IN THE MATTER OF REGISTRANT R.H. (ML-0210-0009, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

CourtNew Jersey Superior Court Appellate Division
DecidedNovember 26, 2018
DocketA-0880-17T1
StatusUnpublished

This text of IN THE MATTER OF REGISTRANT R.H. (ML-0210-0009, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (IN THE MATTER OF REGISTRANT R.H. (ML-0210-0009, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
IN THE MATTER OF REGISTRANT R.H. (ML-0210-0009, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED), (N.J. Ct. App. 2018).

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NO. A-0880-17T1

IN THE MATTER OF REGISTRANT R.H. ___________________________

Argued October 29, 2018 – Decided November 26, 2018

Before Judges Messano, Gooden Brown, and Rose.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. ML-0210- 0009.

Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for appellant (Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Jeffrey L. Weinstein, on the brief).

James H. Maynard argued the cause for respondent (Maynard Law Office, LLC, attorneys; James H. Maynard, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from the September 15, 2017 Law

Division order granting R.H.'s motion to terminate and remove all Megan's Law obligations, requirements, and disabilities pursuant to N.J.S.A. 2C:7-2(f), which

provides that

[e]xcept as provided in [N.J.S.A. 2C:7-2(g)], a person required to register under [Megan's Law] may make application to the Superior Court . . . to terminate the obligation upon proof that the person has not committed an offense within [fifteen] years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.

We affirm.

By way of background, on January 25, 1999, R.H. pled guilty to first-

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(b), second-degree

sexual assault, N.J.S.A. 2C:14-2(a)(3)(b), and second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a). The charges stemmed from R.H., then

a school teacher, having sexual contact with a sixteen-year-old female student

over the course of a year. On May 7, 1999, R.H. was sentenced to an aggregate

term of five years' imprisonment,1 community supervision for life, N.J.S.A.

2C:43-6.4(a), and ordered to comply with the requirements of Megan's Law,

1 Pursuant to the terms of the plea agreement, R.H. was sentenced to a term one degree lower on the aggravated sexual assault charge in accordance with N.J.S.A. 2C:44-1(f)(2). A-0880-17T1 2 N.J.S.A. 2C:7-2(a). Since his release from prison in 2002, R.H. has not been

convicted of any new offenses.

R.H. filed a motion to terminate his obligation to register under Megan's

Law pursuant to N.J.S.A. 2C:7-2(f), and terminate his community supervision

for life sentence pursuant to N.J.S.A. 2C:43-6.4(c). In support, R.H. certified

that he had remained offense free since his release, had been married for forty-

five years, had maintained stable employment until his retirement a few years

prior, and did not use illicit drugs or drink alcohol. R.H. also submitted a

psychosexual evaluation and actuarial risk assessment report prepared by James

R. Reynolds, Ph.D., opining that R.H. was not likely to commit another sexual

offense and did not pose a risk of harm to others in the community.

While the State did not oppose the termination of R.H.'s community

supervision for life sentence, the State objected to the termination of his Megan's

Law obligations, asserting that he was statutorily barred from seeking

termination pursuant to N.J.S.A. 2C:7-2(g), which makes the lifetime

registration requirements "permanent [and] irrevocable" for certain of fenders.

In re State ex rel. C.K., 233 N.J. 44, 66 (2018). Enacted on January 8, 2002,

and effective immediately, N.J.S.A. 2C:7-2(g) provides in pertinent part:

A person required to register under [Megan's Law] who has been convicted of . . . more than one sex offense as

A-0880-17T1 3 defined in [N.J.S.A. 2C:7-2(b)]2 or who has been convicted of . . . aggravated sexual assault pursuant to subsection [(a)] of [N.J.S.A. 2C:14-2] . . . is not eligible under [N.J.S.A. 2C:7-2(f)] to make application to the Superior Court . . . to terminate the registration obligation.

According to the State, although R.H.'s convictions predated the enactment,

under Doe v. Poritz, 142 N.J. 1, 25 (1995), retroactive application of Megan's

Law is not barred by ex post facto challenges because the statute is not penal ,

but rather a regulatory provision designed to protect the public.

