Long v. Maryland State Department of Public Safety & Correctional Services

Opinion by Salmon, Jr. Franklin David Long (“Long”) filed a complaint for declaratory relief in the Circuit Court for Montgomery County against the Maryland Department of Public Safety and Correctional Services (“the Department”) in which he asked the court to declare: (1) That the Plaintiff be removed from the Maryland Sex Offender Registry since his original sentence required only a ten (10) year registration term which should have expired in 2011; or, in the alternative, (2) Should this Court find that the Plaintiff must remain on the Maryland Sex Offender Registry, that the Plaintiff only be required to register once a year with his supervising authority as opposed to every three months; and further (3) That the terms of his registration be in accordance with his original sentence and the laws in place at the time of his crime, and not pursuant to the retroactive application of the ⁵ 2001, 2009 and 2010 amendments to the Maryland sex offender statute[.] The Department filed an answer to the complaint, after which both Long and the Department filed motions for summary judgment. The circuit court, after hearing oral argument, granted the Department’s motion for summary judgment and ruled: 1) that Long’s original sentence required him to register as a sex offender for life, and 2) that Long was required to meet the registration requirements as a sex offender as they currently exist. The court also denied Long’s cross-motion for summary judgment and declared, in writing, the rights of the parties. Long filed a timely appeal to this Court in which he raises two questions that he phrases as follows: 1.

Did the [cjircuit [cjourt err in determining that [ajppel-lant was subject to lifetime registration on the Maryland Sex Offender Registry when he was only required to register for a ten-year term at the time of his sentence? 2. Did the [cjircuit [cjourt err in determining that the additional registration requirements imposed upon [ajppel-lant by the 2009 and 2010 amendments to the Maryland Sex Offender Registry Act did not violate the prohibition against ex post facto laws under the Maryland Declaration of Rights? The second question presented is one of first impression. We shall answer that question as well as the first in the negative.

H-1 BACKGROUND On October 4, 2000, when Long was 66 years old, he committed a third-degree sexual offense. On the date this crime was committed his victim was an 11-year-old girl. About ten months after the commission of the aforementioned crime, on August 6, 2001, Long entered a guilty plea in which he admitted having committed a third-degree sexual ⁶ offense. The plea was entered in the Circuit Court for Montgomery County, Maryland.

On September 6, 2001, the circuit court sentenced Long to five years’ incarceration with all but six months suspended, in favor of five years’ probation. At the time of Long’s sentence, the statute that prohibited third-degree sexual offenses was set forth in Article 27 § 464B of the Annotated Code of Maryland (1987, RepLVol.). In 2002, that last mentioned statutory provision was transferred, without substantive change, to Maryland Code (2002), Criminal Law Article (“Crim. Law”) § 8-307.

When Long was convicted in 2000, Article 27 § 792(D)(2)(ii)l provided that anyone convicted as a third-degree child sexual offender was required to register for life as a sexual offender. Moreover, due to the nature of Long’s crimes, he also met the definition of a sexually violent offender; such offenders were also required to register as a sex offender for life. See Article 27 § 792(D)(4)(ii)1. On the same date that Long was sentenced, September 6, 2001, Long acknowledged receipt of an “order for probation upon release from incarceration.” That order set forth various conditions of probation, one of which was that he “must register as a sex offender.” The order did not specify for how long appellant was required to register.

Ten days after Long filed his acknowledgment of the conditions of his probation, he received a document entitled “Notice to Registrant of Requirements under Article 27, Section 792.” That document informed Long, erroneously, that he was only required to register as a child sexual offender annually for “the next 10 years” i.e., until September 18, 2011. Long, on January 20, 2004, received a document entitled “Notice to Registrant [-] Under Criminal Procedure Article 11-701-721.” That document advised Long that he was required to register as a child sexual offender annually for life. In 2009 and 2010, the Maryland Sex Offender Registration Act (“the Act”) was amended. The amendments, insofar as here pertinent, are set forth in Maryland Code (2008 Repl.

