Lead Opinion
The Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl.Vol., 2012 Cum.Supp.), § 11-701 et seq. of the Criminal Procedure Article (hereinafter all section references to the Criminal Procedure Article of the Maryland Code are identified as “C.P. § ”), requires persons convicted of certain sex offenses to register
During the 1983-84 school year, at the time of Petitioner’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, Petitioner is now required to register as a sex offender. We shall hold that requiring Petitioner 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 Petitioner may not be compelled to register, his name and likeness shall be removed from the Maryland Sex Offender Registry.
On June 19, 2006, John Doe
Petitioner’s conviction was based on his inappropriate contact with a thirteen-year-old student during the 1983-84 school year when Petitioner was a junior high school teacher. At the time of the incident, allegations concerning Petitioner’s misconduct were reported to school officials, the school officials conducted an investigation, and Petitioner resigned from his teaching position at the school. No charges, however, were brought at that time.
Approximately 20 years after the incident, in 2005, a former student contacted law enforcement and reported the sexual abuse that occurred during the 1983-84 school year. According to the State, in 2005, Petitioner was charged with various sex related offenses involving children.
On June 19, 2006, Petitioner and the State presented a plea agreement to the trial judge, which the judge accepted as binding. The agreement called for Petitioner to plead guilty to one count of child sexual abuse, a crime that carried a maximum sentence of fifteen years incarceration. In exchange for the guilty plea, the agreement (1) provided for a pre-sentence investigation; (2) allowed Petitioner to remain on bond until the sentencing date; (3) established a five-year cap
Petitioner’s sentencing hearing was held on September 6, 2006. Before imposing sentence, the trial judge explained to Petitioner:
1 am impressed with the life that you have lived since being relieved of your responsibilities as a teacher.... I’m also impressed by some of the difficulties that you’ve experienced in your life and the responsibility that you showed to your family and the responsibility that you’ve shown to others [ever] since that time. So the [court] is certainly taking into consideration all of the things that you have done of a positive nature since the time of this incident back in the 1980s. And what has been also said is true that rehabilitation is one of the factors that the [trial court] must look at, and you appear to have rehabilitated yourself significantly since the time of this incident.
(Emphasis added). The trial judge then stated, however, that “there are other things the [trial court] must consider, such as, the nature of the crime.” The trial judge noted that “[c]hild abuse is a very serious and heinous crime” and that the victim was a “child” and a “student.” The trial judge stated:
Retribution is also a valid factor, punishment for punishment’s sake, as well as general deterrence, that is to prevent and deter others from committing acts such as this. Once again, these are just as valid as rehabilitation, specific deterrence, that is, to prevent [Petitioner] from committing an act such as this again, which I don’t think will occur.
(Emphasis added). The trial judge imposed a sentence of ten years incarceration, with all but four and one half years suspended, and three years supervised probation upon release from incarceration. As one of the conditions of Petitioner’s
Approximately one month later, Petitioner filed a Motion to Correct an Illegal Sentence challenging the $500 fine and the requirement that he register as a child sex offender. Petitioner argued that the trial court “lacked authority to require [Petitioner] to register as a child sex offender.” Petitioner noted that the Maryland sex offender registration statute that was in effect at that time applied retroactively to a child sex offender who committed his or her offense on or before October 1, 1995, if the offender was “under the custody or supervision of the supervising authority on October 1, 2001.” Petitioner contended that he could not be required to register because “[t]here was no registry at the time of the instant offense and the law, as written, [did] not apply retroactively to [Petitioner]” because he “was indisputably not under the custody or supervision of the supervising authority on October 1, 2001 as that term is defined in the statute.” Additionally, Petitioner asserted that the fine was “not a permitted penalty under [the law he was convicted for violating].” On November 1, 2006, the Circuit Court agreed with Petitioner and issued an order striking the fine and the requirement that Petitioner register as a child sex offender.
In December 2008, Petitioner was released early from prison. In 2009, the Maryland General Assembly passed a new law, effective October 1, 2009, changing the sex offender registration requirements. See C.P. § 11-701 et seq. (2001, 2008 Repl.Vol., 2009 Cum.Supp.); 2009 Md. Laws, Chap. 541. The new sex offender registration statute retroactively required a child sex offender who committed a sex offense prior to October 1, 1995, but was convicted on or after October 1, 1995, and had not previously been required to register under Maryland law, to now register as a child sex offender. C.P. § 11—702.1(c)(ii) (2001, 2008 Repl.Vol., 2009 Cum.Supp.). Petitioner testified that on October 1, 2009, Petitioner’s probation officer directed Petitioner, under threat of “arrest[ ] and incarceration],” to register as a child sex offender. Petitioner
In 2010, the Maryland General Assembly again amended the sex offender registration statute re-categorizing Petitioner, based upon his prior conviction, as a Tier III sex offender. C.P. §§ 11-701(q)(1)(ii), 11-704(a)(3) (2001, 2008 Repl.Vol., 2010 Cum.Supp.); 2010 Md. Laws, Chaps. 174 and 175. As a result of the 2010 amendment, generally, sex offenders are designated by tiers. See C.P. § 11-701(l) (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Tier III is the most severe designation requiring lifetime registration, as opposed to Tier II offenders who register for 25 years or Tier I offenders who register for 15 years. See C.P. § 11-707(a)(4) (2001, 2008 RepL.Vol., 2012 Cum.Supp.). Additionally, Tier III offenders must re-register every three months, while Tier I and Tier II offenders are required to reregister every 6 months. C.P. § 11-707(a) (2001, 2008 Repl.Vol., 2012 Cum.Supp.).
