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Date: 02-09-2021
Case Style:
State of New Jersey v. Hakum Brown a/k/a Hakeem Brown AND
State of New Jersey v. Rodney Brown
Case Number: (A-39-19) (083353)
Judge: Jaynee LaVecchia
Court: Supreme Court of New Jersey
Plaintiff's Attorney: Jennifer E. Kmieciak, Deputy Attorney General
Defendant's Attorney:
OR
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Description:
Trenton, NJ - Criminal defense attorney represented Hakum Brown a/k/a Hakeem Brown and Rodney Brown with the enhanced third-degree offense of failure to comply with sex offender registration requirements.
In 1995, Rodney Brown (R.B.) was convicted of sexual assault. In 2000, Hakum
Brown (H.B.) was convicted of sexual assault and endangering the welfare of a child. As
a result of those predicate convictions, H.B. and R.B. were subject to the sex offender
registration requirements imposed by Megan’s Law. At the time of H.B.’s and R.B.’s
sex-offender convictions, failure to comply with the registration requirements was
punishable as a fourth-degree offense. However, in 2007, the Legislature upgraded
failure to register to a third-degree offense. In 2014, H.B. failed to timely register with
his local police department. R.B. similarly failed to register in 2015. Each was charged
with third-degree failure to register.
H.B. pleaded guilty but appealed, asserting there is an ex post facto violation in
being charged with third-degree failure to register when, at the time of his predicate sexoffender conviction, failure to register was only a fourth-degree offense. R.B. pleaded
not guilty. He moved to dismiss his indictments on ex post facto grounds, and the trial
court granted R.B.’s motion in its entirety. The State appealed the dismissal of R.B.’s
indictments. The Appellate Division consolidated the State’s appeal in R.B.’s matter
with H.B.’s appeal from his conviction. Relying on State v. Timmendequas, 460 N.J.
Super. 346 (App. Div. 2019), the appellate court reversed H.B.’s conviction and affirmed
the dismissal of R.B.’s indictment. The Court granted certification. 240 N.J. 426 (2020).
HELD: Defendants suffered no ex post facto violation as a result of being charged with
failure-to-register offenses bearing the increased degree. The Legislature is free to
increase the penalty for the offense of failure to comply with the regulatory registration
requirement -- which is separate and apart from defendants’ predicate sex offenses --
without violating ex post facto principles as to those predicate offenses.
2
1. In Doe v. Poritz, the Court found the Megan’s Law registration requirement to be
regulatory and remedial rather than punitive and therefore held that Megan’s Law’s
retroactive application to persons who had already been convicted of eligible sex offenses
did not subject past offenders to additional punishment and did not offend the Ex Post
Facto Clauses. 142 N.J. 1, 75 (1995). (pp. 9-12)
2. Two findings must be made for a law to violate the constitutional prohibition on ex
post facto laws. The court must determine: first, whether the law is retrospective, meaning
it applies to events occurring before its enactment or changes the legal consequences of
acts completed before its effective date; second, whether the law, as retrospectively
applied, imposes additional punishment to an already completed crime. (pp. 12-13)
3. Doe placed the registration scheme decidedly in the nonpunitive category as a civil,
administrative consequence. That the violation of that regulatory scheme is enforced
through separate criminal charges when and if the violation occurs does not make the
registration requirement itself penal. The registration requirement is not part of the penal
sentence for the predicate sex offense. Distilled to its essence, registration is retroactive
but not punitive. Prosecution for failing to register, however, is different. It addresses a
separate crime and is punitive but not retroactive. Viewed accordingly, just as the
Legislature was permitted to affix a criminal penalty for the prospective violation
denominated as failure to register, so too may it prospectively enhance the degree of such
a penalty. Federal courts and other state supreme courts have similarly held that failure
to register is an offense distinct from the original underlying sex offense. (pp. 13-17)
4. Megan’s Law imposed a term of community supervision for life (CSL) on individuals
convicted of certain sex offenses. In 2003, the Legislature replaced CSL with parole
supervision for life (PSL), a more restrictive post-release regime. In State v. Perez, 220
N.J. 423 (2015), the Court considered whether the Legislature could retroactively convert
an offender’s sentence of CSL to a sentence of PSL. Stressing that both “CSL and PSL
were and are intended to be penal rather than remedial post-sentence supervisory
schemes,” the Court held that such retroactive enhancement of an offender’s sentence
violated the Ex Post Facto Clause. Id. at 441-42. (pp. 17-19)
5. And in State v. Hester, 233 N.J. 381 (2018), the Court considered whether -- after a
2013 amendment that raised the degree of violation of CSL and mandated conversion
from CSL to PSL -- those heightened sanctions could be imposed on individuals who
began serving CSL prior to the amendment. The Court concluded that the defendants’
CSL violations should not be viewed as independent crimes but as “violations of the
general conditions of their supervised release” that were “integral parts” of the
defendants’ sentences. Id. at 397. By enhancing the penalty for violating those
requirements, the Legislature had impermissibly sought to “materially alter[] defendants’
prior sentences to their disadvantage.” Id. at 398. Increasing the defendants’ penalty for
violating CSL violated the Ex Post Facto Clause, just as in Perez. Id. at 398. (pp. 19-21)
3
6. The Court stresses the foundational reasoning of Doe v. Poritz. Doe recognized the
registration requirement as an administrative obligation rather than a penal consequence
of the original predicate sex offense; the fact that violations of that administrative
obligation are themselves separately punishable does not alter the nature of the obligation
itself. Thus, imposition of that obligation did not involve a retroactive increase in
punishment for the predicate crime. And, by extension, increasing the penal
consequences for a violation of that obligation is similarly distinct from the punishment
imposed for the predicate crime. (pp. 21-22)
7. Hester involved aspects of the application of CSL and PSL, which are not
administrative obligations, but rather punitive measures imposed as part of the supervised
release of an offender convicted of a qualifying offense. Doe is the most relevant to the
circumstances present here, and adherence to Doe’s determination that registration is not
punitive should have precluded reliance on cases dealing with punitive consequences
such as PSL, CSL, and the requirements of the Sex Offender Monitoring Act, see Riley v.
State Parole Bd., 219 N.J. 270 (2014), in the context of a challenge predicated on the
registration requirement. (pp. 22-25)
8. The Court disapproves of the analysis of Timmendequas and reverses the Appellate
Division’s decision in this matter, which relied on Timmendequas. If the Legislature has
the authority to create new penalties for noncompliance with administrative obligations,
as it did in Megan’s Law, it would be incongruous if it could not prospectively upgrade
the penalty for violating an existing administrative obligation. (p. 25)
Outcome: REVERSED. R.B.’s matter is REMANDED to the trial court. H.B.’s
conviction and sentence are REINSTATED.
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