# Rogers v. State

> Court of Appeals of Maryland · March 31, 2020 · 468 Md. 1

URL: https://www.frixlaw.com/law-library/cases/10487614

## Case

- **Court:** Court of Appeals of Maryland
- **Decided:** March 31, 2020
- **Citations:** 468 Md. 1; 226 A.3d 261
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Watts
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Jimmie Rogers v. State of Maryland, et al., No. 32, September Term, 2019

MARYLAND SEX OFFENDER REGISTRY – REGISTRATION
REQUIREMENTS – MD. CODE ANN., CRIM. PROC. (2001, 2008 REPL. VOL.,
2016 SUPP.) § 11-701(p)(2) – HUMAN TRAFFICKING – MD. CODE ANN., CRIM.
LAW (2002, 2012 REPL. VOL., 2016 SUPP.) § 11-303(a) – VICTIM’S AGE –
STANDARD OF PROOF – Court of Appeals held that, where petitioner pled guilty to
violating Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) § 11-303(a),
offense whose elements did not require proof of victim’s age, and where no proof of
victim’s age was established at plea proceeding, petitioner was not required to register as
Tier II sex offender pursuant to Md. Code. Ann., Crim. Proc. (2001, 2008 Repl. Vol., 2016
Supp.) §§ 11-701(p)(2) and 11-704(a)(2). Department of Public Safety and Correctional
Services lacked authority to determine on its own initiative that victim was minor and to
order sex offender registration. No statute or regulation gives Department authority to
make factual determination as to victim’s age for purposes of requiring registration as Tier
II sex offender.

Court of Appeals concluded that determination of fact necessary for placement on
Maryland Sex Offender Registry—such as victim’s age—must be made by trier of fact
beyond reasonable doubt during adjudicatory phase of criminal proceeding.
Circuit Court for Anne Arundel County
Case No. C-02-CV-17-000296
Argued: January 10, 2020
IN THE COURT OF APPEALS

OF MARYLAND

No. 32

September Term, 2019
______________________________________

JIMMIE ROGERS

v.

STATE OF MARYLAND, ET AL.
______________________________________

Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,

JJ.
______________________________________

Opinion by Watts, J.
Barbera, C.J., Hotten and Biran, JJ., dissent.
______________________________________

Filed: March 31, 2020

Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
Suzanne Johnson
2020-03-31 12:42-04:00

Suzanne C. Johnson, Clerk
On October 20, 2015, in the Circuit Court for Anne Arundel County, Jimmie

Rogers, Petitioner, pled guilty to one count of human trafficking under Md. Code Ann.,

Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) (“CR”) § 11-303(a).1 The age of the victim

was not established during the statement of facts at the plea proceeding. Rogers was

sentenced pursuant to a plea agreement that did not include registration as a sex offender

as a requirement. Later, Rogers was notified by the Department of Public Safety and

Correctional Services (“the Department”), Respondent, that he was required to register as

a Tier II sex offender with the Maryland Sex Offender Registry (“the Registry”) for a

period of twenty-five years. Rogers registered as instructed but filed in the circuit court a

complaint for declaratory judgment against the State of Maryland, Respondent, and the

Department (together, “the State”), seeking a declaration that he was not required to

register as a Tier II sex offender, and an order compelling the Department to remove him

from the Registry. The circuit court granted Rogers’s motion for summary judgment on

the ground that the victim’s age had not been proven. The circuit court issued an order

declaring that Rogers was not required to register as a Tier II sex offender and requiring

the State to remove Rogers’s name from the Registry. The State appealed. The Court of

Special Appeals reversed and remanded the case to the circuit court for a determination of

the victim’s age by a preponderance of the evidence.

1
Effective October 1, 2019, CR § 11-303 was renumbered as Crim. Law (2002, 2012
Repl. Vol., 2019 Supp.) § 3-1102. See 2019 Md. Laws 472-73, 476-77, 488 (Vol. I, Ch.
21, H.B. 871); 2019 Md. Laws 488, 492-93, 504 (Vol. I, Ch. 22, S.B. 690). We refer to
CR § 11-303, the version of the statute that was in effect at the time of the proceedings in
this case.
A conviction under CR § 11-303(a) does not require that the victim be a minor. A

violation of CR § 11-303(a) is a misdemeanor that is punishable by up to ten years’

imprisonment, a fine not exceeding $5,000, or both. See CR § 11-303(c)(1)(i). Under CR

§ 11-303(a)(1), among other things, “[a] person may not knowingly: (i) take or cause

another to be taken to any place for prostitution; (ii) place, caused to be placed, or harbor

another in any place for prostitution; [or] (iii) persuade, induce, entice, or encourage

another to be taken to or placed in any place for prostitution[.]” (Paragraph breaks

omitted). The age of the victim is not a necessary element of the offense; stated otherwise,

no proof of the victim’s age is needed for a conviction under CR § 11-303(a).

By contrast, CR § 11-303(b)(1) expressly prohibits a violation of subsection (a)

involving a victim who is a minor and such a violation constitutes a felony that is

punishable by up to twenty-five years’ imprisonment, a fine not exceeding $15,000, or

both. See CR § 11-303(c)(2). Pursuant to Md. Code Ann., Crim. Proc. (2001, 2008 Repl.

Vol., 2016 Supp.) (“CP”) § 11-701(p)(2),2 a Tier II sex offender is described, in pertinent

part, as a person convicted of “conspiring to commit, attempting to commit, or committing

a violation of [CR] § 11-303”—without reference to a specific subsection of that statute—

“if the intended prostitute or victim is a minor[.]” Pursuant to CP § 11-704(a)(2), a Tier II

sex offender is required to register with the Registry.

Against this backdrop, we consider whether a person, like Rogers, who is convicted

of human trafficking under CR § 11-303(a) is required to register as a Tier II sex offender

2
This is the version of the statute in effect at the time of the proceedings in this case.

-2-
with the Registry where the victim’s age was not established during a guilty plea

proceeding. We must first ascertain whether the Department is authorized to make a

determination after a person is convicted and sentenced as to whether the victim was a

minor at the time of the offense and order the person to register. We also address the point

at which the determination is to be made and the required standard of proof.

We hold that, where Rogers pled guilty to violating CR § 11-303(a), an offense

whose elements did not require proof of the victim’s age, and where no proof of the

victim’s age was established at the plea proceeding, Rogers was not required to register as

a Tier II sex offender pursuant to CP §§ 11-701(p)(2) and 11-704(a)(2), and the Department

lacked the authority to determine that the victim was a minor and to order registration. No

statute or regulation gives the Department the authority to make a factual determination as

to the victim’s age for purposes of determining that registration as a Tier II sex offender is

required. We conclude that determination of a fact necessary for placement on the

Registry—e.g., the victim’s age—must be made by the trier of fact beyond a reasonable

doubt during the adjudicatory phase of the criminal proceeding prior to sentencing. We

reverse the judgment of the Court of Special Appeals and conclude that the circuit court

properly granted summary judgment and declaratory judgment in favor of Rogers.

