)). We hold that the commission of

the predicate crime, for which defendants received the special

3 A-0068-16T1

sentence of CSL, is the operative "crime" for determining

whether the 2014 amended law violates the Ex Post Facto Clauses.

Because the 2014 amended law retroactively increased defendants'

punishment for committing their predicate crimes by raising the

degree of the CSL violations from a fourth degree to a third

degree, mandating the imposition of Parole Supervision for Life

(PSL), and subjecting them to extended prison terms, the trial

courts in these cases properly relied on the Ex Post Facto

Clauses and dismissed the indictments. Accordingly, we affirm

the orders under review.

I.

We begin by generally addressing the penal post-sentence

supervisory schemes of CSL and PSL, setting forth the legal

principles governing the Ex Post Facto Clauses, and summarizing

the facts leading to these appeals.

(a)

The Legislature has described CSL, which is punitive in

nature, as a "special sentence." N.J.S.A. 2C:43-6.4(a). The

purpose of CSL is to protect the public from recidivism by

sexual offenders. CSL is a component of the Violent Predator

Incapacitation Act, N.J.S.A. 2C:43-6.4, which is also a

4 A-0068-16T1

component of a series of laws commonly known as "Megan's Law."1

State v. Perez, 220 N.J. 423, 436-37 (2015). Megan's Law was in

effect at the time defendants committed their predicate sexual

offenses for which the court imposed CSL as part of their

special sentence. An offender subject to CSL is required to

abide by twenty-three enumerated "general conditions." N.J.A.C.

10A:71-6.11(b). Pursuant to N.J.A.C. 10A:71-6.11, the Parole

Board is obligated to supervise defendants who are subject to

CSL. Perez, supra, 220 N.J. at 437.

In 2003, the Legislature amended the law (the 2003

amendment) and replaced all references to CSL with PSL for

individuals convicted of certain sexual offenses enumerated

within N.J.S.A. 2C:43-6.4(a). Ibid.; see also J.B. v. N.J.

State Parole Bd., 433 N.J. Super. 327, 336 (App. Div. 2013),

certif. denied, 217 N.J. 296 (2014). Like CSL, PSL protects the

public from recidivism by sexual offenders. The 2003 amendment

provided that "the custodial term imposed upon the defendant

related to the special sentence of [PSL] shall be deemed to be a

term of life imprisonment." N.J.S.A. 2C:43-6.4(b). PSL

therefore enhanced the penal exposure of certain persons

previously sentenced to CSL. It did so by allowing the Parole

1

Megan's Law includes registration and community notification

for certain sex offenders. See N.J.S.A. 2C:7-1 to -23.

5 A-0068-16T1

Board to return offenders to prison for violating their parole,

rather than exposing them to committing a separate fourth-degree

crime, and by exposing such individuals to mandatory extended

prison terms if they committed certain predicate offenses.

The 2014 amended law further increased the penal exposure

of those individuals, like defendants, who had previously

committed a predicate crime and had received a special sentence

for CSL. The 2014 amended law provided in part that

a. [A] judge imposing sentence on a person

who has been convicted of [certain

enumerated crimes] shall include, in

addition to any sentence authorized by this

Code, a special sentence of [PSL].

. . . .

d. A person who violates a condition of a

special sentence of [CSL] or [PSL] imposed

pursuant to this section . . . is guilty of

a crime of the third degree . . . . [A]

person sentenced pursuant to this subsection

shall be sentenced to a term of

imprisonment, unless the court is clearly

convinced that the interests of justice so

far outweigh the need to deter this conduct

and the interest in public safety that a

sentence to imprisonment would be a manifest

injustice.

[N.J.S.A. 2C:43-6.4 (emphasis added).]

Thus, the 2014 amended law made more burdensome the

punishment for the commission of the predicate crimes defendants

committed before 2014. Defendants, who had been sentenced to

CSL before the effective date of the 2014 amended law, were now

6 A-0068-16T1

subject to a prison term of three to five years, instead of

eighteen months. They also faced the mandatory imposition of

extended prison terms and PSL which, unlike the remedial

registration and notification requirements of Megan's Law, is

considered to be a penal post-sentence supervisory scheme. See

Perez, supra, 220 N.J. at 441.

(b)

The United States Constitution provides that "[n]o State

shall . . . pass any . . . ex post facto Law . . . ." U.S.

