RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1635-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

F.W.,

Defendant-Appellant.

__________________________________

Submitted September 22, 2015 - Decided

Before Judges Reisner, Leone and Whipple.

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, 

Indictment No. 12-09-02209. 

Joseph E. Krakora, Public Defender, attorney 

for appellant (Susan Remis Silver, Assistant 

Deputy Public Defender, of counsel and on 

the brief). 

John J. Hoffman, Acting Attorney General, 

attorney for respondent (Jeffrey P. Mongiello, 

Deputy Attorney General, of counsel and on 

the brief). 

The opinion of the court was delivered by

REISNER, P.J.A.D.

Defendant appeals from his conviction, after a bench trial, 

for the fourth-degree offense of violating the conditions of his 

special sentence of community supervision for life (CSL) by 

APPROVED FOR PUBLICATION

January 14, 2016

APPELLATE DIVISION

January 14, 2016
2 A-1635-13T3

failing to report to his parole officer, N.J.S.A. 2C:43-6.4(d), 

and for the third-degree offenses of violating two provisions of 

the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.94 

(failure to comply with any SOMA monitoring requirement) and 

N.J.S.A. 30:4-123.95 (interfering with his SOMA-required 

electronic monitoring device). Defendant also challenges the 

sentence imposed, consisting of five years in prison for the 

SOMA convictions, concurrent to eighteen months in prison for 

the CSL conviction.1 He raises the following issues on his 

appeal:

I. [F.W.'S] DUE PROCESS RIGHTS WERE VIOLATED 

WHEN THE STATE PLACED HIM ON CONTINUOUS GPS 

MONITORING WITHOUT PROVIDING ANY BASIS FOR 

THE SURVEILLANCE AND WITHOUT PROVIDING ANY 

HEARING WHERE HE COULD CHALLENGE THE GPS 

MONITORING THROUGH CROSS-EXAMINATION AND 

PRESENTATION OF WITNESSES WITH THE 

ASSISTANCE OF COUNSEL. 

II. THE RETROACTIVE APPLICATION OF THE SEX 

OFFENDER MONITORING ACT TO THE DEFENDANT 

MORE THAN TWO YEARS AFTER HIS RELEASE FROM 

PRISON ON COMMUNITY SUPERVISION FOR LIFE 

VIOLATES HIS RIGHTS UNDER THE EX POST FACTO 

CLAUSES OF THE UNITED STATES CONSTITUTION 

AND NEW JERSEY CONSTITUTION.

III. THE TRIAL COURT ERRED WHEN IT 

CONSIDERED AS AGGRAVATING FACTORS THE 

 

1 When defendant was convicted, N.J.S.A. 2C:43-6.4(d) provided 

that a CSL violation was a fourth-degree crime. In 2014, the 

Legislature amended N.J.S.A. 2C:43-6.4(d) to provide that a CSL 

violation is punishable as a third-degree crime. See L. 2013, 

c. 214 (approved Jan. 17, 2014). 
3 A-1635-13T3

DEFENDANT'S ALLEGED LACK OF REMORSE AND 

FAILURE TO ACCEPT RESPONSIBILITY, AND WHEN 

THE COURT FAILED TO PROPERLY WEIGH 

AGGRAVATING AND MITIGATING FACTORS AND 

IMPOSED AN EXCESSIVE SENTENCE.

We affirm defendant's conviction for violating the terms of 

his CSL, N.J.S.A. 2C:43-6.4(d). His appeal from the eighteenmonth prison term imposed for that conviction is now moot 

because he has served that entire term.2 On the other hand, 

consistent with the Supreme Court's recent opinions in Riley v. 

New Jersey State Parole Board, 219 N.J. 270 (2014), and State v. 

Perez, 220 N.J. 423 (2015), we hold that prosecuting and 

punishing defendant for third-degree crimes, created by SOMA 

after he committed his predicate offense, violated the Ex Post 

Facto Clause. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. 

IV; § 7, ¶ 3; see State v. Fortin, 178 N.J. 540, 608 n.8 (2004). 

