Opinion
DOCKET NO. A-1257-12T3
05-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. H.L.M., Defendant-Appellant.
H.L.M., appellant pro se. Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Accusation No. 11-10-356.
H.L.M., appellant pro se.
Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In this appeal we are asked to determine whether a special condition of probation (SCP) prohibiting a defendant from blogging on the internet about her ex-husband and children, passes constitutional muster. Defendant H.L.M. appeals from a judgment convicting her of violating a SCP by engaging in online publication of postings relating to her family. H.L.M. was sentenced to a continuation of her previously imposed probationary term. For the reasons that follow, we affirm.
In Too Much Media, LLC v. Hale, we described a "blog" as "a Web or Internet log that contains information, typically in the form of dated entries or postings." 413 N.J. Super. 135, 153 n. 7 (App. Div. 2010) (citing Paul S. Gutman, Note, Say What?: Blogging and Employment Law in Conflict, 2 7 Colum. J.L. & Arts 145, 146 (2003)), aff'd in part, modified in part, 206 N.J. 209 (2011).
I.
H.L.M. and J.M. were married in 2000 and had two children, a boy, J.M. III and a girl, A.M. In September 2010, J.M. filed for divorce. On October 22, 2010, an order was entered granting custody of both children to J.M. At the time, J.M. III and A.M. were eight and six respectively.
On the morning of March 3, 2011, defendant failed to drop J.M. III and A.M. off at school and J.M. later learned that defendant had taken the children from New Jersey to New York. J.M. notified the court that defendant had removed the children from New Jersey in violation of the custody order, prompting the court to enter a warrant for defendant's arrest and an order granting J.M. custody of the children. Defendant's name was entered into the National Crime Information Center (NCIC) database as wanted for kidnapping and interference with the custody of the children.
Defendant attempted to cross the border from New York to Canada, but the NCIC warrant alerted the authorities to her status. Defendant was refused entry into Canada and taken into custody in New York. Thereafter, she was returned to New Jersey where she remained incarcerated.
This incident was defendant's second violation of the custody order. She previously violated the order in January 2011.
On May 12, 2011, defendant was charged with first-degree kidnapping, N.J.S.A. 2C:13-1(b)(4), and third-degree interference with custody, N.J.S.A. 2C:13-4(a)(1).
On October 21, 2011, pursuant to a plea agreement, defendant entered a plea of guilty to the interference with custody charge, and the State agreed to recommend dismissal of the kidnapping charge. As part of the plea agreement, the State recommended the following sentence:
Lengthy term of probation upon conditions. Time served at sentencing, obtain full psychiatric/psychological eval[uation] by evaluator approved by [the Hunterdon County Prosecutor's Office] and follow recommendations inc[luding] treatment and med[ical] compliance, abide by DYFS and Family [Court] orders, no contact with
[J.M.] and [the] children, surrender passport during probation.
The plea agreement further provided that if defendant was admitted into inpatient treatment before sentencing, she could transfer directly from the Hunterdon County Jail, where she remained incarcerated, to the program or facility. The State also agreed that, once defendant was cleared for release from the mental health facility, she could be released on her own recognizance.
On November 23, 2011, the court entered a consent order, allowing defendant to "be released ROR from the County Jail to her parents who will place her in the Hunterdon County residence." Defendant's release was conditioned on reporting to her treating therapist, psychologist Dr. Heidi Dalzell, on November 29, 2011, and to comply with all of Dr. Dalzell's treatment recommendations. The order further required defendant to obtain a psychiatric evaluation within thirty days of the order to determine an appropriate treatment plan, including medication, if recommended. If defendant failed to obtain a psychiatric evaluation within thirty days of the date of the order, then the State could withdraw from its plea agreement.
