In Re NICK H.

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2768
September Term, 2010
IN RE: NICK H.
Krauser, C.J.,
Woodward,
Graeff,
JJ.
Opinion by Woodward, J.
Filed: September 29, 2015
On June 27, 2006, appellant, Nick H. (DOB: 3/29/90), entered a plea of involved to
one count of sexual abuse of a five-year-old boy and two counts of second degree sexual
offense against the same victim in the Circuit Court for Montgomery County, sitting as a
juvenile court.1 The juvenile court committed appellant to the Department of Juvenile
Services for placement in a residential treatment center. Approximately ten months later,
appellant was released from the treatment center and placed on probation with home
electronic monitoring.
In 2009 and 2010, the Maryland General Assembly amended the Maryland sex
offender registration act (“MSORA”), requiring, among other things, that certain juveniles
convicted of various sex offenses and at significant risk of committing a sexually violent
offense or a Tier II or Tier III sexual offense (“at significant risk of re-offending”) to register
as sex offenders upon leaving the jurisdiction of the juvenile court. See Md. Code 2001,
2008 Repl. Vol., 2010 Cum. Supp. § 11-704(a), (c) of the Criminal Procedure Article (“CP
2010”).2 As a result of these statutory changes, the State requested that appellant be placed
on the sex offender registry, and the juvenile court conducted a hearing to determine whether
1
On October 31, 2006, appellant proceeded by way of a not involved plea based upon
an agreed statement of facts, and the juvenile court found him involved on a charge of sexual
abuse of a minor as to a different victim. Although the cases were considered together for
the purpose of review hearings monitoring Nick H.’s progress, the juvenile court’s order that
is the subject of this instant appeal relates only to the offenses involved in the June 27, 2006
plea.
2
This opinion makes several references to different versions of the Maryland sex
offender registration act (“MSORA”), so the date of each provision will be included
following “CP” for clarification purposes.
appellant was at significant risk of re-offending. The court concluded, based on clear and
convincing evidence, that appellant was at significant risk of re-offending and thus ordered
him to register as a sex offender pursuant to MSORA.
Appellant now challenges the juvenile court’s order. He presents two questions for
our review, which we have rephrased:3
1. Did the juvenile court err in ordering appellant to register as a
sex offender given the Court of Appeals’ holding in Doe v.
Department of Public Safety & Correctional Services, 430 Md.
535 (2013) (“Doe I”), that retroactive registration is a violation
of the constitutional prohibition against ex post facto laws?
2. Was appellant entitled to specific performance of his plea
agreement, which did not include a requirement that he register
as a sex offender?
3
Appellant’s original questions, as presented in his brief, are:
1. Given the highly punitive and restrictive nature of Maryland’s
newly enacted sex offender registration laws, does their
retroactive application violate the federal constitutional ban on
ex post facto laws and both clauses of Article 17 of the
Maryland Declaration of Rights prohibiting ex post facto laws
and ex post facto restrictions?
2. Given that the plea agreement entered into by Nick H. did not,
and indeed could not, contemplate registering as a sex
offender, is he entitled to specific performance of the plea
agreement?
Appellant submitted these questions prior to the Court of Appeals’ decision in Doe v.
Department of Public Safety & Correctional Services, 430 Md. 535 (2013) (“Doe I”), and
did not submit any additional questions in his supplemental brief responding to the Doe I
decision.
2
For the reasons set forth below, we answer both questions in the negative and affirm
the juvenile court’s order requiring appellant to register as a sex offender.
BACKGROUND
On June 27, 2006, appellant pleaded involved to one count of sexual abuse of a minor
and two counts of second degree sexual offense. The State’s proffer revealed that, while
appellant babysat five-year-old A. H. and his two older brothers, appellant sodomized A. H.
and forced A. H. to perform fellatio on him. Appellant initially denied sexual contact with
the victim, but after further questioning admitted that he “had put it in [A. H.’s] mouth about
midway down the tongue.” Appellant was fifteen years old when the abuse occurred.
The juvenile court accepted appellant’s plea, and appellant was placed in a residential
treatment center for about ten months. Upon release from the treatment center in June 2007,
appellant was placed on probation, and for the following three and one-half years the juvenile
court monitored appellant’s progress in outpatient sex offender treatment through regular
review hearings.
In 2009 and 2010, the Maryland General Assembly amended MSORA. One such
amendment allowed, under specific circumstances, the juvenile court to order juvenile
offenders who had been adjudicated involved in certain sexual offenses to register as sex
offenders when they left the jurisdiction of the juvenile court.4 See CP 2010 §§ 11-704(a),
4
As a result of the 2010 amendments, a separate registry for juvenile sex offenders
who were still under the jurisdiction of the juvenile court was also created. See Md. Code
(continued...)
3
(c). In response to this change, on October 7, 2010, the State requested that the juvenile
court order appellant to register as a sex offender.
Based on the new law and the State’s requests, the juvenile court conducted a hearing
on December 15 and 21, 2010, to determine whether appellant should be placed on the sex
offender registry. The court’s decision considered only the testimony and reports presented
at the hearing.
In rendering its opinion, the juvenile court noted that appellant “committed sexual acts
with [A. H.] maybe 50 times. 20 times included penetration, and there were also offenses
that included fellatio . . . .” In addition, the court stated that, “I think maybe there was one
event that involved [A. H.]’s brother,” and “that there was also another youngster involved
by the name of [L. F.] . . . . [T]here was denial as to [L.F.] [ ] for a long time, for 20 months
or so, almost two years.”
The juvenile court reviewed the testimony and reports of the three witnesses who
testified at the hearing. Dr. Ronald I. Weiner, an expert in adult and juvenile sex offender
risk assessments and treatment, provided an independent evaluation of appellant, the findings
of which were memorialized in a detailed, thirty-page risk assessment report. Dr. Weiner
testified to his findings at the hearing. The court described Dr. Weiner as “neutral,” and thus
determined that “his testimony and his report [were to be given] significant weight.” The
4
(...continued)
(2001, 2008 Repl. Vol., 2010 Cum. Supp.), § 11-704.1 of the Criminal Procedure Article.
This section does not apply to appellant, however, and will not be considered here.
4
court also heard testimony from Ta-Keisha Smith, appellant’s case manager, who the court
also found to be “very credible.” Dr. Fred Berlin, appellant’s treating physician for his sex
offender treatment, also testified. Because Dr. Berlin was appellant’s treating physician, he
was not asked to perform an independent evaluation. Regarding Dr. Berlin’s opinion, the
court stated: “I am forced to give his testimony far less weight. I, he came across in the
Court’s opinion, as an advocate.”
Based on the witnesses’ testimony, Dr. Weiner’s report, and “various psycho sexual
reports” from the years appellant was supervised while in placement and on probation, the
juvenile court found that appellant was “a highly sexualized young man.” The court
explained that, when appellant first came into the system,
both Dr. Weiner and Dr. Berlin reported the significant level of abuse
and criminal activity that [appellant] was involved in, back for this
four plus years. Dr. Weiner described it as egregious and predatory.
***
[T]hey noted that [appellant] had not only this criminal history, but
there was, I guess what the Court can fairly describe as a highly, a
highly sexualized young man. Not just back when he was 11 to
almost 16, but thereafter. . . . [H]e acknowledged, I guess, maybe 20
sexual partners. I’m not talking about young children, I’m talking
about peers. He acknowledged having sex at least three times with
someone who was drunk, masturbating in a public place, fondling the
dog’s genitals, phone sex, internet sex with female peers. So that we,
and someone who, by his words, by [appellant’s] own words, was
perhaps addicted to pornography. So that’s the presentation when
[appellant] came into the system. And it was also the presentation, at
least by history, that Dr. Weiner and Dr. Berlin were, and are working
with.
5
The juvenile court expressed concern that appellant’s behavior over the four and one-
half years that he was monitored by the juvenile court raised questions about his honesty.
