Arias-Rivera v. State ( 2020 )

Roberto Carlos Arias-Rivera v. State, No. 3223, September Term 2018. Opinion by
Nazarian, J.
SENTENCING – ILLEGAL SENTENCE – EXTENDED SEXUAL OFFENDER
PAROLE SUPERVISION
The version of § 11-723 of the Criminal Procedure Article in effect from approximately
2006 to 2010 requires the sentence of an individual who meets the definition of “extended
parole supervision offender” to include a term of extended sexual offender parole
supervision of not less than three years and not more than life. A sentence that omits such
a term is not permitted by statute and is therefore illegal.
Circuit Court for Montgomery County
Case No. 114347C
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 3223
September Term, 2018
______________________________________
ROBERTO CARLOS ARIAS-RIVERA
v.
STATE OF MARYLAND
______________________________________
Kehoe,
Nazarian,
Friedman,
JJ.
______________________________________
Opinion by Nazarian, J.
Dissenting Opinion by Friedman, J.
______________________________________
Filed: July 2, 2020
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
Suzanne Johnson
2020-07-20 14:39-04:00
Suzanne C. Johnson, Clerk
In April 2010, a jury sitting in the Circuit Court for Montgomery County convicted
Roberto Carlos Arias-Rivera of sexual abuse of a minor, rape, and other offenses for,
among other things, having vaginal intercourse with his eleven-year-old step-daughter. The
circuit court sentenced Mr. Arias-Rivera to fifty years’ imprisonment. We affirmed his
convictions on direct appeal. Roberto Carlos Arias-Rivera v. State, No. 930, Sept. Term
2010, slip op. (Md. App. Mar. 14, 2012).
On November 27, 2018, Mr. Arias-Rivera filed a motion to correct an illegal
sentence, arguing that the circuit court failed to include in his sentence a term of extended
parole supervision under Maryland Code, § 11-723 of the Criminal Procedure Article
(“CP”).1 The circuit court summarily denied the motion without a hearing. We vacate and
remand to the circuit court with instructions to include in Mr. Arias-Rivera’s sentence a
term of extended parole supervision, as the plain language of CP § 11-723 required at the
time of his sentencing.
I. BACKGROUND
The events underlying Mr. Arias-Rivera’s convictions took place over the course of
two days, on September 28 and 29, 2009.2 After a two-day trial in April 2010, the jury
convicted him of sexual abuse of a minor, second-degree rape, second-degree sexual
offense (two counts), and third-degree sexual offense. On June 22, 2010, the circuit court
1
Unless otherwise indicated, all references to sections of the Criminal Procedure Article
are to the 2008 Replacement Volume, which applied at the time Mr. Arias-Rivera was
sentenced.
2
A more detailed recitation of the evidence submitted at trial is set forth in our opinion on
Mr. Arias-Rivera’s direct appeal. Arias-Rivera, No. 930, Sept. Term 2010, slip op.
sentenced him to a total of fifty years: fifteen years for child sex abuse, ten consecutive
years for second-degree rape, ten consecutive years for each of the two second-degree
sexual offense convictions, and five consecutive years for third-degree sexual offense. The
court did not refer to extended sexual offender parole supervision at the sentencing hearing.
Mr. Arias-Rivera filed a motion to correct an illegal sentence under Maryland
Rule 4-345. He argued before the circuit court, as he does on appeal, that his sentence must
be amended to include a specific term of extended parole supervision under the version of
CP § 11-723 in effect at the time of his sentencing. The circuit court denied Mr. Arias-
Rivera’s motion without a hearing or explanation.
II. DISCUSSION
Mr. Arias-Rivera raises two questions on appeal,3 although we address the merits of
only the first, which we rephrase: did the circuit court impose an illegal sentence by not
3
Mr. Arias-Rivera phrases the questions presented as follows:
1. (A) [sic] Did the court err in not imposing a term of sexual
offender supervision pursuant to Criminal Procedure Article
§ 11-723 where that statute, by its own terms, requires such
term for a sex offense committed on or after August 1, 2006?