On December 20, 2011, the State moved to revoke defendant's bail because she had failed to provide verification that she had received a psychiatric evaluation or begun therapy. The State also alleged that defendant had "commenced to 'blog' on Facebook[,] [and] [t]he tone and language of her blogs [we]re clearly disturbing." In support of its motion, the State alleged:
[Defendant's] most recent blog, dated December 19, 2011, is most disturbing, as it makes reference to her "last post" and quotes the Book of Revelation from the Bible, making reference to former things passing away, God will wipe away every tear from their eyes, no more death now sorrow or crying, there shall be no more pain. The post ends with "A Happy ending ha huh!"
[T]his attached blog . . . also makes reference to Jeffrey Dahmer, a serial killer; Satan and Adolf Hitler. She also indicates that she was in jail for doing the right thing and that she wants to go back. She also references her sentencing. A clear reading of these blogs call[s] into question the defendant's current state of mind.
[I]n a letter dated December 19, 2011, defense counsel made a request for an adjournment of the sentencing and the State opposed this request. Given the Facebook blogs, the State has taken steps to ensure the safety of the children, the former husband and the community as a whole. The defendant is no longer under the care of her parents, but lives alone less than one mile from the victims.
On December 23, 2011, the court held a hearing on the State's motion. Defendant's counsel submitted a report from Dr. William D. Campagna, a psychologist, who opined that the blogs were not harmful and that defendant was not a danger to herself and others. Defendant's counsel noted that even if defendant's blog was disturbing, there was no condition preventing her from writing "bizarre things" that might upset people.
The court revoked defendant's bail, stating,
[s]ince [defendant's release] the defendant's been blogging, posting short form writing to social networking sites, facebook. The State's provided several of these blog posts. And the nature and tone are without question very disturbing. As I have indicated, the most recent blog dated December [19] makes reference to her "last post", quotes the book of Revelation from the Bible. As I have indicated, that goes on to say: But also note well that all former things will pass away, and God will wipe away every tear from your eyes. There shall be no more death or sorrow or crying. There will be no more pain, citing Revelation, a happy ending, ha ha.
The blog also makes reference at various points to Jeffrey Dalmer, Satan and Adolph Hitler, discusses her time spent in jail, and eventual sentencing. She stated jail was all right in between desperate suicide plots that they make impossible to carry out. And once a guilty plea is decided upon, everyone is there for doing the right things.
This is just an example of what was contained in just a number of extensive blogs, just rambling, irrational, disturbing, bizarre statements. By any standard.
. . . .
Based upon the fact there is no psychiatric evaluation that has been provided, based upon the fact that I have
referenced these blogs, and the fact that I have a responsibility here before sentencing the defendant in light of what I've just referenced, I am going to require that a psychiatric evaluation be performed upon the defendant. I want to know what the results of that evaluation are. I want a psychiatric diagnosis, prognosis, a treatment plan as well before I am satisfied that sentencing can proceed.
On January 5, 2012, the court conducted a sentencing hearing and reviewed various documents, including a report from Dr. Jay Kuris, who was retained by the State to perform a psychiatric evaluation.
We were not provided with a copy of Dr. Kuris's report.
Dr. Kuris found that defendant suffered from bi-polar disorder but concluded that inpatient treatment was not necessary, as she was not a danger to herself or others. Dr. Kuris recommended that defendant's treatment include ongoing psychotherapy, with the consideration of medication, specifically, mood stabilizing medication to reduce her mania and prevent future episodes. He noted that defendant was "disinclined" toward taking medication, and showed no remorse for her actions.
Based on defendant's blogs, the State asked the court to impose an additional SCP, stating,
although Dr. Kuris seems to say that it's somewhat of a therapeutic value for
[defendant] to be able to continue with her blog, I would ask You Honor to impose somewhat of a restriction in that regard, and I would ask you to impose that she not speak in her blog directly about [J.M.] or the children. I don't think it's necessary for her mental health for her to be able to speak about [J.M.] and the children, and I don't think there's any reason for that.
I would ask that she be restrained from doing that, at least, in terms of the blog activity because I think that doesn't help anybody and if the children were ever to read that and . . . [J.M.] and his family have read it, as you know, and it causes a lot of concern and I would ask you to at least limit her in that regard in terms of her Facebook or social media activity, and in particular this blog that she has been working on for quite awhile.