BACKGROUND

Criminal Case

Rogers was charged in the District Court of Maryland, sitting in Anne Arundel

County, with several counts of human trafficking of a minor and prostitution arising out of

an incident that occurred at a Red Roof Inn. In a sworn Statement of Charges, a law

-3-
enforcement officer identified the victim as “a juvenile” and “a minor[.]” (Capitalization

omitted). Subsequently, Rogers was charged by indictment in the circuit court with five

counts of human trafficking of a minor in violation of CR § 11-303(b) and two counts of

prostitution in violation of CR § 11-306.

Rogers decided to plead guilty. On October 20, 2015, at the start of Rogers’s plea

proceeding, as part of a plea agreement, Count Five of the indictment was amended from

alleging that Rogers had trafficked a minor victim in violation of CR § 11-303(b) to allege

human trafficking generally in violation of CR § 11-303(a). Rogers pled guilty to the

amended Count Five and the State entered a nolle prosequi on the remaining charges. The

prosecutor read the following statement of facts into the record:

[O]n April 3rd of 2015[,] Trooper [C.G. Heid] of the Maryland State Police
. . . was working in an undercover capacity . . . actively looking for a missing
young woman. . . . He had received word as part of a task force that he’s on
that she was missing and may be involved in prostitution against her will.

He found an ad in the Backpage ads, . . . which advertise for
prostitution. And he called that number. He would have told you in his
training, knowledge, and experience that in the Backpage ads they are
advertising sex in exchange for money. And this ad had all of the hallmarks
of those types of ads. And he would have told you in his training, knowledge,
and experience he thought that perhaps this was the missing girl.

He called the number, . . . and . . . there was a voice on the other end.
. . . The subject that answered the call stated, “Hello.” The voice clearly
sounded like a man trying to disguise his voice to be that of a woman,
according to the Trooper.

The Trooper asked that person on the other end of the line if that
person was working today, and the person said, “Yes.” The person asked if
the Trooper wanted to come see her today, saying that she was a woman.
And the Trooper asked if he could come see her around 9:00 a.m., she said,
“Yes.”

-4-
Based on the photos in the ad, it appeared that the hotel was the Red
Roof Inn. The Trooper is familiar with that hotel, and . . . there are a lot of
people engaging in prostitution out of that hotel, the Trooper would have told
you in his training, knowledge, and experience.

They actually utilized surveillance around the motel in an attempt to
locate another person who might be assisting the young woman who was in
the ad. They know that through their training, knowledge, and experience
that that is often the case that a pimp will be in the area, surveilling the area,
leaving the hotel room just before a date, [with] a person coming to
participate in the prostitution. Comes to the hotel room, and then the person
who is supervising that prostitution will then come immediately thereafter.

They did go to that area, . . . which is located in Anne Arundel County,
Maryland, at the Red Roof Inn. They surveilled from the inn next door,
which is the Hampton Inn, they saw a person who would be identified as . . .
Rogers[] walk to a room on the odd numbered side of the motel, two minutes
later he came back to the vehicle that he had previously been in, and pulled
away. And that was right at the time that they were coming for the 9:00 date.

At 9:22, they got a text from that same phone number that the Trooper
had called previously, indicating that he should come to the Red Roof Inn . .
. where they were already there surveilling. At 9:29 hours, he called back
and the voice [that] answered . . . was clearly a female this time, same phone
number but clearly a woman, a young woman, and certainly not the same
person he had spoken to earlier. The woman said that she would text the
room, and at 9:31 she texted room 333.

The Trooper arrived at room 333, knocked on the door. A young
woman looked through the window and then came and opened the door,
invited the Trooper in. Several Troopers then entered the room, identified
themselves as police officers, and then spoke with the young woman who, in
fact, was the missing girl. . . .

She was very nervous, constantly looking towards the curtain and the
door. She said that her boss, those were her words, her boss would probably
be coming back to the motel to keep an eye on her. She said that she was
exchanging sex for money at his behest. She said that she was doing it
because he was giving her drugs that she needed at that time, that she was
addicted to drugs. . . .

She said that her boss rented the room for her. And, in fact, we would
have produced evidence that [Rogers] did, in fact, rent room 333 [] for

-5-
several days, indicating that one person was staying there, and that was [the
victim].

[S]he said he was currently holding $400 for her of her proceeds that
she had made through prostitution. And by holding it later became clear that
she meant he was not permitting her to have the proceeds of the prostitution.
He was keeping them for himself. But she explained at that time that . . .
their arrangement was that he was going to keep half of what she earned after
each date. That he was providing security for her . . . and helps when she
makes the dates.

She said that he posts her ads on the Backpage magazine on his phone,
and then also takes her phone and uses that as well. She said that she felt
pressure and . . . makes the dates because he yelled at her to do that. She
indicate[d] that she had sexual intercourse with men for money and that she
had done that over the past couple of days . . . in that very hotel room. She
said that she did confirm that it was [Rogers] who had answered the phone
when the Trooper had called and pretended to be her and set up the date.

She was subsequently taken into custody . . . and provided a very
detailed recorded statement with more information with regard to the[]
events. But suffice [it] to say, . . . [Rogers] was benefiting from the proceeds
of prostitution, which he had convinced [the victim] to be involved [] in Anne
Arundel County.

The victim’s age was not included in the statement of facts or established during the plea

proceeding.

The circuit court sentenced Rogers to ten years of imprisonment, with all but

eighteen months suspended, with credit for 202 days served, followed by two years of

supervised probation.

After Rogers’s release from prison, the Department advised him that he was

required to register as a Tier II sex offender for a period of twenty-five years. On October

4, 2016, Rogers completed his initial registration.

-6-
Complaint for Declaratory Judgment

On January 31, 2017, in the circuit court, Rogers filed a Complaint for Declaratory

Judgment against the State, seeking a declaration that his conviction did not require him to

register as a Tier II sex offender and an order compelling the Department to remove him

from the Registry.

On September 8, 2017, the State filed a motion for summary judgment, arguing that,

because Rogers had been convicted under CR § 11-303 and had never disputed that the

victim was a minor, the plain language of CP § 11-701(p)(2) required him to register as a

Tier II sex offender. The State attached to the motion an affidavit from Allison Gilford,

the Supervisor and custodian of records for the Registry, who averred that the Registry’s

file on Rogers and court records demonstrated that the guilty plea arose from charges that

had been filed against Rogers for “participating in the prostitution of a minor.” Attached

as exhibits to Gilford’s affidavit were: (1) the Criminal Hearing Sheet indicating that

Rogers pled guilty to Count Five after it was amended to “read CR [§] 11-303(a) rather

than CR [§] 11-303(b)”; (2) the Statement of Charges prepared by a Maryland State

Trooper referring to the victim as “a juvenile” and “a minor” (capitalization omitted); and

(3) the indictment charging Rogers with five counts of human trafficking of a minor in

violation of CR § 11-303(b).

