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

• Decision Date: 04 March 2013
• Docket Number: No. 125,Sept. Term, 2011.,125
• Citation: 430 Md. 535,62 A.3d 123
• Parties: John DOE v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES.
• Court: Maryland Court of Appeals

430 Md. 535

62 A.3d 123

John DOE

v.DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES.

No. 125, Sept. Term, 2011.

Court of Appeals of Maryland.

March 4, 2013.

Held Unconstitutional

West's Ann.Md.Code, Criminal Procedure, § 11–702.1(a)(2)

Nancy S. Forster, (Law Office of Nancy S. Forster, Towson, MD; Patricia Cresta–Savage of Law Office of Pat Cresta Savage, Bowie, MD), on brief, for Petitioner.

Stuart M. Nathan, Asst. Atty. Gen., (Douglas F. Gansler, Atty. Gen. of Maryland, Department of Public Safety and Correctional Services, Baltimore, MD), on brief, for Respondent.

Argued before BELL, C.J., HARRELL, GREENE, ADKINS, BARBERA, McDONALD, and JOHN C. ELDRIDGE, (Retired, Specially Assigned), JJ.

GREENE, J.

The Maryland sex offender registration statute, Maryland Code(2001, 2008 Repl.Vol., 2012 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 “C.P. § ”), requires persons convicted of certain sex offenses to register ¹ with “ the person's supervisingauthority.”²We are asked to determine whether, under this statute, the State can legally require Petitioner to register.Petitioner argues that requiring him to register as a sex offender: (1) violates Petitioner's right to be free from ex post facto laws pursuant to both the federal Constitution and the Maryland Declaration of Rights, and to be free from ex post facto restrictions pursuant to the Maryland Declaration of Rights; (2) violates Petitioner's due process rights pursuant to both the federal Constitution and the Maryland Declaration of Rights; and (3) violates the plea agreement entered into when he pled guilty to the underlying crime.

During the 1983–84 school year, at the time of Petitioner's commission of the sex offense mentioned herein, the Maryland sex offender registration statute did not exist.The General Assembly enacted the sex offender registration statute in 1995.As a result of amendments to that statute in 2009 and 2010, Petitioner is now required to register as a sex offender.We shall hold that requiring Petitioner to register as a result of the 2009 and 2010amendments violates the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights.Pursuant to our determination that Petitioner may not be compelled to register, his name and likeness shall be removed from the Maryland Sex Offender Registry.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On June 19, 2006, John Doe³(“Petitioner”) pled guilty to, and was convicted of, a single count of child sexual abuse under Maryland Code(1957, 1982 Repl.Vol., 1984 Cum.Supp.), Article 27 § 35A.⁴Section 35A(a)(4)(i) prohibited “any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child.”

Petitioner's conviction was based on his inappropriate contact with a thirteen-year-old student during the 1983–84 school year when Petitioner was a junior high school teacher.At the time of the incident, allegations concerning Petitioner's misconduct were reported to school officials, the school officials conducted an investigation, and Petitioner resigned from his teaching positionat the school.No charges, however, were brought at that time.

Approximately 20 years after the incident, in 2005, a former student contacted law enforcement and reported the sexual abuse that occurred during the 1983–84 school year.According to the State, in 2005, Petitioner was charged with various sex related offenses involving children.

On June 19, 2006, Petitioner and the State presented a plea agreement to the trial judge, which the judge accepted as binding.The agreement called for Petitioner to plead guilty to one count of child sexual abuse, a crime that carried a maximum sentence of fifteen years incarceration.In exchange for the guilty plea, the agreement (1) provided for a pre-sentence investigation; (2) allowed Petitioner to remain on bond until the sentencing date; (3) established a five-year cap on the actual term of incarceration the trial court could impose, allowing Petitioner to argue for a reduced sentence; and (4) provided that the State would not pursue the other outstanding charges or any subsequent related uncharged crimes.The agreement did not, however, address registration as a sex offender.After accepting the binding plea agreement, the trial judge entered a conviction and ordered a pre-sentence investigation.

