Jimmie Rogers v. State of Maryland, et al.
No. 32
In the Court of Appeals of Maryland
March 31, 2020
Watts, J.
September Term, 2019
MARYLAND SEX OFFENDER REGISTRY - REGISTRATION REQUIREMENTS -
Court of Appeals concluded that determination of fact necessary for placement on Maryland Sex Offender Registry-such as victim‘s age-must be made by trier of fact beyond reasonable doubt during adjudicatory phase of criminal proceeding.
Circuit Court for Anne Arundel County
Case No. C-02-CV-17-000296
Argued: January 10, 2020
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
Opinion by Watts, J.
Barbera, C.J., Hotten and Biran, JJ., dissent.
Filed: March 31, 2020
A conviction under
By contrast,
Against this backdrop, we consider whether a person, like Rogers, who is convicted of human trafficking under
We hold that, where Rogers pled guilty to violating
BACKGROUND
Criminal Case
Rogers was charged in the District Court of Maryland, sitting in Anne Arundel County, with several counts of human trafficking of a minor and prostitution arising out of an incident that occurred at a Red Roof Inn. In a sworn Statement of Charges, a law enforcement officer identified the victim as “a juvenile” and “a minor[.]” (Capitalization omitted). Subsequently, Rogers was charged by indictment in the circuit court with five counts of human trafficking of a minor in violation of
[O]n April 3rd of 2015[,] Trooper [C.G. Heid] of the Maryland State Police was working in an undercover capacity... actively looking for a missing young woman. . . . He had received word as part of a task force that he‘s on that she was missing and may be involved in prostitution against her will.
He found an ad in the Backpage ads, . . . which advertise for prostitution. And he called that number. He would have told you in his training, knowledge, and experience that in the Backpage ads they are advertising sex in exchange for money. And this ad had all of the hallmarks of those types of ads. And he would have told you in his training, knowledge, and experience he thought that perhaps this was the missing girl.
He called the number, . . . and . . . there was a voice on the other end. . . . The subject that answered the call stated, “Hello.” The voice clearly sounded like a man trying to disguise his voice to be that of a woman, according to the Trooper.
The Trooper asked that person on the other end of the line if that person was working today, and the person said, “Yes.” The person asked if the Trooper wanted to come see her today, saying that she was a woman. And the Trooper asked if he could come see her around 9:00 a.m., she said, “Yes.”
Based on the photos in the ad, it appeared that the hotel was the Red Roof Inn. The Trooper is familiar with that hotel, and . . . there are a lot of people engaging in prostitution out of that hotel, the Trooper would have told you in his training, knowledge, and experience.
They actually utilized surveillance around the motel in an attempt to locate another person who might be assisting the young woman who was in the ad. They know that through their training, knowledge, and experience that that is often the case that a pimp will be in the area, surveilling the area, leaving the hotel room just before a date, [with] a person coming to participate in the prostitution. Comes to the hotel room, and then the person who is supervising that prostitution will then come immediately thereafter.
They did go to that area, . . . which is located in Anne Arundel County, Maryland, at the Red Roof Inn. They surveilled from the inn next door, which is the Hampton Inn, they saw a person who would be identified as . . . Rogers[] walk to a room on the odd numbered side of the motel, two minutes later he came back to the vehicle that he had previously been in, and pulled away. And that was right at the time that they were coming for the 9:00 date.
At 9:22, they got a text from that same phone number that the Trooper had called previously, indicating that he should come to the Red Roof Inn . . . where they were already there surveilling. At 9:29 hours, he called back and the voice [that] answered . . . was clearly a female this time, same phone number but clearly a woman, a young woman, and certainly not the same person he
had spoken to earlier. The woman said that she would text the room, and at 9:31 she texted room 333. The Trooper arrived at room 333, knocked on the door. A young woman looked through the window and then came and opened the door, invited the Trooper in. Several Troopers then entered the room, identified themselves as police officers, and then spoke with the young woman who, in fact, was the missing girl. . . .
She was very nervous, constantly looking towards the curtain and the door. She said that her boss, those were her words, her boss would probably be coming back to the motel to keep an eye on her. She said that she was exchanging sex for money at his behest. She said that she was doing it because he was giving her drugs that she needed at that time, that she was addicted to drugs. . . .
She said that her boss rented the room for her. And, in fact, we would have produced evidence that [Rogers] did, in fact, rent room 333 [] for
several days, indicating that one person was staying there, and that was [the victim].
[S]he said he was currently holding $400 for her of her proceeds that she had made through prostitution. And by holding it later became clear that she meant he was not permitting her to have the proceeds of the prostitution. He was keeping them for himself. But she explained at that time that . . . their arrangement was that he was going to keep half of what she earned after each date. That he was providing security for her . . . and helps when she makes the dates.
She said that he posts her ads on the Backpage magazine on his phone, and then also takes her phone and uses that as well. She said that she felt pressure and . . . makes the dates because he yelled at her to do that. She indicate[d] that she had sexual intercourse with men for money and that she had done that over the past couple of days . . . in that very hotel room. She said that she did confirm that it was [Rogers] who had answered the phone when the Trooper had called and pretended to be her and set up the date.
She was subsequently taken into custody . . . and provided a very detailed recorded statement with more information with regard to the[] events. But suffice [it] to say, . . . [Rogers] was benefiting from the proceeds of prostitution, which he had convinced [the victim] to be involved [] in Anne Arundel County.
The victim‘s age was not included in the statement of facts or established during the plea proceeding.
The circuit court sentenced Rogers to ten years of imprisonment, with all but eighteen months suspended, with credit for 202 days served, followed by two years of supervised probation.
After Rogers‘s release from prison, the Department advised him that he was required to register as a Tier II sex offender for a period of twenty-five years. On October 4, 2016, Rogers completed his initial registration.
Complaint for Declaratory Judgment
On January 31, 2017, in the circuit court, Rogers filed a Complaint for Declaratory Judgment against the State, seeking a declaration that his conviction did not require him to register as a Tier II sex offender and an order compelling the Department to remove him from the Registry.
On September 8, 2017, the State filed a motion for summary judgment, arguing that, because Rogers had been convicted under
Rogers filed a motion for summary judgment and a response to the State‘s motion for summary judgment, arguing that, because he had been convicted under
Rogers asserted that there was no evidence in the record that the victim of the charge to which he pled guilty was a minor or was even the same victim referenced in the other charges.
The circuit court held a hearing on the cross-motions for summary judgment. The circuit court ruled from the bench, granting Rogers‘s motion for summary judgment and denying the State‘s motion for summary judgment. The circuit court issued a “Declaratory Judgment and Order,” stating:
DECLARED, ADJUDGED AND DECREED, that [] Rogers is not required to register as a Tier II sex offender on the basis of his conviction in State of Maryland vs. Jimmie Junior Rogers . . . and accordingly, it is hereby:
ORDERED, that (1) [] Rogers shall not be required, ordered, or directed to register as a Tier II sex offender on the basis of his conviction in State of Maryland vs. Jimmie Junior Rogers . . . and, (2) Defendants State of Maryland and [] Department [], and any other agency charged with administering such registry, shall remove [] Rogers‘[s] name from any and all sex offender registries on which it appears as a result of his conviction in State of Maryland v. Jimmie Junior Rogers[.]
(Cleaned up).
The State filed a notice of appeal.
Opinion of the Court of Special Appeals
On March 28, 2019, in a reported opinion, the Court of Special Appeals reversed the circuit court‘s judgment and remanded the case to the circuit court for a hearing on the age of the victim, to be proven by a preponderance of the evidence. See State v. Rogers, 240 Md. App. 360, 362, 370, 205 A.3d 36, 38, 42 (2019). The Court of Special Appeals rejected Rogers‘s contention that his conviction under
Petition for a Writ of Certiorari
On May 15, 2019, Rogers petitioned for a writ of certiorari, raising the following two issues:
- When [] Rogers pled guilty to an offense under a statute requiring no proof of the victim‘s age and no proof of age is provided, does the Department [] have the authority to make an ex parte finding of fact that the victim is a minor and thus, order [] Rogers to register as a tier II offender?
- Assuming arguendo that the Department [] has the authority to make ex parte findings of fact regarding the age of the victim, what level of proof is required and who may make the ultimate determination of fact?
On May 29, 2019, the State filed an answer to the petition for a writ of certiorari and a conditional cross-petition, raising the following three issues:
- Did the Court of Special Appeals correctly apply settled law when it reversed the circuit court‘s order granting [] Rogers‘s motion for summary judgment, where [] Rogers failed to demonstrate, as a matter of law, that he is not required to register as a sex offender based upon his conviction for human trafficking in violation of
CR § 11-303 ? - Is [] Rogers‘s separation-of-powers argument both unpreserved and meritless?
- Is the State entitled to summary judgment where [] Rogers did not genuinely dispute the State‘s evidence proving that the victim of [] Rogers[‘s] human-trafficking offense was a minor, thus establishing as a matter of law that [] Rogers was required to register as a sex offender based upon his conviction of human trafficking in violation of
CR § 11-303 ?
On August 26, 2019, this Court granted the petition and the conditional cross-petition. See Rogers v. State, 465 Md. 666, 214 A.3d 1195 (2019).
STANDARD OF REVIEW
Summary judgment is appropriate where “the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Kennedy Krieger Inst. v. Partlow, 460 Md. 607, 632, 191 A.3d 425, 440 (2018) (citation omitted). “[W]hether a trial court‘s grant of summary judgment was proper is a question of law subject to de novo review on appeal[,]” and “we independently review the record to determine whether the parties properly generated a dispute of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law.” Id. at 632, 191 A.3d at 440 (citation omitted). “We review the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be
“The standard of review for a declaratory judgment entered as a result of the grant of a motion for summary judgment is whether that declaration was correct as a matter of law.” Catalyst Health Sols., Inc. v. Magill, 414 Md. 457, 471, 995 A.2d 960, 968 (2010) (cleaned up). Where an issue surrounding a declaratory judgment order involves an interpretation and application of Maryland law, “we must determine whether the [trial] court‘s conclusions are legally correct under a de novo standard of review.” Dep‘t of Pub. Safety and Corr. Servs. v. Doe, 439 Md. 201, 219, 94 A.3d 791, 801 (2014) (“Doe II“) (cleaned up).