Vol., 2015 Supp.), Criminal Procedure Article (“Crim. Proc.”) ⁷ § 11-701(q)(1)(ii). The amendments to the Act, reclassified persons in Mr. Long’s situation from a “child sexual offender” and “sexually violent offender” to a “Tier III sex offender.” As amended, the Act defined a “Tier III sex offender” as a “person who has been convicted of .., committing a violation of § 3-307(a)(3) ... of the Criminal Law Article[.]” See Crim. Proc. § ll-701(q)(2).

Although the amendments did not change the time period for which an offender was required to register, it did require that the offender “register in person every 3 months with a local law enforcement unit” for the life of the registrant. See Crim. Proc. § 11—707(a)(2)(i) and (a)(4)(iii). The 2010 amendment made additional changes, which are discussed infra.

In his complaint requesting declaratory relief, Long asserted that by requiring him to continue to register as a sex offender after September 18, 2011, the statute violated the prohibition against ex post facto laws set forth in Article 17 of the Maryland Declaration of Rights. This is true, according to Long, because he was “originally required to register for ten (10) years and now must register for life.” Long asserts, in the alternative, that in the event that this Court should determine that he must remain on the Maryland Sex Offender Registry for life, we should, nevertheless, decide that he should only have to meet the reporting requirements that were in place in 2000 and not the more stringent requirements currently imposed upon third-degree sex offenders. The circuit court, in a written opinion, declared: Pursuant to the 1999 amendment to the Maryland Sex Offender Registration Act (the “Maryland Act”), Mr. Long was required to register as a child sexual offender for life. 1999 Md. Laws ch. 317. As a result of a 2010 amendment to the Maryland Act, Mr. Long is now classified as a “[T]ier III” sex offender in Maryland which has not changed the requirement that he register for life.

See Md. Code Ann., Crim. Proc. §11-701 (q)(l)(ii) (2013 Supp.). ⁸ The Maryland Act has not been applied, and is not now being applied, to Mr. Long in any way so as to violate either the federal or state ex post facto clauses. Mr. Long is therefore obligated to continue to register as a [T]ier III sex offender for life in accordance with the requirements of the Maryland Act. II FIRST ISSUE PRESENTED Long’s first argument is phrased as follows “[t]he [circuit [c]ourt erred in determining that [a]ppellant should not be removed from the MSOR [Maryland Sex Offender Registry] because the ten-year registration term to which he was obligated has expired.” The key phrase in this argument is “the ten-year registration term to which he was obligated has expired.” Actually, in 2001, when Long was sentenced, as a collateral consequence to pleading guilty to a third-degree sex offense involving a female under the age of 14 years, Long was “obligated” to register as a sex offender for life—not ten (10) years.

In his brief, Long admits that this is what the law provided in 2001, the year that he entered his guilty plea. Long argues, however, that “lifetime registration was never a condition of’ his sentence and, as a consequence, he “is entitled to the benefit of the bargain in his plea agreement, and [the Department] cannot unilaterally decide to increase [his] registration term to something other than what was agreed to, understood, and voluntarily accepted by [him] at the time of sentencing.” Later in his brief, Long makes much the same point when he argues that when he “received his sentence, his plea agreement included a requirement to register on the MSOR for ten years.” There are two major problems with the above arguments. First, in the circuit court, Long never argued that at the time he pleaded guilty, he and the State agreed that he would only be required to register as a sex offender for ten years. Therefore, the circuit court did not address that argument.

See Md. Rule 8-131 (a) (except for certain jurisdictional issues, ⁹ an appellate court will ordinarily not decide any issue neither raised nor decided in the circuit court). Second, there is nothing whatsoever in the record to suggest that, at the time the plea agreement was put on the record, the State, the plea judge, or anyone else, agreed with appellant that he would only have to register as a sex offender for ten years. In his brief, Long argues the fact that his plea agreement “included a requirement to register on the MSOR for ten years” is supported by the “Notice to Registrant of Requirements under Article 27, Section 792” that he received. The content of the notice to registrant tells us nothing whatsoever as to appellant’s understanding of the registration requirements when he entered his guilty plea.

