Connor v. State

SHARER, J. Following his conviction in 1997 for sexual child abuse, Donald Connor, Jr., was required to register as a sex offender, pursuant to Maryland’s sex offender registration statute (“MSORA”). Having failed on several occasions to comply with registration requirements, he was charged and convicted in 2001, in 2004, and in 2007. After the State again charged Connor with failing to register in 2010, he moved to dismiss, asserting that his ten-year registration requirement had expired, and that further prosecutions were barred by ex post facto considerations. The State did not respond to Connor’s motion.

On September 10, 2012, at a hearing in the Circuit Court for Baltimore City (Reed, J.), Connor’s motion was denied. Then, on an agreed statement of facts, he was convicted of failing to register, pursuant to Md. Code Ann. (2001) Criminal Procedure (“C.P.”) § ll-721(a). In his appeal, Connor presents the following question, which we have recast: Was his conviction for failing to comply with sex offender registration requirements in violation of federal and State ex post facto laws prohibitions? ³ FACTUAL BACKGROUND and PROCEEDINGS BELOW The facts underlying Connor’s sexual abuse conviction and subsequent convictions for failure to register are not in dispute. On July 23, 1997, after Connor’s guilty plea to one count of child sexual abuse, the Circuit Court for Baltimore City (Cannon, J.) imposed a sentence of two years’ incarceration.

At that time, Art. 27, § 792 required Connor, inter alia, to register as a sex offender upon his release from incarceration, to re-register on a regular basis for a period of ten years, and to provide prompt notification of changes in his address. See Md.Code Ann. Art. 27, § 792 (1957, 1996 Repl. Vol., 1997 Supp.). 1 Connor was released from commitment on April 25, 1999. On March 23, 2001, in the Circuit Court for Baltimore City (Dancy, J.), Connor entered a guilty plea to a violation of Art. 27, § 792—failing to notify the sex offender registry’s local authority of a change in his address.

The court sentenced Connor to a three-year term of incarceration, suspending all but two years, eight months and 10 days, and placed Connor on probation for three years. On September 24, 2004, Connor again entered a guilty plea to a charge of failing to register. The Circuit Court for Baltimore City (Themelis, J.) sentenced him to a nine-month term of incarceration. On November 21, 2007, following Connor’s guilty plea to a charge of failing to register, the Circuit Court for Baltimore City (Glynn, J.), imposed a one-year term of incarceration.

In 2010, Connor re-registered, giving as his address 418 East Lanvale Street, in Baltimore City. When Baltimore City ⁴ police attempted to verify that information, they found the property to be vacant. Because Connor’s actual residence was unknown, a warrant was issued for his arrest. After being located by Baltimore police in April 2012, he was again charged with failure to properly register as a sex offender, in violation of C.P. §§ 11-705 and 11-721.

As we have noted, Connor responded to the latest failure to register charge by filing a motion to dismiss, arguing that the charges against him had “no statutory basis” because they were brought beyond the ten-year period of registration that accompanied his 1997 guilty plea. Although Connor had subsequently been punished for failure to register on three prior occasions, his motion averred that he had not been convicted of any additional sexual offense that would have subjected him anew to Subtitle 7’s registration requirements. His motion concluded: Under § 11—707(a)(4)(i), Mr. Connor’s period of registration is ten years. Section ll-707(b)(l) specifies that this period runs from his date of release, which was 4/25/1999.

Therefore, Mr. Connor’s term of registration terminated on 4/25/2009, ten years from his date of release. Although Connor’s motion to dismiss made no reference to potential ex post facto violations, his counsel advised the trial court that the motion to dismiss “is a really interesting ex post facto issue.” Counsel made further reference to the issue being before the Court of Appeals at that time. 2 Thus, we conclude that the issue was raised in, and decided by, the trial court, pursuant to Md. Rule 8—131(a). 3 Following the court’s denial of Connor’s motion to dismiss, he agreed to go forward on a not guilty, agreed statement of ⁵ facts. The agreed statement of facts, as presented by the prosecutor, provided: Mr. Connor was convicted (inaudible) to register. During his initial registration, he was advised of duties and obligations, including his duty to register....