Recently, in Sabisch v. Moyer, 466 Md. 327, 350, 220 A.3d 272, 285 (2019), we set forth the following rules of statutory construction:
The cardinal rule of statutory construction is to ascertain and effectuate the intent of the General Assembly.
As this Court has explained, to determine that purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning. We do so on the tacit theory that the General Assembly is presumed to have meant what it said and said what it meant. When the statutory language is clear, we need not look beyond the statutory language to determine the General Assembly‘s intent. If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. In addition, we neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used or engage in forced or subtle interpretation in an attempt to extend or limit the statute‘s meaning. If there is no ambiguity in the language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends.
(Citation omitted).
DISCUSSION3
I.
The Parties’ Contentions
Rogers contends that, under the circumstances of this case-where he pled guilty to an offense not requiring proof of the victim‘s age and where no proof of the victim‘s age was established at the plea proceeding-the Department lacked the authority to determine that the victim was a minor and to order him to register as a Tier II sex offender. Rogers argues that a conviction for human trafficking under
Relevant Statutes and Regulations
At all relevant times,
(a)(1) A person may not knowingly:
- (i) take or cause another to be taken to any place for prostitution;
- (ii) place, cause to be placed, or harbor another in any place for prostitution;
- (iii) persuade, induce, entice, or encourage another to be taken to or placed in any place for prostitution;
- (iv) receive consideration to procure for or place in a house of prostitution or elsewhere another with the intent of causing the other to engage in prostitution or assignation;
- (v) engage in a device, scheme, or continuing course of conduct intended to cause another to believe that if the other did not take part in a sexually explicit performance, the other or a third person would suffer physical restraint or serious physical harm; or
- (vi) destroy, conceal, remove, confiscate, or possess an actual or purported passport, immigration document, or government identification document of another while otherwise violating or attempting to violate this subsection.
. . .
(b)(1) A person may not violate subsection (a) of this section involving a victim who is a minor.
. . .
(c)(1)(i) Except as provided in paragraph (2) of this subsection, a person who violates subsection (a) of this section is guilty of the misdemeanor of human trafficking and on conviction is subject to imprisonment not exceeding 10
years or a fine not exceeding $5,000 or both.
(ii) A person who violates subsection (a) of this section is subject to
§ 5-106(b) of the Courts Article.(2) A person who violates subsection (b) of this section is guilty of the felony of human trafficking and on conviction is subject to imprisonment not exceeding 25 years or a fine not exceeding $15,000 or both.
A predecessor of
In 2013,
As to sex offender registration, at the relevant time,
When
Pursuant to
(1) a current listing of each registrant‘s name and other identifying information; and
(2) in plain language that can be understood without special knowledge of the criminal laws of the State, a factual description of the crime of the offender that is the basis for the registration, excluding details that would identify the victim.
knowingly provide false information of a material fact as required by this subtitle.” A first-time violation of
(1) Maintain a central registry:
- (a) Initiated by receipt of registration statements; and
- (b) Updated by receipt of periodic registration documentation and notice of changes of registrant‘s address or other status;
(2) Determine if a registrant should be placed in an under investigation or absconder status;
(3) Calculate terms of registration; and
(4) Authorize termination of registration.
Relevant Case Law
In Doe II, 439 Md. at 237, 94 A.3d at 812, this Court explained that the Department‘s Sex Offender Registry Unit “is in charge of the maintenance of all sex offender registration information for the State[, and p]ursuant to Maryland regulations, . . . has the authority to maintain Maryland‘s central registry, as well as to manage and authorize termination of registration.” (Citation omitted). We stated that a trial court has
...
“the authority to compel the State to remove all of its records relating to [a person]‘s registration as a sex offender[.]” Id. at 237, 94 A.3d at 812.
Maryland case law has recognized that the Registry is a conviction-based registration scheme. In In re Nick H., 224 Md. App. 668, 673, 700, 123 A.3d 229, 232, 247-48 (2015), a case in which the trial court ordered a child respondent to register as a sex offender, the Court of Special Appeals observed:
One aspect of [the Registry Act] that was important to the holding of a violation of the constitutional prohibition against ex post facto laws by the Court of Appeals . . . and by this Court . . . was the automatic imposition of the registration requirement because of a conviction for a particular sex crime.
(Citations omitted). The Court of Special Appeals explained that the requirement of sex offender registration “appl[ies] automatically by operation of Maryland law.” Id. at 710, 123 A.3d at 254.
As to being required to register, in Cain v. State, 386 Md. 320, 322, 325 n.6, 872 A.2d 681, 682, 684 n.6 (2005), this Court considered whether a person convicted of second-degree assault was required to register as an “offender” under what was then
This Court held that the defendant was not required to register as a sex offender, and reversed the trial court‘s denial of the motion to correct an illegal sentence. See id. at 327, 872 A.2d at 685. The defendant “argue[d] that the elements of the crime of assault for which he was convicted negate[d] the registration requirement, while the State assert[ed] that the underlying facts to which [he] pled guilty mandate[d] registration.” Id. at 329, 872 A.2d at 686. In deciding the issue, this Court extensively reviewed the history of Maryland‘s offender registration laws and the Registry. See id. at 329-35, 872 A.2d at 686-90. We observed that second-degree assault was “not one of the enumerated crimes in the statute requiring registration, such as rape, kidnaping, false imprisonment, orviolations of the child pornography statute.” Id. at 335, 872 A.2d at 690 (citation omitted).
We addressed the State‘s contention that the defendant was “required to register because the facts contained in the statement of facts underlying the assault by their nature constituted a sexual offense under
We determined that, to qualify as an offender under the statute at issue, the statute “require[d] that sexual conduct that involve[d] an underage person [] be presented within the crime charged and which the person [stood] convicted.” Id. at 338, 872 A.2d at 692. In our view, “[t]o hold otherwise would expose individuals to possible registration that have been convicted of crimes that do not include elements related to sexual conduct with a minor[.]” Id. at 338, 872 A.2d at 692. We concluded that the trial court erred in denying the motion to correct an illegal sentence and we ordered the trial court to vacate thecondition of probation requiring the defendant to register as an offender. See id. at 340, 872 A.2d at 693. We explained:
[T]he trial [court] acknowledged that [the defendant] had agreed to plead guilty to second[-]degree assault, which the [trial court] described as “unpermitted touching.” The State entered a nolle prosequi on the other charges against [the defendant], relating to child abuse and a sexual offense which left only the elements of second[-]degree assault, i.e.[,] the unlawful application of force to another person, remaining without implication of sexual conduct involving a minor.
In State v. Duran, 407 Md. 532, 554, 967 A.2d 184, 197 (2009), a case addressing the same statutory provision as Cain, among other things, this Court held “that indecent exposure is not a crime that by its nature is a sexual offense” and that the defendant, who was convicted of indecent exposure, was “not required to register as a[n] ‘offender’ under”
On review, we observed that
We rejected the State‘s argument that the appropriate remedy was to vacate the defendant‘s plea instead of striking the registration condition of probation. See id. at 555, 967 A.2d at 197. We explained that we disagreed “because the trial court had no authority under the statute to require [the defendant] to register and the registration condition was not integral to the plea agreement; it was not even a subject of negotiation.” Id. at 555, 967 A.2d at 197-98. Thus, the appropriate remedy was to strike the condition of probation that the defendant register as a sex offender. See id. at 556, 967 A.2d at 198.
Analysis
Here, we hold that, where Rogers pled guilty to violating
We begin by examining the plain language of the relevant statutes. Indisputably,
Although we are satisfied that, under
Here, Rogers pled guilty to, and was convicted of, violating
Looking at the sex offender registration statutes and regulations reveals that there is no explicit delegation anywhere authorizing the Department to make such a determination, and we know of no case in which this Court has recognized that the Department has such authority. Absent an express delegation of authority to the Department to make such a determination, we decline to read into the statutes and regulations the authority to permit the Department to take the action.
At oral argument, the Assistant Attorney General acknowledged that there is no explicit statutory delegation of authority to the Department to make a determination as to a victim‘s age, but argued that, because
To allow the Department, the Sex Offender Registry Unit, or some person or entity other than the trier of fact to determine a fact necessary for placement on the Registry would lead to an incongruous result for those convicted of violating
It would be difficult to conceive that the General Assembly intended placement on the Registry for those convicted under
We are cognizant that not all of the statutes referenced in
Our conclusion is supported by the numerous cases in which trial courts—not theDepartment—ordered defendants to register as sex offenders. See, e.g., Duran, 407 Md. at 534, 967 A.2d at 185; Cain, 386 Md. at 326, 872 A.2d at 684-85; Nick H., 224 Md. App. at 673, 123 A.3d at 232. Although arising in a different context, Cain, 386 Md. at 336, 338, 872 A.2d at 690, 692, and Duran, 407 Md. at 547-48, 553-54, 967 A.2d at 192-93, 196-97, stand for the principle that determination of who is an “offender” for registration purposes—or, in this case, who is a Tier II sex offender—is controlled by the language of the statute at issue. To be a Tier II sex offender,
II.
The Parties’ Contentions
On brief, Rogers contends that the victim‘s age must be found by the trier of fact
The State responds that this Court has previously concluded that sex offender registration is not intended as punishment, but instead is intended as a regulatory requirement. As such, the State argues that the victim‘s age may be determined by the Department by a preponderance of the evidence, not beyond a reasonable doubt, and after conclusion of the court proceedings.
Relevant Law
In Young v. State, 370 Md. 686, 690, 806 A.2d 233, 235 (2002), this Court examined an earlier version of the Maryland sex offender registration statute in the context of due process rights. We determined that “sex offender registration [did] not constitute punishment in the constitutional sense[.]” Id. at 690, 806 A.2d at 235. In so determining, we applied the “intent-effects” test, “a two-part inquiry whether (1) the legislature intended the sanction to be punitive, and (2) the sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the legislature‘s intent.” Id. at 711, 706-07, 806 A.2d at 248, 245. As to the legislative intent behind the sex offender registration statutes, we noted that, as enacted, the statute at issue contained no express statement of purposes, but “the plain language and overall design . . . clearly indicate[d] that it was not intended as punishment, but rather was intended as a regulatory requirement aimed at protection of the public.” Id. at 712, 806 A.2d at 248. The Court stated that the General Assembly did not intend “registration or notification as a device to punish convicted sex offenders” and did not intend “to stigmatize or shame sex offenders.” Id. at 712, 806 A.2d at 248.
