Long v. Maryland State Department of Public Safety & Correctional Services , 230 Md. App. 1 ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2593
September Term, 2014
______________________________________
FRANKLIN DAVID LONG
v.
MARYLAND STATE DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONAL
SERVICES
______________________________________
Krauser, C. J.,
Woodward,
Salmon, James P.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Salmon, J.
______________________________________
Filed: September 28, 2016
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other
document filed in this Court or any other Maryland Court as either precedent within the rule of
stare decisis or as persuasive authority. Md. Rule 1-104.
‒Unreported Opinion‒
Franklin David Long (“Long”) filed a complaint for declaratory relief in the Circuit
Court for Montgomery County against the Maryland Department of Public Safety and
Correctional Services (“the Department”) in which he asked the court to declare:
(1) That the Plaintiff be removed from the Maryland Sex Offender Registry
since his original sentence required only a ten (10) year registration term
which should have expired in 2011; or, in the alternative,
(2) Should this Court find that the Plaintiff must remain on the Maryland Sex
Offender Registry, that the Plaintiff only be required to register once a year
with his supervising authority as opposed to every three months; and further
(3) That the terms of his registration be in accordance with his original
sentence and the laws in place at the time of his crime, and not pursuant to
the retroactive application of the 2001, 2009 and 2010 amendments to the
Maryland sex offender statute[.]
The Department filed an answer to the complaint, after which both Long and the
Department filed motions for summary judgment. The circuit court, after hearing oral
argument, granted the Department’s motion for summary judgment and ruled: 1) that
Long’s original sentence required him to register as a sex offender for life, and 2) that Long
was required to meet the registration requirements as a sex offender as they currently exist.
The court also denied Long’s cross-motion for summary judgment and declared, in writing,
the rights of the parties. Long filed a timely appeal to this Court in which he raises two
questions that he phrases as follows:
1. Did the [c]ircuit [c]ourt err in determining that [a]ppellant was subject to
lifetime registration on the Maryland Sex Offender Registry when he was
only required to register for a ten-year term at the time of his sentence?
‒Unreported Opinion‒
2. Did the [c]ircuit [c]ourt err in determining that the additional registration
requirements imposed upon [a]ppellant by the 2009 and 2010 amendments
to the Maryland Sex Offender Registry Act did not violate the prohibition
against ex post facto laws under the Maryland Declaration of Rights?
The second question presented is one of first impression. We shall answer that
question as well as the first in the negative.
I.
BACKGROUND
On October 4, 2000, when Long was 66 years old, he committed a third-degree
sexual offense. On the date this crime was committed his victim was an 11-year-old girl.
About ten months after the commission of the aforementioned crime, on August 6,
2001, Long entered a guilty plea in which he admitted having committed a third-degree
sexual offense. The plea was entered in the Circuit Court for Montgomery County,
Maryland. On September 6, 2001, the circuit court sentenced Long to five years’
incarceration with all but six months suspended, in favor of five years’ probation.
At the time of Long’s sentence, the statute that prohibited third-degree sexual
offenses was set forth in Article 27 § 464B of the Annotated Code of Maryland (1987,
Repl.Vol.). In 2002, that last mentioned statutory provision was transferred, without
substantive change, to Maryland Code (2002), Criminal Law Article (“Crim. Law”) § 3-
307. When Long was convicted in 2000, Article 27 § 792(D)(2)(ii)1 provided that anyone
convicted as a third-degree child sexual offender was required to register for life as a sexual
2
‒Unreported Opinion‒
offender. Moreover, due to the nature of Long’s crimes, he also met the definition of a
sexually violent offender; such offenders were also required to register as a sex offender
for life. See Article 27 § 792(D)(4)(ii)1.
On the same date that Long was sentenced, September 6, 2001, Long acknowledged
receipt of an “order for probation upon release from incarceration.” That order set forth
various conditions of probation, one of which was that he “must register as a sex offender.”
The order did not specify for how long appellant was required to register.
Ten days after Long filed his acknowledgment of the conditions of his probation,
he received a document entitled “Notice to Registrant of Requirements under Article 27,
Section 792.” That document informed Long, erroneously, that he was only required to
register as a child sexual offender annually for “the next 10 years” i.e., until September 18,
2011.
Long, on January 20, 2004, received a document entitled “Notice to Registrant [-]
Under Criminal Procedure Article 11-701-721.” That document advised Long that he was
required to register as a child sexual offender annually for life.
