62 A.3d 123 | Md. | 2013
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, 425 Md. 227, 40 A.3d 39 (2012), to consider the following three questions:
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, 428 Md. 471, 476, 52 A.3d 84, 87 (2012) (quotation omitted), “to ascertain the meaning of a ... rule of procedure we first look to the normal, plain meaning of the language.” The use of the word “or” indicates that an issue must be raised in or decided by the trial court, but it is not necessary for both to occur to preserve the issue for appellate review. The ex post fado issue was raised in the trial court and addressed by both the State and the trial
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, 407 Md. 532, 546-47 n. 7, 967 A.2d 184, 192 n. 7 (2009) (quotation omitted); 1995 Md. Laws, Chap. 142. As enacted, the statute applied prospectively to sex offenders who committed their crimes after the statute went into effect on October 1, 1995. See 1995 Md. Laws, Chapter 142, § 3.
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, 390 Md. 580, 608, 890 A.2d 310, 327 (2006) (citations omitted); Khalifa v. State, 382 Md. 400, 425, 855 A.2d 1175, 1189 (2004) (citations omitted); Evans v. State, 382 Md. 248, 280 n. 13, 855 A.2d 291, 310 n. 13 (2004) (citations omitted). We have indicated, however, that this Court will not always limit the protection provided by Article 17 to that which is provided by the federal Constitution. In Allstate Ins. Co. v. Kim, 376 Md. 276, 289-90, 829 A.2d 611, 618-19 (2003), we explained that when determining if the retroactive application of a statute “contravene[s] some Constitutional right or prohibition,” including
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, 370 Md. 604, 621, 805 A.2d 1061, 1071 (2002) (emphasis in original); see also Attorney General v. Waldron, 289 Md. 683, 714, 426 A.2d 929, 946 (1981) (citation omitted) (“Although the equal protection clause of the fourteenth amendment and the equal protection principle embodied in Article 24 [of the Maryland Declaration of Rights] are
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, 422 Md. 111, 177, 29 A.3d 475, 513 (2011) (“[E]ven though we have already determined that the [challenged tax] does not violate the Equal Protection Clause of the federal Constitution, we must address separately whether, under the applicable Maryland authorities, that tax violates the State’s equal protection guarantee.”); Parker v. State, 402 Md. 372, 399, 936 A.2d 862, 878 (2007) (determining that if under the United States Supreme Court’s interpretation of federal law, the Fourth Amendment’s
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, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). In Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 44 (1990), the United States Supreme Court rejected the “disadvantage” standard, which, as noted below, was articulated in Kring v. Missouri, 107 U.S. 221, 235, 2 S.Ct. 443, 455, 27 L.Ed. 506, 511 (1883), and Weaver v. Graham, 450 U.S. 24, 29, 33-34, 101 S.Ct. 960, 964, 966-67, 67 L.Ed.2d 17, 23, 26 (1981), and adopted by this Court in Anderson v. Dep’t of Health & Mental Hygiene, 310 Md. 217, 224, 226-27, 528 A.2d 904, 908, 909 (1987). We, however, have not abandoned the “disadvantage” analysis. Repeatedly in cases where we have addressed the ex post facto prohibition since the Supreme Court decided Collins, we have said, the “two critical elements” that “must
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, 390 Md. at 608-09, 890 A.2d at 327 (citations and quotations omitted) (noting that there are “[t]wo paramount protections” provided by prohibitions against ex post facto laws; “the assurance that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed,” and a restriction on “governmental power by restraining arbitrary and potentially vindictive legislation”); Khalifa, 382 Md. at 425, 855 A.2d at 1189 (emphasis and quotations omitted) (noting that the basis for ex post facto protections is to “assure that legislative Acts give fair warning of their effect!,]” and to “protect!] liberty by preventing governments from enacting statutes with manifestly unjust and oppressive retroactive effects”); see also Lewis v. State, 285 Md. 705, 713, 404 A.2d 1073, 1077 (1979) (citations omitted) (concluding that because a procedural rule, as it existed at the time of the defendant’s trial, precluded the trial from going forward, even if this Court were to change the rule, we would do so prospectively because “Although it might not violate constitutional requirements to now modify the common law rule and apply such change retroactively to validate the defendant’s unlawful trial, to do so may, in our view, impinge upon basic fairness.”); Commonwealth v. Murphy, 389 Mass. 316, 451 N.E.2d 95, 99 (1983) (recognizing that “the concept underlying the prohibition against ex post facto laws is ... based on fundamental fairness”).