The court stated that
[appellant] has demonstrated some challenging behavior throughout
the life of this case. Behavior that has involved deception, behavior
that has involved avoidance, behavior that has involved downright
lying . . . .
***
There seems to be a pattern in [appellant’s] behavior
throughout the life of this case of denying, avoiding,—avoiding,
denying, lying, polygraph, or some type of confrontation, admission,
then denying again, and then admitting again.
The juvenile court pointed to numerous examples of appellant’s deceptive behavior.
Principal among them was that appellant did not “until very recently . . . reveal to anybody
that he had been having a sexual relationship with a young girl when he was very young. He
was maybe eight and the young girl was, I think, 11.” The court found it “startling and
troubling” that “someone that has been under this intense level of scrutiny in this particular
field of psycho social treatment, to not disclose that for that long.”
In addition to appellant hiding his sexual relationship at the age of eight, the juvenile
court also described numerous instances of appellant lying to his parents and to Dr. Berlin.
Appellant lied about his part-time employment, and denied being aroused by child
pornography despite admitting that images of children, including an image of A. H., came
to his mind while masturbating. The court stated that “it seems clear that [appellant] has, in
6
the past, had an addictive, an addiction to pornography and then that became an area of
deception for him.” That deception became apparent when appellant told Dr. Berlin in 2008
that he was no longer accessing pornography, but later stated that his use of pornography
ended in late 2009.
Appellant also denied using illegal drugs until he tested positive in a random
urinalysis. Despite the positive drug test, appellant continued to lie about the extent of his
drug use, suggesting to his case manager that he had only used on his birthday, when in fact
he had used regularly for a period of seven months. The juvenile court found this alarming,
given that the drug use occurred “[w]hile on probation, and while under the strictest scrutiny
by the Court.” Although the court recognized that there were “some unfortunate lapses in
this case,” namely that appellant was not subject to random urine testing for three years of
his probation, the court was particularly concerned that appellant took advantage of this lapse
to regularly use drugs.
Because of the extent of appellant’s deception, the juvenile court questioned
appellant’s seemingly good decisions. In 2008, appellant voluntarily agreed to take depo
lupron, a drug that diminishes testosterone levels. The court stated that
[i]t seems to be both key to Dr. Weiner and Dr. Berlin that he stay on
this medication. It’s also key to the Court that he stay on this
medication. The problem with the Court is, the Court is going to lose
jurisdiction in a few months, in March.
***
And the question is, will he stay on it? . . . He went on the drug
7
voluntarily, which I think shows some good judgment on his part.
Although, that has some issues around it as to why he did. He told Dr.
Weiner—no, Dr. Berlin, that he was concerned as to his penis size.
He was concerned as to the medication’s affect on his weight. And
he thought that it maybe would look good to the Court if he went on
this medication.
Thus the court concluded that it had “no way of assuring [ ] that the odds are good that he’s
going to stay on [depo lupron].”
The juvenile court also pointed to Dr. Weiner’s determination that “as a result of his
testing, . . . there was evidence that [appellant] did not either acknowledge or understand the
notion of his sexual, any sexual deviant pattern on his part, and his sexual acting out, which
is concerning.” Dr. Weiner “thought that all of the treatment that [appellant] had[] had was
appropriate. He thought that the evaluations that he had[] were worthy and comprehensive.
But at the end of it all [Dr. Weiner] says something to the effect of, I don’t know whether
[appellant] really has internalized this.” The court pointed out as evidence of appellant’s
failure to internalize therapy that “at some place in this continuum of disclosure, [appellant]
talked about grooming another young girl for possible molestation and then backed off of
that.”
These issues, plus appellant’s deceptive behavior, led the court to state that “what we
have in this case is a very disturbing confluence between what we do know and what we
don’t know.” This confluence caused the court to worry about appellant’s future risk of re-
offending:
So in terms of what we know and what we do not, Dr. Weiner
8
was quite clear when he was talking about risk, that he saw a major
issue in the fact that, as he expressed it, he had no way of assessing or
determining what [appellant’s] sexual arousal patterns are because
there’s no objective tools. There’s no objective tools that were used
to determine this. This is also very troubling because [appellant] has
been in therapy for such a long time and the issue has been child
molestation. And the issue has been deviant sexual behavior. . . .
[Appellant] has denied that he, he has denied that he has any
sexual, deviant sexual arousal patterns as it revolves around children.
But he’s denied a lot of things. He denied using drugs when he was
using them. He denied alcohol when he, you know, has been
drinking—well, not lately, hopefully, since he was 11 or 12. He has
denied pornography over time, when he was with Dr. Berlin.
The juvenile court agreed with Dr. Weiner’s assessment that appellant presents “an
unspecified risk,” and that “what we don’t know” is “very important.” Dr. Weiner suggested
that it was the healthcare community’s duty to monitor appellant to prevent a relapse, but the
court observed that appellant would no longer be monitored after he left the jurisdiction of
the juvenile court. According to the court, “[h]e can do whatever he wants when he’s 21.
He doesn’t have to live [at] home. He can take medicines or not. He can live at his
parents[’ home]. He can live somewhere else.”
The juvenile court concluded that placing appellant on the sex offender registry would
be the best option for continuing treatment of appellant and ensuring the safety of the
community:
We must maintain leverage in the treatment. We can’t leave it up to
him. That is what Dr. Weiner said, he, meaning [appellant], has a lot
to overcome in terms of his offenses. . . .
And Dr. Berlin’s testimony was: “He said he would continue
9
[treatment], and I believe him.”
Putting someone on a sex registry, it is what it is. No one
pretends that it’s a direct treatment. It is community safety. It is
something that the legislature has seen fit to place into our statutes.
I don’t rule out the possibility, however, that it may have some
therapeutic value. Just the fact that it is in place, may have some type
of leverage on [appellant] so that he understands that, [although] not
under this Court’s jurisdiction, there is a continuing interest in him
and his well being, and in the community’s well being. That, in and
of itself, may influence him to continue with his treatment.
The juvenile court also indicated that appellant would have the opportunity to be
removed from the registry if he could prove to the court that he was no longer at significant
risk of re-offending:
[T]he statute includes an opportunity for someone on the registry to
come back before the Court within the five years to modify placement
on the registry. If [appellant] is serious about his treatment and he
continues in his treatment; and perhaps at some future date, I don’t
know what it is, whether it’s six months, or whether it’s two years, or
something else entirely, coming off of the depo [lupron]; and he
demonstrates pro social activities; and there is perhaps some objective
evidence of non-deviant sexual arousal patterns around children; and
we have some solid evidence as to what we’re looking at, he has the
opportunity to come before the Court within this five year period. I
think that is huge leverage in this case.
Thus the juvenile court found “by clear and convincing evidence that [appellant], this
young man, is at significant risk [of re-offending] as indicated in the statute,” and, as a result,
by Order dated December 27, 2010, placed appellant on the sex offender registry.5
5
The juvenile court issued its Order on December 27, 2010, but gave its reasons for
(continued...)
10
Appellant timely filed this appeal challenging the juvenile court’s December 27, 2010
Order. Additional facts will be set forth below as necessary to resolve the questions
presented.
STANDARD OF REVIEW
Maryland Rule 8-131(c) governs the standard of review in juvenile matters:
Action tried without a jury. When an action has been tried without
a jury, the appellate court will review the case on both the law and the
evidence. It will not set aside the judgment of the trial court on the
evidence unless clearly erroneous, and will give due regard to the
opportunity of the trial court to judge the credibility of the witnesses.
Whether the circuit court erred in ordering appellant to register as a sex offender is
a question arising under the ex post facto clauses of the federal and state constitutions.