In 2009 and 2010, the Maryland Sex Offender Registration Act (“the Act”) was
amended. The amendments, insofar as here pertinent, are set forth in Maryland Code (2008
Repl.Vol., 2015 Supp.), Criminal Procedure Article (“Crim. Proc.”) § 11-701(q)(1)(ii).
The amendments to the Act, reclassified persons in Mr. Long’s situation from a “child
3
‒Unreported Opinion‒
sexual offender” and “sexually violent offender” to a “Tier III sex offender.” As amended,
the Act defined a “Tier III sex offender” as a “person who has been convicted of . . .
committing a violation of § 3-307(a)(3) . . . of the Criminal Law Article[.]” See Crim.
Proc. § 11-701(q)(2). Although the amendments did not change the time period for which
an offender was required to register, it did require that the offender “register in person
every 3 months with a local law enforcement unit” for the life of the registrant. See Crim.
Proc. § 11-707(a)(2)(i) and (a)(4)(iii). The 2010 amendment made additional changes,
which are discussed infra.
In his complaint requesting declaratory relief, Long asserted that by requiring him
to continue to register as a sex offender after September 18, 2011, the statute violated the
prohibition against ex post facto laws set forth in Article 17 of the Maryland Declaration
of Rights. This is true, according to Long, because he was “originally required to register
for ten (10) years and now must register for life.”
Long asserts, in the alternative, that in the event that this Court should determine
that he must remain on the Maryland Sex Offender Registry for life, we should,
nevertheless, decide that he should only have to meet the reporting requirements that were
in place in 2000 and not the more stringent requirements currently imposed upon third-
degree sex offenders.
The circuit court, in a written opinion, declared:
4
‒Unreported Opinion‒
Pursuant to the 1999 amendment to the Maryland Sex Offender
Registration Act (the “Maryland Act”), Mr. Long was required to register as
a child sexual offender for life. 1999 Md. Laws ch. 317.
As a result of a 2010 amendment to the Maryland Act, Mr. Long is
now classified as a “[T]ier III” sex offender in Maryland which has not
changed the requirement that he register for life. See Md. Code Ann., Crim.
Proc. § 11-701(q)(1)(ii) (2013 Supp.).
The Maryland Act has not been applied, and is not now being applied,
to Mr. Long in any way so as to violate either the federal or state ex post facto
clauses. Mr. Long is therefore obligated to continue to register as a [T]ier III
sex offender for life in accordance with the requirements of the Maryland
Act.
II.
FIRST ISSUE PRESENTED
Long’s first argument is phrased as follows “[t]he [c]ircuit [c]ourt erred in
determining that [a]ppellant should not be removed from the MSOR [Maryland Sex
Offender Registry] because the ten-year registration term to which he was obligated has
expired.” The key phrase in this argument is “the ten-year registration term to which he
was obligated has expired.” Actually, in 2001, when Long was sentenced, as a collateral
consequence to pleading guilty to a third-degree sex offense involving a female under the
age of 14 years, Long was “obligated” to register as a sex offender for life - not ten (10)
years. In his brief, Long admits that this is what the law provided in 2001, the year that he
entered his guilty plea. Long argues, however, that “lifetime registration was never a
condition of” his sentence and, as a consequence, he “is entitled to the benefit of the bargain
5
‒Unreported Opinion‒
in his plea agreement, and [the Department] cannot unilaterally decide to increase [his]
registration term to something other than what was agreed to, understood, and voluntarily
accepted by [him] at the time of sentencing.” Later in his brief, Long makes much the
same point when he argues that when he “received his sentence, his plea agreement
included a requirement to register on the MSOR for ten years.”
There are two major problems with the above arguments. First, in the circuit court,
Long never argued that at the time he pleaded guilty, he and the State agreed that he would
only be required to register as a sex offender for ten years. Therefore, the circuit court did
not address that argument. See Md. Rule 8-131(a) (except for certain jurisdictional issues,
an appellate court will ordinarily not decide any issue neither raised nor decided in the
circuit court). Second, there is nothing whatsoever in the record to suggest that, at the time
the plea agreement was put on the record, the State, the plea judge, or anyone else, agreed
with appellant that he would only have to register as a sex offender for ten years.
