The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0904-16T1
A-3490-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HAKUM BROWN, a/k/a HAKEEM
BROWN,
Defendant-Appellant.
______________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RODNEY BROWN,
Defendant-Respondent.
______________________________
Submitted March 11, 2019 – Decided July 31, 2019
Before Judges Messano, Fasciale and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-06-1846
and Middlesex County, Indictment Nos. 15-06-0776,
15-10-1246, 16-06-0974, and 16-06-0975.
Joseph E. Krakora, Public Defender, attorney for
appellant Hakum Brown (James K. Smith, Jr., Assistant
Deputy Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent State of New Jersey in A-0904-16 and
appellant State of New Jersey in A-3490-16 (Jennifer
E. Kmieciak, Deputy Attorney General, of counsel and
on the briefs).
Joseph E. Krakora, Public Defender, attorney for
respondent Rodney Brown (James K. Smith, Jr.,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
"The statutory scheme known as 'Megan's Law,' N.J.S.A. 2C:7-1 to -19,
requires that prescribed categories of sex offenders register with law
enforcement agencies through a central registry maintained by the
Superintendent of State Police. N.J.S.A. 2C:7-2(a)(1), 4(d)." In re N.B., 222
N.J. 87, 89 (2015). Registration facilitates "notice of the presence of such
offenders in the community, the scope of that notice measured by the likelihood
that such offenders will commit another sex offense[.]" Doe v. Poritz, 142 N.J.
1, 14 (1995). "The Registration and Notification Laws are not retributive laws,"
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2
id. at 13, but are designed to "permit law enforcement officials to identify and
alert the public when necessary for the public safety[,]" N.J.S.A. 2C:7-1(a), and
"provide law enforcement with additional information critical to preventing and
promptly resolving incidents involving sexual abuse and missing persons."
N.J.S.A. 2C:7-1(b).
N.J.S.A. 2C:7-2(a)(3) criminalizes the "fail[ure] to register as required"
under various provisions of the statute. N.J.S.A. 2C:7-2(c)(2) specifically
governs the obligation to "register prior to release" from "a correctional . . .
facility" and, "within [forty-eight] hours of release," to "also register with the
chief law enforcement officer of the municipality in which the person resides
. . . ." When Megan's Law was enacted in 1994, a person committed a fourth-
degree crime if he or she failed to register as a sex offender as required under
the statute. N.J.S.A. 2C:7-2(a), (c) (1994). However, in 2007, the Legislature
increased the penalty for failing to register to a third-degree crime, L. 2007, c.
19.
Community supervision for life (CSL), a "component" of Megan's Law,
"has its statutory source in N.J.S.A. 2C:43-6.4, the Violent Predator
Incapacitation Act." State v. Schubert, 212 N.J. 295, 305 (2012). "N.J.S.A.
2C:43-6.4(a) directed that a trial court, when imposing a sentence for certain
A-0904-16T1
3
enumerated offenses, . . . 'include, in addition to any sentence authorized by
th[e] Code [of Criminal Justice], a special sentence of community supervision
for life[,]'" ibid. (quoting N.J.S.A. 2C:43-6.4(a)), in order "to protect the public
from recidivism by sexual offenders." State v. Perez, 220 N.J. 423, 437 (2015).
Sex offenders "subject to CSL are supervised by the Parole Board and face a
variety of conditions beyond those imposed on non-sex-offender parolees."
Ibid. (citing N.J.A.C. 10A:71-6.11).
When first enacted, violating conditions of CSL was a fourth-degree
crime. N.J.S.A. 2C:43-6.4(d) (1994). However, in 2014, the Legislature
increased the penalty to a third-degree crime, punishable by a presumptive
prison term. L. 2013, c. 214. Additionally, such a violation converted CSL to
parole supervision for life (PSL), with added restrictions and enhanced
consequences for violations. Ibid.1 See N.J.S.A. 2C:43-6.4(b). Thereafter, in
State v. Hester, 233 N.J. 381, 385 (2018), four defendants, who had been
sentenced to CSL prior to the 2014 amendment, challenged the increased
1
Earlier, in 2004, the Legislature replaced CSL with PSL. L. 2003, c. 267. In
Perez, 220 N.J. at 442, the Court held that applying the PSL amendments to
defendants previously sentenced to CSL violated the Ex Post Facto Clauses of
the federal and state constitutions. See U.S. Const. art. I, § 10, cl. 1; N.J. Const.
art. IV, § 7, ¶ 3.
