Graves v. State

• Decision Date: 29 June 2000
• Docket Number: No. 6383,6383
• Citation: 754 A.2d 493,133 Md. App. 97
• Parties: Garnell GRAVES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

754 A.2d 493

133 Md. App. 97

Garnell GRAVES v. STATE of Maryland.

No. 6383, Sept. Term, 1998.

Court of Special Appeals of Maryland.

June 29, 2000.

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

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Jack Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for Appellee.

Argued before WENNER, ADKINS, and PAUL E. ALPERT (Ret., specially assigned), JJ. PAUL E. ALPERT, Judge (Retired, Specially Assigned).

Sex offenders are the scourge of modern America, the "irredeemable monsters" who prey on the innocent. Although this revulsion is perhaps now more widespread and more acute, it is not unprecedented in the annals of American justice. During the twentieth century alone, those accused or convicted of sex offenses have been the subject of repeated social control strategies, including the "sexual psychopath" laws in effect nationwide since the 1930s, which segregate offenders in mental institutions.

Wayne A. Logan, Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J.Crim.L. & Criminology 1167, 1167 (1999) (footnotes omitted). Thus, we have the backdrop for this appeal, wherein a Maryland appellate court, for the first time, reviews a determination of a "sexually violent predator."

Appellant, Garnell Graves, was charged with child abuse, second degree rape, and third degree sexual offense. Before the Circuit Court for Prince George's County (Mason, J.), he entered an Alford¹ plea to the charge of third degree sexual offense. Appellant was sentenced to ten-years incarceration with all but seven years suspended. Appellant was granted leave to appeal.

QUESTIONS PRESENTED

On appeal, appellant presents two questions, which we have rephrased slightly:

1. Did the court violate due process of law in considering certain matters at sentencing?

2. Did the court err in determining that appellant was a sexually violent predator?

FACTUAL BACKGROUND

When appellant's Alford plea was accepted, the State's Attorney proffered that the evidence presented at trial would have demonstrated that from January 1, 1997, through December 31, 1997, there were several instances when appellant touched Brittany R., an eight-year-old girl, with his penis in her vaginal and buttocks areas. At the sentencing hearing, the State's Attorney first established that in 1992, in the Superior Court of the District of Columbia, appellant was convicted of indecent acts with a minor child. The State's Attorney also presented a copy of the applicable statute to the sentencing court. The State's Attorney then commented that "according to the reporting person, the complainant's father approached the complainant who was his ten year old natural daughter at night while—." Defense counsel objected and argued that the report from which the State's Attorney was reading included charges for which appellant had not been tried or convicted, but that the State's Attorney wanted the court to believe that the allegations were true. Counsel further stated that the State was "unfairly shedding an unfair light on my client to bring up previous allegations." After further discussions, the court stated, "All right, counsel, I think I will be able to separate out [sic]."

The State's Attorney then informed the court that the report from the prior case indicated that the complainant was appellant's ten-year-old daughter, that he had sex with her, and that appellant held his hand over her mouth so that no one would hear her cry out. The abuse was discovered when the child began wetting the bed. A physician examined the child and found signs of sexual abuse. The child told the physician that her father had been placing his penis in her vagina while the grandmother was asleep in the next room.

In the prior case, a motion for reconsideration was filed. Attached to the motion was a letter from appellant in which he wrote: "I am regretting what I did, Your Honor, and will be regretting it for the rest of my life. I feel a great deal of sorrow towards myself for what I have put my child and her mother through."

The State's Attorney also proffered that a psycho-sexual examination had been performed on appellant in connection with the prior case. The State's Attorney stated that appellant had informed the consulting social worker "that he thinks he became sexually involved with his daughter as a way of getting closer, that is expressing love. The statement indicates confusion with love, affection, and sex." Appellant had denied having intercourse with his daughter, but when questioned directly, stated, "I am so against it and I don't know why I did it."