As to whether there was clear proof that the statute was so punitive, either in purpose or effect, that its punitive nature overrode the remedial purpose, this Court looked at the following factors derived from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963):
- 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 deterrence;
- whether the behavior to which it applies is already a crime;
- whether it lacks an alternative purpose to which it rationally may be connected; and
- if such alternative does exist, whether the statute appears excessive in relation to it.
Young, 370 Md. at 713, 698, 806 A.2d at 249, 240. We observed that “sex offender registration imposes [] affirmative disabilities on registrants, particularly in light of the community notification provisions of [the statute].” Id. at 713, 806 A.2d at 249. We noted that “[b]eing labeled as a sex[] offender within the community can be highly stigmatizing and can carry the potential for social ostracism.” Id. at 713, 806 A.2d at 249. Nevertheless, we “conclude[ed] that the burden [was] not so unreasonable, in light of the statute‘s remedial
More than a decade later, in Doe v. Dep‘t of Pub. Safety and Corr. Servs., 430 Md. 535, 537, 62 A.3d 123, 124 (2013) (”Doe I“), a plurality of this Court concluded that the petitioner could not be compelled to register as a sex offender, explaining:
During the 1983-84 school year, at the time of [the p]etitioner‘s commission of the sex offense mentioned herein, the Maryland sex offender registration statute did not exist. The General Assembly enacted the sex offender registration statute in 1995. As a result of amendments to that statute in 2009 and 2010, [the p]etitioner is now required to register as a sex offender. We shall hold that requiring [the p]etitioner to register as a result of the 2009 and 2010 amendments violates the prohibition against ex post facto laws contained in
Article 17 of the Maryland Declaration of Rights . Pursuant to our determination that [the p]etitioner may not be compelled to register, his name and likeness shall be removed from the Maryland Sex Offender Registry.
The plurality determined that “application of the sex offender registration statute to [the p]etitioner in 2009 [was] the equivalent of imposing a new criminal sanction for [the p]etitioner‘s prior commission of sex crime in the 1980s.” Id. at 561, 62 A.3d at 138. In the plurality‘s view, placement on the Registry essentially had the same effect as placing the petitioner on probation, thereby “effectively impos[ing] on him an additional criminal sanction.” Id. at 562, 62 A.3d at 139. The plurality explained:
[The p]etitioner testified that under threat of arrest and incarceration he was required to register in 2009. [The p]etitioner currently must report in person to law enforcement every three months, give notice to law enforcement of his address and any changes of address, and notify law enforcement before being away from his home for more than seven days. Furthermore, he must disclose to the State a significant amount of information, some of which is highly personal, including: his employmentaddress; information about his conviction; his [S]ocial [S]ecurity number; his email address and computer log-in names; information about vehicles he often uses, including those not owned by him; his finger[]prints and palm prints; all identifying factors, including a physical description, and an updated digital image of himself. . . . If [the p]etitioner fails to comply with these requirements, he faces terms of imprisonment, depending on the violation, of up to three or five years.
Id. at 562, 62 A.3d at 139 (cleaned up). Moreover, “the dissemination of [the p]etitioner‘s information pursuant to the sex offender registration statute[ was] tantamount to the historical punishment of shaming[,]” and was “punitive for ex post facto purposes.” Id. at 564, 565, 62 A.3d at 140, 141 (footnote omitted).
Since 2009, several amendments to the Maryland Sex Offender Registration Act have been adopted, including, but not limited to: (1) adding juvenile sex offenders to the list of those who must register; (2) requiring registration statements to include a list of aliases, electronic email addresses, computer screen names, or any name by which the registrant had been legally known; (3) requiring tier III offenders (such as Doe) to register in person every three months for life; (4) requiring that registrants provide three days[‘] notice after changing addresses; (5) ordering registrants to notify law enforcement, prior to the relocation, when the registrant obtains a temporary residence or changes the location where the registrant resides or “habitually lives” for more than 5 days; (6) requiring homeless registrants to register in person with the local law enforcement in each county where the registrant habitually lives; (7) publicize registration information on the Internet; and (8) granting the Department [] and law enforcement the discretion to provide notice of a registration statement or a registrant‘s change of address to whomever they deem necessary so as to protect the public from the registrant.
Id. at 569-70, 62 A.3d at 143-44 (Harrell, J., concurring) (citations omitted). Judge Harrell observed that “significant revisions to the Maryland registration statute ha[d] occurredsince the Young [C]ourt reviewed the statute in 2002.” Id. at 571, 62 A.3d at 145 (Harrell, J., concurring). For example, Judge Harrell noted that, beyond disseminating basic registry information about registrants, “the Maryland registry web site allows any person to post comments, that are available for the public to view, below a registrant‘s profile.” Id. at 572, 62 A.3d at 145 (Harrell, J., concurring). Judge Harrell observed that “in-person registration requirements may involve punitive restraints.” Id. at 572, 62 A.3d at 145 (Harrell, J., concurring). Judge Harrell stated that “dissemination of non-public and sensitive information about registrants” presented the risk of being stigmatizing, and noted that registrants were required “to inform the State on every change of location, including any place in which a registrant habitually lives or stays for more than five days, and . . . the Department or law enforcement [were permitted] to share the information with anyone when [] necessary to do so to protect the public.” Id. at 572-73, 62 A.3d at 145 (Harrell, J., concurring) (citations omitted). As to recidivism, Judge Harrell stated that research since 2002 demonstrated that, “[a]pplying such a broad-reaching statute like Maryland‘s to any qualifying sex offender without particularized determinations of recidivism may undermine the law‘s intent to prevent the repetition of sex offenses. Indeed, recent research reports that broad-reaching sex offender registration and notification laws do not reduce recidivism by sex offenders.” Id. at 573, 62 A.3d at 146 (Harrell, J., concurring) (citations omitted).
In a separate concurring opinion, the Honorable Robert N. McDonald, joined by the Honorable Sally D. Adkins, stated that “the cumulative effect of the 2009 and 2010 amendments of the State‘s sex offender registration law took [the] law across the line fromcivil regulation to an element of the punishment of offenders.” Id. at 578, 62 A.3d at 148 (McDonald, J., concurring) (citations omitted).
Similarly, in Quispe del Pino v. Md. Dep‘t of Pub. Safety and Corr. Servs., 222 Md. App. 44, 63, 112 A.3d 522, 533 (2015),
[T]he retroactive application of [the Maryland Sex Offender Registration Act] to [the] appellant by the 2010 amendment imposed additional punishment on [the] appellant for criminal conduct that occurred prior to the existence of the amended statute, by extending the term of his required registration from ten years to twenty-five years. Thus the 2010 amendment, as applied to [the] appellant, is unconstitutional under the prohibition against ex post facto laws contained in
Article 17 of the Maryland Declaration of Rights .
In Nick H., 224 Md. App. at 673, 689, 123 A.3d at 232, 241, a case where a juvenile court ordered the appellant to register as a sex offender, the Court of Special Appeals held, in pertinent part, that the juvenile court properly ordered the appellant to register and that the retroactive application of the Maryland Sex Offender Registration Act as applied to the appellant was not punishment and was not a violation of the prohibition against ex post facto laws. In that case, the juvenile court conducted a hearing to determine whether the appellant was at a significant risk of re-offending and “concluded, based on clear and convincing evidence, that [the] appellant was at a significant risk of re-offending, and thus ordered him to register as a sex offender[.]” Id. at 673, 123 A.3d at 232. The Court of Special Appeals applied the intent-effects test and examined the various Mendoza-Martinez factors, see Nick H., 224 Md. App. at 689-705, 123 A.3d at 241-50, concluding:
[A]lthough the requirement of registration imposes an affirmative disability on [the] appellant, has been regarded historically as punishment, carries theelement of scienter, and applies to behavior that is criminal in nature, these disadvantages are outweighed by the public safety purpose of [the Maryland Sex Offender Registration Act] and the process afforded juvenile sex offenders both before and after being ordered to register. [The Act] requires an individualized assessment of a juvenile sex offender, under a clear and convincing evidence standard, before placement on the sex offender registry, and the opportunity to seek a reduction in the term of registration. By contrast, [the Act] requires all adults convicted of certain sexual offenses to register as sex offenders for a specified term regardless of their continuing threat to society. Therefore, the placement of some juvenile sex offenders on the sex offender register is explicitly tied to the regulatory purpose of sex offender registration.
Id. at 705, 123 A.3d at 250-51.
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In that case, a New Jersey statute classified the possession of a firearm for an unlawful purpose as a second-degree offense punishable by between five years’ and ten years’ imprisonment. See id. at 468. A separate New Jersey statute, which was a hate crime law, provided for an extended term of imprisonment if the trial court found by a preponderance of the evidence that the defendant committed the crime “with a purpose to intimidate an individual or group of individuals due to race, color, gender, handicap, religion, sexual orientation[,] or ethnicity[.]” Id. at 468-69 (cleaned up). Under the hate crime law, the extended term of imprisonment for
[A] jury [is allowed] to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that [the defendant] unlawfullypossessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree, based upon the judge‘s finding, by a preponderance of the evidence, that the defendant‘s purpose for unlawfully possessing the weapon was to intimidate his [or her] victim on the basis of a particular characteristic the victim possessed.
Id. at 491 (cleaned up). Applying its holding, the Supreme Court concluded that the New Jersey statutory scheme could not stand. See id. at 491-92.
Analysis
Here, we hold that applying the intent-effects test and the Mendoza-Martinez factors leads to the conclusion that sex offender registration under the current statutory scheme is sufficiently punitive, i.e., serving as more than a mere civil regulation, to require determination of a fact necessary for placement on the Registry—such as the victim‘s age—be made beyond a reasonable doubt by the trier of fact during the adjudicatory phase of the criminal proceeding prior to sentencing. Although whether placement on the Registry is punitive has not been examined in the context of a conviction for
Blakely v. Washington, 542 U.S. 296, 303, 313 (2004) (“[T]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.” (Cleaned up.)).
