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State v. Hester

Supreme Court of New Jersey

May 30, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
MELVIN HESTER, 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 November 28, 2017

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 449 N.J.Super. 314 (App. Div. 2017).

          Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Jennifer E. Kmieciak, 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; James K. Smith, Jr., of counsel and on the letter brief).

          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; Molly O'Donnell Meng, of counsel and on the letter brief).

         ALBIN, J., writing for the Court.

         Under the Violent Predator Incapacitation Act, L. 1994, c. 130, §§ 1 and 2, a defendant convicted of certain sex offenses pursuant to N.J.S.A. 2C:43-6.4 is required to serve a special sentence of community supervision for life (CSL). The Court considers the constitutionality of the retroactive application of the 2014 Amendment to N.J.S.A. 2C:43-6.4 (2014 Amendment), L. 2013, c. 214, § 4 (effective July 1, 2014), which increased the punishment for the CSL violations committed by the four defendants in this case.

         Defendants Melvin Hester, Mark Warner, Anthony McKinney, and Linwood Roundtree were convicted of sex offenses and sentenced to serve special sentences of CSL after completion of the custodial portions of their sentences. At the time of defendants' sentencing proceedings, under the 1994 version of N.J.S.A. 2C:43-6.4, a trial court was required to impose "a special sentence of community supervision for life" on any defendant who committed an enumerated sex offense. As part of their CSL obligations, defendants were required to abide by more than twenty general conditions governing the terms of their supervised release. N.J.A.C. 10A:71-6.11(b). At the time defendants' sentences were imposed, a violation of any of the terms of the general conditions of CSL constituted a fourth-degree crime punishable by no more than eighteen months in prison.

         In 2003, the Legislature amended N.J.S.A. 2C:43-6.4, replacing community supervision for life with parole supervision for life (PSL). L. 2003, c. 267, § 1 (2003 Amendment). The 2003 Amendment provided that an offender sentenced to PSL would be in the legal custody of the Commissioner of the Department of Corrections and under the supervision of the State Parole Board for life and that a PSL violation could be prosecuted as a fourth-degree offense, N.J.S.A. 2C:43-6.4(d), or treated as a parole violation, N.J.S.A. 2C:43-6.4(b). In contrast, under CSL, in the event of a violation of a term of supervised release, the Parole Board's only option is referral to the appropriate prosecuting authority, which then decides whether to present the case to a grand jury. The Parole Board has no power to return a defendant on CSL to prison through the parole-revocation process. One other noteworthy distinction between CSL and PSL is that a defendant on CSL who commits an enumerated offense is subject to a mandatory extended term, but is eligible for parole, whereas a defendant on PSL who commits the same offense is subject to a mandatory extended term, but must serve the entirety of his sentence and then resume his PSL status.

         In 2014, the Legislature again amended N.J.S.A. 2C:43-6.4. L. 2013, c. 214, § 4. That Amendment provides that a defendant on CSL who violates the terms of his supervised release may be prosecuted for committing a third-degree crime and faces a presumption of imprisonment. N.J.S.A. 2C:43-6.4(d). Under the 2014 Amendment, a conviction for a CSL violation also converts a defendant's CSL status to PSL status. N.J.S.A. 2C:43-6.4(a).

         Based on the 2014 Amendment, a grand jury returned indictments charging defendants with violating the general conditions of their CSL. The trial judges presiding over defendants' cases found that the 2014 Amendment constituted an ex post facto law, as applied to defendants who were on community supervision for life at the time of the alleged violations, that violated the United States and New Jersey Constitutions. The Appellate Division affirmed. 449 N.J.Super. 314, 318 (App. Div. 2017). The Court granted certification. 233 N.J. (2017).

         HELD: The Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to defendants' CSL violations. The 2014 Amendment retroactively increased the punishment for defendants' earlier committed sex offenses by enhancing the penalties for violations of the terms of their supervised release. The Amendment, therefore, is an ex post facto law that violates the Federal and State Constitutions as applied to defendants. The Court affirms the judgment of the Appellate Division dismissing defendants' indictments.

