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John Doe v. Department of Public Safety and

March 4, 2013

JOHN DOE
v.
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SER VICES



The opinion of the court was delivered by: Greene, J.

John Doe v. Departm ent of Pub lic Safety and Correctional Services, Case No. 125, Plura lity Opinion by Greene, J.

CONSTITUTIONAL LAW - EX POST FACTO

Three judges of the Court (Bell, C.J., and Greene and Eldridge, JJ.) conclude that application of the Maryland sex offender registration law to John Doe, as a result of the 2009 and 2010 amendments, "after the commission of an offen se which . . . in relation to that offense, o r its consequences, alters the situation of [Doe] to his disadvantage" violates Art. 17 of the Maryland Declaration of Rights, independent of the ex post facto prohibition contained in Art. I of the federal Constitution. See Anderson v. Dep't of Health & Mental Hygiene, 310 Md. 217, 224 , 528 A .2d 904 , 908 (1987) (emphasis and q uotation s omitted).

Two judges of th e Court (A dkins and McD onald, JJ.), in a se parate opin ion, concur in the Court's judgment, but read Art. 17 of the Maryland Declaration of Rights in pari ma teria with Art. I of the federal Constitution and conclude that the sex offender registration law, as amended in 2009 and 2010, changed "from [one] of civil regulation to an element of the punishment of offenders," thus precluding retroactive application of that law to Doe.

One judge of the Court (Harrell, J.), in a separate opinion, concurs in the Court's judgment and concludes, rejecting reliance upon the plurality's ex post facto analysis, that Doe is not required to register as a sex offender because sex offender registration was no t a term of his plea agreement in this case. U nder the circumstance s, according to the concu rring opinion's application of Cuffley v. Sta te, 416 Md. 568, 7 A.3d 557 (2010), Doe's remedy is the specific enforcem ent of his plea agreeme nt.

The final judge of the Court (Barbera, J.) dissents from the Court's judgmen t and rejects the application of the ex post facto analysis of the plurality and rejects Judg e Harrell's application of Cuffley. Judge Barbera would have affirmed the judgment of the Court of Specia l Appe als.

Bell, C.J. Harrell Greene Adkins Barbera McD onald Eldridge, Jo hn C. (Re tired, Specially Assigned), JJ.

Opinion by Greene, J.

Harrell, Adkins, and M cDonald, JJ., concur.

Barbera, J., dissents.

The Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl. Vol., 2012 Cum. Supp.), § 11-701 et seq. of the Criminal Procedu re Article (hereinafter all section references to the Criminal Proced ure Article of the Maryland Code are identified as "C.P. §"), requires persons convicted of certain sex offenses to register*fn1 with "the person's supervising authority."*fn2 We are asked to determine whether, under this statute, the State can legally require Petitioner to register. Petitioner argues that requiring him to register as a sex offender: (1) violates Petitioner's right to be free from ex post facto laws pursuant to both the federal Constitution and the Maryland Declaration of Rights, and to be free from ex post facto restrictions pursuant to the Maryland Declaration of Rights; (2) violates Petitioner's due process rights pursuant to both the federal Constitution and the Maryland Declaration of Rights; and (3) violates the plea agreem ent entered into when he pled gu ilty to the underlying crime.

During the 1983-84 school year, at the time of Petitioner's commission of the sex offense mentione d herein, the Marylan d sex offen der registration statute did not exist. The General Assembly enacted the sex offender registration statute in 1995. As a result of amendm ents to that statute in 2009 and 2010, Petitioner is now required to register as a sex offender. We sha ll hold that requiring Petitioner to register as a result of the 2009 and 2010 amendm ents violates the prohibition a against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights. Pursuant to our determination that Petitioner may not be compelled to register, his name and likeness shall be removed from the Maryland Sex Offender Registry.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On June 19, 2006, John Doe*fn3 ("Petitioner") pled guilty to, and was co nvicted of, a single count of child sexual abuse under Maryland Code (1957, 1982 Repl. Vol., 1984 Cum. Supp.), Article 27 § 35A.*fn4 Section 35A(a)(4)(i) prohibited "any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or respon sibility for superv ision of a child."

