Graves v. State

BATTAGLIA, Judge. We are called upon in this case to determine whether a conviction in another state of a “sexually violent offense” may be used as the predicate to establish that a person is a “sexually violent predator” under Maryland’s Registration of Offenders statute as set forth in Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.) Article 27, § 792. 1 For the reasons set forth below, we hold that the statutory definition of a “sexually violent predator” does not encompass persons who have been convicted of criminal acts committed in another jurisdiction that would constitute a sexually violent offense in Maryland. ³³² I. Facts On October 30,1991, appellant Garnell Graves was arrested in the District of Columbia based on charges of carnal knowledge and indecent acts on a minor, pursuant to D.C.Code Ann. § 22-3501 (1994)(Repealed May 23, 1995, D.C. Law 10-257, § 501(b)). 2 The charges filed against Graves alleged that he had taken criminal and improper liberties with a ten year old child. The victim, Graves’s ten year old daughter, had reported to a social worker that between August 17 and August 30, 1991, Graves entered her bedroom at night in his apartment in the District of Columbia, where he engaged in vaginal intercourse with her. Graves pled guilty to the charge of indecent acts on a minor and was sentenced in 1992 to a term of two to six years imprisonment.

Graves served four years in the Lorton Prison of the District of Columbia Department of Corrections, and he was paroled on May 1, 1996. Following his release from Lorton and prior to the expiration of his parole term, Graves began residing with Leslie ³³³ Horton and her eight-year old sister in an apartment in Suitland, Maryland. The younger sister subsequently reported that Graves forced her to have vaginal intercourse with him on approximately eighteen occasions in 1997. A Prince George’s County Grand Jury indicted Graves, charging him with child abuse in violation of Article 27, § 35C, 3 second degree rape in violation of § 463, 4 and third degree sex offense in violation of § 464B. 5 ³³⁴ On June 23, 1998, the State filed a notice of intent to request the trial court to determine before sentencing whether defendant was a sexually violent predator pursuant to § 792(b)(4) 6 by virtue of his prior conviction for indecent acts on a minor in the District of Columbia.

On October 27, 1998, after the jury had been empaneled, Graves entered an Alford plea 7 to count three of the indictment which charged him with a third degree sexual offense in violation of Article 27, § 464B. ³³⁵ On November 20, 1998, the sentencing judge in the Circuit Court for Prince George’s County was called upon to determine whether Graves was a sexually violent predator based in part on Graves’s 1992 conviction for indecent acts on a minor in the District of Columbia. After reviewing the Pre Sentence Investigation Report, hearing arguments of both counsel and Graves’s allocution, the trial court stated: I’m going to accept the definition that the Legislature provided for sexual and violent offenses. A sexually violent predator is somebody who commits two or more sexually violent offenses. And under the definition of a sexually violent offense, they included a violation of 462, 463, 464(a), 464(b) and 467(f).

So there is nothing anywhere that requires the violence that you are talking' — 'that you seem to imply was included in that definition. Particularly when we know like we have before us today a violation of 464(b) can be any contact and sexual contact. And I believe that your client under the charge of indecent acts to a minor in the District of Columbia would — the equivalent charge in this case would be in fact 464(b). So, I believe he has in fact committed a subsequent offense and is in fact comes [sic] under the definition.

And I find him in fact to be a sexually violent predator under the statute. The trial court sentenced Graves to ten years imprisonment on the third degree sex offense count, with all but seven years suspended, credit for time served of 238 days, and a five year parole period with supervision. The sentencing judge emphasized the repetitive nature of Graves’s crime to support the sentence imposed. On February 18, 1999, Graves filed a Motion for Modification and Reduction of Sentence, wherein he asserted that the trial court improperly considered his 1991 out-of-state conviction as a basis for finding him to be a sexually violent predator ³³⁶ under § 792(a)(ll), as well as unnecessarily exceeding the sentencing guidelines for third degree sex offense in imposing the maximum penalty, a ten year sentence.

On March 10, 1999, the sentencing judge entered an order denying the modification or reduction of Graves’s sentence. The Court of Special Appeals affirmed the trial court’s determination that Graves was a sexually violent predator under § 792 and upheld the sentence imposed. In affirming the trial court’s decision, the Court of Special Appeals held that “out-of-state convictions may be considered in determining whether an individual is a sexually violent predator.” Graves v. State, 133 Md.App. 97, 114 , 754 A.2d 493, 502 (2000). In so doing, the Court of Special Appeals recognized that the statutory section concerning sexually violent predators specifically excluded reference to out-of-state convictions, but reasoned: It is clear that the legislature intended a broad and sweeping registration of sexual offenders.