Rogers filed a motion for summary judgment and a response to the State’s motion

for summary judgment, arguing that, because he had been convicted under CR § 11-303(a),

not CR § 11-303(b), and because the State had failed to establish that the victim was a

minor, he was not required to register as a Tier II sex offender under CP § 11-701(p)(2).

-7-
Rogers asserted that there was no evidence in the record that the victim of the charge to

which he pled guilty was a minor or was even the same victim referenced in the other

charges.

The circuit court held a hearing on the cross-motions for summary judgment. The

circuit court ruled from the bench, granting Rogers’s motion for summary judgment and

denying the State’s motion for summary judgment. The circuit court issued a “Declaratory

Judgment and Order,” stating:

DECLARED, ADJUDGED AND DECREED, that [] Rogers is not
required to register as a Tier II sex offender on the basis of his conviction in
State of Maryland vs. Jimmie Junior Rogers . . . and accordingly, it is hereby:

ORDERED, that (1) [] Rogers shall not be required, ordered, or
directed to register as a Tier II sex offender on the basis of his conviction in
State of Maryland vs. Jimmie Junior Rogers . . . and, (2) Defendants State of
Maryland and [] Department [], and any other agency charged with
administering such registry, shall remove [] Rogers’[s] name from any and
all sex offender registries on which it appears as a result of his conviction in
State of Maryland v. Jimmie Junior Rogers[.]

(Cleaned up).

The State filed a notice of appeal.

Opinion of the Court of Special Appeals

On March 28, 2019, in a reported opinion, the Court of Special Appeals reversed

the circuit court’s judgment and remanded the case to the circuit court for a hearing on the

age of the victim, to be proven by a preponderance of the evidence. See State v. Rogers,

240 Md. App. 360, 362, 370, 205 A.3d 36, 38, 42 (2019). The Court of Special Appeals

rejected Rogers’s contention that his conviction under CR § 11-303(a) did not require him

to register as a sex offender, and held that, under CP § 11-701(p)(2), individuals convicted

-8-
of violating CR § 11-303 are required to register as Tier II sex offenders if the offense is

perpetrated against a minor. See id. at 366, 205 A.3d at 40. According to the Court of

Special Appeals, “[t]he registration statute does not differentiate between convictions

under CR § 11-303(b), a crime for which the victim’s age is an element, and CR § 11-

303(a), for which the victim’s age is not—a conviction under either sub[section] triggers

tier II status if the victim is a minor.” Id. at 366-67, 205 A.3d at 40. The Court of Special

Appeals reasoned that, because the victim’s age was not an element of the crime of which

Rogers was convicted, age did not need to be proven beyond a reasonable doubt. See id.

at 366, 205 A.3d at 40. The Court of Special Appeals stated that sex offender registration

is not punishment, and, as such, is not “subject to the evidentiary [standard] of proof beyond

a reasonable doubt.” Id. at 367, 205 A.3d at 40. The Court of Special Appeals remanded

the case for the circuit court to determine by a preponderance of the evidence whether the

victim was a minor at the time of the offense and to determine whether Rogers was required

to register as a Tier II sex offender under CP § 11-704. See id. at 370, 205 A.3d at 42.

Petition for a Writ of Certiorari

On May 15, 2019, Rogers petitioned for a writ of certiorari, raising the following

two issues:

1. When [] Rogers pled guilty to an offense under a statute requiring no
proof of the victim’s age and no proof of age is provided, does the
Department [] have the authority to make an ex parte finding of fact that the
victim is a minor and thus, order [] Rogers to register as a tier II offender?

2. Assuming arguendo that the Department [] has the authority to make
ex parte findings of fact regarding the age of the victim, what level of proof
is required and who may make the ultimate determination of fact?

-9-
On May 29, 2019, the State filed an answer to the petition for a writ of certiorari

and a conditional cross-petition, raising the following three issues:

1. Did the Court of Special Appeals correctly apply settled law when it
reversed the circuit court’s order granting [] Rogers’s motion for summary
judgment, where [] Rogers failed to demonstrate, as a matter of law, that he
is not required to register as a sex offender based upon his conviction for
human trafficking in violation of [CR] § 11-303?

2. Is [] Rogers’s separation-of-powers argument both unpreserved and
meritless?

3. Is the State entitled to summary judgment where [] Rogers did not
genuinely dispute the State’s evidence proving that the victim of []
Rogers[’s] human-trafficking offense was a minor, thus establishing as a
matter of law that [] Rogers was required to register as a sex offender based
upon his conviction of human trafficking in violation of [CR] § 11-303?

On August 26, 2019, this Court granted the petition and the conditional cross-

petition. See Rogers v. State, 465 Md. 666, 214 A.3d 1195 (2019).

STANDARD OF REVIEW

Summary judgment is appropriate where “the motion and response show that there

is no genuine dispute as to any material fact and that the party in whose favor judgment is

entered is entitled to judgment as a matter of law.” Kennedy Krieger Inst. v. Partlow, 460

Md. 607, 632, 191 A.3d 425, 440 (2018) (citation omitted). “[W]hether a trial court’s grant

of summary judgment was proper is a question of law subject to de novo review on

appeal[,]” and “we independently review the record to determine whether the parties

properly generated a dispute of material fact, and, if not, whether the moving party is

entitled to judgment as a matter of law.” Id. at 632, 191 A.3d at 440 (citation omitted).

“We review the record in the light most favorable to the nonmoving party and construe any

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reasonable inferences that may be drawn from the facts against the moving party.” Id. at

632-33, 191 A.3d at 440 (citation omitted).

“The standard of review for a declaratory judgment entered as a result of the grant

of a motion for summary judgment is whether that declaration was correct as a matter of

law.” Catalyst Health Sols., Inc. v. Magill, 414 Md. 457, 471, 995 A.2d 960, 968 (2010)

(cleaned up). Where an issue surrounding a declaratory judgment order involves an

interpretation and application of Maryland law, “we must determine whether the [trial]

court’s conclusions are legally correct under a de novo standard of review.” Dep’t of Pub.

Safety and Corr. Servs. v. Doe, 439 Md. 201, 219, 94 A.3d 791, 801 (2014) (“Doe II”)

(cleaned up).

Recently, in Sabisch v. Moyer, 466 Md. 327, 350, 220 A.3d 272, 285 (2019), we set

forth the following rules of statutory construction:

The cardinal rule of statutory construction is to ascertain and effectuate the
intent of the General Assembly.

