State v. Phillips

• Decision Date: 20 March 2013
• Docket Number: Sept. Term, 2011.,No. 457,457
• Parties: STATE of Maryland v. Adrian PHILLIPS.
• Court: Court of Special Appeals of Maryland

210 Md.App. 239

63 A.3d 51

STATE of Maryland

v.Adrian PHILLIPS.

No. 457, Sept. Term, 2011.

Court of Special Appeals of Maryland.

March 20, 2013.

A. Paul Pineau (Douglas Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellant.

Roland S. Harris, IV (Allison P. Brasseaux, Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellee.

Panel: ZARNOCH, GRAEFF, RAYMOND G. THIEME JR., (Retired, Specially Assigned), JJ.

GRAEFF, J.

This appeal involves Baltimore City's Gun Offender Registration Act (the “Act” or “GORA”), a local ordinance that requires persons convicted of delineated gun offenses to register with the Police Commissioner of Baltimore City. Balt. City Code, art. 19, §§ 60–1(d)(1), 60–1(f), 60–3(a) ¹ Appellee, Adrian Phillips, a convicted gun offender, was charged in the Circuit Court for Baltimore City with failure to register. The circuit court granted appellee's motion to dismiss the charge because: (1) the Commissioner did not file regulations as required by the Act; and (2) the Act is unconstitutionally vague.

On appeal, the State raises the following issues for our review, which we have rephrased slightly:

1. Did the circuit court err in dismissing the charge based on its finding that the Police Commissioner failed to comply with regulatory filing provisions of the Act?

2. Did the circuit court err in finding the Act void for vagueness?

Appellee raises three additional issues as grounds to uphold the circuit court's dismissal of the charge:

3. Does the Act violate Equal Protection principles?

4. Does the Act violate separation of Powers principles?

5. Is the Act void because the State has preempted the field?

For the reasons set forth below, we shall reverse the judgment of the circuit court.

THE ACT

Before discussing the details of this case, a brief summary of GORA is warranted. The Act requires that a “gun offender,” a person convicted of a gun offense in the Circuit Court for Baltimore City or the District Court of Maryland for Baltimore City, register with the Police Commissioner of Baltimore City or his or her designee. Balt. City Code, art. 19, §§ 60–1(d)(1), 60–1(f), 60–3(a). The registrant must specify the gun offender's name, any other name by which he or she has been legally known, and a list of all aliases he or she has used, id. § 60–5(b)(1),(4)–(5), as well as a description of the crime for which he or she was convicted, the date of conviction, his or her residence, and “any other information required by the rules and regulations adopted by the Police Commissioner under this subtitle.” Id. § 60–5(b)(2)–(3), (7)–(8). An offender must register within 48 hours of either release from prison, if the conviction included imprisonment, or the date that the sentence was imposed, if the conviction did not include imprisonment. Id. § 60–4(a)(1)–(2). Baltimore City residents have additional verification requirements, including updating the contents of their registration every six months for three years from the date of the initial registration. Id. § 60–6(a)–(c); § 60–7.²

The Act created a misdemeanor crime for the failure to register, and for City residents, the failure to verify their registration information as required. It provides:

§ 60–10. Prohibited conduct.

No gun offender may:

(1) knowingly fail to acknowledge in writing his or her duty to register under this subtitle;

(2) fail to register as required by this subtitle or the rules and regulations adopted under it;

(3) fail to verify information as required by this subtitle or the rules and regulations adopted under it; or

(4) provide false information in the registration or verification required by this subtitle or the rules and regulations adopted under it.

§ 60–11. Penalties.

(a) In general.

Any gun offender who violates any provision of § 60–10 of this subtitle is guilty of a misdemeanor and, on conviction, is subject to a fine of not more than $1,000 or imprisonment for not more than 12 months or both fine and imprisonment for each offense.

(b) Each day is a separate offense.

Each day that a violation continues is a separate offense.

Pertinent to the issues raised in this case, and discussed in more detail, infra, the Act gives discretionary regulatory authority to the Police Commissioner to adopt rules and regulations regarding “the form and content of the registration requirement.” The ordinance states that “[a] copy of all rules and regulations adopted under this subtitle must be filed with the Department of Legislative Reference before they take effect.” Id. § 60–2(c).

FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2010, appellee was charged with failing to verify his registration pursuant to § 60–10 of the Act. According to the Statement of Charges, on December 1, 2008, appellee was convicted in the Circuit Court for Baltimore City of armed robbery and wearing, carrying, and transporting a handgun. As a result, he became a “gun offender” subject to the Act's registration requirements. Balt. City Code, art. 19, §§ 60–1(e)(1)(i) (listing wearing, carrying, or transporting a handgun pursuant to Md.Code (2002) § 4–203 of the Criminal Law Article (“C.L.”), as a gun offense pursuant to the Act).

The Application for Statement of Charges stated that, after appellee's conviction, he was advised of his requirement to register, and he “signed and dated a copy of the Gun Offender Registration Requirements form[,] which was forwarded to the Gun Offender Monitoring Unit.” This form, which is referred to as the “Acknowledgment Form,” advised: “In accordance with the provisions of the Baltimore City Code, Article 19 § 60, this is to notify you that you must register as a gun offender with the Baltimore City Police Department.” It also stated:

By signing below I acknowledge that I have a duty to register and that the following requirements were explained to me:

A) I must personally appear at the Baltimore Police Department Gun Offender Monitoring Unit, 2100 Guildford Avenue, Room # 111, Baltimore, MD 21218, within 48 hours of my release, if I am imprisoned, or within 48 hours after sentence is imposed, if I am not imprisoned. I must verify my address and provide other information that the Baltimore Police Department requires and I may be photographed.

B) I am required to appear in person at the Gun Offender Monitoring Unit, 2100 Guildford Avenue, Room # 111, Baltimore, MD 21218, within 20 days of each 6–month anniversary of my initial registration date for a period of three years to update my registration.

C) If I move from one address to another within the City of Baltimore or move into the City of Baltimore from outside the City of Baltimore, I must personally appear at the Gun Offender Monitoring Unit, 2100 Guildford Avenue, Room # 111, Baltimore, MD 21218, within 10 days to verify and update my address.

D) Before I move from an address within the City of Baltimore to an address outside of the City of Baltimore, I must personally appear at the Gun Offender Monitoring Unit, 2100 Guildford Avenue, Room # 111, Baltimore, MD 21218 to provide my new address.The form further stated that violation of the Act “is a misdemeanor punishable by a fine of not more than $1000, or imprisonment for not more than 1 year, or both. Each violation ... is a separate offense.”

The record reflects that, on December 3, 2009, appellee completed his initial registration at the Gun Offender Monitoring Unit. A form, entitled The Baltimore Police Department Gun Offender Registration (the “Registration Form”), was signed by appellee. The form contained various fields of information, including: name, date of birth, address, phone number, information relating to physical description, date of registration, next registration date, “Gang Affiliation/Source of Information,” and “Additional Information.” Given appellee's registration date, and that he was a resident of Baltimore City, appellee was required to verify and update his registration by June 23, 2010. Balt. City Code, art. 19, § 60–6(a)–(b).³

According to the Statement of Charges, the police made efforts to ensure that appellee complied with the re-registration requirement. On June 4, 2010, a detective called appellee and left a voice mail message reminding him to re-register. On June 7, 2010, appellee “contacted the Gun Offender Monitoring Unit and advised [an officer] that he would respond to the office on [June 9, 2010] to re register.” A detective subsequently went to the Baltimore City address appellee provided on his initial registration to advise him of his requirement to re-register. A woman who lived there informed the officers that appellee had not lived at the residence since his arrest for the gun charge in July 2008.

On June 10, 2010, appellee contacted the Gun Offender Monitoring Unit and stated that, due to an injury, he was unable to go to the office. He also stated that he was living with his grandmother, and he provided that address. On June [210 Md.App. 251]15, 2010, officers went to the residence of appellee's grandmother, who stated that appellee was not staying with her, she had not heard from him, and she was not aware that he had been in an accident. The officers also contacted appellee's probation officer and his stepfather in an attempt to locate him. On June 21, 2010, a detective left a final voice mail message for appellee.

On June 24, 2010, appellee was charged with the failure to register pursuant to Baltimore City Code art. 19 § 60–10, and a warrant was issued for his arrest. On December 9, 2010, appellee was arrested.

On January 24, 2011, appellee requested a jury trial, and his case was transferred to the Circuit Court for Baltimore City. On February 16, 2011, appellee filed a Motion to Dismiss and Request for Hearing. In his motion, appellee argued that the Act was “without force or effect as the authority of local government entities to regulate in the area of firearms is specifically pre-empted by state law.”

On March 7, 2011, after the State...