Respondek v. State

• Decision Date: 01 October 2021
• Docket Number: 1685-2019
• Parties: BRAD RESPONDEK v. STATE OF MARYLAND, ET AL.
• Court: Court of Special Appeals of Maryland

BRAD RESPONDEK v. STATE OF MARYLAND, ET AL.

No. 1685-2019

Court of Special Appeals of Maryland

October 1, 2021

Circuit Court for Montgomery County Case No. 463203-V

Nazarian, ^[**] Gould, Wright, Alexander (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Gould J.

This action requires us to determine whether Brad Respondek, a former lieutenant in the Navy, is required to register as a sex offender under Maryland's Sex Offender Registration Act ("MSOR") or, alternatively, the federal sex registration statute ("SORNA"). Mr. Respondek was first convicted in the Circuit Court for Montgomery County on two counts of possession of child pornography. Based on Mr Respondek's exemplary behavior during his post-conviction probation period, the circuit court granted him a probation before judgment and excused Mr. Respondek from the obligation to register as a sex offender under MSOR as a result of that charge.

Mr. Respondek was subsequently convicted, on the same underlying facts as his first conviction, by a military court martial for possession of child pornography under the Uniform Code of Military Justice ("UCMJ"). Upon his release from confinement, he was ordered to register in Maryland as a sex offender. Mr. Respondek then filed a Complaint for Declaratory Judgment contending that he was not required under Maryland law to register. The circuit court held that Mr. Respondek's military conviction required Mr. Respondek to register both under Maryland law and under SORNA.

Mr. Respondek appealed. For the reasons that follow, we shall affirm the judgment of the circuit court.

BACKGROUND AND PROCEDURAL HISTORY

On October 15, 2015, Brad Respondek pleaded guilty in the Circuit Court for Montgomery County to two counts of child pornography. He was sentenced to two years for each count all suspended and to be served concurrently, as well as three years' probation. Pursuant to MSOR, Mr. Respondek was required to register as a "Tier I" sex offender.

Mr. Respondek timely moved for reconsideration of the sentence under Maryland Rule 4-345(e). The court held the motion sub curia until a hearing before the sentencing judge on June 7, 2016. At the hearing, Mr. Respondek's counsel explained that Mr. Respondek was a Lieutenant in the Nurse Corps of the Navy and was facing military discipline. Mr. Respondek's counsel said:

Because of the plea, [Mr. Respondek] has now been banned from his base because he's on the sex offender registry. He can only go into his office and exit. He can't go anywhere else on the base . . . . [H]is JAG attorney . . . says that it is a foregone conclusion that Mr. Respondek will be discharged from the Navy. She said it's just, no matter what happens today, no matter what happens period, even if this was expunged today, it is, the conduct itself is what will get him discharged. The only issue is whether or not it will be honorable or other than honorable, and the reason that this is of such significance is Mr. Respondek has known that this day would come. We thought it would be a little longer, but an other than honorable discharge will mean that Mr. Respondek is unable to become licensed as a nurse in civilian life because it will be, it will prohibit him from being approved by any board of any state on licensing.

For that reason, we're asking Your Honor to consider a probation before judgment a little earlier than we had anticipated coming to the Court.

Mr. Respondek presented a compelling case that he was remorseful and rehabilitated by speaking on his own behalf, presenting a letter from his probation agent, and having his counselor testify about his progress. The probation agent's letter said that Mr. Respondek had "dedicated himself to the successful completion of and compliance with his probationary requirements, and he has done so with an outstanding attitude and positive outlook." The letter explained that Mr. Respondek went above and beyond the requirements imposed upon him and that he "is genuinely mortified at his lapse in judgment and the extent to which it has complicated his life, his aspirations, his family's well-being and threatened his ability to provide for his family as a result of his charges[.]"

