Long v. DPSCS ( 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
Graeff,
Kehoe,
Salomon, James P.
Senior Judge, Specially Assigned
JJ.
Opinion by Salmon, Jr.
Filed: September 28, 2016
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?
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 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.
2
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 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
3
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:
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
4
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 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
5
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
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.
6
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.
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
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
(Continued…)
7
(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;
(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;
(…continued)
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
(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);
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
9
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, 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
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.
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.
10
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.
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
11
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).
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
12
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 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.
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
13
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
14
576. 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.
15
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 2006, we held, using the intent-effects test, that requiring appellant to register
16
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 the intent-effects test, we apply it only to the
17
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.
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.
18
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 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
19
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 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.
20
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 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
21
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.
.
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 A.L.R. 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.
22
23