In October 2009, in a separate civil proceeding, Petitioner filed in the Circuit Court for Anne Arundel County a Complaint for a Declaratory Judgment seeking a declaration that he not be required to register as a sex offender under the Maryland sex offender registration statute, and that he be removed from the Maryland Sex Offender Registry. Petitioner’s Complaint advanced three arguments, including that to require him to register, when he was not informed of that requirement when he pled guilty, would improperly render his guilty plea involuntary. None of the arguments advanced in the Complaint, however, explicitly addressed the constitutionality of the registration requirement. After the State’s successful “Motion for Transfer of Action,” the case was transferred to the Circuit Court for Washington County, the county where Petitioner committed his crime, pled guilty, and was sentenced. During the Circuit Court proceedings, the parties addressed the issues presented in Petitioner’s Complaint. In addition, counsel for the State
Petitioner noted an appeal to the Court of Special Appeals. In Petitioner’s appeal, he once again contended that requiring him to register as a sex offender violated the terms of the plea agreement. In addition, Petitioner explicitly advanced challenges to the application of the statute on ex post facto, bill of attainder, equal protection, and due process grounds. The State argued that Petitioner failed to raise the four constitutional arguments in his Complaint and, hence, the arguments were not preserved for appeal. The intermediate appellate court determined that the due process and ex post facto arguments were properly raised in the trial court and, therefore, addressed them. The Court of Special Appeals, however, determined that the equal protection and bill of attainder arguments were not properly raised in the trial court and, accordingly, did not consider those issues. In an unreported opinion, the intermediate appellate court rejected all of Petitioner’s arguments and affirmed the trial court’s judgment requiring Petitioner to remain on the Maryland Sex Offender Registry. We issued a writ of certiorari in the present case,
1. Given the highly punitive and restrictive nature of Maryland’s newly enacted sex offender registration laws, does their retroactive application violate the federal constitutional ban on ex post facto laws and both clauses of Article 17 of*543 the Maryland Declaration of Rights prohibiting ex post fado laws and ex post fado restrictions?7
2. Do Maryland’s sex offender registration laws violate Mr. Doe’s federal and state constitutional rights to due process?
3. Given that the plea agreement entered into by Mr. Doe did not, and indeed could not have, contemplated registering as a sex offender, is he entitled to specific performance of the plea agreement?
DISCUSSION
As a preliminary matter, we shall address both parties’ contentions that this Court should not consider certain arguments. First, the State asserts in its brief to this Court that Petitioner did not raise the ex post fado issue in his Complaint, and therefore, this Court, on review of the case, should not consider the issue. We reject this argument. Maryland Rule 8-131 (a) provides that “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court....” Md. Rule 8-131 (a) (emphasis added). As noted recently in Duckett v. Riley,
Second, Petitioner includes in his Reply Brief to this Court a Motion to Strike the State’s argument that federal law precludes “Maryland courts from granting [Petitioner] the relief he seeks.... ” The State contends, in its brief to this Court, that the federal Sex Offender Registration and Notification Act, SORNA, 42 U.S.C. § 16901 et. seq., imposes upon Petitioner an “independent obligation to register as a Tier III sex offender.” The State therefore, asserts that this Court cannot grant Petitioner the relief he seeks, “an order exempting [Petitioner] from an obligation to register as a Tier III sex offender.” Petitioner specifically notes in his brief to this Court that he is challenging his registration requirements imposed by Maryland law, not federal law. Thus, the question of whether Petitioner is required to comply with federal law and what is required of Petitioner to comply is not before this Court. As Petitioner’s federal obligations are not before us, we need not, and do not, address the issue of whether they require him to independently register.
Moreover, Petitioner seeks ultimately a declaration exempting him from the obligation to register under the Maryland sex offender registration statute. We have held that a declar
I. The Sex Offender Registration Statute in Maryland
In order to address the ex post facto issue, it is necessary to provide some relevant history of sex offender registration in Maryland. In 1995, the Maryland General Assembly first enacted the Maryland sex offender registration statute. State v. Duran,
In 2001, the sex offender registration statute was amended and was applied retrospectively to different groups of sex offenders,
In 2009, the retroactive application of the statute was once again amended and registration was required of a child sex offender who committed his or her crime before October 1, 1995 but was convicted on or after October 1, 1995, irrespective of when the offender was incarcerated or under supervision. See C.P. § 11-702.1 (2001, 2008 Repl.Vol., 2009 Cum. Supp.); 2009 Md. Laws, Chap. 541.
In 2010, the sex offender registration statute was amended again, and among other things, the amendment addressed the retroactive application of the statute. See C.P. § 11-702.1 (2001, 2008 Repl.Vol., 2010 Cum.Supp.); 2010 Md. Laws, Chaps. 174 and 175. The 2010 amendment required retroactive registration of all persons who were already required to register on September 30, 2010, the day before the amendment went into effect. See C.P. § 11-702.1(a)(2) (2001, 2008 Repl.Vol., 2010 Cum.Supp.). This language had the consequence of incorporating the retroactive application of the statute as amended in 2009.
Petitioner committed the underlying child sex offense during the 1983-84 school year, long before 1995. He was not under custody or supervision of the State until after he was charged with the relevant offense in 2005. Therefore, Petitioner is required to register as a sex offender pursuant to the 2009 and 2010 amendments’ retroactive application of the sex offender registration statute.
Petitioner argues that “[g]iven their highly punitive and restrictive nature, retroactive application of Maryland’s sex offender registration laws violates the federal constitutional ban on ex post facto laws[
Furthermore, in determining that the retroactive application of the statute violates Article 17, we need not, and do not, address whether requiring Petitioner to register affects his
A. We examine Petitioner’s contention pursuant to Article 17 of the Maryland Declaration of Rights.
Article 17 of the Maryland Declaration of Rights provides: That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal, are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required.
Md. Decl. of Rts., Art. 17.
