In re Nick H.

224 Md.App. 668

123 A.3d 229

In re NICK H.

No. 2768, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Sept. 29, 2015.

Deborah S. Richardson (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant.

Cathleen C. Brockmeyer (Douglas Gansler, Atty. Gen., on the brief) Baltimore, MD, for Appellee.

Panel: KRAUSER, C.J., WOODWARD, GRAEFF, JJ.

Opinion

WOODWARD, J.

On June 27, 2006, appellant, Nick H. (DOB: 3/29/90), entered a plea of involved to one count of sexual abuse of a five-year-old boy and two counts of second degree sexual offense against the same victim in the Circuit Court for Montgomery County, sitting as a juvenile court.¹ The juvenile court committed appellant to the Department of Juvenile Services for placement in a residential treatment center. Approximately ten months later, appellant was released from the treatment center and placed on probation with home electronic monitoring.

In 2009 and 2010, the Maryland General Assembly amended the Maryland sex offender registration act (“MSORA”), requiring, among other things, that certain juveniles convicted of various sex offenses and at significant risk of committing a sexually violent offense or a Tier II or Tier III sexual offense (“at significant risk of re-offending”) to register as sex offenders upon leaving the jurisdiction of the juvenile court. See Md.Code 2001, 2008 Repl.Vol., 2010 Cum.Supp. § 11–704(a), (c) of the Criminal Procedure Article (“CP 2010”).² As a result of these statutory changes, the State requested that appellant be placed on the sex offender registry, and the juvenile court conducted a hearing to determine whether appellant was at significant risk of re-offending. The court concluded, based on clear and convincing evidence, that appellant was at significant risk of re-offending and thus ordered him to register as a sex offender pursuant to MSORA.

Appellant now challenges the juvenile court's order. He presents two questions for our review, which we have rephrased:³

1. Did the juvenile court err in ordering appellant to register as a sex offender given the Court of Appeals' holding in Doe v. Department of Public Safety & Correctional Services, 430 Md. 535 [62 A.3d 123] (2013) (“Doe I ”), that retroactive registration is a violation of the constitutional prohibition against ex post facto laws?

2. Was appellant entitled to specific performance of his plea agreement, which did not include a requirement that he register as a sex offender?

For the reasons set forth below, we answer both questions in the negative and affirm the juvenile court's order requiring appellant to register as a sex offender.

BACKGROUND

On June 27, 2006, appellant pleaded involved to one count of sexual abuse of a minor and two counts of second degree sexual offense. The State's proffer revealed that, while appellant babysat five-year-old A.H. and his two older brothers, appellant sodomized A.H. and forced A.H. to perform fellatio on him. Appellant initially denied sexual contact with the victim, but after further questioning admitted that he “had put it in [A.H.'s] mouth about midway down the tongue.” Appellant was fifteen years old when the abuse occurred.

The juvenile court accepted appellant's plea, and appellant was placed in a residential treatment center for about ten months. Upon release from the treatment center in June 2007, appellant was placed on probation, and for the following three and one-half years the juvenile court monitored appellant's progress in outpatient sex offender treatment through regular review hearings.

In 2009 and 2010, the Maryland General Assembly amended MSORA. One such amendment allowed, under specific circumstances, the juvenile court to order juvenile offenders who had been adjudicated involved in certain sexual offenses to register as sex offenders when they left the jurisdiction of the juvenile court.⁴ See CP 2010 §§ 11–704(a), (c). In response to this change, on October 7, 2010, the State requested that the juvenile court order appellant to register as a sex offender.

Based on the new law and the State's requests, the juvenile court conducted a hearing on December 15 and 21, 2010, to determine whether appellant should be placed on the sex offender registry. The court's decision considered only the testimony and reports presented at the hearing.

In rendering its opinion, the juvenile court noted that appellant “committed sexual acts with [A.H.] maybe 50 times. 20 times included penetration, and there were also offenses that included fellatio....” In addition, the court stated that, “I think maybe there was one event that involved [A.H.]'s brother,” and “that there was also another youngster involved by the name of [L.F.].... [T]here was denial as to [L.F.] [ ] for a long time, for 20 months or so, almost two years.”