Petitioner's conviction was based on his inappropriate contact with a thirteen-year-old student during the 1983-84 school year when Petitioner was a junior high sch ool teacher. At the time of the incident, allegations concerning Petitioner's misconduct were reported to school officials, the school officials conducted an investigation, and Petitioner resigned from his teaching position at the school. No charges, however, were brought at that time.

Approx imately 20 years after the incident, in 2005, a former student contacted law enforcement and reported the sexual abuse that occurred during the 1983-84 school year. According to the State, in 2005, Petitioner was charged with various sex related offenses involving children.

On June 19, 2006, Petition er and the S tate presented a plea agreement to the trial judge, which the judge accepted as binding. The agreement called for Petitioner to plead guilty to one count of child sexual abuse, a crime that carried a maximum sentence of fifteen years incarceration. In exchange for the guilty plea, the agreement (1) provided for a presentence investigation ; (2) allowed Petitioner to remain on b ond until the sentencing date;

(3) established a five-year cap o n the actual term of incarceration the trial court co uld impose, allowing Petitioner to argue fo r a reduced sentence; and (4) provided that the State would not pursue the other outstanding charges or any subsequent related uncharged crimes. The agreement did not, however, address registration as a sex offender. After accepting the binding plea agreement, the trial judge entered a conviction and ordered a pre-sentence investig ation.

Petitioner's sentencing hearing was held on September 6, 2006. Before imposing sentence, the trial judge ex plained to P petitioner:

I am impre ssed with th e life that you have lived since being relieved of your resp onsibilities as a teacher. . . . I'm also impressed by some of the difficulties that you've experienc ed in your life and the responsibility that you sho wed to your family and the responsibility that you've shown to others [ever] since that time. So the [court] is certainly taking into consideration all of the things that you have done of a positive nature since the time of this incident back in the 1980s. And what has been also said is true that rehabilitation is one of the factors that the [trial court] must look at, and you appear to have rehabilitated yourself sign ificantly since th e time of this in cident.

(Empha sis added). The trial judge then stated, however, that "there are other things the [trial court] must consider, such as, the natu re of the crim e." The trial jud ge noted th at "[c]hild abuse is a very serious and heinous crime" and that th e victim was a " child" and a "student." The trial judg e stated:

Retribution is also a valid factor, punishment for punishment's sake, as well as general deterrence, that is to p revent and deter others from committing acts such as this. Once again, these are just as valid as reh abilitation, specific deterrence , that is, to prevent [Petitioner] from committing an act such as this again, which I don't think will occur. (Empha sis added). The trial judge imposed a sentence of ten years incarc eration, with all but four and one half years suspended, and three years supervised probation upon release from incarceration. As one of the conditions of Petitioner's probation, he was ordered to "register as a child sex o ffender." A dditionally, the trial judge ordered P petitioner to pay court costs and a fine of $500.

Approx imately one month later, Petitioner filed a Motion to Correct an Illegal Sentence challenging the $500 fine and the requirement that he register as a child sex offender. Petitioner argued that the trial court "lacked authority to require [Petitioner] to register as a child sex offender." Petitioner noted that the Maryland sex offender registration statute that was in e ffect at that time applied retroactively to a child sex offender who committed his or her o ffense o n or before Oc tober 1, 1995, if the offender was "under the custody or supervision of the supervising authority on October 1, 2001." Petitioner contended that he could not be required to register because "[t]here was no registry at the time of the instant offense an d the law , as written, [did] not apply retro actively to [Petitioner]" because he "was indisputably not under the custody or supervision of the supervising authority on October 1, 2001 as that term is defined in the statute." Additionally, Petitioner asserted that the fine was "not a permitted penalty under [the law he was convicted for violating]." On November 1, 2006, the Circuit Court agreed with Petitioner and issued an order striking the fine and the requireme nt that Petitione r register as a ch ild sex offender.