Defendant's SOMA-related convictions, and the five-year prison 

term imposed for those convictions, must therefore be reversed. 

In reaching our decision, we do not hold that defendant and 

other sex offenders whose predicate offenses predated SOMA 

cannot be placed on Global Positioning Satellite (GPS) 

monitoring. The CSL statute, when enacted in 1994, authorized

 

2 Defendant was sentenced on August 16, 2013, and received 365 

days of jail credit. His brief indicates that he is no longer 

confined, and clearly his CSL sentence has been served. We need 

not address his SOMA-based sentencing argument because we are 

reversing his SOMA conviction. 
4 A-1635-13T3

the Parole Board to subject CSL offenders to "conditions 

appropriate to protect the public." See L. 1994, c. 130, § 2 

(then codified as N.J.S.A. 2C:43-6.4(b)). We perceive no reason 

why that could not include GPS monitoring of a CSL offender in 

appropriate circumstances, regardless of the date on which he 

committed the predicate offenses. For example, we note that the 

Board has adopted regulations governing electronic monitoring of 

offenders subject to CSL and parole supervision for life (PSL), 

which would permit monitoring as a result of a violation of CSL 

or PSL. See N.J.A.C. 10A:72-10.1(a)(3); see also N.J.A.C.

10A:72-2.4(b)(3)(ii). The regulations provide an offender the 

due process right to be heard before monitoring is imposed, with 

a review after 90 days, and set a maximum time limit of 180 days 

for the monitoring, after which it will be terminated if no 

longer warranted. See N.J.A.C. 10A:72-10.1 to -10.9; see also

N.J.A.C. 10A:72-11.1 to -11.6.3 Nothing in this opinion would 

preclude application of those regulations to defendant. 

 

3 The CSL regulations were first adopted in 2011, in response to 

the Court's decision in Jamgochian v. New Jersey State Parole 

Board, 196 N.J. 222, 250 (2008), holding that a CSL offender was 

entitled to due process before imposition of a curfew as a 

special condition of CSL. See 43 N.J.R. 1408(a). The Board 

adopted similar regulations governing GPS monitoring under SOMA 

in 2012, apparently in response to the Appellate Division's 

decision in Riley v. New Jersey State Parole Board, 423 N.J. 

Super. 224 (App. Div. 2011), aff'd, 219 N.J. 270 (2014). See 44 

N.J.R. 2098(a) (Aug. 20, 2012).
5 A-1635-13T3

I

 In 1999, a jury convicted defendant of fourth-degree 

lewdness and third-degree endangering the welfare of a child 

(the predicate offenses), crimes he committed in 1997. On April 

4, 2000, he was sentenced to five years of probation, 

conditioned on 562 days in the county jail which he had already 

served. As part of his sentence, he was also required "to 

comply with . . . Megan's Law including community supervision 

for life." Defendant violated the terms of his probation and 

was re-sentenced to prison. He was released on parole in 2006 

and, after he served the maximum time on parole, he was placed 

on CSL supervision. 

According to a report later issued by the Parole Board, a 

few months after defendant was placed on CSL, he was arrested 

for a CSL violation for having contact with minors and failing 

to attend required counseling. He was arrested for similar CSL 

violations in April 2007. He was arrested a third time in 

December 2007 for failing to notify his parole officer of a 

change in his residence. According to the pre-sentence report 

issued in connection with the current convictions, defendant was 

criminally prosecuted three times for violating N.J.S.A. 2C:43-

6.4(d). At his trial leading to the current appeal, defendant 

admitted the previous violations, although he claimed he did not 
6 A-1635-13T3

commit them "intentionally." He confirmed that the three prior 

prosecutions were resolved by "plea offer."4

After defendant's December 2007 CSL violation, his Parole 

Officer recommended that he "be enrolled in the Sex Offender GPS 

Monitoring Program." The Chairman of the State Parole Board 

(Parole Board Chairman) adopted that recommendation on June 6, 

2008. See N.J.S.A. 30:4-123.91(a). On June 23, 2008, defendant 

signed a notice advising him that he was being assigned to the 

GPS monitoring program "[p]ursuant to [SOMA], which was enacted 

on August 6, 2007." The notice did not specify any time limit 

on defendant's obligation to wear a GPS tracking device twentyfour hours a day. Defendant was not given notice of a right to 

any due process, nor was he given an opportunity to be heard, 

before this new and onerous lifetime condition was imposed. Nor 

was he advised of a right to appeal the decision to this court.5 

The notice warned defendant that a violation of SOMA was a

third-degree crime punishable by up to five years in prison. 