         1. The United States and New Jersey Constitutions prohibit the State from passing an "ex post facto Law." U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. An ex post facto law is defined by two critical elements. First, the law must apply to events occurring before its enactment; and second, it must disadvantage the offender affected by it. A retroactive law that merely effects a procedural change to a statutory scheme will fall outside of the constitutional prohibition. In contrast, a law that retroactively imposes additional punishment to an already completed crime disadvantages a defendant, and therefore is a prohibited ex post facto law. (pp. 12-14)

         2. Parole and probation are punishments imposed for the commission of a crime. Community supervision for life and its corollary parole supervision for life are merely indefinite forms of parole and are also classified as punishment. A statute that retroactively imposes increased postrevocation penalties on a scheme of supervised release relates to the original offense. Greenfield v. Scafati, 277 F.Supp. 644, 646 (D. Mass. 1967), aff'd, 390 U.S. 713 (1968), forbade on ex post facto grounds the application of a Massachusetts statute imposing sanctions for violation of parole to a prisoner originally sentenced before its enactment. The three-judge federal district court panel rejected the argument that the amended law was not an ex post facto law because Greenfield was on notice of its consequences before he violated parole. Scafati, 277 F.Supp. at 646. The panel held that the statute denying Greenfield good-conduct deductions, enacted after the commission of his offense and imposition of his sentence, materially altered the situation of Greenfield to his disadvantage and therefore constituted prohibited ex post facto legislation. Ibid. In Weaver v. Graham, the Supreme Court cited Scafati for the proposition that an inmate cannot be "disadvantaged by new restrictions on eligibility for release" based on a statute enacted after the commission of the inmate's crime. 450 U.S. 24, 34 (1981). (pp. 14-16)

         3. In keeping with those precedents, the Court has held that a law that retroactively increases the punishment for a CSL violation constitutes an ex post facto law. In State v. Perez, the defendant was serving a special sentence of CSL pursuant to N.J.S.A. 2C:43-6.4 for crimes committed in 1998 when he was convicted in 2011 of child luring and endangering the welfare of a child. 220 N.J. 423, 428-29 (2015). The 2003 Amendment to N.J.S.A. 2C:43-6.4 "replaced all references to 'community supervision for life' with 'parole supervision for life.'" Id. at 429. The trial court sentenced defendant to a mandatory extended term without parole eligibility, as though he had violated the terms of PSL, based on the 2003 Amendment. Id. at 429, 431, 437-38. By contrast, if the pre-amendment version of N.J.S.A. 2C:43-6.4 applied, the defendant would have been subject to a mandatory extended term for the new offenses but eligible for parole. Id. at 438. The Court concluded that the 2003 Amendment to N.J.S.A. 2C:43-6.4 "enhances the punitive consequences of the special sentence of CSL to [the defendant's] detriment and violates the federal and state prohibition of ex post facto legislation." Id. at 442. (pp. 17-18)

         4. Here, all four defendants committed sex offenses long before the 2014 Amendment to N.J.S.A. 2C:43-6.4. As a result, they were convicted and sentenced to prison terms and a special sentence of CSL. After the 2014 Amendment, the same violation is not only punishable as a third-degree crime, with a presumption of imprisonment, but also converts a defendant's CSL into PSL. Under PSL, the Parole Board has the authority to simply revoke a defendant's supervised release for a violation of a general condition and bypass the panoply of procedural rights afforded under the criminal justice system, such as the rights to trial by jury and to have guilt proven beyond a reasonable doubt. The State contends that the 2014 Amendment is a classic recidivist statute that enhances the punishment for subsequent offenses and therefore is not an ex post facto law. However, the 2014 Amendment operates differently than recidivist statutes that have withstood challenge under the Federal and State Ex Post Facto Clauses. The 2014 Amendment to N.J.S.A. 2C:43-6.4 "enhances the punitive consequences of the special sentence of CSL to [the defendant's] detriment" in the same way that the 2003 Amendment did in Perez. See 220 N.J. at 442. Moreover, the 2014 Amendment retroactively imposes increased postrevocation penalties in the manner condemned by Scafati, 277 F.Supp. at 644-46, and Weaver, 450 U.S. at 34. (pp. 18-22)