In the past, we have read the protection against ex post facto laws in Article 17 of the Declaration of Rights in pari materia with, or as generally having the same meaning as the Ex Post Facto Clause in Article 1 of the federal Constitution. See Dep’t of Public Safety and Corr. Serv. v. Demby,
Throughout our case law, we have recognized that, in many contexts, the protections provided by the Maryland Declaration of Rights are broader than the protections provided by the parallel federal provision. As we have stated:
Many provisions of the Maryland Constitution ... do have counterparts in the United States Constitution. We have often commented that such state constitutional provisions are in pan materia with their federal counterparts or are the equivalent of federal constitutional provisions or generally should be interpreted in the same manner as federal provisions. Nevertheless, we have also emphasized that, simply because a Maryland constitutional provision is in pan materia with a federal one or has a federal counterpart, does not mean that the provision will always be interpreted or applied in the same manner as its federal counterpart. Furthermore, cases interpreting and applying a federal constitutional provision are only persuasive authority with respect to the similar Maryland provisions.
Dua v. Comcast Cable,
In other contexts, we have ensured that the rights provided by Maryland law are fully protected by departing from the United States Supreme Court’s analysis of the parallel federal right. See Frey v. Comptroller of the Treasury,
We are persuaded, in the present case, to follow our longstanding interpretation of the ex post facto prohibition and depart from the approach taken by the United States Supreme Court when it analyzed the Alaskan sex offender registration statute in Smith v. Doe,
The prohibition against ex post facto laws is rooted in a basic sense of fairness, namely that a person should have “fair warning” of the consequences of his or her actions and that a person should be protected against unjust, oppressive, arbitrary, or vindictive legislation. See Demby,
Consistent with our precedent and the principles of fairness that underlie the ex post facto prohibition, we elect to diverge from limiting Article 17’s protections to only those provided by federal law. In Anderson v. Dep’t of Health & Mental Hygiene, 310 Md. 217,
In Anderson, we found further support for the “disadvantage” standard in four other United States Supreme Court cases: Miller v. Florida,
Two weeks after this Court issued Gluckstem, the United States Supreme Court overruled Kring, and disavowed the notion that the federal “Ex Post Facto Clause ... include[s] ... any change which alters the situation of a party to his disadvantage.” Collins v. Youngblood,
Our opinions in Lindsey, Weaver, and Miller suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the “disadvantage” of covered offenders.... But that language was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins v. Youngblood .... After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.
California Dep’t of Corr. v. Morales,
In 2003, in Smith v. Doe,
Although the Supreme Court applied the two-part test and offered a more narrow protection in Smith, the next year, in Khalifa, this Court did not reference the Supreme Court’s more limited two-part intent-effects test for addressing an alleged ex post facto violation. Rather, we reaffirmed our holding in Frost, that the “two critical elements” that “must be present” for a criminal or penal law to be an unconstitutional ex post facto law is that the law is retroactively applied to an offender, and that it disadvantages the offender. Khalifa,
With Collins, the Supreme Court limited the scope of the federal protection against ex post fado laws. We should not. Here, this Court is faced with a choice. We can follow stare decisis and continue to protect against laws that retroactively “disadvantage” an offender, which, as we maintained in Anderson, is “in manifest accord with the purpose of [the prohibition] to protect the individual rights of life and liberty against hostile retrospective legislation.”
As we have noted:
*558 Our institutional devotion to stare decisis is not absolute, but we nonetheless remain deeply respectful of the doctrine. Adherence to stare decisis is our preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Only a fundamental change in factual or legal circumstances will justify departing from this principle.
Houghton v. Forrest,
B. Requiring Petitioner to register violates Article 17 of the Maryland Declaration of Rights.
In the present case, the Maryland sex offender registration statute is applied retroactively to Petitioner. Only the retroactive application of laws will implicate Article 17’s protections. See Demby,
As we have determined that the sex offender registration statute has been applied retroactively to Petitioner, we next conclude that imposing registration upon Petitioner changes the consequences of Petitioner’s crime to his disadvantage.
Article 17’s prohibition is not implicated in purely civil matters. See Spielman v. State,
We begin by observing that Petitioner is required to register as a direct consequence of his commission of a sex offense and subsequent conviction for that offense. But for the fact that Petitioner committed a child sex crime and was subsequently convicted for that offense, he would not be labeled a Tier III sex offender and he would not be required to register. See C.P. §§ 11—701(q)(1)(ii); 11-704(a)(3) (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Thus, imposing registration alters the consequences for a prior crime and implicates the ex post facto prohibition. See Anderson,
In Anderson, we noted that “not every law passed after the commission of an offense, which changes the consequences of
First, requiring Petitioner to register has essentially the same effect on his life as placing him on probation. It is well-settled in this State that probation is a form of a criminal sanction. See Corbin v. State,
Petitioner testified that under threat of “arrest[ ] and incarceration]” he was required to register in 2009. See C.P. § 11-704 (2001, 2008 Repl.Vol., 2009 Cum.Supp.); C.P. § 11-721 (2001, 2008 Repl.Vol.). Petitioner 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. See C.P. §§ 11-705; 11-706, 11-707 (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Furthermore, he must disclose to the State a significant amount of information, some of which is highly personal, including: his employment address; information about his conviction; his social security 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. See C.P. §§ 11-706, 11-707 (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Additionally, other than to vote, Petitioner is prohibited from entering onto real property that is used as a school or a family child care center licensed under Title 5, Subtitle 5 of the Family Law Article, without first obtaining permission. C.P. § 11-722 (2001, 2008 Repl.Vol., 2012 Cum.Supp.). If Petitioner fails to comply with these requirements, he faces terms of imprisonment, depending on the violation, of up to three or five years. See C.P. §§ 11-721, 11-722(d) (2001, 2008 Repl.Vol., 2012 Cum.Supp.).
These restrictions and obligations have the same practical effect as placing Petitioner on probation or parole.