Petitioner's sentencing hearing was held on September 6, 2006.Before imposing sentence, the trial judge explained to Petitioner:

I am impressed with the life that you have lived since being relieved of your responsibilities as a teacher....I'm also impressed by some of the difficulties that you've experienced in your life and the responsibility that you showed to your family and the responsibility that you've shown to others [ever] since that time.So the [court] is certainly taking into consideration all of the things that you have done of a positive nature since the time of this incident back in the 1980s.And what has been also said is true that rehabilitation is one of the factors that the [trial court] must look at, and you appear to have rehabilitated yourself significantly since the time of this incident.

(Emphasis added).The trial judge then stated, however, that “there are other things the [trial court] must consider, such as, the nature of the crime.”The trial judge noted that “[c]hild abuse is a very serious and heinous crime” and that the victim was a “child” and a “student.”The trial judge stated:

Retribution is also a valid factor, punishment for punishment's sake, as well as general deterrence, that is to prevent and deter others from committing acts such as this.Once again, these are just as valid as rehabilitation, specific deterrence, that is, to prevent [Petitioner] from committing an act such as this again, which I don't think will occur.

(Emphasis added).The trial judge imposed a sentence of ten years incarceration, with all but four and one half years suspended, and three years supervised probation upon release from incarceration.As one of the conditions of Petitioner's probation, he was ordered to “register as a child sex offender.”Additionally, the trial judge ordered Petitioner to pay court costs and a fine of $500.

Approximately one month later, Petitioner filed a Motion to Correct an Illegal Sentence challenging the $500 fine and the requirement that he register as a child sex offender.Petitioner argued that the trial court“lacked authority to require [Petitioner] to register as a child sex offender.”Petitioner noted that the Maryland sex offender registration statute that was in effect at that time applied retroactively to a child sex offender who committed his or her offense on or before October 1, 1995, if the offender was “under the custody or supervision of the supervising authority on October 1, 2001.”Petitioner contended that he could not be required to register because “[t]here was no registry at the time of the instant offense and the law, as written, [did] not apply retroactively to [Petitioner]” because he“was indisputably not under the custody or supervision of the supervising authority on October 1, 2001 as that term is defined in the statute.”Additionally, Petitioner asserted that the fine was “not a permitted penalty under [the law he was convicted for violating].”On November 1, 2006, the Circuit Court agreed with Petitioner and issued an order striking the fine and the requirement that Petitioner register as a child sex offender.

In December 2008, Petitioner was released early from prison.In 2009, the Maryland General Assembly passed a new law, effective October 1, 2009, changing the sex offender registration requirements.SeeC.P. § 11–701 et seq.(2001, 2008 Repl.Vol., 2009 Cum.Supp.);2009 Md. Laws, Chap. 541.The new sex offender registration statute retroactively required a child sex offender who committed a sex offense prior to October 1, 1995, but was convicted on or after October 1, 1995, and had not previously been required to register under Maryland law, to now register as a child sex offender.C.P. § 11–702.1(c)(ii)(2001, 2008 Repl.Vol., 2009 Cum.Supp.).Petitioner testified that on October 1, 2009, Petitioner's probation officer directed Petitioner, under threat of “arrest[ ] and incarcerat[ion],” to register as a child sex offender.Petitioner maintains that he did not agree with the requirement, but registered, against the advice of counsel, as a child sex offender in early October 2009.

In 2010, the Maryland General Assembly again amended the sex offender registration statute re-categorizing Petitioner, based upon his prior conviction, as a Tier III sex offender.C.P. §§ 11–701(q)(1)(ii),11–704(a)(3)(2001, 2008 Repl.Vol., 2010 Cum.Supp.);2010 Md. Laws, Chaps. 174 and 175.As a result of the 2010amendment, generally, sex offenders are designated by tiers.SeeC.P. § 11–701( l )(2001, 2008 Repl.Vol., 2012 Cum.Supp.).Tier III is the most severe designation requiring lifetime registration, as opposed to Tier II offenders who register for 25 years or Tier I offenders who register for 15 years.SeeC.P. § 11–707(a)(4)(2001, 2008 Repl.Vol., 2012 Cum.Supp.).Additionally, Tier III offenders must re-register every three months, while Tier I and Tier II offenders are required to reregister every 6 months.C.P. § 11–707(a)(2001, 2008 Repl.Vol., 2012 Cum.Supp.).

In October 2009, in a separate civil proceeding, Petitioner filed in the Circuit Court for Anne Arundel County a Complaint for a Declaratory Judgment 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.Petitioner's Complaint...