Cain v. State

BATTAGLIA, J. In this case, we are asked to determine whether a person convicted of second degree assault must register as an “offender” under Maryland’s Registration of Offenders Statute as set forth in Maryland Code (2001), § 11-701(d)(7) of the Criminal Procedure Article. For the reasons stated herein, we hold that a person convicted of second degree assault is not required to register as an offender under the Registration of Offenders statute, unless the elements of the crime contain reference to a sexual offense against a minor. I. Facts and Procedural History On July 29, 2002, Richard Wilburn Cain was arrested and charged in the Circuit Court for Calvert County with one count of child abuse, 1 two counts of third degree sexual ³²³ offense 2 and one count of second degree assault. 3 In a proceeding before the Circuit Court, Cain pled guilty on March 11, 2008, solely to the second degree assault charge, upon terms explained by his attorney: ³²⁴ [CAIN’S ATTORNEY]: Mr. Cain has agreed to enter a plea of guilty to the fourth count of the indictment,[ 4 ] second degree assault. We would ask the Court to take judicial notice of the charging document within the file.

The agreed upon sentence will be a cap of 18 months executed time, backup time and probation in the Court’s discretion, that Mr. Cain will be evaluated to see if any counseling is necessary prior to sentencing, and that the State will be asking that he register under the registration statute, and that we are free to allocute that it does not apply in this case. THE COURT: And my understanding is that we are going to have a brief statement of facts in just a minute,[ 5 ] but let me just make sure that you understand — or that I understand that you are pleading guilty to second degree assault, which is an unpermitted touching, and that you are pleading guilty to that because you are in fact guilty; is that correct? [CAIN]: Yes, sir. After lengthy deliberation about the date of sentencing, the court confirmed the terms of the agreement and discussed additional terms sought by the State: THE COURT: — Mr. Cain, I [need to make] sure you understand that the State is going to ask that you register as an offender under the appropriate category and that you have no contact with the victim or the victim’s family. That’s in addition to your standard conditions of probation.

Do you understand that? ³²⁵ [CAIN]: Yes. THE COURT: Do you also understand that if the Court finds that you have violated your con — any of the conditions of probation, you could face going to jail for the balance of whatever the sentence was? So worst case scenario if a 10 year sentence was imposed and you are found in violation, the balance of that 10 year sentence could be reimposed. Do you understand that? [CAIN]: Yes.

On June 24, 2003, the Circuit Court conducted a sentencing hearing during which Cain’s attorney requested that Cain receive probation and asked “that Mr. Cain not be made to attend either a sexual offender treatment program or to register as a sexual offender.” With regard to the registration, his attorney argued that: The registry statute that went into place that the State is attempting to have Mr. Cain register under was really to put people on notice as to pedophiles and sexual offenders— excuse me, sexual predators. That is not the case that we have here and that is why it is not appropriate in Mr. Cain’s case. Mr. Cain has tested with a forensic psychologist who has found him not to register [sic]; and I believe that the portion of the Statute that the State is attempting to register him under should not apply to a case of second degree assault. In addition, your Honor, I think that with the expert opinion testimony weighing so heavily against registering Mr. Cain and the intent of the Statute, and you put those two together, and I do not think registry is appropriate in this case.

In response, the State argued: This issue as to whether he should register in this particular case is under ll-701(d)(7)[ 6 ] as a sexual offender. That ³²⁶ [Cain] has been convicted of a crime that involves conduct that, by its nature, is a sexual offense against a person under the age of eighteen years. That falls squarely on this case Yes, this was an Alford plea[ 7 ] and we agreed that [Cain] could plead under Alford so that he could say — you know, he could plead to the fact that he touched her thigh and it was unpermitted touching. But that — even if you take it from the Defense’s perspective, that is still sexual touching of a child under the age of eighteen.

The trial judge imposed a five-year sentence for second degree assault with all but one day suspended for time that Cain previously had served and imposed five years of supervised probation with various conditions, including that Cain “submit to evaluation, attend and successfully complete mental health treatment as directed by [his] supervising agent,” have no contact with the victim or her family, and that he serve “a period of home confinement with the Home Confinement Services, Inc. for a period of six months.” After hearing further argument about the offender registration statute, the Court also ordered Cain to register as an “offender” as a condition of his probation. At the completion of the sentencing hearing, the State then entered a nolle prosequi on the remaining counts of child abuse and third degree sex offense. On December 22, 2003, Cain filed a Motion to Correct Illegal Sentence, contending that the second degree assault conviction did not fall within the definition of “offender” under Section 11-701(d)(7) of the Criminal Procedure Article, that ³²⁷ required registration; the Circuit Court denied the motion. Cain noted an appeal to the Court of Special Appeals, and this Court issued, on its own initiative, a writ of certiorari, Cain v. State, 384 Md. 157 , 862 A.2d 993 (2004), prior to any proceedings in the intermediate appellate court.