2. Does retroactive application of the 2010 amendment to
Criminal Procedure Article § 11-723 violate state and federal
ex post facto prohibitions?
The State phrases the questions presented as follows:
1. Did the circuit court properly deny Arias-Rivera’s Rule 4-
345(e) Motion to Correct an Illegal Sentence?
2. Should the Court not consider whether the retroactive
application of the 2010 amendments to CP §§ 11-723 & 11-
724 violates ex post facto provisions in the Maryland and
federal constitutions?
2
including in Mr. Arias-Rivera’s sentence a term of extended sexual offender parole
supervision?4 We decline to address the second question—whether retroactive application
of the later versions of CP § 11-723 would violate ex post facto prohibitions—because it is
not ripe.
A. Mr. Arias-Rivera’s Sentence Is Illegal.
Maryland Rule 4-345(a) permits a court to “correct an illegal sentence at any time.”
An “illegal sentence” is “limited to those situations in which the illegality inheres in the
sentence itself.” Chaney v. State, 397 Md. 460, 466 (2007). “A sentence that is not
permitted by statute is an illegal sentence.” Holmes v. State, 362 Md. 190, 195–96 (2000);
State v. Crawley, 455 Md. 52, 66 (2017) (“Courts do not possess the authority to impose a
sentence that does not comport with a legislatively-mandated sentence, and any such
sentence must be corrected to remedy the illegality.”). Whether a sentence is an illegal
sentence is a question of law that is subject to de novo review. Crawley, 455 Md. at 66.
At the time Mr. Arias-Rivera was sentenced, CP § 11-723 required a sentence of an
“extended parole supervision offender” to include a term of extended parole supervision.
4
Mr. Arias-Rivera’s ultimate aim in filing this appeal appears to be a reduction of the
unsuspended portion of his sentence: he argues in his brief that adding a term of extended
parole supervision will increase the severity of his sentence and, therefore, violate
Maryland Code, § 12-702(b) of the Courts and Judicial Proceedings Article. The Court of
Appeals’s opinion in Greco v. State would seem to foreshadow the outcome of that
argument. 427 Md. 477, 512–13 (2012) (directing circuit court on remand to cure illegality
of a split sentence for murder by adding a term of probation). All the same, we decline to
decide that question because it is not ripe, and reaching it would result in an advisory
opinion, “a long forbidden practice in this State.” Hatt v. Anderson, 297 Md. 42, 45–46
(1983); Smigiel v. Franchot, 410 Md. 302, 320 (2009) (“A justiciable controversy requires
that there be interested parties asserting adverse claims upon a state of facts which must
have accrued wherein a legal decision is sought or demanded.”) (cleaned up).
3
The term “[e]xtended parole supervision offender” is defined in the statute, and neither
Mr. Arias-Rivera nor the State disputes that he meets that definition. From our review of
the record, we agree.5 The question is whether the circuit court was required specifically
to include a term of extended sexual offender supervision when it sentenced him. As we
read the plain language of the statute, it was, and a sentence that didn’t include supervision
specifically is an illegal sentence.
At the time Mr. Arias-Rivera was sentenced, CP § 11-723 provided that “a sentence
for an extended parole supervision offender shall include a term” of supervision, that the
term would start after the end of the later of the offender’s term of imprisonment, probation,
parole, or other mandatory supervision, and that the term must last a minimum of three
years up to a maximum of life:
(a) Except where a term of natural life without the possibility
of parole is imposed, a sentence for an extended parole
supervision offender shall include a term of extended sexual
offender parole supervision.