Const. art. I, § 10, cl. 1. The New Jersey Constitution

similarly provides that "[t]he Legislature shall not pass any

. . . ex post facto law . . . ." N.J. Const. art. IV, § 7, ¶ 3.

"The purpose of the Ex Post Facto Clauses is to guarantee that

criminal statutes 'give fair warning of their effect and permit

individuals to rely on their meaning until explicitly changed.'"

Muhammad, supra, 145 N.J. at 56 (emphasis omitted) (quoting

Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L.

Ed. 2d 17, 23 (1981)). "Critical to relief under the Ex Post

Facto Clause is not an individual's right to less punishment,

but the lack of fair notice and governmental restraint when the

legislature increases punishment beyond what was prescribed when

the crime was consummated." Weaver, supra, 450 U.S. at 30, 101

S. Ct. at 965, 67 L. Ed. 2d at 24 (emphasis omitted).

7 A-0068-16T1

"The Ex Post Facto Clause is 'aimed at laws that

retroactively alter the definition of crimes or increase the

punishment for criminal acts.'" Perez, supra, 220 N.J. at 438

(quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115

S. Ct. 1597, 1601, 131 L. Ed. 2d 588, 594 (1995)).

[T]o violate the Ex Post Facto Clauses, the

statute in question must either (1) punish

as a crime an act previously committed,

which was innocent when done; (2) make more

burdensome the punishment for a crime, after

its commission; or (3) deprive a defendant

of any defense available according to the

law at the time when the crime was

committed.

[Muhammad, supra, 145 N.J. at 56 (emphasis

omitted) (citing Beazell, supra, 269 U.S. at

169-70, 46 S. Ct. at 68-69, 70 L. Ed. at

217).]

Applicable to these appeals is whether the 2014 amended law

violates the Ex Post Facto Clauses by making "more burdensome

the punishment for a crime, after its commission." Ibid.

Significantly, "two critical elements must be present for a

criminal or penal law to be ex post facto: [I]t must be

retrospective, that is, it must apply to events occurring before

its enactment, and it must disadvantage the offender affected by

it." Weaver, supra, 450 U.S. at 29, 101 S. Ct. at 964, 67 L.

Ed. 2d at 23 (emphasis and footnotes omitted).

Under the first element, a "law is retrospective if it

'appl[ies] to events occurring before its enactment' or [like

8 A-0068-16T1

here] 'if it changes the legal consequences of acts completed

before its effective date.'" Riley v. N.J. State Parole Bd.,

219 N.J. 270, 285 (2014) (first alteration in original) (quoting

Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96

L. Ed. 2d 351, 360 (1987)). In Riley, the Court held that the

Ex Post Facto Clauses precluded retroactive application of the

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

123.89 to -123.99, to the defendant, who had completed his

sentence and was under no form of parole supervision before

passage of SOMA. Id. at 298.

Under the second element, and unlike here, "[t]here 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 offen[s]e or the ultimate facts necessary to

establish guilt." Perez, supra, 220 N.J. at 438-39 (emphasis

omitted) (quoting State v. Natale, 184 N.J. 458, 491 (2005));

see Doe v. Poritz, 142 N.J. 1, 73 (1995) (holding that the

imposition of post-release registration and notification

requirements of Megan's Law did not violate ex post facto

prohibitions because it did not constitute punishment).

(c)

In May 2005, a jury found Hester guilty of second-degree

sexual assault, N.J.S.A. 2C:14-2(c); third-degree endangering

9 A-0068-16T1

the welfare of a child, N.J.S.A. 2C:24-4(a); and fourth-degree

sexual contact, N.J.S.A. 2C:14-3(b). These convictions were for

crimes committed in 2003. In August 2005, the court sentenced

him to CSL, Megan's Law, and seven years in prison. At that

time, a violation of CSL constituted a fourth-degree offense.

After the effective date of the 2014 amendment, Hester allegedly

violated conditions of his CSL by failing to reside at a

residence approved by a parole officer, N.J.A.C. 10A:71-6.11(7);

obtain permission to change his address, N.J.A.C. 10A:71-

6.11(8); and comply with curfew requirements, N.J.A.C. 10A:71-

6.11(19). In April 2016, a grand jury indicted and charged

Hester with three counts of third-degree violations of the

conditions of his CSL, N.J.S.A. 2C:43-6.4(d).

