Quispe Del Pino v. Maryland Department of Public Safety & Correctional Services

WOODWARD, J. In this opinion, we set sail into waters left uncharted by the voyage that the Court of Appeals undertook in the case of Doe v. Department of Public Safety & Correctional Services, 430 ⁴⁶ Md. 535, 62 A.3d 123 (2013) (“Doe I ”). In Doe I, the Court held that requiring Doe to register as a sex offender 1 as a result of the 2009 and 2010 amendments to the Maryland sex offender registration act (“MSORA”) violated the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights. 2 Id. at 537, 62 A.3d 123 (interpreting Md.Code (2001, 2008 Repl.Vol., 2010 Cum.Supp.), §§ 11-701 et seq. of the Criminal Procedure Article (“CP 2010”)). There, MSORA did not exist in 1983-84 when Doe committed the sexual offense at issue, nor was Doe required to register when he was convicted in 2006. Doe I, 430 Md. at 537-38 , 62 A.3d 123 .

Here, at the time of his conviction in 2001 for a sex crime committed in 2000, appellant, Thomas H. Quispe del Pino, was required to register as a sex offender for a period of ten years. The 2010 amendment to MSORA, however, classified appellant as a “Tier II” offender and increased the period of registration from ten years to twenty-five years. The issue thus presented to this Court by the instant case is whether, under Doe I , the retroactive application of MSORA to appellant by the 2010 amendment, which results in the increase of his registration period from ten years to twenty-five years, violates the prohibition against ex post facto laws contained in Article 17 of the Declaration of Rights. We shall hold that it does.

BACKGROUND On January 3, 2001, appellant pled guilty to one count of unlawful communication with a minor, one count of corruption of minors, and one count of loitering and prowling at nighttime, in the Court of Common Pleas in Pennsylvania (“the ⁴⁷ Pennsylvania Court”). These offenses were committed in 2000. On April 10, 2001, the Pennsylvania Court sentenced appellant to ten years of probation, with his earliest termination date being April 9, 2011. 3 Because appellant was a Maryland resident, his probation was transferred from Pennsylvania to Maryland. As a condition of his probation, appellant was required to register as a sex offender in Maryland for the duration of the ten-year period, under the supervising authority of the Montgomery County Police Department.

On September 25, 2010, appellant was notified that, due to the 2010 amendment to MSORA, appellant’s registration requirements had been modified as follows: As a result of your SEXUAL SOLICITATION OF A MINOR conviction and the Maryland law change your new registration category is Tier II and your registration term is 25 YEARS.... In other words, following the 2010 amendment, appellant was reclassified as a “Tier II sex offender,” and his registration term, which had been ten years, increased to twenty-five years. On December 21, 2011, appellant filed a Petition for Writ of Prohibition in the Circuit Court for Montgomery County against appellees, Maryland Department of Public Safety and Correctional Services and Gary Maynard, Secretary of the Department (collectively, the “Department”). Appellant argued that requiring his continued registration would violate the prohibition against ex post facto laws under both the United States Constitution and the Maryland Declaration of Rights.

The Department responded on February 15, 2012, by filing a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. On March 29, 2012, the circuit court held a hearing on appellant’s petition and the Department’s motion. At the close of the hearing, the court issued an oral ⁴⁸ ruling and signed two written orders, one denying appellant’s petition and the other granting summary judgment in favor of the Department. Appellant timely filed this appeal.

Additional facts will be set forth below as necessary to resolve the issue presented. STANDARD of review In the instant appeal, the dispositive issue is whether retroactive application of the 2010 MSORA amendment to appellant violates the prohibition on ex post facto laws by extending appellant’s term of registration from ten to twenty-five years. “When the trial court’s [decision] involves an interpretation and application of Maryland statutory and case law, [the appellate court] must determine whether the lower court’s conclusions are legally correct.” Hillsmere Shores Improvement Ass’n, Inc. v. Singleton, 182 Md.App. 667, 690 , 959 A.2d 130 (2008) (alterations in original) (citations and internal quotation marks omitted). Interpretations of the Maryland Declaration of Rights are also reviewed de novo. See Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78 (2004).

DISCUSSION I. The Maryland Sex Offender Registration Law In 2010, the General Assembly made two changes to MSORA of particular relevance to the case sub judice. First, retroactive registration was required for all persons who were required to register on September 30, 2010, the day before the amendment went into effect. See CP 2010 § ll-702.1(a). Second, all sex offenders were placed into a tiered registration system: Tier I offenders were required to register for fifteen years, Tier II offenders were required to register for twenty-five years, and Tier III offenders were required to register for life.