J.M. and the children's paternal grandmother addressed the court and expressed their concerns regarding defendant's behavior and blog.
At the conclusion of the hearing, the court sentenced defendant to a five-year term of probation, conditioned on serving 280 days in the Hunterdon County Jail (time served). As additional conditions, the court ordered defendant to
[f]ollow all recommendations from [her] psychiatric evaluation, including treatment or medicine compliance, if recommended; abide by all orders set forth by the Division of Youth and Family Services and by the Family Court unless and until further order of the Family Court; have no contact with [J.M.] or the [M.] children unless and until permitted by the court; refrain from blogging about [J.M.] or the children;
surrender [her] passport during the period of her probation; and comply with the recommendations of probation.
The judge clarified the blogging restriction, stating, "[a]ny blogging shall not reference [J.M.] or the children. You can talk about what you want to talk about, but don't reference [J.M.] or the children. That's off limits."
On June 6, 2012, defendant's probation officer charged defendant with a Violation of Probation (VOP) for blogging about J.M. and the children between April 6, 2012, and June 2, 2012, on WritersCafe.org.
On August 1, and 2, 2012, the court conducted a hearing on the charge. The State alleged that defendant violated her probation by blogging about J.M. and the children, substituting the word "Camelot" for them on her blog. Excerpts from defendant's blog, entitled, "Glory! Glory! Hallelujah! Let Me Count The Crimes Committed Detour," were entered into evidence as a joint exhibit. The State noted that defendant used the word "Camelot" interchangeably to refer to both J.M. and her children.
The court heard the testimony of defendant's probation officer, Phumuza Manzini, who questioned defendant about her blog. Defendant admitted to posting the blog but claimed "she was blogging specifically about what was in the public record." Defendant explained that she used "Camelot" in referring to J.M. and her children but did not mention them by name. Manzini told defendant that as long as he can recognize that defendant is, in fact, referring to J.M. and the children, her blogging violated the SCP. Manzini told defendant to stop blogging about J.M. and the children but she refused and stated that "she was going to continue blogging about anything that was out in the public sphere."
On August 2, 2012, the court found by a preponderance of the evidence that defendant violated a special condition of her probation, "namely that she did not refrain from blogging about [J.M.] or the children." He found her violation was "deliberate," and that defendant "knew what she was doing." He noted 161 references to "Camelot" in defendant's blog, and held that "[t]he mere fact that she used the word 'Camelot' and substituted that for [J.M.] doesn't change a thing because the use of the word 'Camelot' is mostly about [J.M.]"
On October 5, 2012, defendant was sentenced on the VOP charge to the original terms and conditions of probation, and in addition, to serve thirty hours of community service and continue her psychiatric treatment.
On November 9, 2012, defendant was charged with a second VOP for blogging about J.M. and the children. Defendant filed her notice of appeal from the October 5, 2012 VOP on November 16, 2012, and the court stayed any action on the current VOP pending our resolution of defendant's appeal.
On appeal, defendant presents the following arguments:
1. THE SPECIAL CONDITION OF PROBATION ("SCP") PROHIBITING THE DEFENDANT FROM "BLOGGING ABOUT [J.M.] OR THE CHILDREN" IS VOID FOR VAGUENESS UNDER THE FOURTEENTH AMENDMENT (U.S. CONST. AMEND. XIV, ¶ 1) BECAUSE THE SCP GIVES NO WARNING ABOUT WHAT CONDUCT IS PROHIBITED BY THE [SCP]; AND THE SCP WAS IMPOSED WITH THE SPECIFIC INTENT TO CORRUPTLY ABRIDGE THE DEFENDANT'S FIRST AMENDMENT (U.S. CONST. AMEND. I) RIGHTS.
2. THE SCP IS AN UNCONSTITUTIONAL "PRIOR RESTRAINT" OF THE DEFENDANT'S LIBERTY OF FREEDOM OF SPEECH GUARANTEED BY THE FIRST AMENDMENT (U.S. CONST. AMEND. I).
