Rogers v. State, No. 32

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Opinion by Watts, J.
• Parties: JIMMIE ROGERS v. STATE OF MARYLAND, ET AL.
• Docket Number: No. 32
• Decision Date: 31 March 2020

JIMMIE ROGERS
v.
STATE OF MARYLAND, ET AL.

No. 32

COURT OF APPEALS OF MARYLAND

Argued: January 10, 2020
September Term, 2019
March 31, 2020

MARYLAND SEX OFFENDER REGISTRY - REGISTRATION REQUIREMENTS - MD. CODE ANN., CRIM. PROC. (2001, 2008 REPL. VOL., 2016 SUPP.) § 11-701(p)(2) - HUMAN TRAFFICKING - MD. CODE ANN., CRIM. LAW (2002, 2012 REPL. VOL., 2016 SUPP.) § 11-303(a) - VICTIM'S AGE - STANDARD OF PROOF - Court of Appeals held that, where petitioner pled guilty to violating Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) § 11-303(a), offense whose elements did not require proof of victim's age, and where no proof of victim's age was established at plea proceeding, petitioner was not required to register as Tier II sex offender pursuant to Md. Code. Ann., Crim. Proc. (2001, 2008 Repl. Vol., 2016 Supp.) §§ 11-701(p)(2) and 11-704(a)(2). Department of Public Safety and Correctional Services lacked authority to determine on its own initiative that victim was minor and to order sex offender registration. No statute or regulation gives Department authority to make factual determination as to victim's age for purposes of requiring registration as Tier II sex offender.

Court of Appeals concluded that determination of fact necessary for placement on Maryland Sex Offender Registry—such as victim's age—must be made by trier of fact beyond reasonable doubt during adjudicatory phase of criminal proceeding.

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Circuit Court for Anne Arundel County
Case No. C-02-CV-17-000296

Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Watts, J.
Barbera, C.J., Hotten and Biran, JJ., dissent.

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On October 20, 2015, in the Circuit Court for Anne Arundel County, Jimmie Rogers, Petitioner, pled guilty to one count of human trafficking under Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) ("CR") § 11-303(a).¹ The age of the victim was not established during the statement of facts at the plea proceeding. Rogers was sentenced pursuant to a plea agreement that did not include registration as a sex offender as a requirement. Later, Rogers was notified by the Department of Public Safety and Correctional Services ("the Department"), Respondent, that he was required to register as a Tier II sex offender with the Maryland Sex Offender Registry ("the Registry") for a period of twenty-five years. Rogers registered as instructed but filed in the circuit court a complaint for declaratory judgment against the State of Maryland, Respondent, and the Department (together, "the State"), seeking a declaration that he was not required to register as a Tier II sex offender, and an order compelling the Department to remove him from the Registry. The circuit court granted Rogers's motion for summary judgment on the ground that the victim's age had not been proven. The circuit court issued an order declaring that Rogers was not required to register as a Tier II sex offender and requiring the State to remove Rogers's name from the Registry. The State appealed. The Court of Special Appeals reversed and remanded the case to the circuit court for a determination of the victim's age by a preponderance of the evidence.

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A conviction under CR § 11-303(a) does not require that the victim be a minor. A violation of CR § 11-303(a) is a misdemeanor that is punishable by up to ten years' imprisonment, a fine not exceeding $5,000, or both. See CR § 11-303(c)(1)(i). Under CR § 11-303(a)(1), among other things, "[a] person may not knowingly: (i) take or cause another to be taken to any place for prostitution; (ii) place, caused to be placed, or harbor another in any place for prostitution; [or] (iii) persuade, induce, entice, or encourage another to be taken to or placed in any place for prostitution[.]" (Paragraph breaks omitted). The age of the victim is not a necessary element of the offense; stated otherwise, no proof of the victim's age is needed for a conviction under CR § 11-303(a).

By contrast, CR § 11-303(b)(1) expressly prohibits a violation of subsection (a) involving a victim who is a minor and such a violation constitutes a felony that is punishable by up to twenty-five years' imprisonment, a fine not exceeding $15,000, or both. See CR § 11-303(c)(2). Pursuant to Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol., 2016 Supp.) ("CP") § 11-701(p)(2),² a Tier II sex offender is described, in pertinent part, as a person convicted of "conspiring to commit, attempting to commit, or committing a violation of [CR] § 11-303"—without reference to a specific subsection of that statute—"if the intended prostitute or victim is a minor[.]" Pursuant to CP § 11-704(a)(2), a Tier II sex offender is required to register with the Registry.

