Posted On: October 26, 2010 by Brian G. Thompson

Maryland Sexual Offenders Registration Law Changes Causing Retroactive Reporting Requirements - Is this Legal?

Changes in the Maryland Sex Offender Registration laws are, as a Maryland Criminal Defense Attorney something I have to be aware of. I have represented many defendants over the years who have been charged with sex offenses. In these cases the defendant faces not only the prospect of criminal punishment of his conduct but also the possibility of being required to register as a sex offender. On October 1, 2010 the Maryland Sex Offender Registration Statute, (Criminal Procedure Code Ann, Section 11-704) which was rewritten to bring in line with the comparable Federal Statute, went into effect. The new rules now require those convicted of fourth degree sex offenses to register. The issue and the reason for this blog is that the new statute was specifically designed to apply retroactively.

This retroactive application is legally problematic and possibly Unconstitutional in my view in certain instances. The Court of Appeals has already approved retroactive increases in the term of registration in the case of Young v. State. The Court ruled that sexual offender registration did not expose the defendant to to a greater penalty but was instead a remedial requirement for the protection of the public.

The real questionable application of the new law, that in my view can be differentiated from a mere increase in the term of registration, is the imposition of a retroactive requirement to register on people who were convicted of fourth degree sex offense and were not originally ordered to register as a result of their conviction. ( Prior to the change in the law it was left to the discretion of the trial court as to whether to require registration for fourth degree sex offenses and it was rarely ordered).

In particular I think this application becomes even more problematic when retroactive registration is applied to a defendant who pled guilty to a fourth degree sex offense when a specific component of the guilty plea was that he or she would not be required to register. This application I believe deprives the defendant of the benefit of the bargain that he or she reached with the State and therefore renders the guilty plea retroactively involuntary. I have a client who is in this situation right now based on a plea she entered last year. Here are the facts:

I actually bogged about this case last year in one of my "do you have the right lawyer" blogs because I had taken over the case from a lawyer in whom she had lost confidence. Only after she began to lose confidence in this lawyer did she bother to review his experience and find out that he had handled very few felony cases in Baltimore County. The facts of the case were that my client who was female and 25 at the time, was in some type of relationship with a 15 year old boy from her neighborhood. They had a falling out and my client was accused of going to his home and shooting at his back window with a shotgun.

She was charged with attempted murder, first and second degree assault and 3rd and fourth degree sex offenses based upon the fact that he was 15 and she was more than four years older than he. Throughout my representation of her, she adamantly maintained that the relationship with the boy was platonic but the boy claimed that it was a sexual relationship. The State claimed corroboration of his claim in the form of a friend of my client's who said that my client had told her that she did in fact have a sexual relationship with the boy. My client denied that this conversation ever occurred. This witness had serious credibility problems not the least of which was that she was also charged in the incident and had entered into a cooperation agreement with the State. Needless to say the evidence of a sexual relationship was weak and amounted to little more than a he said she said. Very shortly after I was retained I let the State's Attorney know that my client would never agree to a plea that included the third degree sex offense both because it is a felony and because a conviction for 3rd degree carried with it a mandatory term of registration as a sex offender of 15 years.

Ultimately I negotiated a plea bargain wherein my client agreed to proceeded to trial by way of an agreed not guilty statement of facts (this is essentially a guilty plea without a specific admission of guilt) to a second degree assault and a fourth degree sex offense - both misdemeanors. A specific component of the plea agreement was that the State would not recommend that the court require registration which as noted herein, was within the Court's discretion under the prior statute. Knowing the judge that the case was assigned to quite well, I was very confident that if the State did not request registration, the Court would not order it. My client was sentenced to a suspended jail term and placed on a period of supervised probation. As I expected, the Court did not order that she register as a sex offender.

Now flash forward to October of this year and my client gets a call from her probation agent telling her that she must now register as a sex offender and that on Halloween she cannot leave the house and must post a sign on her front door declaring that a sex offender lives at the residence and that no candy will be given. Needless to say my client, who has a 7 year old daughter, was shocked and devastated by what she views, and I wholeheartedly agree, as an unfair change of her circumstances. Said another way, in my view the State has basically changed the rules of the game after the game has been played.

As I noted in the first paragraph of this blog, I believe the situation I just described is a far different situation than the one in which a person who was already required to register has the length of the term increased. As I noted, this retroactive change in the term has been found to not violate the Ex Post Facto Clause of the Constitution because the Supreme Court ruled that a requirement to register is not a "penalty" within the meaning of that clause. While I am quite certain that anyone who is currently required to register would beg to differ with the Court's conclusion on that issue, that is clearly the current state of the law.

In my client's situation she is being denied the benefit of the plea bargain that she negotiated with the State. I believe this is a violation of my client's due process rights and that this retroactive application of the new law renders my client's plea of guilty to be not a knowing and voluntary one. I intend to file a motion for new trial and/or a petition for corum nobis on my client's behalf. I will update this blog when a ruling is made.

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