3. THE SCP IS INVALID ON STATUTORY GROUNDS, AS FAILING TO MEET ANY OF THE THREE REQUIREMENTS FOR PROBATION CONDITIONS SET FORTH IN N.J.S.A. 2C:45-1B.
4. THE SCP IS INVALID AND UNENFORCEABLE ON EQUITABLE GROUNDS, BECAUSE THE STATE ACTED CORRUPTLY IN CONNECTION WITH IMPOSING THE SCP AND ENFORCING THE SCP.
4A. THE IMPOSITION OF THE SCP CONSTITUTED RENEGING ON THE DEFENDANT'S PLEA BARGAIN, AND RENEGING ON EXPRESS PROMISES TO THE COURT AT THE DEFENDANT'S SENTENCING.
4B. THE EVIDENCE REFERRED TO AS "J-2," WHICH WAS PLACED ON THE PUBLIC RECORD ON AUGUST 1, 2012, WAS INAUTHENTIC EVIDENCE CORRUPTLY ADMITTED AGAINST THE DEFENDANT.
4C. THE STATE FORCED THE DEFENDANT TO PUBLICLY DEFEND HERSELF ON THE CHARGE OF COMMITTING THE VOP BY ACTING CONTRARY TO THE SCP PROHIBITING THE DEFENDANT FROM "BLOGGING ABOUT [J.M.] OR THE CHILDREN"—AND THE DEFENDANT WAS FOUND GUILTY OF THE VOP FOR PUBLISHING A CERTAIN CHAPTER OF AN ONLINE BOOK--WITHOUT THE STATE EVER IDENTIFYING A SINGLE THING THE DEFENDANT WROTE THAT SPECIFICALLY TROUBLED THE STATE, AND WITHOUT THE DEFENDANT EVEN HAVING A BLOG, AND WITHOUT THE DEFENDANT NAMING EITHER [J.M.] OR THE CHILDREN ONCE IN THE CHAPTER OF THE ONLINE BOOK; THESE MATTERS CONSTITUTE A VIOLATION OF 18 U.S.C.A. [§] 1503.
4D. THE SCP WAS CORRUPTLY ENFORCED AGAINST THE DEFENDANT IN VIOLATION OF 18 U.S.C.A. [§] 1513, AND THE SCP ITSELF CORRUPTLY DENIES THE DEFENDANT, A PERSON DIAGNOSED WITH A MENTAL ILLNESS, EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT (U.S. CONST. AMEND. XIV, ¶ 1).
4E. THE ENFORCEMENT OF THE SCP AGAINST THE DEFENDANT CONSTITUTED PROHIBITED ACTIVITY UNDER 18 U.S.C.A. [§] 1962.
II.
A.
Defendant first argues that the SCP, prohibiting her from blogging about J.M. and the children, is void for vagueness under the Fourteenth Amendment. Defendant also challenges the court's finding that she violated the SCP, claiming that her use of "Camelot" in referring to J.M. and the children was a "good-faith effort to attempt to comply with the SCP[.]"
At the conclusion of the VOP hearing, the court addressed defendant's claim that the SCP was "vague, and/or whether they were in violation of her constitutional rights." After analyzing our decision in Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356 (App. Div. 2005), the court held that "contrary to Pazden . . . the conditions [here] are not vague but rather very specific. Very specific in that the defendant was specifically prohibited from blogging about [J.M.] or the children. So I am satisfied that addresses the vagueness issue."
Pursuant to the State and Federal Constitutions, vague laws are unenforceable. See State v. Cameron, 100 N.J. 586, 591 (1985); U.S. Const. amend V; N.J. Const. art. I, ¶ 1. However, in the case at bar, the issue is whether a condition of probation is vague, rather than a law.
