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Del Pino v. Maryland Department of Public Safety and Correctional Services

Court of Special Appeals of Maryland

April 1, 2015

THOMAS H. QUISPE DEL PINO
v.
MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES ET AL.

Woodward, Graeff, Hackner, Paul A. (Specially Assigned), JJ. [*]

OPINION

Woodward, J.

In this opinion, we set sail into waters left uncharted by the voyage that the Court of Appeals undertook in the case of Doe v. Department of Public Safety & Correctional Services, 430 Md. 535 (2013) ("Doe I"). In Doe I, the Court held that requiring Doe to register as a sex offender[1] as a result of the 2009 and 2010 amendments to the Maryland sex offender registration act ("MSORA") violated the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights.[2] Id. at 537 (interpreting Md. Code (2001, 2008 Repl. Vol., 2010 Cum. Supp.), §§ 11-701 et seq. of the Criminal Procedure Article ("CP 2010")). There, MSORA did not exist in 1983-84 when Doe committed the sexual offense at issue, nor was Doe required to register when he was convicted in 2006. Doe I, 430 Md. at 537-38. Here, at the time of his conviction in 2001 for a sex crime committed in 2000, appellant, Thomas H. Quispe del Pino, was required to register as a sex offender for a period of ten years. The 2010 amendment to MSORA, however, classified appellant as a "Tier II" offender and increased the period of registration from ten years to twenty-five years. The issue thus presented to this Court by the instant case is whether, under Doe I, the retroactive application of MSORA to appellant by the 2010 amendment, which results in the increase of his registration period from ten years to twenty-five years, violates the prohibition against ex post facto laws contained in Article 17 of the Declaration of Rights. We shall hold that it does.

BACKGROUND

On January 3, 2001, appellant pled guilty to one count of unlawful communication with a minor, one count of corruption of minors, and one count of loitering and prowling at nighttime, in the Court of Common Pleas in Pennsylvania ("the Pennsylvania Court"). These offenses were committed in 2000. On April 10, 2001, the Pennsylvania Court sentenced appellant to ten years of probation, with his earliest termination date being April 9, 2011.[3]Because appellant was a Maryland resident, his probation was transferred from Pennsylvania to Maryland. As a condition of his probation, appellant was required to register as a sex offender in Maryland for the duration of the ten-year period, under the supervising authority of the Montgomery County Police Department.

On September 25, 2010, appellant was notified that, due to the 2010 amendment to MSORA, appellant's registration requirements had been modified as follows:

As a result of your SEXUAL SOLICITATION OF A MINOR conviction and the Maryland law change your new registration category is Tier II and your registration term is 25 YEARS. . . .

In other words, following the 2010 amendment, appellant was reclassified as a "Tier II sex offender, " and his registration term, which had been ten years, increased to twenty-five years.

On December 21, 2011, appellant filed a Petition for Writ of Prohibition in the Circuit Court for Montgomery County against appellees, Maryland Department of Public Safety and Correctional Services and Gary Maynard, Secretary of the Department (collectively, the "Department"). Appellant argued that requiring his continued registration would violate the prohibition against ex post facto laws under both the United States Constitution and the Maryland Declaration of Rights. The Department responded on February 15, 2012, by filing a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. On March 29, 2012, the circuit court held a hearing on appellant's petition and the Department's motion. At the close of the hearing, the court issued an oral ruling and signed two written orders, one denying appellant's petition and the other granting summary judgment in favor of the Department.

Appellant timely filed this appeal. Additional facts will be set forth below as necessary to resolve the issue presented.

STANDARD OF REVIEW

In the instant appeal, the dispositive issue is whether retroactive application of the 2010 MSORA amendment to appellant violates the prohibition on ex post facto laws by extending appellant's term of registration from ten to twenty-five years. "When the trial court's [decision] involves an interpretation and application of Maryland statutory and case law, [the appellate court] must determine whether the lower court's conclusions are legally correct." Hillsmere Shores Improvement Ass'n, Inc. v. Singleton, 182 Md.App. 667, 690 (2008) (alterations in original) (citations and internal quotation marks omitted), cert. denied, 407 Md. 276 (2009). Interpretations of the Maryland Declaration of Rights are also reviewed de novo. See Davis v. Slater, 383 Md. 599, 604 (2004).

DISCUSSION

I.

The Maryland Sex Offender Registration Law

In 2010, the General Assembly made two changes to MSORA of particular relevance to the case sub judice. First, retroactive registration was required for all persons who were required to register on September 30, 2010, the day before the amendment went into effect. See CP 2010 § 11-702.1(a). Second, all sex offenders were placed into a tiered registration system: Tier I offenders were required to register for fifteen years, Tier II offenders were required to register for twenty-five years, and Tier III offenders were required to register for life. CP 2010 §§ 11-701(o)-(q), -707(a)(4).

Appellant contends that, based on Doe I, MSORA has become punitive after the 2009 and 2010 amendments, such that "retroactive application [to appellant] would violate not only the United States' Constitution's prohibition against ex post facto laws, but also Maryland's Declaration of Rights' prohibition against ex post facto laws." Specifically, appellant argues that the retroactive application of the statute disadvantages him, in violation of Article 17 of the Maryland Declaration of Rights ("Article 17"), by increasing the term of his registration from ten years to twenty-five years.

The Department responds that applying MSORA's new requirements to appellant does not violate the state and federal ex post facto clauses. The Department contends that the purpose of the Maryland statute "is remedial and its effects are non-punitive, " because it "does not require a registrant to do anything other than keep law enforcement authorities (and in limited circumstances, school officials) updated on information that serves to keep the public safe."

It is undisputed that, "[t]o prevail in an ex post facto claim, [appellant] must first show that the law that [he is] challenging applies retroactively to conduct that was completed before the enactment of the law in question." Dep't of Pub. Safety & Corr. Servs. v. Demby, 390 Md. 580, 593 n.10 (2006). We thus must address first whether the 2010 amendment applies retroactively to appellant's criminal conduct for which he was originally sentenced in 2001.

A. Retroactive Application of MSORA

Appellant contends that Maryland "lacks the authority to require [him] to register" as a sex offender, because at the time appellant pled guilty in Pennsylvania, the "triggering event" that required him to register in Maryland, namely, his unlawful communication with a minor, was not a crime in Maryland. According to appellant, "[i]f not for the requirement of Pennsylvania, Maryland could not have required Appellant to register because Appellant had not been convicted of a qualifying crime under the Maryland Sex Offender Registry Act at the time Appellant pled guilty in Pennsylvania." In other words, appellant argues that, if he "had moved to Pennsylvania" during his ten-year registration period, "his period of registration would be over, " because his Pennsylvania probation expired in 2011. Moreover, appellant claims that he is being punished unfairly, because his conduct, though merely a misdemeanor in Pennsylvania, is treated as a felony ...


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