In December 2008, Petitioner was released early from prison. In 2009, the Maryland General Assembly passed a new law, effective October 1, 2009, changing the sex offender registration requirements. See C.P. § 11-701 et seq. (2001, 2008 Repl. Vol., 2009 Cum. Supp.); 2009 Md. Laws, Chap. 541. The new sex offend er registration statute retroactively required a child sex offender who committed a sex offense prior to October 1, 1995, but was convicted on or after October 1, 1995, and had not previously been required to register under Maryland law, to now register as a child sex offender. C.P. § 11-702.1(c)(ii) (2001, 2008 Repl. Vol., 2009 Cum . Supp.). Petitioner testified that on October 1 , 2009, Petitioner's probation officer directed Petitioner, under threat of "arrest[] and incarcerat[ion]," to register as a child sex o ffender. Petitioner maintains that he did not agree with the requirement, but registere d, again st the advice of c counsel, as a child sex offender in early Octob er 2009 .

In 2010, the Maryland General Assembly again amended the sex offender registration statute re-categorizing Petitioner, based up on his prior conviction, as a T ier III sex offender. C.P. §§ 11-701(q)(1)(ii), 11-704(a)(3) (2001, 2008 Repl. Vol., 2010 Cum. Supp.); 2010 Md. Laws, Chaps. 174 and 175. As a result of the 2 010 ame ndment, generally, sex offenders are designated by tiers. See C.P. § 11-701(l) (2001, 2008 Repl. Vol., 2012 Cum. Supp.). Tier III is the most severe designation requiring lifetime registration, as opposed to Tier II offenders who register for 25 ye ars or Tier I offenders w ho register for 15 y ears. See C.P. § 11-707(a )(4) (2001, 2 008 Repl. Vol., 2012 Cum . Supp.). Additionally, Tier III offende rs must re-register every three month s, while Tier I and Tier II offen ders are required to reregister every 6 month s. C.P. § 11-707(a) (200 1, 2008 Repl. V ol., 2012 Cum. Su pp.).

In Octob er 2009, in a separate civil proceeding, Petitioner filed in the Circuit Court for Anne Aru ndel County a C omplaint for a Dec laratory Judgment seeking a declaration that he not be required to register as a sex offender under the Maryland sex offender registration statute, and that he be removed from the Maryland S ex Offender R egistry. Petitioner's Complaint advanced three arg uments, including that to requ ire him to register, when he was not informed of that require ment wh en he pled guilty, wou ld imprope rly render his guilty plea involuntary. None o f the argume nts advanced in the C omplaint, however, explicitly addressed the constitutiona lity of the registration requirement. After the State's successful "Motion for Transfer of Action," the case was transferred to the Circuit Court for Washington County, the county where Petitioner committed his crime, pled guilty, and was sentenced. During the Circuit Court proceedings, the parties addressed the issues presented in Petitioner's Complain t. In addition, counsel for th e State*fn5 argued to the court that requiring Petitioner to register did not violate the prohibition a against ex post facto laws. At the end of the hearing, the trial judge denied Petitioner's request for declaratory relief and ordered that Petitioner "shall not be rem oved from the sex offe nder registry."*fn6

Petitioner noted an appeal to the Court of Special Appeals. In Petitioner's appeal, he once again contended that requiring him to register as a sex offender violated the terms of the plea agreement. In addition, Petitioner explicitly advanced challenges to the application of the statute on ex post facto , bill of attainder, equal protection, and due process grounds. The State argued that Petitioner failed to raise the four constitutional arguments in his Complaint and, henc e, the argum ents were not preserv ed for appeal. The intermediate appellate court determined that the due process and ex post facto argumen ts were pro perly raised in the trial court and, therefore, addressed them. The Court of Special Appeals, however, determined that the equ al protection and bill of attainder arguments were not properly raised in the trial court and, accordingly, did not consider those issues. In an unreported opinion, the intermediate appellate court rejected all of Petitioner's argumen ts and affirmed the trial court's judgment requiring Petitioner to remain on the Maryland Sex Offender Registry. We issued a writ of certiorari in the present case, 425 Md. 227, 40 A.3d 39 (2012), to consider the following three questions:

1. Given the highly punitive and restrictive nature of Maryland's newly enacted sex offender registration laws, does their retroactive application violate the federal constitutional ban on ex post facto laws and both clauses of Article 17 of the Maryland Declaration of Rights prohibiting ex post facto laws and ex post facto restrictions?*fn7

2. Do Maryland's sex offender registration laws violate Mr. Doe's federal and state constitutional rights to due process?