In addition, a sexually violent predator is, in essence, a sexually violent offender who has committed a second sexually violent offense and who has been determined to be at risk of committing a subsequent sexually violent offense. Accordingly, we decline to read the statute as prohibiting a sentencing court from considering out-of-state convictions when it determines if an individual is a sexually violent predator. Id. at 114 , 754 A.2d at 503 .

II

Discussion The Maryland Legislature enacted Article 27, § 792 entitled “Registration of Offenders” pursuant to the requirements of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program enacted by the United States Congress as part of the Violent Crime Control and Law Enforcement Act of 1994. Pub.L. No. 103-322, 108 Stat. 1796 (1994), codified at 42 U.S.C. § 14071 (1995). 8 The Maryland ³³⁷ statute, which was originally entitled “The Maryland Crimes Against Children and Sexual Offender Registration Law,” was enacted as Chapter 142, of the 1995 Laws of Maryland. See Gregory G. Gillette, The Maryland Survey: 1994-1995: Recent Development: The Maryland General Assembly: Criminal Law, 55 Md. L.Rev. 847, 852-856 (1996). The 1995 Act provided for sexual offenders, upon release from prison, to notify local law enforcement of his/her presence in the county where he/she intended to live.

The statute defined a “child sexual offender” as someone 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; ³³⁸ (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. Article 27, § 692B (1975, 1992 Repl.Vol., 1995 Supp.). In 1997, the General Assembly enacted a more expansive sexual offender registration statute which complied with the 1996 amendments to the Federal Wetterling Act, and established additional classifications of offenders subject to the statutory registration requirements. The provisions of the 1995 Act were incorporated and reworked into the 1997 law, as codified in Art. 27, § 792.

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. See 1997 Md. Laws, ch. 754. 9 This version was the Maryland ³³⁹ sexual offender registration law in effect at the time of Graves’s conviction for third degree sexual offense in 1998. 10 ³⁴⁰ The definition of “child sexual offender” contained in § 792(a)(2) of the 1997 version of the statute retains its reference to individuals who had been convicted in other jurisdictions of offenses comparable to the Maryland crimes enumerated in the statute. In addition to child sexual offenders, the registration provisions of § 792 apply to offenders, sexually violent offenders, and sexually violent predators.

Article 27, § 792(a)(6) of the Maryland Code defines “offender” by stating: (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 ³⁴¹ 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. A “sexually violent offender” is defined in Article 27, § 792(a)(10) 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 (iii) Has been convicted in another state of an offense that, if committed in this State, would constitute a sexually violent offense. Section 792(a)(ll) defines a “sexually violent predator” as a person who: (i) Is convicted of a second or subsequent sexually violent offense; (ii) Has been determined in accordance with this section to be at risk of committing a subsequent sexually violent offense. The statute defines 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 ³⁴² degree as previously proscribed under former § 12 of this article.

Article 27, § 792(a)(9). Under the statutory framework, classification as a sexually violent predator requires the trial court to engage in a two-step analysis. See § 792(b)(1). The statute states that “if a person is convicted of a second or subsequent sexually violent offense, the State’s Attorney may request the court to determine before sentencing whether the person is a sexually violent predator.” § 792(b)(1).

This language mirrors the language of § 792(a)(ll)(i) which also limits consideration of status as a sexually violent predator to those cases where the individual in question has committed more than one sexually violent offense. To determine whether the accused has committed more than one sexually violent offense, the trial court must look to the language of § 792(a)(9), which establishes the criminal offenses designated as sexually violent under Maryland law. Once the trial court has made a finding that the accused has committed more than one sexually violent offense, it may proceed to the second step of its analysis, which requires the trial court to evaluate whether the person is at risk for committing additional sexually violent offenses. See § 792(a)(ll)(ii).