(b) The term of extended sexual offender parole supervision
for a defendant sentenced on or after August 1, 2006, shall:
(1) be a minimum of 3 years to a maximum of a term of life;
and
(2) commence on the expiration of the later of any term of
5
Extended parole supervision offender” includes “a person who . . . (4) has been convicted
of a violation of § 3-602 of the Criminal Law Article for commission of a sexual act
involving penetration of a child under the age of 12 years.” CP § 11-701(f)(4). Mr. Arias-
Rivera was convicted of sexual abuse of his eleven-year-old stepdaughter under § 3-602 of
the Criminal Law Article (“CR”). “Extended parole supervision offender” also included a
person who has been convicted of a violation of CR § 3-304 (rape in the second degree),
CR § 3-306(a)(2) (second-degree sexual offense), and CR § 3-307(a)(2) (third-degree
sexual offense). CP § 11-701(f)(2). Mr. Arias-Rivera meets the definition owing to his
convictions under all of those provisions as well.
4
imprisonment, probation, parole, or mandatory supervision.
The parties did not cite, and we did not find, any reported Maryland cases addressing
the legality of a sentence that omits a term of extended parole supervision under this version
of CP § 11-723. But as a general matter, “[c]ourts do not possess the authority to impose a
sentence that does not comport with a legislatively-mandated sentence . . . .” Crawley, 455
Md. at 66. And in this case, Mr. Arias-Rivera’s sentence is illegal because it failed to
include, as CP § 11-723 required, a “term of extended sexual offender parole supervision.”
See Holmes, 362 Md. at 195–96 (holding sentence illegal where, in the absence of statutory
authority, the court ordered home detention as a condition of probation, even though
detention was imposed pursuant to plea agreement); see also Greco v. State, 427 Md. 477,
513 (2012) (a term-of-years sentence of fifty years imprisonment was illegal where statute
required a sentence of life imprisonment for first-degree premeditated murder). For that
reason, we vacate Mr. Arias-Rivera’s sentence and remand the case to the circuit court with
instructions to impose a term of extended parole supervision as required by the applicable
version of CP § 11-723.
The State does not address directly the outright omission of extended parole
supervision from Mr. Arias-Rivera’s original sentence, nor does it dispute that Mr. Arias-
Rivera’s sentence failed to include a term of extended parole supervision or that CP § 11-
723 required Mr. Arias-Rivera’s sentence to include a term of supervision. The State argues
instead, and the dissent agrees, that the requirement to serve a term of supervision inheres
by operation of law, whether the court declared it or not. To us, though, the plain language
of CP § 11-723—that “a sentence for an extended parole supervision offender shall include
5
a term of extended sexual offender parole supervision”—the statute required the court to
do so.
Reading CP § 11-723 in context, as enacted in 2006, supports this conclusion. First,
the phrase “a sentence . . . shall include” contrasts with the phrasing for the sex offender
registration requirement, which was not (and still is not, as we discuss below) stated in
terms of being included in the sentence. 2006 Md. Laws 1st Sp. Sess., Ch. 4. Instead, the
statutes (often referred to as the Maryland Sex Offender Registration Act (“MSORA”),
CP §§ 11-701–11-727) simply required certain individuals to register with the “supervising
authority” and with local law enforcement authorities:
CP § 11-705
(b) A registrant shall register with the supervising
authority . . . .
CP § 11-707
(a)(1)(i) A child sexual offender shall register in person every
6 months with a local law enforcement unit for the term
provided under paragraph (4) of this subsection. . . .
(2)(i) An offender and a sexually violent offender shall register
in person every 6 months with a local law enforcement unit for
the term provided under paragraph (4) of this subsection. . . .
(3)(i) A sexually violent predator shall register in person every
3 months for the term provided under paragraph (4)(ii) of this
subsection. . . .
2006 Md. Laws 1st Sp. Sess., Ch. 4. “Child sexual offender,” “offender,” “sexually violent
offender,” and “sexually violent predator” were defined terms, and all were defined as
individuals convicted of certain crimes. CP § 11-701(b), (d), (f), (h). “Offender” was a
catch-all provision that included the additional requirement that a court order registration.
