As a former Assistant State’s Attorney and full time criminal attorney for over 20 years, I have both prosecuted and defended hundreds of individuals who have been charged with Sex Offenses. Many, indeed virtually all, people who are convicted with one of these offenses are required to register as a sex offender. The statute controlling sexual offender registry is complicated and, in recent years, has been amended several times. I have recently been retained by 3 separate clients who have had their Sexual Offender Registration Requirements retroactively changed as a result of these amendments. One was not required to register at all as a result of his conviction but is now being told he must, and two others who have had their registration terms changed from 10 years to life. We believe that these changes are in clear violation of the Ex post Facto Clause contained in Article 17 of the Maryland Declaration of Rights. We are filing what is called a Declaratory Judgment action in the Circuit Court in each one of these cases to request that the court issue and Order to the Department of Public Safety to remove these individuals from registry. Here is a brief synopsis of the law:
In 2009, the General Assembly passed a new law, effective October 1, 2009 changing the registration requirements. The new statute said an offender who committed an offense prior to October 1, 1995, but was convicted after, and had not previously been required to register, now had to register. In 2010, the statute was again amended changing the registration term for Tier III sex offenders from 10 years to lifetime registration.
In 2013 the Court of Appeal heard the case of Doe v. Department of Public Safety. In this case, Doe filed a civil proceeding, seeking declaratory judgment seeking removal of his name from the registry. That relief was denied by the Circuit Court and Doe appealed to the Court of Special Appeals. On appeal, he argued that requiring him to register violated his plea agreement and raised an ex post facto argument. The Court of Special Appeals affirmed the trial court. The Court of Appeals took certiorari.
The Court of Appeals plurality opinion:
The Court of Appeals held that requiring Doe to register as a result of the 2009 and 2010 amendments violated the prohibition of Ex post Facto Laws contained in Article 17 of the Maryland Declaration of Rights. The Court reasoned that Doe was not required to register until 2009- therefore, the statute was retroactively applied to him. The Court then determined that the registration changed the consequences of his crime to his disadvantage- equating registration as placing him on a lifetime of probation. The Court also opined that the statute’s dissemination provisions amounted to shaming.
Judge Harrell’s concurring opinon:
Judge Harrell rejected the plurality’s ex post facto determination, but stated he would give him relief but by directing specific performance of Doe’s guilty plea not to include registration. The Court noted the plea record does not indicate registration was a term, and therefore, a reasonable person in Doe’s position would understand registration was not part of the consideration for the plea.
Because of this ruling we fully expect to be successful in having our clients’ names removed from the registry. If you find yourself in similar circumstances please do not hesitate to contact my office and ask for Attorney Brian Thompson.