Opinion
DOCKET NO. A-5469-13T1
04-19-2016
STATE OF NEW JERSEY IN THE INTEREST OF C.K.
James H. Maynard argued the cause for appellant C.K. (Maynard & Sumner, L.L.C., attorneys; Mr. Maynard, on the briefs). Elizabeth R. Rebein, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Rebein, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent New Jersey Office of Public Defender (Alison Perrone, Designated Counsel, on the brief). Carl Danziger, attorney for amicus curiae New Jersey Association for the Treatment of Sexual Abusers. Catherine Feeley and Marsha Levick of the Pennsylvania bar, admitted pro hac vice, attorneys for amicus curiae Juvenile Law Center (Ms. Feeley and Ms. Levick, on the brief). Rutgers Civil Practice Clinic, attorney for amicus curiae Rutgers School of Law-Camden Children's Justice Clinic (Sandra Simkins, Director, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FJ-02-2779-03. James H. Maynard argued the cause for appellant C.K. (Maynard & Sumner, L.L.C., attorneys; Mr. Maynard, on the briefs). Elizabeth R. Rebein, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Rebein, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent New Jersey Office of Public Defender (Alison Perrone, Designated Counsel, on the brief). Carl Danziger, attorney for amicus curiae New Jersey Association for the Treatment of Sexual Abusers. Catherine Feeley and Marsha Levick of the Pennsylvania bar, admitted pro hac vice, attorneys for amicus curiae Juvenile Law Center (Ms. Feeley and Ms. Levick, on the brief). Rutgers Civil Practice Clinic, attorney for amicus curiae Rutgers School of Law-Camden Children's Justice Clinic (Sandra Simkins, Director, on the brief). PER CURIAM
Defendant C.K. appeals from a June 18, 2014 order denying his second petition for post-conviction relief (PCR). Defendant challenges the constitutionality of N.J.S.A. 2C:7-2(g), which provides that persons adjudicated delinquent for aggravated sexual assault are subject to lifetime registration pursuant to Megan's Law, with no possibility of termination. He also asks this court to extend the holding of In re Registrant J.G., 169 N.J. 304 (2001), by further harmonizing Megan's Law with recent amendments to the Code of Juvenile Justice. We are constrained to affirm the trial judge's dismissal of defendant's petition for post-conviction relief. As an intermediate appellate court, we are bound by the Supreme Court's decisions in J.G., supra, and Doe v. Poritz, 142 N.J. 1 (1994). Any modifications of the holdings in those cases must come from the Supreme Court.
We use initials to protect the identity of offenders charged as juveniles, as well as juvenile victims.
Defendant was charged with sexually assaulting his younger brother, A.K., in April 2003. Defendant was twenty-three years old at the time he was charged, but was charged as a juvenile because the assault occurred when defendant was between fifteen and seventeen years old. Defendant pled guilty to the charge and was sentenced in juvenile court. During his plea colloquy, defendant admitted that he committed acts of sexual assault; that he was between fifteen and seventeen years old when they occurred; that A.K. was younger than thirteen years old when the acts occurred; and that defendant was more than four years older than the victim when the acts occurred.
Defendant was required to register as an offender pursuant to Megan's Law, and was designated as a Tier One offender pursuant to the Megan's Law Tiering and Community Notification System. See N.J.S.A. 2C:7-6 to -11. Pursuant to N.J.S.A. 2C:7-2(f) and (g), both adults and juveniles convicted of aggravated sexual assault are ineligible to apply for termination of their Megan's Law registration requirements. Therefore, because defendant was adjudicated delinquent of aggravated sexual assault, pursuant to N.J.S.A. 2C:14-1, he must continue to register as an offender under Megan's Law for the remainder of his life pursuant to N.J.S.A. 2C:7-2(g).
Tier one is the lowest risk category. See N.J.S.A. 2C:7-8(c)(1).
Defendant filed his first PCR petition on November 14, 2008. In his original petition, defendant raised the argument that he was denied effective assistance of counsel because of his attorney's failure to assert that subjecting a juvenile offender to lifetime Megan's Law registration, with no possibility of relief, violated his Substantive Due Process rights.