On September 2, 2010, he registered at 418 East Lanvale Street. Sergeant Newburger (phonetic sp.) attempted to verify his address on September 22nd, 2010, but found the location vacant. His whereabouts were unknown and a warrant was issued on October 6th, 2010. At that point, ... his whereabouts were unknown, but they were able to locate him in April of 2012.

He had not registered since 2010 and if called to testify, Sergeant Newburger may identify him for the right of counsel. All events occurred in Baltimore, Maryland. Defense counsel added the following: We have no corrections or modifications, Your Honor. I would simply incorporate our Motion to Dismiss at this time, and argue that Mr. Connor, when he was told, initially when he plead guilty to this offense, he only had to register for 10 years, and now it’s a lifetime obligation of registering, based upon the law in 1997.

After hearing oral arguments by counsel, 4 the court (Reed, J.) convicted Connor of failure to register as a sex offender, and imposed a sentence of three years, suspending all but 18 months. DISCUSSION Placing his reliance on Doe v. Department of Public Safety & Correctional Services, 430 Md. 535 , 62 A.3d 123 (2013), Connor argues that his conviction must be reversed. He ⁶ asserts that amendments to Maryland’s sex offender registration statute in 2009 and 2010, which increased his registration requirement from ten years to lifetime, violate state and federal prohibitions against ex post facto laws. See, C.P. § 11—707(a)(4)(ii).

As a result of Connor’s 1997 conviction for sexual child abuse, he is designated as a Tier III offender pursuant to the amended statute, and subject to lifetime registration. C.P. § ll-701(q)(2). The State assigns several reasons that sustain Connor’s conviction. First, as the result of his several intermittent periods of incarceration for past violations of C.P. §§ 11-701, et seq., Connor’s initial ten-year registration period had been tolled by about two years, and thus had not yet expired when he committed the 2010 offense for failure to register.

The State also suggests that, while Doe had filed a civil complaint seeking a declaratory judgment challenging the applicability of MSORA to his situation, Connor is challenging a criminal conviction. 5 Moreover, and perhaps most significantly, the State argues that when Connor committed his act of child sexual abuse, registration was an established collateral consequence of that offense. Doe, on the other hand, committed his sexual offense before the enactment of registration requirements. The State concludes, therefore, that because the 2009 and 2010 amendments to MSORA did not substantially work to Connor’s disadvantage, his enhanced registration obligation does not run afoul of ex post facto restrictions. Doe and Sanchez Doe, a teacher, was charged in 2005 with having committed a child sexual offense during the 1988-84 school year.

His offense took place prior to the enactment of registration requirements. In 2006, Doe entered a plea of guilty, which ⁷ did not contain any reference to registration. Doe, 430 Md. at 538-39 , 62 A.3d 123 . In its sentence, the court imposed a term of incarceration, a probation period upon release, and a probation requirement that Doe “register as a child sex offender.” Id. at 539-40 , 62 A.3d 123 .

In 2009 and in 2010, the General Assembly amended the MSORA, expanding the registration requirements for sexual offenders. As a result, in the State’s view, Doe became subject to the Act and was required to register. Threatened with arrest, Doe complied. He then sought a declaratory judgment that he was not subject to the registration provisions of MSORA.

Doe’s request for relief was denied by the Circuit Court for Washington County, whose order was affirmed by this Court in an unreported opinion. On certiorari to the Court of Appeals, Doe argued that his required registration was contrary to ex post facto considerations. The Court agreed, and reversed. Writing for the Court, Judge Greene provided a cogent history of the sex offender registration program.

In 1995, the Maryland General Assembly first enacted the Maryland sex offender registration statute. As enacted, the statute applied prospectively to sex offenders who committed their crimes after the statute went into effect on October 1,1995. In 2001, the sex offender registration statute was amended and was applied retrospectively to different groups of sex offenders, including “a child sex offender who committed [his or her] sexual offense on or before October 1, 1995” if that offender was “under the custody or supervision of the supervising authority on October 1, 2001.” In 2009, the retroactive application of the statute was once again amended and registration was required of a child sex offender who committed his or her crime before October 1, 1995 but was convicted on or after October 1, 1995, irrespective of when the offender was incarcerated or under supervision. In 2010, the sex offender registration statute was amended again, and among other things, the amendment ad ⁸ dressed the retroactive application of the statute.

