STATE OF NEW JERSEY VS. W.D. (10-06-1134, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3190-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.D.,

Defendant-Appellant.
_______________________________

Submitted May 10, 2018 – Decided June 25, 2018

Before Judges Simonelli and Gooden Brown.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Accusation No.
10-06-1134.

Collins, Vella & Casello, LLC, attorneys for
appellant (Gregory W. Vella, of counsel and
on the brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Jacqueline M. Quick, Deputy
Attorney General, of counsel and on the
brief).

PER CURIAM

On June 18, 2010, defendant entered a negotiated guilty plea

to a one-count accusation charging him with fourth-degree
endangering the welfare of a child by knowingly possessing digital

files depicting underage children engaged in prohibited sexual

acts, N.J.S.A. 2C:24-4(b)(5)(b). On September 10, 2010, he was

sentenced in accordance with the plea agreement to a one-year

noncustodial probationary term, subject to standard and special

conditions of probation and mandatory fines and penalties. On

October 3, 2016, defendant filed a petition seeking to expunge the

conviction. On February 16, 2017, the trial court denied the

petition pursuant to N.J.S.A. 2C:52-2(b), which barred the

expungement of convictions for N.J.S.A. 2C:24-4(b)(5)(b).

Defendant now appeals from the dismissal of his petition for

expungement, raising the following single point for our

consideration:

THE TRIAL COURT ERRED IN DISMISSING THE
EXPUNGEMENT.

We affirm.

We review the trial court's application of N.J.S.A. 2C:52-

2(b) to defendant's expungement petition de novo. In re

Expungement in re J.S., 223 N.J. 54, 72 (2015). Prior to 2013, a

person convicted of possession of child pornography in violation

of N.J.S.A. 2C:24-4(b)(5)(b) was eligible to file a petition for

expungement following the completion of the sentence. On August

14, 2013, the Legislature amended the Act to include violations

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under N.J.S.A. 2C:24-4(b)(5)(b) among those offenses ineligible

for expungement. L. 2013, c. 136, § 3. The amendment took effect

immediately and, pursuant to N.J.S.A. 2C:52-25, applied to

"arrests and convictions which occurred prior to, and which occur

subsequent to, the effective date of [the amendment]." Previously,

on May 6, 2013, in a separate bill, the Legislature had upgraded

possession of child pornography in violation of N.J.S.A. 2C:24-

4(b)(5)(b) from a crime of the fourth degree to a crime of the

third degree, thereby increasing the associated penalties,

effective July 1, 2013. L. 2013, c. 51, § 13.

Defendant urges that because "his right to expunge [his]

record vested when he pled" in 2010, at a time when possession of

child pornography in violation of N.J.S.A. 2C:24-4(b)(5)(b) was

not a disqualifying offense for expungement purposes and was, in

fact, a fourth-degree rather than a third-degree crime,

application of the 2013 amendment to preclude his 2016 expungement

petition violates the ex post facto clauses of the United States

and New Jersey Constitutions. U.S. Const. art. I, § 9, cl. 3;

U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.

In addition, defendant argues that he is "disadvantage[d]" and

being "further punish[ed]" because "he is unable to obtain housing

for his wife and child," and is "prohibited from getting a good

job due to his record." We reject these arguments.

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 N.J.S.A. 2C:52-2(b)'s language rendering certain offenses not

subject to expungement is clear and unambiguous and the Legislature

had the right to expand the types of offenses for which the remedy

of expungement is not available, and to accord retroactive effect

to the amendment, without offending ex post facto clauses of both

the Federal and State Constitutions. State v. T.P.M., 189 N.J.

Super. 360, 364 (App. Div. 1983). A violation of ex post facto

laws under both the Federal and State Constitutions occurs when

legislation either: (1) punishes as a crime an act that was

innocent when done; (2) makes the punishment of a crime more

burdensome after its commission; or (3) deprives a defendant of a

defense that was available when the crime was committed. State

v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269

U.S. 167, 169-70 (1925)).

"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.'" State v. Perez, 220 N.J. 423, 438

(2015) (quoting State v. Natale, 184 N.J. 458, 491 (2005)).

However, "[t]here 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.'" Id. at 438-39

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(alteration in original) (quoting Natale, 184 N.J. at 491). Here,

the 2013 amendment to N.J.S.A. 2C:52-2(b) does not fall into any

of the categories triggering ex post facto laws. By virtue of the

amendment, defendant's punishment was not increased and he was not

deprived of a defense. See Muhammad, 145 N.J. at 56. The adverse

effects of the statute in depriving defendant of the opportunity

to obtain housing and a good job as he alleges are indirect

collateral consequences. See T.P.M., 189 N.J. Super. at 367.

Moreover, the expungement statute is remedial rather than

punitive in nature and does not prolong a defendant's sentence.

Id. at 367-68. "[T]he possible availability of an expungement is

really not a sentencing consideration and relates to neither the

form of sentence nor the extent of punishment." Id. at 368. A

"[d]efendant's interest in expungement . . . [is] only in obtaining

a potential remedy, not retaining something which had already

inured to his benefit." Ibid. Although the collateral consequence

of the statute in preventing the removal of the civil disability

inhering in a criminal record may seem harsh, the 2013 amendment

to N.J.S.A. 2C:52-2(b) did not take away a benefit that defendant

had previously secured. Ibid. Indeed, defendant's eligibility

to apply for expungement only occurred after a five-year offense-

free period had passed following "satisfactory completion of

probation[,]" and required a finding by "the court . . . in its

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discretion that expungement [was] in the public interest, giving

due consideration to the nature of the offense," and "the

[defendant's] character and conduct since the conviction . . . ."

N.J.S.A. 2C:52-2(a)(2). Thus, contrary to defendant's argument,

the amendment to N.J.S.A. 2C:52-2(b) did not take away a benefit

that he had previously secured because his eligibility to apply

for expungement did not arise in 2010 when he pled but rather in

September 2016, over three years after the enactment of the

amendment.

"A 'statutory expectation' does not 'mean that in addition

to the full panoply of due process required to convict and confine'

the expectation becomes a protected liberty interest." T.P.M.,

189 N.J. Super. at 364-65 (quoting Greenholtz v. Inmates of the

Nebraska Penal & Correctional Complex, 442 U.S. 1, 14 (1979)).

"Legislation which readjusts rights and burdens is not

unconstitutional solely because it upsets settled expectations."

Id. at 365 (citation omitted). As we previously noted in T.P.M.,

"[t]he existence of a criminal record is simply a fact of life,

not part of the sentence and punishment. Defendant [has] no

constitutionally protected right to assume that the legislative

remedy of expungement [is] immutable." Id. at 368.

Affirmed.

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