Rogers v. State

Jimmie Rogers v. State of Maryland, et al., No. 32, September Term, 2019 MARYLAND SEX OFFENDER REGISTRY – REGISTRATION REQUIREMENTS – MD. CODE ANN., CRIM. PROC. (2001, 2008 REPL.

VOL., 2016 SUPP.) § 11-701(p)(2) – HUMAN TRAFFICKING – MD. CODE ANN., CRIM. LAW (2002, 2012 REPL. VOL., 2016 SUPP.) § 11-303(a) – VICTIM’S AGE – STANDARD OF PROOF – Court of Appeals held that, where petitioner pled guilty to violating Md. Code Ann., Crim.

Law (2002, 2012 Repl. Vol., 2016 Supp.) § 11-303(a), offense whose elements did not require proof of victim’s age, and where no proof of victim’s age was established at plea proceeding, petitioner was not required to register as Tier II sex offender pursuant to Md. Code. Ann., Crim. Proc.

(2001, 2008 Repl. Vol., 2016 Supp.) §§ 11-701(p)(2) and 11-704(a)(2). Department of Public Safety and Correctional Services lacked authority to determine on its own initiative that victim was minor and to order sex offender registration. No statute or regulation gives Department authority to make factual determination as to victim’s age for purposes of requiring registration as Tier II sex offender.

Court of Appeals concluded that determination of fact necessary for placement on Maryland Sex Offender Registry—such as victim’s age—must be made by trier of fact beyond reasonable doubt during adjudicatory phase of criminal proceeding. Circuit Court for Anne Arundel County Case No. C-02-CV-17-000296 Argued: January 10, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 32 September Term, 2019 ______________________________________ JIMMIE ROGERS v. STATE OF MARYLAND, ET AL. ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. Barbera, C.J., Hotten and Biran, JJ., dissent. ______________________________________ Filed: March 31, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-03-31 12:42-04:00 Suzanne C. Johnson, Clerk On October 20, 2015, in the Circuit Court for Anne Arundel County, Jimmie Rogers, Petitioner, pled guilty to one count of human trafficking under Md. Code Ann., Crim. Law (2002, 2012 Repl.

Vol., 2016 Supp.) (“CR”) § 11-303(a).1 The age of the victim was not established during the statement of facts at the plea proceeding. Rogers was sentenced pursuant to a plea agreement that did not include registration as a sex offender as a requirement. Later, Rogers was notified by the Department of Public Safety and Correctional Services (“the Department”), Respondent, that he was required to register as a Tier II sex offender with the Maryland Sex Offender Registry (“the Registry”) for a period of twenty-five years. Rogers registered as instructed but filed in the circuit court a complaint for declaratory judgment against the State of Maryland, Respondent, and the Department (together, “the State”), seeking a declaration that he was not required to register as a Tier II sex offender, and an order compelling the Department to remove him from the Registry.

The circuit court granted Rogers’s motion for summary judgment on the ground that the victim’s age had not been proven. The circuit court issued an order declaring that Rogers was not required to register as a Tier II sex offender and requiring the State to remove Rogers’s name from the Registry. The State appealed. The Court of Special Appeals reversed and remanded the case to the circuit court for a determination of the victim’s age by a preponderance of the evidence. 1 Effective October 1, 2019, CR § 11-303 was renumbered as Crim.

Law (2002, 2012 Repl. Vol., 2019 Supp.) § 3-1102. See 2019 Md. Laws 472 -73, 476-77, 488 (Vol. I, Ch. 21, H.B. 871); 2019 Md. Laws 488 , 492-93, 504 (Vol.

I, Ch. 22, S.B. 690). We refer to CR § 11-303, the version of the statute that was in effect at the time of the proceedings in this case. A conviction under CR § 11-303(a) does not require that the victim be a minor. A violation of CR § 11-303(a) is a misdemeanor that is punishable by up to ten years’ imprisonment, a fine not exceeding $5,000, or both.

See CR § 11-303(c)(1)(i). Under CR § 11-303(a)(1), among other things, “[a] person may not knowingly: (i) take or cause another to be taken to any place for prostitution; (ii) place, caused to be placed, or harbor another in any place for prostitution; [or] (iii) persuade, induce, entice, or encourage another to be taken to or placed in any place for prostitution[.]” (Paragraph breaks omitted). The age of the victim is not a necessary element of the offense; stated otherwise, no proof of the victim’s age is needed for a conviction under CR § 11-303(a). By contrast, CR § 11-303(b)(1) expressly prohibits a violation of subsection (a) involving a victim who is a minor and such a violation constitutes a felony that is punishable by up to twenty-five years’ imprisonment, a fine not exceeding $15,000, or both.

See CR § 11-303(c)(2). Pursuant to Md. Code Ann., Crim. Proc. (2001, 2008 Repl.

Vol., 2016 Supp.) (“CP”) § 11-701(p)(2),2 a Tier II sex offender is described, in pertinent part, as a person convicted of “conspiring to commit, attempting to commit, or committing a violation of [CR] § 11-303”—without reference to a specific subsection of that statute— “if the intended prostitute or victim is a minor[.]” Pursuant to CP § 11-704(a)(2), a Tier II sex offender is required to register with the Registry. Against this backdrop, we consider whether a person, like Rogers, who is convicted of human trafficking under CR § 11-303(a) is required to register as a Tier II sex offender 2 This is the version of the statute in effect at the time of the proceedings in this case. -2- with the Registry where the victim’s age was not established during a guilty plea proceeding. We must first ascertain whether the Department is authorized to make a determination after a person is convicted and sentenced as to whether the victim was a minor at the time of the offense and order the person to register. We also address the point at which the determination is to be made and the required standard of proof.

We hold that, where Rogers pled guilty to violating CR § 11-303(a), an offense whose elements did not require proof of the victim’s age, and where no proof of the victim’s age was established at the plea proceeding, Rogers was not required to register as a Tier II sex offender pursuant to CP §§ 11-701(p)(2) and 11-704(a)(2), and the Department lacked the authority to determine that the victim was a minor and to order registration. No statute or regulation gives the Department the authority to make a factual determination as to the victim’s age for purposes of determining that registration as a Tier II sex offender is required. We conclude that determination of a fact necessary for placement on the Registry—e.g., the victim’s age—must be made by the trier of fact beyond a reasonable doubt during the adjudicatory phase of the criminal proceeding prior to sentencing. We reverse the judgment of the Court of Special Appeals and conclude that the circuit court properly granted summary judgment and declaratory judgment in favor of Rogers.

BACKGROUND Criminal Case Rogers was charged in the District Court of Maryland, sitting in Anne Arundel County, with several counts of human trafficking of a minor and prostitution arising out of an incident that occurred at a Red Roof Inn. In a sworn Statement of Charges, a law -3- enforcement officer identified the victim as “a juvenile” and “a minor[.]” (Capitalization omitted). Subsequently, Rogers was charged by indictment in the circuit court with five counts of human trafficking of a minor in violation of CR § 11-303(b) and two counts of prostitution in violation of CR § 11-306. Rogers decided to plead guilty.

On October 20, 2015, at the start of Rogers’s plea proceeding, as part of a plea agreement, Count Five of the indictment was amended from alleging that Rogers had trafficked a minor victim in violation of CR § 11-303(b) to allege human trafficking generally in violation of CR § 11-303(a). Rogers pled guilty to the amended Count Five and the State entered a nolle prosequi on the remaining charges. The prosecutor read the following statement of facts into the record: [O]n April 3rd of 2015[,] Trooper [C.G. Heid] of the Maryland State Police . . . was working in an undercover capacity . . . actively looking for a missing young woman. . . . He had received word as part of a task force that he’s on that she was missing and may be involved in prostitution against her will.

He found an ad in the Backpage ads, . . . which advertise for prostitution. And he called that number. He would have told you in his training, knowledge, and experience that in the Backpage ads they are advertising sex in exchange for money. And this ad had all of the hallmarks of those types of ads.

And he would have told you in his training, knowledge, and experience he thought that perhaps this was the missing girl. He called the number, . . . and . . . there was a voice on the other end. . . . The subject that answered the call stated, “Hello.” The voice clearly sounded like a man trying to disguise his voice to be that of a woman, according to the Trooper. The Trooper asked that person on the other end of the line if that person was working today, and the person said, “Yes.” The person asked if the Trooper wanted to come see her today, saying that she was a woman.

And the Trooper asked if he could come see her around 9:00 a.m., she said, “Yes.” -4- Based on the photos in the ad, it appeared that the hotel was the Red Roof Inn. The Trooper is familiar with that hotel, and . . . there are a lot of people engaging in prostitution out of that hotel, the Trooper would have told you in his training, knowledge, and experience. They actually utilized surveillance around the motel in an attempt to locate another person who might be assisting the young woman who was in the ad. They know that through their training, knowledge, and experience that that is often the case that a pimp will be in the area, surveilling the area, leaving the hotel room just before a date, [with] a person coming to participate in the prostitution.

Comes to the hotel room, and then the person who is supervising that prostitution will then come immediately thereafter. They did go to that area, . . . which is located in Anne Arundel County, Maryland, at the Red Roof Inn. They surveilled from the inn next door, which is the Hampton Inn, they saw a person who would be identified as . . . Rogers[] walk to a room on the odd numbered side of the motel, two minutes later he came back to the vehicle that he had previously been in, and pulled away.

And that was right at the time that they were coming for the 9:00 date. At 9:22, they got a text from that same phone number that the Trooper had called previously, indicating that he should come to the Red Roof Inn . . . where they were already there surveilling. At 9:29 hours, he called back and the voice [that] answered . . . was clearly a female this time, same phone number but clearly a woman, a young woman, and certainly not the same person he had spoken to earlier. The woman said that she would text the room, and at 9:31 she texted room 333.