CP § 11-701(d). But the requirement that a court order registration is not the same as the
6
requirement that a court include registration in a sentence. See generally Cain v. State, 386
Md. 320, 329–334 (2005) (court’s discussion of the history of MSORA and the requirement
for sex offenders to register in Maryland as initially enacted in 1995 does not discuss
registration as being part of a sentence). Although, in practice, sentencing courts often do
include registration in the sentence and on the commitment record, we are aware of no case
in which a sentence was found to be illegal because it omitted the registration requirement.
Cf. Cain, 386 Md. at 338, 340 (holding that sentence including sex offender registration as
condition of probation was illegal where individual pled guilty to assault, which was not
one of the enumerated crimes qualifying an individual as an “offender” under the then-
current statute).6
Second, although the 2006 version of MSORA included a role for the Maryland
Parole Commission in administering extended parole supervision, see, e.g., § 7-206(6) of
6
We recognize that the Court of Appeals held recently that sex offender registration
requirements—pursuant to more recent versions of MSORA—are “increasingly punitive.”
Rogers v. State, 468 Md. 1, 39 (2020) (considering the post-2009 and 2010 amendments to
MSORA). But the Court did not go so far as to hold that registration—even in its current,
more “punitive” form—is or must be part of a sentence. See id. at 83 (“[E]ven if registration
is considered sufficiently punitive that a change in the law makes registration more onerous
than it was when a registrant was convicted of his criminal offense can create an ex post
facto problem, registration nevertheless remains a collateral consequence of a conviction,
not part of the criminal sentence itself.”) (Biran, J., dissenting) (citing, inter alia, Doe v.
Dept. of Public Safety & Correctional Servs., 430 Md. 535, 560 (2013) (Plurality
Opinion)). And although some uncertainty remains about the circumstances under which
sex offender registration is a “direct” as opposed to a “collateral” consequence of a
conviction in the ex post facto context, see Hyman v. State, 463 Md. 656, 678, n.10 (2019),
we are aware of no Maryland case holding that registration is anything more than a
consequence of a conviction, as opposed to a part of the sentence itself.
7
the Correctional Services Article (2006 Md. Laws 1st Sp. Sess., Ch. 4), that role did not
include the imposition of supervision in the first place. Indeed, it is the court, and not the
Parole Commission, that has the authority to impose sentences. See Jennings v. State, 339
Md. 675, 683 (1995) (the sentencing court has broad discretion to impose sentences, except
those that are cruel and unusual, unconstitutional, motivated by ill-will or prejudice, or
“that exceed statutory limitations”). In sum, the plain language of the statute here, read in
context, indicates that supervision, unlike registration, is part of a sentence, and that both
the authority and the obligation to impose it lies with the court. And because we can rely
on the plain, unambiguous language of the statute, we need not dive into the legislative
history to divine its meaning.
Rather than claiming that the court didn’t need to include extended parole
supervision in the sentence, the State characterizes Mr. Arias-Rivera as arguing that his
sentence is illegal because the court failed “to state how long he would be on extended
parole supervision as a sex offender at his sentencing hearing.” But Mr. Arias-Rivera does
not argue that his sentence is illegal on the ground that the court failed to state the length
of the term. Instead, he argues that the circuit court omitted a term of extended sexual
offender parole supervision from his sentence altogether. And as we explained above,
Mr. Arias-Rivera’s sentence is illegal on that ground.7
7
The State also argues that the Parole Commission (not the court) has the authority under
CP § 11-724 to set the length of the term of extended parole supervision. In other words,
its position seems to be that CP § 11-723 and CP § 11-724, read together, preclude the
court from setting a specified term of years (between three years and natural life) in
pronouncing extended sexual offender parole supervision. The dissent interprets those
sections in a similar manner. We disagree—we read the plain language of the statute to
8
B. The Question Of The Constitutionality Of The Application Of
The Later Versions Of CP § 11-723 And CP § 11-724 Is Not Ripe.