In June 1997, Warner pled guilty to third-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a). In

September 1997, the court sentenced him to CSL, Megan's Law, and

three years in prison. At that time, a violation of CSL

constituted a fourth-degree offense. After the effective date

of the 2014 amendment, Warner allegedly violated conditions of

his CSL by failing to reside at a residence approved by a parole

officer, N.J.A.C. 10A:71-6.11(7); and obtain permission to

change his address, N.J.A.C. 10A:71-6.11(8). In December 2015,

a grand jury indicted and charged Warner with two counts of

10 A-0068-16T1

third-degree violations of the conditions of his CSL, N.J.S.A.

2C:43-6.4(d).

In 1997, McKinney pled guilty to third-degree criminal

restraint, N.J.S.A. 2C:13-2; three counts of second-degree

sexual assault, N.J.S.A. 2C:14-2(c); and third-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4. In 1998,

the court sentenced McKinney to CSL, Megan's Law, and imposed a

ten-year prison term with five-year period of parole

ineligibility. At that time, a violation of CSL constituted a

fourth-degree offense. After the effective date of the 2014

amendment, McKinney allegedly violated a condition of his CSL by

absconding from parole supervision, N.J.A.C. 10A:71-6.11(2). In

2015, a grand jury indicted and charged McKinney with a third-

degree violation of a condition of his CSL, N.J.S.A. 2C:43-

6.4(d).

In March 1998, Roundtree pled guilty to first-degree

aggravated sexual assault of a minor, N.J.S.A. 2C:14-2(a); and

second-degree impairing the morals of a minor, N.J.S.A. 2C:24-

4(a). In July 1998, the court sentenced Roundtree to CSL,

Megan's Law, and fifteen years in prison. After the effective

date of the 2014 amendment, Roundtree allegedly violated his CSL

by failing to report for parole, N.J.A.C. 10A:71-6.11(2); reside

at an approved residence, N.J.A.C. 10A:71-6.11(7); and obtain

11 A-0068-16T1

approval to change his residence, N.J.A.C. 10A:71-6.11(8). In

February 2016, a grand jury indicted and charged Roundtree with

three counts of third-degree violations of the conditions of his

CSL, N.J.S.A. 2C:43-6.4(d).

Defendants filed motions to dismiss the indictments

charging them with these third-degree CSL violations. They

asserted that the 2014 amended law increased their penal

exposure for violating their pre-2014 CSL sentences. Defendants

argued that before the effective date of the 2014 amended law,

violations of CSL constituted fourth-degree offenses. They

contended that the 2014 amended law raised the penalty for CSL

violations to a third-degree crime and added the imposition of

PSL. As a result, defendants urged the trial judges who heard

the motions to dismiss the indictments as violating the Ex Post

Facto Clauses of the United States and New Jersey Constitutions.

The judges agreed, granted the motions to dismiss, and entered

the orders under review.

II.

On appeal, the State argues that the court erred by

dismissing the indictments because the 2014 amended law does not

violate the Ex Post Facto Clauses of the Federal and State

Constitutions. The State treats defendants' alleged post-2014

violations of CSL, rather than the predicate offenses that

12 A-0068-16T1

originally led to the imposition of CSL, as the "crimes" for

purposes of conducting its ex post facto analysis. As a result,

the State contends that application of the 2014 amended law does

not make more burdensome the punishment for the commission of a

"crime."

The State concedes, however, that defendants received their

CSL special sentences for committing predicate crimes before the

effective date of the 2014 amended law, and that defendants had

faced only a fourth-degree offense for any pre-2014 violation of

their CSL. For ex post facto purposes, it logically follows

therefore that if the commission of the predicate offense is the

"crime," instead of the CSL violations as the State maintains,

then the 2014 amended law increased the defendants' punishment.

The punishment for committing a predicate crime, as a result of

a pre-2014 CSL violation, was limited to fourth-degree exposure;

but as applied, the 2014 amended law increased the punishment

for committing the predicate offense, as a result of a post-2014

CSL violation, to third-degree exposure, PSL, and imposition of

a mandatory extended prison term for the commission of certain

predicate offenses.

Although we generally review for an abuse of discretion a

court's decision on whether to dismiss an indictment, see, e.g.,

State v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010),

13 A-0068-16T1

the issue of whether a prosecution is prohibited by the Ex Post

Facto Clauses of the Federal and State Constitutions is an issue

of law. Consequently, we exercise plenary review of the issue

presented here. See State v. Mann, 203 N.J. 328, 337 (2010).

