Young v. State

• Decision Date: 30 August 2002
• Docket Number: No. 56,56
• Citation: 370 Md. 686,806 A.2d 233
• Parties: Jessie Lee YOUNG v. STATE of Maryland.
• Court: Maryland Court of Appeals

806 A.2d 233

370 Md. 686

Jessie Lee YOUNG v. STATE of Maryland.

No. 56, Sept. Term, 2001.

Court of Appeals of Maryland.

August 30, 2002.

Nicole M. Zell and Margret L. Lanier, Asst. Public Defenders (Stephen E. Harris, Public Defender, on brief) Baltimore, for petitioner.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief) Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ RAKER, Judge.

Jessie Lee Young, petitioner, was ordered to register as a sexual offender after his conviction for transporting a sixteen-year-old girl for the purposes of prostitution. He challenges the registration requirement on the grounds that registration was an additional penalty that required its factual conditions precedent to be proven to a jury beyond a reasonable doubt. We granted certiorari primarily to decide whether Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 792 (current version at Maryland Code (1957, 2001 Repl.Vol.) § 11-701 et seq. of the Criminal Procedure Article),¹ Maryland's Registration of Offenders statute, requiring certain convicted defendants to register as sex offenders, violates due process, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We shall hold that Apprendi does not apply, because sex offender registration does not constitute punishment in the constitutional sense, as defined by the United States Supreme Court, and, therefore, the factual predicate finding by the trial court was not a fact that increased the penalty for the crime beyond the statutory maximum within the meaning of Apprendi.

I.

Jessica McGregor, a sixteen-year-old girl, met petitioner, a thirty-four-year-old man in Rochester, New York in the summer of 1999. At that time, after he told her that he ran an escort service and asked if she was interested in participating, she responded that she was. Petitioner then asked how old she was, and she stated that she was eighteen years old. Petitioner responded that he knew that she was lying, and she then said that she was seventeen years old. Petitioner instructed her that, if anyone asked, she should say that she was twenty-one.

The next evening, petitioner and Jessica discussed prostitution. Petitioner dressed Jessica as a prostitute, took her to a location known for prostitution, and gave her advice about prostitution, including instructions about where to go, how to act, and what to charge for her services. Petitioner further instructed Jessica to bring him the proceeds from her prostitution, and he agreed to watch over her every night. Jessica left her mother's home, where she had been living, and lived with petitioner in motels. She told petitioner that she loved him. At one point, petitioner and Jessica went to New York City, where petitioner purchased false identification for Jessica stating that her name was "Rachel Marie Mitchell" and that she was older than she actually was.

During the first week of September 1999, petitioner and Jessica came to the metropolitan Washington, D.C. area. Jessica's thirteen-year-old sister, Felicia Green, stayed with them in a motel in Laurel, Maryland. Felicia stayed in the motel room at night while petitioner took Jessica to work the streets in Washington. Early one morning, Jessica was arrested by an undercover police officer. At the police station, Jessica told an officer that Felicia was in the motel room and asked the police to retrieve her, which they did. Jessica told the police about petitioner, initially telling them that he was a friend of her family taking Jessica and Felicia to their mother, but later admitting that that was a lie, which she told because she did not want petitioner to get into trouble.

Petitioner was convicted by the jury of transporting a person for the purposes of prostitution in violation of Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 432 (repealed by 2001 Md. Laws 674, current version at Maryland Code (2001, 2001 Supp.) Article 27, § 428).² The maximum permissible sentence under § 432 is ten years imprisonment. After conducting a sentencing hearing, the Circuit Court sentenced petitioner to a term of imprisonment of ten years, with credit for time served, all but eight years suspended. The court placed him on five years supervised probation and ordered, pursuant to § 792, that he register as a sexual offender.³ Petitioner noted a timely appeal to the Court of Special Appeals, which affirmed his conviction and sentence. See Young v. State, 138 Md.App. 380, 771 A.2d 525 (2001)

. The intermediate appellate court held that "the Maryland statutory offender statute is not punitive for due process and Sixth Amendment purposes ... of determining the application of Apprendi" and that "Apprendi has no application to the case before us." Id. at 391-92, 771 A.2d at 532.