The juvenile court reviewed the testimony and reports of the three witnesses who testified at the hearing. Dr. Ronald I. Weiner, an expert in adult and juvenile sex offender risk assessments and treatment, provided an independent evaluation of appellant, the findings of which were memorialized in a detailed, thirty-page risk assessment report. Dr. Weiner testified to his findings at the hearing. The court described Dr. Weiner as “neutral,” and thus determined that “his testimony and his report [were to be given] significant weight.” The court also heard testimony from Ta–Keisha Smith, appellant's case manager, who the court also found to be “very credible.” Dr. Fred Berlin, appellant's treating physician for his sex offender treatment, also testified. Because Dr. Berlin was appellant's treating physician, he was not asked to perform an independent evaluation. Regarding Dr. Berlin's opinion, the court stated: “I am forced to give his testimony far less weight. I, he came across in the Court's opinion, as an advocate.”

Based on the witnesses' testimony, Dr. Weiner's report, and “various psycho sexual reports” from the years appellant was supervised while in placement and on probation, the juvenile court found that appellant was “a highly sexualized young man.” The court explained that, when appellant first came into the system,

both Dr. Weiner and Dr. Berlin reported the significant level of abuse and criminal activity that [appellant] was involved in, back for this four plus years. Dr. Weiner described it as egregious and predatory.

* * *

[T]hey noted that [appellant] had not only this criminal history, but there was, I guess what the Court can fairly describe as a highly, a highly sexualized young man. Not just back when he was 11 to almost 16, but thereafter.... [H]e acknowledged, I guess, maybe 20 sexual partners. I'm not talking about young children, I'm talking about peers. He acknowledged having sex at least three times with someone who was drunk, masturbating in a public place, fondling the dog's genitals, phone sex, internet sex with female peers. So that we, and someone who, by his words, by [appellant's] own words, was perhaps addicted to pornography. So that's the presentation when [appellant] came into the system. And it was also the presentation, at least by history, that Dr. Weiner and Dr. Berlin were, and are working with.

The juvenile court expressed concern that appellant's behavior over the four and one-half years that he was monitored by the juvenile court raised questions about his honesty. The court stated that

[appellant] has demonstrated some challenging behavior throughout the life of this case. Behavior that has involved deception, behavior that has involved avoidance, behavior that has involved downright lying....

* * *

There seems to be a pattern in [appellant's] behavior throughout the life of this case of denying, avoiding,—avoiding, denying, lying, polygraph, or some type of confrontation, admission, then denying again, and then admitting again.

The juvenile court pointed to numerous examples of appellant's deceptive behavior. Principal among them was that appellant did not “until very recently ... reveal to anybody that he had been having a sexual relationship with a young girl when he was very young. He was maybe eight and the young girl was, I think, 11.” The court found it “startling and troubling” that “someone that has been under this intense level of scrutiny in this particular field of psycho social treatment, to not disclose that for that long.”

In addition to appellant hiding his sexual relationship at the age of eight, the juvenile court also described numerous instances of appellant lying to his parents and to Dr. Berlin. Appellant lied about his part-time employment, and denied being aroused by child pornography despite admitting that images of children, including an image of A.H., came to his mind while masturbating. The court stated that “it seems clear that [appellant] has, in the past, had an addictive, an addiction to pornography and then that became an area of deception for him.” That deception became apparent when appellant told Dr. Berlin in 2008 that he was no longer accessing pornography, but later stated that his use of pornography ended in late 2009.

Appellant also denied using illegal drugs until he tested positive in a random urinalysis. Despite the positive drug test, appellant continued to lie about the extent of his drug use, suggesting to his case manager that he had only used on his birthday, when in fact he had used regularly for a period of seven months. The juvenile court found this alarming, given that the drug use occurred “[w]hile on probation, and while under the strictest scrutiny by the Court.” Although the court recognized that there were “some unfortunate lapses in this case,” namely that appellant was not subject to random urine testing for three years of his probation, the court was particularly concerned that appellant took advantage of this lapse to regularly use drugs.

Because of the extent of appellant's deception, the juvenile court questioned appellant's seemingly good decisions. In 2008, appellant voluntarily agreed to take depo...