Following oral argument, on September 15, 2017, the trial court granted

R.H.'s motion. In a comprehensive written decision, the court acknowledged

that "Megan's Law is a civil regulatory registration requirement," and

determined that "retroactive application of N.J.S.A. 2C:7-2(g) should be

evaluated under the standard used to determine retroactive application of civi l

statutes, articulated in Phillips v. Curiale[,128 N.J. 608 (1992)]." Under that

analysis, the court concluded that "without direction from the legislature as to

their explicit or implicit intent regarding retroactive application of N.J.S.A.

2C:7-2(g)[,] retroactive application is inappropriate." Moreover, according to

2 Sex offenses defined in N.J.S.A. 2C:7-2(b) include a conviction for "aggravated sexual assault; sexual assault; . . . [and] endangering the welfare of a child by engaging in sexual conduct[,] which would impair or debauch the morals of the child pursuant to subsection [(a)] of [N.J.S.A.] 2C:24-4." A-0880-17T1 4 the court, "retroactive application . . . is still inappropriate because it would

interfere with [the] [r]egistrant's vested rights and create manifest injustice."

The court explained that because "there existed the possibility for termination

of those obligations under N.J.S.A. 2C:7-2(f)" when R.H. "was convicted and

Megan's Law obligations imposed," R.H. had "a vested right . . . protected by

the standard articulated in Phillips v. Curiale." Further, "retroactive application

of N.J.S.A. 2C:7-2(g) would create a manifest injustice as it would impose a life

time registration requirement on [R.H.] without consideration of his low risk of

reoffending." The court entered a conforming order and this appeal followed.

On appeal, the State raises the following points for our consideration:

POINT I

APPLYING N.J.S.A. 2C:7-2(G) TO REGISTRANTS WHO, LIKE R.H., WERE NOT ELIGIBLE FOR MEGAN'S LAW TERMINATION WHEN SUBSECTION G WAS PASSED IS NOT A RETROACTIVE APPLICATION OF THE STATUTE.

POINT II

EVEN UNDER A "CIVIL" BASED RETROACTIVITY ANALYSIS, SUBSECTION G APPLIES TO R.H.

In In re Registrant G.A., 455 N.J. Super. 515, 522 (App. Div. 2018), we

rejected similar arguments and concluded that the retroactive application of

A-0880-17T1 5 subsection (g) to those convicted of sex offenses prior to its effective date in

2002 was not the intent of the Legislature and would, in any event, be manifestly

unfair if applied to such offenders. Initially, we rejected the State's argument

that N.J.S.A. 2C:7-2(g) was not applied retroactively to R.H. and others like him

because R.H. sought termination fifteen years after N.J.S.A. 2C:7-2(g) was

enacted. We observed that "[a] law is retrospective if it 'appl[ies] to events

occurring before its enactment' or 'if it changes the legal consequences of acts

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Miller v. Florida
482 U.S. 423 (Supreme Court, 1987)
Doe v. Poritz
662 A.2d 367 (Supreme Court of New Jersey, 1995)
Phillips v. Curiale
608 A.2d 895 (Supreme Court of New Jersey, 1992)
Nobrega v. Edison Glen Associates
772 A.2d 368 (Supreme Court of New Jersey, 2001)
George C. Riley v. New Jersey State Parole Board (069327)
98 A.3d 544 (Supreme Court of New Jersey, 2014)
Karen K. Johnson v. Roselle Ez Quick, Llc(075044)
143 A.3d 254 (Supreme Court of New Jersey, 2016)
In re G.H.
190 A.3d 1059 (New Jersey Superior Court App Division, 2018)
In re State
182 A.3d 917 (Supreme Court of New Jersey, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
IN THE MATTER OF REGISTRANT R.H. (ML-0210-0009, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED), Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-registrant-rh-ml-0210-0009-hunterdon-county-and-njsuperctappdiv-2018.