It is well-settled that "[a] presumption of validity

attaches to every statute." State v. Lenihan, 219 N.J. 251, 266

(2014). We may invalidate a statute as unconstitutional on its

face or as applied. Id. at 267. "Facial invalidation is,

manifestly, strong medicine that has been employed by the Court

sparingly and only as a last resort." J.B., supra, 433 N.J.

Super. at 344 (quoting Binkowski v. State, 322 N.J. Super. 359,

375-76 (App. Div. 1999)). "[A] statute . . . is facially

unconstitutional only if the constitution is necessarily

violated every time the law is enforced." Ran-Dav's Cty. Kosher

v. State, 129 N.J. 141, 174-75 (1992) (Stein, J. dissenting),

cert. denied sub nom., Nat'l Jewish Comm'n on Law & Pub. Affairs

v. Ran-Dav's Cty. Kosher, Inc., 507 U.S. 952, 113 S. Ct. 1366,

122 L. Ed. 2d 744 (1993). "[A] statute . . . may be valid on

its face but invalid in a particular application." Id. at 174.

Here, the parties acknowledge that the 2014 amended law is

facially constitutional. It may be applied to persons who

commit predicate offenses and are sentenced to PSL after the

effective date of the 2014 amendment. We focus on whether it

14 A-0068-16T1

violates the Ex Post Facto Clauses as applied to these

defendants.

III.

We conclude that the 2014 amendment "makes more burdensome

the punishment of a crime after its commission." Perez, supra,

220 N.J. at 440. Defendants now face third-degree offenses,

rather than fourth-degree exposure. Certainly, "[b]eing

prosecuted for a third-degree crime rather than a fourth-degree

crime clearly [makes a] defendant 'worse off.'" State v. F.W.,

443 N.J. Super. 476, 489 (App. Div.) (quoting Johnson v. United

States, 529 U.S. 694, 701, 120 S. Ct. 1795, 1801, 146 L. Ed. 2d

727, 736 (2000)), certif. denied, 227 N.J. 150 (2016). And the

imposition of PSL as a consequence of violating their CSL

permits the Parole Board to return defendants to prison for

violating parole, and subjects defendants to mandatory extended

prison terms under N.J.S.A. 2C:43-6.4(e)(1). See also Perez,

supra, 220 N.J. at 441-42.

Of course, that begs the question of what "crime after its

commission" means. We reached our conclusion by determining

that the "crime," for purposes of applying the Ex Post Facto

Clauses, is not the violation of CSL, but rather, the commission

of the predicate offense for which the court originally imposed

the special sentence of CSL. In other words, the "crime" is the

15 A-0068-16T1

predicate sexual offense, which defendants committed before the

effective date of the 2014 amendment, rather than the post-2014

CSL alleged violations. The legal reasoning in Perez and F.W.

help inform our analysis.

In Perez, the defendant received CSL as part of his special

sentence for committing a predicate offense in 1998. Perez,

supra, 220 N.J. at 427, 436. In 2010, after the 2003 amendment

in which Legislature replaced all references to CSL with PSL,

the defendant violated the terms of his CSL. Id. at 428. On

the violation of his CSL, the court applied the 2003 amendment

and sentenced the defendant to the increased penalty of PSL.

Id. at 429.

The Court held that "[a]s applied to defendant, the 2003

amendment to N.J.S.A. 2C:43-6.4(e) enhance[d] the punitive

consequences of the special sentence of CSL to his detriment and

violate[d] the federal and state prohibition of ex post facto

legislation." Id. at 442. Importantly, the Court stated that

the 2003 amendment enhanced "the penal exposure of a person

previously sentenced to CSL for certain offenses committed while

sentenced to that status." Id. at 443. In other words, the

defendant's post-2003 CSL violation increased the punishment for

committing the predicate crime. That is so because prior to the

effective date of the 2003 amendment, the defendant was not

16 A-0068-16T1

subject to PSL as part of his special CSL sentence for

committing the predicate offense.