CP 2010 §§ ll-701(o )-(q), -707(a)(4). Appellant contends that, based on Doe I , MSORA has become punitive after the 2009 and 2010 amendments, such ⁴⁹ that “retroactive application [to appellant] would violate not only the United States’ Constitution’s prohibition against ex post facto laws, but also Maryland’s Declaration of Rights’ prohibition against ex post facto laws.” Specifically, appellant argues that the retroactive application of the statute disadvantages him, in violation of Article 17 of the Maryland Declaration of Rights (“Article 17”), by increasing the term of his registration from ten years to twenty-five years. The Department responds that applying MSORA’s new requirements to appellant does not violate the state and federal ex post facto clauses. The Department contends that the purpose of the Maryland statute “is remedial and its effects are non-punitive,” because it “does not require a registrant to do anything other than keep law enforcement authorities (and in limited circumstances, school officials) updated on information that serves to keep the public safe.” It is undisputed that, “[t]o prevail in an ex post facto claim, [appellant] must first show that the law that [he is] challenging applies retroactively to conduct that was completed before the enactment of the law in question.” Dep’t of Pub.

Safety & Corr. Servs. v. Demby, 390 Md. 580 , 593 n. 10, 890 A.2d 310 (2006). We thus must address first whether the 2010 amendment applies retroactively to appellant’s criminal conduct for which he was originally sentenced in 2001. A. Retroactive Application of MSORA Appellant contends that Maryland “lacks the authority to require [him] to register” as a sex offender, because at the time appellant pled guilty in Pennsylvania, the “triggering event” that required him to register in Maryland, namely, his unlawful communication with a minor, was not a crime in Maryland.

According to appellant, “[i]f not for the requirement of Pennsylvania, Maryland could not have required Appellant to register because Appellant had not been convicted of a qualifying crime under the Maryland Sex Offender Registry Act at the time Appellant pled guilty in Pennsylvania.” In other words, appellant argues that, if he “had moved ⁵⁰ to Pennsylvania” during his ten-year registration period, “his period of registration would be over,” because his Pennsylvania probation expired in 2011. Moreover, appellant claims that he is being punished unfairly, because his conduct, though merely a misdemeanor in Pennsylvania, is treated as a felony in Maryland. The Department responds by arguing that Maryland’s unlawful solicitation of a minor statute has not “been applied to [appellant] in any manner that would constitute ‘punishment’ under the federal or State Ex Post Facto clauses.” Preliminarily, we note that, at the time appellant was placed on probation in April 2001, the Pennsylvania charge of unlawful communication with a minor was not a crime in Maryland. 4 Effective October 1, 2004, sexual solicitation of a minor became a crime in Maryland for the first time as Section 3-824 of the Criminal Law Article. See Md.Code (2002, 2004 Cum.

Supp.), § 3-324 of the Criminal Law (I) Article. Nevertheless, we disagree with appellant’s contention that Section 3-324 was retroactively applied. First, as a condition of his Pennsylvania probation, appellant was required to “register with the appropriate law enforcement agency of another state within ten calendar days of moving outside the Commonwealth of Pennsylvania.” Thus, as a Maryland resident, appellant was required to register in Maryland and become subject to the requirements of MSORA until April 9, 2011. Second, independent of the conditions of his Pennsylvania probation, appellant was required to register in Maryland, because he had been convicted in another state of “a crime that involves conduct that by its nature is a sexual offense against an individual under the age of 18 years.” Md.Code (1957, 1996 RepLVol., 2000 Cum.Supp.), Article 27, § 792(a)(6)(viii), (x).

Because appellant’s conviction for unlawful communication with a minor in Pennsylvania specifically involved a sexual offense with a minor, see 18 Pa. Cons.Stat. § 6318(a)(1) (2000), ⁵¹ appellant was required to register in Maryland for ten years. See Article 27, § 792(d)(5). As a result of the 2010 amendment to MSORA, CP § 11-702.1 states that “this subtitle shall be applied retroactively to include a person who [ ] was subject to registration under this subtitle on September 30, 2010.” CP 2010 § 11 — 702.1(a)(2); see also Doe I, 430 Md. at 546 , 62 A.3d 123 .