3. Given tha t the plea agreeme nt entered into by M r. Doe did not, and indeed could not have, contemplated registering as a sex offender, is he entitled to specific performance of the plea agreeme nt?

DISCUSSION

As a preliminary matter, we shall address both parties' contentions that this Court should not consider certain arguments. First, the State asserts in its brief to this Court that Petitioner did not raise the ex post facto issue in his Complaint, and therefore, this Court, on review of the case, sh ould not co nsider the issu e. We reje ct this argum ent. Mary land Rule 8-131(a) provides that "[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court . . . ." Md. Rule 8-131(a) (emphasis added). As noted recently in Duckett v. Riley, 428 Md. 471, 476, 52 A.3d 84, 87 (2012) (quotation omitted), "to ascertain the meaning of a . . . rule of procedure we first look to the normal, plain meaning of the language." Th e use of the word "or" indicates that an issue must be ra ised in or decided by the trial court, but it is not necessary for both to occur to preserv e the issu e for appellate re view. The ex post facto issue was raised in the trial court and addressed by both the State and the trial judge.*fn8 The issue was then raised in the Court of Special Appeals. Accordingly, the ex post facto issue is plainly preserved for our review.

Second, Petitioner includes in his Reply Brief to this Court a Motion to Strike the State's argument that federal law precludes "Maryland courts from granting [Petitioner] the relief he seeks . . . ." The State contends, in its brief to this Court, that the federal Sex Offender Registration and Notification Act, SORNA, 42 U.S.C. § 16901 et. seq., imposes upon Petitioner an "indepen dent obliga tion to register a s a Tier III sex offender." T he State therefore, asserts that this Court cannot grant Petitioner the relief he seeks, "an order exempting [Petitioner] from an obligation to register as a Tier III sex offender." Petitioner specifically notes in his b rief to this Court that he is challenging his reg istration require ments imposed by Maryland law , not federal law . Thus, the q uestion of w hether Petitioner is required to comply with federal law and w hat is required of Petitioner to comply is not before this Court. As Petitioner's fe deral obligations are not before us, w e need no t, and do no t, address the issue of w hether they require him to in dependently register.

Moreover, Petitioner seeks ultimately a declaration exempting him from the obligation to register under the Maryland sex offender registration statute. We have held that a declaratory judgment is appropriate when there is an actual controversy between the parties and the declarato ry judgment will termina te the conflict. See Green v. Nassif, 426 Md. 258, 292-93, 44 A.3d 321, 341-42 (2012 ); Ocean Petroleum, Co. v. Yanek, 416 Md. 74, 81-82, 5 A.3d 683, 687 -88 (2010); M d. Code (1973 , 2006 Repl. Vo l.), § 3-409 of the Courts and Judicial Proceedings Article. In the present case, Petitioner is currently registered as a sex offender and is threatened with criminal prosecution, should he fail to comply with the law, under a Maryland statute that he claims is un constitu tional as applied to him. See Grimm v. County Comm 'rs. of Washington C county, 252 Md. 626, 632-33, 250 A.2d 866, 869 (1969) (citations omitted). In light of this actual controversy between the parties, a determination of whether the statute is unconstitutio nal as applied to Petitioner, and whether he should be removed from the Sex O ffender Registry, will resolve the c onflict. Therefore , pursuant to Maryland law, entry of a declaratory judgment would be proper and to do so would not require this Court to construe federal law with respect to SORNA.