 

4 Neither party's appendix provides us with those judgments of 

conviction.

5 Because the GPS condition was imposed pursuant to SOMA rather 

than as a special condition of defendant's CSL, the Board also 

did not follow the then-existing CSL regulations, which required 

review and approval by a Board Panel prior to the imposition of 

any special condition of CSL supervision. See N.J.A.C. 10A:71-

6.11(k).
7 A-1635-13T3

Defendant wore the GPS tracker until 2012, when he removed 

the device and ceased reporting to his assigned parole officer. 

On that basis, he was prosecuted and convicted for a CSL 

violation (failing to report to the parole officer), and two 

SOMA violations (failure to comply with a SOMA monitoring 

requirement and interfering with the GPS device while subject to 

SOMA). 

II

Megan's Law was enacted in 1994, as a complex of 

legislation designed to protect the public from sex offenders. 

See Perez, supra, 220 N.J. at 436-37. Since the 1994 enactment, 

the Legislature has imposed additional requirements and 

restrictions on convicted sex offenders. A brief review of the 

history provides some helpful background. 

We begin by considering the CSL statute, N.J.S.A. 2C:43-

6.4, as it existed when defendant committed his predicate 

offenses. The statute creating community supervision for life

was enacted in 1994, L. 1994, c. 130, § 2, as part of Megan's 

Law, and was not amended until 2003. Perez, supra, 220 N.J. at 

436-37. In Jamgochian, supra, the Court summarized the 1994 

version of the statute as follows: 

Community supervision for life was "designed 

to protect the public from recidivism by 

defendants convicted of serious sexual 

offenses." 
8 A-1635-13T3

In 1998, N.J.S.A. 2C:43-6.4(b) provided 

that "[p]ersons serving a special sentence 

of community supervision shall be supervised 

as if on parole and subject to conditions 

appropriate to protect the public and foster 

rehabilitation." (emphasis added). Those 

offenders serving a "special sentence" are 

under the supervision of the State Parole 

Board's Division of Parole. N.J.A.C. 10A:71-

6.11(b). One of the twenty-one general 

conditions applicable to communitysupervised-for-life offenders is 

"[c]ompl[iance] with any curfew established 

by the assigned parole officer." N.J.A.C.

10A:71-6.11(b)(17). In addition to the 

general conditions, supervised offenders are 

required to abide by "any special 

conditions established by the appropriate 

[Parole] Board panel." Ibid. A violation 

of a "condition of a special sentence" is a 

fourth-degree crime carrying a presumption 

of imprisonment. N.J.S.A. 2C:43-6.4(d). 

[Jamgochian, supra, 196 N.J. at 237-38 

(additional citations omitted).]

In addition to the curfew, offenders subject to CSL "face a 

variety of conditions beyond those imposed on non-sex-offender 

parolees." Perez, supra, 220 N.J. at 437. For example, as set 

forth in the Parole Board's regulations, N.J.A.C. 10A:71-6.11, 

those subject to CSL must obtain the Board's approval of their 

residence and any change of residence; must obtain approval of 

employment and notify the Board of any change in employment 

status; may be subjected to annual polygraph examinations; and 

are restricted in their access to and use of the internet. 

N.J.A.C. 10A:71-6.11(b). 
9 A-1635-13T3

In 2003, the Legislature adopted the parole supervision for 

life statute, which specifically defined a convicted sex 

offender's post-sentence supervision as "parole" instead of "as 

if on parole." See N.J.S.A. 2C:43-6.4(b), as amended by L.