Mr. Respondek's counselor offered similar praise for Mr. Respondek's efforts, attitude, and motivation in treatment. The counselor testified:

During the course of treatment he's [] been in the top percentiles of everybody that I've worked with. He's been extraordinarily motivated and has left no stone unturned. He has involved himself with 12-step organizations and mentored other people within the program. He has a very, very low risk of recidivism because of his motivation, and also research has shown that the recidivism rates for child pornography clients are very low, and of those very low groups, he's at the lowest end of that spectrum as well. I can't think of anything in addition to doing what he's already done that he should do.

The court was persuaded by Mr. Respondek's presentation and found a "low risk potential of [Mr. Respondek] for hurtful activities or criminal activities in the future[.]" The court remarked that the letter from Mr. Respondek's probation agent was "extraordinary, and [it did] not know a lot of probation agents to go out of their way to help probationers who commit offenses unless it is truly warranted[.]" The court found that "not only is [Mr. Respondek] an excellent person as a probationer, but has confirmed . . . sincere compliance with the terms of probation." Thus, the court granted the "extraordinary form of relief" of terminating his probationary term, imposing probation before judgment, and relieving him of the requirement to register as a sex offender in Maryland.

Approximately one year later, on June 19, 2017, the Navy initiated a court martial proceeding charging Mr. Respondek with knowingly distributing child pornography. On February 27, 2018, Mr. Respondek pleaded guilty at a general court-martial for possession of child pornography in violation of Article 134 of the UCMJ. 10 U.S.C. § 934 (2018). The military court sentenced Mr. Respondek to five months of confinement, plus dismissal from the Navy.

On June 18, 2018, after serving his period of confinement, Mr. Respondek signed a Notice of Release/Acknowledgement of Convicted Sex Offender Registration Requirements in which Mr. Respondek placed his initials next to following statements to signify his acknowledgement thereof:

1. I, Respondek, Brad E., . . . was convicted for the commission of (a) sexual offense that (did or did not) [did was circled] include a sentence to confinement, and require(s) me to register as a sex offender.

3. I acknowledge that I have been informed that if I am retained in the armed forces, I must register as a sex offender with both military and civilian law enforcement agencies with jurisdiction over the installation, and my residence upon my physical arrival on [June 22, 2018] to my assigned unit.

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5. I hereby acknowledge that I was informed that upon my release from confinement or military service, I am subject to registration requirements under the Sex Offender Registration and Notification Act (SORNA) as a sex offender within 72 hours in any state, territory, or tribal nation, in which I will reside, be employed, carry on a vocation, or be a student.

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8. I understand that I must contact the office that follows, to ensure that sex offender registration requirements are met: Montgomery County Department of Police Special Victims Investigative Division [address in MD then provided].

9. I understand that should the office listed in block 8 not be the correct point of registry for the jurisdictions in which I plan to reside, be employed, or go to school, I will seek out and register in all appropriate offices.

10.I acknowledge that I have been informed that the sex offender registry of the jurisdiction in which I will reside upon release from confinement or military service is being provided written notice about the offense(s) for which I was convicted, that I am subject to a registration requirement as a sex offender, and the date I was released from confinement or military service.

11.I acknowledge that I have been informed that every change in my local address must be reported in the manner provided by state or tribal law.

12.I acknowledge that I have been informed that if I move to another state, I must report the change of address to the responsible agency in the state I am leaving, and comply with the registration requirements in the new state of residence.

13.I acknowledge that I have been advised and understand that if I do not register and/or change or update such information as required by a relevant state, tribal or territorial sex offender registration program, my failure to comply with these requirements could result in such penalties as revocation of parole/MSR or prosecution under Federal law (18 U.S.C. 2250), punishable by up to 10 years imprisonment.

He also signed a form called "Instructions for Sex Offender Registration," in which he also placed his initials next to the following statements:

I have reviewed and understand my responsibility to register within the State of Maryland at the time of release. The State of Maryland requires me to register WITHIN 72 hours of entering any county/when released from confinement. If I fail to submit myself within the required time allotted, I may face additional UCMJ actions, as well as state and/or federal charges for failing to register as required.

I understand that if I am residing, plan to reside, work or attend school on a military installation, I must submit myself to the Chief. Law Enforcement Agency on the installation for registration.

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I elect to receive copies of my registry

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