The PCR judge rejected the petition, concluding, among other things, that defendant's constitutional argument was foreclosed by our Supreme Court's decisions in Doe, supra, and In re Registrant J.G., supra. Defendant appealed the denial of his petition. State in the Interest of C.K., No. A-0292-10T4 (App. Div. November 10, 2011). We affirmed, and concluded that "defendant's constitutional arguments [are] foreclosed by our Supreme Court's opinions[.]" Id., slip op. at 4. We suggested in a footnote, however, that defendant was free to pursue another petition for PCR if he believed that his original PCR counsel failed to properly present his constitutional arguments, and that he should make an evidentiary record on the issue if he chose to do so. Id. at 4, 5 n.2.
Our opinion did not imply that, if defendant presented a more developed factual record, we would then be authorized to decide his constitutional issues in a manner departing from Supreme Court precedent. Rather, we perceived that defendant sought to raise substantial constitutional issues, which might warrant the Supreme Court's consideration, but such consideration would require a full evidentiary record. We also considered that the original PCR attorney's failure to present such a full record in support of the client's important constitutional claims could constitute ineffective assistance.
Defendant filed his second PCR petition on November 16, 2012, alleging that his initial PCR attorney was ineffective because he "failed to fully develop the constitutional argument included in the first petition for post-conviction relief." Defendant asserted that the offense-based bar against termination of his Megan's Law registration requirements violates his Equal Protection and Due Process rights under the Fourteenth Amendment because the statutory provision is not rationally related to a legitimate state interest. He also asserted that the bar violates Article 1, Paragraph 1 of the New Jersey Constitution, as well as the doctrine of "Fairness and Rightness." The trial court granted defendant an evidentiary hearing on this petition.
During the hearing, defendant presented several expert witnesses. Most of these witnesses, such as Jackson Tay Bosley, Ph.D., testified as to the general ineffectiveness of an offense-based registration system for juvenile sex offenders. Robert Prentky, Ph.D., testified as to the generally low risk of sexual assault recidivism in juvenile offenders; he testified that juvenile offenders have a much greater chance at success with rehabilitative measures than adults do, and that the criminal justice system should treat juveniles differently as a result.
Nicole Pittman, Esq., testified on the effects of registration requirements on juvenile sex offenders. She opined that juvenile offenders posed far less risk to the public than adult offenders and that defendant's Megan's Law status interferes with and negatively impacts most facets of his day-to-day life. James Reynolds, Ph.D., testified that, because the recidivism rate of juvenile sex offenders is substantially lower than that of adult sex offenders, an offense-based system of punishment is not rationally linked to the goals of sex offender treatment or community protection.
Although defendant asserts that juveniles should be treated as a suspect class for purposes of review under the Equal Protection Clause of the Fourteenth Amendment, we note that our Supreme Court has applied rational basis review when discussing the registration status of Megan's Law offenders. See Doe, supra, 142 N.J. at 92-93 (citing State v. Wingler, 25 N.J. 161, 176 (1957)). Defendant has not cited to any other authority declaring juveniles a suspect class for equal protection purposes.
Finally, defendant called Sean Hiscox, Ph.D., who asserted that an offense-based assessment system was inferior to a risk-based assessment system because of the low risk of recidivism among juvenile sex offenders. He testified that lifetime registration requirements should be based on the risks that individual offenders pose to the public, and should not be based on the specific crime that a juvenile offender committed because of the lack of recidivism risk. Hiscox concluded that defendant was leading a stable life and was well-functioning emotionally, but was struggling with employment because of his apprehension concerning background checks and disclosure of his Megan's Law status. Hiscox testified that, had defendant been subjected to a risk-based assessment, he would have scored as "low risk" on the assessment tools that Hiscox uses to measure the risk that offenders pose to the public. Hiscox opined, under the approach he recommended, defendant would be subject to therapy and a follow-up risk assessment, with no other punitive or rehabilitative requirements, pending his follow-up assessment.
The PCR judge found the expert evidence credible and persuasive, stating, "[w]hat we know about juvenile sex offenders today appears to be very different than our knowledge twenty years ago . . . . The conclusions the psychologists reach pertaining to the application of the law to juveniles based upon the statistics and the advancement in neuroscience may also be compelling."