I. The Sex Offender Registration Statute in Maryland

In order to address the ex post facto issue, it is necessary to provide some relevant history of sex offender registration in Maryland. In 1995, the Maryland General Assemb ly first enacted the Maryland sex offender registration statute. State v. Duran, 407 Md. 532, 546-47 n. 7, 967 A.2d 184, 19 2 n. 7 (2009) (quotation omitted); 1995 Md. Laws, Chap. 142. As enacted, the statute applied prospectively to sex offenders who committed their crimes after the statute went into effect on O ctober 1 , 1995. See 1995 Md. Laws, Chapter 142, § 3.

In 2001, the sex offender registration statute was amended and was applied retrospective ly to different groups of sex offenders,*fn9 including "a child sex offender who committed [his or he r] sexual offense on or before October 1, 1995" if that offender was "under the custody or supervision of the superv ising authority o n Octo ber 1, 20 01." C.P. § 11-702.1 (2001); 2001 Md. Law s, Chap . 221.

In 2009, the retroactive application of the statute was once again amended and registration was required of a child sex offender who committed his or her crime before October 1, 1995 but wa s convicted on or after Octob er 1, 1995, irrespective of when the offender was incarcera ted or under su pervisio n. See C.P. § 11-702.1 (2001, 2008 Repl. V ol., 2009 Cum. Supp.); 2009 Md. Laws, Chap. 541.

In 2010, the sex offender registration statute was amended again, and among other things, the amendment addressed the retroactive application of the statute. See C.P. § 11-702.1 (2001, 2008 Repl. Vol., 2010 Cum. Supp.); 2010 Md. Laws, Chaps. 174 and 175. The 2010 amendment required retroactive registration of all persons wh o were already required to register o n Septe mber 3 0, 2010 , the day before the amendment went into effect. See C.P. § 11-702.1(a)(2) (2001, 2008 Repl. Vol., 2010 Cum. Supp.). This language had the consequence of incorporating the retroactive application o f the statute as amended in 2009.

Petitioner committed the underlying child sex offense during the 1983-84 sch ool year, long before 1995. He was not under custody or supervision of the State until after he was charged with the relevant offense in 2005. Therefore, Petitioner is required to register as a sex offender pursuant to the 2009 and 2010 amendments' retroactive application of the sex offender registration statute.

II. Constitutional Argument

Petitioner argues that "[g]iven their highly punitive and restrictive nature, retroactive application of Maryland's sex offender registration laws violates the federal constitutional ban on ex post facto laws*fn10 and both clauses of Article 17 of the Maryland Declaration of Rights prohibiting ex post facto laws and ex post facto restrictions." In response, the State contends that "[t]he Court of Special Appeals correctly concluded that the Maryland [sex offender registration statute] does not violate either the federal or State . . . prohibitions on ex post facto laws." We conclude, however, that requiring Petitioner to register as a sex offender violates Article 17's prohibition against ex post facto laws; thus, we need not, and do not, address whethe r requiring Petitioner to register violates the prohib ition against ex post facto laws under Article 1 of the federal Constitution.*fn11

Furthermore, in determining that the retroactive application of the statute violates Article 17, we need not, and do not, ad dress wh ether requirin g Petitioner to register affects his constitutional due process rights. We further offer no opinion on whe ther registration is a valid form of punishment under the Maryland Constitution or whether the other constitutional rights of registrants are affected by having to register as a sex offender under the Maryland sex offe nder registration statute. See Smith v. Doe, 538 U.S. 84, 114, 123 S. Ct. 1140, 1158-59, 155 L. Ed. 2d. 164, 19 0-91 (2 003) (S tevens, J., dissenting) (concluding that the retroactive application of the Alaska sex offender registration statute violates the prohibition on ex post facto laws but does not give rise to a right to additional procedural safeguards under the Due Process C lause).

A. We exam ine Petitioner's conten tion pursuan t to Article 17 of the Maryland Declaration of Rights.

Article 17 of the Maryland Declaration of Rights provides:

That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only de clared criminal, are oppressive, unjust and incompa tible with liberty; wherefore, no ex post facto Law ought to be made; no r any retrosp ective oath or restriction be imposed, or required.