As this Court has explained, to determine that purpose or policy, we look
first to the language of the statute, giving it its natural and ordinary meaning.
We do so on the tacit theory that the General Assembly is presumed to have
meant what it said and said what it meant. When the statutory language is
clear, we need not look beyond the statutory language to determine the
General Assembly’s intent. If the words of the statute, construed according
to their common and everyday meaning, are clear and unambiguous and
express a plain meaning, we will give effect to the statute as it is written. In
addition, we neither add nor delete words to a clear and unambiguous statute
to give it a meaning not reflected by the words that the General Assembly
used or engage in forced or subtle interpretation in an attempt to extend or
limit the statute’s meaning. If there is no ambiguity in the language, either
inherently or by reference to other relevant laws or circumstances, the inquiry
as to legislative intent ends.

(Citation omitted).

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DISCUSSION3

I.

The Parties’ Contentions

Rogers contends that, under the circumstances of this case—where he pled guilty to

an offense not requiring proof of the victim’s age and where no proof of the victim’s age

was established at the plea proceeding—the Department lacked the authority to determine

that the victim was a minor and to order him to register as a Tier II sex offender. Rogers

argues that a conviction for human trafficking under CR § 11-303(a) does not trigger the

Registry’s requirements for Tier II sex offender registration. Rogers asserts that nothing

in the sex offender registry statutes authorizes the Department or the Registry’s manager

to evaluate evidence and determine facts beyond the record of conviction.

The State responds that, under CP § 11-701(p)(2)’s plain language, sex offender

registration is required where a person is convicted of violating CR § 11-303 and the victim

is a minor. The State argues that the absence of proof of the victim’s age from the guilty

plea record did not nullify Rogers’s obligation to register as a Tier II sex offender and the

Department had the authority to determine the victim’s age where that fact had not been

determined in the underlying criminal proceeding. The State maintains that the Department

3
We consolidate the questions presented by the parties into two issues—the first
addressing whether registration is required under the circumstances of this case and who
may make a determination of the victim’s age, the second addressing at what point a
determination of the victim’s age must be made and what standard of proof is required. To
the extent that the State raises a question as to whether Rogers’s separation of powers
argument is preserved, Rogers’s assertion that the Department’s action violated the
separation of powers doctrine is not a basis for the holding in this case. As such, we need
not address whether the issue is preserved.

- 12 -
properly determined that the victim was a minor, and asserts that, in the civil proceeding,

Rogers did not genuinely dispute that finding.

Relevant Statutes and Regulations

At all relevant times, CR § 11-303 provided in pertinent part:

(a)(1) A person may not knowingly:

(i) take or cause another to be taken to any place for
prostitution;

(ii) place, cause to be placed, or harbor another in any place for
prostitution;

(iii) persuade, induce, entice, or encourage another to be taken
to or placed in any place for prostitution;

(iv) receive consideration to procure for or place in a house of
prostitution or elsewhere another with the intent of causing the other
to engage in prostitution or assignation;

(v) engage in a device, scheme, or continuing course of conduct
intended to cause another to believe that if the other did not take part
in a sexually explicit performance, the other or a third person would
suffer physical restraint or serious physical harm; or

(vi) destroy, conceal, remove, confiscate, or possess an actual
or purported passport, immigration document, or government
identification document of another while otherwise violating or
attempting to violate this subsection.

...

(b)(1) A person may not violate subsection (a) of this section involving a
victim who is a minor.

...

(c)(1)(i) Except as provided in paragraph (2) of this subsection, a person who
violates subsection (a) of this section is guilty of the misdemeanor of human
trafficking and on conviction is subject to imprisonment not exceeding 10

- 13 -
years or a fine not exceeding $5,000 or both.

(ii) A person who violates subsection (a) of this section is
subject to § 5-106(b) of the Courts Article.

(2) A person who violates subsection (b) of this section is guilty of the
felony of human trafficking and on conviction is subject to imprisonment not
exceeding 25 years or a fine not exceeding $15,000 or both.

A predecessor of CR § 11-303 was added to the Criminal Law Article of the Code

of Maryland in 2002 as part of the creation of the Criminal Law Article; previously, the

section was Art. 27, § 428. See 2002 Md. Laws 197, 200, 779 (Vol. I, Ch. 26, H.B. 11).

At that time, Md. Code Ann., Crim. Law (2002) § 11-303 did not contain a provision

concerning conduct in which the victim was a minor, and simply provided that a person

who violated the section was guilty of the misdemeanor of pandering. See id. at 779. In

2007, Md. Code Ann., Crim. Law (2002, 2006 Supp.) § 11-303 was amended to change

the term “pandering” to “human trafficking,” to add a new subsection (b) to provide that

“[a] person may not violate subsection (a) of this section involving a victim who is a

minor[,]” and to make a violation of subsection (b) involving a minor victim a felony that

is subject to a higher maximum sentence. 2007 Md. Laws 2144-45, 2151-52 (Vol. III, Ch.

340, S.B. 606).4

4
In 2009, Md. Code Ann., Crim. Law (2002, 2008 Supp.) § 11-303(a)(1)(iii) was
amended from “[a] person may not knowingly[] . . . persuade or encourage by threat or
promise another to be taken to or placed in any place for prostitution” to provide that “[a]
person may not knowingly[] . . . persuade, induce, entice, or encourage another to be taken
to or placed in any place for prostitution[.]” 2009 Md. Laws 722-23 (Vol. I, Ch. 143, H.B.
542) (cleaned up). In 2010, Md. Code Ann., Crim. Law (2002, 2009 Supp.) § 11-303(a)(1)
was amended such that § 11-303(a)(1)(iv), (v), and (vi) appear as they did in CR § 11-
303(a)(1). See 2010 Md. Laws 3567, 3569-70 (Vol. IV, Ch. 529, S.B. 261). The following

- 14 -
In 2013, Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) § 11-303 was amended

to add a new subsection (f), which provided that “[i]t is not a defense to a prosecution under

sub[paragraph] (b)(1) of this section that the person did not know the age of the victim.”

2013 Md. Laws 5592-94 (Vol. VII, Ch. 653, H.B. 933) (cleaned up). From 2013 to 2019,

the time period relevant here, CR § 11-303 remained unchanged. Effective October 1,

2019, as part of the reorganization and amendment of certain provisions relating to sex

trafficking and prostitution, CR § 11-303 was renumbered as Crim. Law (2002, 2012 Repl.

Vol., 2019 Supp.) § 3-1102. See 2019 Md. Laws 472-73, 476-77, 488 (Vol. I, Ch. 21, H.B.

871); 2019 Md. Laws 488, 492-93, 504 (Vol. I, Ch. 22, S.B. 690). Among other

amendments, the term “human trafficking” was replaced with “sex trafficking[.]” 2019

Md. Laws 477, 492-93 (cleaned up). CR § 11-303(a) and (b)(1) were renumbered as Md.

Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2019 Supp.) § 3-1102(a) and (b)(1) without

change. Id. at 476, 492.

