Dep't of Pub. Safety & Corr. Servs. v. Hershberger

• Decision Date: 30 June 2014
• Docket Number: Misc. Nos. 1,103 Sept. Term, 2013.
• Parties: DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. John DOE. Gregg Hershberger v. John Roe.
• Court: Maryland Court of Appeals

439 Md. 201

94 A.3d 791

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

v.John DOE.

Gregg Hershberger

v.John Roe.

Misc. Nos. 1, 103 Sept. Term, 2013.

Court of Appeals of Maryland.

June 30, 2014.

Recognized as Unconstitutional

West's Ann.Md.Code, Criminal Procedure, § 11–702.1.

Michael O. Doyle, Asst. Atty. Gen. (Stuart M. Nathan, Asst. Atty. Gen., Lisa O. Arnquist, Asst. Atty. Gen., Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellant.

Nancy S. Forster (Kadish, Forster and Fastovsky, Baltimore, MD), on brief, for Appellee.

Andrew Jay Graham, Esq., Steven M. Klepper, Esq., Kramon & Graham, P.A., Baltimore, MD, for Amicus Curiae brief of John Doe.

Argued before BARBERA, C.J., HARRELL, GREENE, ADKINS, McDONALD, WATTS,^*ALAN M. WILNER (Retired, Specially Assigned), JJ.

GREENE, J.

In Doe v. Department of Public Safety & Correctional Services, 430 Md. 535, 62 A.3d 123 (2013) (“ Doe I ”), we addressed the Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl.Vol., 2013 Cum.Supp.), § 11–701 et seq. of the Criminal Procedure Article (hereinafter all section references to the Criminal Procedure Article of the Maryland Code are identified as “Crim. Proc. § ”) and held that the retroactive application of the provisions we deemed punitive violated the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights. This Court's plurality opinion in Doe I specifically excluded any analysis of the federal Sex Offender Registration and Notification Act (“SORNA”), Pub.L. No. 109–248, §§ 101–155, 120 Stat. 587, 590–611 (2006) (codified at 42 U.S.C. § 16901 et seq. and 18 U.S.C. § 2250). We stated, “[a]s [Doe's] federal obligations are not before us, we need not, and do not, address the issue of whether they require him to independently register.” Doe I, 430 Md. at 544, 62 A.3d at 128.

In the instant appeal,¹ however, the State ² asks us to consider sex offenders' “federal obligations” and whether a circuit court has the authority to direct the State to remove sex offender registration information in light of the provisions of SORNA specifically directing sex offenders to register in the state in which they reside, work, or attend school. We shall hold that, notwithstanding the registration obligations placed directly on individuals by SORNA, circuit courts have the authority to direct the State to remove sex offender registration information from Maryland's sex offender registry when the inclusion of such information is unconstitutional as articulated in Doe I.

I. FACTUAL AND PROCEDURAL HISTORY

The instant cases involve three individuals whose underlying sex crime convictions under state law pre-date the 2010 amendment to Maryland's sex offender registration statute. In addition to the two individuals in the consolidated cases, we granted permission to a third individual to participate in this appeal as an amicus.³

A. John Doe (“Doe”) ⁴

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.

Doe subsequently filed a Complaint for a Declaratory Judgment in the Circuit Court for Anne Arundel County (ultimately transferred to Washington County) seeking a declaration that he not be required to register as a sex offender under the Maryland sex offender registration statute, and that he be removed from the Maryland Sex Offender Registry. In Doe I, we recounted the procedural history leading to our review on appeal as follows:

In October 2009, in a separate civil proceeding, [Doe] filed in the Circuit Court for Anne Arundel County a Complaint for a Declaratory Judgment. [Doe]'s Complaint advanced three arguments, including that to require him to register, when he was not informed of that requirement when he pled guilty, would improperly render his guilty plea involuntary. None of the arguments advanced in the Complaint, however, explicitly addressed the constitutionality of the registration requirement. After the State's successful “Motion for Transfer of Action,” the case was transferred to the Circuit Court for Washington County, the county where [Doe] committed his crime, pled guilty, and was sentenced. During the Circuit Court proceedings, the parties addressed the issues presented in [Doe]'s Complaint. In addition, counsel for the State argued to the court that requiring [Doe] to register did not violate the prohibition against ex post facto laws. At the end of the hearing, the trial judge denied [Doe]'s request for declaratory relief and ordered that [Doe] “shall not be removed from the sex offender registry.”

