                                   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                             NOT FOR PUBLICATION WITHOUT THE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).
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                                        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

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                                        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."
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                                         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


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                                        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

completed before its effective date.'" G.A., 455 N.J. Super. at 529 (alterations

in original) (quoting Riley v. Parole Bd., 219 N.J. 270, 285 (2014); and Miller

v. Florida, 482 U.S. 423, 430 (1987)). Here, like in G.A., the Legislature's

adoption of subsection (g) changed the legal consequences of the guilty plea

R.H. entered prior to its enactment, at a time when R.H. "faced the prospect of

presumptive lifetime registration, but . . . retained the possibility of relief

pursuant to subsection (f), . . . thereby changing the legal consequences" of

R.H.'s convictions entered years earlier. Ibid.

      We also rejected the State's argument that "the Legislature implied its

intention to make subsection [(g)] retroactive by the plain language of the

statute," and to hold otherwise "would be contrary to the public safety purpose

underlying the amendment and Megan's Law itself." We stated:


                                                                         A-0880-17T1
                                        6
             This argument ignores the fact that the Legislature
             believed Megan's Law, as originally enacted in 1994,
             fully satisfied its public safety objectives, even though
             it permitted potential relief from registration pursuant
             to subsection (f).

             Moreover, the legislative history of subsection (g)
             supports no such assertion. The sponsor and committee
             statements in both the Assembly and the Senate make
             clear that subsection (g) was enacted to meet the
             requirements of the now repealed Wetterling Act and to
             insure continued federal funding.

             . . . . [T]he Legislature's stated purpose for enacting
             subsection (g)—securing federal funding by complying
             with federal law—was fully served without retroactive
             application of the new statute.

             In short, there is little to suggest the Legislature
             intended subsection (g) apply retroactively to those
             who were "convicted or released" prior to 2002.

             [Id. at 533-34 (citations omitted).]

      Based on our conclusion, we determined that there was no need to decide

whether    retroactive   application   of       subsection   (g)   "would   result   in

unconstitutional interference with 'vested rights' or a 'manifest injustice.'" Id. at

534 (quoting Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 394 (2016); and

Nobrega v. Edison Glen Assocs., 167 N.J. 520, 537 (2001)). However, for the

sake of completeness, we determined registrants, like R.H.,

             had no vested right to relief from their registration
             obligations. As originally enacted, Megan's Law

                                                                              A-0880-17T1
                                            7
            presumed they would be subject to lifetime registration;
            subsection (f) provided conditional relief contingent
            not only upon [their] own conduct, but also upon their
            ability to persuade a judge they no longer posed a threat
            to public safety. More importantly, "[t]here can be no
            vested right in the continued existence of a statute . . .
            which precludes its change or repeal."

            However, at the time of their guilty pleas, [the
            registrants] could reasonably rely upon the possibility
            of relief from lifetime registration. The retroactive
            application of subsection (g) does not modify a remedy
            but eliminates an incentive integral to Megan's Law
            remedial purpose by denying certain registrants any
            relief from the obligations inherent in lifetime
            registration, along with the attendant opprobrium and
            potential criminal liability. Weighing that against the
            public's interest in the safety of the community, which
            was adequately served by subsection (f) prior to the
            passage of subsection (g), we conclude retroactive
            application of subsection (g) . . . would be manifestly
            unjust.

            [Id. at 535 (second and third alterations in original)
            (quoting Phillips, 128 N.J. at 620).]

We reach the same conclusion here. In light of our decision, we need not address

R.H.'s alternative arguments.

      Affirmed.




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