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, 528 A.2d 904 (1987), we were asked to determine whether a change in the law making it harder for a person to be released from a mental hospital, to which he had been committed as a result of a criminal conviction, violated both Article 17 and the federal prohibition against ex post facto laws. We first stated that both the federal and Mary
In Anderson, we found further support for the “disadvantage” standard in four other United States Supreme Court cases: Miller v. Florida, 482 U.S. 423, 430-31, 107 S.Ct. 2446, 2451-52, 96 L.Ed.2d 351, 360-61 (1987); Weaver, 450 U.S. at 29, 33, 101 S.Ct. at 964, 966-67, 67 L.Ed.2d at 23, 26; Lindsey v. Washington, 301 U.S. 397, 401-02, 57 S.Ct. 797, 799, 81 L.Ed. 1182, 1186 (1937); and In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835, 840 (1890). 310 Md. at 226-27, 528 A.2d at 909. Three years later, in the 1990 case, Gluckstern v. Sutton, 319 Md. 634, 574 A.2d 898 (1990), we relied on this Court’s opinion in Anderson and the Supreme Court’s decisions in Medley, Lindsey, and Weaver, and held that a law making it more difficult for a person confined at the Patuxent Institution to be paroled violated Article 17 and Article 1 of the federal Constitution because it “clearly operated to [the offender’s] disadvantage.” 319 Md. at 664-67, 669, 574 A.2d at 912-14, 915.
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, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 44 (1990) (quotation omitted). Rather, the Supreme Court limited the prohibition against ex post facto laws to only the categories enumerated in Calder v.
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, 514 U.S. 499, 506-07 n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588, 595 n. 3 (1995) (citations omitted). In Collins and Morales, the Supreme Court abandoned the standard that the protection against ex post facto laws extends to laws, retroactively applied, that act to the disadvantage of the offender. We, however, have continued to interpret the prohibition against ex post facto laws, like the Supreme Court had in past cases, such as in Weaver and Kring, as protecting against laws, which, when retroactively applied, disadvantaged an offender. See Dep’t of Public Safety and Corr. Servs. v. Demby, 390 Md. 580, 609, 890 A.2d 310, 327 (2006); Khalifa, 382 Md. at 426, 855 A.2d at 1189-90; Frost v. State, 336 Md. 125, 136, 647 A.2d 106, 112 (1994).
In 2003, in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court employed a different approach when it analyzed whether the retroactive application of the Alaskan sex offender registration statute violated the federal ex post facto prohibition. In determining that it did not, the Supreme Court applied a two-part analysis to conclude that the Alaskan statute did not “constitute[ ] retroactive punishment forbidden by the Ex Post Facto Clause.” 538 U.S. at 92, 105-06, 123 S.Ct. at 1146, 1154, 155 L.Ed.2d at 176, 185. First, the Court determined “that the intent of the Alaska Legislature [in enacting Alaska’s sex offender registration statute] was to create a civil, nonpunitive regime.” 538 U.S. at 96, 123 S.Ct. at 1149, 155 L.Ed.2d at 179. Because the Supreme Court concluded that the Alaskan legislature intended the statute to be “civil,” the Court next examined whether there was “the clearest proof’ that the Alaskan sex offender registration statute was “so punitive either in purpose or effect as to negate [Alaska’s] intention to deem it civil.” 538 U.S. at 92, 123 S.Ct. at 1147, 155 L.Ed.2d at 176 (quotations omitted). Using the factors articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 661 (1963), the Supreme Court determined that the party challenging the retroactive application of the statute “[could not] show, much less by the clearest proof, that the effects of the law negate Alaska’s intention to establish a civil regulatory scheme[,]” and, therefore, concluded that Alaska’s sex offender registration statute “is nonpuni
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, 382 Md. at 426, 855 A.2d at 1189-90. And, two years later, in Demby, we once again quoted Weaver and its statement that the “two critical elements” that needed to be proven to prohibit a penal or criminal law as an ex post fado law were that it was retroactively applied and that it disadvantaged the offender. 390 Md. at 609, 890 A.2d at 327.