In F.W., the defendant received CSL as part of his special

sentence for committing a predicate offense in 1999. Supra, 443

N.J. Super. at 480. In approximately 2008, the defendant

violated the terms of his CSL. Id. at 481. On that violation,

the court, in accord with N.J.S.A. 2C:43-6.4(d), enrolled him in

GPS monitoring pursuant to SOMA, which the Legislature enacted

in 2007. Ibid. The defendant violated his CSL again by

removing the GPS tracker. Ibid. Before the effective date of

the 2014 amended law, the State charged the defendant with a

fourth-degree CSL violation and two third-degree SOMA

violations. Id. at 478. A judge found the defendant guilty of

those charges. Ibid. We reversed the SOMA convictions on ex

post facto grounds, stating:

The SOMA offenses did not exist when

defendant committed his predicate offenses

in 1997, and at that time, 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 [the defendant] because he "ha[d]

been sentenced to a term of community or

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

. . . It was thus imposed as a further

element of [the] defendant's post-release

supervision during his CSL sentence for his

predicate offenses . . . . [Like here,] the

17 A-0068-16T1

Legislature could not retroactively increase

the punishment for a violation of

defendant's post-release supervision.

[Id. at 488-89 (first and third alteration

in original) (emphasis added) (quoting

N.J.S.A. 30:4-123.91(a)(2)(b)).]

We stated further that "[f]or purposes of [our] 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.'" Id. at 489 (quoting

Johnson, supra, 529 U.S. at 700, 120 S. Ct. at 1800, 146 L. Ed.

2d at 736).

In deciding whether sanctions violated ex post facto

principles, we attributed "postrevocation penalties to the

original conviction." Ibid. (quoting Johnson, supra, 529 U.S.

at 701, 120 S. Ct. at 1801, 146 L. Ed. 2d at 736). We stated

that "[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." Ibid. (alteration in original) (quoting

Commonwealth v. Cory, 911 N.E. 2d 187, 192 (Mass. 2009)). We

concluded that

the Ex Post Facto Clause barred [the]

defendant's prosecution for a third-degree

crime [(the SOMA offense)]. Being

prosecuted for a third-degree crime rather

than a fourth-degree crime clearly made

defendant "worse off." Whether the increase

18 A-0068-16T1

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 supervised release, are

"attribute[d] . . . to the original

conviction." 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.

[Id. at 489-90 (third alteration in

original) (emphasis added) (quoting Johnson,

supra, 529 U.S. at 701, 120 S. Ct. at 1801,

146 L. Ed. 2d at 736).]

Here, for purposes of conducting our ex post facto analysis

of the enhanced post-2014 penalties for violating the pre-2014

special sentence of CSL, the commission of the pre-2014

predicate sexual offenses, not the post-2014 CSL violations,

constitute the "crime." See also Loftwich v. Fauver, 284 N.J.

Super. 530, 535 (App. Div. 1995) (indicating that the Ex Post

Facto Clause is violated when a parole violator is punished in a

way that adversely affects his release date under a statute

adopted after the violator committed the underlying offense but

before he violated the terms of his parole (citing United States

v. Paskow, 11 F.3d 873, 878 (9th Cir. 1993)).

19 A-0068-16T1

Finally, the State's reliance on the constitutionality of

certain recidivist statutes is unpersuasive. "Recidivist

statutes stiffen penalties for the latest crime; they do not

increase the penalty for a prior offense." State v. Zeikel, 423

N.J. Super. 34, 42 (App. Div. 2011). See United States v.

Rodriquez, 553 U.S. 377, 386, 128 S. Ct. 1783, 1789, 170 L. Ed.

2d 719, 728 (2008) (enhanced sentence is a stiffened penalty for

the latest crime, which is considered to be an aggravated

offense because it is a repetitive crime).

"The Supreme Court has held that recidivist statutes do not

violate the Ex Post Facto Clause if they were on the books at

the time the triggering offense was committed." State v.

Oliver, 162 N.J. 580, 587 (2000) (emphasis omitted) (citing

Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L.

Ed. 1683, 1687 (1948)); see also Nichols v. United States, 511

U.S. 738, 747, 114 S. Ct. 1921, 1927, 128 L. Ed. 2d 745, 754

(1994) (indicating that recidivist statutes do not violate ex

post facto prohibitions because they "do not change the penalty

imposed for the earlier conviction"); United States v. Arzate-

Nunez, 18 F.3d 730, 734 (9th Cir. 1994) (finding that, in

analyzing repeat offender statutes and statutes increasing

penalties for future crimes based on past crimes, the relevant

offense is the current crime, not the predicate crime). Here,

20 A-0068-16T1

the triggering offense is the commission of the predicate crime

for which defendants received CSL.