We begin our inquiry with the intent-effects test, and whether the General Assembly intended sex offender registration to be punitive and whether sex offender registration is so punitive in effect that it cannot be viewed simply as regulatory or civil in nature, despite the General Assembly‘s intent. In Young, 370 Md. at 712, 806 A.2d at 248, we stated “that the plain language and overall design of” the sex offender registration statutes demonstrated that sex offender registration “was not intended as punishment, but rather was intended as a regulatory requirement aimed at protection of the public.” At least as originally enacted, the General Assembly did not intend “registration or notification as a device to punish convicted sex offenders” or as a method “to stigmatize or shame sex offenders.” Id. at 712, 806 A.2d at 248. That the General Assembly may
Application of the Mendoza-Martinez factors is instructive. As to the first factor, whether sex offender registration in Maryland involves an affirmative disability or restraint, we conclude that it does. Even in Young, 370 Md. at 713, 806 A.2d at 249, we recognized that sex offender registration imposes affirmative disabilities on registrants, especially given the community notification provisions, and that being labeled as a sex offender can be highly stigmatizing and lead to social ostracism. Moreover, from our perspective, the in-person registration requirements involve punitive restraints. For example, a Tier II sex offender is required to register in person every six months with local law enforcement and the digital image for registration must also be updated every six months. See
A Tier II sex offender is required to register for twenty-five years, a period of time that may long exceed the term of imprisonment imposed. See
Significantly, information about sex offender registrants is publicly available and required to be posted on the Internet. See
As to the second factor, whether sex offender registration has historically been regarded as punishment, although in Young, 370 Md. at 714, 806 A.2d at 250, we stated that “[s]ex offender registration traditionally ha[d] not been regarded as punishment[,]” more recently, in Doe I, 430 Md. at 561, 564, 52 A.3d at 139, 140, a plurality of this Court observed that requiring the petitioner to register had the same effect on his life as placing him on probation, which is a form of a criminal sanction, and that dissemination of the petitioner‘s information was tantamount to the historical punishment of shaming. In Nick H., 224 Md. App. at 694, 123 A.3d at 244, the Court of Special Appeals concluded that publishing information about former juvenile sex offenders on a public website created an enduring stigma of their misconduct akin to shaming. We agree with this reasoning and conclude that registration has developed in the direction of being punitive.
As to whether sex offender registration depends on a finding of scienter, unlike juvenile sex offender registration, see Nick H., id. at 694-95, 123 A.3d at 244-45, adult sex offender registration requirements “are triggered when the offender is released into the community” and “appl[y] to individuals convicted of any of the enumerated offenses, without regard to the offender‘s state of mind[,]” Young, 370 Md. at 715, 806 A.2d at 250.
As to whether sex offender registration operates to promote the traditional aims of punishment — retribution and deterrence — in Young, id. at 715, 806 A.2d at 250, we observed that, because the sex offender registrations statutes were enacted to protect the public, registration could not be characterized as retribution. Nevertheless, we allowed that the statutes possibly “promote[d] deterrence.” Id. at 715, 806 A.2d at 250. Black‘s Law Dictionary defines “deterrence” as “[t]he act or process of discouraging certain behavior, particularly by fear; esp[ecially], as a goal of criminal law, the prevention of criminal behavior by fear of punishment.” Deterrence, Black‘s Law Dictionary (11th ed. 2019). The possibility of sex offender registration may very well have a deterrent effect on some individuals who would otherwise engage in criminal behavior but for the fear, or threat, of registration. And, as the Court of Special Appeals recognized, the “requirements of reporting, notification, and disclosure to law enforcement serve a deterrent function by continually reminding the registrant of the ever-present interest of law enforcement in the registrant‘s behavior[,]” and “the public dissemination of offenders’ information is similar to shaming, and thus acts to deter past offenders from re-offending, and may deter future offenders who are aware of the public consequences of sexual offenses.” Nick H., 224 Md. App. at 695-96, 123 A.3d at 245 (cleaned up). We conclude that this factor weighs in favor of registration being punitive.
As to whether the behavior to which registration applies is already a crime, registration “clearly applies to past criminal conduct[.]” Young, 370 Md. at 714, 806 A.2d at 249. To be sure, “[t]he fact that the statute is triggered by a criminal conviction does not undermine the [General Assembly]‘s intent to create a sex offender registry to aid in the civil purpose of tracking the location of known sex offenders.” Id. at 714, 806 A.2d at 249. As such, this factor weighs equally in favor of registration being punitive in nature and serving a civil purpose.
As to whether registration lacks an alternative purpose to which it rationally may be connected, it is clear that the registration statutes have a purpose other than punishment — to protect the public. In Young, id. at 715, 806 A.2d at 250, we observed that the registration statutes have “strong remedial aspects and serve[] the important nonpunitive goal of alerting law enforcement and the community to the presence of sexual predators who may reoffend.” Finally, we consider whether the sanction of registration is excessive in relation to its remedial purpose. From our perspective, given that the provisions of the sex offender registration statutes protect the public from sex offenders and the registration requirements apply only to those who qualify as sex offenders under the statutes, see id. at 715, 806 A.2d at 250, it cannot be said that the sanction of registration is excessive. On balance, however, an examination of all of the factors weighs in favor of determining that the cumulative effect of the registration statutes is punitive in nature, and, as such, sex offender registration may be considered akin to punishment. Because establishment of the victim‘s age as a minor would necessitate placement on the Registry for a defendant convicted of violating
In our view, whether placement on the Registry is viewed as punitive, as we determine, or as regulatory, a defendant should be entitled to process where a fact necessary for placement on the Registry, e.g., the victim‘s age, is at issue. There is no statute, rule, or case that allows a trial court to make a finding of fact beyond a reasonable doubt (or by a lesser standard of proof) at sentencing after a jury trial (or a bench trial, for that matter), or where the defendant has pled guilty and agreed to a statement of facts. Absent an amendment of
To establish the victim‘s age during the adjudicatory phase beyond a reasonable doubt in a case in which a defendant pleads guilty, the State could pursue an agreed statement of facts that establishes the victim‘s age. Stated otherwise, the defendant and the State would enter into a plea agreement where the statement of facts establishes the victim‘s age. Under
In the event of a jury trial, where the State seeks to have the defendant ordered to register as a Tier II sex offender under
their age when testifying, so a victim‘s age is usually not a secret. As such, as another option, where there is genuinely no dispute about a victim‘s age, a defendant could agree or stipulate, outside of the presence of the jury, to the age of the victim if the defendant believes inclusion of a question on a verdict sheet would be prejudicial.
Alternatively, in lieu of a special verdict question or the defendant‘s stipulation outside of the jury‘s presence, the question of the victim‘s age could be handled through sequential jury determinations, whereby the jury would first determine whether the defendant was guilty of a violation of
At bottom, we conclude that a fact necessary for placement on the Registry, such as
the victim‘s age, must be determined by the trier of fact beyond a reasonable doubt, during the adjudicatory phase of the criminal proceeding, prior to sentencing. In this case, that did not occur. Instead, Rogers pled guilty to violating
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTION TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. RESPONDENTS TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.
Circuit Court for Anne Arundel County
Case No. C-02-CV-17-000296
Argued: January 10, 2020
IN THE COURT OF APPEALS OF MARYLAND
No. 32
September Term, 2019
JIMMIE ROGERS
v.
STATE OF MARYLAND, ET AL.
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
Dissenting Opinion by Biran, J.,
which Barbera, C.J., and Hotten, J., join.
Filed: March 31, 2020
Respectfully, I dissent.
In my view, the Majority misinterprets the Maryland Sex Offender Registration Act (“MSORA”) to preclude the Department of Public Safety and Correctional Services (the “Department”) from determining the existence of a fact that triggers sex offender registration for Petitioner Jimmie Rogers, where that fact was not necessary to a finding of guilt in Rogers‘s prior criminal case, and therefore was not proven or admitted in that proceeding. I would hold that the General Assembly impliedly delegated the power to make such a determination to the Department, subject to judicial review in an administrative mandamus action or (as in this case) a declaratory judgment action filed by a person who has been directed to register as a sex offender.
Rogers did not preserve his constitutional arguments for appellate review, and therefore I would not reach them. On the merits of those claims, I would hold that the Department‘s determination that Rogers‘s victim (M.H.) was a minor does not violate the separation of powers mandated under Article VIII of the Maryland Declaration of Rights. As to Rogers‘s Sixth Amendment argument, I would conclude that Maryland‘s sex offender registration regime is not punitive, but rather achieves
In concluding otherwise, the Majority creates a new, unprecedented, and ill-advised procedure that Maryland judges and juries must now try to carry out in criminal cases, with the likely result that some Maryland residents whose conduct warrants sex offender registration will not be required to register, and that others, who have previously registered as sex offenders in Maryland without ever disputing their status as such, will now file similar declaratory judgment actions seeking removal from Maryland‘s Sex Offender Registry. In addition, the Majority‘s decision is unique among the States, and may well encourage some individuals who are currently registered as sex offenders in other jurisdictions to move to Maryland in the hope that they will be able to avoid registration here. I do not believe the General Assembly intended to make Maryland an outlier when it decided who would qualify as Tier I, Tier II, and Tier III sex offenders under Maryland law. Nor does the Sixth Amendment require this unfortunate result.
Applying the substantial evidence test for review of factual determinations by administrative agencies, I would uphold the Department‘s finding that M.H. was a minor at the time Rogers committed his human trafficking offense. Accordingly, I would remand this case to the Circuit Court with instructions to enter summary judgment for Respondents and to issue a judgment declaring that Rogers is, and must continue to register as, a Tier II sex offender.
I
A Supervising Authority Under MSORA Has the Authority to Determine a Circumstance That Triggers Sex Offender Registration Where That Circumstance Is Not an Element of a Registrant‘s Criminal Offense.