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.” 310 Md. at 224, 528 A.2d at 908 (quoting Kring, 107 U.S. at 229, 2 S.Ct. at 450, 27 L.Ed. at 509.) By doing so, we would, pursuant to Maryland law, continue to afford additional protections against ex post facto laws. Or, this Court can diverge from the standard we also acknowledged and confirmed in Khalifa, and Demby, and instead follow the Supreme Court’s analysis of the parallel federal protection applied in Smith, thereby narrowing the scope of Article 17’s protections.
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, 412 Md. 578, 586-87, 989 A.2d 223, 228 (2010) (citations and quotations omitted). The State has failed to persuade us that we should overrule Anderson and its progeny, and limit the protections provided by Article 17 to only those provided by the federal Constitution.
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, 390 Md. at 593 n. 10, 890 A.2d at 318 n. 10 (emphasis and quotation omitted) (“To prevail in an ex post facto claim, [claimants] must first show that the law that they are challenging applies retroactively to conduct that was completed before the enactment of the law in question.... ”). As noted above, Petitioner’s duty to register is imposed as a result of his conviction for a sex offense committed during the 1983-84 school year. The Maryland sex offender registration statute was passed in 1995. And, Petitioner was not required to register until sex offender registration was retroactively applied to him in 2009.
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, 298 Md. 602, 609, 471 A.2d 730, 734 (1984) (quoting Braverman v. Bar Ass’n of Baltimore, 209 Md. 328, 348, 121 A.2d 473, 483 (1956)) (citations omitted) (“[I]n Maryland, ‘the prohibition of ex post facto laws applies only to criminal cases. There is no clause in the Maryland Constitution prohibiting retrospective laws in civil cases.’ ”).
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, 310 Md. at 224, 230, 528 A.2d at 908, 911 (citations omitted) (noting that commitment to a state mental institution “is a direct consequence of adjudications at [Mr. Anderson’s] criminal trial that he was guilty of committing a crime but insane at the time of the crime[,]” and concluding that “[considering the nature of ... confinement [in the mental hospital] under Maryland law, and particularly the fact that it represents the disposition portion of an adverse judgment in a criminal case ... we believe that the confinement does implicate the ex post facto prohibition.” (Emphasis added)).
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, 428 Md. 488, 502, 52 A.3d 946, 954 (2012) (quoting United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 591, 151 L.Ed.2d 497, 505 (2001)) (“Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of
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, 189 P.3d at 1012 (footnotes omitted); Wallace, 905 N.E.2d at 380 (citations and quotations omitted). We conclude that the Maryland sex offender registration statute’s dissemination provisions have the same effect.
In Young v. State, 370 Md. 686, 806 A.2d 233 (2002), we examined an earlier version of the Maryland sex offender registration statute in the context of due process rights.
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.
. 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., 302 Md. 352, 355-56, 488 A.2d 166, 167-68 (1985).
. 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, 370 Md. 686, 806 A.2d 233 (2002), this Court determined that sex offender registration was not a punishment. Mr. Nathan went on to argue that in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court held that the Alaskan sex offender registration statute did not violate the federal ex post facto clause. Then, later in the hearing, he argued:
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, 382 Md. 400, 424, 855 A.2d 1175, 1189 (2004).
. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the United States Supreme Court held:
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.
463 U.S. at 1041, 103 S.Ct. at 3476, 77 L.Ed.2d at 1214. Our judgment is based exclusively upon our interpretation of the protections afforded by Article 17 of Maryland's Declaration of Rights. See Frankel v. Board of Regents, 361 Md. 298, 313-14 n. 3, 761 A.2d 324, 332 n. 3 (2000) (citations omitted); see also Marshall v. State, 415 Md. 248, 260, 999 A.2d 1029, 1035-36 (2010) (citations omitted).