“[W]here an order involves an interpretation and application of Maryland constitutional,
statutory or case law, [the appellate court] must determine whether the trial court’s
conclusions are ‘legally correct’ under a de novo standard of review.” Schisler v. State, 394
Md. 519, 535 (2006) (quoting Garfink v. Cloisters at Charles, Inc., 392 Md. 374, 383
(2006)).
DISCUSSION
I. EX POST FACTO CHALLENGE
(A) Doe I
5
(...continued)
that Order on the record in open court on January 13, 2011.
11
In March 2013, the Maryland Court of Appeals decided Doe I. This Court
summarized the facts and holding of Doe I in Quispe del Pino v. Maryland Department of
Public Safety & Correctional Services, 222 Md. App. 44 (2015):
The pertinent facts in Doe I are as follows:
In 2006, Doe pled guilty to and was convicted in the
Circuit Court for Washington County 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 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
Circuit Court 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
12
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
determined 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 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
13
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.”
The United States Supreme Court explained the
“intent-effects” test in Smith v. Doe:
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.’”
Stated another way, the “intent-effects” test requires a reviewing court
to engage in a two-part inquiry: “first, the court must consider the
legislative intent of the statute; second, even if the statute’s stated
purpose is non-punitive, the court must assess whether its effect
overrides the legislative purpose to render the statute punitive.”
Therefore, by declaring that the 2009 and 2010 amendments “took
that law across the line from civil regulation to an element of the
punishment of offenders,” Judge McDonald’s concurring opinion
found a violation of the State and federal ex post facto clauses under
the “intent-effects” test.
Judge Harrell, writing separately, concurred in the judgment
that Doe was entitled to relief, because his 2006 plea agreement “d[id]
not indicate that sex offender registration was a term” of the
agreement. Judge Harrell, however, would have denied Doe’s ex post
facto claims under the “intent-effects” test established in Smith v.
Doe. Lastly, Judge Barbera (now Chief Judge) dissented and, using
the “intent-effects” test, would have upheld the 2009 and 2010
14
amendments to MSORA under both the State and federal
constitutions.
Although the Court ultimately held that “the retroactive
application to Doe of Maryland’s sex offender registration statute
violated Article 17 of the Maryland Declaration of Rights,” the
divided Court did not reach a holding on whether to apply the
“disadvantage” standard or the “intent-effects” test to future ex post
facto challenges to MSORA.
Quispe del Pino, 222 Md. App. at 52-56 (italics and alterations in original) (citations
omitted).
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 (2011) (quoting Marks v. United
States, 430 U.S. 188, 193 (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 (2013) (concluding that, under the Marks Rule, the narrowest
holding of the Supreme Court’s decision in Williams v. Illinois, 132 S. Ct. 2221 (2012), was
the position representing the common point of agreement between the plurality and
concurring opinions), cert. denied, 134 S. Ct. 2723 (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
15
Doe should be granted relief.6 See 430 Md. at 568, 578. 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 (concluding that Justice
Kennedy’s concurrence represented the narrowest opinion of the Supreme Court in Missouri
v. Seibert, 542 U.S. 600 (2004)).
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. 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.
The Court of Appeals used the intent-effects test in Young v. State to review a due
process challenge to MSORA. 370 Md. 686, 711 (2002). The Court based its decision to
use this test on two Supreme Court cases that employed the intent-effects test to determine
6
Although Judge Harrell concurred in Doe I, his opinion is not included in a Marks
analysis, because his reasoning, that Doe’s plea agreement precluded any obligation to
register, is not part of the common point of agreement between the majority of judges. See
Doe I, 430 Md. at 576-77 (Harrell, J., concurring); see also A.T. Massey Coal Co., Inc. v.
Massanari, 305 F.3d 226, 236 (4th Cir. 2002) (“The Marks rule does not apply . . . unless the
narrowest opinion represents a common denominator of the Court’s reasoning and embodies
a position implicitly approved by at least [four judges] who support the judgment.” (citations
and internal quotation marks omitted)), cert. denied, 538 U.S. 1012 (2003).
16
whether civil regulations connected to criminal activity could be construed as punishment
for double jeopardy and ex post facto purposes. Id. at 711-12 & n.11 (referencing United
States v. Ursery, 518 U.S. 267 (1996) (double jeopardy claim), and Kansas v. Hendricks, 521
U.S. 346 (1997) (double jeopardy and ex post facto claims)). Although the plurality opinion
in Doe I points to various Maryland cases that have used the disadvantage test in the ex post
facto context since the Young decision, Young is the only decision in this jurisdiction prior
to Doe I that considered the constitutionality of MSORA specifically. See Doe I, 430 Md.
at 553-55 (plurality opinion). Young is thus the most relevant precedent available to us in
determining which test to use in the case sub judice.
We note, however, that the precedent set in Young extends only to the test to be
applied. The Young decision interpreted the 2000 version of MSORA, prior to the enactment
of the 2009 and 2010 amendments. Young, 370 Md. at 690. As Judge McDonald pointed
out in his concurrence in Doe I, the sex offender registration scheme has changed
significantly in recent years, and thus an analysis of MSORA under the intent-effects test has
changed dramatically. See Doe I, 430 Md. at 578 (McDonald, J., concurring). With this
point in mind, we turn to the application of MSORA to appellant under Doe I.
(B) Retroactive Application of MSORA to Appellant
“To prevail in an ex post facto claim, [appellant] must first show that the law that [he
is] challenging applies retroactively to conduct that was completed before the enactment of
the law in question . . . .” Dep’t of Pub. Safety & Corr. Servs. v. Demby, 390 Md. 580, 593
17
n.10 (2006) (emphasis omitted). In the case sub judice, appellant entered a plea of involved
in June of 2006 to one count of sexual abuse of a minor and two counts of second degree
sexual offense. At the time of his plea in 2006, appellant was sixteen years old and, because
he was a juvenile, was not required to register as a sex offender in Maryland. See CP 2005
§ 11-704 (lacking a juvenile sex offender registry and not requiring that former juvenile
offenders register on the adult sex offender registry upon leaving the jurisdiction of the
juvenile court).
In 2009 and 2010, the Maryland General Assembly amended MSORA to require
certain juvenile offenders to register as sex offenders once they left the jurisdiction of the
juvenile court. See CP 2010 §11-704(c).7 CP 2010 §11-704(c) requires:
(c) Registration by person who was adjudicated delinquent at time
of act.—(1) A person who has been adjudicated delinquent
for an act that, if committed by an adult, would constitute
a violation of § 3-303, § 3-304, § 3-305, or § 3-306 of the
Criminal Law Article, or § 3-307(a)(1) or (2) or
§ 3-308(b)(1) of the Criminal Law Article involving conduct
described in § 3-301(f)(2) of the Criminal Law Article, shall
register with the person’s supervising authority if:
(i) the person was a minor who was at least 13
7
The 2009 amendment first provided for the possibility that juvenile offenders register
as sex offenders once they left the jurisdiction of the juvenile court. See CP 2009
§ 11-704(c). Although the phrasing of the registration requirement for juveniles aging out
of the juvenile system changed in 2010, the content did not. Compare CP 2010 § 11-704(c)
with CP 2009 § 11-704(c). Because CP 2010 § 11-704(c) is the current statement of the law
and was the version in effect at the time the State requested that appellant be placed on the
sex offender registry, we refer to it here to demonstrate the requirements of the statute as they
applied to appellant. See CP 2014 § 11-704(c); Effect of amendments, CP 2010 § 11-704(c).
18
years old at the time the delinquent act was
committed;
(ii) the State’s Attorney or the Department of
Juvenile Services requests that the person be
required to register;
(iii) 90 days prior to the time the juvenile court’s
jurisdiction over the person terminates under
§ 3-8A-07 of the Courts Article, the court, after
a hearing, determines under a clear and
convincing evidence standard that the person
is at significant risk of committing a sexually
violent offense or an offense for which
registration as a tier II sex offender or tier III
sex offender is required; and
(iv) the person is at least 18 years old.