In his brief, Long argues the fact that his plea agreement “included a requirement to
register on the MSOR for ten years” is supported by the “Notice to Registrant of
Requirements under Article 27, Section 792” that he received. The content of the notice
to registrant tells us nothing whatsoever as to appellant’s understanding of the registration
requirements when he entered his guilty plea. That notice was received ten days after he
received his sentence and 43 days after he pled guilty. In other words, at the time in 2001
6
‒Unreported Opinion‒
when Long pled guilty, he could not possibly have relied upon the Notice to Registrant
because that document was not supplied to him until more than one month afterwards.
It is of course true, as Long argues, that when a defendant pleads guilty he or she is
entitled to the benefit of his/her bargain. But, nothing in this record shows that Long ever
made such a “bargain” when he pled guilty. In short, there is nothing in the record to
support Long’s argument that when he pled guilty, he was promised that he would only
have to register for ten years.
For the foregoing reasons, we hold that the circuit court did not err when, in
declaring the rights of the parties, the court said that Long was required to register as a sex
offender for life.
III.
SECOND ISSUE PRESENTED
In October of 2000, when Long committed the third-degree sexual offense against
an 11-year-old victim and, at the time he was sentenced, sex offenders with such
convictions were required to register annually, in person, with a local law enforcement
agency and provide the following information:
(i) The registrant’s name, address and place of employment;
(ii) A description of the crime for which the registrant was convicted . . .;
(iii) The date that the registrant was convicted . . .;
(iv) The jurisdiction in which the registrant was convicted . . .;
(v) A list of any aliases that have been used by the registrant; and
(vi) The registrant’s Social Security number.
7
‒Unreported Opinion‒
Md. Code Ann., Article 27, Section 792(e) (2000).
After the law was changed by the 2009 and 2010 amendments, Long was required
to register with a local law enforcement agency authority every three months (rather than
every six months)1 and to file a registration statement that included:
(1) the registrant’s full name, including any suffix, and all addresses and
places where the registrant resides or habitually lives;
(2) the name and address of each of the registrant’s employers and a
description of each location where the registrant performs
employment duties, if that location differs from the address of the
employer;
(3) the name of the registrant’s educational institution or place of school
enrollment and the registrant’s educational institution or school
address;
(4) a description of the crime for which the registrant was convicted;
(5) the date that the registrant was convicted;
(6) the jurisdiction and the name of the court in which the registrant was
convicted;
(7) a list of any aliases, former names, names by which the registrant
legally has been known, traditional names given by family or clan
under ethnic or tribal tradition, electronic mail addresses, computer
log-in or screen names or identities, instant-messaging identities, and
electronic chat room identities that the registrant has used;
1
Long incorrectly asserts that the 2010 amendments to the Maryland Act increased
his in person registration obligation from once annually. In 2006, the Maryland Act was
amended to require that “child sexual offenders” and “sexually violent offenders” register
in person every six months. Md. Code Ann., Crim. Proc. § 11-707(a) (2015 Supp.). The
2010 amendments increased the frequency from twice annually to quarterly. For our
purposes, however, this erroneous assertion does not matter because from the time
appellant committed the sexual offense to the time he filed suit, the reporting requirement
increased from once per year to once every three months.
8
‒Unreported Opinion‒
(8) the registrant’s Social Security number and any purported Social
Security numbers, the registrant’s date of birth, purported dates of
birth, and place of birth;
(9) all identifying factors, including a physical description;
(10) a copy of the registrant’s passport or immigration papers;
(11) information regarding any professional licenses the registrant holds;
(12) the license plate number, registration number, and description of any
vehicle, including all motor vehicles, boats, and aircraft, owned or
regularly operated by the registrant;
(13) the permanent or frequent addresses or locations where all vehicles
are kept;
(14) all landline and cellular telephone numbers and any other designations
used by the sex offender for the purposes of routing or self-
identification in telephonic communications;
(15) a copy of the registrant’s valid driver’s license or identification card;
(16) the registrant’s fingerprints and palm prints;
(17) the criminal history of the sex offender, including the dates of all
arrests and convictions, the status of parole, probation, or supervised
release, and the existence of any outstanding arrest warrants; and
(18) the registrant’s signature and date signed.
Md. Code Ann., Crim. Proc. § 11-706(a) (2014).
Several appellate cases in Maryland have discussed, in considerable detail, whether
the Maryland Sex Offenders Registration Act (“the Act”) as amended violates the ex post
facto provisions in Article 17 of the Declaration of Rights and/or Article I, § 10 of the
United States Constitution. Those cases include: Doe v. Dept. of Public Safety and
Correctional Services (“Doe I”), 430 Md. 535 (2013); Dept. of Public Safety and
Correctional Services v. Doe (“Doe II”), 439 Md. 201 (2014); In Re: Nick H., 224 Md.