As to sex offender registration, at the relevant time, CP § 11-701(p)(2) defined a

“Tier II sex offender” in pertinent part as “a person who has been convicted of[] . . .

year, Md. Code Ann., Crim. Law (2002, 2010 Supp.) § 11-303 was repealed and reenacted
without amendments, and a new section was added to the Criminal Procedure Article to
provide that a person who was convicted of prostitution under a different section of the
Criminal Law Article could

file a motion to vacate the judgment if, when the person committed the act
or acts of prostitution, the person was acting under duress caused by an act
of another committed in violation of the prohibition against human
trafficking under § 11-303 of the Criminal Law Article or under federal law.

2011 Md. Laws 1016-17, 1021 (Vol. II, Ch. 218, S.B. 327) (cleaned up).

- 15 -
conspiring to commit, attempting to commit, or committing a violation of [CR] § 11-303,

§ 11-305, or § 11-306 . . . if the intended prostitute or victim is a minor[.]” At that time,

CR § 11-303 stated what is set forth above. CR § 11-305(a) concerned abduction of

children under sixteen years of age. CR § 11-306 concerned prostitution, providing, among

other things, that “[a] person may not knowingly[] engage in prostitution or assignation by

any means[ or] keep, set up, occupy, maintain, or operate a building, structure, or

conveyance for prostitution or assignation[.]” CR § 11-306(a)(1), (2) (paragraph breaks

omitted).

When Md. Code Ann., Crim. Law (2002) § 11-303 was enacted, it did not contain

a provision concerning conduct in which the victim was a minor—i.e., the provision that

later was enacted as Md. Code Ann., Crim. Law (2002, 2007 Supp.) § 11-303(b)(1). A

predecessor of CP § 11-701, which was added to the Criminal Procedure Article in 2001,

defined an “offender” in pertinent part as a person “ordered by a court to register” and who

had been convicted of violating any of the pandering statutes, including CR § 11-303’s

predecessor (Art. 27, § 428) “if the intended prostitute [was] under the age of 18 years[.]”

2001 Md. Laws 76, 380, 382 (Vol. I, Ch. 10, S.B. 1) (cleaned up). Effective October 1,

2019, the references to the statutes in CP § 11-701(p)(2) were updated so that paragraph

now provides that “‘Tier II sex offender’ means a person who has been convicted of[] . . .

conspiring to commit, attempting to commit, or committing a violation of § 3-1102, § 3-

1103, § 11-303, § 11-305, § 11-306, or § 11-307 of the Criminal Law Article, if the

intended prostitute or victim is a minor[.]” 2019 Md. Laws. 472, 474, 483, 488 (Vol. I,

- 16 -
Ch. 21, H.B. 871) (cleaned up).5

Pursuant to CP § 11-713(2), the Department must “keep a central registry of

registrants[.]” Registrants are required to file registration statements containing, among

other things, the registrant’s full name and all addresses and places where the registrant

resides or habitually lives; the name and address of each of the registrant’s employers; a

description of the crime of which the registrant was convicted; all identifying factors,

including a physical description; information for any vehicle owned or regularly operated

by the registrant and the locations where all vehicles are kept; and the registrant’s

fingerprints and palm prints. See CP § 11-706(a). Under CP § 11-717(a)(1), the

Department is required to “make available to the public registration statements or

information about registration statements.” The Department is required to post on the

Internet:

(1) a current listing of each registrant’s name and other identifying
information; and

(2) in plain language that can be understood without special knowledge of
the criminal laws of the State, a factual description of the crime of the
offender that is the basis for the registration, excluding details that would
identify the victim.

CP § 11-717(b). Members of the public are permitted to electronically transmit

information about a registrant to the Department. See CP § 11-717(c)(1). CP § 11-721(a)

provides, among other things, that “[a] registrant may not knowingly fail to register, . . . or

5
We refer to the version of the statute that was in effect at the time of the underlying
proceedings—CP § 11-701(p)(2)—and not the version of the statute that became effective
last year.

- 17 -
knowingly provide false information of a material fact as required by this subtitle.” A first-

time violation of CP § 11-721 constitutes a misdemeanor and a second or subsequent

violation constitutes a felony. See CP § 11-721(b).

CP § 11-720 provides that the Secretary shall adopt regulations to carry out the

subtitle. To that end, Code of Maryland Regulations (“COMAR”) 12.06.01.01 to

12.06.01.18 set forth regulations related to the administration of sex offender registration.

COMAR 12.06.01.06B(1) provides that “[a] supervising authority shall establish

procedures for[ o]btaining information required for the registration statement before [] its

submission to the Sex Offender Registry Unit and to other agencies as required[.]” And,

the Sex Offender Registry Unit is required to:

(1) Maintain a central registry:
(a) Initiated by receipt of registration statements; and
(b) Updated by receipt of periodic registration documentation and
notice of changes of registrant’s address or other status;
(2) Determine if a registrant should be placed in an under investigation or
absconder status;
(3) Calculate terms of registration; and
(4) Authorize termination of registration.

COMAR 12.06.01.08A.

Relevant Case Law

In Doe II, 439 Md. at 237, 94 A.3d at 812, this Court explained that the

Department’s Sex Offender Registry Unit “is in charge of the maintenance of all sex

offender registration information for the State[, and p]ursuant to Maryland regulations, . .

. has the authority to maintain Maryland’s central registry, as well as to manage and

authorize termination of registration.” (Citation omitted). We stated that a trial court has

- 18 -
“the authority to compel the State to remove all of its records relating to [a person]’s

registration as a sex offender[.]” Id. at 237, 94 A.3d at 812.

Maryland case law has recognized that the Registry is a conviction-based

registration scheme. In In re Nick H., 224 Md. App. 668, 673, 700, 123 A.3d 229, 232,

247-48 (2015), a case in which the trial court ordered a child respondent to register as a sex

offender, the Court of Special Appeals observed:

One aspect of [the Registry Act] that was important to the holding of
a violation of the constitutional prohibition against ex post facto laws by the
Court of Appeals . . . and by this Court . . . was the automatic imposition of
the registration requirement because of a conviction for a particular sex
crime.

(Citations omitted). The Court of Special Appeals explained that the requirement of sex

offender registration “appl[ies] automatically by operation of Maryland law.” Id. at 710,

123 A.3d at 254.

As to being required to register, in Cain v. State, 386 Md. 320, 322, 325 n.6, 872

A.2d 681, 682, 684 n.6 (2005), this Court considered whether a person convicted of second-

degree assault was required to register as an “offender” under what was then Md. Code

Ann., Crim. Proc. (2001) § 11-701(d)(7), which provided that “‘[o]ffender’ means a person

who is ordered by a court to register under this subtitle and who[] has been convicted of a

crime that involves conduct that by its nature is a sexual offense against a person under the

age of 18 years[.]” We held “that a person convicted of second[-]degree assault [was] not

required to register as an offender under the Registration of Offenders statute, unless the

elements of the crime contain[ed] reference to a sexual offense against a minor.” Id. at

322, 872 A.2d at 682. In that case, the defendant was charged with one count of child

- 19 -
abuse, two counts of third-degree sexual offense, and one count of second-degree assault,

and he pled guilty to second-degree assault. See id. at 322-23, 872 A.2d at 682-83. During

the guilty plea proceeding, defense counsel advised that the prosecutor was going to ask

that the defendant register under the registration statute and that counsel was going to argue

against registration. See id. at 324, 872 A.2d at 683. At the sentencing proceeding, defense

counsel asked that the defendant not be required to register as a sex offender. See id. at

325, 872 A.2d at 684. The trial court ultimately ordered the defendant to register as an

offender as a condition of his probation. See id. at 326, 872 A.2d at 684-85. The defendant

filed a motion to correct an illegal sentence, arguing that the conviction for second-degree

assault did not fall within the definition of “offender” set forth in Md. Code Ann., Crim.