[Doe] noted an appeal to the Court of Special Appeals. In [Doe]'s appeal, he once again contended that requiring him to register as a sex offender violated the terms of the plea agreement. In addition, [Doe] explicitly advanced challenges to the application of the statute on ex post facto, bill of attainder, equal protection, and due process grounds. The State argued that [Doe] failed to raise the four constitutional arguments in his Complaint and, hence, the arguments were not preserved for appeal. The intermediate appellate court determined that the due process and ex post facto arguments were properly raised in the trial court and, therefore, addressed them. The Court of Special Appeals, however, determined that the equal protection and bill of attainder arguments were not properly raised in the trial court and, accordingly, did not consider those issues. In an unreported opinion, the intermediate appellate court rejected all of [Doe]'s arguments and affirmed the trial court's judgment requiring [Doe] to remain on the Maryland Sex Offender Registry. (Footnotes omitted.)

Doe I, 430 Md. at 538–42, 62 A.3d at 126–27. We thereafter granted certiorari and, in a plurality opinion, held that the retroactive application to Doe of Maryland's sex offender registration statute violated Article 17 of the Maryland Declaration of Rights. We stated that “[p]ursuant to our determination that [Doe] may not be compelled to register, his name and likeness shall be removed from the Maryland Sex Offender Registry.” Doe I, 430 Md. at 537, 62 A.3d at 124. We then directed the Circuit Court to enter a Declaratory Judgment consistent with that opinion. Doe I, 430 Md. at 569, 62 A.3d at 143.

Upon remand from this Court, the Circuit Court for Washington County entered judgment on April 23, 2013, granting Doe's Complaint for Declaratory Judgment. In pertinent part, Judge John H. McDowell ordered DPSCS to:

“[R]emove any and all information regarding Doe from the Maryland Sex Offender Registry website;

[R]emove or cause to be removed any and all information regarding Doe's sex offender registration from state and local law enforcement databases within the state of Maryland; [and]

[R]emove Doe's sex offender registration from all federal databases including the [FBI's National Crime Information Center (NCIC) ].” (Emphasis added.)

The State subsequently filed a Motion to Alter or Amend Judgment, arguing that Doe was not entitled to the relief granted due to his registration obligations under SORNA, which this Court did not address in its opinion in Doe I. The Circuit Court denied the motion.

The State noted an appeal to the Court of Special Appeals from both the April 23, 2013 Order and the subsequent order denying the motion to alter or amend. The Court of Special Appeals then presented a certification to this Court, pursuant to Maryland Rule 8–304, requesting that this Court make a determination on the applicability of the Doe I decision to federal sex offender registration databases. We granted the certification, but modified the question as follows:

Do circuit courts have the authority to order the State to remove sex offender registration information from “federal databases”? ⁵

Based upon his conviction of child sexual abuse, under the 2010 amendment to Maryland's sex offender registration statute, Doe is classified as a Tier III sex offender. Pursuant to that classification, if lawful, Doe would be required to register with local law enforcement every 3 months for life. SeeCrim. Proc. § 11–707(a).

B. John Roe (“Roe”) ⁶

Roe pled guilty to and was convicted in the Circuit Court for Wicomico County of a third degree sex offense in 1997, arising out of a series of sexual encounters with the victim between December 1994 and January 1996. When this course of conduct began, the victim was 14 years old and Roe was 34 years old. The Circuit Court sentenced Roe to five years incarceration with all but two years suspended, and ordered that he be placed on probation for three years upon his release. Although the State requested the court require Roe to register as a sex offender, the court's order contained no registration requirement.

On September 10, 1997, upon orders from the Wicomico County...