Section 792(b)(3) provides as follows: In making a determination under paragraph (1) of this subsection, the court shall consider: (i) Any evidence that the court considers appropriate to the determination of whether the individual is a sexually violent predator, including the presentencing investigation and sexually violent offender’s inmate record; (ii) Any evidence introduced by the person convicted; and (iii) At the request of the State’s Attorney, any evidence presented by a victim of the sexually violent offense. Once the trial court has concluded that a person qualifies as a sexually violent predator, that person will be subject to the registration requirements attendant to such classification. ³⁴³ The statute, effective in 1997, requires registrants who are residents of Maryland at the time they are released, receive probation, or sentenced in cases where the sentence does not include imprisonment, to register no later than the time of release, probation, or sentencing. See § 792(c)(2)(i). Registrants who are not residents of Maryland must register within seven days of establishing a temporary or permanent residence in Maryland or applying for a Maryland driver’s license.

See § 792(c)(2)(ii). Individuals classified as child sexual offenders also must register in person with the local law enforcement agency of the county in which they reside. See § 792(c)(3). The registrant must provide the supervising authority with a signed statement which includes the individual’s name including any aliases used, address, place of employment, social security number, and a description and the location of the criminal conduct which brings them within the purview of the sex offender registration statute.

See § 792(d)(1). The Department of Public Safety and Correctional Services maintains a central registry containing the signed statement as well as photographs and fingerprints of the registrant. See § 792(d)(3). All information maintained by the Department of Public Safety and Correctional Services is also forwarded to the Federal Bureau of Investigation for its national database of sex offenders.

See § 792(d)(4). The duration of an individual’s registration period varies with that person’s classification under the statute. Sexual offenders and sexually violent offenders must register annually for a ten year period. See § 792(h)(3).

Those individuals found to be sexually violent predators are required to register every ninety days for a ten year period. See § 792(h)(4). After the sexually violent predator has registered quarterly for a minimum of ten years, a petition may be filed with the court requesting a termination of that status as a sexually violent predator. See § 792(k).

Therefore, while it is possible to petition a court to have the sexually violent predator status removed, the registration period accorded to individuals who ³⁴⁴ are classified as sexually violent predators is of a potentially infinite duration. When Congress designed the Wetterling Act, it afforded the states wide latitude in fashioning their sex offender registration statutes and the criteria for which a person .may be classified as a sexually violent predator. See Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, as Amended, 64 Fed. Reg. 572 (1999). As a result, the various state sex offender registration statutes take different approaches in setting forth the rules and requirements of registration.

The majority of states use language which refers to comparable criminal acts committed in other jurisdictions when defining which individuals are subject to the registration requirements as sexual offenders and sexually violent predators, as well as in defining the meaning of a sexually violent offense. 11 The remaining ³⁴⁵ nine states, including Maryland, specifically exclude reference to convictions in other states in their definitions of sexually violent predators and/or sexually violent offenses. 12 For a discussion of the varied legal and medical approaches for handling sex offenders, see Samuel Jan Brakel, J.D. & James L. Cavanaugh, Jr., M.D., Of Psychopaths and Pendulums: Legal and Psychiatric Treatment of Sex Offenders in the United States, 30 N.M. L.Rev. 69 (2000). Graves interprets the definition of “sexually violent predator” as set forth in § 792(a)(ll), to exclude consideration of sexually violent offenses committed in jurisdictions other than Maryland. The State concedes that the definition of “sexually violent predator” does not include specific language regarding consideration of convictions for sexual offenses committed in other states. Nevertheless, the State asserts that there could be no doubt that the legislature intended to encompass out-of-state offenses within the definitions of “sexually violent offense” and “sexually violent predator.” This Court has often stated that the “paramount goal of statutory interpretation is to identify and effectuate the legislative intent underlying the statute(s) at issue.” Derry v. State, 358 Md. 325, 335 , 748 A.2d 478, 483 (2000)(citing Robinson v. State, 353 Md. 683, 694 , 728 A.2d 698, 703 (1999); Blondell v. Baltimore Police, 341 Md. 680, 690 , 672 A.2d 639 , ³⁴⁶ 644 (1996)).

To ascertain the legislative intent of the scope of the definitions of “sexually violent predator” and “sexually violent offense,” we must look first to the ordinary and plain meaning of the words of the statute. See Whack v. State, 338 Md. 665, 672 , 659 A.2d 1347, 1350 (1995); In re Arnold M., 298 Md. 515, 520 , 471 A.2d 313, 315 (1984). The language of § 792 must be viewed from a commonsensical perspective to avoid a farfetched interpretation. See 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).