The Trooper arrived at room 333, knocked on the door. A young woman looked through the window and then came and opened the door, invited the Trooper in. Several Troopers then entered the room, identified themselves as police officers, and then spoke with the young woman who, in fact, was the missing girl. . . . She was very nervous, constantly looking towards the curtain and the door.

She said that her boss, those were her words, her boss would probably be coming back to the motel to keep an eye on her. She said that she was exchanging sex for money at his behest. She said that she was doing it because he was giving her drugs that she needed at that time, that she was addicted to drugs. . . . She said that her boss rented the room for her.

And, in fact, we would have produced evidence that [Rogers] did, in fact, rent room 333 [] for -5- several days, indicating that one person was staying there, and that was [the victim]. [S]he said he was currently holding $400 for her of her proceeds that she had made through prostitution. And by holding it later became clear that she meant he was not permitting her to have the proceeds of the prostitution. He was keeping them for himself. But she explained at that time that . . . their arrangement was that he was going to keep half of what she earned after each date.

That he was providing security for her . . . and helps when she makes the dates. She said that he posts her ads on the Backpage magazine on his phone, and then also takes her phone and uses that as well. She said that she felt pressure and . . . makes the dates because he yelled at her to do that. She indicate[d] that she had sexual intercourse with men for money and that she had done that over the past couple of days . . . in that very hotel room.

She said that she did confirm that it was [Rogers] who had answered the phone when the Trooper had called and pretended to be her and set up the date. She was subsequently taken into custody . . . and provided a very detailed recorded statement with more information with regard to the[] events. But suffice [it] to say, . . . [Rogers] was benefiting from the proceeds of prostitution, which he had convinced [the victim] to be involved [] in Anne Arundel County. The victim’s age was not included in the statement of facts or established during the plea proceeding.

The circuit court sentenced Rogers to ten years of imprisonment, with all but eighteen months suspended, with credit for 202 days served, followed by two years of supervised probation. After Rogers’s release from prison, the Department advised him that he was required to register as a Tier II sex offender for a period of twenty-five years. On October 4, 2016, Rogers completed his initial registration. -6- Complaint for Declaratory Judgment On January 31, 2017, in the circuit court, Rogers filed a Complaint for Declaratory Judgment against the State, seeking a declaration that his conviction did not require him to register as a Tier II sex offender and an order compelling the Department to remove him from the Registry. On September 8, 2017, the State filed a motion for summary judgment, arguing that, because Rogers had been convicted under CR § 11-303 and had never disputed that the victim was a minor, the plain language of CP § 11-701(p)(2) required him to register as a Tier II sex offender.

The State attached to the motion an affidavit from Allison Gilford, the Supervisor and custodian of records for the Registry, who averred that the Registry’s file on Rogers and court records demonstrated that the guilty plea arose from charges that had been filed against Rogers for “participating in the prostitution of a minor.” Attached as exhibits to Gilford’s affidavit were: (1) the Criminal Hearing Sheet indicating that Rogers pled guilty to Count Five after it was amended to “read CR [§] 11-303(a) rather than CR [§] 11-303(b)”; (2) the Statement of Charges prepared by a Maryland State Trooper referring to the victim as “a juvenile” and “a minor” (capitalization omitted); and (3) the indictment charging Rogers with five counts of human trafficking of a minor in violation of CR § 11-303(b). Rogers filed a motion for summary judgment and a response to the State’s motion for summary judgment, arguing that, because he had been convicted under CR § 11-303(a), not CR § 11-303(b), and because the State had failed to establish that the victim was a minor, he was not required to register as a Tier II sex offender under CP § 11-701(p)(2). -7- Rogers asserted that there was no evidence in the record that the victim of the charge to which he pled guilty was a minor or was even the same victim referenced in the other charges. The circuit court held a hearing on the cross-motions for summary judgment. The circuit court ruled from the bench, granting Rogers’s motion for summary judgment and denying the State’s motion for summary judgment.

The circuit court issued a “Declaratory Judgment and Order,” stating: DECLARED, ADJUDGED AND DECREED, that [] Rogers is not required to register as a Tier II sex offender on the basis of his conviction in State of Maryland vs. Jimmie Junior Rogers . . . and accordingly, it is hereby: ORDERED, that (1) [] Rogers shall not be required, ordered, or directed to register as a Tier II sex offender on the basis of his conviction in State of Maryland vs. Jimmie Junior Rogers . . . and, (2) Defendants State of Maryland and [] Department [], and any other agency charged with administering such registry, shall remove [] Rogers’[s] name from any and all sex offender registries on which it appears as a result of his conviction in State of Maryland v. Jimmie Junior Rogers[.] (Cleaned up). The State filed a notice of appeal. Opinion of the Court of Special Appeals On March 28, 2019, in a reported opinion, the Court of Special Appeals reversed the circuit court’s judgment and remanded the case to the circuit court for a hearing on the age of the victim, to be proven by a preponderance of the evidence. See State v. Rogers, 240 Md. App. 360, 362, 370 , 205 A.3d 36, 38, 42 (2019).

The Court of Special Appeals rejected Rogers’s contention that his conviction under CR § 11-303(a) did not require him to register as a sex offender, and held that, under CP § 11-701(p)(2), individuals convicted -8- of violating CR § 11-303 are required to register as Tier II sex offenders if the offense is perpetrated against a minor. See id. at 366, 205 A.3d at 40 . According to the Court of Special Appeals, “[t]he registration statute does not differentiate between convictions under CR § 11-303(b), a crime for which the victim’s age is an element, and CR § 11- 303(a), for which the victim’s age is not—a conviction under either sub[section] triggers tier II status if the victim is a minor.” Id. at 366-67, 205 A.3d at 40 . The Court of Special Appeals reasoned that, because the victim’s age was not an element of the crime of which Rogers was convicted, age did not need to be proven beyond a reasonable doubt.

See id. at 366 , 205 A.3d at 40 . The Court of Special Appeals stated that sex offender registration is not punishment, and, as such, is not “subject to the evidentiary [standard] of proof beyond a reasonable doubt.” Id. at 367 , 205 A.3d at 40 . The Court of Special Appeals remanded the case for the circuit court to determine by a preponderance of the evidence whether the victim was a minor at the time of the offense and to determine whether Rogers was required to register as a Tier II sex offender under CP § 11-704. See id. at 370, 205 A.3d at 42 .

Petition for a Writ of Certiorari On May 15, 2019, Rogers petitioned for a writ of certiorari, raising the following two issues: 1. When [] Rogers pled guilty to an offense under a statute requiring no proof of the victim’s age and no proof of age is provided, does the Department [] have the authority to make an ex parte finding of fact that the victim is a minor and thus, order [] Rogers to register as a tier II offender? 2. Assuming arguendo that the Department [] has the authority to make ex parte findings of fact regarding the age of the victim, what level of proof is required and who may make the ultimate determination of fact? -9- On May 29, 2019, the State filed an answer to the petition for a writ of certiorari and a conditional cross-petition, raising the following three issues: 1. Did the Court of Special Appeals correctly apply settled law when it reversed the circuit court’s order granting [] Rogers’s motion for summary judgment, where [] Rogers failed to demonstrate, as a matter of law, that he is not required to register as a sex offender based upon his conviction for human trafficking in violation of [CR] § 11-303? 2.

Is [] Rogers’s separation-of-powers argument both unpreserved and meritless? 3. Is the State entitled to summary judgment where [] Rogers did not genuinely dispute the State’s evidence proving that the victim of [] Rogers[’s] human-trafficking offense was a minor, thus establishing as a matter of law that [] Rogers was required to register as a sex offender based upon his conviction of human trafficking in violation of [CR] § 11-303? On August 26, 2019, this Court granted the petition and the conditional cross- petition. See Rogers v. State, 465 Md. 666 , 214 A.3d 1195 (2019).

STANDARD OF REVIEW Summary judgment is appropriate where “the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Kennedy Krieger Inst. v. Partlow, 460 Md. 607, 632 , 191 A.3d 425, 440 (2018) (citation omitted). “[W]hether a trial court’s grant of summary judgment was proper is a question of law subject to de novo review on appeal[,]” and “we independently review the record to determine whether the parties properly generated a dispute of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law.” Id. at 632 , 191 A.3d at 440 (citation omitted). “We review the record in the light most favorable to the nonmoving party and construe any - 10 - reasonable inferences that may be drawn from the facts against the moving party.” Id. at 632-33 , 191 A.3d at 440 (citation omitted). “The standard of review for a declaratory judgment entered as a result of the grant of a motion for summary judgment is whether that declaration was correct as a matter of law.” Catalyst Health Sols., Inc. v. Magill, 414 Md. 457, 471 , 995 A.2d 960, 968 (2010) (cleaned up). Where an issue surrounding a declaratory judgment order involves an interpretation and application of Maryland law, “we must determine whether the [trial] court’s conclusions are legally correct under a de novo standard of review.” Dep’t of Pub. Safety and Corr. Servs. v. Doe, 439 Md. 201, 219 , 94 A.3d 791, 801 (2014) (“Doe II”) (cleaned up).

Recently, in Sabisch v. Moyer, 466 Md. 327, 350 , 220 A.3d 272 , 285 (2019), we set forth the following rules of statutory construction: The cardinal rule of statutory construction is to ascertain and effectuate the intent of the General Assembly. As this Court has explained, to determine that purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning. We do so on the tacit theory that the General Assembly is presumed to have meant what it said and said what it meant. When the statutory language is clear, we need not look beyond the statutory language to determine the General Assembly’s intent.

If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. In addition, we neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning. If there is no ambiguity in the language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends. (Citation omitted). - 11 - DISCUSSION3 I. The Parties’ Contentions Rogers contends that, under the circumstances of this case—where he pled guilty to an offense not requiring proof of the victim’s age and where no proof of the victim’s age was established at the plea proceeding—the Department lacked the authority to determine that the victim was a minor and to order him to register as a Tier II sex offender.