Cain’s brief presented the following question for our review: Whether [Cain’s] guilty plea to assault in the second degree was insufficient to justify the judge’s order that he register as an “offender.” We conclude that Cain does not have to register as an “offender” under Section 11-701(d)(7) of the Criminal Procedure Article and reverse the Circuit Court’s order denying Cain’s Motion to Correct Illegal Sentence.

II

Standard of Review When considering who must register as an offender under Section 11-701(d)(7) of the Criminal Procedure Article, an examination of the statute is essential, and we review the trial court’s actions de novo. This Court has often stated that our goal in interpreting statutes is to “identify and effectuate the legislative intent underlying the statute(s) at issue.” Serio v. Baltimore County, 384 Md. 373 , 863 A.2d 952, 962 (2004), quoting Drew v. First Guaranty Mortgage Corp., 379 Md. 318, 327 , 842 A.2d 1, 6 (2003), in turn quoting Derry v. State, 358 Md. 325, 335 , 748 A.2d 478, 483 (2000); Pete v. State, 384 Md. 47, 57-58 , 862 A.2d 419, 425 (2004); Graves v. State, 364 Md. 329, 346 , 772 A.2d 1225, 1235 (2001). As we have stated, the best source of legislative intent is the statute’s plain language and when the language is clear and unambiguous, our inquiry ordinarily ends there. Serio, 384 Md. at 373 , 863 A.2d at 962 ; Pete, 384 Md. at 57-58 , 862 A.2d at 425 ; Drew, 379 Md. at 327 , 842 A.2d at 6 ; Beyer v. Morgan State Univ., 369 Md. 335, 349 , 800 A.2d 707, 715 (2002); Whack v. State, 338 Md. 665, 672 , 659 A.2d 1347, 1350 (1995).

Although the plain language of the statute guides our understanding of legislative intent, we do not read the language in a vacuum. See Serio, 384 Md. at 373 , 863 A.2d at 962 ; Drew, 379 Md. at 327 , 842 A.2d at 6 ; Derry, 358 Md. at 336 , 748 A.2d at 483-84 . Rather, we read ³²⁸ statutory language within the context of the statutory scheme, considering the “purpose, aim, or policy of the enacting body.” Serio, 384 Md. at 373 , 863 A.2d at 962 ; Pete, 384 Md. at 57-58 , 862 A.2d at 425 ; Drew, 379 Md. at 327 , 842 A.2d at 6 ; Beyer, 369 Md. at 350 , 800 A.2d at 715 ; In re Mark M., 365 Md. 687, 711 , 782 A.2d 332, 346 (2001)(quoting Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590, 594 (1992)). When interpreting the language of a statute, “we assign the words their ordinary and natural meaning.” Serio, 384 Md. at 373 , 863 A.2d at 962 ; Pete, 384 Md. at 57-58 , 862 A.2d at 425 ; O’Connor v. Baltimore County, 382 Md. 102, 114 , 854 A.2d 1191, 1198 (2004); Lewis v. State, 348 Md. 648, 653 , 705 A.2d 1128, 1131 (1998).

We will “neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engage in a forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.” Serio, 384 Md. at 373 , 863 A.2d at 962 ; Pete, 384 Md. at 57-58 , 862 A.2d at 425 ; O’Connor, 382 Md. at 114 , 854 A.2d at 1198 (quoting Taylor v. NationsBank, 365 Md. 166, 181 , 776 A.2d 645, 654 (2001)). Thus, the provisions must be read in “a commonsensical perspective to avoid a farfetched interpretation.” Serio, 384 Md. at 373 , 863 A.2d at 962 ; Graves v. State, 364 Md. 329, 346 , 772 A.2d 1225, 1235 (2001); Frost v. State, 336 Md. 125, 137 , 647 A.2d 106 , 112 (1994); Dickerson v. State, 324 Md. 163, 171 , 596 A.2d 648, 652 (1991).