We have explained that “all parts of a statute are to be read together to find the intention as to any one part, and all parts are to be reconciled and harmonized if possible.” See Wheeler v. State, 281 Md. 593, 596 , 380 A.2d 1052, 1055 (1977), cert. denied, Maryland v. Wheeler, 435 U.S. 997 , 98 S.Ct. 1650 , 56 L.Ed.2d 86 (1978)(citing Thomas v. State, 277 Md. 314, 317 , 353 A.2d 256, 258 (1976)). When considering the definition of a “sexually violent predator” in the context of the statute as a whole, the plain meaning of the words selected by the General Assembly in crafting Maryland’s Registration of Offenders statute yields the conclusion that the legislature specifically excluded reference to out-of-state convictions from the realm of criminal conduct to be taken into account in determining whether someone qualifies as a sexually violent predator and the imposition of enhanced registration requirements attendant to such classification. There simply is no reference to convictions in other jurisdictions in the definition of a sexually violent predator, as opposed to the explicit inclusion of out-of-state convictions in the definition of a sexually violent offender in § 792(a)(10). In the present case, our interpretation of the plain meaning of the definition of “sexually violent predator” as excluding reference to out-of-state convictions also finds support in the legislative history of Senate Bill 605, the predecessor to § 792.

Ordinarily, where the language of the statute is not ambiguous or obscure, this Court need not look beyond ³⁴⁷ the plain language of the statute to discern legislative intent. See Wheeler, supra, 281 Md. at 596 , 380 A.2d at 1054 . Nevertheless, consideration of the background and procedural process of the enactment of § 792 assists us in understanding the statutory construction and context of the enactment of the legislation within the framework of Maryland criminal law. See State v. Hernandez, 344 Md. 721, 726 , 690 A.2d 526, 529 (1997)(explaining that “[w]hen engaging in the interpretive process, however, the purpose, aim or policy of the legislature cannot be disregarded”); Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126, 127 (1989); Kaczorowski v. City of Baltimore, 309 Md. 505, 513 , 525 A.2d 628, 632 (1987).

We have explained that “[cjontext may include related statutes, pertinent legislative history and other material that fairly bears on the . . . fundamental issue of legislative purpose or goal ... ”. GEICO v. Insurance Comm’r, 332 Md. 124, 132 , 630 A.2d 713, 717 (1993)(quoting Kaczorowski v. City of Baltimore, 309 Md. 505, 515 , 525 A.2d 628, 632-33 (1987))(internal quotations omitted). Senate Bill 605 was introduced and read for the first time on January 31, 1997. In this original version, the definition of a “sexually violent predator” was a person who: A(7) (I) 1.

Has been convicted of a sexually violent offense; 2. Has been convicted of an attempt to commit a sexually violent offense; 3. Has been granted probation before judgment after being found guilty of a sexually violent offense and has been ordered by the court, as a condition of probation, to comply with the requirements of this section; 4. Has been found not criminally responsible for a sexually violent offense; or 5.

Has been convicted in another state of an offense that, if committed in this state, would constitute a sexually violent offense; and (II) Suffers from a mental abnormality or personality disorder that makes the person likely to commit a sexually violent offense. ³⁴⁸ Similarly, the same proposal contained the following definition of a “sexually violent offense”: A(6) (I) A violation of any of the provisions of § 462, § 468, § 464, § 464A, § 464B, or § 464F of this article; (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; or (III) An offense in another state that, if committed in this state, would constitute a violation described in items (I) or (II) of this paragraph. The legislative history for Senate Bill 605 supported the inclusion of extraterritorial criminal acts in the definitions of “sexually violent offense,” “sexually violent offender,” and “sexually violent predator.” Both the Bill Analysis and the Floor Report for’ Senate Bill 605 defined the term “sexually violent predator” by reference to sexually violent offenses committed in Maryland as well those committed in other jurisdictions. The Bill Analysis provided the following description of a “sexually violent predator”: [A] person who has been: (1) convicted of a sexually violent offense, convicted of an attempt to commit a sexually violent offense, granted probation before judgment for a sexually violent offense, found not criminally responsible for a sexually violent offense, or convicted in another state of a crime that is considered a sexually violent offense in this State; and (2) found to suffer from a mental abnormality or personality disorder that makes the person likely to commit a sexually violent offense. Senate Judicial Proceedings Committee, Bill Analysis of Senate Bill 605 (1997).

Whereas, the Floor Report defined a “sexually violent predator”