Proc. (2001) § 11-701(d)(7). See id. at 326, 872 A.2d at 685. The trial court denied the

motion. See id. at 327, 872 A.2d at 685. The defendant appealed, and, on our own

initiative, this Court issued a writ of certiorari. See id. at 327, 872 A.2d at 685.

This Court held that the defendant was not required to register as a sex offender,

and reversed the trial court’s denial of the motion to correct an illegal sentence. See id. at

327, 872 A.2d at 685. The defendant “argue[d] that the elements of the crime of assault

for which he was convicted negate[d] the registration requirement, while the State

assert[ed] that the underlying facts to which [he] pled guilty mandate[d] registration.” Id.

at 329, 872 A.2d at 686. In deciding the issue, this Court extensively reviewed the history

of Maryland’s offender registration laws and the Registry. See id. at 329-35, 872 A.2d at

686-90. We observed that second-degree assault was “not one of the enumerated crimes

in the statute requiring registration, such as rape, kidnaping, false imprisonment, or

- 20 -
violations of the child pornography statute.” Id. at 335, 872 A.2d at 690 (citation omitted).

We addressed the State’s contention that the defendant was “required to register

because the facts contained in the statement of facts underlying the assault by their nature

constituted a sexual offense under Section 11-701(d)(7).” Id. at 335, 872 A.2d at 690. We

noted that the statute defined an offender as someone who was “‘convicted of a crime that

involves conduct that by its nature is a sexual offense’ against a minor[,]” meaning that we

needed to look at “the elements of the crime [of] which [the defendant was] convicted” to

determine whether registration was required. Id. at 336, 872 A.2d at 690 (emphasis in

original). Looking at the elements of second-degree assault, of which the defendant was

convicted, we observed that the offense did not contain references to a sexual offense

against a minor, and instead consisted of “the common[-]law offenses of assault, assault

and battery, and battery, unless aggravated to the greater offense of first[-]degree assault

by the use of a firearm or intent to cause serious physical injury[,]” which did not

“contemplate conduct that by its nature involves a sexual offense.” Id. at 338, 872 A.2d at

691-92 (cleaned up).

We determined that, to qualify as an offender under the statute at issue, the statute

“require[d] that sexual conduct that involve[d] an underage person [] be presented within

the crime charged and which the person [stood] convicted.” Id. at 338, 872 A.2d at 692.

In our view, “[t]o hold otherwise would expose individuals to possible registration that

have been convicted of crimes that do not include elements related to sexual conduct with

a minor[.]” Id. at 338, 872 A.2d at 692. We concluded that the trial court erred in denying

the motion to correct an illegal sentence and we ordered the trial court to vacate the

- 21 -
condition of probation requiring the defendant to register as an offender. See id. at 340,

872 A.2d at 693. We explained:

[T]he trial [court] acknowledged that [the defendant] had agreed to plead
guilty to second[-]degree assault, which the [trial court] described as
“unpermitted touching.” The State entered a nolle prosequi on the other
charges against [the defendant], relating to child abuse and a sexual offense
which left only the elements of second[-]degree assault, i.e.[,] the unlawful
application of force to another person, remaining without implication of
sexual conduct involving a minor.

Id. at 340, 872 A.2d at 693.

In State v. Duran, 407 Md. 532, 554, 967 A.2d 184, 197 (2009), a case addressing

the same statutory provision as Cain, among other things, this Court held “that indecent

exposure is not a crime that by its nature is a sexual offense” and that the defendant, who

was convicted of indecent exposure, was “not required to register as a[n] ‘offender’ under”

Md. Code Ann., Crim. Proc. (2001, 2006 Supp.) § 11-701(d)(7). In Duran, 407 Md. at 534,

967 A.2d at 185, the defendant exposed himself to girls of middle school age on three

occasions and he was indicted on four counts of indecent exposure. The defendant pled

guilty to one count of indecent exposure in each of three cases. See id. at 534, 967 A.2d at

185. At the sentencing proceeding, the State requested, and the trial court ordered, that the

defendant register as a sex offender. See id. at 534, 967 A.2d at 185. The defendant

appealed, and the Court of Special Appeals vacated the condition of probation requiring

registration, concluding that “the elements of the crime of indecent exposure ‘do not

contain reference to a sexual offense against a minor,’” and thus “registration was outside

the scope of the plea agreement.” Id. at 534, 967 A.2d at 185 (citation omitted).

On review, we observed that Md. Code Ann., Crim. Proc. (2001, 2006 Supp.) § 11-

- 22 -
704(a) required that “an offender” register with their supervising authority, and that Md.

Code Ann., Crim. Proc. (2001, 2006 Supp.) § 11-701(d) defined an offender “as a person

who has committed an enumerated offense or who has been convicted of a crime that

involves conduct that by its nature is a sexual offense against a person under the age of 18

years[.]” Id. at 547-48, 967 A.2d at 192-93 (cleaned up). Because indecent exposure was

not an enumerated offense, we addressed whether it was a crime that by its nature was a

sexual offense. See id. at 549, 967 A.2d at 193-94. Tracing the historical basis of the

crime, we concluded that “indecent exposure is not in and of itself sexual in nature, because

the lewdness element incorporates conduct that is not sexual, in addition to that which may

be sexual.” Id. at 553, 967 A.2d at 196. In short, we determined that “neither this Court’s

interpretation of the common[-]law indecent exposure nor any statute requires a sexual

component.” Id. at 554, 967 A.2d at 197.

We rejected the State’s argument that the appropriate remedy was to vacate the

defendant’s plea instead of striking the registration condition of probation. See id. at 555,

967 A.2d at 197. We explained that we disagreed “because the trial court had no authority

under the statute to require [the defendant] to register and the registration condition was

not integral to the plea agreement; it was not even a subject of negotiation.” Id. at 555, 967

A.2d at 197-98. Thus, the appropriate remedy was to strike the condition of probation that

the defendant register as a sex offender. See id. at 556, 967 A.2d at 198.