Md. D ecl. of R ts., Art. 17 .

In the past, we have read the protection against ex post facto laws in Article 17 of the Declaration of Rights in pari ma teria with, or as generally having the same meaning as the Ex Post Fac to Clause in A rticle 1 of the fede ral Con stitution. See Dep't of Public Safety and Corr. Serv. v. Demby, 390 Md. 580 , 608, 890 A.2d 3 10, 327 (2006) (citations omitted); Khalifa v. State, 382 Md. 400, 425, 855 A.2d 1175, 1189 (20 04) (citations o mitted); Evans v. State, 382 Md. 248, 280 n. 13, 85 5 A.2d 291, 31 0 n. 13 (2004) (citations omitted). We have indicated, howeve r, that this Court will not always limit the pro tection provided by Article 17 to that which is provided by the federal Constitution. In Allstate Ins. Co. v. Kim, 376 Md. 276, 289-90, 829 A.2d 611, 618-19 (2003), we explained that when determining if the retroactive application of a statute "contravene[s] some Constitutional right or prohibition," including "violat[ing] the prohibition against ex post facto laws," we must consider both the federal and state protections be cause the standards m ay be different. Petitioner urges this Court to "join the growing number of states relying on their own constitutions to find [the retroactive application of sex offender registration] violative of ex post facto prohibitions."*fn12

Throughout our case law , we have recognize d that, in many contexts, the protections provided by the Maryland Declaration of Rights are broader than the protections provided by the parallel federal provision. As we have stated:

Many provisions of the Maryland Constitution . . . do have counterpa rts in the United States Constitution. We have often commented that such state constitutional provisions are in pari materia with their federal counterparts or are the equivalent of federal constitutional provisions or generally should be interpreted in the same manner as federal provisions. Nevertheless, we have also emphasized that, simply because a Maryland constitutional provision is in pari ma teria with a federal one or has a federal counterpart, does not mean that the provision will always be interpreted or applied in the same manner as its federal counterpart. Furthermore, cases interpreting and applying a federal constitutional provision are only persuasive authority with respect to the similar Maryland provisions.

Dua v. Comc ast Cable, 370 Md. 604, 621 , 805 A.2d 1061, 1071 (2002 (emphas is in original); see also Attorney General v. Waldron, 289 M d. 683, 714, 426 A.2d 929, 946 (1981) (citation omitted) ("Although the equal protection clause of the fourteenth amendment and the equal protection principle embodied in Article 24 [of the Maryland Declaration of Rights] are 'in pari materia,' and decisions applying one provisio n are persu asive autho rity in cases involving the oth er, we reiterate that each provision is independent, and a violation of one is not necessarily a violatio n of the othe r."); Green v. Zendrian, 916 F. Supp. 493, 497-98 n. 3 and n. 4 (D. Md. 1996) (quoting Murphy v. Edmonds, 325 Md. 342, 354-55, 601 A.2d 102, 108 (1992)) (stating both that "the [Ma ryland] Co urt [of App eals] has repe atedly held that state and federal provisions in pari ma teria are 'obviously independ ent and capable of divergent a pplication[,]'" an d that "[a] M aryland co urt has greater latitude than this [federal court] to decline to follow the [U nited States] Supreme C court's interpretation of the Maryland D eclaration of Rights").*fn13