That notice was received ten days after he received his sentence and 43 days after he pled guilty. In other words, at the time in 2001 when Long pled guilty, he could not possibly have relied upon the Notice to Registrant because that document was not supplied to him until more than one month afterwards. It is of course true, as Long argues, that when a defendant pleads guilty he or she is entitled to the benefit of his/her bargain. But, nothing in this record shows that Long ever made such a “bargain” when he pled guilty.

In short, there is nothing in the record to support Long’s argument that when he pled guilty, he was promised that he would only have to register for ten years. For the foregoing reasons, we hold that the circuit court did not err when, in declaring the rights of the parties, the court said that Long was required to register as a sex offender for life. HH HH SECOND ISSUE PRESENTED In October of 2000, when Long committed the third-degree sexual offense against an 11-year-old victim and, at the time he was sentenced, sex offenders with such convictions were ¹⁰ required to register annually, in person, with a local law enforcement agency and provide the following information: (i) The registrant’s name, address and place of employment; (ii) A description of the crime for which the registrant was convicted ...; (iii) The date that the registrant was convicted ...; (iv) The jurisdiction in which the registrant was convicted • • M (v) A list of any aliases that have been used by the registrant; and (vi) The registrant’s Social Security number. Md. Code Ann., Article 27, Section 792(e) (2000).

After the law was changed by the 2009 and 2010 amendments, Long was required to register with a local law enforcement agency authority every three months (rather than every six months) 1 and to file a registration statement that included: (1) the registrant’s full name, including any suffix, and all addresses and places where the registrant resides or habitually lives; (2) the name and address of each of the registrant’s employers and a description of each location where the registrant performs employment duties, if that location differs from the address of the employer; (3) the name of the registrant’s educational institution or place of school enrollment and the registrant’s educational institution or school address; ¹¹ (4) a description of the crime for which the registrant was convicted; (6)the date that the registrant was convicted; (6) the jurisdiction and the name of the court in which the registrant was convicted; (7) a list of any aliases, former names, names by which the registrant legally has been known, traditional names given by family or clan under ethnic or tribal tradition, electronic mail addresses, computer log-in or screen names or identities, instant-messaging identities, and electronic chat room identities that the registrant has used; (8) the registrant’s Social Security number and any purported Social Security numbers, the registrant’s date of birth, purported dates of birth, and place of birth; (9) all identifying factors, including a physical description; (10) a copy of the registrant’s passport or immigration papers; (11) information regarding any professional licenses the registrant holds; (12) the license plate number, registration number, and description of any vehicle, including all motor vehicles, boats, and aircraft, owned or regularly operated by the registrant; (13) the permanent or frequent addresses or locations where all vehicles are kept; (14) all landline and cellular telephone numbers and any other designations used by the sex offender for the purposes of routing or self-identification in telephonic communications; (15) a copy of the registrant’s valid driver’s license or identification card; (16) the registrant’s fingerprints and palm prints; (17) the criminal history of the sex offender, including the dates of all arrests and convictions, the status of parole, ¹² probation, or supervised release, and the existence of any outstanding arrest warrants; and (18) the registrant’s signature and date signed. Md. Code Ann., Crim. Proc. § ll-706(a) (2014). Several appellate cases in Maryland have discussed, in considerable detail, whether the Maryland Sex Offenders Registration Act (“the Act”) as amended violates the ex post facto provisions in Article 17 of the Declaration of Rights and/or Article I, § 10 of the United States Constitution.

Those cases include: Doe v. Dept. of Public Safety and Correctional Services (“Doe I”), 430 Md. 535 , 62 A.3d 123 (2013); Dept. of Public Safety and Correctional Services v. Doe (“Doe II”), 439 Md. 201 , 94 A.3d 791 (2014); In Re: Nick H., 224 Md.App. 668 , 123 A.3d 229 (2015); Connor v. State, 223 Md.App. 1 , 115 A.3d 201 (2015); Quispe del Pino v. Maryland Department of Public Safety and Correctional Services, 222 Md.App. 44 , 112 A.3d 522 (2015); Rodriguez v. State, 221 Md.App. 26 , 108 A.3d 438 (2015); Sanchez v. State, 215 Md.App. 42 , 79 A.3d 405 (2013). See also Timothy J. Gilbert, Retroactivity and the Future of Sex Offender Registration in Maryland, 45 U. Balt. L.F. 164 , 166-77 (2015). In large measure, the reason for the 2009 and 2010 changes to the Act was that the United States Congress, in 2006, passed the Sex Offender Registration and Notification Act (“SORNA”).