. 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, 189 P.3d 999 (Alaska 2008); Wallace v. State, 905 N.E.2d 371 (Ind.2009). Additionally, the highest court in Ohio determined that the retroactive application of changes to Ohio's sex offender registration statute violates the Ohio constitution's prohibition against “retroactive laws.” See State v. Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108 (2011).
. 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, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798) (emphasis in original).
. The United States Supreme Court decided Smith v. Doe, supra, in 2003. In 2004, we decided State v. Raines, 383 Md. 1, 857 A.2d 19
. 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, 3 Dall. at 390, 1 L.Ed. at 650 (emphasis omitted). Under the Supreme Court’s approach in Smith, however, when determining if the application of a law inflicts a greater punishment, the fact that “in its necessary operation, the regulatory scheme [imposed by the sex offender statute]: has been regarded in our history and traditions as a punishment[,]” 538 U.S. at 97, 123 S.Ct. at 1149, 155 L.Ed.2d at 180, is only one factor in the seven-factor Mendoza test. Under Article 17, if the application of a law has an effect that is tantamount to imposing an additional criminal sanction, its retroactive application violates Article 17 of the Maryland Declaration of Rights.
. As we noted in Patuxent v. Hancock, 329 Md. 556, 620 A.2d 917 (1993), while probation is ordered by a judge before incarceration begins, and parole is granted while a party is incarcerated, both have the same consequence, that a criminal offender is allowed to spend a portion of his or her sentence released in the community if he or she adheres to prescribed conditions. 329 Md. at 574, 620 A.2d at 926
. 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, 370 Md. 686, 806 A.2d 233 (2002), that Maryland's sex offender registration statute did "not constitute punishment in the constitutional sense, as defined by the United States Supreme Court....” 370 Md. at 690, 806 A.2d at 235. In that case, however, we addressed whether the statute violated the petitioner's due process rights "in light of [the United States Supreme Court case] Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).” 370 Md. at 690, 806 A.2d at 235. Because in the present case we address the Petitioner's assertion in light of Maryland’s prohibition against ex post facto laws provided by Article 17, our decision in Young, and its conclusion that the statute was not a "punishment ... as
. 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, 538 U.S. at 98-99, 123 S.Ct. at 1150, 155 L.Ed.2d at 181. We disagree. First, there is a significant difference between the information that is available to someone who is specifically searching for information about a particular person and a list of all registrants available to any person with access to the Internet. See Doe v. State, 189 P.3d 999, 1011 (Alaska 2008). The increased accessibility of information about an offender to the public is the intended effect of creating a publically disseminated registry. See Smith, 538 U.S. at 99, 123 S.Ct. at 1150, 155 L.Ed.2d at 181 (noting that ‘'[widespread public access [to information about offenders] is necessary for the efficacy of the [sex offender registration] scheme”). Furthermore, while many of the disabilities, such as being denied a home or a job based on a background check, are
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, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and Young v. State, 370 Md. 686, 806 A.2d 233 (2002), are the two leading cases addressing ex post facto challenges to sex offender registration statutes.
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, 370 Md. at 712, 806 A.2d at 248. This was true, the Court noted, even if the 2002 statute was codified (as is the current registration statute) in the Maryland Criminal Procedure Article, or even if registration is triggered by a criminal conviction. Id. at 712, 714, 806 A.2d at 248-49. The Supreme Court in Smith also came to the same conclusion, even if Alaska — similar to Maryland — required that defendants be notified about the statute’s requirements. Smith, 538 U.S. at 95-96, 123 S.Ct. at 1148-49, 155 L.Ed.2d at 178-79; see also Md. Rule 4-242 (2012).
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,” 370 Md. at 714, 806 A.2d at 250, particularly if the State does not make “the publicity and the resulting stigma an integral part of the
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, 123 S.Ct. at 1151, 155 L.Ed.2d at 181-82. In-person registration requirements, however, may involve punitive restraints. Id. Currently, Maryland’s registration statute, as noted above, requires in-person registration for tier III offenders, such as Doe, every three months for life. See Md.Code, Crim. Proc. Art., § 11-707(a).