(Emphasis added).
The framework of CP 2010 § 11-704(c) clearly applies to appellant. He was
adjudicated delinquent of second degree sexual offense, which is prohibited by Section 3-306
of the Criminal Law Article;8 he was over thirteen years old at the time of the offense; the
State requested that appellant be required to register as a sex offender; the juvenile court
determined by clear and convincing evidence that appellant was at significant risk of re-
offending; and appellant was over eighteen years old when his registration began.
The 2010 amendments to MSORA also state that “this subtitle shall be applied
8
Appellant also entered a plea of involved to one count of sexual abuse of a minor in
violation of Section 3-602 of the Criminal Law Article. A violation of Section 3-602 is not
listed in CP 2010 § 11-704(c)(1) as a basis for requiring the registration of a juvenile who
violated that section.
19
retroactively to include a person who . . . is under the custody or supervision of a supervising
authority on October 1, 2010.” CP 2010 § 11-702.1(a)(1). “Supervising authority” is defined
as, among other entities, “the Secretary of Juvenile Services, if the registrant was a minor at
the time the act was committed for which registration is required.” CP 2010 § 11-701(n)(10).
On October 1, 2010, appellant was on probation under the supervision of the Department of
Juvenile Services, as well as under the juvenile court’s jurisdiction. While on probation,
appellant was subject to ongoing review hearings before the juvenile court and active home
electronic monitoring; he was required to attend various treatment clinics, to submit to
frequent and random drug tests, and to meet regularly with his juvenile probation officer.
Appellant was therefore clearly “under the custody or supervision of a supervising authority
on October 1, 2010.” CP 2010 § 11-702.1(a)(1).
Because the 2010 amendments apply retroactively, and appellant was subject to the
requirements of CP 2010 § 11-704(c) based on conduct that occurred in 2005, prior to the
2010 amendments, we conclude that appellant has satisfied the first step in an ex post facto
analysis. See Demby, 390 Md. at 593 n.10. We next turn to whether the application of CP
2010 § 11-704(c) to appellant violates the prohibition against ex post facto laws in light of
Doe I.
(C) Intent-Effects Test
Appellant contends that he is entitled to relief based on the Doe I Court’s conclusion
that the retroactive application of MSORA is unlawful. Arguing that Doe and appellant were
20
both subject to “punishment” under MSORA, appellant contends that nothing distinguishes
his case from the Doe I plurality and Judge McDonald’s concurring opinion. Although we
note some similarities in the two cases, we conclude that the retroactive application of
MSORA as applied to appellant is not “punishment” under the intent-effects test, and
therefore is not a violation of the prohibition against ex post facto laws contained in Article
17. We shall explain.
1. Legislative Intent
As stated above, to determine whether MSORA violates the constitutional prohibition
against ex post facto laws, we apply the intent-effects test. The intent-effects test is a
two-step process:
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.
Smith v. Doe, 538 U.S. 84, 92 (2003) (alteration in original) (citations and internal quotation
marks 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.” Id. at 93-94
(citations and internal quotation marks omitted).
Although no statement of purpose is expressly set forth in MSORA, its history and
21
language suggest that it is not intended to be punitive. In Young, the Court of Appeals
discussed the legislative purpose of a previous version of MSORA, then set forth in former
Article 27, § 792:
As enacted, § 792 contained no express statement of purpose.
Although it was placed within Article 27 and recodified in the
Criminal Procedure Article, its location within the criminal procedure
laws does not necessarily indicate an intent on the part of the General
Assembly to punish sex offenders. . . . Therefore, in examining the
purpose of the statute, we look primarily to the plain language. With
respect to the determination of legislative intent, we conclude that the
plain language and overall design of § 792 clearly indicate that it was
not intended as punishment, but rather was intended as a regulatory
requirement aimed at protection of the public. There is no indication
in the statutory scheme that the General Assembly intended
registration or notification as a device to punish convicted sex
offenders.
370 Md. at 712 (italics in original). When the requirement of registration for certain juvenile
sex offenders was added to MSORA by the 2009 amendment, there was nothing in the
language of that provision, nor in its legislative history, to indicate a legislative intent
different from that which was articulated by the Court of Appeals in Young. See 2009 Md.
Laws, Chap. 524. We therefore conclude that CP 2010 § 11-704(c) is intended to be civil,
rather than penal.
2. Punishment or Non-Punitive Effect
The intent-effects test next directs us to determine whether the statute’s effect
“overrides the legislative purpose to render the statute punitive.” Doe I, 430 Md. at 570
(Harrell, J., concurring) (footnote omitted). Factors derived from the Supreme Court’s
22
decision in Kennedy v. Mendoza-Martinez assist us in analyzing whether an otherwise
regulatory statute becomes punitive. 372 U.S. 144 (1963). These factors include, but are not
limited to:
[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 . . . .
Id. at 168-69 (footnotes omitted). In Doe I, Judge McDonald concluded that “the cumulative
effect of [the] 2009 and 2010 amendments . . . took that law across the line from civil
regulation to an element of the punishment of offenders.” 430 Md. at 578 (McDonald, J.,
concurring). The question before us is whether the cumulative effect of the MSORA
amendments regarding juvenile sex offenders codified in CP 2010 § 11-704(c) has caused
the statute to cross the line drawn in Doe I. We conclude that the statute has not crossed such
line.
(a) Affirmative disability or restraint
We turn first to whether MSORA involves an affirmative disability or restraint.
Appellant argues that many of the registration requirements outlined in Doe I are also
applicable to him, including:
[R]eport[ing] in person to law enforcement every three months,
giv[ing] notice to law enforcement of his address and any changes of
23
address, and notify[ing] law enforcement before being away from his
home for more than seven days. Furthermore, he must disclose to the
State a significant amount of information, some of which is highly
personal, including: his employment address; information about his
conviction; his social security number; his email address and
computer log-in names; information about vehicles he often uses,
including those not owned by him; his finger prints and palm prints;
all “identifying factors, including a physical description,” and an
updated digital image of himself. Additionally, other than to vote,
[appellant] is prohibited from entering onto real property that is used
as a school or a family child care center . . . without first obtaining
permission. If [appellant] fails to comply with these requirements, he
faces terms of imprisonment, depending on the violation, of up to
three or five years.
Doe I, 430 Md. at 562 (plurality opinion) (citations omitted).
The State counters that, despite these significant requirements, appellant’s situation
is distinguishable from Doe I. As the State correctly points out, appellant’s “period of
registration is much less than that required of Tier III offenders who committed similar
offenses after they reached the age of majority.”
Appellant was adjudicated delinquent by the juvenile court for committing two counts
of second degree sexual offense. Because of appellant’s adjudication as a delinquent,
appellant’s registration term is limited to five years. See CP 2010 § 11-707(a)(4)(iv). If
appellant had been charged with second degree sexual offense as an adult, however, he
would have been categorized as a Tier III offender and thus would have been subject to a
lifelong registration requirement. See CP 2010 §§ 11-701(q)(1)(ii), -707(a)(4)(iii).
Both Doe and appellant experienced an increase in the length of their respective
registration requirements as a result of the 2009 and 2010 MSORA amendments. Doe’s
24
registration requirements, which initially did not exist, automatically increased to lifelong
registration. Doe I, 430 Md. at 540 (plurality opinion). Appellant’s registration
requirements, which initially did not exist, increased to a five-year period of registration after
the juvenile court determined that appellant was at significant risk of re-offending, but also
allowed appellant to petition the court to reduce his registration term. See CP 2010
§ 11-707(a)(4)(iv). The difference between the length of Doe’s and appellant’s registration
terms is stark, and only a former juvenile sex offender has the opportunity to be removed
from the sex offender registry prior to the expiration of his registration term.9 Nevertheless,
because any period of registration imposed on appellant constitutes an affirmative disability,
and the ex post facto prohibition applies to any increase in punishment or sanction, see
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), we conclude that the first factor weighs in
favor of appellant.
