Barnes v. State

WRIGHT, J. Appellant, Kenneth Barnes, seeks review of the Circuit Court for Baltimore City’s denial of his motion to correct an illegal sentence (“Motion”). The Motion, which was filed on March 30, 2009, involved two cases and was decided jointly by a single order. The first case pertained to Barnes’s August 31, 1998 conviction for third degree sexual offense committed in 1996, and the second case pertained to his August 19, 2005 conviction for failing to timely notify the sex offender registry of an address change. On June 15, 2009, without holding a hearing, the court issued an order denying Barnes’s Motion.

On July 8, 2009, Barnes filed this appeal. In essence, he argues that the circuit court erred in denying his Motion, because “it was illegal to require [him] to register as a child sexual offender based on his 1998 conviction,” and “it was illegal to convict and sentence [him] in 2005 of failing to comply with the sex offender registry laws.” 1 For the reasons set forth below, we affirm the trial court’s decision. FACTS & PROCEDURAL HISTORY By indictment filed on November 22, 1996, Barnes was charged with second-degree rape, assault with intent to commit rape, third-degree sexual offense, fourth-degree sexual offense, and common law assault of a minor under the age of 15. On March 23, 1997, after Barnes was diagnosed with ⁴ “bipolar I disorder, manic type” and “schizophrenia affective disorder, bipolar type,” the court appointed Barnes’s mother as his guardian.

On April 8, 1997, Barnes filed a motion for competency determination. After receiving reports from two physicians, the court, on July 15, 1997, found Barnes incompetent and ordered him to be committed to the Department of Health and Mental Hygiene “until such time as it is determined that he is competent to stand trial.” Thereafter, Barnes received in-patient treatment at Spring Grove Hospital Center (“Spring Grove”). On October 17, 1997, Spring Grove informed the court that Barnes was competent to stand trial. On November 19, 1997, he filed another motion for competency determination.

On December 1, 1997, the court found Barnes competent and released him from Spring Grove on the condition that he reside with his guardian. Trial was held on August 31, 1998, at which time Barnes entered an Alford plea 2 on the single count of third-degree sexual offense. The court accepted the plea, and the State entered a nolle prosequi on the remaining charges. Barnes was subsequently sentenced to ten years incarceration, all suspended, and four years of supervised probation.

After his 1998 conviction, Barnes was required by the Maryland Division of Parole and Probation to register as a child sexual offender. The parties to this appeal agree that such requirement was not included in the sentence imposed by ⁵ the court. Nonetheless, Barnes complied with the request to register. In 2005, Barnes was charged, in part, with failing to notify the sex offender registry of a change in his address.

On August 19, 2005, he was convicted and sentenced to three years in prison, all suspended. Barnes was placed on probation, with instructions to “continue therapy at University Hospital,” refrain from having “unsupervised contact with any one under 18 years of age,” and complete “sex offender counseling.” Just over two months later, on October 28, 2005, Barnes was arrested on an allegation of violation of probation, and was subsequently found guilty. On December 12, 2005, he was sentenced to the remainder of the three-year sentence imposed in August 2005, for a total of two years, seven months, and 26 days with the Division of Correction (“DOC”). Barnes was also ordered to pay $165.00 within six months of his release.

On December 20, 2005, the court modified his sentence by recommending that Barnes serve his time at the Patuxent Institution, a correctional mental health center. Barnes was released from the DOC on May 29, 2008. On March 30, 2009, he filed the Motion, citing both his 1998 and 2005 convictions. The court denied the Motion on June 15, 2009, stating: On August 31, 1998, ...

Kenneth Barnes offered an Alford plea and was found guilty of a third degree sex offense involving a 9 year old girl.... As a child sexual offender defined in [Md.Code (2001), Criminal Procedure Article (“CP”) ] § ll-701(c)(2), Barnes was required to register every six months, for ten years, pursuant to §§ 11-704 through 707. On August 19, 2005, ... Barnes pled and was found guilty of failing to register as a sex offender....

Barnes’ [sic] statutory obligation to register is computed from his last date of release. Whether a judge orders registration or not, the requirement to register pursuant [to] §§ 11-704 through 707 is statutorily mandated of a defendant convicted of Third Degree Sex Offense for acts involving a child. ⁶ Barnes timely appealed. To date, he is still being required to register as a child sex offender, and he is compliant. STANDARD OF REVIEW When we review a circuit court’s order that “involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.” Gray v. State, 388 Md. 366, 375 , 879 A.2d 1064 (2005) (citations and quotation marks omitted); accord Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006). “We interpret the Md. Rules under the same standard of review.” Gray, supra, 388 Md. at 375 , 879 A.2d 1064 (citing Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78 (2004)).

