Sinclair v. State

RODOWSKY, J. Over three and a half years after he had been convicted of child abuse, the appellant, Clinton Edward Sinclair (Sinclair), filed a motion in his criminal case seeking a judicial determination that he was not required to register as a child sex offender. From the denial of that relief, Sinclair appeals. As explained below, we shall vacate and remand on procedural grounds without reaching the merits. By an indictment filed January 6, 2006, in the Circuit Court for Anne Arundel County, Case No. 02-K (i.e., Criminal)-06-38, Sinclair was charged, inter alia, with child abuse, alleged to have occurred on or about September 3, 1989 through September 2, 1994, in violation of Maryland Code (1957), Article 27, § 35C(b)(l).

The statutory reference is to the 1996 Replacement Volume. The cited statute made child abuse by ¹³³ a custodian a felony. Section 35C defined “abuse” in subsection (a)(2) to mean: “(i) The sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child’s health or welfare is harmed or threatened thereby; or “(ii) Sexual abuse of a child, whether physical injuries are sustained or not.” 1 Sinclair pleaded guilty to the child abuse charge on June 22, 2006. From the prosecutor’s statement of facts in support of the guilty plea, it is clear that the abuse was sexual.

Sinclair agreed that it was a fair statement of facts. The court sentenced Sinclair to four years of house arrest, with all but twelve months suspended, and placed him on five years probation, beginning with sentencing. The probation order did not require Sinclair to register as a sex offender, and the parties agree that, at the time of his conviction, there was no statutory requirement that he register. Thereafter, the sex offender registration statutes were amended a number of times in order to give retroactive effect to the requirement. 2 Of relevance here is the amendment by Chapter 541 of the Acts of 2009, effective October 1, 2009, codified as Maryland Code (2001, 2008 Repl.Vol., 2009 Cum.

Supp.), § ll-702.1(c)(l) of the Criminal Procedure Article (CP). It provides: ¹³⁴ “(c) Retroactivity of subtitle; notice. — (1) Notwithstanding any other provision of law to the contrary, this subtitle shall be applied retroactively to include: “(ii) a person convicted on or after October 1, 1995, of an offense committed before October 1, 1995, for which registration as a child sexual offender is required under this subtitle.” On February 4, 2010, Sinclair filed in the Circuit Court for Anne Arundel County a “MOTION TO DENY UNLAWFUL ORDER OF PAROLE & PROBATION and/or MOTION FOR APPROPRIATE RELIEF.” It was filed in his Criminal Case No. 02-K-06-38. He alleged that, based on the 2009 amendment to the registry statutes, he “was recently ordered by the Division of Parole and Probation, by and through the Defendant’s supervising Agent Greg Cherry, to register.” What is referred to as an “order,” if written, is not in the record. Sinclair’s motion argued that, as a matter of statutory construction, he was not a “child sex offender” within the intendment of the 2009 amendment.

The circuit court conducted a hearing on the motion, at which no evidence was taken. The court denied the motion. 3 When this appeal was noted, the court ordered that “any attempts on behalf of law enforcement, prosecutors, or the Division of Parole and Probation to have the above-named defendant register as a sex offender are hereby stayed pending the outcome of the appeal in the present matter.” In this Court, Sinclair presents the following issue: ¹³⁵ “The circuit court erred in ruling that the retr[o]activity clause contained in Section 11 — 702.l(c)(l)(ii) of the Criminal Procedure Article of the Annotated Code of Maryland required appellant to register as a ‘child sex offender[.]’ ” (Capitalization reduced). Motion to Dismiss The State has moved to dismiss the appeal, asserting that there, is no final judgment and that the motion does not present a justiciable issue; rather, it seeks an advisory opinion. 4 Because the court’s ruling fully disposed of the only issue that was before the court, there is a final judgment. See In re Special Investigation No. 185, 293 Md. 652 , 655 n. 2, 446 A.2d 1151 , 1154 n. 2 (1982).

The issue that Sinclair seeks to raise, and the relief that he seeks, presents a civil matter that is not cognizable in his criminal cause. The thrust of Sinclair’s motion is not collaterally to challenge his conviction that has long since been final and unappealable. His statutory construction point is directed to a collateral consequence of the conviction. If Sinclair is a child sexual offender, as a result of his conviction in 2006, and of the 2009 amendment to CP § 11-702.1, the obligation falls on him to register.

See CP § 11-704(a)(1) (“A person shall register with the person’s supervising authority if the person is” a child sexual offender.). Enforcement of this registration obligation is by criminal prosecution. CP § ll-721(a) provides that “[a] registrant may not knowingly fail to register” and “[a] person who violates this section ... for a first offense, is guilty of a misdemeanor and on conviction is subject to imprisonment ... or a fine ... or both.” CP § 11 — 721(b)(1). Thus, the relief requested by Sinclair seeks to avoid application of the registration requirement to him, with the result that no criminal prosecution under CP § 11-721 may be brought.

Accordingly, the relief ¹³⁶ that Sinclair requests is not available under the Postconviction Procedure Act, because he does not seek to “set aside or correct the [2006] judgment or sentence.” CP § 7 — 102(b)(1). The State suggests that Sinclair’s remedy is a writ of error coram nobis. The relatively recent expansion of the availability of coram nobis to include persons who are neither confined nor on parole or probation but who suffer significant collateral consequences from their conviction, does not aid Sinclair’s cause. Coram nobis is a challenge to the conviction that alleges an error of fact or law.

Skok v. State, 361 Md. 52, 78 , 760 A.2d 647, 661 (2000). Further, coram nobis is a civil action. In Ruby v. State, 353 Md. 100 , 724 A.2d 673 (1999), Ruby had filed a number of motions seeking a new trial which were denied, but the clerk did not communicate to Ruby the adverse ruling that effected a final judgment. Ruby then sought, in a separate civil action, a writ of coram nobis, which the circuit court issued, directing a belated appeal.

The State did not appeal from that civil judgment. Id. at 103-04 , 724 A.2d at 675 . When Ruby appealed the criminal conviction, the State moved to dismiss and this Court did so. On certiorari, the Court of Appeals vacated and remanded because this Court had “considered and decided the wrong case.” Id. at 104 , 724 A.2d at 675 .

Judge Cathell, writing for the Court, explained: “A collateral challenge, by its very nature, is a separate and distinct civil procedure by which a defendant may challenge his or her conviction, sentence, or imprisonment. See State Bar Ass’n, Inc. v. Kerr, 272 Md. 687, 689-90 , 326 A.2d 180, 181 (1974) (noting, in discussing the concept of final judgments, that the federal post conviction act, ‘like its Maryland counterpart, the Post Conviction Procedure Act (Maryland Code (1957, 1971 Repl.Vol.), Art. 27, § 645A et seq.), does not constitute a part of the original criminal cause, but is an independent and collateral civil inquiry into the validity of the conviction and sentence.’). Because collateral challenges are separate from the underlying judg ¹³⁷ ment, the filing of such an action typically initiates an entirely new action in which the defendant sets forth his or her claims. If the defendant prevails in the civil court where he or she sought collateral relief, that court then issues the writ directing the criminal court pursuant to the terms of the writ.” Id. at 107, 724 A.2d at 677 .

Declaratory judgment has been recognized as the procedure for obtaining, under appropriate circumstances, a ruling on the constitutionality of a statute, the violation of which carries criminal sanctions. In Davis v. State, 183 Md. 385 , 37 A.2d