The State's Attorney further commented that in the prior case, it was recommended that appellant enter an intensive, community based sexual offender treatment program under the direct care of a psychiatrist, and appellant was not permitted to align himself with any woman with minor children without the prior approval of his therapist and the court.

The State's Attorney suggested that the circumstances of the present case and the prior case were similar, i.e., that a decision was made "to drop the charges down to spare the child" the trauma of testifying in court. The State's Attorney then stated, "I think that it is very important for the Court to take into consideration and to give extra weight to his prior criminal convictions."²

Following further argument from defense counsel, the State's Attorney, and allocution from appellant, the court imposed sentence, stating in relevant part:

Mr. Graves I don't think there is anything that society rejects more than people who pr[e]y on children. You know that, I believe, even in prison. People who pr[e]y on children have a very low place in esteem of the other prisoners.

It's—this is the second time that you have been before a Court for this offense.

One of the things that I think that causes besides just the very nature of the act itself is we don't know what to do with sex offenders, predators who pr[e]y on small children. We have had very little success with counseling and treatment. They tend to repeat it and repeat it and repeat it.

And if anything, you are just living proof of that, because here after serving time in Lorton and getting counseling, you are back before the Court again.

And even in the presentence report, they talk about the likelihood that counseling is going to help you.

* * *

In imposing the sentence, I haven't [sic] sentenced you beyond what the guidelines recommend, and I have written in the following reasons for that. Lack of remorse, and that's explained by your maintaining of your innocence, repeat of similar offense, and little likely or strong likelihood of repeated offenses.

DISCUSSION

A. Propriety of Considerations at Sentencing

On appeal, appellant claims that the court violated due process in sentencing him as it relied on information only identified as coming from the investigation in the prior case. He alleges that there was no indication that those allegations and reports were reliable. Appellant contends that the court's comments at sentencing indicate that it took these unsubstantiated allegations into consideration when it imposed sentence.

The State argues that this question is not properly preserved as appellant failed to argue below that the information was unreliable. We disagree. Defense counsel's argument that the state was attempting to have the court accept the allegations as true was sufficient to preserve this question. In any event, appellant's claim is without merit. We explain.

Pursuant to Article 27, § 792(b) of the Maryland Code, the procedures for determining whether an individual can be classified as a "sexually violent predator" are:

Determination; procedure.—(1) Subject to paragraphs (3) and (4) of this subsection, if a person is convicted of a second or subsequent sexually violent offense, the State's Attorney may request the court to determine before sentencing whether the person is a sexually violent predator.

(2) If the State's Attorney makes a request under paragraph (1) of this subsection, the court shall determine before or at sentencing whether the person is a sexually violent predator.

(3) In making a determination under paragraph (1) of this subsection, the court shall consider:

(i) Any evidence that the court considers appropriate to the determination of whether the individual is a sexually violent predator, including the presentencing investigation and sexually violent offender's inmate record;

(ii) Any evidence introduced by the person convicted; and

(iii) At the request of the State's Attorney, any evidence presented by a victim of the sexually violent offense.

"In Maryland, a judge is vested with `virtually boundless discretion' in deciding what factors to consider on the issue of punishment." Harrod v. State, 65 Md. App. 128, 140, 499 A.2d 959 (1985) (quoting Logan v. State, 289 Md. 460, 480, 425 A.2d 632 (1981)). "[T]he primary objectives of sentencing are punishment, deterrence, and rehabilitation." Jennings v. State, 339 Md. 675, 682, 664 A.2d 903 (1995). "Because the task of a court, `within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined,' trial courts are given very broad latitude in the kinds of information they may consider in pursuing those goals." Id. at 683, 664 A.2d 903 (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). The sentencing court may properly consider uncharged or untried offenses, Smith v. State, 308 Md. 162, 172-75, 517 A.2d 1081 (1986), "reliable evidence of conduct which may be opprobrious although not criminal, as well as details and circumstances of criminal conduct for which the person has not...