A-0904-16T1
4
penalties that were applied to them. Our Supreme Court held that "the Federal
and State Ex Post Facto Clauses bar[red] the retroactive application of the 2014
Amendment to defendants' CSL violations[,]" and affirmed the dismissal of their
respective indictments. Ibid.
In these back-to-back appeals, we are asked to determine whether two
defendants, Rodney Brown (R.B.) and Hakum Brown (H.B.),2 who were ordered
to comply with the registration requirements of Megan's Law when they were
sentenced in 1995 and 2000, respectively, can now be charged as third-degree
offenders based upon the 2007 amendment upgrading the penalty for failing to
register. For the reasons that follow, we answer this question in the negative.
In R.B.'s case, R.B. was sentenced in 1995 to three years' imprisonment,
compliance with Megan's Law, and CSL after pleading guilty to second-degree
sexual assault, N.J.S.A. 2C:14-2. In 2015 and 2016, R.B. was charged in three
separate Middlesex County indictments, Indictment Nos. 15-06-0776, 15-10-
1246, and 16-06-0975, with a total of eleven counts of third-degree violating the
conditions of CSL, N.J.S.A. 2C:43-6.4(d). In 2016, he was charged in a fourth
indictment, Middlesex County Indictment No. 16-06-0974, with one count of
2
We use initials to refer to defendants to avoid confusion created by their
common surname.
A-0904-16T1
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third-degree failure to register as a sex offender, N.J.S.A. 2C:7-2(a)(3) and 7-
2(c)(2). The latter charge stemmed from allegations that R.B. "fail[ed] to
register with the New Brunswick Police Department within [forty-eight] hours
of his release from the Middlesex County Adult Corrections Center on
December 23, 2015[.]"
R.B. moved to dismiss all four indictments, arguing that the increased
penalties from fourth-degree to third-degree crimes based on the 2007 and 2014
Megan's Law and CSL statutory amendments, respectively, violated the Ex Post
Facto Clauses of the federal and state constitutions. Following oral argument,
on March 23, 2017, the motion judge agreed and issued a written decision and
accompanying order granting R.B.'s motion. In the decision, the judge relied on
our opinion in State v. F.W., 443 N.J. Super. 476, 488 (App. Div. 2016), where
we held that "prosecuting [the] defendant for the third-degree crimes created by
[the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.94 and 123.95,]
violated the Ex Post Facto Clause[s]" because the "SOMA offenses did not exist
when [the] defendant committed his predicate offenses." Adopting our
reasoning in F.W., the judge concluded that R.B. could not face third-degree
charges for his CSL violations because at the time of his original sentence, R.B.
was only exposed to a fourth-degree penalty. Thus, the judge dismissed all four
A-0904-16T1
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indictments on "ex post facto" grounds, "without prejudice to the State's right to
re-indict [R.B.] with appropriate grading of the charges." 3
We granted the State leave to appeal but stayed the appeal and several
others because the Supreme Court had granted certification in State v. Hester,
233 N.J. 115 (2017). Based on the Court's subsequent decision in Hester, the
State concedes that its appeal of the dismissal of the third-degree violation of
the conditions of CSL charges is "no longer viable" and has "limited" its appeal
"to the dismissal of . . . [the] third-degree failure to register as a sex offender
[charge]." On appeal, the State now contends:
THERE IS NO EX POST FACTO VIOLATION
WHEN A SEX OFFENDER WHO FAILS TO
REGISTER AFTER MARCH 1, 2007[,] IS CHARGED
WITH A THIRD-DEGREE CRIME.