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. 370 Md. at 713, 806 A.2d at 249. These labels carried “the potential for social ostracism” because the statute allowed for dissemination of non-public and sensitive information about registrants, such as treatment received for personality disorder or a mental abnormality. Id. This risk is present potentially with Maryland’s statute, which
Furthermore, both Smith and Young relied on the state legislatures’ conclusions that sex offenders pose a substantial risk of recidivism. See Smith, 538 U.S. at 102, 123 S.Ct. at 1152, 155 L.Ed.2d at 183; Young, 370 Md. at 715, 806 A.2d at 250. A state can use reasonable means to legislate with regard to convicted sex offenders as a class; thus, requiring an “individual determination of their dangerousness” does not convert the statute into a punishment under the ex post facto clause. Smith, 538 U.S. at 103-04, 123 S.Ct. at 1153, 155 L.Ed.2d at 183-84. As long as a registration statute is tailored narrowly to prevent repetition of sex offenses and requires only qualifying sex offenders to register, as the Court found § 792 did in Young, it is not excessive in its deterrent purpose. See Young, 370 Md. at 715, 806 A.2d at 250.
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. 370 Md. at 713, 806 A.2d at 249. To raise a successful due process challenge involving damage to reputation, the “stigma-plus test” requires that, in addition to harming the plaintiffs reputation, the state’s conduct must have harmed the plaintiff in an additional way. Doe v. Dep’t of Pub. Safety & Corr. Servs., 185 Md.App. 625, 644, 971 A.2d 975, 986 (2009). The “plus” factor is met either by a violation of a “fundamental right” guaranteed by the U.S. Constitution or “the denial of a state-created property or liberty interest such that the Fourteenth Amendment’s Due Process Clause is violated.” Id. at 639, 643-44, 971 A.2d at 983-84, 986-87 (quoting Cooper v. Dupnik, 924 F.2d 1520, 1532 n. 22 (9th Cir.1989)). Conversely, procedural due process guarantees an opportunity for a hearing to establish a material fact when a claimant has suffered a deprivation of life, liberty, or property. Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4, 123 S.Ct. 1160, 1162-63, 155 L.Ed.2d 98, 102 (2003).
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. 538 U.S. at 4, 123 S.Ct. at 1162-63, 155 L.Ed.2d at 102. The Court relied on the finding that conviction of a qualifying offense is the sole factor in determining whether an individual must register as a sex offender — individual dangerousness is irrelevant. See id. at 5, 123 S.Ct. at 1163, 155 L.Ed.2d at 103-04. The Court of Special Appeals agreed with the Supreme Court’s reasoning in addressing the same issue under Maryland’s sex offender registration statute in Doe v. Department of Public Safety & Correctional Services, 185 Md.App. at 634-36, 971 A.2d at 980-82. Even if Doe was deprived of a protected interest, he does not have a due process right to a hearing because individual dangerousness is irrelevant to the 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, 7 A.3d at 564-66. The prosecutor’s testimony at the hearing in 2010 on the present declaratory judgment relief, as to what she and Doe’s attorneys discussed before the plea hearing, is irrelevant. See id.
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, 538 U.S. 84, 90-91, 123 S.Ct. 1140, 1145-46, 155 L.Ed.2d 164, 174-76 (2003). In Young, the Court of Appeals considered whether the 2002 sex offender registration statute, then codified as Maryland Code Article 27, § 792 (now § 11-701 of the Criminal Procedure Article) was an additional penalty that required a jury trial to prove the actual conditions precedent to registration. Young v. Maryland, 370 Md. 686, 690, 806 A.2d 233, 235 (2002).
. 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, 538 U.S. at 112, 123 S.Ct. at 1157-5, 155 L.Ed.2d at 189 (Stevens, J., dissenting) (emphasis in original).
. 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, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 660-62.
. 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. 416 Md. at 577, 7 A.3d at 562.
