Duran v. State

• Decision Date: 09 May 2008
• Docket Number: No. 333, September Term, 2007.,No. 728, September Term, 2007.,333, September Term, 2007.,728, September Term, 2007.
• Citation: 180 Md. App. 65,948 A.2d 139
• Parties: Michael Raheem DURAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

948 A.2d 139

180 Md. App. 65

Michael Raheem DURAN v. STATE of Maryland.

No. 333, September Term, 2007.

No. 728, September Term, 2007.

Court of Special Appeals of Maryland.

May 9, 2008.

Celia Anderson Davis (Nancy S. Forster, Public Defender on the brief), Baltimore, for Appellant.

Cathleen C. Brockmeyer (Douglas F. Gansler, Atty. General on the brief), Baltimore, for Appellee.

Panel: JAMES R. EYLER, WOODWARD and WRIGHT, JJ.

JAMES R. EYLER, Judge.

Michael Raheem Duran, appellant, was charged, in the Circuit Court for Prince George's County, with indecent exposure in three separate criminal cases: CT06-2373X (one count), CT06-2374X (one count), and CT06-2375X (two counts).¹ Subsequently, appellant pled guilty to count one in each case, and was sentenced to three years imprisonment, with all but 224 days suspended, in each case, the sentences to run concurrently. Appellant was also sentenced to five years supervised probation upon his release, with certain restrictions, including that he register as an "offender" under the provisions of Maryland Code (2002 Repl.Vol., Supp.2007) Criminal Procedure Article, Title 11, Subtitle 7. On appeal, appellant challenges the trial court's requirement that he register as an offender as a condition of probation.² We shall vacate that condition of probation.

Factual Background

On March 9, 2007, appellant, who was detained prior to the trial date, appeared in court with counsel. The State informed the court that a plea had been negotiated, and the following transpired.

THE STATE: Your Honor, the agreement is that he will plead guilty to Count 1 of each case. There are three cases. That each side is free to allocute for the suspended portion of the sentence, the maximum is three years on each case, and that he will be given credit. All of that will be suspended except for the time that he's served. He's been in jail since September 15th. And that as part of the plea agreement, through Parole and Probation, he will be evaluated as a sexual predator and he will follow all treatment recommendations if there are any from that evaluation. No contact with any of the victims. The State is asking for no unsupervised contact with any children under the age of 18 at this juncture.

THE COURT: Okay.

THE STATE: I believe that's all of it.

APPELLANT'S COUNSEL: Yes.

THE COURT: What is your full, complete and correct name?

APPELLANT: Michael Raheem Duran.

THE COURT: How old are you?

APPELLANT: Thirty-eight.

* * *

THE COURT: What's the last grade in school that you finished?

APPELLANT: High school diploma. High school graduate.

THE COURT: So you read, write and understand the English language?

APPELLANT: Yes.

THE COURT: Are you in good health mentally and physically?

APPELLANT: Yes.

THE COURT: Are you under the influence right now of any alcohol, any drugs or any medication?

APPELLANT: No.

THE COURT: Your attorney indicates that you want to enter pleas of guilty to Count 1 in each of these three indictments; is that correct?

APPELLANT: Yes.

THE COURT: Have you discussed the matter with your attorney?

APPELLANT: Yes.

* * *

THE COURT: Do you understand the nature of the offenses to which you're pleading guilty?

APPELLANT: Yes.

THE COURT: Indecent exposure means exactly that. That you exposed your penis in this case — in each case to three different persons.

Do you understand that?

APPELLANT: Yes.

THE COURT: Do you understand that once I accept your plea of guilty, the only thing left to be done is to sentence you and I've agreed to sentence you according to the agreement your attorney reached with the State's Attorney and sentence you to no more than a guideline sentence as to the executed part of the sentence? Both sides are free to allocute as to the amount of the suspended sentence and the period of probation.

We're going to order a Presentence Investigation which will include an evaluation as to whether or not you are a sexual predator by Parole and Probation. The conditions of your probation will be that you're required to follow their recommendations as to treatment. That you are to have no contact with any of the individuals named in these indictments, and that you're to have no unsupervised contact with any child under the age of 18.

Is that your understanding of the plea agreement?

APPELLANT: Yes.

* * *

THE COURT: Did you understand all of the rights I told you about?

APPELLANT: Yes.

THE COURT: Is it your intention to give up those rights and enter a plea of guilty?

APPELLANT: Yes.