Because appellant was subject to registration in Maryland from 2001 until April 9, 2011, it follows that he “was subject to registration ... on September 30, 2010.” Therefore, there is no question that appellant is subject to the retroactive application of the 2010 amendment to MSORA. Having concluded that the 2010 MSORA amendment is being retroactively applied to appellant, we now must decide whether doing so violates the prohibition against ex post facto laws under Article 17 of the Maryland Declaration of Rights. To complete that analysis, we must consider the Court of Appeals’s decisions in Doe I and Department of Public Safety & Correctional Services v. Doe, 439 Md. 201 , 94 A.3d 791 (2014) (“Doe II”). B. Doe I In Young v. State, the Court of Appeals rejected a due process challenge to the sex offender registry statute as it existed in 2000, and held that the statute was a civil remedy designed to protect the public from sex offenders. 370 Md. 686, 712 , 806 A.2d 233 (2002).

Based on the Court of Appeals’s decision in Young, the circuit court in the instant matter denied appellant’s writ of prohibition and granted summary judgment in favor of the Department, stating: Under [the] Supreme Court’s decision, as I read it, in Smith [v. Doe ], 538 U.S. 84 [ 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003) ], from which the Supreme Court has not departed, there is no ex post facto violation here under the Federal Constitution. And ... unless the Court of Appeals changes its jurisprudence, as Judge Raker articulated in Young, 370 Md. 686 [ 806 A.2d 233 ], there is no ex ⁵² post facto violation under the Maryland State Constitution [or] the Declaration of Rights. (Emphasis added). After the circuit court’s ruling, the Court of Appeals considered an ex post facto challenge to the 2009 and 2010 amendments to MSORA in Doe I, 430 Md. at 537 , 62 A.3d 123 .

The pertinent facts in Doe I are as follows: In 2006, Doe pled guilty to and was convicted in the Circuit Court for Washington County of a single count of child sexual abuse arising out of an incident involving inappropriate contact with a thirteen-year-old student that occurred during the 1983-84 school year when Doe was a junior high school teacher. Doe was sentenced to ten years incarceration, with all but four and one half years suspended, and three years supervised probation upon his release. Although Doe’s plea agreement did not address registration as a sex offender as one of the conditions of probation, Doe was ordered at sentencing to “register as a child sex offender.” He was also ordered to pay a $500 fine. Following his sentencing, Doe filed a Motion to Correct an Illegal Sentence challenging both the fine and the requirement that he register as a child sex offender.

The Circuit Court agreed with Doe and issued an order striking the fine and the registration requirement. Doe was released from prison in December 2008. On October 1, 2009, Doe’s probation officer directed him to register as a child sex offender. Doe maintained that he did not agree with the requirement, but, against the advice of counsel, he registered as a child sex offender in early October 2009.

Doe II, 439 Md. at 208 , 94 A.3d 791 . The requirement that Doe register as a sex offender was a result of the 2009 amendment to MSORA retroactively requiring offenders who were convicted on or after October 1, 1995, but committed a sexual offense before that date, to register for the first time. Doe I, 430 Md. at 540 , 62 A.3d 123 . In October 2009, Doe brought a declaratory judgment suit in the circuit court, seeking an order that he was not required to ⁵³ register as a sex offender.

Id. at 541, 62 A.3d 123 . Doe argued that a registration requirement would make his plea invalid as involuntary, because he was not informed that he would have to register as a sex offender when he entered into the plea agreement in 2006. Id. The State argued that the requirement did not violate the prohibition against ex post facto laws.

Id. at 541-42, 62 A.3d 123 . The trial court agreed with the State and ordered that Doe “shall not be removed from the sex offender registry.” Id. at 542, 62 A.3d 123 (footnote omitted). After this Court affirmed the circuit court, the Court of Appeals granted certiorari and reversed our decision. Id. at 542, 569, 62 A.3d 123 .

In a plurality opinion, the Court of Appeals held that “requiring [Doe] to register as a result of the 2009 and 2010 amendments violates the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights.” Id. at 537, 62 A.3d 123 ; see also Doe II, 439 Md. at 206 , 94 A.3d 791 . The three-judge plurality explained that “in many contexts,” the Maryland Declaration of Rights offers broader protections than the United States Constitution. Doe I, 430 Md. at 547-49 , 62 A.3d 123 . The plurality further determined that ex post facto claims under Article 17 should be analyzed by using the “disadvantage” standard, under which “any law passed after the commission of an offense which ... in relation to that offense, or its consequences, alters the situation of a party to his [or her] disadvantage” violates Article 17.