When Petitioner was sentenced in 2006 for his sex crime, the trial judge imposed a sentence of ten years incarceration, with all but four and one half years suspended, and three years supervised probation upon release from incarceration. Pursuant to the current Maryland sex offender registration
Moreover, the dissemination of Petitioner’s information pursuant to the sex offender registration statute, is tantamount to the historical punishment of shaming. When the Alaska and Indiana Supreme Courts concluded that the retroactive application of their respective sex offender registration statutes violated their state constitutions’ prohibition against ex post facto laws, the two courts both determined that public dissemination of information about registrants “at least resembles the punishment of shaming[.]” See Doe,
In Young v. State,
Amicus highlighted in its brief to this Court the harms caused by dissemination that render it the equivalent of the punishment of shaming. In one of the affidavits attached to Amicus’s brief, the affiant attests that he has had significant problems finding housing after his lease was terminated early and the property management company indicated that “being
Additionally, other harms caused by dissemination render its effects tantamount to the traditional punishment of shaming. A study by the United States Department of Justice indicated that 77% of registrants in another state surveyed reported “threats/harassment[.]” Richard G. Zevitz & Mary Ann Farkas, United States Department of Justice, National Institute of Justice, Sex Offender Community Notification,: Assessing the Impact in Wisconsin, at 10 (Dec.2000), available at https://www.ncjrs.gov/pdffilesl/nij/179992.pdf. And, the affidavit provided by the Executive Director of Families Advocating Intelligent Registries, a non-profit Maryland organization, indicates that the Director has received reports of children of registrants being bullied because of their parent’s status on the Registry. Another affiant stated that through her job and membership in family support groups, she is “aware ... that even those employers that do hire felons often have a policy that automatically excludes persons on the sex offender registry in order to avoid publication of the employer’s name/address on the registry and the accompanying negative publicity.”
Finally, when analyzing whether the retroactive application of its own sex offender registration statute violated the ex post facto prohibition in the Alaskan Constitution, the Alaska Su
In the present case, the statute places a registrant’s information, including his or her address, on the Internet for anyone with Internet access to see, and allows members of the public, who live in the county where a registrant will five, work, or attend school, by request, to receive email notifications of the registrant’s release from incarceration and “the registration information of the [registrant].” See C.P. § 11-717 (2001, 2008 Repl.Vol., 2012 Cum.Supp.). Examining dissemination in the context of whether it violates the prohibition against ex post facto laws, we, therefore, conclude that the dissemination provisions of the Maryland sex offender registration statute have an effect upon Petitioner that is tantamount to shaming.
When Petitioner committed his sex crime during the 1983-84 school year he did not face registration under the statute as a consequence for his crime. Registration was imposed, over twenty years later in 2009, under the sex offender registration statute as a direct consequence of Petitioner’s commission and conviction for his sex crime. The application of the statute has essentially the same effect upon Petitioner’s life as placing him on probation and imposing the punishment of shaming for life, and is, thus, tantamount to imposing an additional sanction for Petitioner’s crime. Therefore, we conclude that the imposition of the registration requirement upon Petitioner, as the result of amendments passed 25 years after Petitioner’s crime, to a statute passed over a decade after Petitioner’s commission of a crime is in violation of the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights.
Notes
. In addition to initial registration, this law imposes a number of obligations, restrictions, and consequences upon its registrants, including re-registering periodically with the State, disclosing personal infor
. Different registrants must register with different officials depending on the registrant’s status. The appropriate "supervising authority” is listed under C.P. § 11-701(n) (2001, 2008 Repl.Vol., 2012 Cum.Supp.). For example, a registrant who is in custody in a facility operated by the Department of Health and Mental Hygiene must register with the Secretary of Health and Mental Hygiene or a registrant who is under the supervision of the Division of Parole and Probation must register with the Director of Parole and Probation, or a registrant who is "not under the supervision, custody, or control of another supervising authority” must register with "the local law enforcement unit where the [registrant] is a resident....” See C.P. § 11-701(n) (2001, 2008 Repl.Vol., 2012 Cum.Supp.).
. John Doe is a pseudonym used after Petitioner successfully moved to have his name stricken from the record.
. The crime of child sexual abuse, since 1984, has been re-codified as Md.Code. Art. 27, § 35C, and then again as Section 3-601 of the Criminal Law Article, and then finally as Section 3-602 of the Criminal Law Article, where it is currently codified. See 1994 Md. Laws, Chap. 712; 2002 Md. Laws, Chaps. 26 and 273.
. Although Petitioner named the Department of Public Safety and Correctional Services, an agency of the State, the defendant in this
. We note that the trial judge did not have discretion to deny Petitioner declaratory relief. Technically, to comply with the Declaratory Judgments Act, the court was required to declare the parties’ rights in light of the issues raised. See Jennings v. Government Employees Ins. Co.,
. Consistent with our prior analysis of the ex post facto prohibition, we conclude that requiring Petitioner to register violates the prohibition against ex post facto laws under Article 17. Therefore, we need not, and do not, reach the question whether the language contained in Article 17, "nor any retrospective oath or restriction be imposed, or required!,]” would give rise to a separate ground for finding the application of the sex offender registration statute unconstitutional under Article 17.
. During the hearing on the “Complaint for Declaratory Judgment,” counsel for the State, Mr. Nathan, argued that the State can change a law to apply it retroactively. In response, the trial judge noted that "this [is] a question whether [] the requirement of the registration is punishment or a collateral consequence,” alluding to a potential ex post facto issue. Mr. Nathan addressed the potential ex post facto issue arguing that in Young v. State,
There are no constitutional violations [from imposing registration upon Petitioner]. As I said, the General Assembly is well within its rights to.... to enact statutes requiring retroactive registration. The appellate courts in this State have upheld that. There is no ex post facto implication.
. In the time since the Maryland sex offender registration statute went into effect in 1995, there have been a number of amendments to the statute. See e.g. Md.Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.), Art.
. "Article I, Section 10 of the Constitution of the United States provides in part that ‘no State shall ... pass any ... ex post facto Law....'” Khalifa v. State,
. In Michigan v. Long,
If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, [the United States Supreme Court], of course, will not undertake to review the decision.