Because the age of the victim is not an element of the human trafficking offense to which Rogers pled guilty, it is not surprising that there was neither a proffer by the State nor a finding by the Circuit Court at Rogers‘s plea hearing that M.H. was a minor at the time of the offense. This left open a gap in the determination whether Rogers would be required to register as a Tier II sex offender. If Rogers‘s victim was a minor, he would be a Tier II sex offender and therefore obligated to register. If his victim was not a minor, Rogers would not be required to register at all.
The Department subsequently closed this gap with its determination that Rogers‘s victim was a minor. The Majority holds that the Department lacked the authority to do so, concluding that, in the absence of an express delegation by the General Assembly of the authority to determine the age of a victim in these circumstances, it will not read MSORA,
offender registration, where that fact is not an element of a potential registrant‘s offense of conviction.
Whether the General Assembly impliedly granted the Supervising Authority this authority is a question of law, and “turns on the General Assembly‘s intent in empowering the agency and the statutory scheme under which the agency acts.” Thanner Enterprises, LLC v. Baltimore Cty., 414 Md. 265, 279 (2010) (citing Bd. of Liquor License Comm‘rs for Baltimore City v. Hollywood Prods., Inc., 344 Md. 2, 11 (1996) (cleaned up)). When the General Assembly has bestowed upon an agency a broad delegation of power, this Court liberally constructs the scope of that agency‘s implied powers. Id. In addition, “[a]dministrative agencies possess an expertise and, thus, have a greater ability to evaluate and determine the matters and issues that regularly arise, or can be expected to be presented, in the field in which they operate or in connection with the statute that they administer.” Adventist Health Care Inc. v. Maryland Health Care Comm‘n, 392 Md. 103, 119 (2006). “[C]onsiderable weight is due [to] the agency‘s interpretation and application of the statute it administers and to the agency‘s interpretation of its own regulations.” Id. at 121 (cleaned up).
I believe the Majority focuses too narrowly on
A. Statutory and Regulatory Framework
The General Assembly first enacted a sex offender registration regime for Maryland in 1995. See 1995 Md. Laws, Chapter 142. It has amended the statute, now commonly referred to as MSORA, several times in the quarter century that has passed. The Department is the agency charged with maintaining Maryland‘s Sex Offender Registry. The General Assembly has provided that, “[w]ith advice from the Criminal Justice Information Advisory Board ..., the Secretary shall adopt regulations to carry out [MSORA].”
In many instances, a person is classified as a Tier I, Tier II, or Tier III sex offender if the person is convicted of a particular listed offense, without the necessity of any additional circumstance being present. For example, if a person is convicted of a fourth-degree sex offense under
Vol.),4 he or she is a Tier I sex offender.
In many other instances, however, to be classified as a Tier I, Tier II, or Tier III sex offender, a defendant must be convicted of a particular listed offense and a particular additional circumstance must be present. Several of these instances arise where the victim of the offense for which the defendant was convicted is in a certain age range, but the age of the victim is not an element of the crime:
CP § 11-701(o)(2) (Tier I sex offender status for a person who has been convicted underCR § 3-902 (visual surveillance with prurient intent), “if the victim is a minor”5).CP § 11-701(p)(2) (2001, 2018 Repl. Vol., 2019) (Tier II sex offender status for a person who has been convicted underCR § 3-1102 (2002, 2012 Repl. Vol., 2019 Supp.) (sex trafficking),6CR § 3-1103 (2002, 2012
- Repl. Vol., 2019 Supp.) (marriage trafficking),
CR § 11-303 (2002, 2012 Repl. Vol., 2019 Supp.) (engaging in “assignation,” or occupying a building, structure, or conveyance for prostitution or assignation),7CR § 11-306 (2002, 2012 Repl. Vol., 2019 Supp.) (soliciting, or offering to procure or solicit, prostitution or assignation), orCR § 11-307 (2002, 2012 Repl. Vol., 2019 Supp.) (additional offenses involving the use of a building, structure, or conveyance for prostitution or assignation), “if the intended prostitute or victim is a minor”). CP 11-701(p)(3) (Tier II sex offender status for a person who has been convicted underCR § 3-314 (sexual conduct between correctional or juvenile justice employee and inmate or confined child) orCR § 3-603 (sale of a minor) “if the victim is a minor who is at least 14 years old”).CP § 11-701(q)(1)(iii) (Tier III sex offender status for a person who has been convicted underCR § 3-502 (kidnapping) “if the victim is a minor”).CP § 11-701(q)(2) (Tier III sex offender status for a person who has been convicted underCR § 3-314 (sexual conduct between correctional or juvenile justice employee and inmate or confined child),CR § 3-503 (child kidnapping), orCR 3-603 (sale of a minor) “if the victim is under the age of 14 years”).CP § 11-701(q)(3) (Tier III sex offender status for a person who is convicted of conspiring to commit, attempting to commit, or committing the common law offense of false imprisonment, “if the victim is a minor”).8
Although the age of a victim involved in an offense is the most common additional circumstance that, along with a conviction for an offense, triggers sex offender registration, age is not the only such circumstance that MSORA refers to in defining a Tier I, Tier II, or Tier III sex offender. Other additional circumstances include:
CP §§ 11-701(o)(3) ,11-701(p)(5) &11-701(q)(5) (Tier I, Tier II, or Tier III sex offender status, respectively, for conviction of a crime committed in a federal, military, tribal, or other jurisdiction that, “if committed in this State, would constitute” one of the Maryland offenses that triggers sex offender registration).CP § 11-701(o)(5) (Tier I sex offender status for conviction of certain military offenses that are “similar to” various listed federal offenses).CP §§ 11-701(o)(6) ,11-701(p)(6) &11-701(q)(6) (Tier I, Tier II, or Tier III sex offender status, respectively, for conviction of a crime in a court of certain foreign countries that, “if committed in this State, would constitute” one of the crimes listed inCP §§ 11-701(o)(1) through(o)(5) ,11-701(p)(1) through(p)(3) , or11-701(q)(1) through(q)(3) ).CP § 11-701(p)(4) (Tier II sex offender status for conviction of an offense that would require the person to register as a tier I sex offender “after the person was already registered as a tier I sex offender”).CP § 11-701(q)(1)(v) (Tier III sex offender status for person who has been convicted of the common law offense of sodomy, or of the commission of an unnatural or perverted sexual practice underCR § 3-322 , “if the offense was committed with force or threat of force”).CP § 11-701(q)(4) (Tier III sex offender status for conviction of an offense that would require the personto register as a Tier I or Tier II sex offender “after the person was already registered as a [T]ier II sex offender”).
Other statutory and regulatory provisions also provide useful context. Under
For all sex offenders in the State, a registration statement must include, among other things, “a description of the crime for which the registrant was convicted.”
- Name of the crime, including statutory citation if applicable and available;
- Date of conviction;
- Name of Maryland court and county, or other court and location, where the registrant was convicted;
- Date the crime was committed; and
- Victim‘s age at the time the crime was committed.
Under
addition, “before releasing a registrant, a representative of the Supervising Authority shall complete the registration statement, including the information required under
B. Discussion
Against this backdrop, I turn to the Majority‘s interpretation of MSORA as requiring “the trier of fact—not the Department—[to] determine the facts necessary for placement on the Registry.” Maj. Slip Op. at 29.9 I disagree with the Majority‘s analysis for several reasons. First, the General Assembly must be presumed to understand that, in the normal course, a jury in a criminal case is not asked to decide whether a victim of an offense is a minor (or any other fact) unless such a determination is necessary for a finding of guilt on a charged offense. Yet, as the above discussion makes clear, the
Second, my interpretation of MSORA is buttressed by the reality that many of the circumstances that are not elements of a criminal offense, but which the General Assembly has made prerequisites to sex offender status, are not circumstances that a Maryland jury (or even a Maryland sentencing court) would ever be in a position to decide. For example, a Maryland resident who is convicted in another jurisdiction of an offense that, if committed in Maryland “would constitute” one of the Maryland offenses that triggers registration, or is convicted in a military court of an offense that is “similar to” various listed federal offenses that trigger registration, is defined as a sex offender under MSORA and must register at the specified tier. See
Third, the Department or other Supervising Authority is well positioned to determine the age of a victim and the other
Another example of a non-element factual determination that is obviously within the competency of a Supervising Authority to determine is the circumstance of prior registration being in effect when a person commits a new offense that qualifies for registration. Consider a person who is charged with committing a fourth-degree sex offense under
Fourth, the General Assembly amended MSORA in 2010, several years after this Court‘s landmark decision in Young v. State, 370 Md. 686 (2002). As discussed in more detail below, in Young this Court rejected a constitutional challenge to the non-jury finding of the age of a victim that resulted in Young being an “offender” under the pre-2010 version of MSORA. It appears it was the sentencing court that determined Young‘s victim was a minor and then ordered Young to register
Fifth, I find it significant that the Department has promulgated regulations that make it the responsibility of the Supervising Authority to supply and publish all the information about the registrant‘s crime for the registration statement, including the “[v]ictim‘s age at the time the crime is committed.”
Even in cases where, in order to sustain a conviction, the State must prove that a victim is a minor or is in another particular age range, under
The Majority‘s arguments in support of its interpretation of MSORA are unconvincing. The Majority primarily relies on the absence of an express delegation of authority to determine whether a victim was a minor, where that fact is not an element of the offense. However, the Majority‘s insistence on an express delegation of authority in this context runs contrary to this Court‘s recognition for many decades “that the tasks of making factual determinations and resolving disputes are not reserved exclusively to the judicial branch of government.” Maryland Aggregates Ass‘n v. State, 337 Md. 658, 676 (1995). To the contrary, it is well settled that “administrative bodies may exercise quasi-judicial authority, which essentially consists of deciding questions of fact and law subject to judicial review.” Reliable Contracting Co., Inc. v. Maryland Underground Facilities Damage Prevention Auth., 446 Md. 707, 717 (2016) (citing Heaps v. Cobb, 185 Md. 372, 378-79 (1945)).