We granted certiorari to consider whether the statute requiring that certain criminal defendants register as sexual offenders is a punitive statute that imposes a sanction and triggers the right to a jury trial and the right to proof beyond a reasonable doubt under Apprendi, as well as to consider two evidentiary issues. See Young v. State, 365 Md. 266, 778 A.2d 382 (2001).

II. Sexual Offender Registration and Community Notification Under § 792

Section 792 defines an "offender," for the purposes of sexual offender registration, as, inter alia, an individual who is ordered by the court to register and who has been convicted of violating § 432, if the intended prostitute is under the age of eighteen years. See § 792(a)(6)(vii). The finding that a defendant qualifies as an offender subjects him or her to the registration requirements of the statute at the time of release. See § 792(a)(7).⁴ A registrant must register with the supervising authority on or before the date that the registrant is released or is granted probation, a suspended sentence, or a sentence that does not include a term of imprisonment. See § 792(c)(1)(i). "Release" means any type of release from the custody of a supervising authority, including release on parole. See § 792(a)(8). An offender must register annually for ten years. See § 792(d)(5). The registrant must provide the supervising authority with a signed statement that includes his or her name, address, place of employment, Social Security number, and a description and location of the qualifying criminal conduct. See § 792(e).

In addition to registration requirements, the statute provides for notice to certain agencies and persons. The supervising authority must send a copy of the registration statement, the registrant's fingerprints, and a photograph of the registrant to the local law enforcement agency in the county or counties where the registrant will reside, work, or attend school. See § 792(f)(3). The local law enforcement agency is then required to send written notice of the registration statement to the county superintendent of schools, see § 792(g)(1)(ii), and the county superintendent is required to send written notice of the registration statement to any school principal that the superintendent considers necessary to protect the students of a school from a child sexual offender. See § 792(g)(2). The local law enforcement agency also must provide notice of a registration statement to any person if doing so is necessary to protect the public. See § 792(j)(7)(i). Upon written request, the supervising authority must send a copy of the registration statement to the victim of the crime for which the registrant was convicted, any witness who testified against the registrant, and any individual specified in writing by the State's Attorney. See § 792(j)(3)(i). Registration information may be released to the public and identifying information about registrants may be posted on the Internet. See § 792(j)(6).⁵ Section 792 permits the Department of Public Safety and Correctional Services to post on the Internet a current listing of each registrant's name, offense, and other identifying information. See § 792(j)(6). In the time period since the case sub judice was argued before this Court, the Department has begun to post registry information on the Internet.

The heart of petitioner's argument is that the Supreme Court's decision in Apprendi requires that, before a judge may order a defendant to register as a sexual offender or sexual predator, pursuant to § 792(a)(6)(vii), as a condition of probation in a criminal sentencing proceeding, a jury first must find beyond a reasonable doubt that the sex offense victim was under eighteen years of age. Petitioner argues that registration as a sexual offender is punitive.

The State contends that Apprendi applies only to statutory requirements that increase the maximum penalty to which a defendant is exposed and that, because the court suspended part of the maximum ten-year sentence permitted by § 432 in sentencing petitioner and granted probation, Apprendi is not applicable. Thus, when the maximum sentence is not enhanced, which it is not when the court suspends a portion of the sentence and grants probation, Apprendi is simply inapplicable. The State further argues that registration under the statute is not "punishment."

In order to follow petitioner's Apprendi argument, it is helpful to review the Supreme Court holding in that case. Apprendi pleaded guilty, under New Jersey law, to two counts of second degree possession of a firearm for an unlawful purpose and one count of third degree possession of an antipersonnel bomb. See Apprendi, 530 U.S. at 469-70,

120 S.Ct. at 2352,

147 L.Ed.2d 435. The maximum penalty for the second degree offense was ten years imprisonment. Based on the trial judge's finding, by a preponderance of the evidence, that Apprendi acted with a racially biased purpose, the court sentenced him to twelve years imprisonment on the firearm count, pursuant to New Jersey's hate crime statu...