See Doe I, 430 Md. at 588 , 62 A.3d 123 (Barbera, J., dissenting). SORNA required states to set up a sex offender registry and specified what information must be contained in the registry. In addition, SORNA authorized the United States Attorney General to issue guidelines to the states specifying additional information about sex offenders that should be compiled and contained in the registry. Id.

On July 2, 2008, the Attorney General issued such guidelines. See 73 Fed. Reg. 38030 -38070. States that did not comply with SOR-NA and the guidelines, risked losing 10% of the Byrne Justice Assistant grants that would have otherwise been allowed. See ¹³ 42 U.S.C. § 16925 . 2 A review of SORNA, together with the Attorney General’s guidelines, show that many of the 2009-2010 changes to the Act were required by either SORNA or the guidelines. 3 Appellant contends that the registration requirement set forth in the amendments to the Act should not apply to him because, if so applied, the amended statute would violate his rights as guaranteed by Article 17 of the Maryland Declaration of Rights, which reads: That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal are oppressive, unjust and incompatible with liberty; wherefore no ex post facto law ought to be made; nor any retrospective oath or restriction be imposed, or required.

Article I, § 10 of the Constitution of the United States contains a similar provision that provides, in pertinent part: “No State shall ... pass any ... ex post facto Law ....” Until our recent decision in the case of In Re: Nick H., there was confusion in Maryland as to what test should be used in determining whether the amended Act violated Article 17 of the Maryland Declaration of Rights. The competing tests were the “intent-effects test” discussed by the Supreme Court in Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003) (“Smith”) and the “disadvantage” test, which was utilized by a plurality of the Court of Appeals in Doe I. Doe I, 430 Md. at 551-52, 557 , 62 A.3d 123 . In Smith , the United States Supreme Court examined an Alaskan sex registration statute that went into effect in 1994 and required sex offenders and child kidnappers to register as ¹⁴ sex offenders and to re-register every three months thereafter. 538 U.S. at 89-90 , 123 S.Ct. 1140 . Under the Alaskan statute, such offenders were required to: provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver’s license number, information about vehicles to which he has access, and post-conviction treatment history. [Alaska Stat.] § 12.63.010(b)(1).

He must permit the authorities to photograph and fingerprint him. [Alaska Stat.] § 12.63.010(b)(2). Id. at 90, 123 S.Ct. 1140 . Because the Alaskan Act went into effect after the respondents were convicted, the Supreme Court was called upon to decide whether the ex post facto prohibition found in Article I, § 10 of our federal constitution prohibited Alaska from requiring the respondents to abide by the provisions of the statute. The Smith Court held that the rights of the respondents were not violated and in reaching that conclusion applied the intent-effects test, which involved a two-step process.

The Court explained the first step as follows: We must ascertain whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil. Id. at 92 , 123 S.Ct. 1140 (alteration in original) (citations and internal quotation marks omitted).

The second step of the intent-effects test requires the court to consider several factors, including, but not limited to, the following: [1] [w]hether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment[, 3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deter ¹⁵ rence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned .... In Re: Nick H., 224 Md.App. at 691 , 123 A.3d 229 (quoting from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 , 83 S.Ct. 554 , 9 L.Ed.2d 644 (1963)). Appellant contends that we should not use the intent-effects test but use instead the disadvantage test, which, as already mentioned, was espoused by the plurality opinion in Doe I . Under that test, the “two critical elements that must be present for a law to be unconstitutional under the ex post facto prohibition are that the law is retroactively applied and the application disadvantages the offender.” Doe I, 430 Md. at 551-52 , 62 A.3d 123 .

In the In Re: Nick H. case, before concluding that the intent-effects test must be used, the Doe I case was thoroughly analyzed, as follows: In 2006, Doe pled guilty to and was convicted ... of a single count of child sexual abuse arising out of