Graves v. State

• Decision Date: 04 June 2001
• Docket Number: No. 84,84
• Citation: 364 Md. 329,772 A.2d 1225
• Court: Maryland Court of Appeals
• Parties: Garnell GRAVES v. STATE of Maryland.

772 A.2d 1225

364 Md. 329

Garnell GRAVES v. STATE of Maryland.

No. 84, Sept. Term, 2000.

Court of Appeals of Maryland.

June 4, 2001.

Claudia A. Cortese, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief) Baltimore, for petitioner.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief) Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

BATTAGLIA, Judge.

We are called upon in this case to determine whether a conviction in another state of a "sexually violent offense" may be used as the predicate to establish that a person is a "sexually violent predator" under Maryland's Registration of Offenders statute as set forth in Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.) Article 27, § 792.¹ For the reasons set forth below, we hold that the statutory definition of a "sexually violent predator" does not encompass persons who have been convicted of criminal acts committed in another jurisdiction that would constitute a sexually violent offense in Maryland.

I. Facts

On October 30, 1991, appellant Garnell Graves was arrested in the District of Columbia based on charges of carnal knowledge and indecent acts on a minor, pursuant to D.C.Code Ann. § 22-3501 (1994)(Repealed May 23, 1995, D.C. Law 10-257, § 501(b)).² The charges filed against Graves alleged that he had taken criminal and improper liberties with a ten year old child. The victim, Graves's ten year old daughter, had reported to a social worker that between August 17 and August 30, 1991, Graves entered her bedroom at night in his apartment in the District of Columbia, where he engaged in vaginal intercourse with her. Graves pled guilty to the charge of indecent acts on a minor and was sentenced in 1992 to a term of two to six years imprisonment. Graves served four years in the Lorton Prison of the District of Columbia Department of Corrections, and he was paroled on May 1, 1996.

Following his release from Lorton and prior to the expiration of his parole term, Graves began residing with Leslie Horton and her eight-year old sister in an apartment in Suitland, Maryland. The younger sister subsequently reported that Graves forced her to have vaginal intercourse with him on approximately eighteen occasions in 1997. A Prince George's County Grand Jury indicted Graves, charging him with child abuse in violation of Article 27, § 35C,³ second degree rape in violation of § 463,⁴ and third degree sex offense in violation of § 464B.⁵

On June 23, 1998, the State filed a notice of intent to request the trial court to determine before sentencing whether defendant was a sexually violent predator pursuant to § 792(b)(4)⁶ by virtue of his prior conviction for indecent acts on a minor in the District of Columbia. On October 27, 1998, after the jury had been empaneled, Graves entered an Alford plea⁷ to count three of the indictment which charged him with a third degree sexual offense in violation of Article 27, § 464B.

On November 20, 1998, the sentencing judge in the Circuit Court for Prince George's County was called upon to determine whether Graves was a sexually violent predator based in part on Graves's 1992 conviction for indecent acts on a minor in the District of Columbia. After reviewing the Pre Sentence Investigation Report, hearing arguments of both counsel and Graves's allocution, the trial court stated:

I'm going to accept the definition that the Legislature provided for sexual and violent offenses. A sexually violent predator is somebody who commits two or more sexually violent offenses. And under the definition of a sexually violent offense, they included a violation of 462, 463, 464(a), 464(b) and 467(f).

So there is nothing anywhere that requires the violence that you are talking—that you seem to imply was included in that definition. Particularly when we know like we have before us today a violation of 464(b) can be any contact and sexual contact.

And I believe that your client under the charge of indecent acts to a minor in the District of Columbia would—the equivalent charge in this case would be in fact 464(b). So, I believe he has in fact committed a subsequent offense and is in fact comes [sic] under the definition. And I find him in fact to be a sexually violent predator under the statute.

The trial court sentenced Graves to ten years imprisonment on the third degree sex offense count, with all but seven years suspended, credit for time served of 238 days, and a five year parole period with supervision. The sentencing judge emphasized the repetitive nature of Graves's crime to support the sentence imposed.

On February 18, 1999, Graves filed a Motion for Modification and Reduction of Sentence, wherein he asserted that the trial court improperly considered his 1991 out-of-state conviction as a basis for finding him to be a sexually violent predator under § 792(a)(11), as well as unnecessarily exceeding the sentencing guidelines for third degree sex offense in imposing the maximum penalty, a ten year sentence. On March 10, 1999, the sentencing judge entered an order denying the modification or reduction of Graves's sentence.