App. 668 (2015); Connor v. State, 223 Md. App. 1 (2015); Quispe del Pino v. Maryland
Department of Public Safety and Correctional Services, 222 Md. App. 44 (2015);
9
‒Unreported Opinion‒
Rodriguez v. State, 221 Md. App. 26 (2015); Sanchez v. State, 215 Md. App. 42 (2013).
See also Timothy J. Gilbert, Retroactivity and the Future of Sex Offender Registration in
Maryland, 45 U. Balt. L.F. 164, 166-77 (2015).
In large measure, the reason for the 2009 and 2010 changes to the Act was that the
United States Congress, in 2006, passed the Sex Offender Registration and Notification
Act (“SORNA”). See Doe I, 430 Md. at 588 (Barbera, J., dissenting). SORNA required
states to set up a sex offender registry and specified what information must be contained in
the registry. In addition, SORNA authorized the United States Attorney General to issue
guidelines to the states specifying additional information about sex offenders that should
be compiled and contained in the registry. Id. On July 2, 2008, the Attorney General
issued such guidelines. See 73 Fed. Reg. 38030-38070. States that did not comply with
SORNA and the guidelines, risked losing 10% of the Byrne Justice Assistant grants that
would have otherwise been allowed. See 42 U.S.C. § 16925.2 A review of SORNA,
2
On July 19, 2011, the United States Department of Justice SMART (Sexual
Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking) Office
certified Maryland as one of the 17 states that had substantially implemented SORNA. See
Doe II, 439 Md. at 224.
10
‒Unreported Opinion‒
together with the Attorney General’s guidelines, show that many of the 2009-2010 changes
to the Act were required by either SORNA or the guidelines.3
Appellant contends that the registration requirement set forth in the amendments to
the Act should not apply to him because, if so applied, the amended statute would violate
his rights as guaranteed by Article 17 of the Maryland Declaration of Rights, which reads:
That retrospective Laws, punishing acts committed before the existence of
such Laws, and by them only declared criminal are oppressive, unjust and
incompatible with liberty; wherefore no ex post facto law ought to be made;
nor any retrospective oath or restriction be imposed, or required.
Article I, § 10 of the Constitution of the United States contains a similar provision
that provides, in pertinent part: “No State shall . . . pass any . . . ex post facto Law . . . .”
Until our recent decision in the case of In Re: Nick H., there was confusion in
Maryland as to what test should be used in determining whether the amended Act violated
Article 17 of the Maryland Declaration of Rights. The competing tests were the “intent-
effects test” discussed by the Supreme Court in Smith v. Doe, 538 U.S. 84 (2003) (“Smith”)
and the “disadvantage” test, which was utilized by a plurality of the Court of Appeals in
Doe I. Doe I, 430 Md. at 551-52, 557.
3
Admittedly, some of the new requirements as set forth in the 2010 amendment to
the Act are unique to Maryland. See Doe I, supra.
11
‒Unreported Opinion‒
In Smith, the United States Supreme Court examined an Alaskan sex registration
statute that went into effect in 1994 and required sex offenders and child kidnappers to
register as sex offenders and to re-register every three months thereafter. 538 U.S. at 89-
90. Under the Alaskan statute, such offenders were required to:
provide his name, aliases, identifying features, address, place of
employment, date of birth, conviction information, driver’s license number,
information about vehicles to which he has access, and post-conviction
treatment history. [Alaska Stat.] § 12.63.010(b)(1). He must permit the
authorities to photograph and fingerprint him. [Alaska Stat.] §
12.63.010(b)(2).
Id. at 90.
Because the Alaskan Act went into effect after the respondents were convicted, the
Supreme Court was called upon to decide whether the ex post facto prohibition found in
Article I, § 10 of our federal constitution prohibited Alaska from requiring the respondents
to abide by the provisions of the statute. The Smith Court held that the rights of the
respondents were not violated and in reaching that conclusion applied the intent-effects
test, which involved a two-step process. The Court explained the first step as follows:
We must ascertain whether the legislature meant the statute to establish civil
proceedings. If the intention of the legislature was to impose punishment,
that ends the inquiry. If, however, the intention was to enact a regulatory
scheme that is civil and nonpunitive, we must further examine whether the
statutory scheme is so punitive either in purpose or effect as to negate [the
State’s] intention to deem it civil.
