                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0979-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAVID F. HOHSFIELD,

          Defendant-Appellant.


                   Submitted March 17, 2020 – Decided May 20, 2020

                   Before Judges Hoffman and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 13-09-2357
                   and Accusation Nos. 15-04-0735 and 15-04-0736.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel; Shiraz I. Deen,
                   Assistant Prosecutor, on the brief).
PER CURIAM

      Defendant David Hohsfield appeals from the September 7, 2018 denial of

his petition for post-conviction relief (PCR). He contends the sentences for

third-degree stalking, N.J.S.A. 2C:12-10(e), and third-degree interference with

a sex offender monitoring device, N.J.S.A. 30:4-123.95, violate the ex post facto

clauses of the United States and New Jersey Constitutions (ex post facto

clauses). We affirm.

      In 1997, defendant was convicted of second-degree sexual assault of a

child under N.J.S.A. 2C:14-2(b). He was sentenced to a seven-year term of

imprisonment and community supervision for life (CSL) upon his release from

prison.1 At the time, CSL was imposed as a "special sentence" on all defendants

convicted of certain enumerated sex offenses after completion of their prison

terms. State v. Hester, 233 N.J. 381, 386 (2018) (quoting N.J.S.A. 2C:43-6.4).

      In 2003, the Legislature amended N.J.S.A. 2C:43-6.4 (the 2003

amendment) and retroactively replaced all references to CSL with parole

supervision for life (PSL), in addition to "substantive change[s] to the CSL post-

sentence supervisory scheme." State v. Perez, 220 N.J. 423, 440 (2015). Under


1
 Defendant was also required to register as a sex offender under Megan's Law ,
N.J.S.A. 2C:7-2.


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                                        2
the amended statute, effective January 2004, an individual was "in the legal

custody of the Commissioner of Corrections" and under the supervision of the

State Parole Board for life. Id. at 441 (quoting N.J.S.A. 2C:43-6.4). In addition,

the statute permitted a PSL violation to be prosecuted as a fourth-degree offense,

N.J.S.A. 2C:43-6.4(d), or as a parole violation, N.J.S.A. 2C:43-6.4(b).2

      In 2009, defendant pleaded guilty to third-degree endangering the welfare

of a child in violation of N.J.S.A. 2C:24-4(a). In December 2009, defendant

was sentenced to a five-year term of imprisonment and to PSL.

      On appeal, we affirmed defendant's sentence but remanded for entry of an

amended judgment of conviction to reflect the correct amount of jail and gap -

time credits. State v. Hohsfield (Hohsfield I), No. A-2137-09 (App. Div. Aug.

27, 2010).

      Defendant presented a first petition for PCR in January 2011, arguing trial

counsel was ineffective for failing to move to sever the count charging defendant

with a CSL violation, and in properly advising defendant of the PSL terms. The

petition was denied.




2
  A fourth-degree offense was punishable by no more than eighteen months in
prison. N.J.S.A. 2C:43-6(a)(4).


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                                        3
      We affirmed the denial of defendant's first petition. State v. Hohsfield

(Hohsfield II), No. A-5381-12 (App. Div. July 23, 2015) (slip op. at 1). The

panel found (1) "defendant was aware of the consequences of his guilty plea,

including that the Parole Board could revoke his parole and send him to prison

for the revocation, even if he was not also indicted and convicted"; and (2) the

petition did "not allege he would have gone to trial if his counsel had obtained

severance of the CSL count." Id. at 10, 12.

      In 2013, defendant was charged in an indictment with third-degree

stalking in violation of N.J.S.A. 2C:12-10(e).          Although the allegations

constituted a fourth-degree charge, it was upgraded to a third-degree offense

because it was committed while defendant was on PSL for his 2009 conviction. 3

He was indicted in 2014 with fourth-degree failure to register his home address

every ninety days in violation of N.J.S.A. 2C:7-2(a).

      In January 2015, defendant changed employment and failed to notify his

parole officer of that change within five days as required under Megan's Law.

He also attempted to cut off the electronic monitoring device attached to his


3
  N.J.S.A. 2C:12-10(e) states that a defendant may be indicted or charged with
a third-degree crime when he or she commits an offense "while serving a term
of imprisonment or while on parole or probation as the result of a conviction for
any indictable offense . . . ."


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                                       4
body. As a result, defendant was charged in two accusations with fourth-degree

failure to register under Megan's Law in violation of N.J.S.A. 2C:7-2(d)(1), and

third-degree interference with a monitoring device in violation of N.J.S.A. 30:4-

123.95.

      In April 2015, defendant pled guilty to third-degree stalking and third-

degree interference with a monitoring device and to the fourth-degree charges

in the accusations. He was sentenced in June 2015 to a four-and-a-half-year

term of imprisonment for the third-degree offenses to run concurrently with an

eighteen-month imprisonment term for the fourth-degree offenses. 4

      In 2014, the Legislature again amended N.J.S.A. 2C:43-6.4 (the 2014

amendment). The amendment provided that a defendant on CSL who violates

the terms of his or her supervised release may be prosecuted for committing a

third-degree crime and faces a presumption of imprisonment. In addition, the

2014 amendment stated that a conviction of a CSL violation converted a

defendant's CSL status to PSL status. N.J.S.A. 2C:43-6.4(a).