Id. at 551-52, 559, 62 A.3d 123 (emphasis and alterations in original) (citations omitted). Specifically, under the disadvantage standard, “Article 17 prohibits the retroactive application of laws that have the effect on an offender that is the equivalent of imposing a new criminal sanction or punishment.” Id. at 561, 62 A.3d 123 . The plurality determined that requiring Doe to register had “essentially the same effect” as placing him on probation, that “probation is a form of a criminal sanction,” and that “applying the statute to [Doe] effectively imposes on him an additional criminal sanction” for a crime committed in the 1980s. Id. at 561-62, 62 A.3d 123 .

The plurality also concluded that the ⁵⁴ dissemination of Doe’s information pursuant to MSORA was “tantamount to the historical punishment of shaming,” and thus imposed an additional sanction for Doe’s crime. Id. at 564, 568, 62 A.3d 123 . Therefore, according to the plurality, the retroactive application of MSORA to Doe, which had the effect of imposing the additional sanction of probation and shaming, violated the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights. Id. at 568, 62 A.3d 123 .

Judge McDonald (joined by Judge Adkins) concurred with the plurality’s conclusion that the statute violated Article 17, but, in contrast to the plurality, read Article 17 in pari materia with Article I, § 10 of the United States Constitution. See id. at 577-78, 62 A.3d 123 (McDonald, J., concurring). Judge McDonald’s concurrence stated further that “the cumulative effect of [the] 2009 and 2010 amendments of the State’s sex offender registration law took that law across the line from civil regulation to an element of the punishment of offenders.” Id. at 578, 62 A.3d 123 . Although his concurrence did not expressly state the test that was used, both the language of the concurrence and the two law review articles cited therein lead us to conclude that Judge McDonald analyzed the issue under the “intent-effects test.” See id.

(citing Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality in Sex Offender Registration Laws, 63 Hastings L.J. 1071 , 1107-22 (2012); Corey Rayburn Yung, One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions, 46 Harv. J. Legis. 369, 386-400 (2009)). The United States Supreme Court explained the “intent-effects” test in Smith v. Doe: We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361 , 117 S.Ct. 2072 , 138 L.Ed.2d 501 (1997). 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 ⁵⁵ 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.’ ” Ibid. (quoting United States v. Ward, 448 U.S. 242, 248-49 , 100 S.Ct. 2636 , 65 L.Ed.2d 742 (1980)). 538 U.S. 84, 92 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003). Stated another way, the “intent-effects” test requires a reviewing court to engage in a two-part inquiry: “first, the court must consider the legislative intent of the statute; second, even if the statute’s stated purpose is non-punitive, the court must assess whether its effect overrides the legislative purpose to render the statute punitive.” Doe, 430 Md. at 570 , 62 A.3d 123 (Harrell, J., concurring) (footnote and citation omitted). Therefore, by declaring that the 2009 and 2010 amendments “took that law across the line from civil regulation to an element of the punishment of offenders,” Judge McDonald’s concurring opinion found a violation of the State and federal ex post facto clauses under the “intent-effects” test.

Id. at 578, 62 A.3d 123 (McDonald, J., concurring). Judge Harrell, writing separately, concurred in the judgment that Doe was entitled to relief, because his 2006 plea agreement “d[id] not indicate that sex offender registration was a term” of the agreement. Id. at 576, 62 A.3d 123 (Harrell, J., concurring). Judge Harrell, however, would have denied Doe’s ex post facto claims under the “intent-effects” test established in Smith v. Doe, 538 U.S. at 84 , 123 S.Ct. 1140 .

See Doe I, 430 Md. at 569-73 , 62 A.3d 123 . Lastly, Judge Barbera (now Chief Judge) dissented and, using the “intent-effects” test, would have upheld the 2009 and 2010 amendments to MSORA under both the State and federal constitutions. See id. at 578-79, 62 A.3d 123 (Barbera, J., dissenting). Although the Court ultimately held that “the retroactive application to Doe of Maryland’s sex offender registration statute violated Article 17 of the Maryland Declaration of Rights,” Doe II, 439 Md. at 210 , 94 A.3d 791 the divided Court did not reach a holding on whether to apply the “disadvan ⁵⁶ tage” standard or the “intent-effects” test to future ex post facto challenges to MSORA.

C. Doe II In Doe II , the Court of Appeals revisited Doe I for the purpose of addressing a subject that it had expressly left open in the plurality opinion of Doe I. Doe II, 439 Md. at 206-07 , 94 A.3d 791 . The subject was a sex offender’s