2003, c. 267, § 1. Most recently, the Court has held that PSL 

and CSL "are distinct special post-sentence supervisory schemes 

for certain sex offenders," and they cannot be treated as 

interchangeable, notwithstanding the Legislature's 

characterization of the PSL statute as a "clarification" of the 

CSL statute. Perez, supra, 220 N.J. at 428, 442. In Perez, the 

Court explained the difference between CSL and PSL:

Persons serving CSL are "supervised as 

if on parole." N.J.S.A. 2C:43-6.4(b). Any 

violation of one or more conditions of CSL 

is a fourth-degree offense. N.J.S.A. 2C:43-

6.4(d). In other words, a violation of CSL 

is punishable only as a crime; the Parole 

Board cannot return a defendant to prison 

through the parole-revocation process. 

Sanchez v. N.J. State Parole Bd., 368 N.J. 

Super. 181, 184, 845 A.2d 687 (App. Div.

2004), appeal dismissed per stipulation, 187 

N.J. 487, 901 A.2d 951 (2006). . . . By 

contrast, following the 2003 amendment, a 

defendant who commits a predicate offense 

and is sentenced to PSL is "in the legal 

custody of the Commissioner of Corrections 

[and] shall be supervised by the Division of 

Parole of the State Parole Board" for life. 

N.J.S.A. 2C:43-6.4. A violation of PSL may 

be prosecuted as a fourth-degree offense, 

N.J.S.A. 2C:43-6.4(d), but it may also be 

treated as a parole violation, N.J.S.A.

2C:43-6.4(b). . . . [T]he almost-universal 
10 A-1635-13T3

practice . . . is to revoke a [PSL] 

defendant's parole and return him to prison.

In addition, a defendant serving a 

special sentence of CSL who commits an 

enumerated offense is subject to a mandatory 

extended term under N.J.S.A. 2C:43-

6.4(e)(1). The prosecutor, however, is 

required to notify the court and the 

defendant of her intention to seek such a 

sentence, and the defendant has the 

opportunity to controvert the grounds cited 

by the prosecutor, N.J.S.A. 2C:43-6.4(e)(2). 

A defendant subject to CSL who is sentenced 

to an extended term pursuant to N.J.S.A.

2C:43-6.4(e)(1) is eligible for parole. . . . 

By contrast, . . . a person serving a 

special sentence of PSL who commits an 

enumerated offense is not eligible for 

parole and will spend more years in prison 

than a person serving a special sentence for 

CSL who commits the same offense.

[Id. at 441-42 (footnote omitted).]

Because PSL imposes greater punishment on an offender than 

CSL does, an offender sentenced to CSL cannot later be subjected 

to the harsher special sentencing provisions of the PSL statute. 

Perez, supra, 220 N.J. at 442. 

This is not a difference in form. The 

elimination of any prospect for parole 

enhances the penal consequences for a person 

placed on CSL status before January 14, 

2004. Applying the current version of 

N.J.S.A. 2C:43-6.4(e) to defendant requires 

him to spend many additional years in prison 

due to this so-called clarification. As 

applied to defendant, the 2003 amendment to 

N.J.S.A. 2C:43-6.4(e) enhances the punitive 

consequences of the special sentence of CSL 

to his detriment and violates the federal 
11 A-1635-13T3

and state prohibition of ex post facto 

legislation.

[Ibid.]

Likewise, because CSL is a form of punishment, it cannot be 

imposed as a new requirement on an offender who has successfully 

served his entire original sentence. See State v. Schubert, 212 

N.J. 295, 312-13 (2012). 

In 2007, the Legislature enacted the Sex Offender 

Monitoring Act, N.J.S.A. 30:4-123.89 to -123.95, which in some 

cases requires and in other cases authorizes the Parole Board

Chairman to impose GPS monitoring on certain convicted sex 

offenders. Notably, SOMA either requires or permits the 

imposition of GPS monitoring based on the type of sexual offense 

an individual committed in the past, his Megan's Law tier 

designation based on that offense, and his status as a CSL or 

PSL parolee. N.J.S.A. 30:4-123.91(a) (defining "monitored 

subject"). 