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, 390 Md. 580, 609, 890 A.2d 310 (2006). The plurality opinion suggests that the Supreme Court deviated from the common understanding of the prohibition against ex post facto laws in 1990 when it decided Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Plurality Op. at p. 553, 62 A.3d at 133-34. However, this Court has relied on Collins on several occasions when analyzing
. 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, 390 Md. 580, 608, 890 A.2d 310 (2006) (“We have held that the ex post fa,do clause in the Maryland Declaration of Rights has the same meaning as the federal clause.”); State v. Raines, 383 Md. 1, 26, 857 A.2d 19 (2004) (same); Khalifa, v. State, 382 Md. 400, 425, 855 A.2d 1175 (2004) (“The Ex Post Facto Clauses of the United States Constitution and Maryland Declaration of Rights have been viewed generally to have the ‘same meaning’ and are thus to be construed in pari materia.”)-, Evans v. State, 382 Md. 248, 280 n. 13, 855 A.2d 291
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, 539 U.S. 607, 612, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)); see Evans, 382 Md. at 281, 855 A.2d 291 (quoting same); see also Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (“Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.”). It is well-settled that the ex post facto prohibition applies not to civil regulatory regimes but to criminal laws or laws that are punitive in intent or effects. See Kansas v. Hendricks, 521 U.S. 346, 369-70, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (holding that a state’s civil commitment statute was nonpunitive and not a criminal proceeding, “thus remov[ing] an essential prerequisite for ... ex post facto claims”). Contrary to the Plurality’s view, it simply is not enough, for ex
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, 430 Md. at 553-54, 62 A.3d at 133-34; see also id. at 556, 62 A.3d at 135 (describing the test as follows: “[t]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective ... and it must disadvantage the offender affected by it.” (citations omitted)). There are two problems, as I see it, with employing in the present case the test used in Anderson.
The Anderson Court, relying on Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), and its progeny, concluded that “a law passed after the commission of a criminal act, affecting substantial rights, and changing the consequences of having committed the criminal act in a way that is disadvantageous to the defendant, falls within the ex post facto prohibition.” Anderson, 310 Md. at 227, 528 A.2d 904. The Supreme Court, however, no longer embraces Kring’s expansive view of what is prohibited by the Ex Post Facto Clause. In Collins v. Youngblood, the Court expressly overruled Kring, particularly the conclusion in that case that the Ex Post Facto Clause reaches “any change which ‘alters the situation of a party to his disadvantage.’ ”
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, 3 U.S. at 390. Anderson, to the extent it relies on a now-discredited analysis and language that the Supreme Court abandoned two decades ago in Collins, should not guide the disposition of the present case.
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, 497 U.S. at 51, 110 S.Ct. 2715. In other words, “Lajfter 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
Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), provides the proper test for ascertaining whether a facially civil regulatory scheme is, in effect, criminal in the sense that it imposes “punishment,” as that term is understood in ex post facto analysis. That case, which involved an ex post facto challenge to Alaska’s Sex Offender Registration Act, also referred to as Alaska’s “Megan’s Law,” lays out a two-part inquiry:
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)).
538 U.S. at 92, 123 S.Ct. 1140 (alteration in original). This Court has expressly relied on this same two-part, “intent-effects” test to reject a due process challenge to the earlier version
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, 123 S.Ct. 1140 (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). This is a matter of statutory construction, involving consideration of “the statute’s text and its structure to determine the legislative objective.” Id. at 92, 123 S.Ct. 1140. It is also relevant that, “where a legislative restriction ‘is an incident of the State’s power to protect the health and safety of its citizens,’ it will be considered ‘as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.’ ” Id. at 93-94, 123 S.Ct. 1140 (quoting Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). Therefore, “even if the objective of [the law at issue] is consistent with the purposes of the [respective state’s] criminal justice system, the State’s pursuit of it in a regulatory scheme does not make the objective punitive.” Id. at 94, 123 S.Ct. 1140. In other words, “[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.” Id.
