Long v. Md. State Dep't of Pub. Safety & Corr. Servs.

230 Md.App. 1

146 A.3d 546

Franklin David Long

v.Maryland State Department of Public Safety and Correctional Services

No. 2593

Sept. Term, 2014

Court of Special Appeals of Maryland.

September 28, 2016

Argued by: Evan V. Goitein (Goitein Law LLC on the brief) of Bethesda, MD, for Appellant.

Argued by: Judith A. Barr (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Graeff, Kehoe, James P. Salomon, Senior Judge, Specially Assigned, JJ.

Opinion by Salmon, Jr.Franklin David Long (“Long”) filed a complaint for declaratory relief in the Circuit Court for Montgomery County against the Maryland Department of Public Safety and Correctional Services (“the Department”) in which he asked the court to declare:

(1) That the Plaintiff be removed from the Maryland Sex Offender Registry since his original sentence required only a ten (10) year registration term which should have expired in 2011; or, in the alternative,

(2) Should this Court find that the Plaintiff must remain on the Maryland Sex Offender Registry, that the Plaintiff only be required to register once a year with his supervising authority as opposed to every three months; and further

(3) That the terms of his registration be in accordance with his original sentence and the laws in place at the time of his crime, and not pursuant to the retroactive application of the 2001, 2009 and 2010 amendments to the Maryland sex offender statute[.]

The Department filed an answer to the complaint, after which both Long and the Department filed motions for summary judgment. The circuit court, after hearing oral argument, granted the Department's motion for summary judgment and ruled: 1) that Long's original sentence required him to register as a sex offender for life, and 2) that Long was required to meet the registration requirements as a sex offender as they currently exist. The court also denied Long's cross-motion for summary judgment and declared, in writing, the rights of the parties. Long filed a timely appeal to this Court in which he raises two questions that he phrases as follows:

1. Did the [c]ircuit [c]ourt err in determining that [a]ppellant was subject to lifetime registration on the Maryland Sex Offender Registry when he was only required to register for a ten-year term at the time of his sentence?

2. Did the [c]ircuit [c]ourt err in determining that the additional registration requirements imposed upon [a]ppellant by the 2009 and 2010 amendments to the Maryland Sex Offender Registry Act did not violate the prohibition against ex post facto laws under the Maryland Declaration of Rights?

The second question presented is one of first impression. We shall answer that question as well as the first in the negative.

I. BACKGROUND

On October 4, 2000, when Long was 66 years old, he committed a third-degree sexual offense. On the date this crime was committed his victim was an 11-year-old girl.

About ten months after the commission of the aforementioned crime, on August 6, 2001, Long entered a guilty plea in which he admitted having committed a third-degree sexual offense. The plea was entered in the Circuit Court for Montgomery County, Maryland. On September 6, 2001, the circuit court sentenced Long to five years' incarceration with all but six months suspended, in favor of five years' probation.

At the time of Long's sentence, the statute that prohibited third-degree sexual offenses was set forth in Article 27 § 464B of the Annotated Code of Maryland (1987, Repl.Vol.). In 2002, that last mentioned statutory provision was transferred, without substantive change, to Maryland Code (2002), Criminal Law Article (“Crim. Law”) § 3–307. When Long was convicted in 2000, Article 27 § 792(D)(2)(ii)1 provided that anyone convicted as a third-degree child sexual offender was required to register for life as a sexual offender. Moreover, due to the nature of Long's crimes, he also met the definition of a sexually violent offender; such offenders were also required to register as a sex offender for life. See Article 27 § 792(D)(4)(ii)1.

On the same date that Long was sentenced, September 6, 2001, Long acknowledged receipt of an “order for probation upon release from incarceration.” That order set forth various conditions of probation, one of which was that he “must register as a sex offender.” The order did not specify for how long appellant was required to register.

Ten days after Long filed his acknowledgment of the conditions of his probation, he received a document entitled “Notice to Registrant of Requirements under Article 27, Section 792.” That document informed Long, erroneously, that he was only required to register as a child sexual offender annually for “the next 10 years” i.e., until September 18, 2011.

Long, on January 20, 2004, received a document entitled “Notice to Registrant [-] Under Criminal Procedure Article 11–701 -721.” That document advised Long that he was required to register as a child sexual offender annually for life.