Mr. Arias-Rivera argues next that the circuit court may not impose a sentence under
the later versions of CP § 11-723 and CP § 11-724 because “retroactive application of the
current law violates state and federal ex post facto prohibitions.” The State agrees that the
later versions of those sections would not apply to Mr. Arias-Rivera’s sentence, and argues
that we should not decide the question because it is “moot.” We agree that we need not
decide this question, but not because it’s moot. Nothing in the record suggests that the
circuit court applied the later versions of CP § 11-723 (or CP § 11-724), so the question
never arose and so never had the opportunity to become moot. See In re Kaela C., 394 Md.
432, 452 (2006) (“A case is moot when there is no longer any existing controversy between
the parties at the time that the case is before the court, or when the court can no longer
fashion an effective remedy.”).
Instead, the second question is not ripe, and therefore not properly before us. Smigiel
v. Franchot, 410 Md. 302, 320 (2009) (“A justiciable controversy requires that there be
interested parties asserting adverse claims upon a state of facts which must have accrued
wherein a legal decision is sought or demanded.”) (cleaned up); Boyds Civic Ass’n v.
Montgomery Cty. Council, 309 Md. 683, 691 (1986) (observing that the purpose of the
ripeness doctrine is to “ensure that adjudication will dispose of an actual controversy in a
conclusive and binding manner”); Hatt v. Anderson, 297 Md. 42, 46 (1983) (observing that
require the trial court to set a specified term, between three years and natural life, of
extended sexual offender parole supervision. Once that term expires, the individual may
file a petition for discharge under CP § 11-724.
9
deciding non-justiciable issues “would place courts in the position of rendering purely
advisory opinions, a long forbidden practice in this State”).
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
VACATED AS TO THE SENTENCE ONLY,
AND CASE REMANDED FOR
PROCEEDINGS CONSISTENT WITH
THIS OPINION. MONTGOMERY
COUNTY TO PAY COSTS.
10
Circuit Court for Montgomery County
Case No. 114347C
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 3223
September Term, 2018
______________________________________
ROBERTO CARLOS ARIAS-RIVERA
v.
STATE OF MARYLAND
______________________________________
Kehoe,
Nazarian,
Friedman,
JJ.
______________________________________
Dissenting Opinion by Friedman, J.
______________________________________
Filed: July 2, 2020
I, respectfully, dissent. Roberto Carlos Arias-Rivera presents a challenging case of
statutory interpretation and while my colleagues in the majority rely on the “plain,
unambiguous language of the statute,” slip op. at 8, I believe additional interpretation is
required.
From 2006 until 2010, the governing law from the Criminal Procedure Article
provided as follows:
§ 11-723.
(a) Except where a term of natural life without the
possibility of parole is imposed, a sentence for an
extended parole supervision offender shall include a
term of extended sexual offender parole supervision.
(b) The term of extended sexual offender parole
supervision for a defendant sentenced on or after
August 1, 2006, shall:
(1) be a minimum of 3 years to a maximum
of a term of life; and
(2) commence on the expiration of the later
of any term of imprisonment, probation,
parole, or mandatory supervision.
§ 11-724.
(a) The Maryland Parole Commission shall:
(1) enter into and sign extended sexual
offender parole supervision agreements
with registrants sentenced to supervision
under § 11-723 of this subtitle that set out
specific conditions of supervision;
(2) hear and adjudicate cases of extended
sexual offender parole supervision
violations; and
1
(3) impose sanctions for extended sexual
offender parole supervision violations,
including additional restrictive
conditions.
(b) Imprisonment for an extended sexual offender parole
supervision violation is not subject to diminution
credits.