Id. at 92 (alteration in original) (citations and internal quotation marks omitted).
12
‒Unreported Opinion‒
The second step of the intent-effects test requires the court to consider several
factors, including, but not limited to, the following:
[1] [w]hether the sanction involves an affirmative disability or restraint, [2]
whether it has historically been regarded as a punishment[, 3] whether it
comes into play only on a finding of scienter, [4] whether its operation will
promote the traditional aims of punishment–retribution and deterrence, [5]
whether the behavior to which it applies is already a crime, [6] whether an
alternative purpose to which it may rationally be connected is assignable for
it, and [7] whether it appears excessive in relation to the alternative purpose
assigned . . . .
In Re: Nick H., 224 Md. App. at 691 (quoting from Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168-69 (1963)).
Appellant contends that we should not use the intent-effects test but use instead the
disadvantage test, which, as already mentioned, was espoused by the plurality opinion in
Doe I. Under that test, the “two critical elements that must be present for a law to be
unconstitutional under the ex post facto prohibition are that the law is retroactively applied
and the application disadvantages the offender.” Doe I, 430 Md. at 551-52.
In the In Re: Nick H. case, before concluding that the intent-effects test must be
used, the Doe I case was thoroughly analyzed, as follows:
In 2006, Doe pled guilty to and was convicted . . . of a single count of child
sexual abuse arising out of an incident involving inappropriate contact with
a thirteen-year-old student that occurred during the 1983-84 school year
when Doe was a junior high school teacher. Doe was sentenced to ten years’
incarceration, with all but four and one half years suspended, and three years’
supervised probation upon his release. Although Doe’s plea agreement did
not address registration as a sex offender as one of the conditions of
13
‒Unreported Opinion‒
probation, Doe was ordered at sentencing to “register as a child sex
offender.” He was also ordered to pay a $500 fine. Following his sentencing,
Doe filed a Motion to Correct an Illegal Sentence challenging both the fine
and the requirement that he register as a child sex offender. The [c]ircuit
[c]ourt agreed with Doe and issued an order striking the fine and the
registration requirement. Doe was released from prison in December 2008.
On October 1, 2009, Doe’s probation officer directed him to register as a
child sex offender. Doe maintained that he did not agree with the
requirement, but, against the advice of counsel, he registered as a child sex
offender in early October 2009.
The requirement that Doe register as a sex offender was a result of the 2009
amendment to MSORA retroactively requiring offenders who were
convicted on or after October 1, 1995, but committed a sexual offense before
that date, to register for the first time. In October 2009, Doe brought a
declaratory judgment suit in the circuit court, seeking an order that he was
not required to register as a sex offender. Doe argued that a registration
requirement would make his plea invalid as involuntary, because he was not
informed that he would have to register as a sex offender when he entered
into the plea agreement in 2006. The State argued that the requirement did
not violate the prohibition against ex post facto laws. The trial court agreed
with the State and ordered that Doe “shall not be removed from the sex
offender registry.”
After this Court affirmed the circuit court, the Court of Appeals granted
certiorari and reversed our decision. In a plurality opinion, the Court of
Appeals held that “requiring [Doe] to register as a result of the 2009 and 2010
amendments violates the prohibition against ex post facto laws contained in
Article 17 of the Maryland Declaration of Rights.” The three-judge plurality
explained that “in many contexts,” the Maryland Declaration of Rights offers
broader protections than the United States Constitution. The plurality further
determine that ex post facto claims under Article 17 should be analyzed by
using the “disadvantage” standard, under which “any law passed after the
commission of an offense which . . . in relation to that offense, or its
consequences, alters the situation of a party to his [or her] disadvantage”
violates Article 17.
14
‒Unreported Opinion‒
Specifically, under the disadvantage standard, “Article 17 prohibits the
retroactive application of laws that have the effect on an offender that is the
equivalent of imposing a new criminal sanction or punishment.” The
plurality determined that requiring Doe to register had “essentially the same
effect” as placing him on probation, that “probation is a form of a criminal
sanction,” and that “applying the statute to [Doe] effectively imposes on him
an additional criminal sanction” for a crime committed in the 1980s. The
plurality also concluded that the dissemination of Doe’s information pursuant
to MSORA was “tantamount to the historical punishment of shaming,” and
thus imposed an additional sanction for Doe’s crime. Therefore, according
to the plurality, the retroactive application of MSORA to Doe, which had the
effect of imposing the additional sanction of probation and shaming, violated
the ex post facto prohibition contained in Article 17 of the Maryland
Declaration of Rights.