Rogers argues that a conviction for human trafficking under CR § 11-303(a) does not trigger the Registry’s requirements for Tier II sex offender registration. Rogers asserts that nothing in the sex offender registry statutes authorizes the Department or the Registry’s manager to evaluate evidence and determine facts beyond the record of conviction. The State responds that, under CP § 11-701(p)(2)’s plain language, sex offender registration is required where a person is convicted of violating CR § 11-303 and the victim is a minor. The State argues that the absence of proof of the victim’s age from the guilty plea record did not nullify Rogers’s obligation to register as a Tier II sex offender and the Department had the authority to determine the victim’s age where that fact had not been determined in the underlying criminal proceeding.

The State maintains that the Department 3 We consolidate the questions presented by the parties into two issues—the first addressing whether registration is required under the circumstances of this case and who may make a determination of the victim’s age, the second addressing at what point a determination of the victim’s age must be made and what standard of proof is required. To the extent that the State raises a question as to whether Rogers’s separation of powers argument is preserved, Rogers’s assertion that the Department’s action violated the separation of powers doctrine is not a basis for the holding in this case. As such, we need not address whether the issue is preserved. - 12 - properly determined that the victim was a minor, and asserts that, in the civil proceeding, Rogers did not genuinely dispute that finding. Relevant Statutes and Regulations At all relevant times, CR § 11-303 provided in pertinent part: (a)(1) A person may not knowingly: (i) take or cause another to be taken to any place for prostitution; (ii) place, cause to be placed, or harbor another in any place for prostitution; (iii) persuade, induce, entice, or encourage another to be taken to or placed in any place for prostitution; (iv) receive consideration to procure for or place in a house of prostitution or elsewhere another with the intent of causing the other to engage in prostitution or assignation; (v) engage in a device, scheme, or continuing course of conduct intended to cause another to believe that if the other did not take part in a sexually explicit performance, the other or a third person would suffer physical restraint or serious physical harm; or (vi) destroy, conceal, remove, confiscate, or possess an actual or purported passport, immigration document, or government identification document of another while otherwise violating or attempting to violate this subsection. ...

(b)(1) A person may not violate subsection (a) of this section involving a victim who is a minor. ... (c)(1)(i) Except as provided in paragraph (2) of this subsection, a person who violates subsection (a) of this section is guilty of the misdemeanor of human trafficking and on conviction is subject to imprisonment not exceeding 10 - 13 - years or a fine not exceeding $5,000 or both. (ii) A person who violates subsection (a) of this section is subject to § 5-106(b) of the Courts Article. (2) A person who violates subsection (b) of this section is guilty of the felony of human trafficking and on conviction is subject to imprisonment not exceeding 25 years or a fine not exceeding $15,000 or both.

A predecessor of CR § 11-303 was added to the Criminal Law Article of the Code of Maryland in 2002 as part of the creation of the Criminal Law Article; previously, the section was Art. 27, § 428. See 2002 Md. Laws 197 , 200, 779 (Vol. I, Ch. 26, H.B. 11). At that time, Md. Code Ann., Crim.

Law (2002) § 11-303 did not contain a provision concerning conduct in which the victim was a minor, and simply provided that a person who violated the section was guilty of the misdemeanor of pandering. See id. at 779. In 2007, Md. Code Ann., Crim. Law (2002, 2006 Supp.) § 11-303 was amended to change the term “pandering” to “human trafficking,” to add a new subsection (b) to provide that “[a] person may not violate subsection (a) of this section involving a victim who is a minor[,]” and to make a violation of subsection (b) involving a minor victim a felony that is subject to a higher maximum sentence. 2007 Md. Laws 2144 -45, 2151-52 (Vol.

III, Ch. 340, S.B. 606).4 4 In 2009, Md. Code Ann., Crim. Law (2002, 2008 Supp.) § 11-303(a)(1)(iii) was amended from “[a] person may not knowingly[] . . . persuade or encourage by threat or promise another to be taken to or placed in any place for prostitution” to provide that “[a] person may not knowingly[] . . . persuade, induce, entice, or encourage another to be taken to or placed in any place for prostitution[.]” 2009 Md. Laws 722 -23 (Vol. I, Ch. 143, H.B. 542) (cleaned up). In 2010, Md. Code Ann., Crim.

Law (2002, 2009 Supp.) § 11-303(a)(1) was amended such that § 11-303(a)(1)(iv), (v), and (vi) appear as they did in CR § 11- 303(a)(1). See 2010 Md. Laws 3567 , 3569-70 (Vol. IV, Ch. 529, S.B. 261). The following - 14 - In 2013, Md. Code Ann., Crim.

Law (2002, 2012 Repl. Vol.) § 11-303 was amended to add a new subsection (f), which provided that “[i]t is not a defense to a prosecution under sub[paragraph] (b)(1) of this section that the person did not know the age of the victim.” 2013 Md. Laws 5592 -94 (Vol. VII, Ch. 653, H.B. 933) (cleaned up). From 2013 to 2019, the time period relevant here, CR § 11-303 remained unchanged.

Effective October 1, 2019, as part of the reorganization and amendment of certain provisions relating to sex trafficking and prostitution, CR § 11-303 was renumbered as Crim. Law (2002, 2012 Repl. Vol., 2019 Supp.) § 3-1102. See 2019 Md. Laws 472 -73, 476-77, 488 (Vol.

I, Ch. 21, H.B. 871); 2019 Md. Laws 488 , 492-93, 504 (Vol. I, Ch. 22, S.B. 690). Among other amendments, the term “human trafficking” was replaced with “sex trafficking[.]” 2019 Md. Laws 477 , 492-93 (cleaned up). CR § 11-303(a) and (b)(1) were renumbered as Md. Code Ann., Crim.

Law (2002, 2012 Repl. Vol., 2019 Supp.) § 3-1102(a) and (b)(1) without change. Id. at 476, 492. As to sex offender registration, at the relevant time, CP § 11-701(p)(2) defined a “Tier II sex offender” in pertinent part as “a person who has been convicted of[] . . . year, Md. Code Ann., Crim.

Law (2002, 2010 Supp.) § 11-303 was repealed and reenacted without amendments, and a new section was added to the Criminal Procedure Article to provide that a person who was convicted of prostitution under a different section of the Criminal Law Article could file a motion to vacate the judgment if, when the person committed the act or acts of prostitution, the person was acting under duress caused by an act of another committed in violation of the prohibition against human trafficking under § 11-303 of the Criminal Law Article or under federal law. 2011 Md. Laws 1016 -17, 1021 (Vol. II, Ch. 218, S.B. 327) (cleaned up). - 15 - conspiring to commit, attempting to commit, or committing a violation of [CR] § 11-303, § 11-305, or § 11-306 . . . if the intended prostitute or victim is a minor[.]” At that time, CR § 11-303 stated what is set forth above. CR § 11-305(a) concerned abduction of children under sixteen years of age. CR § 11-306 concerned prostitution, providing, among other things, that “[a] person may not knowingly[] engage in prostitution or assignation by any means[ or] keep, set up, occupy, maintain, or operate a building, structure, or conveyance for prostitution or assignation[.]” CR § 11-306(a)(1), (2) (paragraph breaks omitted).

When Md. Code Ann., Crim. Law (2002) § 11-303 was enacted, it did not contain a provision concerning conduct in which the victim was a minor—i.e., the provision that later was enacted as Md. Code Ann., Crim. Law (2002, 2007 Supp.) § 11-303(b)(1). A predecessor of CP § 11-701, which was added to the Criminal Procedure Article in 2001, defined an “offender” in pertinent part as a person “ordered by a court to register” and who had been convicted of violating any of the pandering statutes, including CR § 11-303’s predecessor (Art. 27, § 428) “if the intended prostitute [was] under the age of 18 years[.]” 2001 Md. Laws 76 , 380, 382 (Vol.

I, Ch. 10, S.B. 1) (cleaned up). Effective October 1, 2019, the references to the statutes in CP § 11-701(p)(2) were updated so that paragraph now provides that “‘Tier II sex offender’ means a person who has been convicted of[] . . . conspiring to commit, attempting to commit, or committing a violation of § 3-1102, § 3- 1103, § 11-303, § 11-305, § 11-306, or § 11-307 of the Criminal Law Article, if the intended prostitute or victim is a minor[.]” 2019 Md. Laws. 472, 474, 483, 488 (Vol. I, - 16 - Ch. 21, H.B. 871) (cleaned up).5 Pursuant to CP § 11-713(2), the Department must “keep a central registry of registrants[.]” Registrants are required to file registration statements containing, among other things, the registrant’s full name and all addresses and places where the registrant resides or habitually lives; the name and address of each of the registrant’s employers; a description of the crime of which the registrant was convicted; all identifying factors, including a physical description; information for any vehicle owned or regularly operated by the registrant and the locations where all vehicles are kept; and the registrant’s fingerprints and palm prints. See CP § 11-706(a).

Under CP § 11-717(a)(1), the Department is required to “make available to the public registration statements or information about registration statements.” The Department is required to post on the Internet: (1) a current listing of each registrant’s name and other identifying information; and (2) in plain language that can be understood without special knowledge of the criminal laws of the State, a factual description of the crime of the offender that is the basis for the registration, excluding details that would identify the victim. CP § 11-717(b). Members of the public are permitted to electronically transmit information about a registrant to the Department. See CP § 11-717(c)(1).