On its face, the statute appears to require GPS monitoring 

of all tier three sex offenders. See N.J.S.A. 30:4-

123.91(a)(1). In addition, the statute gives the Parole Board 

Chairman discretion to require GPS monitoring of any person "who 

the chairman deems appropriate for continuous [GPS] monitoring" 

and who: has been discharged from commitment as a sexually 

violent predator, has been sentenced to CSL or PSL, or has been 
12 A-1635-13T3

convicted of a listed sexual offense against a victim under age 

eighteen or over age sixty. N.J.S.A. 30:4-123.91(a)(2). In 

exercising discretion, the Parole Board Chairman is to consider 

static or unchangeable factors, including "the risk to the 

public posed by the subject, based on relevant risk factors such 

as the seriousness of the offense, the age of the victim or 

victims, [and] the degree of force and contact." N.J.S.A. 30:4-

123.91(b).6 That list does not include a finding that the 

individual has committed a new offense or has violated the 

conditions of his CSL or PSL.

In addition to the static risk factors, which reflect the 

offense for which the individual was convicted, the chairman may 

consider "any other factors [he or she] deems appropriate." 

N.J.S.A. 30:4-123.91(b); N.J.A.C. 10A:72-11.1(b). Neither the 

statute nor the implementing regulations define those "other 

factors." Moreover, at least at the time GPS monitoring was 

imposed on defendant, once the Parole Board Chairman decided to 

impose GPS monitoring on an individual, it became a lifetime 

requirement. See Riley, supra, 219 N.J. at 295. 

 

6 The statute also states that it does not preclude a judge from 

sentencing a convicted sex offender to GPS "or other electronic 

monitoring . . . as a condition or requirement of supervision" 

in connection with sentencing a defendant to CSL or PSL pursuant 

to N.J.S.A. 2C:43-6.4. See N.J.S.A. 30:4-123.91(c). 
13 A-1635-13T3

In Riley, the Court held that the Ex Post Facto Clause

precluded SOMA from being applied retroactively to an individual 

who committed his sexual offense before SOMA was adopted, had 

served his entire sentence before that date, was not on any form 

of parole when SOMA was adopted, but was nonetheless notified by 

the Parole Board in 2009 that pursuant to SOMA he would be 

subject to GPS monitoring for the rest of his life. The Court 

noted the limitations of the question it was considering in 

Riley:

Initially, it is important to note the 

scenarios not implicated here. This is not 

a case about a defendant who committed a 

crime after the passage of SOMA or about a 

defendant who was subjected to the 

additional condition of GPS monitoring for 

the duration of his probation or parole. The 

only question we address is whether a 

defendant who committed a past offense and 

completed his sentence before enactment of 

SOMA can be subjected to the Parole Board's 

regime of GPS monitoring.

[Id. at 291 (emphasis added).]

In rejecting the State's argument that Riley's tier 

classification was a new event that warranted the imposition of 

GPS monitoring, the Court reasoned that the tier classification 

itself was a product of Riley's past conduct: 

Riley's Tier 3 designation was based on his 

1986 conviction and other prior sexual 

offense convictions. At the Megan's Law 

hearing, the court made no independent 

assessment of Riley's current dangerousness 
14 A-1635-13T3

unrelated to his prior convictions. The 

predicate events responsible for Riley's 

current regime of GPS monitoring are his 

1986 sexual offense and earlier offenses, 

and therefore the question is whether SOMA 

can retroactively apply to completed conduct 

without offending the Constitution.

[Id. at 292.]

In determining that SOMA imposed punishment, despite its 

claimed remedial purpose, the Court noted that GPS monitoring 

was in some respects even more "onerous" than lifetime parole 

supervision: 

SOMA looks like parole, monitors like 

parole, restricts like parole, serves the 

general purpose of parole, and is run by the 

Parole Board. Calling this scheme by another 

name does not alter its essential nature.

SOMA does not share the exact conditions of 

parole supervision for life. Cf. N.J.A.C.

