Krauser, C. J., Woodward, Salmon, James P. (Senior Judge,
Specially Assigned), JJ. [*]
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
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
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
second question presented is one of first impression. We
shall answer that question as well as the first in the
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.
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.
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
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.
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.
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
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.
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
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
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.
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."
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.
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 ten days after he received his
sentence and 43 days after he pled guilty. In other words, at
the time in 2001 when Long pled guilty, he could not possibly
have relied upon the Notice to Registrant because that
document was not supplied to him until more than one month
of course true, as Long argues, that when a defendant pleads
guilty he or she is entitled to the benefit of his/her
bargain. But, nothing in this record shows that Long ever
made such a "bargain" when he pled guilty. In
short, there is nothing in the record to support Long's
argument that when he pled guilty, he was promised that he
would only have to register for ten years.
foregoing reasons, we hold that the circuit court did not err
when, in declaring the rights of the parties, the court said
that Long was required to register as a sex offender for
October of 2000, when Long committed the third-degree sexual
offense against an 11-year-old victim and, at the time he was
sentenced, sex offenders with such convictions were required
to register annually, in person, with a ...