(b) Historical perspective
Second, we consider whether the regulation has been regarded historically as
punishment. As the plurality in Doe I noted, “requiring [Doe] to register has essentially the
same effect on his life as placing him on probation. It is well-settled in this State that
9
A juvenile sex offender who has been required to register as a sex offender under
CP 2010 § 11-704(c)(1) may file a petition for a reduction in the term of registration, and the
juvenile court may reduce such term. See CP 2010 § 11-707(a)(4)(iv). The statute, however,
does not specify what standard the juvenile court is to employ in deciding whether to grant
or deny a reduction in the term of registration, nor what burden of proof the registrant must
satisfy to obtain such reduction. See id.
25
probation is a form of a criminal sanction.” 430 Md. at 561 (plurality opinion). In addition,
according to the plurality, “the dissemination of [Doe’s] information . . . is tantamount to the
historical punishment of shaming.” Id. at 564 (plurality opinion). Appellant’s status as a Tier
III sex offender, a color photo, his current home and employment addresses, his vehicle
description and information, his physical features, and information about his offenses are all
published on the Department of Public Safety and Correctional Services’ website for the
public to see. See Dep’t of Pub. Safety & Corr. Servs., Maryland SOR Search,
http://www.dpscs.state.md.us/sorSearch/search.do (last visited Sept. 9, 2015). As appellant
points out, “[t]he purpose of keeping [juvenile] records confidential is to further the
rehabilitation of young offenders by relieving them of the enduring stigma of their
misconduct.” See District of Columbia v. Cooper, 483 A.2d 317, 323 (D.C. 1984).
Publishing information about former juvenile sex offenders on a public website hardly
provides confidentiality, and instead creates the “enduring stigma of their misconduct.” Id.
Thus, in light of the plurality opinion in Doe I that the requirement of registration is similar
to probation and the dissemination of offender information resembles shaming, the second
factor weighs in favor of appellant.
(c) Scienter
Next, we turn to whether the statute “comes into play only on a finding of scienter.”
Mendoza-Martinez, 372 U.S. at 168. CP 2010 § 11-704(c)(1)(iii) requires the juvenile court
to determine, by clear and convincing evidence, that the juvenile sex offender “is at
26
significant risk of committing a sexually violent offense or an offense for which registration
as a tier II sex offender or tier III sex offender is required” before ordering the offender to
register. A determination that the juvenile sex offender is at significant risk of re-offending
logically implies that the juvenile court must find a significant risk of future criminal intent
on the part of the juvenile offender. Such finding of scienter differentiates CP 2010
§ 11-704(c) from the adult registration requirements, which “appl[y] to individuals convicted
of any of the enumerated offenses, without regard to the offender’s state of mind.” Young,
370 Md. at 715. Because “[t]he existence of a scienter requirement is customarily an
important element in distinguishing criminal from civil statutes,” we determine that this
factor also weighs in favor of appellant. See Kansas v. Hendricks, 521 U.S. 346, 362 (1997).
(d) Promotion of traditional aims of punishment
The fourth factor asks us to consider “whether [MSORA’s] operation will promote
the traditional aims of punishment—retribution and deterrence.” Mendoza-Martinez, 372
U.S. at 168. Because MSORA is intended to be only a civil regulation, we cannot conclude
that the statute promotes retribution. See Smith, 538 U.S. at 93-94 (“[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.” (citations and internal quotation marks omitted)).
Although not retributive, MSORA is intended to deter the commission of future sex
crimes. See Smith, 538 U.S. at 102; Young, 370 Md. at 712. MSORA’s requirements of
27
reporting, notification, and disclosure to law enforcement serve a deterrent function by
continually reminding the registrant of the ever-present interest of law enforcement in the
registrant’s behavior. See Young, 370 Md. at 712. Moreover, as noted above, the public
dissemination of offenders’ information is similar to shaming, and thus acts to deter past
offenders from re-offending, and may deter future offenders who are aware of the public
consequences of sexual offenses.10 See Doe I, 430 Md. at 564 (plurality opinion). A
deterrent purpose, however, does not alone render the statute punitive. See Smith, 538 U.S.
at 102 (“To hold that the mere presence of a deterrent purpose renders such sanctions
criminal . . . would severely undermine the Government’s ability to engage in effective
regulation.” (alterations in original) (citations and internal quotation marks omitted)); Young,
370 Md. at 715 (“Even an obvious deterrent purpose, however, does not make the law
punitive, in as much as deterrence can serve both civil and criminal goals.”). We also note
that MSORA promotes public safety as much as it operates to deter potential offenders from
committing sexual crimes. See Young, 370 Md. at 712. Because MSORA has both civil and
deterrent purposes, but certainly is not intended to promote retribution, we conclude that the
fourth factor is neutral.
10
New research, however, suggests that sex offender statutes may not have the
deterrent effect that the legislatures once hoped. See, e.g., Amanda Y. Agan, Sex Offender
Registries: Fear Without Function?, 54 J.L. & Econ. 207, 208 (2011) (explaining that
statistical evidence does not suggest sex offender registration statutes are deterring past or
future offenders); Catherine L. Carpenter, Legislative Epidemics: A Cautionary Tale of
Criminal Laws that Have Swept the Country, 58 Buff. L. Rev. 1, 56-59 (2010) (same).
28
(e) Criminal nature of the behavior
Next, we consider whether the behavior to which MSORA applies is criminal.
Although sex offender registration has a clear prerequisite of having committed an
enumerated criminal sexual offense, the State suggests that, in the case of juvenile sex
offenders, the registration requirement does not result from a criminal conviction, but instead
from the juvenile court’s registration order. According to the State, “[i]n contrast to the
consequences attendant to criminal convictions, the purposes of the Juvenile Causes Act are
not penal and juvenile delinquency proceedings in Maryland are conducted under a separate
system of law, civil in nature.” Appellant responds that, although juvenile cases are
technically civil, not criminal, the nature of a juvenile proceeding does not affect the instant
case.
We agree with appellant and conclude that the origin of the case sub judice in a
juvenile, rather than in criminal court, is “a distinction without a difference.” In re Antonette
H., 200 Md. App. 341, 344 n.1 (2011). “[O]nly a prosecutor can initiate juvenile delinquency
proceedings [and the] proceeding is a prosecution in lieu of criminal proceedings.” In re
Anthony W., 388 Md. 251, 266 (2005) (citations omitted). In addition, Maryland courts have
recognized that juveniles in delinquency proceedings are afforded many of the same
constitutional and common law rights as adults in criminal proceedings. See, e.g., In re
Thomas J., 372 Md. 50, 57-59 (2002). Therefore, we conclude that, regardless of whether
the offender is a juvenile or an adult, the behavior to which MSORA applies is criminal in
29
nature.
However, “this factor alone is not sufficient to render a regulatory statute punitive.”
Young, 370 Md. at 714; see also Hendricks, 521 U.S. at 362. The Court of Appeals has
stated:
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.
Young, 370 Md. at 714. Although MSORA applies to past criminal conduct in the case of
a juvenile sex offender placed on the registry, the legislative intent to create a civil regulatory
scheme is a weighty counterbalance. See id. Balancing the clear connections between
criminal conduct and registration with the civil regulatory intent of the legislature, we
conclude that this factor weighs slightly in favor of appellant.
(f) Alternative purpose
Turning to the sixth factor, it is clear, as noted above, that the 2009 and 2010
amendments to MSORA have a purpose other than punishment. The statute’s goal is
remedial in nature and “serves the important nonpunitive goal of alerting law enforcement
and the community to the presence of sexual predators who may reoffend.” Id. at 715.