. The highest courts in Alaska and Indiana have concluded that a retroactive application of their state's own sex offender registration statute violates their respective state constitution’s prohibition against ex post facto laws. See Doe v. State,
. In his article, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977), United States Supreme Court Justice William J. Brennan Jr. noted that "state courts no less than federal are and ought to be the guardians of our liberties[,]” and counseled that "[S]tate courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the [United States] Supreme Court's interpretation of federal law.” 90 Harv. L.Rev. at 491. Justice Brennan appealed to State courts to remember:
[T]he decisions of the [United States Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by the counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them.
90 Harv. L.Rev. 502 (footnote omitted).
. Those four categories are: (1) ”[e]very law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action!';]” (2) "[e]very law that aggravates a crime, or makes it greater than it was, when committedf;]” (3) ”[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed[;'j” and (4) ”[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Calder v. Bull,
. The United States Supreme Court decided Smith v. Doe, supra, in 2003. In 2004, we decided State v. Raines,
. Applying this Court's long-standing approach rather than following the United States Supreme Court’s approach to the federal Constitution’s prohibition against ex post facto laws, recognizes that Article 17, previously codified as Article 15, is an independent protection provided by the Maryland Constitution; an independent provision for over 230 years. See Dan Friedman, The History, Development, and Interpretation of the Maryland Declaration of Rights, 71 Temp. L.Rev. 637, 656 (1998) (noting that the protection against ex post facto laws has been in the Maryland Declaration of Rights since 1776); 1 Bernard Schwartz, the Bill of Rights: A Documentary History, at 281 (N.Y.1971) (same). To ensure the independent protection intended by Article 17, we elect not
. This standard is very similar to the standard traditionally used by the Supreme Court, that “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed” violates the federal prohibition on ex post facto laws. Calder,
. As we noted in Patuxent v. Hancock,
. The State’s argument that we should conclude that the sex offender registration statute is a civil law and thus its retroactive application does not offend the prohibitions against ex post facto laws relies on our decision in Young v. State,
. The State relies on the Smith Court’s conclusion that disabilities faced by registrants as a result of the public dissemination of their information is actually a result of publically available conviction records, not the dissemination of registrants’ information. See Smith,
Concurrence Opinion
Concurring Opinion by
I write separately because, although I would give John Doe relief, I would not grant relief on the same basis as the Plurality opinion. Instead, I would direct specific performance of Mr. Doe’s guilty plea, not to include requirement of registration as a child sexual offender.
The Plurality opinion posits its granting of relief solely on its ex post facto analysis under Article 17 of the Maryland Declaration of Rights. I would not do so. The reasoning of the Plurality opinion is faulty and, therefore, so is its conclusion. To my mind, a correct reading of Article 17 and the most relevant cases leads to the conclusion that Doe is not entitled to the relief he seeks on the constitutional arguments he makes.
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; (8) 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) requir
Smith v. Doe,
Although the Maryland registration statute does not state expressly its legislative purpose, the Court of Appeals found in Young that the statute’s overall design and plain language indicate that it was intended as a “regulatory requirement” aimed to protect the public rather than to punish or stigmatize offenders. Young,
Nevertheless, significant revisions to the Maryland registration statute have occurred since the Young court reviewed the statute in 2002. The Supreme Court in Smith and the Court of Appeals in Young concluded that registration statutes traditionally have “not been regarded as punishment,”
A second factor to consider is whether the registration statute imposes impermissibly an affirmative disability or restraint on registrants. A registration statute involves an affirmative disability or restraint when either result would occur, apart from consequences common to registering as a sex offender, such as inability to find work or housing due to employers’ or landlords’ routine background and criminal checks, or seeking permission before changing jobs or residences. Id. at 100,
The Young court recognized that, although basic registrant-identifying information was “not unreasonably burdensome,” the community notification provisions of the statute imposed “highly stigmatizing” labels.
Furthermore, both Smith and Young relied on the state legislatures’ conclusions that sex offenders pose a substantial risk of recidivism. See Smith,
New research since 2002, however, presents a different policy perspective to Young’s holding. Applying 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. See, e.g., Catherine L. Carpenter, Legislative Epidemics: A Cautionary Tale of Criminal Laws that Have Swept the Country, 58 Buff. L.Rev. 1, 58-59 (2010) (noting that, “[djespite the persistent statements that expansive sex offender registration laws are essential tools to protect the community,” the efficacy of such laws is in doubt); see also Human Rights Watch, No Easy Answers: Sex Offender Laws in the U.S. 21-33 (Sept.2007). Several states have used such findings to hold that their sex offender registration statutes constitute retroactive punishment in violation
The Court in Young noted that the consequences of the 2002 Maryland registration statute’s widespread community notification — namely, stigmatization, social ostracism, loss of employment, and harassment — implicate liberty and privacy interests inherent to due process.
Doe contends that the statutory requirements harmed his reputation and his “fundamental” rights to property, privacy, and employment, and that he has a procedural due process right to an individualized determination of his imputed dangerousness. A correct interpretation of relevant precedent, however, does not support Doe’s arguments. As to Doe’s
Second, the U.S. Supreme Court’s decision in Connecticut Department of Public Safety v. Doe forecloses Doe’s argument that he is entitled to a hearing before being required to register. In Connecticut Department, the Court held that procedural due process did not entitle a sex offender to a hearing to determine dangerousness before being required to register because the offender’s present dangerousness was irrelevant to the statute’s registration requirement.
In the present case, the Maryland Rule 4-243 hearing record from 2006 does not indicate that sex offender registration was a term of Doe’s plea agreement. The plea agreement was limited to a five-year term, and it was only at the sentencing hearing that the judge ordered Doe to register as a sex offender. Assuming that a registration term would be included in an agreement at Doe’s 2006 plea hearing, a reasonable person in Doe’s position likely would understand that registering as a sex offender was not a part of the agreement. See id. at 581-83,
Furthermore, the policy arguments of good faith and efficiency of plea negotiations support using the Cuffley approach
Accordingly, I would reverse the judgment of the Court of Special Appeals, remand to that court with directions to reverse the judgment of the Circuit Court for Washington County and direct the Circuit Court to enter a declaratory judgment consistent with the views expressed here, including any further proceedings required to enforce specifically Doe’s plea agreement, which does not include him having to register as a sex offender as the result of the crime he committed in 1984.