Analysis

Here, we hold that, where Rogers pled guilty to violating CR § 11-303(a), an offense

whose elements do not require proof of the victim’s age, and where no proof of the victim’s

- 23 -
age was established at the plea proceeding, Rogers was not required to register as a Tier II

sex offender pursuant to CP §§ 11-701(p)(2) and 11-704(a)(2). The Department lacked the

authority to determine on its own initiative that the victim was a minor and to order

registration. No statute or regulation gives the Department the authority to make a factual

determination as to the victim’s age and to require that an individual register as a Tier II

sex offender.

We begin by examining the plain language of the relevant statutes. Indisputably,

CR § 11-303(a) does not mention the victim’s age. CR § 11-303(a) prohibits, among other

things, the knowing taking or causing of someone to be taken to any place for prostitution,

harboring someone in a place for prostitution, and persuading, inducing, enticing, or

encouraging someone to be taken to any place for prostitution. CR § 11-303(a)

criminalizes human trafficking, and is a misdemeanor that carries a maximum sentence of

ten years’ imprisonment, a $5,000 fine, or both. See CR § 11-303(c)(1)(i). CR § 11-303(a)

does not contain any reference to the victim’s age whatsoever. By contrast, CR § 11-

303(b)(1), a more serious offense, specifically prohibits violation of subsection (a)

involving a victim who is a minor. CR § 11-303(b)(1) expressly forbids human trafficking

of children. That offense is a felony with a maximum sentence of twenty-five years’

imprisonment, a $15,000 fine, or both. See CR § 11-303(c)(2).

CP § 11-701(p)(2) defines a “Tier II sex offender” as a person who has been

convicted of conspiring to commit, attempting to commit, or committing a violation of CR

§ 11-303 where “the intended prostitute or victim is a minor[.]” Examining the plain

language of CP § 11-701(p)(2) leads to the conclusion that a person is a Tier II sex offender

- 24 -
and required to register pursuant to CP § 11-704(a)(2) where two conditions are satisfied:

(1) the person is convicted of violating CR § 11-303; and (2) the intended prostitute or

victim is a minor. CP § 11-701(p)(2) does not distinguish between convictions under CR

§ 11-303(a) and CR § 11-303(b)(1), and it appears that a conviction under either provision

may result in a requirement to register if the victim is a minor. We agree with the State

that CP § 11-701(p)(2)’s definition of a Tier II sex offender applies to someone who is

convicted of violating CR § 11-303(a) where the intended prostitute or victim is a minor.

Otherwise, the language “if the intended prostitute or victim is a minor” would be

superfluous, because a conviction under CR § 11-303(b)(1), by its very definition, will

always involve a victim who is a minor. Put differently, the language in CP § 11-701(p)(2)

regarding the victim being a minor is not necessary for a person who is convicted of

violating CR § 11-303(b)(1) to be required to register; to have any meaning at all, the

language must apply to CR § 11-303(a) and other statutes like it set forth in CP § 11-

701(p)(2) that do not require the age of the victim to be proven.

Although we are satisfied that, under CP § 11-701(p)(2), a conviction of either CR

§ 11-303(a) or CR § 11-303(b)(1) triggers Tier II sex offender status if the victim is a

minor, a person is not a Tier II sex offender simply by virtue of a conviction under CR §

11-303(a); there must also be proof that the victim was a minor. What can be gleaned from

the plain language of CP § 11-701(p)(2) is that the General Assembly intended Tier II sex

offender registration where there was conviction of an identified crime and where the

victim was a minor. The plain language of the statute indicates that the General Assembly

did not intend registration under CP § 11-701(p)(2) simply because there was a conviction

- 25 -
under CR § 11-303(a).

Here, Rogers pled guilty to, and was convicted of, violating CR § 11-303(a). The

victim’s age was not established during the prosecutor’s recitation of the statement of facts

or at any point during the guilty plea proceeding. It was only after Rogers was released

from imprisonment that the Department determined that he was required to register as a

Tier II sex offender under CP § 11-701(p)(2). Although CP § 11-701(p)(2) sets forth two

conditions for someone to qualify as a Tier II sex offender—conviction under CR § 11-303

and the intended prostitute or victim is a minor—the statute does not indicate how a

determination is to be made as to whether the victim is a minor if that fact is not established

during the underlying criminal proceeding. CP § 11-701(p)(2) does not state whether a

determination of the victim’s status as a minor is to be made by the trier of fact (either the

trial court or a jury), or if, as in this case, the Department may make such a determination.

After a thorough review of relevant law, we conclude that the trier of fact, not the

Department, must make the determination. As such, the Department did not have the

authority in this case to determine that the victim was a minor and to order Rogers to

register as a Tier II sex offender. We explain.

Looking at the sex offender registration statutes and regulations reveals that there is

no explicit delegation anywhere authorizing the Department to make such a determination,

and we know of no case in which this Court has recognized that the Department has such

authority. Absent an express delegation of authority to the Department to make such a

determination, we decline to read into the statutes and regulations the authority to permit

the Department to take the action.

- 26 -
At oral argument, the Assistant Attorney General acknowledged that there is no

explicit statutory delegation of authority to the Department to make a determination as to

a victim’s age, but argued that, because CP § 11-701(p)(2) requires a conviction and that

the victim be a minor, and because the statutes and regulations require that the Registry be

maintained, the Department is permitted to make such a determination. Without dispute,

the Department is required to “keep a central registry of registrants and a listing of juvenile

sex offenders[,]” CP § 11-713(2), and has various attendant responsibilities. Nothing in

the plain language of the statutes themselves, however, provides the Department with the

ability to determine, or even a process for determining, a fact necessary for placement on

the Registry. The regulations that were promulgated by the Department are likewise

unavailing. Under COMAR 12.06.01.08A, the Sex Offender Registry Unit is required to

maintain the Registry, “[d]etermine if a registrant should be placed in an under

investigation or absconder status[,]” “[c]alculate terms of registration[,]” and “[a]uthorize

termination of registration.” Although the Sex Offender Registry Unit may determine

whether a registrant should be placed in an “under investigation or absconder” status, the

Unit is not authorized to determine facts necessary to place a person on the Registry in the

first instance.

To allow the Department, the Sex Offender Registry Unit, or some person or entity

other than the trier of fact to determine a fact necessary for placement on the Registry

would lead to an incongruous result for those convicted of violating CR § 11-303(b)(1) and

those convicted of violating CR § 11-303(a). A conviction under CR § 11-303(b)(1) would

involve proof of a victim’s age as determined by the trier of fact beyond a reasonable doubt

- 27 -
because the victim’s age is an element of the offense, and that person would subsequently

be ordered to register as a Tier II sex offender. Whereas, placement on the Registry for a

conviction under CR § 11-303(a) would involve proof of one of the various modes of

human trafficking, but no proof of the victim’s age would be required whatsoever by any

standard of proof before the trier of fact. Yet, that person would be placed on the Registry

if the Department determined post hoc, by whatever process it deemed appropriate, that the

victim was a minor. If the Department were permitted to make such a finding, that finding

could be made without notice and non-publicly, and would not necessarily be required to

meet any particular standard of proof, such as proof beyond a reasonable doubt, by clear

and convincing evidence, or by a preponderance of the evidence.