Judge McDonald (joined by Judge Adkins) concurred with the plurality’s
conclusion that the statute violated Article 17, but, in contrast to the plurality,
read Article 17 in pari materia with Article I, § 10 of the United States
Constitution. Judge McDonald’s concurrence stated further that “the
cumulative effect of [the] 2009 and 2010 amendments of the State’s sex
offender registration law took that law across the line from civil regulation
to an element of the punishment of offenders.” Although his concurrence
did not expressly state the test that was used, both the language of the
concurrence and the two law review articles cited therein lead us to conclude
that Judge McDonald analyzed the issue under the “intent-effects test.”
224 Md. App. at 681-83 (citations omitted).
In Doe I, Judge Harrell, writing separately in a concurring opinion, stated that he
would have denied Doe’s ex post facto claim under the “intent-effects” test but,
nevertheless, believed that Doe was entitled to relief because his 2006 plea agreement did
“not indicate that sex offender registration was a term of [the] agreement.” 430 Md. at 576.
15
‒Unreported Opinion‒
Judge Barbera, in her dissent, opined that the proper test to be utilized when a statute is
challenged on ex post facto grounds was the intent-effects test.4 Id. at 583-87.
In Re: Nick H., we said:
Because Doe I is a plurality decision, we employ the Marks Rule to
determine the Court’s holding: “‘[W]hen a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of [four
judges], the holding of the court may be viewed as that position taken by
those Members who concurred in the judgment on the narrowest grounds.’”
Wilkerson v. State, 420 Md. 573, 594, 24 A3d 703 (2011) (quoting Marks v.
United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)).
Thus the Marks Rule requires us to determine the common thread running
through the plurality and concurring opinions of Doe I. See, e.g., Derr v.
State, 434 Md. 88, 115, 73 A.3d 254 (2013) (concluding that, under the
Marks Rule, the narrowest holding of the Supreme Court’s decision in
Williams v. Illinois, ___ U.S. ____, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012),
was the position representing the common point of agreement between the
plurality and concurring opinions), cert denied, ____ U.S. ____, 134 S.Ct.
2723, 189 L.Ed.2d 762 (2014).
In Doe I, the decision that MSORA violates the Article 17 ban on ex post
facto laws is the common denominator representing the position taken by
five judges who agreed that Doe should be granted relief. See 430 Md. at
568, 578, 62 A.3d 123. Because the Marks Rule directs us to the narrowest
ground common to the plurality and the concurrence, Judge McDonald’s
interpretation of Article 17 as read in pari materia with the less expansive
federal ex post facto clause represents the “position taken by those Members
who concurred in the judgment on the narrowest grounds.” See Wilkerson,
420 Md. at 594, 24 A.3d 703 (concluding that Justice Kennedy’s concurrence
represented the narrowest opinion of the Supreme Court in Missouri v.
Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004)).
4
Of the three judges that made up the Doe I plurality, only Judge Greene is presently
an incumbent judge. The two judges who joined in the plurality opinions (Bell and
Eldridge), have retired as has Judge Harrell.
16
‒Unreported Opinion‒
We recognize, however, that in reaching its holding in Doe I, three
members of the Court applied the disadvantage test (the plurality opinion),
while only two applied the intent-effects test (Judge McDonald’s
concurrence). See Doe I, 430 Md. at 568, 578, 62 A.3d 123. Thus neither
test commanded a majority of the Court. Nevertheless, we decide that the
intent-effects test is the proper test to determine whether MSORA violates
Article 17 as applied to appellant.
224 Md. App. at 684-86 (footnote omitted, emphasis added).
In Re: Nick H., the appellant was a minor in 2006 when he pleaded involved to one
count of sexual abuse of a minor and two counts of second-degree sexual offense. 224 Md.
App. at 673-74. At the time the offenses were committed, the appellant was 15 years old.
Id. at 674. The juvenile court, after accepting his plea, placed appellant in a residential
treatment center where he stayed for about ten months. Id. Upon release, appellant was
placed on probation for three and one-half years. The juvenile court monitored appellant’s
progress in outpatient sex offender treatment while he was on probation. After the
Maryland Sex Offender Registration Act (“MSORA”) was amended in 2009 and 2010, the
juvenile court, under certain specified conditions, was allowed to require that a juvenile
register as a sex offender when he or she left the jurisdiction of the juvenile court. Id.