      In sum, under the 2014 amendment, a defendant who committed a CSL

violation could be prosecuted for a third-degree offense, subjected to a



4
  Defendant's appeal from his convictions was later withdrawn. The appeal was
dismissed in April 2016.
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                                       5
mandatory three-to-five-year prison term and the imposition of a special

sentence of PSL. N.J.S.A. 2C:43-6(a)(3), -6.4(a), (d).

      After the amendment, four separate defendants including Mark Hester,

challenged the constitutionality of the retroactive application of the 2014

amendment. Hester, 233 N.J. at 385. The defendants violated the terms of their

CSL after the amendment. Therefore, they were indicted for committing third-

degree offenses and faced the increased penalties under the 2014 amendment.

The trial courts concluded the 2014 amendment violated the ex post facto

clauses and dismissed the indictments. We affirmed. State v. Hester, 449 N.J.

Super. 314, 318 (App. Div. 2017).

      In December 2016, defendant filed the PCR petition that is the subject of

this appeal. He was assigned counsel, who thereafter filed a brief in support of

the petition. PCR counsel argued that the 2014 amendment increasing the

punishment for a CSL violation to a third-degree crime violated the ex post facto

clauses. Under Hester, counsel contended defendant was entitled to be re-

sentenced to fourth-degree stalking and interference with a monitoring device.

      In July 2017, the New Jersey Supreme Court granted certiorari in State v.

Hester, 233 N.J. 115 (2017). We stayed all CSL appeals pending the Court's

decision.


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                                       6
      In December 2017, the PCR court heard oral argument on defendant's

petition. On May 30, 2018, the New Jersey Supreme Court affirmed this court's

decision, concluding the ex post facto clauses barred the retroactive application

of the 2014 amendment to defendants' CSL violations. Hester, 233 N.J. at 385-

86.

      As a result, the PCR court requested supplemental briefs on defendant's

petition.   Defendant contended anew in his subsequent brief that Hester

mandated a re-sentencing to fourth-degree stalking and interference with a

monitoring device.

      On September 7, 2018, the PCR court denied the petition. In addressing

defendant's conviction for third-degree interference with a monitoring device,

the court noted he was sentenced to CSL after his 1997 conviction. After

defendant was convicted of a new offense in 2009, his CSL sentence converted

to PSL pursuant to the 2003 amendment. Therefore, because defendant was

already subject to a PSL sentence related to the 2009 conviction, the ex post

facto clauses were not violated when his fourth-degree interference charge was

upgraded to a third-degree offense under the 2014 amendment.




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                                       7
      Moreover, the PCR court observed defendant could not be charged with

fourth-degree interference with a monitoring device under N.J.S.A. 30:4-123.95

because the crime under the statute was only a third-degree offense.

      The PCR court also rejected defendant's argument that his fourth-degree

stalking charge was wrongfully upgraded under the 2014 amendment. Again,

defendant was on PSL after his 2009 conviction. When he was charged with

stalking in 2013, he was subject to the enhancement provision in N.J.S.A. 2C:12-

10(e) because he committed the offense while on parole. Therefore, defendant's

argument that his CSL status was retroactively changed to PSL due to the 2014

amendment lacked merit.

      Defendant presents the following issue on appeal:

            DEFENDANT SHOULD BE RE-SENTENCED TO A
            FOURTH-DEGREE     PAROLE    SUPERVISION
            VIOLATION,    INTERFERENCE    WITH    A
            MONITORING DEVICE, AND FOURTH-DEGREE
            STALKING, AS THE SENTENCES IMPOSED ARE
            ILLEGAL AND VIOLATE THE EX POST FACTO
            LAWS OF THE UNITED STATES AND NEW
            JERSEY CONSTITUTIONS.

      Defendant argues the PCR court erred in denying his petition because his

sentences for third-degree stalking and interference with a monitoring device

were unconstitutional under the ex post facto clauses. Defendant maintains his



                                                                        A-0979-18T2
                                       8
fourth-degree offenses under CSL were wrongfully upgraded to third-degree

offenses under PSL as a result of the 2014 amendment.

      We affirm for the reasons stated in the PCR court's opinion, adding only

the following comments. Defendant was convicted of second-degree sexual

assault of a child in 1997 and sentenced to CSL.         The 2003 amendment

retroactively replaced CSL with PSL. Therefore, when defendant was convicted

of third-degree endangering the welfare of a child in 2009, he was sentenced to

PSL under the amended statute. This was a new offense committed by defendant

to which he pled guilty. We affirmed the 2009 PSL sentence. Hohsfield I.

      We also affirmed the denial of defendant's first PCR petition, finding he

was properly advised of the consequences of his 2009 plea and the imposition

and nature of the PSL sentence. Hohsfield II, slip op. at 1, 10-11.

      Hester is inapplicable to defendant's circumstances. There, the defendants

were sentenced to CSL before the 2014 amendment. When they violated CSL

after the amendment's effective date, they faced enhanced penalties under the

2014 amendment. The Hester Court found the retroactive increased punishment

violated the ex post facto clauses.

      Here, under the 2003 amendment, defendant became subject to PSL when

he was sentenced in 2009 for the new offense of endangering the welfare of a


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                                       9
child. So, when he committed the 2012 and 2015 offenses of stalking and

interference with a monitoring device, he was already on PSL. Therefore, his

sentence was not upgraded or enhanced under the 2014 amendment, and Hester

did not apply. Defendant was properly charged with third-degree offenses for

his PSL violations under N.J.S.A. 2C:12-10(e). There was no ex post facto

violation.

      Affirmed.




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