This Court has previously found implied delegation of quasi-judicial duties to an agency within the executive branch, where such delegation is consistent with the purposes of the legislation in question. See id. In my view, the General Assembly has done the same in MSORA. This is even more apparent when one considers the broad grant of regulatory authority that the General Assembly provided in the statute. See
The Majority invokes “principles of fairness” to justify its conclusion that the General Assembly did not intend the Department to fill the adjudicatory gap left in Rogers‘s case. Maj. Slip Op. at 29. The Majority‘s point here is that a person who is convicted under
In my view, by considering the interplay of
In other words, as applied to this case, it does not follow from the General Assembly‘s creation of a felony violation of
The Majority also believes that the General Assembly would not intend the Department to make non-element determinations that result in sex offender registration because it would then be “incumbent on the defendant to seek relief from the Department‘s finding, after the criminal proceeding has concluded, without knowing how the Department reached its conclusion,” and the defendant “would bear the burden of establishing that placement on the Registry was erroneous.” Maj. Slip Op. at 28. But it is commonplace that those who are aggrieved by agency action must challenge it as arbitrary and capricious and/or not supported by substantial evidence. Thus, it would not be a novel proposition to the General Assembly – or “turn reasonableness on its head,” Maj. Slip Op. at 29 – that an administrative determination
Moreover, if a person ordered to register brings an administrative mandamus action against the Department or other Supervising Authority, the defendant agency will be required to disclose either the record underlying the decision or, if no record exists, “the agency shall provide (1) a verified response that fully sets forth the grounds for its decision and (2) any written materials supporting the decision.”
Finally, the Majority‘s reliance on State v. Duran, 407 Md. 532, 534 (2009), Cain v. State, 386 Md. 320, 326 (2005), and In re Nick H., 224 Md. App. 668, 673 (2015), is misplaced. The Majority notes that, in those cases, the trial judges ordered the defendants to register. Maj. Slip Op. at 30. It appears the Majority believes those cases stand for the proposition that, because the trial courts ordered registration for those persons, the General Assembly did not leave any circumstances to the Supervising Authority to determine. However, the majority overlooks that, in Duran and Cain, the defendants registered because they were “offenders” under the then-current version of MSORA. As discussed above, prior to 2010, an “offender” was defined as “a person who is ordered by a court to register under this subtitle” and who had been convicted of violating any of a number of criminal statutes.
II
The Majority Errs in Holding That, as a Matter of Constitutional Law, the Criminal Trier of Fact Must Determine Beyond a Reasonable Doubt the Existence of Non-Element Facts That Trigger Registration Under MSORA.
A. Rogers‘s Constitutional Arguments Are Not Preserved for Appellate Review and the Court Should Not Reach Them.
In their principal brief, Respondents argue that Rogers failed to preserve his constitutional arguments for appellate review. Therefore, Respondents contend, we should not consider these arguments, in keeping with
In the trial court, Rogers never raised the constitutional arguments that he advances in this Court. Rather, Rogers based his claim to a declaration removing him from the Sex Offender Registry solely on his contention that this case is controlled by Cain:
[W]hen we‘re trying to decide whether or not a minor is involved, what we should look at, is exactly what he pled guilty to, the statement of facts put on the record by the State, by the prosecutor, where [the age of the victim is not] mentioned.... [T]his is very much like Cain v. State, ... [where] the Court said, after reviewing the statutes, we conclude that whether the elements of a
crime are sexual in nature is dispositive of whether the person is an offender requiring registration. So, we look to the elements of the crime for which one stands convicted, to determine whether registration is appropriate or not. So if you look at the actual elements of 11-303[a] , nothing in there requires a showing that the person is, in fact, a minor.
On appeal, neither side raised a constitutional issue in its framing of the questions presented for the Court of Special Appeals to decide. In defending the Circuit Court‘s grant of summary judgment, Rogers continued to base his argument on Cain and the lack of an age element in his offense of conviction. He again made no separation of powers argument, nor did he provide any analysis of the intents-effects test as it applies to MSORA‘s registration requirements, or cite Young, Doe v. Dep‘t of Pub. Safety and Corr. Services, 430 Md. 535 (2013), or Apprendi.16
The Majority correctly concludes that a conviction under
In these circumstances, I would not reach Rogers‘s constitutional arguments, which he makes for the first time before this Court. Rogers is asking this Court to expand the role of the criminal trier of fact in a way that appears to be unprecedented in the United States. He cites no legislatively or judicially created procedure anywhere in the United States, nor has my research disclosed such a procedure, in which the trier of fact decides beyond a reasonable doubt whether a non-element circumstance exists that would trigger sex offender registration. Because Rogers did not make his constitutional arguments below, this Court does not have the benefit of separation-of-powers or intents-effects analyses by the lower courts to help inform our decision making on these issues. Nor is the briefing on these issues in this Court from either side as robust as it should be, given the stakes involved. For
B. MSORA Does Not Violate Maryland‘s Separation of Powers.
Although the Majority does not reach Rogers‘s separation of powers argument, because I conclude that Rogers‘s other arguments do not entitle him to relief, I will address whether the Department‘s finding of the age of his victim for purposes of sex offender registration violates separation of powers principles. In my view, there is no separation of powers violation by virtue of the General Assembly‘s implied delegation of authority to a Supervising Authority to determine whether a circumstance that is not an element of a potential registrant‘s offense of conviction exists for purposes of triggering sex offender registration.
The Department‘s determination of circumstances that the General Assembly has seen fit to trigger sex offender registration in Maryland, but which are not elements of a potential registrant‘s offense of conviction, is the type of quasi-judicial power that this Court has long recognized as legitimate, given that it is subject to judicial review. See Reliable Contracting, 446 Md. at 717. Although there is no specific process set forth in the
As discussed below, sex offender registration is not sufficiently punitive in effect to require under the
C. The Sixth Amendment Does Not Require That the Criminal Trier of Fact Determine the Age of a Victim Beyond a Reasonable Doubt, Where That Fact Is Not Necessary to Prove a Defendant‘s Guilt, But Is Necessary to Trigger Sex Offender Registration.
In sustaining Rogers‘s Apprendi18 challenge to the Department‘s determination
the age of his victim for purposes of triggering sex offender registration, the Majority sub silentio overrules a portion of Young v. State. In Young, this Court considered and rejected an Apprendi claim that is materially indistinguishable from Rogers‘s Apprendi claim. 370 Md. at 711-18. Until today, Young has remained good law with respect to an Apprendi challenge to MSORA‘s registration requirements. The Majority is wrong to abrogate it.
1. The Young Decision
The petitioner in Young was convicted of transporting a person for purposes of prostitution, in violation of Art. 27, § 432, a predecessor version of the human trafficking crime to which Rogers pled guilty. See Young, 370 Md. at 692. At the time of Young‘s offense, unlike today, there was not a second mode relating to the age of the victim by which a person could violate the statute. As was the case with
This Court rejected Young‘s Apprendi challenge for two reasons. First, after conducting an extensive survey of relevant case law and conducting an intents-effects analysis, the Court held that the version of MSORA that existed at the time of Young‘s offense was not “so punitive that the General Assembly‘s intent to create a remedial scheme may be disregarded.” 370 Md. at 716. Rather, the Court noted its agreement “with those courts that have found that sex registration and notification statutes are not punishment in the constitutional sense,” and therefore held that “requiring petitioner to register as a sex offender ... does not constitute punishment, but is a remedial requirement for the protection of the public.” Id.
Second, the Court held that “[e]ven assuming, arguendo, that sexual offender registration constituted punishment for the purposes of our Apprendi analysis, the requisite statutory predicate that [the victim] was under eighteen years of age at the time of petitioner‘s crime is not a fact that increases the penalty for a crime beyond the prescribed statutory maximum.” Id. The Court noted that Young had been given a suspended sentence, and explained that Apprendi “does not apply to a case in which the trial court imposes a discretionary sentence within the permissible statutory range.” Id. The Court also distinguished sex offender registration from increases in prison time beyond an otherwise applicable statutory maximum that result from the determination of facts that are not found by the jury. See id. at 717-18 (reasoning that the “finding of the statutory predicates for sex offender registration is much more
2. Sex Offender Registration Under MSORA Is Not Punitive Under the Intents-Effects Test.
The Majority does not hold that the Young Court‘s application of the intents-effects test to MSORA was incorrect. Rather, the Majority concludes that the 2009-10 amendments to MSORA transformed Maryland‘s sex offender registration from a remedial program that protects the public into a punitive regime. Maj. Slip Op. at 38-44. I disagree.
The validity of the current version of MSORA under the ex post facto provisions of the Maryland Declaration of Rights and the United States Constitution was the subject of Doe, 430 Md. at 535. The fractured resolution of Doe left open the question whether registration under the current version of MSORA is “punishment in the constitutional sense,” or rather “is a remedial requirement for the protection of the public,” Young, 370 Md. at 716, as determined through application of the intents-effects test. The three-member Plurality in Doe did not conduct an intents-effects analysis, concluding under Maryland law that the change in MSORA after Doe‘s conviction “disadvantaged” Doe for ex post facto purposes. Id. at 559 et seq. In a concurring opinion, the Honorable Robert N. McDonald, joined by the Honorable Sally D. Adkins, did not explicitly conduct an intents-effects analysis, but nevertheless concluded that “the cumulative effect of 2009 and 2010 amendments of [MSORA] took the law across the line from civil regulation to an element of the punishment of offenders.” Id. at 578 (McDonald, J., concurring).
Dissenting from the grant of relief to the petitioner in Doe, the Honorable Mary Ellen Barbera conducted a thorough intents-effects analysis and concluded that MSORA, as amended, is not sufficiently punitive to make it a law that is subject to ex post facto protections. Id. at 578-96 (Barbera, J., dissenting).19
I can do no better than now-Chief Judge Barbera did in her opinion in Doe to explain why MSORA, as amended, is not “punitive” for purposes of a constitutional analysis, thereby refuting the Majority‘s application of the intents-effects test here. Regarding the first part of the intents-effect test, Judge Barbera observed that the General Assembly did not intend MSORA, as amended, to be punitive. Rather, the intent of the General Assembly in enacting the 2009 and 2010 amendments was “to accomplish two public-safety, regulatory ends,” specifically the incorporation of provisions of the federal Sex Offender Registration and Notification Act (“SORNA“),
Judge Barbera then proceeded to the second part of the intents-effects test, first quoting the Supreme Court‘s seminal decision in this area, Smith v. Doe, 538 U.S. 84 (2003), for the proposition that, “[b]ecause 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.” Doe, 430 Md. at 586 (Barbera, J., dissenting) (quoting Smith, 538 U.S. at 92) (alterations and emphasis supplied by Judge Barbera).
Judge Barbera then applied pertinent factors drawn from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), to the question of whether the 2009 and 2010 amendments to MSORA are sufficiently punitive to convert the law from the civil regulatory scheme that the Court analyzed in Young to the equivalent of a criminal penalty. As to whether sex offender registration has historically been regarded as a punishment, Judge Barbera concluded that there is “no merit in the contention that the online posting of information concerning the registrant‘s conviction, his photograph, residence, etc., amounts to public humiliation and shaming.” Doe, 430 Md. at 592 (Barbera, J., dissenting); see also Young, 370 Md. at 714 (“Sex offender registration traditionally has not been regarded as punishment.“). I agree.
As Judge Barbera noted, this Court in Young previously observed that, “although public dissemination of one‘s criminal history certainly has some negative consequences, dissemination of such information in itself has not historically been regarded as punishment when done in furtherance of a legitimate government interest.” Doe, 430 Md. at 592 (Barbera, J., dissenting) (quoting Young, 370 Md. at 714) (cleaned up). According to Judge Barbera, “[t]hat the means chosen by Congress and the General Assembly to disseminate this information now involves making the registry available online for public access does not render the dissemination punitive in effect or akin to public shaming.” Id. at 592-93 (footnote omitted). Rather, “[i]t 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 the purpose and the principal effect of notification are to inform the public for its own safety.” Id. at 593; see also id. (“[W]idespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.“) (quoting Smith, 538 U.S. at 99) (cleaned up).
The Majority‘s (and the Doe Plurality‘s) analogy to shaming, Maj. Slip Op. at 42; Doe, 430 Md. at 561, ultimately is inapt because they fail to recognize that, in today‘s age, there is much more information that is publicly available — and easily accessible — about most Americans than there was when “shaming” was a recognized form of punishment. See Matthew W. Meskell, The History of Prisons in the United States from 1777 to 1877, 51 Stan. L. Rev. 839, 842 (1999) (explaining that, in colonial America, “[p]unishments designed predominantly to humiliate the offender included public penance, the stocks, the pillory, and the scarlet letter. This group of deterrents depended largely, if not exclusively,
My view of the shaming analogy (and Judge Barbera‘s in her dissenting opinion in Doe) is in line with the weight of authority construing similar dissemination provisions in SORNA and other state sex offender registration systems. See State v. Petersen-Beard, 377 P.3d 1127, 1134-35 (Kan. 2016). These cases hold that publication requirements do not render registration regimes punitive, “despite candidly recognizing they can result in greatly increased public shame.” Id. at 201 (referring to all federal circuits that have addressed SORNA‘s publication requirements); Kammerer v. State, 322 P.3d 827, 835 (Wyo. 2014) (quoting E.B. v. Verniero, 119 F.3d 1077, 1099 (3d Cir. 1997)) (adopting the Third Circuit‘s determination that “[p]ublic shaming, humiliation and banishment all involve more than the dissemination of information“).
I also disagree with the Majority‘s (and the Doe Plurality‘s) comparison of sex offender registration to probation. See Maj. Slip Op. at 42; Doe, 430 Md. at 561. There are significant distinctions between these two mechanisms. Reporting information, even in person, is not as burdensome as submitting to supervision as part of a sentence of probation. See Shaw v. Patton, 823 F.3d 556, 565 (10th Cir. 2016). In addition, probation typically includes a series of conditions that go well beyond the reporting of information associated with sex offender registration, including placing restrictions on weapons and alcohol, requiring employment as well as participation in educational or counseling programs, submitting to regular searches, and obtaining approval of the probation officer before moving. See id. Further, MSORA‘s registration requirements are “regulatory requirements separate from [registrants‘] ... convictions. In contrast, probation historically involved a deferred sentence based on the underlying offense.” Id. at 566. While a knowing failure to register can result in a new criminal prosecution, under which a defendant can elect a jury trial and guilt must be established beyond a reasonable doubt, see
With regard to registration constituting an “affirmative disability or restraint,” I disagree that the reporting requirements and their incidental effects, such as lost employment opportunities, “weigh [] heavily in favor of registration having a punitive effect.” Maj. Slip Op. at 41. To be sure, MSORA‘s reporting requirements impose burdens on registrants for many years, and damaging incidental effects often flow from registration. However, I agree with Judge Barbera that the
First and foremost, in my view, there is a significant distinction between a “burden” on the one hand, and either a “disability” or a “restraint” on the other. A burden is commonly thought of as an obligation and/or that which is borne with difficulty. See also Black‘s Law Dictionary (11th ed. 2019) (defining burden as a “duty or responsibility” or “[s]omething that hinders or oppresses“). But a burden is usually considered to be something that can be accomplished with effort. A “disability,” on the other hand, in the sense relevant here, is a legal incapacity. See id. (defining disability as the “inability to perform some function“). For example, a child is legally disabled from bringing a tort action until he or she is 18 years old. Piselli v. 75th Street Medical, 371 Md. 188, 215 (2002). Similarly, a “restraint” is understood to be a prohibition of action. See also Black‘s (defining “restraint” as “[c]onfinement, abridgment, or limitation“).
In my view, MSORA imposes burdens, but not affirmative disabilities or restraints, on registrants. Most notably, of course, registration “imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint.” Doe, 430 Md. at 593 (Barbera, J., dissenting) (quoting Smith, 538 U.S. at 100). While registrants are required to report in person to a local law enforcement authority either twice a year (for Tier I and Tier II sex offenders) or four times a year (for Tier III sex offenders and sexually violent predators), see
Judge Barbera also is correct that “the registration and notification features of the current scheme have a rational connection to the regulatory purpose of the legislative scheme.” Id. On this point, the Majority agrees. Maj. Slip Op. at 43-44 (citing Young favorably for the proposition that sex offender registration statutes have “strong remedial aspects and serve[] the important nonpunitive goal of alerting law enforcement and the community to the presence of sexual predators who may reoffend“). However, the Majority fails to acknowledge that whether “there exists evidence of a strong connection between the features of a regulatory scheme and the obvious, nonpunitive legislative purpose behind the law is a ‘most significant’ factor in the analysis.” Doe, 430 Md. at 594 (Barbera, J., dissenting) (quoting Smith, 538 U.S. at 102) (cleaned up).
The Majority also agrees with Judge Barbera‘s assessment that “the features of Maryland‘s current sex offender registration scheme are not excessive when considered in light of the law‘s public safety purpose.” Id. at 594-95; Maj. Slip Op. at 44. In my view, this recognition by the Majority settles the question.
Nevertheless, completing the effects analysis, the lack of a scienter requirement in
As to whether sex offender registration promotes the traditional goals of punishment, as the Majority observes, because sex offender registration statutes were enacted
I agree with the Majority that whether the behavior to which MSORA applies is already a crime also is a factor that is in equipoise. Maj. Slip Op. at 43. In any event, this factor should be accorded limited weight. Long, 230 Md. App. at 23.
In sum, Rogers has not “met his burden to establish by the clearest proof,” Doe, 430 Md. at 591 (Barbera, J., dissenting), that MSORA is sufficiently punitive in effect to render registration a penalty for purposes of an Apprendi claim. To the contrary, MSORA is based on SORNA, and is materially similar to other states’ sex offender registration laws that, like SORNA, have been held not to be punitive for purposes of Apprendi. The Majority does not cite a single case in any jurisdiction that has held registration requirements similar to those Rogers has been ordered to abide by constitute a criminal penalty for purposes of an Apprendi claim. However, the cases that have rejected Apprendi challenges, concluding that registration requirements similar to Maryland‘s do not constitute punishment, are legion. See, e.g., Petersen-Beard, 377 P.3d at 1129; People v. Mosley, 344 P.3d 788, 805 (Cal. 2015); Kammerer, 322 P.3d at 839; State v. Payan, 765 N.W.2d 192, 200-02 (Neb. 2009); State in Interest of N.J., 275 So. 3d 267, 271-72 (La. Ct. App. 2019); People v. Golba, 729 N.W.2d 916, 925-25 (Mich. Ct. App. 2007). The Majority‘s intents-effects analysis does not convince me that this Court should stake out a different position from all of the other courts in the country that have rejected Apprendi challenges on this basis.
3. Sex Offender Registration Does Not Increase a Registrant‘s Punishment Beyond the Otherwise Applicable Statutory Maximum.
Even if sex offender registration in Maryland were properly considered a criminal penalty, Rogers‘s Apprendi claim would still fail. As noted above, in Young, this Court rejected the petitioner‘s Apprendi challenge to MSORA on two grounds. The Majority only addresses the first of the two bases for Young‘s holding. Young‘s alternative holding — that an order to register as a sex offender does not increase a defendant‘s punishment beyond the otherwise applicable statutory maximum — remains applicable to this analysis, notwithstanding the post-Young amendments to MSORA. The Majority overrules this part of Young sub silentio. For several reasons, I believe the Majority errs in doing so.
First, it is not clear to me that Apprendi applies to situations beyond judicial factfinding at an actual sentencing proceeding. See Healey v. Carter, 109 N.E.3d 1043, 1049 (Ind. Ct. App. 2018) (noting that “[t]he issue presented here is not one of judicial fact-finding but rather a determination of the [Department of Corrections] under [Indiana‘s Sex Offender Registration Act]” and questioning whether ”Apprendi and its progeny extend beyond judicial factfinding“).
Third, even if Rogers had been ordered to serve a fully executed maximum sentence of 10 years of imprisonment, registration still would not have resulted in a punishment in excess of the statutory maximum for purposes of Apprendi. See State v. Trujillo, 430 P.3d 379, 385 (Ariz. Ct. App. 2018) (“[I]t does not necessarily follow that the maximum authorized prison term plus sex-offender registration automatically entitles a defendant to a jury finding of the factor upon which an order requiring registration is based.“). That is because, even if registration is considered sufficiently punitive that a change in the law that makes registration more onerous than it was when a registrant was convicted of his criminal offense can create an ex post facto problem, registration nevertheless remains a collateral consequence of a conviction, not a part of the criminal sentence itself. See Doe, 430 Md. at 560 (Plurality Opinion) (holding that “imposing registration alters the consequences for a prior crime“); id. at 600 (“Sex offender registration is not punishment, but [rather] a collateral consequence of a conviction.“) (Barbera, J., dissenting); see also
Fourth, the Supreme Court has limited the application of Apprendi to those situations in which juries played a factfinding role at common law. Oregon v. Ice, 555 U.S. 160, 168 (2009) (explaining that application of the Apprendi rule turns on whether the “finding of a particular fact was understood as within the domain of the jury ... by those who framed the Bill of Rights“) (cleaned up). The Court also explained that this limitation of Apprendi is particularly appropriate when considering a Sixth Amendment challenge to a state law, given the sovereignty issues at stake. See id. Thus, when considering Sixth Amendment challenges to state criminal law procedures assigning factfinding to judges, which indisputably affect a criminal sentence, Apprendi should not be considered to require reassignment of those functions to a jury
As applied to MSORA, Ice further demonstrates that the Department‘s determination of the age of Rogers‘s victim does not violate the Sixth Amendment. It is obvious that juries historically had no role with respect to imposition of sex offender registration, because sex offender registration is a modern development. Thus, it seems clear that the Supreme Court would hold the Sixth Amendment does not require a jury to determine a fact that triggers sex offender notification. As the Supreme Court of California reasoned in rejecting the application of Apprendi to judicial factfinding that affects sex offender registration in that State:
[B]oth residency restrictions and underlying sex offender registration requirements are modern regulatory sentencing imperatives unknown at common law. They are akin to a variety of sentencing determinations other than the length of incarceration, of relatively recent vintage, in which trial judges often find facts about the nature of the offense or the character of the defendant such as the length of supervised release following service of a prison sentence; [and] required attendance at drug rehabilitation programs or terms of community service. They are additional examples of sentencing choices or accoutrements in which juries have played no historical role, and which do not implicate the Sixth Amendment jury trial guarantee within the meaning of Apprendi.
Mosley, 344 P.3d at 798. So too here.
Finally, even if the imposition of Tier II sex offender registration for a violation of
The Majority expands Apprendi in an unprecedented and unwarranted manner that makes Maryland an outlier in Sixth Amendment and sex offender registration jurisprudence. Respectfully, I believe the Court should tread more carefully than it does here, especially given the public safety goals that the General Assembly has addressed in MSORA.
III
The Majority‘s New Procedure is Not Workable and Will Lead to Results the General Assembly Could Not Possibly Have Intended.
If I agreed with the Majority that the Sixth Amendment requires the criminal trier of fact to make a finding beyond a reasonable doubt of a non-element circumstance that triggers sex offender registration, I would accept that criminal proceedings would have to adapt accordingly, and that any resulting consequences to which the General Assembly and the Maryland citizenry might object would be unavoidable. Because I do not agree that the result here is correct, I will point out what I think are some of the practical problems with the Majority‘s approach.
The Majority suggests that “[t]o establish the victim‘s age during the adjudicatory phase beyond a reasonable doubt in a case in which the defendant pleads guilty, the State could pursue an agreed statement of facts that establishes the victim‘s age.” Maj. Slip. Op. at 45. But, of course, a defendant need not oblige. In some cases, the State will likely be able to obtain the defendant‘s stipulation to the victim‘s age in exchange for something the defendant wants, perhaps a favorable sentencing
Consider this hypothetical. A man grabs a 16 year-old girl he does not know off the street somewhere in the State, forces her into his car, and drives off. Fortunately, in this hypothetical, there is a witness to the violent abduction, who notifies police immediately, and within minutes officers capture the kidnapper and rescue the victim before the perpetrator can commit any additional crimes against the girl. The State charges the man with one count of kidnapping under
But what if the defendant does not want to plead guilty at all? In that event, under the Majority‘s approach, “determination of the victim‘s age beyond a reasonable doubt could be achieved by a special verdict question submitted to the jury.” Maj. Slip Op. at 46. I would imagine that, in the absence of the Majority‘s holding, a trial judge presiding over my hypothetical kidnapping trial might be amenable to a defense request to prohibit the State from eliciting the victim‘s age during her testimony. After all, the age of the victim seemingly would be irrelevant to a determination of the defendant‘s guilt for kidnapping, but could inflame the jurors if they learned it. Perhaps, after today‘s ruling, some trial judges — concerned about a defendant‘s right to a fair trial — still will exclude such evidence and therefore decline to give the jury the special verdict form envisioned by the Majority, even with the knowledge that this will make the defendant immune to sex offender registration. It is difficult to imagine what remedy the State would have if a trial judge declined to allow the State to elicit the age of the victim when it is not an element of the criminal offense of which the defendant stands accused. Practically speaking, a trial court‘s decision to exclude such evidence
Based on the Majority‘s holding, many judges likely will admit evidence of the victim‘s age and then will provide the jury with a special verdict form on which the jury will be asked to answer a question that will resolve whether, upon conviction of the offense, the defendant will be required to register as a sex offender. The Majority cites no case in Maryland or elsewhere in which a criminal jury has answered such a question on a special verdict form. This is a novel and troubling use of a special verdict form, which has previously been recognized as an appropriate device to create an unambiguous record for appeal in a criminal case, see State v. Adams, 406 Md. 240, 294 (2008), overruled on other grounds, Unger v. State, 427 Md. 383 (2012), not to have a jury make a finding that is relevant only to a collateral consequence of a conviction.
To address the concern of prejudice, the Majority suggests that trial judges consider bifurcating a criminal trial in these circumstances. Maj. Slip Op. at 47. Presumably, in my hypothetical trial, after a finding of guilt, the State would recall the victim and have her testify a second time, this time for the sole purpose of eliciting her age. The trial judge would then re-instruct the jury that they must determine whether the victim was a minor at the time of the offense. Then, the jury would deliberate again and presumably return a “verdict” of “minor” beyond a reasonable doubt.
Putting aside the added layer of complexity and work that this would entail for Circuit Court judges and juries, as well as the need in many instances to make a traumatized young person testify a second time in the same trial, the jury would not be rendering a “verdict” in the second phase of this hypothetical kidnapping trial. A verdict in a criminal case requires a jury to choose between “guilty” and “not guilty” using a reasonable doubt standard (and, when appropriate, between “not criminally responsible” or “criminally responsible,” by a preponderance of the evidence, see
I am also concerned about the implications of the Majority‘s holding with respect to the registration requirements of: (1) Maryland residents convicted in other American or foreign jurisdictions after today of crimes that are “similar to” or “would constitute” one of the Maryland offenses or federal offenses that trigger sex offender registration in Maryland; and (2) non-Maryland residents who move to Maryland to live or work after having been convicted after today in another jurisdiction of crimes that are “similar to” or “would constitute” one of the Maryland offenses or federal offenses that trigger sex offender registration. Unless such a person voluntarily registers as a sex offender for fear of violating the criminal prohibition for failing to register, someone needs to determine that a person in one of
The Majority does not address these other circumstances that lead to registration, but Rogers believes that Apprendi requires them also to be proven beyond a reasonable doubt. That is, under the logic of the Majority‘s holding today, “[b]ecause these additional elements would add to a defendant‘s punishment by requiring registration, they must be submitted to a jury and proven beyond a reasonable doubt.” Brief for Petitioner at 21. A case testing this proposition will likely soon make its way through the courts, and if Rogers is correct, not only will Maryland residents convicted of sex crimes in other jurisdictions no longer have to register under MSORA; sex offenders in other states also will take notice. Because the Majority‘s ruling is unique among the states, Maryland soon thereafter may become a haven for other jurisdictions’ sex offenders.20
IV
Summary Judgment Should Be Entered in Favor of Respondents.
As discussed above, I would hold that the Department, as Rogers‘s Supervising Authority, had the power under MSORA and its implementing regulations to determine the age of Rogers’ victim, and that neither the Maryland Declaration of Rights nor the Sixth Amendment to the United States Constitution requires us to declare this delegation of authority to the Department to be invalid. It follows that the Circuit Court erred in granting summary judgment to Rogers, and the Court of Special Appeals was correct to reverse the Circuit Court.
The Court of Special Appeals directed the Circuit Court on remand to hold further proceedings to determine whether Rogers‘s victim was a minor at the time Rogers committed his offense. 240 Md. App. at 370. The Court contemplated that the State would need to introduce “affirmative evidence of M.H.‘s minority” to prove by a preponderance of the evidence that M.H. was, indeed, under 18 years of age on April 3, 2015. Id. On this point, I disagree with the Court of Special Appeals.
The Circuit Court should have considered in the first instance whether the Department‘s finding that M.H. was a victim at the time of the offense was supported by substantial evidence, reviewing the record in the light most favorable to the Department. See Maryland Dep‘t of Env‘t v. Anacostia Riverkeeper, 447 Md. 88, 119-20 (2016); Banks, 354 Md. at 68. In her recitation of the statement of facts during Rogers‘s plea colloquy, the prosecutor twice described M.H. as “the missing girl.” See Maj. Slip Op. at 4, 5 (emphasis added). In my view, those references
Chief Judge Barbera and Judge Hotten have authorized me to state that they join in this opinion.
Notes
2011 Md. Laws 1016-17, 1021 (Vol. II, Ch. 218, S.B. 327) (cleaned up). Unless otherwise noted, all citations to sections of the Criminal Law Article are to those as set forth in the 2012 Replacement Volume.file a motion to vacate the judgment if, when the person committed the act or acts of prostitution, the person was acting under duress caused by an act of another committed in violation of the prohibition against human trafficking under
§ 11-303 of the Criminal Law Article or under federal law.
(Cleaned up). See note 6 above.in which the individual retains the right to appellate review of evidence subject to a suppression motion but avoids going through the time and expense of a full trial. By pleading not guilty and agreeing to the proffer of stipulated evidence or an agreed statement of facts, an individual, like with a guilty plea, waives a jury trial and the right to confront witnesses but retains appellate review of the suppression decision.