The issue raised in this case — whether Barnes’s sentence is illegal — requires an interpretation of Maryland Rule 4-345 (Sentencing-Revisory power of court) and the sex offender registration statute. As such, our review is de novo. DISCUSSION Barnes argues that the circuit court erred in denying his Motion because “it was error to require [him] to register” after his 1998 conviction. Specifically, Barnes avers that, under Maslin v. State, 124 Md.App. 535 , 723 A.2d 490 (1999), the 1997 Act “did not apply retroactively to [his] alleged misconduct in 1996.” Barnes further contends that, “for these same reasons, [his] conviction and sentence for the 2005 registry violation are also illegal.” In challenging the appeal, the State presents several arguments.

First, the State contends that Barnes’s claim is not properly preserved “because a requirement to register as a child sexual offender is not a sentence for purposes of Md. Rule 4-345(a) and thus may not be challenged.” Alternatively, the State argues that the claim is “not properly before this Court because it was not raised in or decided by the trial court.” Second, the State argues that, even if preserved and properly addressed, the trial court did not err in denying ⁷ Barnes’s Motion “because he was required to register under the registration statute in effect at the time of his conviction in 1998.” Third, the State argues that “the trial court properly found that Barnes’s registration requirement was not illegal due to the trial court’s failure to order him to register.” I. The present case is properly before this Court. The Maryland statutory offender statute is not punitive for due process and Sixth Amendment purposes. Young v. State, 138 Md.App. 380, 391 , 771 A.2d 525 (2001). “[I]t is instead ‘a remedial requirement for the protection of the public.’ ” Nguyen v. State, 189 Md.App. 501, 511 , 985 A.2d 87 (2009) (quoting Young v. State, 370 Md. 686, 716 , 806 A.2d 233 (2002)). Stated differently, a requirement to register as a “child sexual offender” is statutory, see Graves v. State, 364 Md. 329, 343 , 772 A.2d 1225 (2001), and it is often imposed as a “condition of probation.” See, e.g., State v. Duran, 407 Md. 532, 545 , 967 A.2d 184 (2009); Cain v. State, 386 Md. 320, 340 , 872 A.2d 681 (2005); State v. Snowden, 385 Md. 64 , 74 n. 8, 867 A.2d 314 (2005).

Probation, in turn, constitutes a “sentence.” Snowden, supra, 385 Md. at 74 n. 8, 867 A.2d 314 . Thus, a requirement to register as a condition of probation is a condition of a sentence. 3 Regardless of whether the requirement to register is, by itself, a “sentence,” the two-year, seven-month, and 26-day imprisonment imposed by the court upon Barnes following his 2005 conviction certainly was a “sentence.” In filing his Motion, Barnes challenged that prison sentence, and argued that it should never have been imposed. Contrary to the State’s assertion, therefore, the issue is properly before this Court because it was raised in or decided by the trial court, albeit indirectly. See State v. Wilkins, 393 Md. 269, 273-74 , 900 A.2d 765 (2006) (“a motion to correct an illegal sentence ⁸ can be granted ... where no sentence should have been imposed”) (citation omitted).

The circuit court’s denial of Barnes’s Motion triggered his right to appellate review. Without citing any support, the State contends that Barnes cannot now challenge his 2005 conviction and the resulting prison sentence “because he pled guilty to the violation, and thus waived his right to appeal from that conviction.” The State also argues that Barnes’s claim is “not properly before this Court because he failed to raise in the trial court the argument that he makes now on appeal.” The State’s contentions, however, are contrary to Maryland Rule 4-345, which provides that “[t]he court may correct an illegal sentence at any time,” where there is “fraud, mistake, or irregularity.” We previously explained the scope of Rule 4-345(a) as follows: “The scope of this privilege, allowing collateral and belated attacks on the sentence and excluding waiver as a bar to relief, is narrow____ We have consistently defined this category of ‘illegal sentence’ as limited to those situations in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful. See Evans v. State, 389 Md. 456, 463 , 886 A.2d 562, 565 (2005); Baker v. State, 389 Md. 127, 133 , 883 A.2d 916, 919 (2005); Randall Book Corp. v. State, 316 Md. 315, 321-23 , 558 A.2d 715, 718-19 (1989). As we made clear in Randall Book Corp., any other deficiency in the sentence that may be grounds for an appellate court to vacate it — impermissible considerations in imposing it, for example — must ordinarily be raised in or decided by the trial court and presented for appellate review in a timely-filed direct appeal.

The sentence may not be attacked belatedly and collaterally through a motion under Rule 4-345(a), and, subject to the appellate court’s discretion under Maryland Rule 8-131(a), the defendant is not excused from having to raise a timely objection in the trial court.” ⁹ Ingram v. State, 179 Md.App. 485, 510-11 , 947 A.2d 74 (2008) (quoting Chaney v. State, 397 Md. 460, 466-67 , 918 A.2d 506 (2007)) (emphasis omitted). See also Pollard v. State, 394 Md. 40, 47 , 904 A.2d 500 (2006); Wilkins, supra, 393 Md. at 284 , 900 A.2d 765 . In his brief, Barnes alleges that the circuit court erred in sentencing him to prison for violating a condition of probation that should never have been imposed. Stated differently, Barnes claims that he was subjected to an illegal sentence because he should never have been required to register in the first place.