CP § 11-721(a) provides, among other things, that “[a] registrant may not knowingly fail to register, . . . or 5 We refer to the version of the statute that was in effect at the time of the underlying proceedings—CP § 11-701(p)(2)—and not the version of the statute that became effective last year. - 17 - knowingly provide false information of a material fact as required by this subtitle.” A first- time violation of CP § 11-721 constitutes a misdemeanor and a second or subsequent violation constitutes a felony. See CP § 11-721(b). CP § 11-720 provides that the Secretary shall adopt regulations to carry out the subtitle. To that end, Code of Maryland Regulations (“COMAR”) 12.06.01.01 to 12.06.01.18 set forth regulations related to the administration of sex offender registration.

COMAR 12.06.01.06B(1) provides that “[a] supervising authority shall establish procedures for[ o]btaining information required for the registration statement before [] its submission to the Sex Offender Registry Unit and to other agencies as required[.]” And, the Sex Offender Registry Unit is required to: (1) Maintain a central registry: (a) Initiated by receipt of registration statements; and (b) Updated by receipt of periodic registration documentation and notice of changes of registrant’s address or other status; (2) Determine if a registrant should be placed in an under investigation or absconder status; (3) Calculate terms of registration; and (4) Authorize termination of registration. COMAR 12.06.01.08A. Relevant Case Law In Doe II, 439 Md. at 237 , 94 A.3d at 812 , this Court explained that the Department’s Sex Offender Registry Unit “is in charge of the maintenance of all sex offender registration information for the State[, and p]ursuant to Maryland regulations, . . . has the authority to maintain Maryland’s central registry, as well as to manage and authorize termination of registration.” (Citation omitted). We stated that a trial court has - 18 - “the authority to compel the State to remove all of its records relating to [a person]’s registration as a sex offender[.]” Id. at 237 , 94 A.3d at 812 .

Maryland case law has recognized that the Registry is a conviction-based registration scheme. In In re Nick H., 224 Md. App. 668, 673, 700 , 123 A.3d 229, 232, 247-48 (2015), a case in which the trial court ordered a child respondent to register as a sex offender, the Court of Special Appeals observed: One aspect of [the Registry Act] that was important to the holding of a violation of the constitutional prohibition against ex post facto laws by the Court of Appeals . . . and by this Court . . . was the automatic imposition of the registration requirement because of a conviction for a particular sex crime. (Citations omitted). The Court of Special Appeals explained that the requirement of sex offender registration “appl[ies] automatically by operation of Maryland law.” Id. at 710 , 123 A.3d at 254 .

As to being required to register, in Cain v. State, 386 Md. 320, 322 , 325 n.6, 872 A.2d 681, 682 , 684 n.6 (2005), this Court considered whether a person convicted of second- degree assault was required to register as an “offender” under what was then Md. Code Ann., Crim. Proc. (2001) § 11-701(d)(7), which provided that “‘[o]ffender’ means a person who is ordered by a court to register under this subtitle and who[] has been convicted of a crime that involves conduct that by its nature is a sexual offense against a person under the age of 18 years[.]” We held “that a person convicted of second[-]degree assault [was] not required to register as an offender under the Registration of Offenders statute, unless the elements of the crime contain[ed] reference to a sexual offense against a minor.” Id. at 322, 872 A.2d at 682 . In that case, the defendant was charged with one count of child - 19 - abuse, two counts of third-degree sexual offense, and one count of second-degree assault, and he pled guilty to second-degree assault.

See id. at 322-23 , 872 A.2d at 682-83 . During the guilty plea proceeding, defense counsel advised that the prosecutor was going to ask that the defendant register under the registration statute and that counsel was going to argue against registration. See id. at 324 , 872 A.2d at 683 . At the sentencing proceeding, defense counsel asked that the defendant not be required to register as a sex offender.

See id. at 325 , 872 A.2d at 684 . The trial court ultimately ordered the defendant to register as an offender as a condition of his probation. See id. at 326 , 872 A.2d at 684-85 . The defendant filed a motion to correct an illegal sentence, arguing that the conviction for second-degree assault did not fall within the definition of “offender” set forth in Md. Code Ann., Crim.

Proc. (2001) § 11-701(d)(7). See id. at 326, 872 A.2d at 685 . The trial court denied the motion.

See id. at 327 , 872 A.2d at 685 . The defendant appealed, and, on our own initiative, this Court issued a writ of certiorari. See id. at 327 , 872 A.2d at 685 . This Court held that the defendant was not required to register as a sex offender, and reversed the trial court’s denial of the motion to correct an illegal sentence.

See id. at 327 , 872 A.2d at 685 . The defendant “argue[d] that the elements of the crime of assault for which he was convicted negate[d] the registration requirement, while the State assert[ed] that the underlying facts to which [he] pled guilty mandate[d] registration.” Id. at 329 , 872 A.2d at 686 . In deciding the issue, this Court extensively reviewed the history of Maryland’s offender registration laws and the Registry. See id. at 329-35 , 872 A.2d at 686-90 .

We observed that second-degree assault was “not one of the enumerated crimes in the statute requiring registration, such as rape, kidnaping, false imprisonment, or - 20 - violations of the child pornography statute.” Id. at 335 , 872 A.2d at 690 (citation omitted). We addressed the State’s contention that the defendant was “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).” Id. at 335 , 872 A.2d at 690 . We noted that the statute defined an offender as someone who was “‘convicted of a crime that involves conduct that by its nature is a sexual offense’ against a minor[,]” meaning that we needed to look at “the elements of the crime [of] which [the defendant was] convicted” to determine whether registration was required. Id. at 336 , 872 A.2d at 690 (emphasis in original).

Looking at the elements of second-degree assault, of which the defendant was convicted, we observed that the offense did not contain references to a sexual offense against a minor, and instead consisted of “the common[-]law offenses of assault, assault and battery, and battery, unless aggravated to the greater offense of first[-]degree assault by the use of a firearm or intent to cause serious physical injury[,]” which did not “contemplate conduct that by its nature involves a sexual offense.” Id. at 338 , 872 A.2d at 691-92 (cleaned up). We determined that, to qualify as an offender under the statute at issue, the statute “require[d] that sexual conduct that involve[d] an underage person [] be presented within the crime charged and which the person [stood] convicted.” Id. at 338 , 872 A.2d at 692 . In our view, “[t]o hold otherwise would expose individuals to possible registration that have been convicted of crimes that do not include elements related to sexual conduct with a minor[.]” Id. at 338 , 872 A.2d at 692 . We concluded that the trial court erred in denying the motion to correct an illegal sentence and we ordered the trial court to vacate the - 21 - condition of probation requiring the defendant to register as an offender.

See id. at 340 , 872 A.2d at 693 . We explained: [T]he trial [court] acknowledged that [the defendant] had agreed to plead guilty to second[-]degree assault, which the [trial court] described as “unpermitted touching.” The State entered a nolle prosequi on the other charges against [the defendant], relating to child abuse and a sexual offense which left only the elements of second[-]degree assault, i.e.[,] the unlawful application of force to another person, remaining without implication of sexual conduct involving a minor. Id. at 340 , 872 A.2d at 693 . In State v. Duran, 407 Md. 532, 554 , 967 A.2d 184, 197 (2009), a case addressing the same statutory provision as Cain, among other things, this Court held “that indecent exposure is not a crime that by its nature is a sexual offense” and that the defendant, who was convicted of indecent exposure, was “not required to register as a[n] ‘offender’ under” Md. Code Ann., Crim.

Proc. (2001, 2006 Supp.) § 11-701(d)(7). In Duran, 407 Md. at 534 , 967 A.2d at 185 , the defendant exposed himself to girls of middle school age on three occasions and he was indicted on four counts of indecent exposure. The defendant pled guilty to one count of indecent exposure in each of three cases.

See id. at 534, 967 A.2d at 185 . At the sentencing proceeding, the State requested, and the trial court ordered, that the defendant register as a sex offender. See id. at 534 , 967 A.2d at 185 . The defendant appealed, and the Court of Special Appeals vacated the condition of probation requiring registration, concluding that “the elements of the crime of indecent exposure ‘do not contain reference to a sexual offense against a minor,’” and thus “registration was outside the scope of the plea agreement.” Id. at 534 , 967 A.2d at 185 (citation omitted).

On review, we observed that Md. Code Ann., Crim. Proc. (2001, 2006 Supp.) § 11- - 22 - 704(a) required that “an offender” register with their supervising authority, and that Md. Code Ann., Crim. Proc.

(2001, 2006 Supp.) § 11-701(d) defined an offender “as a person who has committed an enumerated offense or who has been convicted of a crime that involves conduct that by its nature is a sexual offense against a person under the age of 18 years[.]” Id. at 547-48, 967 A.2d at 192-93 (cleaned up). Because indecent exposure was not an enumerated offense, we addressed whether it was a crime that by its nature was a sexual offense. See id. at 549 , 967 A.2d at 193-94 . Tracing the historical basis of the crime, we concluded that “indecent exposure is not in and of itself sexual in nature, because the lewdness element incorporates conduct that is not sexual, in addition to that which may be sexual.” Id. at 553 , 967 A.2d at 196 .

In short, we determined that “neither this Court’s interpretation of the common[-]law indecent exposure nor any statute requires a sexual component.” Id. at 554 , 967 A.2d at 197 . We rejected the State’s argument that the appropriate remedy was to vacate the defendant’s plea instead of striking the registration condition of probation. See id. at 555 , 967 A.2d at 197 . We explained that we disagreed “because the trial court had no authority under the statute to require [the defendant] to register and the registration condition was not integral to the plea agreement; it was not even a subject of negotiation.” Id. at 555 , 967 A.2d at 197-98 .

Thus, the appropriate remedy was to strike the condition of probation that the defendant register as a sex offender. See id. at 556 , 967 A.2d at 198 . Analysis Here, we hold that, where Rogers pled guilty to violating CR § 11-303(a), an offense whose elements do not require proof of the victim’s age, and where no proof of the victim’s - 23 - age was established at the plea proceeding, Rogers was not required to register as a Tier II sex offender pursuant to CP §§ 11-701(p)(2) and 11-704(a)(2). The Department lacked the authority to determine on its own initiative that the victim was a minor and to order registration.