On October 7, 2010, the State asked the juvenile court to order Nick H. to register
as a sex offender. Id. The juvenile court did so finding “by clear and convincing evidence”
that Nick H. was “at significant risk [of re-offending] . . . .” Id. at 680. Even though
appellant was not required to register as a sex offender at the time he entered his plea in
17
‒Unreported Opinion‒
2006, we held, using the intent-effects test, that requiring appellant to register under the
amendments to the Act, did not violate Article 17 of the Maryland Declaration of Rights.
In Re: Nick H. was filed on September 29, 2015, which was two weeks after
appellant filed his brief in this case. It is, perhaps, for this reason, that in his brief, appellant
analyzes the 2009 and 2010 amendments to the Act by assuming that the intent-effects test
would not be used and that we would use the disadvantage test set forth in the Doe I
plurality opinion. But, under the holding in Nick H., the disadvantage test is inapplicable
when construing Article 17 of the Declaration of Rights. See In Re: Nick H., 224 Md. at
685-86.
Before applying the intent-effects test to the facts in this case, it should be stressed
that the case sub judice is distinguishable from Smith, Doe I, and In Re: Nick H. inasmuch
as the sex offenders in those cases, at the time they committed the sex offense(s), were not
required to register as sex offenders. In contrast, at the time of appellant’s 2001 conviction,
he was already required to register as a sex offender for life and also required to supply the
State with quite a bit of personal information when he registered. Therefore, to the extent
that simply being on a registry of sexual offenders might constitute the modern day
equivalent of shaming (see Doe I plurality opinion, 430 Md. at 565), that negative
consequence, because it existed prior to the statute’s amendments, can have no effect on
our decision as to whether appellant’s ex post facto rights were violated. Thus, in applying
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‒Unreported Opinion‒
the intent-effects test, we apply it only to the aspects of the amendments to the Act that are
different from the registration requirements that existed at the time of appellant’s criminal
acts.
As mentioned earlier, the first step when using the intent-effects test is to determine
whether the legislature meant the 2009 and 2010 amendments to punish the sex offender
or to simply establish civil regulatory proceedings. See Smith, 538 U.S. at 92. In this case
it is clear that the General Assembly, by its 2009 and 2010 amendments, intended the
statute to be a regulatory measure needed to accomplish two public safety regulatory
objectives. See Doe I, 430 Md. at 587 (Barbera, J. dissenting). One objective was to
incorporate the provisions of SORNA and the second intended purpose was to “further the
objectives of the then-extant civil regulatory scheme [that the Maryland Court of Appeals]
previously held to be non-punitive.” Id. (citing Young v. State, 370 Md. 686 at 712 (2002))
(footnote omitted). “[W]here a legislative restriction is an incident of the State’s power to
protect the health and safety of its citizens, it will be considered as evidencing an intent to
exercise that regulatory power, and not a purpose to add to the punishment.” Smith, 538
U.S. at 93-94 (citations and quotation marks omitted). Additionally, there is nothing in the
language used in either the 2009 or 2010 amendments that indicates a legislative intent to
punish the sex offender.
19
‒Unreported Opinion‒
We therefore conclude that the 2009 and 2010 amendments to the Act were enacted
with the intent of protecting the health and welfare of the public and not to punish the
offender. In other words, the General Assembly meant the amendments to be part of a civil
regulatory scheme and not punitive.
In applying the intent-effects test, the Supreme Court said:
If the intention of the legislature . . . was to enact a regulatory scheme that is
civil and nonpunitive, we must further examine whether the statutory scheme
is “‘so punitive either in purpose or effect as to negate [the State’s] intention’
to deem it ‘civil.’” Ibid. (quoting United States v. Ward, 448 U.S. 242, 248-
249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Because we “ordinarily defer
to the legislature’s stated intent,” Hendricks, [521 U.S. 346], at 361, 117
S.Ct. 2072[(1997)], “only the clearest proof will suffice to override
legislative intent and transform what has been denominated a civil remedy
into a criminal penalty,” Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct.
488, 139 L. Ed.2d 450 (1997) (quoting Ward, supra. at 249, 100 S.Ct.
2636)[.]
Smith, 538 U.S. at 90 (some citations omitted).