The PCR court nevertheless denied defendant's petition, refusing to rule N.J.S.A. 2C:7-2(f) and (g) unconstitutional as applied to juvenile sex offenders on the basis that J.G., supra, established the constitutionality of Megan's Law as applied to juveniles. Under the principle of stare decisis, which in this case binds the trial and appellate courts to follow Supreme Court precedent, the court refused to consider ruling the statutes unconstitutional despite the range of credible evidence which supported defendant's petition and concluded that matters concerning Megan's Law were best left to the Legislature.
Although the PCR court also addressed Eighth Amendment arguments concerning the Federal Cruel and Unusual Punishment Clause, defendant did not raise those arguments on appeal, and hence we do not address them.
We affirm substantially for the reasons presented in the PCR court's opinion, subject to the following comments.
As an initial matter, defendant's PCR claim arises in the context of an ineffective assistance of counsel claim. Because the petition before us is defendant's second petition, defendant had one year in which to file his petition. R. 3:33-4(b); R. 3:22-12(a)(2). Rule 3:22-12(a)(2) permits the filing of a second or subsequent PCR petition if that petition alleges the ineffective assistance of PCR counsel. Although defendant did not file the petition within the one-year window required by Rule 3:22-12(a)(2), the State withdrew its objections to the petition's timeliness because of the occurrence of Superstorm Sandy at the time the petition was due.
The PCR judge concluded that defendant's constitutional claim would not have succeeded on the merits, at least at the trial level, because the results of his proceeding would not have been different had the initial PCR counsel developed such a record. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693; State v. Fritz, 105 N.J. 42, 58. Although defendant's constitutional arguments are compelling, our Supreme Court has foreclosed defendant's arguments in light of its rulings in Doe and J.G., supra.
Doe established that Megan's Law is, generally speaking, constitutional as a statutory framework. Doe, supra, 169 N.J. at 12. In J.G., our Supreme Court reviewed offense-based bars against termination of Megan's Law lifetime registration requirements and reaffirmed that Megan's Law applies to juveniles adjudicated delinquent of sexual offenses. J.G., supra, 169 N.J. at 319-20 (citing Doe, supra, 142 N.J. at 21). The J.G. Court also considered the tension between Megan's Law offense-based lifetime registration requirement and the Code of Juvenile Justice. Id. at 325-27.
The J.G. Court concluded that the Legislature's failure to distinguish between younger children and adults when enacting lifetime registration requirements for juvenile Megan's Law offenders "substantially frustrated" the rehabilitative purposes of the Code of Juvenile Justice. Id. at 335. The Court harmonized the Code of Juvenile Justice and the Megan's Law registration obligations by requiring that juveniles adjudicated delinquent of criminal sexual conduct may not be subject to a lifetime registration if they committed the conduct when they were under age fourteen. Id. at 337. In deciding to limit lifetime registration to those under age fourteen at the time they commit sexual offenses, the Court relied on the Code's several distinctions between older juveniles and those aged fourteen and under, including the prohibition against trying juveniles as adults until they become fourteen years old; the infancy defense at common law; and special due process protections for children in delinquency proceedings when they are under fourteen years of age. Id. at 325-28.
J.G. did not address whether juveniles adjudicated offenders under Megan's Law, who are younger than age eighteen and older than age fourteen, should face an offense-based bar to termination of Megan's Law registration requirements. Defendant asks us to harmonize Megan's Law with recent amendments to the Code in a manner that arguably best reflects the rehabilitative goals of the Code of Juvenile Justice. See, e.g., N.J.S.A. 2A:4A-21 and J.G., supra, 169 N.J. at 321-22, 325-26 (explaining that the purpose of the Code is to promote rehabilitation, and that Megan's Law's lifetime registration requirements run afoul of that goal (especially when considering N.J.S.A. 2A:4A-47(a), which provides for the termination of juvenile dispositions after a juvenile reaches age eighteen)).
Registration and community registration requirements are not dispositions for purposes of the Code. See J.G., supra, 169 N.J. at 337. The J.G. court nevertheless used the disposition rationale from the Code in determining whether the Megan's Law requirements required harmonizing with the Code. Ibid.