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, 123 S.Ct. 1140. Yet, “[b]eeause we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at 92, 123 S.Ct. 1140 (emphasis added) (citations and internal quotation marks omitted). For that reason, this second, “effects” step in the analysis is a “steep one for those challenging a statute on [ex post facto ] grounds.” United States v. W.B.H., 664 F.3d 848, 853-54 (11th Cir.2011), cert. denied, — U.S.-, 133 S.Ct. 524, 184 L.Ed.2d 339 (2012). Reasoned application of this two-part, intent-effects test yields for me the conclusion that retroactive application of the 2009 and 2010
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, 674 F.3d 599, 606 (6th Cir.2012) (pointing out the “unanimous consensus among the circuits that SORNA does not violate the Ex Post Facto Clause”). In so holding, many courts have noted the civil or remedial intent of that statute. See, e.g., United States v. Elkins, 683 F.3d 1039, 1044-45 (9th Cir.2012) (“Elkins does not question that Congress, in enacting SORNA, intended to create a regulatory scheme, and we recognize that SORNA was created for the purpose of establishing a national system for the registration of sex offenders.”); W.B.H., 664 F.3d at 854-55, 860 (stating that Congress’s intent in enacting SORNA was “not to punish former sex offenders for their past crimes but to promote public safety by providing citizens with information about the whereabouts of sex offenders and assisting law enforcement in locating them”); United States v. Leach, 639 F.3d 769, 773 (7th Cir.2011) (observing that SORNA “is, in fact, regulatory”); United States v. Young, 585 F.3d 199, 204-06 (5th Cir.2009) (per curiam) (“Congress sought to create a civil remedy.”).
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, 538 U.S. at 105, 123 S.Ct. 1140 (noting that the online registry at issue was passive; information available on the Internet must be sought out by one who desires access to it). It is simply a fact of present-day society that the Internet is one of the most efficient and effective ways to disseminate information; as such, the use of the Internet in this way further supports the conclusion that “[t]he purpose and the principal effect of notification are to inform the public for its own safety.” Id. at 99, 123 S.Ct. 1140.
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, 123 S.Ct. 1140 (citing Hudson, 522 U.S. at 104, 118 S.Ct. 488). Furthermore, the obligations of the Maryland scheme are “less harsh than the sanctions of occupational debarment, which [the Supreme Court has] held to be nonpunitive.” Id. at 100, 123 S.Ct. 1140. Reporting in person at designated intervals certainly can prove inconvenient, even burdensome; it does not follow, though, that requiring this of the registrant is punitive. See ACLU v. Masto, 670 F.3d 1046, 1056 (9th Cir.2012) (holding that a Nevada law implementing SORNA was not punitive under the Smith v. Doe test).
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, 538 U.S. at 102, 123 S.Ct. 1140 (alteration in original) (quoting United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)).
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.” 538 U.S. at 102, 123 S.Ct. 1140; see id. at 104, 123 S.Ct. 1140 (“The State’s determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.”).
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, 123 S.Ct. 1140 (Souter, J., concurring in the judgment). He observed that “the substantial evidence does not affirmatively show with any clarity that the Act is valid,” yet he concluded that “[w]hat tips the scale for me is the presumption of constitutionality normally accorded a State’s law,” which “gives the State the benefit of the doubt in close cases like this one.” Id. That same rationale applies here.
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, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), decided the same day as Smith v. Doe, controls and completely disposes of Petitioner’s contention. In that case, a convicted sex offender argued that, by being required to register as a sex offender under Connecticut’s Megan’s Law, he was being deprived of a liberty interest — his reputation and status in the community— without being afforded a hearing on his individual level of dangerousness, as he claimed is required by the Due Process Clause. Id. at 6, 123 S.Ct. 1160. In rejecting that claim, the Supreme Court observed that “mere injury to reputation,” which is the type of injury Petitioner claims here, “does not constitute the deprivation of a liberty interest” that is subject to due process protections. Id. at 6-7, 123 S.Ct. 1160; see Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (an interest in reputation is “quite different from the ‘liberty’ or ‘property’ ” interests recognized in Supreme Court decisions and “is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law.”). The Court decided that, even if a liberty interest were implicated, the statute mandates that all sex offenders register by virtue of their convictions alone, regardless of individual dangerousness, and “due process does not entitle [a person] to a
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, 490 F.3d 491, 498 (6th Cir.2007); Doe v. Moore, 410 F.3d 1337, 1342, 1345-46 (11th Cir.2005); Doe v. Miller, 405 F.3d 700, 709, 711-16 (8th Cir.2005); Fullmer v. Michigan Dep’t of State Police, 360 F.3d 579, 582-83 (6th Cir.2004); Milks v. State, 894 So.2d 924, 926 (Fla.2005); People v. Stanley, 369 Ill.App.3d 441, 307 Ill.Dec. 689, 860 N.E.2d 343, 351-52 (2006). I would hold likewise that Maryland’s sex offender registration law does not violate Petitioner’s right to due process.