Turning to H.B.'s case, H.B. was sentenced in 2000 to six years'
imprisonment, compliance with Megan's Law, and CSL after pleading guilty to
second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4. In 2016, an Essex County
grand jury indicted H.B. for third-degree violating the conditions of CSL,
3
Although the judge's decision did not expressly address the third-degree
failure to register charge, that indictment was also dismissed, presumably based
on the same rationale.
A-0904-16T1
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N.J.S.A. 2C:43-6.4(d) (count one); and third-degree failure to register as a sex
offender, N.J.S.A. 2C:7-2(a)(3) and 7-2(c)(2) (count two). Count two alleged
that H.B. "failed to register with the Newark . . . Police Department within
[forty-eight] hours of his release" from "the Essex County Correctional Facility
. . . on or about August 25, 2014." H.B. entered a negotiated guilty plea to both
counts and was sentenced in accordance with the plea agreement to two
concurrent terms of three years' imprisonment, and PSL on each count.
H.B.'s ensuing appeal was also subject to our global stay. On appeal, H.B.
now contends:
POINT I
THE 2007 AMENDMENT TO MEGAN'S LAW,
WHICH HAD NO PURPOSE OTHER THAN TO
INCREASE THE PENALTY FOR FAILURE TO
REGISTER, MAY NOT BE APPLIED
RETROACTIVELY IN VIOLATION OF THE EX
POST FACTO CLAUSES OF THE STATE AND
FEDERAL CONSTITUTIONS. (NOT RAISED
BELOW).
POINT II
THE DECISION IN . . . HESTER . . . MANDATES
THAT DEFENDANT'S CONVICTION FOR [CSL]
ON COUNT ONE BE REDUCED FROM A THIRD-
DEGREE OFFENSE TO A FOURTH-DEGREE
CRIME, AND THAT THE CONDITION OF [PSL] BE
VACATED. (NOT RAISED BELOW).
A-0904-16T1
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The State and H.B. both agree that based on the Court's decision in Hester,
defendant's third-degree conviction for violating CSL conditions should be
amended to reflect a fourth-degree conviction. Both parties also agree that PSL
should be vacated on both counts.
We begin our analysis with a discussion of the governing principles. Both
the U.S. and the State Constitutions prohibit the passage of any ex post facto
law. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. New Jersey
courts interpret our Ex Post Facto Clause in a manner consistent with the United
States Supreme Court's interpretation of the corresponding federal clause. State
v. Fortin, 198 N.J. 619, 626-27 (2009). The Ex Post Facto Clauses "guarantee
that criminal statutes 'give fair warning of their effect and permit individuals to
rely on their meaning until explicitly changed.'" State v. Hester, 449 N.J. Super.
314, 320 (App. Div. 2017), aff'd, 233 N.J. 381 (2018) (quoting State v.
Muhammad, 145 N.J. 23, 56 (1996)). "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." Id. at 321 (quoting
Weaver v. Graham, 450 U.S. 24, 30 (1981)).
A-0904-16T1
9
Ex post facto laws are "defined by two critical elements." Hester, 233
N.J. at 392. "A court must first determine that the law is 'retrospective.'" Riley
v. N.J. State Parole Bd., 219 N.J. 270, 285 (2014) (quoting Miller v. Florida,
482 U.S. 423, 430 (1987)). "A law is retrospective if it 'appl[ies] to events
occurring before its enactment' or 'if it changes the legal consequences of acts
completed before its effective date.'" Ibid. (quoting Miller, 482 U.S. at 430).
The second element is "whether the law, as retrospectively applied, imposes
additional punishment to an already completed crime." Ibid. Indeed, "[a]
retroactive law that merely effects a procedural change to a statutory scheme
will fall outside of the constitutional prohibition [on ex post facto laws,]" but a
law that retroactively "'imposes additional punishment to an already completed
crime' disadvantages a defendant, and therefore is a prohibited ex post facto
law." Hester, 233 N.J. at 392 (quoting Riley, 219 N.J. at 285).