No statute or regulation gives the Department the authority to make a factual determination as to the victim’s age and to require that an individual register as a Tier II sex offender. We begin by examining the plain language of the relevant statutes. Indisputably, CR § 11-303(a) does not mention the victim’s age. CR § 11-303(a) prohibits, among other things, the knowing taking or causing of someone to be taken to any place for prostitution, harboring someone in a place for prostitution, and persuading, inducing, enticing, or encouraging someone to be taken to any place for prostitution.

CR § 11-303(a) criminalizes human trafficking, and is a misdemeanor that carries a maximum sentence of ten years’ imprisonment, a $5,000 fine, or both. See CR § 11-303(c)(1)(i). CR § 11-303(a) does not contain any reference to the victim’s age whatsoever. By contrast, CR § 11- 303(b)(1), a more serious offense, specifically prohibits violation of subsection (a) involving a victim who is a minor.

CR § 11-303(b)(1) expressly forbids human trafficking of children. That offense is a felony with a maximum sentence of twenty-five years’ imprisonment, a $15,000 fine, or both. See CR § 11-303(c)(2). CP § 11-701(p)(2) defines a “Tier II sex offender” as a person who has been convicted of conspiring to commit, attempting to commit, or committing a violation of CR § 11-303 where “the intended prostitute or victim is a minor[.]” Examining the plain language of CP § 11-701(p)(2) leads to the conclusion that a person is a Tier II sex offender - 24 - and required to register pursuant to CP § 11-704(a)(2) where two conditions are satisfied: (1) the person is convicted of violating CR § 11-303; and (2) the intended prostitute or victim is a minor.

CP § 11-701(p)(2) does not distinguish between convictions under CR § 11-303(a) and CR § 11-303(b)(1), and it appears that a conviction under either provision may result in a requirement to register if the victim is a minor. We agree with the State that CP § 11-701(p)(2)’s definition of a Tier II sex offender applies to someone who is convicted of violating CR § 11-303(a) where the intended prostitute or victim is a minor. Otherwise, the language “if the intended prostitute or victim is a minor” would be superfluous, because a conviction under CR § 11-303(b)(1), by its very definition, will always involve a victim who is a minor. Put differently, the language in CP § 11-701(p)(2) regarding the victim being a minor is not necessary for a person who is convicted of violating CR § 11-303(b)(1) to be required to register; to have any meaning at all, the language must apply to CR § 11-303(a) and other statutes like it set forth in CP § 11- 701(p)(2) that do not require the age of the victim to be proven.

Although we are satisfied that, under CP § 11-701(p)(2), a conviction of either CR § 11-303(a) or CR § 11-303(b)(1) triggers Tier II sex offender status if the victim is a minor, a person is not a Tier II sex offender simply by virtue of a conviction under CR § 11-303(a); there must also be proof that the victim was a minor. What can be gleaned from the plain language of CP § 11-701(p)(2) is that the General Assembly intended Tier II sex offender registration where there was conviction of an identified crime and where the victim was a minor. The plain language of the statute indicates that the General Assembly did not intend registration under CP § 11-701(p)(2) simply because there was a conviction - 25 - under CR § 11-303(a). Here, Rogers pled guilty to, and was convicted of, violating CR § 11-303(a).

The victim’s age was not established during the prosecutor’s recitation of the statement of facts or at any point during the guilty plea proceeding. It was only after Rogers was released from imprisonment that the Department determined that he was required to register as a Tier II sex offender under CP § 11-701(p)(2). Although CP § 11-701(p)(2) sets forth two conditions for someone to qualify as a Tier II sex offender—conviction under CR § 11-303 and the intended prostitute or victim is a minor—the statute does not indicate how a determination is to be made as to whether the victim is a minor if that fact is not established during the underlying criminal proceeding. CP § 11-701(p)(2) does not state whether a determination of the victim’s status as a minor is to be made by the trier of fact (either the trial court or a jury), or if, as in this case, the Department may make such a determination.

After a thorough review of relevant law, we conclude that the trier of fact, not the Department, must make the determination. As such, the Department did not have the authority in this case to determine that the victim was a minor and to order Rogers to register as a Tier II sex offender. We explain. Looking at the sex offender registration statutes and regulations reveals that there is no explicit delegation anywhere authorizing the Department to make such a determination, and we know of no case in which this Court has recognized that the Department has such authority.

Absent an express delegation of authority to the Department to make such a determination, we decline to read into the statutes and regulations the authority to permit the Department to take the action. - 26 - At oral argument, the Assistant Attorney General acknowledged that there is no explicit statutory delegation of authority to the Department to make a determination as to a victim’s age, but argued that, because CP § 11-701(p)(2) requires a conviction and that the victim be a minor, and because the statutes and regulations require that the Registry be maintained, the Department is permitted to make such a determination. Without dispute, the Department is required to “keep a central registry of registrants and a listing of juvenile sex offenders[,]” CP § 11-713(2), and has various attendant responsibilities. Nothing in the plain language of the statutes themselves, however, provides the Department with the ability to determine, or even a process for determining, a fact necessary for placement on the Registry. The regulations that were promulgated by the Department are likewise unavailing.

Under COMAR 12.06.01.08A, the Sex Offender Registry Unit is required to maintain the Registry, “[d]etermine if a registrant should be placed in an under investigation or absconder status[,]” “[c]alculate terms of registration[,]” and “[a]uthorize termination of registration.” Although the Sex Offender Registry Unit may determine whether a registrant should be placed in an “under investigation or absconder” status, the Unit is not authorized to determine facts necessary to place a person on the Registry in the first instance. To allow the Department, the Sex Offender Registry Unit, or some person or entity other than the trier of fact to determine a fact necessary for placement on the Registry would lead to an incongruous result for those convicted of violating CR § 11-303(b)(1) and those convicted of violating CR § 11-303(a). A conviction under CR § 11-303(b)(1) would involve proof of a victim’s age as determined by the trier of fact beyond a reasonable doubt - 27 - because the victim’s age is an element of the offense, and that person would subsequently be ordered to register as a Tier II sex offender. Whereas, placement on the Registry for a conviction under CR § 11-303(a) would involve proof of one of the various modes of human trafficking, but no proof of the victim’s age would be required whatsoever by any standard of proof before the trier of fact.

Yet, that person would be placed on the Registry if the Department determined post hoc, by whatever process it deemed appropriate, that the victim was a minor. If the Department were permitted to make such a finding, that finding could be made without notice and non-publicly, and would not necessarily be required to meet any particular standard of proof, such as proof beyond a reasonable doubt, by clear and convincing evidence, or by a preponderance of the evidence. It would be difficult to conceive that the General Assembly intended placement on the Registry for those convicted under CR § 11-303(a) to be determined by an entity different than the trier of fact, in a different manner, and through use of an unknown standard of proof different than that used for those convicted under CR § 11-303(b)(1). Such a result would be illogical.

Allowing such a determination would lead to the circumstance presented here, where it is incumbent on the defendant to seek relief from the Department’s finding, after the criminal proceeding has concluded, without knowing how the Department reached its conclusion. As in this case (where Rogers requested declaratory judgment), the defendant would bear the burden of establishing that placement on the Registry was erroneous. A defendant generally does not have the burden of proof—i.e., the requirement to prove—that punitive or regulatory actions taken by the State against him or her were unwarranted. Generally, the State must prove conduct warranting such - 28 - action.

Permitting the Department to determine in a closed-door fashion that the defendant is required to register and causing the defendant to challenge the determination would turn reasonableness on its head. We are cognizant that not all of the statutes referenced in CP § 11-701(p)(2) have as an element of the offense that the victim be a certain age. For some offenses, including human trafficking under CR § 11-303(a), there must be additional proof that the intended prostitute or victim was a minor for Tier II sex offender registration to be required. For example, CR § 11-306(a) prohibits knowingly engaging in prostitution or maintaining or operating a building for prostitution, and does not require as an element of the offense proof as to the victim’s age.

Simply because some of the statutes do not have as an element of the offense that the victim be a minor (or some other certain age) does not mean that the General Assembly intended that a determination of the victim’s age be made outside of the underlying criminal proceeding. The circumstance that some offenses require proof of the victim’s age as an element and some do not does not resolve the question of the process for making a determination under CP § 11-701(p)(2) that the victim is a minor, where the victim’s age is not an element of the offense. That there are several statutes referenced by CP § 11-701(p)(2)—some of which require proof of the victim’s age as an element and some that do not—does not mean that the General Assembly intended for the Department to make the determination. Based on principles of fairness, it would make sense that the trier of fact—not the Department—must determine the facts necessary for placement on the Registry.

Our conclusion is supported by the numerous cases in which trial courts—not the - 29 - Department—ordered defendants to register as sex offenders. See, e.g., Duran, 407 Md. at 534 , 967 A.2d at 185 ; Cain, 386 Md. at 326 , 872 A.2d at 684-85 ; Nick H., 224 Md. App. at 673 , 123 A.3d at 232 . Although arising in a different context, Cain, 386 Md. at 336, 338 , 872 A.2d at 690, 692 , and Duran, 407 Md. at 547-48, 553-54 , 967 A.2d at 192-93, 196-97 , stand for the principle that determination of who is an “offender” for registration purposes—or, in this case, who is a Tier II sex offender—is controlled by the language of the statute at issue. To be a Tier II sex offender, CP § 11-701(p)(2) requires both a conviction of CR § 11-303 and that the intended prostitute or victim be a minor.

Just as a finding of guilt is made by a trier of fact, absent any indication whatsoever by the statutes’ plain language that the Department is authorized to determine facts necessary for placement on the Registry, we conclude that such facts must be determined by the trier of fact. Having determined that the Department is not authorized to find facts necessary for placement on the Registry, we next address at what point the trier of fact must make such a determination and the required standard of proof.