The Court of Special Appeals affirmed the trial court's determination that Graves was a sexually violent predator under § 792 and upheld the sentence imposed. In affirming the trial court's decision, the Court of Special Appeals held that "out-ofstate convictions may be considered in determining whether an individual is a sexually violent predator." Graves v. State, 133 Md.App. 97, 114, 754 A.2d 493, 502 (2000). In so doing, the Court of Special Appeals recognized that the statutory section concerning sexually violent predators specifically excluded reference to out-ofstate convictions, but reasoned:

It is clear that the legislature intended a broad and sweeping registration of sexual offenders. In addition, a sexually violent predator is, in essence, a sexually violent offender who has committed a second sexually violent offense and who has been determined to be at risk of committing a subsequent sexually violent offense. Accordingly, we decline to read the statute as prohibiting a sentencing court from considering out-ofstate convictions when it determines if an individual is a sexually violent predator.

Id. at 114, 754 A.2d at 503.

II. Discussion

The Maryland Legislature enacted Article 27, § 792 entitled "Registration of Offenders" pursuant to the requirements of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program enacted by the United States Congress as part of the Violent Crime Control and Law Enforcement Act of 1994. Pub.L. No. 103-322, 108 Stat. 1796 (1994), codified at 42 U.S.C. § 14071 (1995).⁸ The Maryland statute, which was originally entitled "The Maryland Crimes Against Children and Sexual Offender Registration Law," was enacted as Chapter 142, of the 1995 Laws of Maryland. See Gregory G. Gillette, The Maryland Survey: 1994-1995: Recent Development: The Maryland General Assembly: Criminal Law, 55 Md. L.Rev. 847, 852-856 (1996). The 1995 Act provided for sexual offenders, upon release from prison, to notify local law enforcement of his/her presence in the county where he/she intended to live. The statute defined a "child sexual offender" as someone who:

(2)(i) Has been convicted of violating § 35C of this article for an offense involving sexual abuse;

(ii) Has been convicted of violating any of the provisions of §§ 462 through 464B of this article for an offense involving an individual under the age of 15 years;

(iii) Has been granted probation before judgment after being found guilty of any of the offenses listed in items (i) and (ii) of this paragraph and has been ordered by the court, as a condition of probation, to comply with the requirements of this section;

(iv) Has been convicted of, or granted probation before judgment after being found guilty of, violating § 464C of this article and has been ordered by the court, as a part of a sentence or condition of probation, to comply with the requirements of this section;

(v) Has been found not criminally responsible for any of the offenses listed in items (i) and (ii) of this section; or

(vi) Has been convicted in another state of an offense that, if committed in this state, would constitute one of the offenses listed in items (i) and (ii) of this paragraph.

Article 27, § 692B (1975, 1992 Repl.Vol., 1995 Supp.).

In 1997, the General Assembly enacted a more expansive sexual offender registration statute which complied with the 1996 amendments to the Federal Wetterling Act, and established additional classifications of offenders subject to the statutory registration requirements. The provisions of the 1995 Act were incorporated and reworked into the 1997 law, as codified in Art. 27, § 792. The 1997 version of § 792, which originated as Senate Bill 605, passed by an unanimous vote of the Senate's Judicial Proceedings Committee on March 20, 1997. The final version of Senate Bill 605 was approved on May 22, 1997, and went into effect on October 1, 1997. See 1997 Md. Laws, ch. 754.⁹ This version was the Maryland sexual offender registration law in effect at the time of Graves's conviction for third degree sexual offense in 1998.¹⁰ The definition of "child sexual offender" contained in § 792(a)(2) of the 1997 version of the statute retains its reference to individuals who had been convicted in other jurisdictions of offenses comparable to the Maryland crimes enumerated in the statute. In addition to child sexual offenders, the registration provisions of § 792 apply to offenders, sexually violent offenders, and sexually violent predators. Article 27, § 792(a)(6) of the Maryland Code defines "offender" by stating:

(6) "Offender" means a person who is ordered by the court to register under this section and who:

(i) Has been convicted of violating § 1, § 2, or § 338 of this article;

(ii) Has...