III.
Petitioner argues that, by application of Maryland Rule 4-243 and this Court’s decision in Cuffley v. State, 416 Md. 568, 7 A.3d 557 (2010), he is entitled not to have to abide by the requirements of the current sex offender registration law because compliance with those unforeseen requirements was not included as a term of the plea. Judge Harrell agrees with Petitioner; I do not.
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, 7 A.3d 557. In reviewing the plea agreement, we noted that “the meaning of the sentencing term of a binding plea agreement must be resolved by resort solely to the record established at the Rule 4-243 plea proceeding.” Id. at 582, 7 A.3d 557 (first emphasis added). The goal is “to determine what the defendant reasonably understood to be the sentence the parties negotiated and the court agreed to impose.” Id. The standard is an objective one, grounded in “what a reasonable lay person in the defendant’s position and unaware of the niceties of sentencing law would have understood the agreement to mean, based on the record developed at the plea proceeding.” Id. “When a defendant’s guilty plea rests in part on a promise concerning disposition, and the State or the court violates that promise, ‘the accused may obtain redress by electing either to have his guilty plea vacated or to leave it standing and have the agreement enforced at resentencing.’ ” Id. at 580-81, 7 A.3d 557 (quoting State v. Brockman, 277 Md. 687, 694, 357 A.2d 376 (1976)). We held in Cuffley that the court breached the plea agreement by imposing a sentence outside the agreed-upon guidelines range. Id. at 586, 7 A.3d 557.
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, 133 Idaho 96, 982 P.2d 931, 934 (1999). The Ray Court concluded that “sex offender registration is not a direct consequence of a guilty plea,” in part because (as in Maryland) registration is a “consequence of conviction over which the district judge has no direct control.” Id. at 935-36. The Supreme Court of Nevada confronted the same issue in Nollette v. State, 118 Nev. 341, 46 P.3d 87 (2002). The Nevada Court held that sex offender registration “is a collateral consequence of a guilty plea because it is not sufficiently punitive to have an immediate and direct effect on the defendant’s range of punishment.” Id. at 91.
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, 416 Md. at 583, 7 A.3d 557. The other option is for the defendant to withdraw his plea. Unlike in Cuffley, however, this is not a situation where a defendant bargained for a particular sentence — and had that plea agreement accepted by the court — only to receive a different sentence.
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, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Kring’s progeny, relied upon by the Plurality, include Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), and Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Though acknowledging as much, the Plurality continues to cite those cases as support for the continuing vitality of Anderson. See Doe, 430 Md. at 554-55, 62 A.3d at 134-35.
. As Judge Harrell points out, Young v. State, 370 Md. 686, 806 A.2d 233 (2002), analyzed the 2002 version of Maryland’s sex offender registration statute, which was codified at Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 792, but has since been amended and is now located at Maryland Code (2001, 2008 Repl.Vol., 2012 Supp.) §§ 11-701 through 11-727 of the Criminal Procedure Article (“CP”). See Doe, 430 Md. at 570 n. 1, 62 A.3d at 144 n. 1 (Harrell, J., concurring).
. We pointed out in Young that, although the intent-effects test was gleaned from United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135
. 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, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). In Smith v. Doe, the Supreme Court explained that the Mendoza-Martinez factors,
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.”
538 U.S. at 97, 123 S.Ct. 1140 (internal citations omitted). See also Young, 370 Md. at 713, 806 A.2d 233 ("In making the determination of whether § 792 has a punitive effect despite its regulatory intent, we look to the Mendoza-Martinez factors for guidance.”). The factors listed in Mendoza-Martinez are:
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, 83 S.Ct. 554 (footnotes omitted).
. 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.”).