The 2010 amendment required retroactive registration of all persons who were already required to register on September 30, 2010, the day before the amendment went into effect. This language had the consequence of incorporating the retroactive application of the statute as amended in 2009. Id. at 545-46 , 62 A.3d 123 (Citations and footnotes omitted). Connor, having been convicted in 1997, was clearly subject to the registration requirements of MSORA.

He argues, however, that he was subject only to the ten-year registration requirement, which, in his view, expired in April, 2009—ten years from the date of his release from incarceration. Thus, he concludes, the State’s effort to compel registration in 2010 is of no effect. Connor’s primary argument is that he should not be subject to lifetime registration, based on Doe . 6 In a three-member plurality decision, the Court held that retroactively applying the sex offender registration requirements to Doe violated Maryland’s prohibition against ex post facto laws. 7 430 Md. at 537 , 62 A.3d 123 . The General Assembly initially enacted a sex offender registration law in 1995, which “applied prospectively to sex offenders who committed their crimes after the statute went into effect on October 1, 1995.” Id. at 545 , 62 A.3d 123 (citing 1995 Md. Laws, Chapter 142, § 3).

In the ensuing years, as MSORA was amended from time to time, “the statutory framework governing sex-offender registration has changed significantly.” Ochoa v. Dept. of Public Safety and Correctional Services, 430 Md. 315, 317 , 61 A.3d 1 reconsideration denied, 430 Md. 315 , 61 A.3d 1 (2013). In 2001, the law was amended to apply retroactively to “different groups of sex ⁹ offenders, including ‘a child sex offender who committed [his or her] sexual offense on or before October 1, 1995,’ if the offender was ‘under the custody or supervision of the supervising authority on October 1, 2001.’ ” Doe, 430 Md. at 546 , 62 A.3d 123 (quoting C.P. § 11-702.1 (2001); 2001 Md. Laws, Chap. 221). When Doe pleaded guilty in 2006 to a single count of child sexual abuse based on his inappropriate contact with a 13-year old student during the 1983-84 school year, the plea agreement did not address a requirement that he register as a sex offender. The court imposed a ten-year sentence, suspending all but four-and-one-half years, and three years’ probation upon his release from prison. “As one of the conditions of [Doe]’s probation, he was ordered to ‘register as a child sex offender.’ ” Id. at 539-40, 62 A.3d 123 .

Subsequent to Doe’s release from prison in 2008, the General Assembly amended MSORA to require registration by “a child sex offender who committed his or her crime before October 1, 1995 but was convicted on or after October 1, 1995, irrespective of when the offender was incarcerated or under supervision.” Id. at 540, 546 , 62 A.3d 123 (citing C.P. § 11-702.1 (2009 Cum. Supp.); 2009 Md. Laws, Chap. 541). In 2010, the statute was again amended to require retroactive registration by “all persons who were already required to register on September 30, 2010, the day before the amendment went into effect.” Id. at 546, 62 A.3d 123 (citing C.P. § 11-702.1(a)(2) (2010 Cum. Supp.)).

These amendments had the effect of re-classifying Doe as a Tier III sex offender, as is Connor, who was required to register every three months for life. A Tier III designation is the most severe. Sanchez, 215 Md.App. at 45, 79 A.3d 405 . In his declaratory judgment action, Doe argued that the retroactive application of the amendments, because of their “highly punitive and restrictive nature,” violated ex post facto prohibitions of both the federal constitution 8 and Article 17 of ¹⁰ the Maryland Declaration of Rights. 9 Doe, 430 Md. at 547 , 62 A.3d 123 .

In its plurality opinion, the Court concluded that requiring Doe to register under the amended statute violated Article 17. Id. In reaching its conclusion, the Court first determined to interpret the ex post facto prohibition pursuant to the “disadvantage analysis” traditionally used by the Court, rejecting the narrower “intent-effects” approach recently taken by the Supreme Court in its analysis of the Alaska sex offender registration statute. Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003); Doe, 430 Md. at 551, 557 , 62 A.3d 123 . “In determining whether a law is unconstitutional under the disadvantage analysis, we look to two factors: whether the law