II

The Parties’ Contentions On brief, Rogers contends that the victim’s age must be found by the trier of fact beyond a reasonable doubt before sentencing, not by the Registry’s manager at some point after conviction. Rogers asserts that this Court has determined that sex offender registration is punishment equivalent to imposing an additional sanction for a defendant’s crime. At oral argument, surprisingly, though, in response to questions from the Court, Rogers’s counsel allowed that the trial court could make a determination beyond a - 30 - reasonable doubt about the victim’s age at any point within the context of the criminal case, so long as the determination is made before sentence is imposed. The State responds that this Court has previously concluded that sex offender registration is not intended as punishment, but instead is intended as a regulatory requirement.

As such, the State argues that the victim’s age may be determined by the Department by a preponderance of the evidence, not beyond a reasonable doubt, and after conclusion of the court proceedings. Relevant Law In Young v. State, 370 Md. 686, 690 , 806 A.2d 233, 235 (2002), this Court examined an earlier version of the Maryland sex offender registration statute in the context of due process rights. We determined that “sex offender registration [did] not constitute punishment in the constitutional sense[.]” Id. at 690 , 806 A.2d at 235 . In so determining, we applied the “intent-effects” test, “a two-part inquiry whether (1) the legislature intended the sanction to be punitive, and (2) the sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the legislature’s intent.” Id. at 711, 706-07 , 806 A.2d at 248, 245 .

As to the legislative intent behind the sex offender registration statutes, we noted that, as enacted, the statute at issue contained no express statement of purposes, but “the plain language and overall design . . . clearly indicate[d] that it was not intended as punishment, but rather was intended as a regulatory requirement aimed at protection of the public.” Id. at 712 , 806 A.2d at 248 . The Court stated that the General Assembly did not intend “registration or notification as a device to punish convicted sex offenders” and did not intend “to stigmatize or shame sex offenders.” - 31 - Id. at 712 , 806 A.2d at 248 . As to whether there was clear proof that the statute was so punitive, either in purpose or effect, that its punitive nature overrode the remedial purpose, this Court looked at the following factors derived from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963): (1) whether 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 deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether it lacks an alternative purpose to which it rationally may be connected; and (7), if such alternative does exist, whether the statute appears excessive in relation to it. Young, 370 Md. at 713, 698 , 806 A.2d at 249, 240 .

We observed that “sex offender registration imposes [] affirmative disabilities on registrants, particularly in light of the community notification provisions of [the statute].” Id. at 713 , 806 A.2d at 249 . We noted that “[b]eing labeled as a sex[] offender within the community can be highly stigmatizing and can carry the potential for social ostracism.” Id. at 713 , 806 A.2d at 249 . Nevertheless, we “conclude[ed] that the burden [was] not so unreasonable, in light of the statute’s remedial aims, that it converts the statute into a punitive one.” Id. at 713 , 806 A.2d at 249 . We also noted that the statute applied to past criminal conduct, implicating the fifth factor.

See id. at 714 , 806 A.2d at 249 . We ultimately concluded that the statute was “not so punitive a statute in its effect that its application defeat[ed] the [General Assembly]’s remedial intent.” Id. at 714 , 806 A.2d at 250 . And, we stated that “[s]ex offender registration traditionally ha[d] not been regarded as punishment.” Id. at 714 , 806 A.2d at - 32 - 250. We observed that the statute had no scienter requirement, possibly promoted deterrence, had a legitimate purpose other than punishment, and was not excessive in relation to its remedial purpose.

See id. at 715 , 806 A.2d at 250 . More than a decade later, in Doe v. Dep’t of Pub. Safety and Corr. Servs., 430 Md. 535, 537 , 62 A.3d 123, 124 (2013) (“Doe I”), a plurality of this Court concluded that the petitioner could not be compelled to register as a sex offender, explaining: During the 1983-84 school year, at the time of [the p]etitioner’s commission of the sex offense mentioned herein, the Maryland sex offender registration statute did not exist.

The General Assembly enacted the sex offender registration statute in 1995. As a result of amendments to that statute in 2009 and 2010, [the p]etitioner is now required to register as a sex offender. We shall hold that requiring [the p]etitioner 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. Pursuant to our determination that [the p]etitioner may not be compelled to register, his name and likeness shall be removed from the Maryland Sex Offender Registry.

The plurality determined that “application of the sex offender registration statute to [the p]etitioner in 2009 [was] the equivalent of imposing a new criminal sanction for [the p]etitioner’s prior commission of sex crime in the 1980s.” Id. at 561 , 62 A.3d at 138 . In the plurality’s view, placement on the Registry essentially had the same effect as placing the petitioner on probation, thereby “effectively impos[ing] on him an additional criminal sanction.” Id. at 562 , 62 A.3d at 139 . The plurality explained: [The p]etitioner testified that under threat of arrest and incarceration he was required to register in 2009. [The p]etitioner currently must report in person to law enforcement every three months, give notice to law enforcement of his address and any changes of address, and notify law enforcement before being away from his home for more than seven days. Furthermore, he must disclose to the State a significant amount of information, some of which is highly personal, including: his employment - 33 - address; information about his conviction; his [S]ocial [S]ecurity number; his email address and computer log-in names; information about vehicles he often uses, including those not owned by him; his finger[]prints and palm prints; all identifying factors, including a physical description, and an updated digital image of himself. . . .

If [the p]etitioner fails to comply with these requirements, he faces terms of imprisonment, depending on the violation, of up to three or five years. Id. at 562 , 62 A.3d at 139 (cleaned up). Moreover, “the dissemination of [the p]etitioner’s information pursuant to the sex offender registration statute[ was] tantamount to the historical punishment of shaming[,]” and was “punitive for ex post facto purposes.” Id. at 564, 565 , 62 A.3d at 140, 141 (footnote omitted). In a concurring opinion, the Honorable Glenn T. Harrell, Jr. discussed the various amendments to the Maryland Sex Offender Registration Act that had occurred since 2009, stating: Since 2009, several amendments to the Maryland Sex Offender Registration Act have been adopted, including, but not limited to: (1) adding juvenile sex offenders to the list of those who must register; (2) requiring registration statements to include a list of aliases, electronic email addresses, computer screen names, or any name by which the registrant had been legally known; (3) requiring tier III offenders (such as Doe) to register in person every three months for life; (4) requiring that registrants provide three days[’] notice after changing addresses; (5) ordering registrants to notify law enforcement, prior to the relocation, when the registrant obtains a temporary residence or changes the location where the registrant resides or “habitually lives” for more than 5 days; (6) requiring homeless registrants to register in person with the local law enforcement in each county where the registrant habitually lives; (7) publicize registration information on the Internet; and (8) granting the Department [] and law enforcement the discretion to provide notice of a registration statement or a registrant’s change of address to whomever they deem necessary so as to protect the public from the registrant.

Id. at 569-70 , 62 A.3d at 143-44 (Harrell, J., concurring) (citations omitted). Judge Harrell observed that “significant revisions to the Maryland registration statute ha[d] occurred - 34 - since the Young [C]ourt reviewed the statute in 2002.” Id. at 571 , 62 A.3d at 145 (Harrell, J., concurring). For example, Judge Harrell noted that, beyond disseminating basic registry information about registrants, “the Maryland registry web site allows any person to post comments, that are available for the public to view, below a registrant’s profile.” Id. at 572 , 62 A.3d at 145 (Harrell, J., concurring). Judge Harrell observed that “in-person registration requirements may involve punitive restraints.” Id. at 572 , 62 A.3d at 145 (Harrell, J., concurring).

Judge Harrell stated that “dissemination of non-public and sensitive information about registrants” presented the risk of being stigmatizing, and noted that registrants were required “to inform the State on every change of location, including any place in which a registrant habitually lives or stays for more than five days, and . . . the Department or law enforcement [were permitted] to share the information with anyone when [] necessary to do so to protect the public.” Id. at 572-73 , 62 A.3d at 145 (Harrell, J., concurring) (citations omitted). As to recidivism, Judge Harrell stated that research since 2002 demonstrated that, “[a]pplying such a broad-reaching statute like Maryland’s to any qualifying sex offender without particularized determinations of recidivism may undermine the law’s intent to prevent the repetition of sex offenses. Indeed, recent research reports that broad-reaching sex offender registration and notification laws do not reduce recidivism by sex offenders.” Id. at 573 , 62 A.3d at 146 (Harrell, J., concurring) (citations omitted). In a separate concurring opinion, the Honorable Robert N. McDonald, joined by the Honorable Sally D. Adkins, stated that “the cumulative effect of the 2009 and 2010 amendments of the State’s sex offender registration law took [the] law across the line from - 35 - civil regulation to an element of the punishment of offenders.” Id. at 578 , 62 A.3d at 148 (McDonald, J., concurring) (citations omitted).

Similarly, in Quispe del Pino v. Md. Dep’t of Pub. Safety and Corr. Servs., 222 Md. App. 44, 63 , 112 A.3d 522, 533 (2015), in the ex post facto context, the Court of Special Appeals concluded: [T]he retroactive application of [the Maryland Sex Offender Registration Act] to [the] appellant by the 2010 amendment imposed additional punishment on [the] appellant for criminal conduct that occurred prior to the existence of the amended statute, by extending the term of his required registration from ten years to twenty-five years. Thus the 2010 amendment, as applied to [the] appellant, is unconstitutional under the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights.