10A:71-6.12(d) (defining conditions of 

parole supervision for life). In some ways, 

SOMA is both more and less onerous than 

parole supervision for life. Nevertheless, 

SOMA plays a role sufficiently similar to 

allow the comparison. Moreover, Riley cannot 

do anything to alter his Tier 3 (high risk) 

designation, which is based on his prior 

convictions. Unlike the Sexually Violent 

Predator Act, which permits for yearly 

review to determine whether the committee 

continues to pose a danger to the public and 

which allows for his release if he does not, 

N.J.S.A. 30:4-27.35 to -27.36, SOMA ensures 

that Riley's future is static—he is 

condemned to wear the electronic monitoring 

device for the rest of his life.

[Id. at 294-95.]
15 A-1635-13T3

Ultimately, the Court determined that the full panoply of 

restrictions imposed by SOMA, including lifetime GPS monitoring,

was so punitive that its imposition on Riley years after he 

committed his crime and completed his sentence violated ex post 

facto principles. 

In the end, we conclude that SOMA's adverse 

effects are "so punitive . . . as to negate 

the State's intent to deem it only civil and 

regulatory." The retroactive application of 

SOMA to George Riley twenty-three years 

after he committed the sexual offense at 

issue and after he fully completed his 

criminal sentence violates the Ex Post Facto 

Clauses of the United States and New Jersey 

Constitutions.

[Id. at 297 (citations omitted).]

On the other hand, earlier in its discussion, the Court 

indicated: "We do not suggest that GPS monitoring may not be 

added as a condition of parole supervision that is ongoing — that 

is, while the offender is still serving his sentence." Id. at 

290 (emphasis added).7

Neither Perez nor Riley directly answers the question posed 

by this case, namely whether a person in defendant's situation, 

who committed his crime a decade before SOMA was enacted but who 

 

7 Had the Court not added that sentence, Riley might have drawn 

in question Parole Board regulations which authorize the Board 

to impose limited electronic monitoring, on a case-by-case 

basis, on any parolee who violates parole. See N.J.A.C. 10A:72-

2.4(b)(3)(ii). 
16 A-1635-13T3

was on lifetime CSL at the time SOMA was enacted, may be 

subjected to SOMA, including prosecution for SOMA's newly 

created third-degree crimes. To address the question, we first 

consider what the Ex Post Facto Clause prohibits:

The Ex Post Facto Clause of the U.S. 

Constitution prohibits "any statute which 

punishes . . . an act previously committed, 

which was innocent when done; which makes 

more burdensome the punishment for a crime, 

after its commission, or which deprives one 

charged with crime of any defense available 

. . . at the time when the act was 

committed." The Ex Post Facto Clause is 

"aimed at laws that 'retroactively alter the 

definition of crimes or increase the 

punishment for criminal acts.'" To 

constitute an ex post facto penal law, a 

change in the law "'must be retrospective, 

that is, it must apply to events occurring 

before its enactment, and it must 

disadvantage the offender affected by it.'" 

"There is 'no ex post facto violation . . . 

if the change in the law is merely 

procedural and does not increase the 

punishment, nor change the ingredients of 

the offence or the ultimate facts necessary 

to establish guilt.'" New Jersey's ex post 

facto jurisprudence follows the federal 

jurisprudence.

[Perez, supra, 220 N.J. at 438-39 (emphasis 

added) (citations omitted).]

In Riley, the Court specifically recognized that SOMA was a 

"penal rather than civil law." Riley, supra, 219 N.J. at 275. 

Therefore, its application can implicate ex post facto 

considerations. The Court also recognized the harshness of 

imposing GPS monitoring as a lifetime requirement, with no 
17 A-1635-13T3

possibility of relief, and acknowledged that in some respects 

SOMA's application is even more onerous than lifetime parole. 

Id. at 295. That was the situation when the Board imposed GPS 

monitoring on defendant and on Riley.8

Further, although Perez did not address SOMA, the Court 

found that the ex post facto analysis "turn[ed] on whether the 

2003 [PSL] amendment [made] more burdensome the punishment of a 

crime after its commission." Perez, 220 N.J. at 440. The Court 

concluded that, by eliminating "any prospect for parole" for 

certain crimes committed by a person on PSL, the Legislature had 

enhanced "the penal consequences for a person placed on CSL 

status before" enactment of the PSL statute. Id. at 442. By 

enhancing "the punitive consequences" of the CSL statute to the 

defendant's detriment, application of the PSL law to the 

defendant violated the Ex Post Facto Clause. Ibid. 