In 2009 and 2010, the Maryland Sex Offender Registration Act (“the Act”) was amended. The amendments, insofar as here pertinent, are set forth in Maryland Code (2008 Repl.Vol., 2015 Supp.), Criminal Procedure Article (“Crim. Proc.”) § 11–701(q)(1)(ii). The amendments to the Act, reclassified persons in Mr. Long's situation from a “child sexual offender” and “sexually violent offender” to a “Tier III sex offender.” As amended, the Act defined a “Tier III sex offender” as a “person who has been convicted of ... committing a violation of § 3–307(a)(3)... of the Criminal Law Article[.]” See Crim. Proc. § 11–701(q)(2). Although the amendments did not change the time period for which an offender was required to register, it did require that the offender “register in person every 3 months with a local law enforcement unit” for the life of the registrant. See Crim. Proc. § 11–707(a)(2)(i) and (a)(4)(iii). The 2010 amendment made additional changes, which are discussed infra.

In his complaint requesting declaratory relief, Long asserted that by requiring him to continue to register as a sex offender after September 18, 2011, the statute violated the prohibition against ex post facto laws set forth in Article 17 of the Maryland Declaration of Rights. This is true, according to Long, because he was “originally required to register for ten (10) years and now must register for life.”

Long asserts, in the alternative, that in the event that this Court should determine that he must remain on the Maryland Sex Offender Registry for life, we should, nevertheless, decide that he should only have to meet the reporting requirements that were in place in 2000 and not the more stringent requirements currently imposed upon third-degree sex offenders.

The circuit court, in a written opinion, declared:

Pursuant to the 1999 amendment to the Maryland Sex Offender Registration Act (the “Maryland Act”), Mr. Long was required to register as a child sexual offender for life. 1999 Md. Laws ch. 317.

As a result of a 2010 amendment to the Maryland Act, Mr. Long is now classified as a “[T]ier III” sex offender in Maryland which has not changed the requirement that he register for life. See Md. Code Ann., Crim. Proc. § 11–701(q)(1)(ii) (2013 Supp.).

The Maryland Act has not been applied, and is not now being applied, to Mr. Long in any way so as to violate either the federal or state ex post facto clauses. Mr. Long is therefore obligated to continue to register as a [T]ier III sex offender for life in accordance with the requirements of the Maryland Act.

II. FIRST ISSUE PRESENTED

Long's first argument is phrased as follows “[t]he [c]ircuit [c]ourt erred in determining that [a]ppellant should not be removed from the MSOR [Maryland Sex Offender Registry] because the ten-year registration term to which he was obligated has expired.” The key phrase in this argument is “the ten-year registration term to which he was obligated has expired.” Actually, in 2001, when Long was sentenced, as a collateral consequence to pleading guilty to a third-degree sex offense involving a female under the age of 14 years, Long was “obligated” to register as a sex offender for life—not ten (10) years. In his brief, Long admits that this is what the law provided in 2001, the year that he entered his guilty plea. Long argues, however, that “lifetime registration was never a condition of” his sentence and, as a consequence, he “is entitled to the benefit of the bargain in his plea agreement, and [the Department] cannot unilaterally decide to increase [his] registration term to something other than what was agreed to, understood, and voluntarily accepted by [him] at the time of sentencing.” Later in his brief, Long makes much the same point when he argues that when he “received his sentence, his plea agreement included a requirement to register on the MSOR for ten years.”

There are two major problems with the above arguments. First, in the circuit court, Long never argued that at the time he pleaded guilty, he and the State agreed that he would only be required to register as a sex offender for ten years. Therefore, the circuit court did not address that argument. See Md. Rule 8–131(a) (except for certain jurisdictional issues, an appellate court will ordinarily not decide any issue neither raised nor decided in the circuit court). Second, there is nothing whatsoever in the record to suggest that, at the time the plea agreement was put on the record, the State, the plea judge, or anyone else, agreed with appellant that he would only have to register as a sex offender for ten years.

In his brief, Long argues the fact that his plea agreement “included a requirement to register on the MSOR for ten years” is supported by the “Notice to Registrant of Requirements under Article 27, Section 792” that he received. The content of the notice to registrant tells us nothing whatsoever as to appellant's understanding of the registration requirements when he entered his guilty plea. That notice was received...