In Nick H., 224 Md. App. at 673, 689 , 123 A.3d at 232, 241 , a case where a juvenile court ordered the appellant to register as a sex offender, the Court of Special Appeals held, in pertinent part, that the juvenile court properly ordered the appellant to register and that the retroactive application of the Maryland Sex Offender Registration Act as applied to the appellant was not punishment and was not a violation of the prohibition against ex post facto laws. In that case, the juvenile court conducted a hearing to determine whether the appellant was at a significant risk of re-offending and “concluded, based on clear and convincing evidence, that [the] appellant was at a significant risk of re-offending, and thus ordered him to register as a sex offender[.]” Id. at 673 , 123 A.3d at 232 . The Court of Special Appeals applied the intent-effects test and examined the various Mendoza- Martinez factors, see Nick H., 224 Md. App. at 689-705 , 123 A.3d at 241-50 , concluding: [A]lthough the requirement of registration imposes an affirmative disability on [the] appellant, has been regarded historically as punishment, carries the - 36 - element of scienter, and applies to behavior that is criminal in nature, these disadvantages are outweighed by the public safety purpose of [the Maryland Sex Offender Registration Act] and the process afforded juvenile sex offenders both before and after being ordered to register. [The Act] requires an individualized assessment of a juvenile sex offender, under a clear and convincing evidence standard, before placement on the sex offender registry, and the opportunity to seek a reduction in the term of registration. By contrast, [the Act] requires all adults convicted of certain sexual offenses to register as sex offenders for a specified term regardless of their continuing threat to society.

Therefore, the placement of some juvenile sex offenders on the sex offender register is explicitly tied to the regulatory purpose of sex offender registration. Id. at 705 , 123 A.3d at 250-51 . In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In that case, a New Jersey statute classified the possession of a firearm for an unlawful purpose as a second-degree offense punishable by between five years’ and ten years’ imprisonment. See id. at 468 .

A separate New Jersey statute, which was a hate crime law, provided for an extended term of imprisonment if the trial court found by a preponderance of the evidence that the defendant committed the crime “with a purpose to intimidate an individual or group of individuals due to race, color, gender, handicap, religion, sexual orientation[,] or ethnicity[.]” Id. at 468-69 (cleaned up). Under the hate crime law, the extended term of imprisonment for second-degree offenses was between ten years’ and twenty years’ imprisonment. See id. at 469 . The Supreme Court explained that the New Jersey statutory scheme consisted of the following: [A] jury [is allowed] to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that [the defendant] unlawfully - 37 - possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree, based upon the judge’s finding, by a preponderance of the evidence, that the defendant’s purpose for unlawfully possessing the weapon was to intimidate his [or her] victim on the basis of a particular characteristic the victim possessed.

Id. at 491 (cleaned up). Applying its holding, the Supreme Court concluded that the New Jersey statutory scheme could not stand. See id. at 491-92 . Analysis Here, we hold that applying the intent-effects test and the Mendoza-Martinez factors leads to the conclusion that sex offender registration under the current statutory scheme is sufficiently punitive, i.e., serving as more than a mere civil regulation, to require determination of a fact necessary for placement on the Registry—such as the victim’s age—be made beyond a reasonable doubt by the trier of fact during the adjudicatory phase of the criminal proceeding prior to sentencing.

Although whether placement on the Registry is punitive has not been examined in the context of a conviction for CR § 11- 303(a), placement on the Registry is placement on the Registry, regardless of the reason or the conviction that required sex offender registration. We are satisfied that establishment of the victim’s age and placing a defendant who is convicted of violating CR § 11-303(a) on the Registry essentially increases the punishment or penalty for that crime, and that the determination of the victim’s age must be submitted to the trier of fact and proven beyond a reasonable doubt. Cf. Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum should be submitted to a jury, and proved beyond a reasonable doubt.”); see also - 38 - Blakely v. Washington, 542 U.S. 296, 303, 313 (2004) (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . .

As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.” (Cleaned up.)). We begin our inquiry with the intent-effects test, and whether the General Assembly intended sex offender registration to be punitive and whether sex offender registration is so punitive in effect that it cannot be viewed simply as regulatory or civil in nature, despite the General Assembly’s intent. In Young, 370 Md. at 712 , 806 A.2d at 248 , we stated “that the plain language and overall design of” the sex offender registration statutes demonstrated that sex offender registration “was not intended as punishment, but rather was intended as a regulatory requirement aimed at protection of the public.” At least as originally enacted, the General Assembly did not intend “registration or notification as a device to punish convicted sex offenders” or as a method “to stigmatize or shame sex offenders.” Id. at 712 , 806 A.2d at 248 . That the General Assembly may have intended a non-punitive regulatory scheme is not dispositive; we must determine whether the scheme is so punitive in effect as to negate that intent.

We determine that the cumulative effects of the Maryland Sex Offender Registration Act are increasingly punitive, i.e., that placement on the Registry is progressively more punitive, and that case law has begun to recognize as much. Application of the Mendoza-Martinez factors is instructive. As to the first factor, whether sex offender registration in Maryland involves an affirmative disability or - 39 - restraint, we conclude that it does. Even in Young, 370 Md. at 713 , 806 A.2d at 249 , we recognized that sex offender registration imposes affirmative disabilities on registrants, especially given the community notification provisions, and that being labeled as a sex offender can be highly stigmatizing and lead to social ostracism.

Moreover, from our perspective, the in-person registration requirements involve punitive restraints. For example, a Tier II sex offender is required to register in person every six months with local law enforcement and the digital image for registration must also be updated every six months. See CP § 11-707(a)(1)(i), (ii). Although in-person registration does not constitute a physical restraint on a registrant, this requirement cannot be said to be a minor one, given that it occurs every six months, in the case of Tier I and Tier II sex offenders, and every three months, in the case of Tier III sex offenders and sexually violent predators.

See CP § 11-707(a)(1)(i), (a)(2)(i), (a)(3)(i). A Tier II sex offender is required to register for twenty-five years, a period of time that may long exceed the term of imprisonment imposed. See CP § 11-707(a)(4)(ii). Indeed, the maximum penalty for a violation of CR § 11-303(a) is ten years’ imprisonment, a $5,000 fine, or both.

See CR § 11-303(c)(1)(i). As part of the registration statement, a registrant is tasked with providing a plethora of personal information, including the registrant’s complete name and every address and place where the registrant resides or habitually lives, the names and addresses of all of the registrant’s employers, a list of electronic mail addresses, computer log-in or screen names or identities, instant-messaging identities, and electronic chat room identities the registrant has used, the registrant’s Social Security number, all identifying factors, including a physical description, information for - 40 - any vehicle owned or regularly operated by the registrant and the locations where the vehicles are kept, and the registrant’s fingerprints and palm prints. See CP § 11-706(a). In Young, 370 Md. at 713 , 806 A.2d at 249 , this Court acknowledged that a registration statement “may include documentation of highly personal, confidential, and ordinarily nonpublic information such as treatment received for a mental abnormality or personality disorder.” (Citation omitted).

See also CP § 11-706(b). Knowingly failing to provide any of the information required to be included in a registration statement is, for a first offense, a misdemeanor punishable by up to three years’ imprisonment, a $5,000 fine, or both, and, for a second or subsequent offense, a felony punishable by up to five years’ imprisonment, a $10,000 fine, or both. See CP § 11-721(a), (b). Significantly, information about sex offender registrants is publicly available and required to be posted on the Internet.

See CP § 11-717(a)(1), (b). The Internet has increased dissemination of the personal information of sex offenders, and anyone, at any time and for any reason, can look up a current listing of a registrant. Public availability and dissemination of sex offender registration expose sex offenders to ostracism, and may cause lost employment opportunities, housing discrimination, threats, and violence. In sum, we conclude that this factor—whether sex offender registration in Maryland involves an affirmative disability or restraint—weighs heavily in favor of registration having a punitive effect.6 6 Similarly, in Sabisch, 466 Md. at 332-33 , 220 A.3d at 275, in evaluating eligibility to petition for habeas corpus relief, this Court concluded that a person on probation with conditions that significantly restrain the person’s lawful liberty is eligible to seek habeas - 41 - As to the second factor, whether sex offender registration has historically been regarded as punishment, although in Young, 370 Md. at 714 , 806 A.2d at 250 , we stated that “[s]ex offender registration traditionally ha[d] not been regarded as punishment[,]” more recently, in Doe I, 430 Md. at 561, 564 , 52 A.3d at 139, 140, a plurality of this Court observed that requiring the petitioner to register had the same effect on his life as placing him on probation, which is a form of a criminal sanction, and that dissemination of the petitioner’s information was tantamount to the historical punishment of shaming.

In Nick H., 224 Md. App. at 694 , 123 A.3d at 244 , the Court of Special Appeals concluded that publishing information about former juvenile sex offenders on a public website created an enduring stigma of their misconduct akin to shaming. We agree with this reasoning and conclude that registration has developed in the direction of being punitive. As to whether sex offender registration depends on a finding of scienter, unlike juvenile sex offender registration, see Nick H., id. at 694-95 , 123 A.3d at 244-45 , adult sex offender registration requirements “are triggered when the offender is released into the community” and “appl[y] to individuals convicted of any of the enumerated offenses, without regard to the offender’s state of mind[,]” Young, 370 Md. at 715 , 806 A.2d at 250 . As to whether sex offender registration operates to promote the traditional aims of punishment—retribution and deterrence—in Young, id. at 715 , 806 A.2d at 250 , we observed that, because the sex offender registrations statutes were enacted to protect the public, registration could not be characterized as retribution.

Nevertheless, we allowed corpus relief. Hence, this Court recently recognized that non-physical restraints can significantly impair liberty. - 42 - that the statutes possibly “promote[d] deterrence.” Id. at 715 , 806 A.2d at 250 . Black’s Law Dictionary defines “deterrence” as “[t]he act or process of discouraging certain behavior, particularly by fear; esp[ecially], as a goal of criminal law, the prevention of criminal behavior by fear of punishment.” Deterrence, Black’s Law Dictionary (11th ed. 2019). The possibility of sex offender registration may very well have a deterrent effect on some individuals who would otherwise engage in criminal behavior but for the fear, or threat, of registration.