In this case, we conclude that prosecuting defendant for 

the third-degree crimes created by SOMA violated the Ex Post 

Facto Clause. The SOMA offenses did not exist when defendant 

committed his predicate offenses in 1997, and at that time, 

 

8 By 2013, when defendant's trial took place, the Board had 

regulations enabling GPS-monitored offenders to be released from 

that requirement after a periodic Board review. N.J.A.C. 10A:72-

11.4. But those regulations did not exist in 2008, when 

defendant was ordered into the SOMA GPS program, and nothing in 

this record suggests that the Board imposed anything less than 

lifetime GPS monitoring on this defendant. 
18 A-1635-13T3

violating CSL was a fourth-degree crime. It may be argued that 

prosecution under SOMA was not retrospective for ex post facto 

purposes, because SOMA was enacted before defendant committed 

his December 2007 violation of CSL. However, GPS monitoring 

under SOMA was imposed on petitioner because he "ha[d] been 

sentenced to a term of community or parole supervision for life 

pursuant to [N.J.S.A. 2C:43-6.4]." N.J.S.A. 30:4-

123.91(a)(2)(b); see N.J.S.A. 30:4-123.90(e) (stating that GPS 

tracking should be used for offenders who "received or are 

serving a special sentence of community or parole supervision 

for life"). It was thus imposed as a further element of 

defendant's post-release supervision during his CSL sentence for 

his predicate offenses. As discussed below, the Legislature 

could not retroactively increase the punishment for a violation 

of defendant's post-release supervision. 

For purposes of ex post facto analysis of penalties for 

violating the terms of post-release supervision, "postrevocation 

sanctions" are treated "as part of the penalty for the initial 

offense." Johnson v. United States, 529 U.S. 694, 700, 120 S. 

Ct. 1795, 1800, 146 L. Ed. 2d 727, 736 (2000). See Riley, 

supra, 219 N.J. at 292 (citing Johnson, supra, 529 U.S. at 701, 

120 S. Ct. at 1801, 146 L. Ed. 2d at 736). In deciding whether 

such a sanction offends ex post facto principles "[w]e . . . 
19 A-1635-13T3

attribute postrevocation penalties to the original conviction." 

Johnson, supra, 529 U.S. at 701, 120 S. Ct. at 1801, 146 L. Ed.

2d at 736. Thus, "[p]enalties for violation of the terms of 

supervised release, including the penalty of additional 

supervised release, are attributed to the original conviction 

rather than to the violation." Commonwealth v. Cory, 911 N.E.

2d 187, 192 (Mass. 2009). "Since postrevocation penalties 

relate to the original offense, to sentence [defendant] to a 

further [punishment] would be to apply this section 

retroactively" and would "raise the remaining ex post facto 

question [of] whether that application makes him worse off." 

Johnson, supra, 529 U.S. at 701, 120 S. Ct. at 1801, 146 L. Ed.

2d at 736.

In this case, application of those principles leads us to 

conclude that the Ex Post Facto Clause barred defendant's 

prosecution for a third-degree crime. Being prosecuted for a 

third-degree crime rather than a fourth-degree crime clearly 

made defendant "worse off." Ibid. Whether the increase in the 

degree and sentencing range of the penalties for violating postrelease supervision for his predicate offenses was effected by 

amending the penalty provision of the CSL statute, or by 

enacting a new statute like SOMA, the increased penalties for 

violating CSL, like those for violating any other form of 
20 A-1635-13T3

supervised release, are "attribute[d] . . . to the original 

conviction." Johnson, supra, 529 U.S. at 701, 120 S. Ct. at 

1801, 146 L. Ed. 2d at 736. The Legislature could not increase 

the penalty for violating defendant's supervised release and 

apply it retroactively to him. Consequently, even if GPS 

monitoring was imposed as a sanction for violating CSL, 

defendant could not be prosecuted or sentenced under the thirddegree crime provisions of SOMA. See Perez, supra, 220 N.J. at 

442.