The second step in applying the intent-effects test requires us to analyze whether the
effect of the statute “overrides the legislative purpose [in such a way as] to render the statute
punitive.” Doe I, 430 Md. at 570 (footnote omitted). The first factor is whether the statute
imposes an “affirmative disability or restraint.” Id. at 572. Although the additional
requirements set forth in the amendments do not impose any physical restraints upon
appellant, the requirement that the appellant register once every three months rather than
once every year, together with the added information that must be provided, can be said to
20
‒Unreported Opinion‒
amount to an affirmative disability. See generally Young v. State, 370 Md. at 713.
Therefore, that factor weighs in favor of appellant, although, as in Young, “we ultimately
conclude that the [added] burden is not so unreasonable, in light of the statute’s remedial
aims, that it converts the statute into a punitive one.” Id.The second factor (whether the added requirements have been historically viewed
as punishment) weighs in favor of the State. Providing detailed information to a local law
enforcement agency coupled with the requirement that the offender appear in person once
every three months has historically not been viewed as punishment; instead, such
requirements have historically been viewed as serving a regulatory purpose, i.e., to increase
the safety of the public from known violent sex offenders. Smith, 538 U.S. at 98-99.
The third factor also weighs in favor of the State because no finding of scienter is
required in order for the additional registration requirements to apply. All Tier III sex
offenders, without regard to the offenders’ state of mind, must comply. See Young, 370
Md. at 715.
The fourth factor (whether the statute will promote the traditional goals of
punishment: retribution and deference), weighs in favor of appellant. Although not
retributive, the additional requirements set forth in the amendments can be said to serve a
deterrence function by continuously reminding the offender of the ever-present interest of
law enforcement in the registrant’s behavior. See In Re: Nick H., 224 Md. App. at 695 and
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‒Unreported Opinion‒
Young, 370 Md. at 712. This factor, however, is afforded slight weight because, before the
amendments went into effect, appellant already had to provide significant information to
local law enforcement agencies once per year.
The fifth factor (whether the behavior to which the amendment applies is already a
crime) is one that also favors the appellant because, quite obviously, in order to be required
to provide the additional information, one must be a convicted sex offender. That factor
also is accorded limited weight. In Young, 370 Md. at 714, the Court of Appeals said:
There are many occasions when legislatures attach both criminal and civil
sanctions to the same act or omission. The fact that the statute is triggered
by a criminal conviction does not undermine the Legislature’s intent to create
a sex offender registry to aid in the civil purpose . . . . Thus, although the
connection between sex offender registration and past criminal behavior is
clear, we accord only limited weight to this factor in light of the equally
strong connection between registration and legitimate civil purposes.
The sixth factor (whether an alternative purpose - other than punishment - may be
assigned for the added burden) strongly favors the State because the amendments clearly
have a purpose other than punishment. That alternative purpose was to protect the public
from the grave threat of repeat sex offenders by requiring convicted sex offenders to supply
added information and to present themselves more frequently to law enforcement agencies
so that their whereabouts can always be determined.
The seventh factor (whether the burden appears excessive in relation to the
alternative purpose), favors the State. In light of the serious problems caused by repeat sex
22
‒Unreported Opinion‒
offenders and the attendant need to be aware of the location and activities of the offender,
the additional requirements set forth in the 2009-2010 amendments, while perhaps
inconvenient for the offender, are not excessive.
After balancing all relevant factors, we conclude that appellant has failed to produce
“the clearest proof” that despite the non-punitive intent of the amendments, the effect of
the 2009 and 2010 changes in the Act are punitive. See Smith, 538 U.S. at 90.5 Because
the added burdens brought about by the amendments do not constitute punishment forcing
appellant to comply with the new requirements, they did not violate appellant’s rights as
set forth in Article 17 of the Maryland Declaration of Rights.
JUDGMENT AFFIRMED; COSTS
TO BE PAID BY APPELLANT.
5
For a comprehensive review of scores of cases involving the intent-effects test, see
William M. Howard, Validity of State Sex Offender Registration Laws Under Ex Post Facto
Prohibitions, 63 ALR 6th 351 (2013). Using that test, all federal Circuit Courts of Appeals
and a great many state appellate courts have found no ex post facto violations when the sex
offender registration law is applied retroactively. There are, however, cases discussed in
the annotation where ex post facto violations were found in the application of state Sexual
Offender Registration statutes. As far as we have been able to determine, however, none
of those cases involved offenders who, prior to the amendment of the statute, already had
to register for life but, after the amendment, had to divulge more information and report to
a law enforcement agency more frequently.
23