Against this backdrop, we consider whether a person, like Rogers, who is convicted of human trafficking under CR § 11-303(a) is required to register as a Tier II sex offender

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with the Registry where the victim's age was not established during a guilty plea proceeding. We must first ascertain whether the Department is authorized to make a determination after a person is convicted and sentenced as to whether the victim was a minor at the time of the offense and order the person to register. We also address the point at which the determination is to be made and the required standard of proof.

We hold that, where Rogers pled guilty to violating CR § 11-303(a), an offense whose elements did not require proof of the victim's age, and where no proof of the victim's age was established at the plea proceeding, Rogers was not required to register as a Tier II sex offender pursuant to CP §§ 11-701(p)(2) and 11-704(a)(2), and the Department lacked the authority to determine that the victim was a minor and to order registration. No statute or regulation gives the Department the authority to make a factual determination as to the victim's age for purposes of determining that registration as a Tier II sex offender is required. We conclude that determination of a fact necessary for placement on the Registry—e.g., the victim's age—must be made by the trier of fact beyond a reasonable doubt during the adjudicatory phase of the criminal proceeding prior to sentencing. We reverse the judgment of the Court of Special Appeals and conclude that the circuit court properly granted summary judgment and declaratory judgment in favor of Rogers.

BACKGROUND Criminal Case

Rogers was charged in the District Court of Maryland, sitting in Anne Arundel County, with several counts of human trafficking of a minor and prostitution arising out of an incident that occurred at a Red Roof Inn. In a sworn Statement of Charges, a law

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enforcement officer identified the victim as "a juvenile" and "a minor[.]" (Capitalization omitted). Subsequently, Rogers was charged by indictment in the circuit court with five counts of human trafficking of a minor in violation of CR § 11-303(b) and two counts of prostitution in violation of CR § 11-306.

Rogers decided to plead guilty. On October 20, 2015, at the start of Rogers's plea proceeding, as part of a plea agreement, Count Five of the indictment was amended from alleging that Rogers had trafficked a minor victim in violation of CR § 11-303(b) to allege human trafficking generally in violation of CR § 11-303(a). Rogers pled guilty to the amended Count Five and the State entered a nolle prosequi on the remaining charges. The prosecutor read the following statement of facts into the record:

[O]n April 3rd of 2015[,] Trooper [C.G. Heid] of the Maryland State Police . . . was working in an undercover capacity . . . actively looking for a missing young woman. . . . He had received word as part of a task force that he's on that she was missing and may be involved in prostitution against her will.

He found an ad in the Backpage ads, . . . which advertise for prostitution. And he called that number. He would have told you in his training, knowledge, and experience that in the Backpage ads they are advertising sex in exchange for money. And this ad had all of the hallmarks of those types of ads. And he would have told you in his training, knowledge, and experience he thought that perhaps this was the missing girl.

He called the number, . . . and . . . there was a voice on the other end. . . . The subject that answered the call stated, "Hello." The voice clearly sounded like a man trying to disguise his voice to be that of a woman, according to the Trooper.

The Trooper asked that person on the other end of the line if that person was working today, and the person said, "Yes." The person asked if the Trooper wanted to come see her today, saying that she was a woman. And the Trooper asked if he could come see her around 9:00 a.m., she said, "Yes."

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Based on the photos in the ad, it appeared that the hotel was the Red Roof Inn. The Trooper is familiar with that hotel, and . . . there are a lot of people engaging in prostitution out of that hotel, the Trooper would have told you in his training, knowledge, and experience.

They actually utilized surveillance around the motel in an attempt to locate another person who might be assisting the young woman who was in the ad. They know that through their training, knowledge, and experience that that is often the case that a pimp will be in the area, surveilling the area, leaving the hotel room just before a date, [with] a person coming to participate in the prostitution. Comes to the hotel room, and then the person who is supervising that prostitution will then come immediately thereafter.

They did go to that area, . . . which is located in Anne Arundel County, Maryland, at the Red Roof Inn. They surveilled from the inn next door, which is the Hampton Inn, they saw a person who would be identified as . . . Rogers[] walk to a room on the odd numbered side of the motel, two minutes later he came back to the vehicle that he had previously been in, and pulled away. And that was right at the time that they were coming for the 9:00 date.

At 9:22, they got

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