III

Discussion In this case, Cain argues that the trial court erred by requiring him to register as an “offender” under Md.Code (1957, 2001), § 11-701(d)(7) of the Criminal Procedure Article. In Cain’s view, his conviction for second degree assault does not fall within this definition of “offender” because assault is not an enumerated offense requiring registration, the elements of assault do not mandate registration and the factual predicate to which he pled guilty, do not establish a violation of the statute. 8 The State concedes that second degree as ³²⁹ sault is not a crime enumerated in the statute, but maintains that Cain should be required to register as an offender because the underlying facts establishing the assault were sexual in nature, mandating registration, rather than the elements of the offense. Essentially, Cain argues that the elements of the crime of assault for which he was convicted negate the registration requirement, while the State asserts that the underlying facts to which Cain pled guilty mandate registration. The General Assembly originally considered Maryland’s offender registration laws in response to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (“Wetterling Act”), which was enacted as part of the Violent Crime Control and Law Enforcement Act of 1994.

See Pub.L. No. 103-322, 108 Stat. 1796 (1994), codified at 42 U.S.C. § 14071 (2000), to address “crimes of violence and molestation committed against children in the United States.” H.R.Rep. No 103-392, at 3 (1993). The Wetterling Act directs the United States Attorney General to establish guidelines for registering sex offenders and providing notification of individuals convicted of sexually violent offenses, criminal offenses against minors, or those determined to be sexually violent predators. See 42 U.S.C. § 14071 .

Each state had until September 13, 1997, to enact legislation implementing a sex offender registration statute in conformity with the federal guidelines or face the loss of certain federal funds apportioned to the states to deter crime. See 42 U.S.C. § 14071 (g)(2)(A). In May, 1996, Congress amended the Wetterling Act by renaming it Megan’s Law and required states to add language to their statutes mandating the release of relevant sex offender registrant information necessary to protect the public. See H.R. 2137, 104th Cong.

(1996), reprinted in 110 Stat. 1345 ³³⁰ (1996). The federal act, as interpreted by the Department of Justice, specified that the registration requirements “constitute a floor for state registration systems, not a ceiling,” and States were afforded great latitude in designing their sex offender registration statutes and the criteria for which a person may be classified as an offender. See Final Guidelines, 61 Fed.Reg. 15110, 15112, as amended, 64 Fed.Reg. 572 (1999). To date, all fifty states have adopted some form of sex offender registration program. 9 In an effort to comply with the federal statute, the General Assembly enacted a statute, entitled “Registration of Offend ³³¹ ers,” which provided that sexual offenders, upon release from prison, must notify local law enforcement of his or her presence in the county where he or she intended to live.

See 1995 Md. Laws, Chap. 142. The Maryland statute defined a “child sexual offender” as a person who: (2)(i) Has been convicted of violating § 35C of this article for an offense involving sexual abuse; (ii) Has been convicted of violating any of the provisions of §§ 462 through 464B of this article for an offense involving an individual under the age of 15 years; (iii) Has been granted probation before judgment after being found guilty of any of the offenses listed in items (i) and (ii) of this paragraph and has been ordered by the court, as a condition of probation, to comply with the requirements of this section; (iv) Has been convicted of, or granted probation before judgment after being found guilty of, violating § 464C of this article and has been ordered by the court, as a part of a sentence or condition of probation, to comply with the requirements of this section; (v) Has been found not criminally responsible for any of the offenses listed in items (i) and (ii) of this section; or (vi) Has been convicted in another state of an offense that, if committed in this state, would constitute one of the offenses listed in items (i) and (ii) of this paragraph. Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 792. In 1997, Senate Bill 605 was enacted to expand the sexual offender registration statute to comply with the 1996 amendments to the Federal Wetterling Act, and established additional classifications of offenders subject to the statutory registration requirements, codified in Article 27, Section 792 of the Maryland Code, effective on May 22, 1997.

See 1997 Md. Laws, Chap. 754. In addition to child sexual offenders, the new registration provisions made Section 792 applicable to “offenders,” “sexually violent offenders,” and “sexually violent predators,” which were defined individually by category. See ³³² 1997 Md. Laws, Chap. 754. The expanded law defined “offender” as: (6) “Offender” means a person who is ordered by the court to register under this section and who: (i) Has been convicted of violating § 1, § 2, or § 338 of this article; (ii) Has been convicted of violating § 337 of this article if the victim is under the age of 18 years; (iii) Has been convicted of the common law crime of false imprisonment if the victim is under the age of 18 years and the offender is not the victims’ parent; (iv) Has been convicted of violating § 464C of this article if the victim is under the age of 18 years; (v) Has been convicted of soliciting a minor to engage in sexual conduct; (vi) Has been convicted of violating § 419A of this article; (vii) Has been convicted of violating § 15 of this article or any of the provisions of §§ 426 through 433 of this article if the intended prostitute is under the age of 18 years; (viii) Has been convicted of a crime that involves conduct that by its nature is a sexual offense against an individual under the age of 18 years; (ix) Has been convicted of an attempt to commit a crime listed in items (i) through (viii) of this paragraph; or (x) Has been convicted in another state of an offense that, if committed in this State, would constitute one of the offenses listed in items (i) through (ix) of this paragraph.

