                          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                 NOT FOR PUBLICATION WITHOUT THE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,
                                          APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                              January 14, 2016
v.
                                             APPELLATE DIVISION

F.W.,

     Defendant-Appellant.
__________________________________

           Submitted September 22, 2015 - Decided January 14, 2016

           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
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).



                                     2                             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 eighteen-

month    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.



                                           3                                 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).



                                           4                              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




                                         5                             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 twenty-

four 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).



                                     6                                  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."



                                             7                                   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     community-
           supervised-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).



                                     8                                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




                                     9                              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




                                 10                      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



                                           11                                        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).




                                          12                                     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



                                13                          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.]




                              14                         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).



                                     15                          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



                                           16                                   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.



                                 17                                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 .                     .     .




                                         18                             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 post-

release 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




                                          19                                        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 third-

degree 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.




                                                20                                 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




                                      21                                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




                                               22                                         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.



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