For example, in Oliver, supra, 162 N.J. at 587, the Court

rejected the defendant's ex post facto challenge to the "Three-

Strikes Law," N.J.S.A. 2C:43-7.1. In that case, the Legislature

enacted the law in June 1995, and the defendant had committed

the offense constituting his third strike in December of that

year. Ibid. Citing to Gryger, supra, 334 U.S. at 732, 68 S. Ct.

at 1258, 92 L. Ed. at 1687, the Court held that the "Three-

Strikes Law" did not violate the Ex Post Facto Clause because it

had been enacted "at the time the triggering offense was

committed." Oliver, supra, 162 N.J. at 587.

Likewise, in State v. Carrigan, 428 N.J. Super. 609, 612-13

(App. Div. 2012), certif. denied, 213 N.J. 539 (2013), the

defendant was charged on September 27, 2011, with a violation of

N.J.S.A. 2C:40-26(b) (effective August 1, 2011), which makes it

a fourth-degree crime for a motorist to operate a vehicle at a

time when his driver's license has been suspended or revoked for

a second or subsequent conviction for driving while intoxicated

(DWI). The defendant had been convicted for DWI and refusal at

least thirteen times between 1983 and 2010, and his license was

accordingly suspended. Id. at 615. We stated that

a violation of N.J.S.A. 2C:40-26(b)

comprises a new offense based upon new

21 A-0068-16T1

conduct, and that the statute does not

impose retrospective punishment for a prior

offense. Hence, the law may be

constitutionally applied to drivers with

suspended licenses, such as defendant, who

are caught driving after August 1, 2011,

regardless of whether their DWI-based

suspensions were imposed before that date.

[Id. at 613.]

We explained:

Defendant likens his circumstances to an

instance where a new law unconstitutionally

attempts to make the terms of a criminal

sentence, such as the terms of parole or

probation, more stringent after the fact.

Cf. Johnson, supra, 529 U.S. 694, 120 S. Ct.

1795, 146 L. Ed. 2d 727 (involving a statute

that retroactively increased penalties for

violating the terms of parole). We reject

this conception of what N.J.S.A. 2C:40-26(b)

accomplishes.

N.J.S.A. 2C:40-26(b) does not change

the duration of the license suspensions that

were previously imposed upon him before the

new law took effect. His ten-year

suspensions, duly imposed under N.J.S.A.

39:4-50(a)(3), have not been lengthened.

Nor is he prohibited during his periods of

suspension from doing anything that he could

not have lawfully done before. The only

thing that is different is that if defendant

commits a new offense by getting behind the

wheel after August 1, 2011[,] while still

under suspension, he now faces a criminal

penalty for that new conduct. There is

nothing unconstitutional about treating such

prior offenses as enhancement factors for

wrongful conduct that post-dates the new

law.

[Id. at 621-22.]

22 A-0068-16T1

In contrast here, N.J.S.A. 2C:43-6.4 "enhances the punitive

consequences of [] CSL," a supervisory penal sentence, after the

fact. Perez, supra, 220 N.J. at 442. Notably, under the

recidivist statutes, penalties are increased for the latest

crime — every offense is an independent crime and the punishment

increases for each additional crime committed because it is

considered to be an aggravated offense. Vartelas v. Holder, 566

U.S. 257, 271-72, 132 S. Ct. 1479, 1490, 182 L. Ed. 2d 473, 488

(2012); Gryger, supra, 334 U.S. at 732, 68 S. Ct. at 1258, 92 L.

Ed. at 1687; Zeikel, supra, 423 N.J. Super. at 42. Here, such

is not the case.

Conversely, not all conduct violating the conditions of CSL

contrary to N.J.S.A. 2C:43-6.4 need be criminal. For example,

an offender sentenced to CSL must reside at a residence approved

by a parole officer, obtain permission prior to leaving the

state, and secure permission prior to engaging in any employment

or volunteer activity. N.J.A.C. 10A:71-6.11(7),(9),(16). None

of this conduct constitutes an independent criminal act.

For defendants, conduct violating the conditions of CSL

clearly constitutes a crime, but that is so solely because it

violates conditions imposed as part of the supervisory sentence,

which in turn, relates back to the commission of the initial

predicate offense. See State v. Schubert, 212 N.J. 295, 307

23 A-0068-16T1

(2012) (indicating that the Legislature viewed CSL "as an

integral part of a defendant's sentence, imposed as part of a

court's sentencing authority"). Defendants' violation of the

terms of their CSL is therefore not an aggravated offense

because it is not a repetitive crime.

Affirmed.

24 A-0068-16T1