(c) Specific conditions of extended sexual offender parole
supervision shall commence upon release of the
extended parole supervision offender from
incarceration or imposition of probation on the extended
parole supervision offender and may include:
(1) monitoring a registrant through global
positioning satellite tracking technology;
(2) where appropriate and feasible, restricting
a registrant from living in proximity to or
loitering near schools, family day care
centers, child care centers, and other
places primarily used by minors;
(3) restricting a registrant from obtaining
employment or from participating in an
activity that would bring the registrant
into contact with minors;
(4) requiring a registrant to participate in a
certified sexual offender treatment
program;
(5) prohibiting a registrant from using illicit
drugs or alcohol;
(6) authorizing parole agents to access the
personal computer of a registrant to check
for material relating to sexual relations
with minors;
(7) requiring a registrant to take regular
polygraph examinations; and
2
(8) prohibiting a registrant from contacting
specific individuals or categories of
individuals.
(d) (1) The Commission shall hear and adjudicate a
petition for discharge from extended sexual
offender parole supervision from a registrant.
(2) A registrant may file a petition for
discharge after serving at least 3 years of
extended sexual offender parole
supervision.
(3) If a petition for discharge is denied, a
registrant may not renew the petition for a
minimum of 1 year.
(4) A petition for discharge shall include:
(i) a risk assessment of the registrant
conducted by a certified sexual
offender treatment provider within
3 months before the date of the
filing of the petition; and
(ii) a recommendation regarding the
discharge of the registrant from the
sexual offender management team.
(5) The Commission may not discharge a
registrant from extended sexual offender
parole supervision unless the
Commission determines that the
petitioner no longer poses an
unacceptable risk to community safety.
(e) The Commission shall have all of the powers set forth
in § 7-205 of the Correctional Services Article for the
purpose of carrying out the duties of the Commission
under this subtitle.
(f) The Commission shall appoint an administrator to
coordinate the requirements of extended sexual
offender parole supervision under this subtitle.
3
MD. CODE, CRIMINAL PROCEDURE (“CP”) §§ 11-723–24 (2006). Our goal is to interpret
and effectuate the intention of the General Assembly. Blackstone v. Sharma, 461 Md. 87,
113-14 (2018). While it is not difficult to interpret the general intentions of the General
Assembly here, it is harder to obtain clarity on the specifics.
I begin where my colleagues in the majority conclude their interpretation—with the
text. The key phrase is “a sentence … shall include a term of extended sexual offender
parole supervision.” CP § 11-723(a). Regrettably, however, it isn’t clear what that means.
My colleagues interpret that phrase to mean, in effect, that the sentence pronounced by the
trial judge must include the term. Slip op. at 5. By contrast, I read the phrase to mean that
the sentence served by the defendant must include the term. To me, both are perfectly
plausible interpretations.
It is also, however, important to read a phrase in the context in which it appears. If
the trial judge doesn’t set the term for which the defendant must serve on extended parole
supervision, how then is it set? I believe that the answer to this question is in the
surrounding text: the term is presumptively for life, but a defendant may file a petition for
earlier release to the Parole Commission once he (or she) has served three years. CP § 11-
724(d)(1), (2). I think an example makes the intent of this language plain. Suppose a trial
judge set a defendant’s term of extended sexual offender parole supervision for eight years.
Could the Parole Commission discharge him (or her) after only three? It isn’t clear how
that would operate. As a result, I think the better interpretation is that the term of extended
sexual offender parole supervision is automatic and presumptively for life, but that if a
given defendant cooperates with the terms agreed to with the Parole Commission, the
4
Parole Commission can, in as few as three years, release him (or her). This, to me, is a
better reading within the surrounding statutory language.
I also look to the legislative history to assist in my understanding. Here, the
legislative history is difficult to work through. The 2006 session of the General Assembly
considered many bills to modify the State’s treatment of sexual offenders. At the
conclusion of the legislative session, however, the General Assembly was unable to
reconcile the leading House and Senate versions and the bills died. When the General
Assembly was called into a special session to consider a separate topic, the legislative
leaders jumped at the opportunity to quickly adopt a comprehensive revision of the sexual
offender laws. See 2006 Md. Laws 1st Spec. Sess., Ch. 4. As a result, the bill file of the bill
adopted in the special session is relatively sparse and sheds no light on this provision. See
Bill File, H.B. 2 (Spec. Sess. 2006).