Although the Young decision discusses the purpose of a previous version of MSORA, and
does not specifically address the registration of juvenile sex offenders who reach the age of
30
majority, this general statement of purpose, in our view, is applicable to the entire amended
Act.
The public safety purpose of MSORA is especially apparent in the juvenile context.
The registration statute requires the juvenile court to hold a hearing to determine whether
juvenile sex offenders are at significant risk of re-offending, and thus only offenders who
continue to threaten public safety are ordered to register. See CP 2010 § 11-704(c). Because
the legislature clearly intended sex offender registration as a public safety mechanism, the
sixth factor weighs in favor of the State.
(g) Excessive nature of sanction
Finally, we consider whether the sanction of MSORA is excessive despite its non-
punitive purpose. This factor weighs the heaviest in our determination of whether MSORA,
as applied to juvenile sex offenders placed on the sex offender registry, crosses the line from
a civil regulation to a criminal punishment. See, e.g., Wallace v. State, 905 N.E.2d 371, 383
(Ind. 2009) (affording the final Mendoza-Martinez factor “considerable weight,” and citing
cases from three other jurisdictions that found this factor to be the most significant). For
reasons set forth below, we hold that the registration requirements are not excessive as
applied to juvenile sex offenders who are placed on the registry.
Juvenile offenders who are adjudicated delinquent of a variety of sexual offenses,
including a second degree sexual offense as appellant was here, may be required to register
upon leaving the jurisdiction of the juvenile court. CP 2010 § 11-704(c). Before any
31
juvenile sex offender is placed on the registry, the State’s Attorney or the Department of
Juvenile Services must submit a request to the juvenile court that the subject juvenile be
required to register. CP 2010 § 11-704(c)(1)(ii). In addition, the court must determine, after
a hearing at least ninety days prior to termination of the juvenile court’s jurisdiction over the
juvenile, that “under a clear and convincing evidence standard[,] the person is at significant
risk of committing a sexually violent offense or an offense for which registration as a tier II
sex offender or tier III sex offender is required.” CP 2010 § 11-704(c)(1)(iii). The court may
also order an evaluation of the juvenile to aid in its decision. CP 2010 § 11-704(c)(4).
If the juvenile court decides that the juvenile sex offender should be placed on the
registry, the court may order registration for a period of up to five years. CP
2010 § 11-707(a)(4)(iv). Thus the court has discretion to determine the actual period of the
registration, but not more than five years. The court may also reduce the registration term
originally ordered if the registrant requests a reduction, and the court agrees to such request.11
Id.
In contrast, adult sex offenders are automatically placed on the registry if they have
been convicted of an enumerated offense. CP 2010 § 11-704(a). They are provided no
hearing or individualized assessment to determine whether they pose a continuing threat to
society. Tier I offenders are required to register for fifteen years; Tier II offenders for
twenty-five years; and Tier III offenders register for life. CP 2010 § 11-707(a)(4). Except
11
See footnote 9, supra.
32
for a reversal, vacation, set aside, or pardon of the underlying conviction, Tier II and Tier III
offenders have no process by which to remove their names from the registry or to reduce the
terms of their registration. CP 2010 § 11-704(b). Tier I offenders shall have their
registration term reduced to ten years, but only if, during those ten years, the registrant:
(1) is not convicted of any offense for which a term of
imprisonment of more than 1 year may be imposed;
(2) is not convicted of any sex offense;
(3) successfully completes, without revocation, any period of
supervised release, parole, or probation; and
(4) successfully completes an appropriate sex offender treatment
program.
CP 2010 § 11-707(c).
One aspect of MSORA that was important to the holding of a violation of the
constitutional prohibition against ex post facto laws by the Court of Appeals in Doe I and by
this Court in Quispe del Pino was the automatic imposition of the registration requirement
because of a conviction for a particular sex crime. See Doe I, 430 Md. at 568 (plurality
opinion); Quispe del Pino, 222 Md. App. at 61. At the conclusion of the plurality opinion
in Doe I, Judge Greene wrote:
Registration was imposed, over twenty years later in 2009, under
the sex offender registration statute as a direct consequence of
[Doe’s] commission and conviction for his sex crime. The
application of the statute has essentially the same effect upon [Doe’s]
life as placing him on probation and imposing the punishment of
shaming for life, and is, thus, tantamount to imposing an additional
sanction for [Doe’s] crime.
33
430 Md. at 568 (plurality opinion) (emphasis added).
In Quispe del Pino, this Court made a similar observation concerning the operation
of MSORA:
[T]he retroactive application of the 2010 amendment
automatically subjects appellant to registration under MSORA
for a period of time, fifteen years, during which time he otherwise
would not have been subject to any of the statute’s requirements,
restrictions, or public dissemination of private information.
222 Md. App. at 61 (italics in original) (bold emphasis added). Thus a statutory scheme, like
the one to which appellant is subject, that does not automatically impose a registration
requirement, but mandates a court finding, based upon clear and convincing evidence
adduced at a hearing, of a significant risk of re-offending, is more consistent with the
regulatory purpose of MSORA than with any punitive effect. See CP 2010 § 11-704(c).
In states that have reviewed ex post facto challenges to retroactive sex offender
registration schemes, whether the requirement of registration is based on an individualized
assessment of the offender and whether the offender has the possibility of reducing his
registration term have proved to be important considerations. Courts have held retroactive
registration statutes not violative of the prohibition against ex post facto laws based, at least
in part, upon the requirement of an individualized assessment of an offender to justify
placement on the registry and the opportunity for an offender to seek reduction in the term
of registration.
In Doe v. Pataki, the U.S. Court of Appeals for the Second Circuit reviewed the
34
retroactive application of New York State’s sex offender law and determined that the statute
did not constitute punishment under an ex post facto analysis. 120 F.3d 1263, 1265 (2d Cir.
1997), cert. denied, 522 U.S. 1122 (1998). Under New York law, persons subject to
registration as a result of a conviction for a sexual offense are evaluated by a panel of experts
on behavior and treatment of sex offenders for the offenders’ “risk of recidivism” and “the
degree of harm [that the offender] potentially presents.” Id. at 1268. The evaluation occurs
only when the offender is released, discharged, or paroled. Id. The sentencing court uses the
evaluation to determine an appropriate length of the offender’s registration term, and the
amount of information the offender must provide. Id. at 1268-69. The offender may also
challenge the expert’s recommendation, and appear at the registration hearing with counsel.
Id. After he or she is placed on the registry, the offender continues to have the ability to
petition the court for relief from the registration requirements. Id. at 1282. Due to the relief
available to registrants and the individualized assessment each offender is provided prior to
being placed on the registry, the Second Circuit concluded that the statute remained a
regulatory measure rather than a punitive sanction. Id. at 1281-83; see also Cutshall v.
Sundquist, 193 F.3d 466, 474, 477 (6th Cir. 1999) (finding no ex post facto violation where
law enforcement officials have the discretion to disclose registry information only when
necessary to protect the public), cert. denied, 529 U.S. 1053 (2000).
By contrast, where registration schemes do not provide individualized risk
assessments or an opportunity for offenders to be relieved of registration requirements, our
35
sister jurisdictions have held that retroactive registration violates the prohibition against ex
post facto laws. In Wallace, the Indiana Supreme Court determined that, “if [sex offender]
registration and disclosure [of offenders’ information] are not tied to a finding that the safety
of the public is threatened, there is an implication that the Act is excessive.” 905 N.E.2d at
383. In addition, the Court stated that “we think it significant for this excessiveness inquiry
that the Act provides no mechanism by which a registered sex offender can petition the court
for relief from the obligation of continued registration and disclosure. Offenders cannot
shorten their registration or notification period, even on the clearest proof of rehabilitation.”
Id. at 384 (footnote omitted). Based on the excessiveness of retroactive registration when
no individual assessment is provided and registrants have no avenue for relief from
registration, the Court concluded that Indiana’s registration law was punitive. Id.