In Pazden, supra, 374 N.J. Super. at 359, we considered whether two special conditions of defendant's parole were void for vagueness. We applied the same constitutional analysis utilized in void-for-vagueness claims relating to statutes. Id. at 368-72. That is, "whether a statute or regulation gives a person of ordinary intelligence fair warning of what conduct is prohibited, so that he or she may comply with it, and whether it is specific enough to provide an explicit standard to guide its enforcement." Id. at 369 (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2299, 33 L. Ed. 2d 222, 227-28 (1972)). We "appl[ied] the strictest level of scrutiny" to special conditions placed on a parolee after release, and concluded, "[a] law is void as a matter of due process if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." Id. at 370-71 (internal quotation marks omitted).
As the State noted in its brief, there does not appear to be a New Jersey case on point addressing whether condition of probation was void for vagueness.
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Applying these principles, we are satisfied that the SCP imposed on defendant is not void for vagueness. The SCP gives defendant, a person of ordinary intelligence, fair warning about what conduct it is prohibiting, so that she can comply with it. The sentencing court repeatedly told defendant that the only thing he was restricting defendant from blogging about was her ex-husband and children. Defendant, a former electrical engineer and patent attorney, is clearly a person of more than ordinary intelligence capable of understanding whether her contemplated conduct is lawful. See id. at 370. Unlike the conditions imposed in Pazden, the condition here is not "too wide-ranging, too all-encompassing, [or] too confusing in its description of what [H.L.M.] is prohibited from doing[.]" See id. at 372.
Nor does the SCP prohibit defendant from engaging in "entirely innocent activities," as the conditions in Pazden did See ibid. There is no uncertainty or confusion as to what activity was prohibited: Defendant was not permitted to blog about her ex-husband and children. Her use of a transparent code word in making numerous references to her husband and children indicates an intention to violate the SCP. We reject her argument that such a violation could only be established by referencing her family by name.
B.
Defendant next argues that the SCP prevents her "from functioning as 'the press' to report about information that was placed . . . on the public record in [her] own legal proceedings[,]" and therefore, is an unconstitutional "prior restraint" on her right of freedom of speech. Defendant also claims that the SCP is not a valid condition of her probation, as it is restrictive of her First Amendment liberty and it does not reasonably relate to her rehabilitation. We disagree.
"Many rights, including free speech and assembly, may permissibly be restricted as a condition of parole." Pazden, supra, 374 N.J. Super. at 369 (citing Morrissey v. Brewer, 408 U.S. 471, 477-83, 92 S. Ct. 2593, 2598-601, 33 L. Ed. 2d 484, 492-95 (1972)); see also State v. Hyman, 236 N.J. Super. 298, 301 (App. Div. 1989).
N.J.S.A. 2C:45-1, states, in relevant part,
a. When the court suspends the imposition of sentence on a person who has been convicted of an offense or sentences him to be placed on probation, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he will lead a law-abiding life or is likely to assist him to do so. These conditions may be set forth in a set of standardized conditions promulgated by the county probation department and approved by the court.
b. The court, as a condition of its order, may require the defendant:
. . . .
(12) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience[.]
Here, the SCP does not violate defendant's First Amendment rights, and is valid under N.J.S.A. 2C:45-1. First, the SCP is narrowly tailored and does not prohibit defendant from blogging about anything or anyone else other than her family. Second, the SCP is directed at protecting the victims of defendant's crime, her ex-husband and children. Finally, the SCP was imposed with the purpose of advancing defendant's rehabilitation, namely, to deter her from engaging in behavior that is harmful to her victims and to lead a law-abiding life.
C.
We find defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Her accusations that the State reneged on her plea agreement; failed to correct her probation officer's perjury; obstructed justice by threatening to kidnap her and hold her for ransom; conspired to interfere with her ability to engage in "whistleblowing activities"; obstructed justice by "corruptly disregarding her [c]onstitutionally-guaranteed civil rights"; and the State, her probation officer, and the sentencing court constituted an enterprise under the RICO statute; are totally devoid of merit, find not a scintilla of support in the record, and warrant no further discussion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION