State of New Jersey v. Hakum Brown a/k/a Hakeem Brown AND State of New Jersey v. Rodney Brown

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.

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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)

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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)

REVERSED. R.B.’s matter is REMANDED to the trial court. H.B.’s

conviction and sentence are REINSTATED.