Maine’s high court came to the same conclusion in State v. Letalien, 985 A.2d 4 (Me.
2009). In Letalien, a clinical psychologist performed a sex offender risk assessment on the
appellee and determined that he presented “the lowest possible risk of reoffending.” Id. at
8. However, because Letalien’s crime triggered a mandatory registration requirement, he
was ordered to register as a sex offender. Id. At the time of his offense, Letalien was
required to register for fifteen years, but he could petition for a waiver of the registration
requirements after his first five years of registration. Id. at 9. Years later, Maine’s
registration law was amended, and as a result, Letalien was required to register for the
duration of his life without the possibility of a waiver. Id. at 10. These changes caused the
36
Supreme Judicial Court of Maine to conclude that the amended statute violated the
prohibition against ex post facto laws, stating that the statute
does not allow for a waiver of its requirements, nor does it condition
an offender’s duty to register or verify on an individualized
determination of the offender’s risk of re-offending; rather, its
requirements are mandatory and attach strictly as a consequence of the
conviction of a crime identified by the statute.
Id. at 15, 26.
The highest courts of Ohio, Alaska, and Kentucky all have reached the same
conclusion as the Indiana and Maine courts. In State v. Williams, the Supreme Court of Ohio
decided that, because “all the registration requirements apply without regard to the future
dangerousness of the sex offender,” retroactive application of sex offender registration
requirements violated the prohibition against ex post facto laws. 952 N.E.2d 1108, 1113
(Ohio 2011). In Alaska, the Supreme Court pointed to the registrant’s inability to petition
the trial court for relief from the registration and disclosure obligations under Alaska’s sex
offender registration law as an important part of its holding that retroactive registration
violated the ex post facto clause in the state constitution. Doe v. State, 189 P.3d 999, 1017
(Alaska 2008). Finally, the Supreme Court of Kentucky stated that, “[w]hen a restriction is
imposed equally upon all offenders, with no consideration given to how dangerous any
particular registrant may be to public safety, that restriction begins to look far more like
retribution for past offenses than a regulation intended to prevent future ones.”
Commonwealth v. Baker, 295 S.W.3d 437, 444 (Ky. 2009), cert. denied, 559 U.S. 992
37
(2010).
In Maryland, juveniles adjudicated delinquent of certain sex offenses by the juvenile
court are provided the same safeguards that our sister jurisdictions found important to
upholding the retroactive registration laws against ex post facto challenges. As stated above,
the State’s Attorney or the Department of Juvenile Services must request that the juvenile sex
offender be placed on the registry. CP 2010 § 11-704(c)(1)(ii). Once the request for
registration is made, the juvenile court is charged with determining, after a hearing, whether
the juvenile sex offender is “at significant risk” of re-offending based on clear and
convincing evidence. CP 2010 § 11-704(c)(1)(iii). To aid in its assessment, the court can
request an individualized evaluation of the offender. CP 2010 § 11-704(c)(4). Finally, if the
juvenile sex offender is determined to be at significant risk of re-offending and placed on the
registry, the juvenile court can decide the term of registration, up to a maximum of five years.
CP 2010 § 11-707(a)(4)(iv). Thereafter, the former juvenile sex offender can petition the
juvenile court for a reduction of the registration term. Id.
In the case sub judice, appellant was afforded all of the protections set forth in CP
2010 § 11-704(c). The juvenile court ordered an independent evaluation of appellant and
spent two days taking testimony in order to determine whether appellant was at significant
risk of re-offending. Based on the evidence admitted, the court determined, based on clear
and convincing evidence, that appellant was at significant risk of re-offending, and ordered
him to register for five years. The court even reminded appellant of the opportunity to have
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his registration requirement reviewed:
If [appellant] is serious about his treatment and he continues in his
treatment; and perhaps at some future date, I don’t know what it is,
whether it’s six months, or whether it’s two years, or something else
entirely, coming off of the depo; and he demonstrates pro social
activities; and there is perhaps some objective evidence of non-
deviant sexual arousal patterns around children; and we have some
solid evidence as to what we’re looking at, he has the opportunity to
come before the Court within this five year period. I think that is
huge leverage in this case.
Appellant was thus afforded, and reminded of, all the safeguards available to juvenile
sex offenders prior to and after placement on the sex offender registry. Those same
safeguards lead us to conclude that retroactive application of MSORA to appellant is not
excessive given the regulatory purpose of sex offender registration.
(D) Conclusion
Reviewing the Mendoza-Martinez factors together, we conclude that, although the
requirement of registration imposes an affirmative disability on appellant, has been regarded
historically as punishment, carries the element of scienter, and applies to behavior that is
criminal in nature, these disadvantages are outweighed by the public safety purpose of
MSORA and the process afforded juvenile sex offenders both before and after being ordered
to register. MSORA requires an individualized assessment of a juvenile sex offender, under
a clear and convincing evidence standard, before placement on the sex offender registry, and
the opportunity to seek a reduction in the term of registration. By contrast, MSORA requires
all adults convicted of certain sexual offenses to register as sex offenders for a specified term
39
regardless of their continuing threat to society. Therefore, the placement of some juvenile
sex offenders on the sex offender register is explicitly tied to the regulatory purpose of sex
offender registration.
“Because we ordinarily defer to the legislature’s stated intent, only the clearest proof
will suffice to override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty.” Smith, 538 U.S. at 92 (citations and internal quotation
marks omitted). That “clearest proof” of a criminal penalty is not present here, and thus
retroactive registration for juvenile sex offenders remains a civil remedy. Therefore,
retroactive application of MSORA as applied to juvenile sex offenders under CP 2010
§ 11-704(c) does not violate the prohibition against ex post facto laws under Article 17 of the
Maryland Declaration of Rights, as read in pari materia with the U.S. Constitution. Because
MSORA is constitutional as applied to appellant, we decline to grant him the relief he seeks
on these grounds.
II. SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT
Appellant contends that, even if the retroactive application of CP 2010 § 11-704(c)
to him does not violate the constitutional prohibition against ex post facto laws, he should be
entitled to specific performance of his plea agreement, which did not require that he register
as a sex offender. Relying on Judge Harrell’s concurring opinion in Doe I, appellant points
out that he could not have been required to register at the time of his plea, because no such
requirement existed in 2006. As a result, appellant argues that no reasonable person “could
40
possibly have believed that registration would be part of the plea,” and thus specific
enforcement of his plea, which did not include registration, is required. Appellant contends
that not enforcing the plea “would create a dangerous precedent allowing the State to add
additional terms to a plea agreement at its whim anytime there was no specific mention of
those terms made during the plea agreement.” Finally, appellant argues that not enforcing
his plea creates a disincentive for others to enter into plea agreements. We are not persuaded.
In Doe I, Judge Harrell argued that, under Cuffley v. State, 416 Md. 568 (2010),
“[d]etermining the meaning of a sentencing term in a plea agreement requires strict
adherence to the ‘four corners’ of the plea agreement as established in the Maryland Rule
4-243 plea proceeding and to ‘due process concerns for fairness and adequacy of procedural
safeguards.’” Doe I, 430 Md. at 576 (Harrell, J., concurring) (quoting Cuffley, 416 Md. at
580-81). The petitioner in Cuffley agreed to a plea deal wherein he pled guilty to robbery in
exchange for a sentence within the sentencing guidelines of four to eight years. Cuffley, 416
Md. at 574. The trial court accepted Cuffley’s plea and agreed to be bound by its terms. Id.