By contrast, the bill files from the unreconciled bills that failed during the regular
session are much bigger. See Bill File, S.B. 1, H.B. 4 (2006). Review of those bill files
reveal that there were amendments that would have added the following language to CP
§ 11-723: “At sentencing, when applicable, the judge shall state on the record that the
defendant’s sentence shall include a term of extended sexual offender parole supervision.”
Bill File, H.B. 4 (2006) (emphasis added). That language was indicated as a difference
between the House and Senate versions of the bill when both bills died sine die. Further,
the indicated language was not included in the version that passed at the special session.
Thus, in my view, the General Assembly considered but rejected a requirement that the
trial judge state the term of extended sexual offender parole supervision on the record. Of
5
course, the rejection of this language is not dispositive, but it suggests to me that the final
bill did not require the trial judge to state the term of the extended supervision.
Finally, I look at the subsequent history regarding the provision: the changes made
when the law was modified in 2010. 2010 Md. Laws Ch. 176 (S.B. 280 and H.B. 473).
Obviously, such post-enactment history tells us little about what happened in 2006, but it
can reveal what the practice had been under the 2006 law. Again, the bill file provides no
direct evidence.1 The Fiscal and Policy Note states that:
The bill authorizes a court to sentence a person convicted of a
certain third degree sex offense to lifetime supervision and
require a risk assessment before that sentence is imposed. The
bill also eliminates the role of the Maryland Parole
Commission to administer or enter agreements for extended
parole supervision of sexual offenders and deletes reference to
an “extended parole supervision offender.” Also eliminated is
extended supervision for a period less than life.
***
This bill transfers most of the responsibilities for extended,
now lifetime, supervision of sex offenders to the courts.
Fiscal and Policy Note, S.B. 280 (2010); see also Bill Review Letter from Attorney General
Douglas F. Gansler to Governor Martin O’Malley (Apr. 29, 2010). 2 Although again, this
1
Tantalizingly, the 2010 bill file includes testimony from the Governor’s Deputy
Legislative Officer, (now-Judge) Stacy L. Mayer, in support of the bill and notes that there
were “numerous” constitutional concerns with the 2006 law including the “assignment of
judicial functions to the executive branch,” which were noted in the Fiscal & Policy Note
(discussed above) and apparently more fully discussed in a June 26, 2006 letter from the
Office of the Attorney General to the Department of Public Safety and Correctional
Services. Regrettably, the parties were unable to find the letter.
2
My name appears on the letterhead of this bill review letter. Despite this, I have
decided not to disqualify myself from participation in this matter because the letter was
neither a public statement of my views (as opposed to those of the Attorney General and
6
provides just a glimpse, and doesn’t specify what responsibilities were transferred from the
Parole Commission to the courts, I infer that the power to set, modify, and terminate
extended sexual offender parole supervision terms were among those responsibilities
transferred in 2010.
In the end, I find that neither the text nor the legislative history provides a definitive
result. To me, the best reading is that defendants who, prior to 2010, satisfied the statutory
definition of “extended parole supervision offender” like Arias-Rivera, were automatically
sentenced to extended sexual offender parole supervision for the rest of their lives but
could, after having served three years, apply annually to the Parole Commission to be
released from that status. Arias-Rivera’s sentence is, therefore, not illegal. I would affirm
the decision of the trial court.
other members of his staff), nor did it express any views on the particular matter here in
controversy (as opposed to general views on the constitutionality and legal sufficiency of
the bill). See Md. R.18-102.11(a)(5)(B).
7
The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/3223s18cn.pdf