. In Smith, the Supreme Court considered the Alaska sex offender registration statute, which: (1) required registration with state or local law enforcement authorities; (2) publicized registration and non-confidential information on the Internet; and (3) applied retroactively to offenders who had been convicted before the law's enactment Smith,
. In his dissent, Justice Stevens advocated a different analytical approach to an ex post facto challenge: looking at the Act’s application and effect, he distinguished other cases in which the ex post facto challenge was rejected on the ground that, unlike other cases, "a criminal conviction under these [analogous] statutes provides both a sufficient and a necessary condition for the sanction.” Smith,
. The relevant factors include, but the analysis is not limited to: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has been regarded historically as punishment; (3) whether its operation will promote the traditional aims of punishment: retribution and deterrence; (4) whether the behavior to which it applies is a crime already; (5) whether the law has a scienter requirement; (6) whether it lacks an alternative purpose to which it may be connected rationally; and (7) if such an alternative does exist, whether the statute appears excessive in relation to the alternative. Mendoza-Martinez,
. In an unpublished opinion, the Court of Speeial Appeals declined to address Doe's substantive due process claim because he waived it by failing to raise the claim in his initial brief.
. In Cuffley, the Court considered the legality of a defendant’s sentence that exceeded the incarceration guidelines, but suspended all but part of the sentence that fell within the guidelines, as agreed to in the defendant's plea agreement.
Concurrence Opinion
Concurring Opinion by
which ADKINS, J., joins.
I concur in the judgment of the Court. However, I would not rest our decision on the new interpretation of Article 17 offered by the plurality opinion.
Judge ADKINS joins in this opinion.
. This Court has repeatedly stated that Article 17 has "the same meaning” as the parallel federal constitutional provision, E.g., DPSCS v, Demby,
. Although six judges would reverse the judgment of the Court of Special Appeals, they do not agree on the rationale for that outcome. With regard to the ex post facto claim in particular, five judges — Chief
Dissenting Opinion
Dissenting Opinion by
Respectfully, I dissent. For reasons I shall explain, I do not believe Petitioner is entitled to the relief he seeks under the federal'and state law grounds he asserts. I agree with Judge McDonald that the Plurality’s interpretation of Maryland’s ex post facto prohibition is unsupported by the language or history of Article 17 of the Maryland Declaration of Rights.
I.
This Court has traditionally construed Article 17 in pari materia, with the federal Ex Post Facto Clause and has declared repeatedly that the two clauses have the same meaning. See, e.g., Sec’y, Dep’t of Public Safety and Corr. Servs. v. Demby,
The Ex Post Facto Clause of the federal Constitution, in relevant part, forbids “[ejvery law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Stogner v. California,
The test the Plurality puts forward for detecting an ex post facto law is drawn largely from Anderson v. Department of Health and Mental Hygiene. See Doe,
The Anderson Court, relying on Kring v. Missouri,
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Calder,
Neither am I persuaded, as the Plurality is, that the post-Collins cases of this Court demonstrate a lineage of ex post facto decisions that demands our adherence in the present case to the Kring/Anderson test, under principles of stare decisis. In not one of the post-Collins cases cited in the Plurality opinion did this Court declare that the ex post facto caselaw in Maryland no longer takes into account, much less applies, the federal ex post facto analysis. Indeed, the Maryland ex post facto cases relied upon by the Plurality — Demby, Khalifa, Frost, Gluckstem, and Anderson — invoke in one way or another the notion that Article 17 and the Ex Post Facto Clause of the federal Constitution have essentially the same meaning.
This Court’s analysis should focus on whether the law at issue affects not mere “consequences” but rather the “definition of crimes, defenses, or punishments,” as that is the true concern of the ex post facto prohibition. Collins,
Smith v. Doe,
We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks,521 U.S. 346 , 361 (117 S.Ct. 2072 ,138 L.Ed.2d 501 ] (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Ibid. (quoting United States v. Ward,448 U.S. 242 , 248-249 [100 S.Ct. 2636 ,65 L.Ed.2d 742 ] (1980)).
The first, “intent” prong of the Smith v. Doe test requires the courts to inquire “whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. at 93,
If a reviewing court concludes that the legislative intent in enacting the scheme is nonpunitive, then the second, “effects” part of the Smith v. Doe test requires the court to determine whether, notwithstanding that the legislation is intended to be civil, its effects are so punitive that they negate its civil purpose. The Supreme Court identified a number of “guideposts” to assist in answering that question with respect to a sex offender registration law:
The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.
Id. at 97,
With regard to the first, “intent” part of the test, I am convinced that the General Assembly did not intend the 2009 and 2010 amendments to be punitive, but rather intended the amendments to accomplish two public-safety, regulatory ends. The General Assembly obviously intended to incorporate the provisions of the federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., enacted in 2006.
The 2009 and 2010 amendments to the Maryland sex offender registration law in large measure respond directly to SORNA.