In Hester, our Supreme Court rejected the State's contention "that the
'completed crime' [was] the CSL violation[.]" Ibid. Instead, the Court
determined that "because the additional punishment attache[d] to a condition of
[the] defendants' sentences, the 'completed crime' necessarily relate[d] back to
the predicate offense[s]." Ibid. Acknowledging that "[p]arole and probation are
punishments imposed for the commission of a crime," the Court explained that
A-0904-16T1
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"[a] statute that retroactively imposes increased 'postrevocation penalties [on a
scheme of supervised release] relate[s] to the original offense,' raising the issue
of whether the defendant is 'worse off' for ex post facto purposes." Id. at 393
(alterations in original) (quoting Johnson v. United States, 529 U.S. 694, 701
(2000)).
The Court then concluded:
the 2014 [a]mendment materially altered [the]
defendants' prior sentences to their disadvantage—
increasing to a third-degree crime a violation of the
terms of their supervised release and converting their
CSL to PSL . . . . The 2014 [a]mendment effected not
a simple procedural change but rather one that offends
the very principles animating the Ex Post Facto Clauses
of our Federal and State Constitutions.
[Id. at 398.]
Employing similar reasoning as the Hester Court, we conclude that the
2007 amendment that effectively increased the penalty for failing to register
within forty-eight hours of release from a correctional facility, was both
retroactive in its application and disadvantaged defendants. Id. at 392. Thus,
we reject the State's primary argument advanced in both appeals that "the
amended statute applies only prospectively to defendant[s'] new crime of failing
to register after March 1, 2007[,]" the effective date of the amendment. We also
reject the State's contention that Hester dictates a contrary holding. We
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considered and rejected identical arguments in State v. Timmendequas, ___ N.J.
Super. ___, (App. Div. 2019) (slip op. at 14-15), and we reach the same
conclusion here. Because the "additional punishment" attached to the
registration requirements of Megan's Law, which were "condition[s] of
defendants' sentences," the "'completed crime' necessarily relate[d] back to the
predicate offense[s]." Hester, 233 N.J. at 392.
Stated differently, defendants' original sentences in 1995 and 2000
"required [them] to comply ostensibly for the rest of [their lives] with Megan's
Law's registration requirements," and the penalty for their non-compliance was
prosecution for a fourth-degree crime. Timmendequas, ___ N.J. Super. ___ (slip
op. at 14-15). By increasing "the punishment for defendant[s'] non-compliance
with that portion of [their 1995 and 2000] sentence[s,]" the amendment
"materially altered defendant[s'] prior sentence[s] to [their] disadvantage[,]" id.
at ___ (slip op. at 15) (quoting Hester, 233 N.J. at 398), and thereby violated the
federal and state Ex Post Facto Clauses. Therefore, "the State may not prosecute
[defendants]" for failing to register "as third-degree crimes[,]" but as the fourth-
degree crimes contemplated when they were originally sentenced in 1995 and
2000, and ordered to comply with the registration requirements of Megan's Law.
Ibid.
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In R.B.'s case, we agree with the judge's decision that R.B. is not subject
to the statutory amendments on ex post facto grounds, but disagree that dismissal
of the indictments without prejudice is warranted. Because our court rules
permit the amendment of the charges to properly designate them as fourth -
degree offenses, see R. 3:7-4,4 and, on the record before us, defendant never
challenged the sufficiency of the evidence before the grand jury, on the State's
motion, the judge may amend the indictment to reflect the proper grading.
Likewise, in H.B.'s case, we agree with defendant that he is not subject to
the statutory amendments. We therefore reverse and remand for the trial court
to amend the judgment of conviction to reflect convictions for fourth -degree
offenses and to remove the requirement that he be placed on PSL. 5
Affirmed as modified as to R.B, reversed as to H.B., and remanded as to
both defendants for proceedings consistent with this opinion. We do not retain
jurisdiction.
4
Rule 3:7-4 permits the amendment of the indictment "to correct an error in
. . . the description of the crime . . . or to charge a lesser included offense
provided that the amendment does not charge another or different offense . . .
and the defendant will not be prejudiced . . . in his or her defense on the merits."
5
In his merits brief, H.B. indicated that he had served his sentence, was released
from custody, and did not seek a reversal of his convictions, but only a remand
for resentencing.
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