Md.Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.), Art. 27 § 792(a)(6). A sexually violent offender was defined as a person who: (i) Has been convicted of a sexually violent offense; (ii) Has been convicted of an attempt to commit a sexually violent offense; or ³³³ (iii) Has been convicted in another state of an offense that, if committed in this State, would constitute a sexually violent offense. Md.Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.), Art. 27 § 792(a)(10). In addition, the statute defined a “sexually violent predator” as a person who: (i) Is convicted of a second or subsequent sexually violent offense; and (ii) Has been determined in accordance with this section to be at risk of committing a subsequent sexually violent offense.

Md.Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.), Art. 27 § 792(a)(11). Section 792 defined a “sexually violent offense” as: (i) A violation of any of the provisions of § 462, § 463, § 464, § 464A, § 464B, or § 464F of this article; or (ii) Assault with intent to commit rape in the first or second degree or a sexual offense in the first or second degree as previously proscribed under former § 12 of this article. Md.Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.), Art. 27 § 792(a)(9). The Registration of Offenders Act was not substantially amended by Chapters 473 and 521, Acts 1998; Chapters 317 and 402, Acts 1999; and Chapter 314, Acts 2000.

In 2001, the General Assembly repealed Section 792 and recodified the offender registration provisions. See 2001 Md. Laws, Chap. 10. The 2001 version of the Maryland offender registration law was in effect at the time of Cain’s conviction for second degree assault and the definition of “offender” contained in Section 11-701 of the Criminal Procedure Article substantively has not changed since its enactment in 1997. Under the statutory framework, a person who meets the criteria of any of the categories must register pursuant to Section 11-704 of the Criminal Procedure Article. 10 A person who registers and is a resident of Maryland at the time they ³³⁴ are released from prison, receives probation, or is subject to a sentence that does not include imprisonment, must register no later than the time of release, probation or sentencing.

See Md.Code, § 11-705(b)(1) of the Criminal Procedure Article. Registrants who are not residents of Maryland must register within seven days of establishing a temporary or permanent residence in the State or apply for a state driver’s license. See Md.Code, § 11—705(b)(2) of the Criminal Procedure Article. Individuals classified as child sexual offenders must register in person with the local law enforcement agency of the county where they will reside, see Md.Code, § 11-705(c) of the Criminal Procedure Article, and also must provide the supervising authority with a signed statement, which includes his or her name and any aliases, address, place of employment and/or educational institution, social security number, and a description of the crime for which the registrant was convicted.

See Md.Code, § 11-706 of the Criminal Procedure Article. ³³⁵ The Department of Public Safety and Correctional Services (“DPSCS”) maintains a central registry containing the statement, as well as, photographs and fingerprints of the registrant, see Md.Code, § 11-708 of the Criminal Procedure Article, which is then forwarded to the Federal Bureau of Investigation’s national database of offenders. See Md.Code, § 11-713 of the Criminal Procedure Article. In addition, the Department is to make the registration statements or information about registration statements available to the public, including posting a current listing of each registrant’s name, crime and other identifying information on the internet. See Md.Code, § 11-717 of the Criminal Procedure Article.

The term of an individual’s registration varies based upon that person’s classification under the statute. Sexually violent predators are subject to the harshest mandated registration period and must register every ninety days for life. See Md.Code, § 11—707(a)(1)(3)—(4) of the Criminal Procedure Article. Whereas, offenders, child sexual offenders and sexually violent offenders must register annually for ten years.

See Md.Code, § 11-707(a)(2) of the Criminal Procedure Article. In the present case, second degree assault to which Cain pled guilty and was convicted is not one of the enumerated crimes in the statute requiring registration, such as rape, kidnaping, false imprisonment, or violations of the child pornography statute. See Md.Code, § 11-701(b)(2) and (d)(1)-(5) of the Criminal Procedure Article. The State asserts, nevertheless, that Cain should be required to register because the facts contained in the statement of facts underlying the assault by their nature constituted a sexual offense under Section 11-701(d)(7).

The