At the disposition hearing several months later, however, the trial court sentenced Cuffley
to fifteen years’ incarceration, suspending all but six years. Id. Cuffley filed a Motion to
Correct an Illegal Sentence, arguing that the sentence violated his plea agreement. Id. at 574-
75. The Court of Appeals agreed with Cuffley, and concluded that a defendant must
reasonably understand the terms of his sentence as they are presented in the “four corners”
of the plea agreement. Id. at 581-82. Based on the decision in Cuffley, Judge Harrell stated
41
in Doe I that, “[a]ssuming that a registration term would be included in an agreement at
Doe’s 2006 plea hearing, a reasonable person in Doe’s position likely would understand that
registering as a sex offender was not a part of the agreement.” Doe I, 430 Md. at 576
(Harrell, J., concurring).
Judge Barbera (now Chief Judge) disagreed with Judge Harrell, arguing that “Cuffley
plainly does not apply to the case before us. Cuffley and the rule emanating from it focus on
‘the meaning of the sentencing term,’ and ‘what the defendant reasonably understood to be
the sentence.’” Doe I, 430 Md. at 598-99 (Barbera, J., dissenting) (italics in original)
(quoting Cuffley, 416 Md. at 582). Because sex offender registration is “imposed
mandatorily by operation of law,” Judge Barbera stated that sex offender registration is a
collateral consequence of a plea, and not part of the sentence imposed by the trial court. Doe
I, 430 Md. at 600 (Barbera, J., dissenting). Judge Barbera concluded that
[t]he requirement that [Doe] register as a sex offender likewise had no
effect on the ultimate range of punishment he faced upon conviction.
Because sex offender registration is not punishment, but a
collateral consequence of a conviction, it was not required to be
included as part of [Doe’s] plea agreement.
Id. (emphasis added) (footnote omitted).
In Sinclair v. State, this Court held that sex offender registration is a collateral
consequence of a conviction. 199 Md. App. 130, 135 (2011). In 2006, Sinclair pled guilty
to child abuse that was sexual in nature and that had occurred from 1989 through 1994. Id.
at 132-33. He was sentenced to four years of house arrest, with all but one year suspended,
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and was placed on probation for five years. Id. The probation order did not include a
requirement that Sinclair register as a sex offender. Id.
With the enactment of the 2009 MSORA amendments, however, child sex offenders
“convicted on or after October 1, 1995, of an offense committed before October 1, 1995,”
were required to begin registering. CP 2009 § 11-702.1(c)(1)(ii). If offenders did not
register, they were subject to criminal prosecution. CP 2009 § 11-721(b), (c). In response
to the amended law and its retroactive application, Sinclair filed a motion, in the criminal
case where he was convicted of the sexual offense, requesting a judicial determination that
he not be required to register. Sinclair, 199 Md. App. at 134.
We denied Sinclair’s request. Id. at 140. Although noting that relief by way of a
declaratory judgment may be obtained prior to actual criminal prosecution when the
constitutionality of a statute is at issue and violation of the statute carries criminal sanctions,
we nonetheless concluded that “Maryland law does not recognize the filing of a declaratory
judgment action in a criminal cause, even if the object of the declaratory judgment action is
to obtain a ruling concerning a collateral consequence of the conviction.” Id. at 137, 140 12
In reaching our decision, we stated that “[t]he thrust of Sinclair’s motion is not
collaterally to challenge his conviction that has long since been final and unappealable. His
12
A declaratory judgment action, which is not filed in the criminal case that resulted
in a conviction giving rise to the requirement of registration, is the appropriate procedural
vehicle to challenge the constitutionality of MSORA “when there is an actual controversy
between the parties and the declaratory judgment will terminate the conflict.” Doe I, 430
Md. at 545.
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statutory construction point is directed to a collateral consequence of the conviction.” Id. at
135. Implicit in this conclusion was that sex offender registration was not a part of Sinclair’s
original plea and conviction. See id. at 135-36. Instead, it was collateral to the criminal
action. Id. at 135.
Maryland Rule 4-242(f) now expressly categorizes sex offender registration as a
collateral consequence of a guilty plea. Appellant correctly notes that Rule 4-242(f) requires
that the defendant be advised of a plea’s collateral consequences, including sex offender
registration, before the court accepts the plea. However, the Rule also states that “[t]he
omission of advice concerning the collateral consequences of a plea does not itself mandate
that the plea be declared invalid.” Md. Rule 4-242(f). Indeed, the Court of Appeals has
determined that only when direct consequences of a plea are not explained to a defendant will
the plea be rendered involuntary. Yoswick v. State, 347 Md. 228, 239-40 (1997). In Yoswick,
the Court of Appeals held that a guilty plea was not rendered involuntary even though the
trial court did not inform the defendant that, “in order to become eligible for parole, he had
to first serve fifteen years.” Id. at 236, 241.
Turning to the case sub judice, we recognize that appellant’s plea agreement did not
include a registration requirement. Appellant contends that, because his plea did not mention
registration, specific performance of that plea mandates that he not be required to register.
Because the plea did not need to include sex offender registration, which is a collateral
consequence of a guilty plea, appellant’s argument fails.
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Moreover, specific performance of a plea agreement only entitles appellant to either
the “benefit of the bargain” or a withdrawal of the plea.13 Cuffley, 416 Md. at 583.
According to appellant, the benefit of the bargain in his plea agreement means that he is not
required to register. The plea agreement’s silence as to the issue of registration, however,
did not suggest whether appellant would or would not be subject to a sex offender
registration requirement. The juvenile court’s order in 2010 that appellant register as a sex
offender therefore did not violate his plea agreement. See Doe I, 430 Md. at 601 (Barbera,
J., dissenting). Appellant’s registration obligation is, again, simply a collateral consequence
of his plea.
In sum, “[b]ecause sex offender registration is not punishment, but a collateral
consequence of a conviction, it was not required to be included as part of [appellant’s] plea
agreement.” Id. at 600 (Barbera, J., dissenting). Therefore, the lack of any reference to a
requirement for sex offender registration in appellant’s plea agreement cannot serve as a
basis for implying a term in the plea agreement that appellant not be required to register as
a sex offender. In other words, there is nothing in appellant’s plea agreement for the trial
court to specifically enforce.
Finally, we move to appellant’s last two arguments. First, we disagree with appellant
that a decision not to “enforce” appellant’s plea as he desires will allow “the State to add
13
Because appellant does not challenge the underlying conviction or the applicability
of CP 2010 § 11-704(c) if deemed constitutional, there appears to be no basis for appellant
to withdraw his plea.
45
additional terms to a plea agreement at its whim anytime there was no specific mention of
those terms made during the plea agreement.” We initially note that the State cannot add
additional terms to a plea agreement that are direct consequences of a criminal conviction.
See Yoswick, 347 Md. at 240. In the case of collateral consequences, Rule 4-242(f)
specifically refers to two collateral consequences—immigration consequences and sex
offender registry consequences. These consequences are beyond the power of the State to
change, because they are imposed by the federal courts and agencies under federal law or
they apply automatically by operation of Maryland law. In addition, in the case of juvenile
sex offenders, the collateral consequence of registration is only a requirement after a hearing
in which the judge must find by clear and convincing evidence that the individual is at
significant risk of re-offending. CP 2010 § 11-704(c). The proof required to meet a clear
and convincing evidence standard can hardly be described as allowing the State to add terms
“at its whim.”
Second, we disagree with appellant’s assertion that not “enforcing” appellant’s plea
deal “creates a strong disincentive for defendants to plead guilty.” As previously stated,
juvenile sex offenders, like appellant, cannot be placed on the sex offender registry unless,
after a hearing, the juvenile court finds, based on clear and convincing evidence, that the
juvenile offender is at significant risk of committing a sexually violent offense or a Tier II
or III offense. CP 2010 § 11-704(c). Therefore, the lack of notification that sex offender
registration would be possible in appellant’s 2006 plea does not create a disincentive for
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others to enter plea agreements today.
ORDER OF THE CIRCUIT COURT FOR
MONTGOMERY COUNTY, SITTING AS A
JUVENILE COURT, DATED DECEMBER
27, 2010 AFFIRMED; APPELLANT TO PAY
COSTS.
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