Defendant also asks us to consider In the Interest of J.B., 107 A.3d 1 (Pa. 2014), wherein the Pennsylvania Supreme Court addressed whether the Sex Offender Registration and Notification Act (SORNA) was constitutional as applied to juvenile offenders. That Court ruled that SORNA, which utilizes an offense-based bar against termination for juveniles adjudicated delinquent of criminal sexual conduct, is unconstitutional under the Pennsylvania Constitution and the Fourteenth Amendment. Id. at 2, 19-20. Although the court recognized a "fundamental right to reputation" as a protected interest in Pennsylvania and accordingly applied a stricter standard of review than the rational basis test applicable here, the J.B. court ultimately concluded that SORNA violated "juvenile offenders' due process rights by utilizing an irrebuttable presumption [against termination]." Ibid.
42 Pa. C.S. §§ 9799.10-9799.41. SORNA arose from a federal mandate that required states to impose registration requirements on juvenile sex offenders. J.B., supra, 107 A.3d at 4 (citing the Adam Walsh Child Protection and Safety Act of 2006, 109 P.L. 248, 120 Stat. 587 (2006)).
See Pa. Const., Art. 1, §§ 1, 11. --------
The Pennsylvania Supreme Court concluded that these aspects of juveniles adjudicated delinquent are particularly relevant in the area of sexual offenses, where many acts of delinquency involve immaturity, impulsivity, and sexual curiosity. Ibid. (citing Dep't of Transp. v. Clayton, 684 A.2d 1060, 1063 (Pa. 1996)). The Pennsylvania Supreme Court also concluded that SORNA improperly branded juveniles adjudicated delinquent as having "an indelible mark of a dangerous recidivist, even though the irrebuttable presumption linking adjudication of specified offenses with a high likelihood of recidivating is not 'universally true.'"
Here, defendant's experts universally agreed that the risk assessment approach described in N.J.S.A. 2C:7-2(f) is superior to the offense-based bar currently imposed on those adjudicated delinquent of sexual assault or aggravated sexual assault. Because juveniles are generally less likely to recidivate, the current approach bars many juvenile offenders who may otherwise be fit for registration termination. A risk assessment would better determine whether the State should expend its Megan's Law resources on juvenile offenders and that a risk-based assessment system would harmonize Megan's Law with the Code of Juvenile Justice's focus on rehabilitating juveniles adjudicated delinquent.
However, J.G. controls this case. N.J.S.A. 2C:7-2(f) and (g) were later enacted with the principles of J.G. in mind. In In re L.E., 366 N.J. Super. 61, 64-65 (App. Div. 2003), we concluded that N.J.S.A. 2C:7-2(g) was enacted in accordance with the principles that our Supreme Court announced in J.G. Ibid. The language that the Legislature ratified was similar to the language interpreted in J.G., and we inferred that the Legislature adopted the Court's ruling because we presume "that the Legislature is knowledgeable regarding the judicial interpretation of its enactments." Coyle v. Bd. of Chosen Freeholders, 170 N.J. 260, 267 (2002) (citing State v. Buford, 163 N.J. 16, 20 (2000)).
Although the J.G. court had the opportunity to carve out an exception to Megan's Law's lifetime registration requirements, the Court specifically chose age fourteen as a cutoff. We presume the Legislature specifically adopted this cutoff, and we cannot rewrite a statute to include language not otherwise included in the statute as codified. State v. Munafo, 222 N.J. 480, 488 (2015) (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Nor can we accept defendant's invitations to apply strict scrutiny, contrary to J.G., or to extend the holding of J.G. using the doctrine of fairness and rightness. See State v. P.Z., 152 N.J. 86, 117-18 (1997). We are bound to follow the precedent that our Supreme Court sets. See Lake Valley Assocs., LLC v. Twp. of Pemberton, 411 N.J. Super. 501, 507 (App. Div.), certif. denied, 202 N.J. 43 (2010); Lodato v. Evesham Twp., 388 N.J. Super. 501, 507 (App. Div. 2006).
Despite the fact that defendant's original PCR counsel did not adequately address this issue, we are unable to conclude that those errors prejudiced the outcome of defendant's initial PCR petition. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We acknowledge that this case may present an appropriate occasion for our Supreme Court to revisit J.G. However, as an intermediate appellate court we are bound to follow the Court's precedent here.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION