Barnes v. State

31 A.3d 203

423 Md. 75

Kenneth E. BARNES

v.STATE of Maryland.

No. 124

Sept. Term

2010.

Court of Appeals of Maryland.

Oct. 27, 2011.

Nancy S. Forster (Law Offices of Nancy S. Forster, Towson, MD), on brief, for Petitioner/Cross–Respondent.

Ryan R. Dietrich, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent/Cross–Petitioner.

Argued before BELL, C.J., HARRELL, GREENE, ^* MURPHY, ADKINS, BARBERA, JOHN C. ELDRIDGE, (Retired, Specially Assigned), JJ.ADKINS, J.

In this case, we are asked to determine whether a person may use a motion to correct an illegal sentence as a means to challenge the requirement that he register as a sex offender, even though he does not claim the requirement is a sentence, and is no longer subject to any criminal penalties stemming from his sexual offense conviction. In 1998, Petitioner Kenneth Barnes pleaded guilty to third-degree sexual offense involving a minor under the age of 15. Following his conviction, Barnes was directed to register as a sexual offender pursuant to Maryland Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.), Article 27, Section 792. While initially he complied with this requirement, Barnes was later convicted of violating the registration statute by failing to notify local law enforcement of a change in his address. He was placed on probation, and a subsequent violation of that probation resulted in prison time.

Upon being released, Barnes filed a Motion to Correct an Illegal Sentence, pursuant to Maryland Rule 4–345(a), in which he argued that his probation and incarceration were the result of the erroneous imposition of the sexual offender registration requirement. The Circuit Court denied Barnes's motion on the grounds that he was indeed subject to the registration requirement. Barnes appealed to the Court of Special Appeals. In a reported opinion, the intermediate appellate court determined that it had jurisdiction to entertain the case and affirmed the lower court on the merits. See Barnes v. State, 195 Md.App. 1, 5 A.3d 1103 (2010). Barnes then petitioned this Court for a Writ of Certiorari and the State submitted a conditional cross-petition, both of which were granted on January 21, 2011. Barnes v. State, 417 Md. 500, 10 A.3d 1180 (2011). On appeal, Barnes asks us to determine

[Whether it was] illegal to retroactively impose sex offender registration under Maryland's 1997 Sex Offender Registration Act on Mr. Barnes where his alleged offense was committed before July 1, 1997, and he was not previously subject to the requirements of the old 1995 Sex Offender Registration Act[.]

The State, meanwhile, asks

[Whether] the Court of Special Appeals err[ed] in finding that the requirement that Barnes register as a child sexual offender was a sentence that could be challenged at any time under Md. Rule 4–345(a)?[.]

We shall hold, contrary to the holding of the Court of Special Appeals, that Barnes's claim is not justiciable because he is not currently serving a “sentence” for the purposes of Rule 4–345(a). As there is no “sentence” for this Court to correct, we dismiss his case as moot.

FACTS AND LEGAL PROCEEDINGS

A. Sexual Assault Conviction

In November 1996, the State charged Barnes with second-degree rape, assault with intent to commit rape, third-degree sexual offense, fourth-degree sexual offense, and assault. The victim had reported that, on various occasions between January and May of that year, Barnes had “tried to kiss her[,]” “fondl [e] her[,]” and would “place[ ] his fingers in and about her private areas ... like he was trying to tickle her.” ¹ Before the case could proceed, however, two physicians diagnosed Barnes with “Bipolar I Disorder, Manic Type” and “Schizo Affective Disorder–Bipolar Type,” and the court appointed Barnes's mother as his guardian. As a result of the medical reports, Barnes's attorney filed a Motion for a Competency Determination.

On July 15, 1997, a Baltimore City Circuit Court judge ruled that Barnes was not competent to stand trial and committed him to Spring Grove Hospital under the care of the Department of Mental Health and Hygiene. On October 17, 1997, Spring Grove sent a letter to the court, concluding that Barnes was competent to stand trial. On December 1, 1997, the court found that Barnes was competent to stand trial and ordered him to be released from Spring Grove on the condition that he reside with his mother.

On August 31, 1998, Barnes appeared in the Circuit Court on his sexual offense charges. Counsel for Barnes informed the court that Barnes had agreed to an Alford plea on the single count of third-degree sexual offense, and in exchange the state agreed not to prosecute the remaining charges. Mr. Barnes's understanding was that if he agreed to the plea, the court would impose a suspended ten-year sentence with a supervised probationary period of four years. The court heard the prosecution's presentation of the allegations against Barnes, and consequently found him guilty of third-degree sexual offense. Pursuant to the agreement with Barnes's counsel, the court imposed a ten-year suspended sentence with a four-year period of supervised probation. During this proceeding, the court imposed the conditions of Barnes's probation, including instructions that he continue receiving psychiatric treatment and not have contact with the complaining witness or the prosecutor. The court did not expressly order that Barnes register as a sexual offender.

Following Barnes's conviction, the Maryland Division of Parole and Probation provided him with a form stipulating that Article 27, Section 692B required him to register as a sexual offender with the Maryland Division of Parole and Probation. On November 4, 1998, Barnes signed the form, acknowledging that he had been advised of the registration requirement and that he understood that “failure to comply may place [him] in violation of [his] supervision and may also subject [him] to additional criminal penalties.”

B. Violation of Notification Requirement and Subsequent Probation

Barnes finished his four-year supervisory probation in August 2002 without incident. During this period of probation, he complied with all registration requests. After his period of probation ended, however, Barnes moved to a new address and failed to notify his supervising authority as required by law. See Md.Code (2001, 2008 Repl.Vol.), §§ 11–701, 11–704, 11–705, 11–707 of the Criminal Procedure Article.² Thus, on April 14, 2005, the State charged Barnes with failing to notify the Department of Public Safety and Correctional Services or the Baltimore City Police Department of his change in address. Barnes pleaded guilty and received a new three-year suspended sentence with a three-year supervisory probation. Once again, as a condition of his new probation, Barnes was required to live with his mother.

On September 6, 2005, Barnes's probationary agent, Corey Immer, filed a report with the Circuit Court indicating, “Barnes'[s] adjustment to probation supervision is satisfactory at this time.” Immer requested that the court allow Barnes to move out of his mother's house, but the court denied his request on October 5, 2005. Fifteen days later, Barnes's counsel filed a Motion for Modification of Sentence and Request for Hearing which asked the court to reconsider the condition that Barnes live with his mother. The court did not take action with respect to this motion.

Following a home visit on October 21, 2005, Immer filed a Special Report and Request for a Warrant, alleging that Barnes had violated the terms of his probation requiring him to live with his mother by maintaining a residence separate completely from that of his mother. Barnes was arrested on October 28, 2005. In an expedited hearing on December 12, 2005, Barnes was convicted of violating his probation and ordered to serve the remainder of his three-year sentence for failing to report his change of address. Barnes was released on parole on March 21, 2007, and arrested on a parole re-take warrant on May 4, 2007, because of an anonymous complaint that Barnes had been seen staring at the “private area” of the complainant's daughter. On May 29, 2008, the State released Barnes from incarceration. Barnes is not currently incarcerated or on probation.

C. Motion to Correct an Illegal Sentence

On March 29, 2009, Barnes filed a Motion to Correct an Illegal Sentence on the grounds that the courts that had convicted him of third-degree sexual assault in 1998 and failing to notify his supervising authority of his change in address in 2005 lacked “the power to require Barnes to register as a sex offender.” The Circuit Court denied Barnes's motion on June 15, 2009, stating that “whether a judge orders registration or not, the requirement to register pursuant [to] §§ 11–704 through 707 [of the Maryland Criminal Procedure Article] is statutorily mandated of a defendant convicted of Third Degree Sex Offense for acts involving a child.” When Barnes appealed this decision, the State opposed Barnes's appeal, in part, on preservation grounds, arguing that the registration requirement is not a “sentence” that may be challenged under Maryland Rule 4–345(a). The Court of Special Appeals rejected the State's preservation argument, but affirmed the Circuit Court's denial of Barnes's motion on the grounds that his 2005 sentence was proper because he was subject to Maryland's registration statute at that time. See Barnes, 195 Md.App. at 17, 5 A.3d at 1112.

DISCUSSION

Pursuant to Maryland Rule 4–345(a), a “court may correct an illegal sentence at any time.” Md. Rule 4–345(a). In its cross-appeal, the State argues that Barnes's claim is not properly preserved because the requirement to register as a “child sexual offender” is not a sentence for the purposes of Maryland Rule 4–345(a). The State explains that registration is not a sentence imposed by a trial court, but rather, is a civil requirement that arises...