THE COURT: Have a seat. Listen to the State's Attorney tell me what happened in this case.

(Emphasis added).

Subsequently, the State read into the record the agreed upon statement of facts, as follows.

Had this matter gone to trial witnesses would have testified to the following: That on September 1st of the year 2006 at approximately 9:05 in the morning somewhere at the intersection of Plata Street and Megan Drive in Clinton, Prince George's County, Maryland, this Defendant ... approached Jasmin H[.] who was on her way to school.

He was driving a greenish-colored 1995 Toyota Corolla, and he asked Jasmin H[.] if she knew the location of Surrattsville High School. Jasmin H[.] was on her way to middle school. She was age 12, 13 approximately. When this Defendant called Jasmin H[.] over, she observed the Defendant was not wearing any pants, that he was fondling his penis. Jasmin H[.] then walked away and notified the police of the incident.

During the course of the investigation, similar instances in the area were noted. The victim in this case provided a description of the vehicle and the Maryland registration plate number CBM-821. A computer check of that license plate number revealed that it did belong to this ... Defendant's mother. This Defendant was eventually located and was advised of his rights per Miranda. He waived his rights, and he made a confession involving this incident with Jasmin H[.] who was 13 years of age. Your Honor, this victim was shown a six-person photo identification and identified this Defendant in the photo spread as the one who had called her over and exposed his penis to her. All of those events occurred in Prince George's County.

Witnesses would have testified that on September 4th of the year 2006 that victim, Ciara W[.], was also walking to middle school when this Defendant approached her, also in Prince George's County. He approached her at about ten minutes to nine in the morning. And he pulled his vehicle alongside of where this victim was walking and asked if she knew where Surrattsville High School was.

The victim said that she looked over and observed this Defendant. He didn't have any pants on, and he was exposing himself to her. This victim fled, and this Defendant also fled in the listed vehicle. She indicated that she had seen this Defendant prior to this exposing himself to kids as they were walking to school. The police responded and checked the area with negative results at that time.

This victim was shown a six-person photo spread on September 21st of the year 2006 and identified this Defendant as the person who had exposed himself to her while she was walking to middle school on September 4th of the year 2006. In CT 06-2375X, September 14th of the year 2006, the 6000 block of Hil Mar Drive in Forestville, Prince George's County, Maryland, this Defendant, who again would be identified as Michael Raheem Duran, approached Shaunice R[.]. She was on her way to school, to middle school. He exposed himself by touching his penis. His pants were down to his ankles as he was sitting in his vehicle.

Again, all of the victims described a similar vehicle, Toyota Corolla. This Defendant again used the same way to get the children to the car and that was he was asking for directions to a certain school.

On September 15th, the day after this, the Defendant was arrested. He waived his rights per Miranda. He gave a ten-page written statement, and in that statement he did admit to exposing himself to these children. He also admitted that he was a security guard at the Smithsonian Institute or he had just resigned that job days before and that he was in the process of applying for and becoming a Montgomery County police officer. All events occurred in Prince George's County. That would be the proffer.

The court accepted appellant's plea as freely, voluntarily, and intelligently made, found that there was a factual basis for the plea, and entered the guilty pleas as to Count 1 in each case. The court also ordered a Presentence Investigation, to be conducted prior to sentencing. The Presentence Investigation report submitted to the court recommended that appellant "be placed on a lengthy period of supervised probation with the following special conditions:

1) No unsupervised contact with any female under the age of eighteen.

2) Sex Offender treatment as directed by the assigned probation agent.

3) Maryland Sex Offender Registry.

4) Mandatory Psychiatric Evaluation and Treatment as directed by the assigned probation agent.

5) Pay Parole and Probation Monthly Supervision Fees."

At sentencing, on April 27, 2007, the following transpired, relevant to this appeal.

THE COURT: All right. Was there a plea agreement in this case?

THE STATE: Your Honor, the plea agreement was actually just a free to allocute, and I think the only agreement was some of the terms of probation, but it was a free to allocute.

APPELLANT'S COUNSEL: I believe it was free to allocute within Guidelines.

THE STATE: Right. Within Guidelines.

* * *

THE COURT: So, what is the State recommending?

THE STATE:.... We would like, as part of his sentence, five years of supervised probation. They are also asking for a lengthy period of supervised probation. No unsupervised contact with any female under the age of 18. The [S]tate is asking for — and this was already agreed upon — evaluation and treatment as a sexual predator. That was part of the conditions...