Because this alleged illegality inheres in the sentence itself, we have the authority to entertain Barnes’s appeal under Rule 4-345.

II

Barnes was required to register under the registration statute in effect at the time of his 1998 conviction. Barnes asserts that he is “currently serving an illegal sentence because he is incorrectly and illegally being forced ... to register as a child sexual offender.” According to Barnes, the law under which he was convicted in 1998 “did not require him to register as a sex offender” and, therefore, “it was illegal to sentence him for not complying with those registration requirements” in 2005. To address Barnes’s contentions, we begin our analysis with a comprehensive review of the history of the sex offender registration scheme in Maryland. In 1994, the United States Congress passed The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“Wetterling Act”), Pub.L. No. 103-322, 108 Stat.2038 (codified as amended at 42 U.S.C. § 14071 (1995)). “The Wetterling Act established guidelines for registering sex offenders and providing notification for persons convicted of sexually violent offenses or criminal offenses against minors, or who were determined to be sexually violent predators.” Graves, supra, 364 Md. at 337 n. 10, 772 A.2d 1225 (citation omitted).

Under the Wetterling Act, “[e]ach state had until September 13, 1997, to enact legislation implementing a sex offender registration statute in accordance with ¹⁰ the guidelines set forth in the Federal Act, or risk losing federal funding apportioned to the states for crime fighting programs.” Id. (citation omitted). In 1995, the Maryland General Assembly passed legislation “requiring child sex offenders to register with local law enforcement.” Ranak K. Jasani, Note, 61 Md. L.Rev. 739, 742 (2002) (citation omitted). The statute, “originally entitled ‘The Maryland Crimes Against Children and Sexual Offender Registration Law,’ was enacted as Chapter 142, of the 1995 Laws of Maryland,” Graves, supra, 364 Md. at 336-37 , 772 A.2d 1225 (citation omitted), and codified at Maryland Annotated Code, Article 27 (“Art. 27”), (1996 Supp.), § 792. 4 In 1996, when Barnes was first charged, Maryland’s sex offender registration law (“1995 Act”) had “two main requirements: (1) child sex offender registration, and (2) limited public notification.” Jasani, supra, 61 Md. L.Rev. at 744 (citations omitted).

Specifically, the 1995 Act required every “child sexual offender,” who was a “resident” of Maryland, to register. 5 Art. 27, (1996 Supp.), § 792(a)-(c). This included ¹¹ individuals who had “been convicted of violating any of the provisions of §§ 462 through 464B [ 6 ] of this article for an offense involving an individual under the age of 15 years.” Art. 27, (1996 Supp.), § 792(a)(2)(h). The 1995 Act also required that any child sexual offender provide written notice of any change in his or her address. Art. 27, (1996 Supp.), § 792(h).

A child sexual offender, who knowingly failed to register as required by the 1995 Act, was deemed “guilty of a misdemeanor and on conviction [was] subject to imprisonment in the penitentiary for not more than 3 years or a fine of not more than $5,000 or both.” Art. 27, (1996 Supp.), § 792(k). The Maryland General Assembly, however, specified that the 1995 Act applied only “prospectively to offenders convicted of offenses occurring after October 1, 1995.” Gregory G. Gillette, The Maryland Survey: 1994-1995, 55 Md. L.Rev. 847, 847 (1996) (citing Md. Ann.Code, Art. 27, 692B (1995)); see also Editor’s note, Art. 27, (1996 Supp.), § 792. As noted above, the conduct for which Barnes was convicted occurred in 1996. “In 1997, the General Assembly enacted a more expansive sexual offender registration statute.” Graves, supra, 364 Md. at 338 , 772 A.2d 1225 . In sum: The provisions of the 1995 Act were incorporated and reworked into the 1997 law, as codified in Art. 27, § 792 [ (“1997 Act”) ].

The 1997 version of § 792, which originated as Senate Bill 605, passed by an unanimous vote of the Senate’s Judicial Proceedings Committee on March 20,1997. The final version of Senate Bill 605 was approved on May 22,1997, and went into effect on October 1,1997. Id. at 338, 772 A.2d 1225 (citing 1997 Md. Laws, ch. 754) (footnotes omitted). The 1997 Act expanded the class of individuals required to register, to include not only “child sexual offenders,” but also “offenders,” “sexually violent offenders,” ¹² and “sexually violent predators.” Art. 27, (1997 Supp.), § 792(a)(7).

Although the 1997 Act was expanded to include other types of registrants, it did not substantively expand the duties of a child sexual offender, as set forth in the previous 1995 Act. For example, both versions required child sexual offenders to register within 7 days of being released, and to inform the local law enforcement agency of an address change within 7 days. Compare Art. 27, (1996 Supp.), § 792(c)(2) with Art. 27, (1997 Supp.), § 792(c)(3), and Art. 27, (1996 Supp.), § 792(h)(1) with Art. 27, (1997 Supp.), § 792(g)(1). Both versions also required child sexual offenders to register annually for 10 years after the last date of release.

See Art. 27, (1996 Supp.), § 792(i); Art. 27, (1997