In other contexts, we have ensured that the rights provided by Marylan d law are fu lly protected by departing from the United States Supreme Court's analysis of the parallel federal right. See Frey v. Comptroller of the Treasury, 422 Md. 111, 177, 29 A.3d 475, 513 (2011) ( "[E]ven though we have already determined that the [challenged tax] does not violate the Equal Protection Clause of the federal Constitution, we must address separately whether, under the applicable Maryland authorities, that tax violates the State's equal protection guarantee."); Parker v. State, 402 Md. 372, 399, 936 A.2d 862, 878 (2007) (determinin g that if under the United States Supreme Court's interpretation of federal law, the Fourth A mendm ent's exclusionary rule d oes not apply to violations of the "knock and announce" rule, under "the peculiar circumstances" of that case , the evidenc e was still excludab le if it violated M aryland's "knock an d announce" rule); Hardaway v. State, 317 Md. 160, 163, 166-67, 169, 562 A.2d 1234, 1235, 1237, 1238 (1989) (de termining th at while the United States Supreme Cou rt held that "giving a 'no adverse inference' instruction over a defendant's objection does not violate the defendant's Fifth Amendment privilege against self-incriminatio n," giving the in struction over defenda nt's objection in that case did violate Maryland's protections a against self-incrimination); Choi v. Sta te, 316 Md. 529, 535-36 n. 3, 545, 560 A.2d 1108, 1111 n. 3, 1115 (1989) (concluding that, while in only two previous situations had Article 22 of the Declaration of Rights been read to provide broader protections against bein g compe lled to make a self-incrim inating statem ent than the Fifth Amendment to the federal Constitution, under the facts of that case, "[E]ven if [the petitioner] had waived her Fifth Amendment privilege, she certainly did not waive her privilege against compelled self-incrimination under Art[icle] 22 of the Maryland Declaration of Righ ts.").

We are persuaded, in the present case, to follow our long-standing interpretation of the ex post facto prohibition and depart from the approach taken by the United States Supreme Court when it analyzed the Alaskan sex offender registration statute in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L . Ed. 2d 164 (200 3). In Collins v. Youngblood, 497 U.S. 37, 50, 110 S. Ct. 2715, 2723, 111 L. Ed. 2d 30, 44 (1990), the United States Supreme Court rejected the "disadvantage" standard, which, as noted below, was articulated in Kring v. Missouri, 107 U.S. 221, 235, 2 S. Ct. 443, 455, 27 L. Ed. 506, 511 (1883), and Weaver v. Graham, 450 U.S. 24, 29, 33-34, 101 S. Ct. 960, 964, 966-67, 67 L. Ed. 2d. 17, 23, 26 (1981), and adopted by this Court in Anderson v. Dep't of Health & Mental Hygiene, 310 Md. 217, 224, 226-27, 528 A.2d 904, 908, 909 (1987). We, however, have not abandoned the "disadvantage" analysis. Repeatedly in cases where we have addressed the ex post facto prohibition since the Supreme Court decided Collins, we have said, the "two critical elements" that "must be present" for a law to be unconstitutional under the ex post facto prohibition are that the law is retroactively applied and the application disadvantages the offender. In those cas es, we hav e continued to express the ex post facto prohibition in terms of the disadvantages to the offender. Although the Suprem e Court ap pears to have narrowed the scope of the federal Constitution's protection against ex post facto laws, we elect to follow the principle of stare decisis and contin ue to interpret Article 17 as offering broader protection.

The prohibition a against ex post facto laws is rooted in a basic sense of fairness, namely that a person should ha ve "fair warning" of the consequences of his or her actions and that a person should be protected against unjust, oppressive, arbitrary, or vindictive legislation. See Demby, 390 Md. at 608-09, 890 A.2d at 327 (citations and quotations omitted) (noting that there are "[t]wo paramount protections" provided by prohibitions against ex post facto laws; "the a ssurance th at legislative Acts give fair w arning of their effect and perm it individuals to rely on their meaning until explicitly changed," and a restriction on "governmental power by restraining arbitrary and potentially vindictive legislation"); Khalifa, 382 Md. at 425, 855 A.2d at 11 89 (emphasis and quotations omitted) (noting that the basis for ex post facto protections is to "assure that legislative A cts give fair warning of their effect[,]" and to "protect[] liberty by preventing governments from enacting statutes with manifestly unjust and oppressive retroactive effects"); see also Le wis v. State, 285 Md. 705, 713, 404 A.2d 1073, 1077 (1979) (citations omitted) (concluding that because a procedural rule, as it existed at the time of the defendant's trial, precluded the trial from going forward, even if this Co urt were to chang e the rule, we would do so pros pectively because "Although it might not violate constitutional requirements ...


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