And, as the Court of Special Appeals recognized, the “requirements of reporting, notification, and disclosure to law enforcement serve a deterrent function by continually reminding the registrant of the ever-present interest of law enforcement in the registrant’s behavior[,]” and “the public dissemination of offenders’ information is similar to shaming, and thus acts to deter past offenders from re-offending, and may deter future offenders who are aware of the public consequences of sexual offenses.” Nick H., 224 Md. App. at 695-96 , 123 A.3d at 245 (cleaned up). We conclude that this factor weighs in favor of registration being punitive. As to whether the behavior to which registration applies is already a crime, registration “clearly applies to past criminal conduct[.]” Young, 370 Md. at 714 , 806 A.2d at 249 . To be sure, “[t]he fact that the statute is triggered by a criminal conviction does not undermine the [General Assembly]’s intent to create a sex offender registry to aid in the civil purpose of tracking the location of known sex offenders.” Id. at 714 , 806 A.2d at 249 .

As such, this factor weighs equally in favor of registration being punitive in nature and serving a civil purpose. As to whether registration lacks an alternative purpose to which it rationally may be - 43 - connected, it is clear that the registration statutes have a purpose other than punishment— to protect the public. In Young, id. at 715 , 806 A.2d at 250 , we observed that the registration statutes have “strong remedial aspects and serve[] the important nonpunitive goal of alerting law enforcement and the community to the presence of sexual predators who may reoffend.” Finally, we consider whether the sanction of registration is excessive in relation to its remedial purpose. From our perspective, given that the provisions of the sex offender registration statutes protect the public from sex offenders and the registration requirements apply only to those who qualify as sex offenders under the statutes, see id. at 715 , 806 A.2d at 250 , it cannot be said that the sanction of registration is excessive.

On balance, however, an examination of all of the factors weighs in favor of determining that the cumulative effect of the registration statutes is punitive in nature, and, as such, sex offender registration may be considered akin to punishment. Because establishment of the victim’s age as a minor would necessitate placement on the Registry for a defendant convicted of violating CR § 11-303(a), effectively subjecting the defendant to additional punishment for the crime, it is logical that determination of the victim’s age be submitted to the trier of fact and proven beyond a reasonable doubt. In our view, whether placement on the Registry is viewed as punitive, as we determine, or as regulatory, a defendant should be entitled to process where a fact necessary for placement on the Registry, e.g., the victim’s age, is at issue. There is no statute, rule, or case that allows a trial court to make a finding of fact beyond a reasonable doubt (or by a lesser standard of proof) at sentencing after a jury trial (or a bench trial, for that matter), or where the defendant has pled guilty and agreed to a statement of facts.

Absent an - 44 - amendment of CP § 11-701(p)(2) or another statute enacted by the General Assembly, consistent with the Supreme Court’s holding in Apprendi, to provide for some other process, we conclude that, to require sex offender registration, the facts of the case adduced during the adjudicatory phase of the criminal proceeding must establish the age of the victim beyond a reasonable doubt. To establish the victim’s age during the adjudicatory phase beyond a reasonable doubt in a case in which a defendant pleads guilty, the State could pursue an agreed statement of facts that establishes the victim’s age. Stated otherwise, the defendant and the State would enter into a plea agreement where the statement of facts establishes the victim’s age. Under Maryland Rule 4-243(c)(1), after a plea agreement is presented to the trial court, the trial court “may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the [trial court] directs.” Aside from accepting or rejecting the plea, the trial court is not authorized to make additional findings of fact outside of those in the plea agreement reached between the defendant and the prosecutor, but may accept the facts that are presented during the plea as the basis for finding a defendant guilty beyond a reasonable doubt.

The premise of a typical guilty plea is that a defendant agrees with the facts as presented by the State, not that the trial court would make a finding that goes against the defendant, unless there is an Alford plea and the parties have agreed to - 45 - such a plea.7 Under the process set forth above, where the defendant agrees to plead guilty to violating what is now CR § 3-1102(a), and the State wants to pursue sex offender registration, the State would include the victim’s age in the statement of facts. If the defendant does not want to acknowledge that the victim was a minor, then the defendant would not agree with the statement of facts, and, presumably, would not plead guilty. In the event of a jury trial, where the State seeks to have the defendant ordered to register as a Tier II sex offender under CP § 11-701(p)(2) and the age of the victim is not an element of the offense, determination of the victim’s age beyond a reasonable doubt could be achieved by a special verdict question submitted to the jury.8 To be sure, a defendant may object to the use of a special verdict question regarding the victim’s age as prejudicial, especially where the defendant is charged with other offenses that do not require proof of the victim’s age, as some of the offenses referenced by CP § 11-701(p)(2) do not. In most jury trials, though, witnesses and victims are generally asked to provide 7 In Jackson v. State, 448 Md. 387 , 391 n.3, 139 A.3d 976 , 978 n.3 (2016), we explained that an Alford plea—derived from North Carolina v. Alford, 400 U.S. 25 (1970)—is a plea in which the individual retains the right to appellate review of evidence subject to a suppression motion but avoids going through the time and expense of a full trial.

By pleading not guilty and agreeing to the proffer of stipulated evidence or an agreed statement of facts, an individual, like with a guilty plea, waives a jury trial and the right to confront witnesses but retains appellate review of the suppression decision. (Cleaned up). 8 In State v. Adams, 406 Md. 240, 294 , 958 A.2d 295, 328 (2008), this Court stated that special verdicts are appropriate in criminal as well as civil cases, and that “[a] special verdict is a proper method to create an unambiguous record for appeal.” - 46 - their age when testifying, so a victim’s age is usually not a secret. As such, as another option, where there is genuinely no dispute about a victim’s age, a defendant could agree or stipulate, outside of the presence of the jury, to the age of the victim if the defendant believes inclusion of a question on a verdict sheet would be prejudicial. Alternatively, in lieu of a special verdict question or the defendant’s stipulation outside of the jury’s presence, the question of the victim’s age could be handled through sequential jury determinations, whereby the jury would first determine whether the defendant was guilty of a violation of CR § 11-303(a) (now CR § 3-1102(a)), and, if so, next determine whether the victim was a minor.

This would eliminate any claim of prejudice before the jury by the defendant. In Galloway v. State, 371 Md. 379, 419 , 809 A.2d 653, 677 (2002), in a concurring opinion, the Honorable Alan M. Wilner observed that, with respect to a case in which a defendant is charged with possession of a firearm by a person previously convicted of a crime and another offense not requiring proof that the person was previously convicted of a crime, a trial court could “take the intermediate step . . . of bifurcating the [criminal in possession] charge—allowing the jury to consider only the current substantive charges first, and then, after it renders a verdict on those charges, having that same jury hear the additional evidence and then consider the [criminal in possession] charge.” (Wilner, J., concurring) (citation omitted). In other words, the jury would make sequential determinations of the charges.9 At bottom, we conclude that a fact necessary for placement on the Registry, such as 9 At a bench trial, the trial court, of course, could be asked to make the requisite finding during the adjudicatory phase beyond a reasonable doubt. - 47 - the victim’s age, must be determined by the trier of fact beyond a reasonable doubt, during the adjudicatory phase of the criminal proceeding, prior to sentencing. In this case, that did not occur.

Instead, Rogers pled guilty to violating CR § 11-303(a) and the victim’s age was not established during the agreed statement of facts or at any point during the guilty plea proceeding. Without being authorized by statute, regulation, or case law, through use of an unknown standard of proof, and after the underlying criminal proceeding had concluded and Rogers had served a sentence of imprisonment, the Department determined that the victim was a minor and ordered Rogers to register as a Tier II sex offender. This action was taken without notice to Rogers or permitting him to be heard in any respect. Placement on the Registry is no less punitive or consequential for those convicted under CR § 11-303(a) (now CR § 3-1102(a)), as opposed to those convicted under CR § 11- 303(b)(1) (now CR § 3-1102(b)(1)), and, absent amendment of the statutes, one group of people should not be subject to placement on the Registry through an unidentified process and then required to challenge that placement.

The circuit court correctly granted summary judgment in Rogers’s favor, and properly determined that Rogers was not required to register and that his name was to be removed from the Registry. We reverse the judgment of the Court of Special Appeals. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTION TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY.

RESPONDENTS TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS. - 48 - Circuit Court for Anne Arundel County Case No. C-02-CV-17-000296 Argued: January 10, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 32 September Term, 2019 ______________________________________ JIMMIE ROGERS v. STATE OF MARYLAND, ET AL. ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Dissenting Opinion by Biran, J., which Barbera, C.J., and Hotten, J., join. ______________________________________ Filed: March 31, 2020 Respectfully, I dissent. In my view, the Majority misinterprets the Maryland Sex Offender Registration Act (“MSORA”) to preclude the Department of Public Safety and Correctional Services (the “Department”) from determining the existence of a fact that triggers sex offender registration for Petitioner Jimmie Rogers, where that fact was not necessary to a finding of guilt in Rogers’s prior criminal case, and therefore was not proven or admitted in that proceeding. I would hold that the General Assembly impliedly delegated the power to make such a determination to the Department, subject to judicial review in an administrative mandamus action or (as in this case) a declaratory judgment action filed by a person who has been directed to register as a sex offender. Rogers did not preserve his constitutional arguments for appellate review, and therefore I would not reach them.

On the merits of those claims, I would hold that the Department’s determination that Rogers’s victim (M.H.) was a minor does not violate the separation of powers mandated under Article VIII of the Maryland Declaration of Rights. As to Rogers’s Sixth Amendment argument, I would conclude that Maryland’s sex offender registration regime is not punitive, but rather achieves the remedial purpose for which the General Assembly intended it: to protect the public. Alternatively, even if sex offender registration in Maryland is considered effectively to be