         5. The retroactive application of the 2014 Amendment to N.J.S.A. 2C:43-6.4, which enhanced the punishments for defendants' violations of the terms of their supervised release under CSL, violates the Ex Post Facto Clause of the United States Constitution. Independent of the federal constitutional analysis, the 2014 Amendment violates defendants' rights under the New Jersey Constitution's Ex Post Facto Clause. (p. 22)

         The judgment of the Appellate Division is AFFIRMED.

          OPINION

          ALBIN, JUSTICE.

         Under the Violent Predator Incapacitation Act, L. 1994, c. 130, §§ 1 and 2, a defendant convicted of certain sex offenses pursuant to N.J.S.A. 2C:43-6.4 is required to serve a special sentence of community supervision for life (CSL).[1] We must determine the constitutionality of the retroactive application of the 2014 Amendment to N.J.S.A. 2C:43-6.4 (2014 Amendment), L. 2013, c. 214, § 4 (effective July 1, 2014), which increased the punishment for the CSL violations committed by the four defendants in this case.

         As a result of their sex-offense convictions, all four defendants were required to serve a special sentence of community supervision for life after completion of their prison terms. The commission of their offenses, the judgments of their convictions, and the commencement of their sentences all preceded passage of the 2014 Amendment. Before the 2014 Amendment, a violation of the terms of CSL was punishable as a fourth-degree crime. See L. 1994, c. 130, § 2. The 2014 Amendment increased a CSL violation to a third-degree crime punishable by a presumptive term of imprisonment, and such a violation converted CSL to parole supervision for life (PSL). See N.J.S.A. 2C:43-6.4(a) and (d); see also L. 2013, c. 214, § 4. Unlike CSL, PSL authorizes the New Jersey Parole Board to revoke an offender's supervised release for a PSL violation and to return the offender to prison. See N.J.S.A. 2C:43-6.4(b).

         After enactment of the 2014 Amendment, all four defendants allegedly violated the terms of their CSL. They were indicted for committing third-degree offenses and faced the increased penalties provided by that Amendment. The trial courts presiding over defendants' cases concluded that the 2014 Amendment's enhanced penalties, as applied to defendants, violated the Ex Post Facto Clauses of the United States and New Jersey Constitutions and dismissed the indictments. The Appellate Division affirmed. State v. Hester, 449 N.J.Super. 314, 318 (App. Div. 2017).

         We now hold that the Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to defendants' CSL violations. A law that retroactively increases or makes more burdensome the punishment of a crime is an ex post facto law. Riley v. Parole Bd., 219 N.J. 270, 284-85 (2014). Community supervision for life was a punishment imposed on defendants at the time they were sentenced. See id. at 288-89. The 2014 Amendment retroactively increased the punishment for defendants' earlier committed sex offenses by enhancing the penalties for violations of the terms of their supervised release. The Amendment, therefore, is an ex post facto law that violates our Federal and State Constitutions as applied to defendants.

         We affirm the judgment of the Appellate Division dismissing defendants' indictments.

         I.

         A.

         In separate proceedings, defendants Melvin Hester, Mark Warner, Anthony McKinney, and Linwood Roundtree were convicted of sex offenses and sentenced to serve special sentences of community supervision for life in accordance with N.J.S.A. 2C:43-6.4, after completion of the custodial portions of their sentences.[2] All four defendants had committed their sex offenses more than ten years before the ...


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