Notably, every federal court of appeal that, to date, has been asked to examine the question has rejected an ex post facto challenge to SORNA. See United States v. Felts,
The features of Maryland’s current registration law, although not identical to SORNA, are in material respect sufficiently like the federal act and reflect the General Assembly’s civil regulatory intent in enacting the 2009 and 2010 amendments. Like SORNA, see 42 U.S.C. §§ 16915, 16916, Maryland requires Tier III offenders, such as Petitioner, to register in person every three months for life, Md.Code (2001, 2008 RepL.Vol., 2012 Supp.) § 11-707(a)(2), (4) of the Criminal Procedure Article (“CP”). SORNA allows officials to take a current photo of the registrant during each in-person verification, 42 U.S.C. § 16916; the Maryland law requires an updated photograph of all registrants to be taken every 6 months, CP § 11-707(a). SORNA requires registrants to notify at least one jurisdiction in which they are registered in person
That the current Maryland sex offender registration law imposes upon registrants certain additional requirements
The Maryland sex offender registration law, in my view, also passes constitutional muster under the second, “effects” step of Smith v. Doe. Put simply, Petitioner has not met his burden to establish by the “clearest proof’ that the Maryland law transforms what is obviously a civil remedy into a criminal penalty. To be sure, Maryland’s current sex offender registration law includes requirements that were not provided by either Alaska’s Megan’s Law reviewed by the Supreme Court in Smith v. Doe or the earlier version of the Maryland sex offender law this Court reviewed in Young. See supra note 3. That the requirements imposed under the current civil registration regime are more burdensome than at the time of the registrant’s conviction and the dissemination provisions work to the “disadvantage” of the registrant, as the Plurality asserts, does not mean that retrospective application of those requirements renders the Maryland scheme an ex post facto law. As I have noted, the “disadvantage” language that once played a key role in the ex post facto analysis no longer does so; instead it is the intent-effects test of Smith v. Doe that pertains.
The same rationale holds for the provision of the current Maryland law permitting community members to request email notification when an offender is released from incarceration in his or her county. See CP § 11-717(d); Smith v. Doe,
Neither, to my mind, does the current Maryland law necessarily constitute an “affirmative disability or restraint,” as that term is understood in ex post facto law. First, the Maryland law “imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint.” Id. at 100,
Likewise nonpunitive in their effects are the requirements of providing advance notice of travel and temporary change of
Furthermore, the registration and notification features of the current scheme have a rational connection to the regulatory purpose of the legislative scheme. That there exists evidence of a strong connection between the features of a regulatory scheme and the obvious, nonpunitive legislative purpose behind that law is a “[m]ost significant” factor in the analysis. Smith v. Doe,
The duration of the registration and notification requirements and the nature of what information must be reported are rationally connected to the public safety purpose of the Maryland law; so too is the feature of the law that classifies offenders in tiers based on the nature of the underlying conviction, rather than an individualized assessment. As was true of Alaska’s Megan’s Law, considered in Smith v. Doe, the “broad categories,” the “corresponding length of the reporting requirement,” and the notification features of the Maryland law are “reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.”
As for the last factor of the “effects” part of the analysis, I conclude that the features of Maryland’s current sex offender
Finally, even if I were to consider it a “close call” as to whether the current Maryland scheme were punitive in its effects, I would be bound in that instance to defer to the General Assembly. In Smith v. Doe, Justice Souter disagreed with the Court that the “civil indications” of the Alaska legislature’s intent in enacting that state’s Megan’s Law outweigh the indications of that law’s “punitive character,” but he ultimately concurred in the judgment upholding the constitutionality of the law. Id. at 110,
For all these reasons, the 2009 and 2010 amendments to the Maryland scheme do not in their effects constitute punishment. It follows, then, that retroactive application of those requirements does not constitute an increase in punishment, which, of course, is the essence of an ex post facto law. In coming to the contrary conclusion, the Plurality mistakenly relies upon a now-discredited test to analyze the constitutionality of the current sex offender registration provisions. Furthermore, in the end, the result reached by the Majority of the Court intrudes upon the prerogative of the General Assembly to make a law that does not violate either the Constitution of
In my assessment, proper application of the test for ex post facto espoused by the Supreme Court in Smith v. Doe and in recent Maryland cases leads to but one conclusion. I would hold that, because the statute is nonpunitive in either intent or effects, its retroactive application to Petitioner and others similarly situated does not violate the Ex Post Facto Clause of the United States Constitution or the ex post facto prohibition of Article 17.
II.
Petitioner separately argues that the Maryland sex offender registration scheme violates his right to due process. I agree with Judge Harrell that this contention has no merit. Indeed, it seems to me that Connecticut Dep’t of Public Safety v. Doe,
A number of courts around the country have followed Connecticut Dep’t of Public Safety v. Doe to hold that their respective sex offender registration laws, similar to Maryland’s, do not offend due process. See Doe v. Michigan Dep’t of State Police,
III.
Petitioner argues that, by application of Maryland Rule 4-243 and this Court’s decision in Cuffley v. State,
Maryland Rule 4-243(c) requires that the prosecutor and defense attorney “advise the judge of the terms of the agreement.” The judge may then accept or reject the plea but, if the agreement is approved, “the judge shall embody in the
In Cuffley, we considered whether a judge violated the terms of a plea agreement by imposing a sentence above the guidelines range, and suspending all but part of it, when the plea agreement called for a sentence “within the guidelines.” Id. at 573,
Judge Harrell stretches the rule of Cuffley to reason that, because sex offender registration was not a term of Petitioner’s plea agreement, he should not be required to comply with current sex offender registration requirements. Cuffley plainly does not apply to the case before us. Cuffley and the rule emanating from it focus on “the meaning of the sentencing
A sentencing court does not impose sex offender registration as part of the sentence. See Md. Rule 4-243(e)(3) (directing that “the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action”). Because the Supreme Court in Smith v. Doe and this Court in Young have held that sex offender registration is not punishment, it follows that imposing it on a defendant does not make the registration requirement a part of the sentence. On this point Judge Harrell surely must agree, given his reasons for why, in his view, Maryland’s current sex offender registration scheme is neither an ex post facto law nor in violation of Petitioner’s right to due process.
The requirements of the registration regime generally are triggered automatically by operation of law, once the defendant is convicted of a qualifying crime.
It follows that, if registration is not punishment and is imposed mandatorily by operation of law, then it is a collateral consequence of a plea agreement. The conclusion that sex offender registration is a collateral consequence is one that other courts have reached, as well. For instance, the Supreme Court of Idaho has held that the failure of the trial court to advise a defendant of sex offender registration requirements did not render his plea invalid. Ray v. State,
The requirement that Petitioner register as a sex offender likewise had no effect on the ultimate range of punishment he faced upon conviction. Because sex offender registration is not punishment, but a collateral consequence of a conviction, it was not required to be included as part of Petitioner’s plea agreement.