To be clear, as the Court implied in Riley, our decision 

does not mean that a CSL offender in defendant's situation can 

never be subjected to GPS monitoring. As the Court appeared to 

suggest in Riley, being subject to GPS monitoring is not 

synonymous with being subject to SOMA. The CSL statute itself 

gives the Parole Board authority to impose special conditions of 

supervision on a CSL offender, as needed for the protection of 

the public. N.J.S.A. 2C:43-6.4(b) (1994); Jamgochian, supra, 

196 N.J. at 238. The fact that a CSL offender cannot be 

prosecuted using the later-created third-degree SOMA offenses 

does not preclude the Board from imposing some form of 

electronic monitoring on an offender who has violated the 

conditions of his ongoing CSL, regardless of when he committed 

the underlying offense for which the CSL sentence was imposed. 
21 A-1635-13T3

As previously noted, several years after the Parole Board 

imposed lifetime GPS monitoring on defendant under SOMA, the 

Board adopted regulations governing the measured and temporary 

imposition of electronic monitoring on individuals who were on 

CSL or PSL. N.J.A.C. 10A:72-10.1 to -10.9. Those regulations 

provide due process procedures by which those persons may 

challenge the imposition of such monitoring, and limit the 

monitoring to 180 days, with a review after the first 90 days. 

N.J.A.C. 10A:72-10.2. The regulations appear to be authorized 

under the CSL statute, N.J.S.A. 2C:43-6.4(b), and nothing in our 

opinion would preclude the Board from applying those regulations 

to defendant now that he has been released from prison. "[N]ot 

every change in parole regulation is of sufficient moment to 

transgress the constitutional [ex post facto] prohibition," only 

those which increase the punishment. Loftwich v. Fauver, 284 

N.J. Super. 530, 536 (App. Div. 1995); see Trantino v. N.J.

State Parole Bd., 331 N.J. Super. 577, 610 (App. Div. 2000), 

aff'd as modified, 166 N.J. 113 (2001).

In light of our disposition of this appeal, we need not 

decide defendant's alternate argument, based on Riley and Perez, 

that subjecting him to lifetime GPS monitoring under SOMA 

increased the punitive burden of his CSL sentence and violated 

the Ex Post Facto Clause. The Court has recognized the physical 
22 A-1635-13T3

discomfort and stigma of wearing GPS equipment, and the 

burdensome impact of lifetime GPS monitoring. Riley, supra, 219 

N.J. at 294-96. Moreover, the Parole Board Chairman's decision 

did not explain how defendant's CSL violations justified placing 

him on lifetime GPS monitoring, and such a requirement, 

untethered to a rational justification related to the purpose of 

CSL, might have ex post facto implications. See Perez, supra, 

220 N.J. at 442. 

However, we decline to address the issue further for two 

reasons. First, we have already reversed defendant's SOMA 

conviction on other grounds. Second, we anticipate that if 

defendant is subjected to GPS monitoring in the future, the 

Board will abide by its new regulations, which provide for both 

time limits on the monitoring and due process in its imposition. 

Thus, defendant will have a well-defined means of 

administratively challenging any future monitoring that may be

imposed, and an appeal from that process would come to this 

court on a more complete record than was presented to us here.

To summarize, defendant was properly convicted of violating 

the terms of his CSL, and he was sentenced to eighteen months in 

prison, which at that time was the maximum term for a CSL 

violation. However, because defendant could not lawfully be 

prosecuted for the third-degree SOMA offenses enacted after he 
23 A-1635-13T3

committed his predicate crimes, his conviction for violating 

SOMA must be reversed and the five-year sentence vacated.9 

Affirmed in part, reversed in part. 

 

9 In light of our resolution of the ex post facto issue, we also

need not address defendant's contention that, regardless of ex 

post facto considerations, he could not be prosecuted under SOMA 

for violating his GPS monitoring requirements, because the 

monitoring was imposed without a due process hearing.