On appeal from the New Jersey State Parole Board.
The opinion of the court was delivered by: Skillman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Espinosa and Skillman.
The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).
The issue presented by this appeal is whether retroactive application of the intensive monitoring and supervision of sex offenders provided under the Sex Offender Monitoring Act, N.J.S.A. 30:4-123.89 to -123.95, to persons who committed sex offenses before its enactment is prohibited by the Ex Post Facto Clauses of the United States and New Jersey Constitutions. We conclude that such retroactive application of the Act violates the Ex Post Facto Clauses. Therefore, we reverse the final decision of the Chairman of the Parole Board subjecting appellant to monitoring and supervision under the Act.
Appellant was found guilty of an attempted sexual assault committed in 1986 and sentenced to an extended term of twenty years imprisonment, which was made consecutive to a sentence he was already serving for a violation of parole. On February 18, 2009, upon expiration of his maximum sentence, appellant was discharged from the Adult Diagnostic and Treatment Center without being subjected to a period of parole supervision.
On August 6, 2007, the Governor signed into law the Sex Offender Monitoring Act, which directed the Chairman of the Parole Board, in consultation with the Attorney General, to establish a program for the continuous, satellite-based monitoring of certain sex offenders. L. 2007, c. 128. The Law was made effective immediately.
On August 12, 2009, the Parole Board notified appellant that he was subject to monitoring and supervision under the Sex Offender Monitoring Act, based on the Law Division's determination that he was a Tier III offender under Megan's Law, N.J.S.A. 2C:7-1 to -19, with a high risk of reoffense, N.J.S.A. 30:4-123.91(a)(1). This notification was accompanied by a document, entitled "New Jersey State Parole Board Global Positioning Satellite (GPS) Monitoring Program Notice of Conditions," which appellant was required to sign, that described the program for monitoring and supervision of sex offenders established by the Chairman of the Parole Board. The introductory section of this document informed appellant that "[t]he GPS Monitoring Program requires that your physical location be monitored 24 hours a day/7 days a week." The document then set forth eleven conditions with which appellant was required to comply to assure such continuous monitoring:
1. You shall initially meet with the assigned monitoring Parole Officer for installation of the GPS monitoring equipment.
2. You shall insure that the GPS tracking device is charged to its capacity on a daily basis and maintain the GPS tracking device in a charged mode whenever you leave your residence.
3. You shall provide immediate notice to the assigned monitoring Parole Officer if the GPS tracking device becomes inoperable.
4. You shall not tamper with, remove or damage or attempt to tamper with, remove or damage any of the GPS monitoring equipment installed at your residence, attached to your person or required to be carried by you.
5. You shall be responsible for the cost of repair and/or replacement of any of the GPS monitoring equipment that is lost or damaged.
6. You shall maintain and exercise continuous physical control over the GPS tracking device whenever you leave your residence.
7. You shall provide access to your residence at reasonable times to enable the assigned monitoring Parole Officer to perform required maintenance and/or diagnostics of the GPS monitoring equipment.
8. You shall provide immediate access to your residence whenever the assigned monitoring Parole Officer is required to investigate a report of non-compliance with a condition of the monitoring program.
9. You shall provide notice to the assigned monitoring Parole Officer not less than ten days prior to any change in your residence.
10. You shall provide notice to the assigned monitoring Parole Officer prior to any travel outside of the State of New Jersey.
11. You shall provide the assigned monitoring Parole Officer with:
a. the name, address and physical location of your current employment.
b. notice of any change in your employment or employment location within 24 hours of the change occurring.
c. your scheduled hours of work on a weekly basis.
On August 17, 2009, appellant sent a letter to the Parole Board objecting to the proposed imposition of these conditions on the ground that he had completed service of his sentence and was not subject to parole supervision. However, the Parole Board rejected these objections. A parole officer subsequently came to appellant's home and, under appellant's protest, installed the bracelet on his ankle and delivered the other equipment required to monitor appellant twenty-four hours a day, seven days a week.
The monitoring equipment consists of a transmitter, roughly the size of a pager, which is attached to the sex offender's ankle with a rubberized strap, and a tracking unit, roughly the size of a cell phone, which the individual must carry when he is away from home. The tracking unit must be plugged in and charged for one to two hours to receive a full charge. The charge lasts approximately fourteen to sixteen hours before the unit must be recharged.
Appellant is required to wear the ankle transmitter at all times and clip the GPS tracking unit to his waist when he leaves home in order for the device to track his location. When appellant is moving, data is continuously transmitted to a host computer using a wireless connection, and the location points collected by the tracker are stored in a database for three years. If the ankle transmitter loses touch with the tracking unit for too long a period, the software will notify the monitoring officer, thereby affording parole officers an opportunity to respond and locate appellant.
When the parole officer installed the ankle bracelet and gave appellant the other monitoring equipment, he distributed another document, entitled "Global Positioning Satellite Monitoring Program -- Participant Information," which further explained the requirements of the Parole Board's program for the monitoring and supervision of sex offenders. This document states in part:
3. You are responsible for keeping your residential electrical service active. This utility is vital to your participation in the GPS monitoring program. If there is an interruption in your electrical service you must contact your Parole Officer or the parole emergency number during off hours (nights and weekends) immediately at 609-633-6703 or 800-668-7025.
4. You must always take the GPS tracking device with you when you leave your place of residence.
5. You must keep the GPS tracking device on your person at all times when you are outside of your place of residence.
6. You must keep your GPS tracking device charged sufficiently to provide GPS tracking at all times that you are outside of your residence.. . . .
8. If you are contacted via text message on your GPS tracking device you will hear a beeping sound. You must read the displayed message and you must comply with the instructions given. You must acknowledge receipt of all text messages by ...