Specific enforcement of the plea agreement, i.e., “the benefit of the bargain,” is one of two options available to a defendant when “the record of the plea proceeding clearly discloses what the defendant reasonably understood to be the terms of the agreement.” Cuffley,
The State and the Court made no promises in the plea agreement or during the plea hearing that Petitioner would not have to register as a sex offender. Indeed, the plea agreement is silent on the matter, which was acceptable under the law, given the collateral nature of the registration requirement. Because there was no agreement with Petitioner that he would not be subject to the collateral consequence of registration as a sex offender, either at the time of the plea or at some future time, it follows that there was no “breach” of the agreement entitling him to the relief he now seeks.
IV.
For these reasons, I respectfully dissent. I would affirm the judgment of the Court of Special Appeals.
. Following Collins v. Youngblood, the Supreme Court made clear that the progeny of Kring, also relied upon in our Anderson decision, are "inconsistent with the framework developed in Collins.” California Dep’t of Corr. v. Morales,
. As Judge Harrell points out, Young v. State,
. We pointed out in Young that, although the intent-effects test was gleaned from United States v. Ursery,
. The express purpose of SORNA (Title I of the Adam Walsh Child Protection and Safety Act of 2006) is "to protect the public from sex offenders and offenders against children” through "a comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901 (2006). Congress directed the Attorney General to decide if SORNA’s registration requirements apply to sex offenders convicted before its passage. 42 U.S.C. § 16913(d). The Attorney General determined that those requirements "apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3 (2007).
. I have mentioned that Young involved a due process challenge to Maryland’s then-current sex offender registration statute. Much of the analysis of the claim in Young is pertinent to the ex post facto analysis insofar as both analyses look to the relevant factors noted in Kennedy v. Mendoza-Martinez,
which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. Because the Mendoza-Martinez factors are designed to apply in various constitutional contexts, we have said they are "neither exhaustive nor dispositive” but are “useful guideposts.”
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and*588 deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned....
Id. at 168-69,
. SORNA authorizes a mechanism for instructing jurisdictions to "recapture” several categories of sex offenders. See Dep’t of Justice, Sex Offender Registration and Notification Act Substantial Implementation Checklist, Part VII, indicating that a jurisdiction should recapture three categories of offenders, including "[tjhose who are: Incarcerated or under supervision, either for the predicate sex offense or for some other crime. Already registered or subject to a pre-existing sex offender registration requirement under the jurisdiction's law. Reentering the jurisdiction’s justice system because of conviction for some other crime (whether or not a sex offense).” See also The National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38,030, 38,063 (July 2, 2008) ("Jurisdictions are specifically required to register such sex offenders if they remain in the system as prisoners, supervisees, or registrants, or if they later reenter the system because of conviction for some other crime (whether or not the new crime is a sex offense).”).
The failure of a jurisdiction to implement SORNA can result in the loss of 10% of the Byrne Justice Assistance grants that would have otherwise been allocated to the State. 42 U.S.C. § 16925. The retroactivity provisions of Maryland’s sex offender registration scheme in CP § 11-702.1, a result of the 2010 amendments, closely match these classes of sex offenders to be "recaptured.” This, in my view, is further evidence that the General Assembly enacted the retroactivity provision of the Maryland scheme not to punish the offender but, in part at least, to maintain federal funding.
. Under the Maryland scheme, the registrant must notify local law enforcement at least three days before leaving the United States to commence residence or employment or attend school in a foreign country. CP § 11-705(h). The Maryland scheme also requires the registrant to notify law enforcement (in person or in writing) prior to obtaining a temporary residence or altering the location where the registrant resides or habitually lives for more than five days or being absent from the location where the registrant resides or habitually lives for more than seven days. CP § 11—705(i). Notice must include the temporary address or location where the registrant will reside or live and contain the anticipated dates of absence. Id. Other than for voting purposes, the registrant is prohibited from knowingly entering school property and day care facilities unless the registrant is a student or parent of a student and obtains prior permission or promptly notifies a school official. CP § 11-722. Violation of the latter provision is a misdemeanor. Id.
. SORNA requires jurisdictions to "make available on the Internet, in a manner that is readily accessible to all jurisdictions and to the public, all information about each sex offender in the registry." 42 U.S.C. § 16918. I have mentioned that no federal court of appeal has found that this or any other feature of SORNA renders the federal scheme punitive in its effects.
. The current version of Maryland’s sex offender registration statute makes registration mandatory in most instances. There are exceptions, however, to this rule. A juvenile who has been adjudicated delinquent for certain acts may be required to register if the juvenile was at least 13 years old at the time of the act and is now at least 18; the State's Attorney or the Department of Juvenile Services requests registration; and the court determines by clear and convincing evidence, following a hearing, that the juvenile is at significant risk of committing an offense that is sexually violent or requires registration as a Tier II or Tier III sex offender. See CP § 11-704(c). Another instance of discretion occurs when a person has been convicted of kidnapping and the victim is an adult. In that instance, the person is only classified as a Tier III sex offender and required to register if ordered to do so by the court. See CP §§ 11-701(q)(1)(iv), 11-704(a) and § 3-502 of the Criminal Law Article. Neither of these exceptions applies in the case before us.
. Maryland Rule 4-242(f), entitled "Collateral consequences of a plea of guilty, conditional plea of guilty, or plea of nolo contendere,” currently requires that a defendant be advised that, by entering a plea to certain crimes, he or she shall have to register as a sex offender. That provision of the rule, however, became effective January 1, 2008, more than 18 months after Petitioner's 2006 plea hearing. Even were the rule in place at the time of Petitioner’s plea, the rule makes plain that the court's failure to inform Petitioner of the registration requirement would not allow him to evade the registration requirements. See Md. Rule 4-242(f) ("The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid.”).