It would be difficult to conceive that the General Assembly intended placement on

the Registry for those convicted under CR § 11-303(a) to be determined by an entity

different than the trier of fact, in a different manner, and through use of an unknown

standard of proof different than that used for those convicted under CR § 11-303(b)(1).

Such a result would be illogical. Allowing such a determination would lead to the

circumstance presented here, where it is incumbent on the defendant to seek relief from the

Department’s finding, after the criminal proceeding has concluded, without knowing how

the Department reached its conclusion. As in this case (where Rogers requested declaratory

judgment), the defendant would bear the burden of establishing that placement on the

Registry was erroneous. A defendant generally does not have the burden of proof—i.e.,

the requirement to prove—that punitive or regulatory actions taken by the State against

him or her were unwarranted. Generally, the State must prove conduct warranting such

- 28 -
action. Permitting the Department to determine in a closed-door fashion that the defendant

is required to register and causing the defendant to challenge the determination would turn

reasonableness on its head.

We are cognizant that not all of the statutes referenced in CP § 11-701(p)(2) have

as an element of the offense that the victim be a certain age. For some offenses, including

human trafficking under CR § 11-303(a), there must be additional proof that the intended

prostitute or victim was a minor for Tier II sex offender registration to be required. For

example, CR § 11-306(a) prohibits knowingly engaging in prostitution or maintaining or

operating a building for prostitution, and does not require as an element of the offense proof

as to the victim’s age. Simply because some of the statutes do not have as an element of

the offense that the victim be a minor (or some other certain age) does not mean that the

General Assembly intended that a determination of the victim’s age be made outside of the

underlying criminal proceeding. The circumstance that some offenses require proof of the

victim’s age as an element and some do not does not resolve the question of the process

for making a determination under CP § 11-701(p)(2) that the victim is a minor, where the

victim’s age is not an element of the offense. That there are several statutes referenced by

CP § 11-701(p)(2)—some of which require proof of the victim’s age as an element and

some that do not—does not mean that the General Assembly intended for the Department

to make the determination. Based on principles of fairness, it would make sense that the

trier of fact—not the Department—must determine the facts necessary for placement on

the Registry.

Our conclusion is supported by the numerous cases in which trial courts—not the

- 29 -
Department—ordered defendants to register as sex offenders. See, e.g., Duran, 407 Md. at

534, 967 A.2d at 185; Cain, 386 Md. at 326, 872 A.2d at 684-85; Nick H., 224 Md. App.

at 673, 123 A.3d at 232. Although arising in a different context, Cain, 386 Md. at 336,

338, 872 A.2d at 690, 692, and Duran, 407 Md. at 547-48, 553-54, 967 A.2d at 192-93,

196-97, stand for the principle that determination of who is an “offender” for registration

purposes—or, in this case, who is a Tier II sex offender—is controlled by the language of

the statute at issue. To be a Tier II sex offender, CP § 11-701(p)(2) requires both a

conviction of CR § 11-303 and that the intended prostitute or victim be a minor. Just as a

finding of guilt is made by a trier of fact, absent any indication whatsoever by the statutes’

plain language that the Department is authorized to determine facts necessary for

placement on the Registry, we conclude that such facts must be determined by the trier of

fact. Having determined that the Department is not authorized to find facts necessary for

placement on the Registry, we next address at what point the trier of fact must make such

a determination and the required standard of proof.

II.

The Parties’ Contentions

On brief, Rogers contends that the victim’s age must be found by the trier of fact

beyond a reasonable doubt before sentencing, not by the Registry’s manager at some point

after conviction. Rogers asserts that this Court has determined that sex offender

registration is punishment equivalent to imposing an additional sanction for a defendant’s

crime. At oral argument, surprisingly, though, in response to questions from the Court,

Rogers’s counsel allowed that the trial court could make a determination beyond a

- 30 -
reasonable doubt about the victim’s age at any point within the context of the criminal case,

so long as the determination is made before sentence is imposed.

The State responds that this Court has previously concluded that sex offender

registration is not intended as punishment, but instead is intended as a regulatory

requirement. As such, the State argues that the victim’s age may be determined by the

Department by a preponderance of the evidence, not beyond a reasonable doubt, and after

conclusion of the court proceedings.

Relevant Law

In Young v. State, 370 Md. 686, 690, 806 A.2d 233, 235 (2002), this Court

examined an earlier version of the Maryland sex offender registration statute in the context

of due process rights. We determined that “sex offender registration [did] not constitute

punishment in the constitutional sense[.]” Id. at 690, 806 A.2d at 235. In so determining,

we applied the “intent-effects” test, “a two-part inquiry whether (1) the legislature intended

the sanction to be punitive, and (2) the sanction is so punitive in effect as to prevent the

court from legitimately viewing it as regulatory or civil in nature, despite the legislature’s

intent.” Id. at 711, 706-07, 806 A.2d at 248, 245. As to the legislative intent behind the

sex offender registration statutes, we noted that, as enacted, the statute at issue contained

no express statement of purposes, but “the plain language and overall design . . . clearly

indicate[d] that it was not intended as punishment, but rather was intended as a regulatory

requirement aimed at protection of the public.” Id. at 712, 806 A.2d at 248. The Court

stated that the General Assembly did not intend “registration or notification as a device to

punish convicted sex offenders” and did not intend “to stigmatize or shame sex offenders.”

- 31 -
Id. at 712, 806 A.2d at 248.

As to whether there was clear proof that the statute was so punitive, either in purpose

or effect, that its punitive nature overrode the remedial purpose, this Court looked at the

following factors derived from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69

(1963):

(1) whether the sanction involves an affirmative disability or restraint; (2)
whether it has historically been regarded as a punishment; (3) whether it
comes into play only on a finding of scienter; (4) whether its operation will
promote the traditional aims of punishment—retribution and deterrence; (5)
whether the behavior to which it applies is already a crime; (6) whether it
lacks an alternative purpose to which it rationally may be connected; and (7),
if such alternative does exist, whether the statute appears excessive in
relation to it.

Young, 370 Md. at 713, 698, 806 A.2d at 249, 240. We observed that “sex offender

registration imposes [] affirmative disabilities on registrants, particularly in light of the

community notification provisions of [the statute].” Id. at 713, 806 A.2d at 249. We noted

that “[b]eing labeled as a sex[] offender within the community can be highly stigmatizing

and can carry the potential for social ostracism.” Id. at 713, 806 A.2d at 249. Nevertheless,

we “conclude[ed] that the burden [was] not so unreasonable, in light of the statute’s

remedial aims, that it converts the statute into a punitive one.” Id. at 713, 806 A.2d at 249.

We also noted that the statute applied to past criminal conduct, implicating the fifth factor.

See id. at 714, 806 A.2d at 249. We ultimately concluded that the statute was “not so

punitive a statute in its effect that its application defeat[ed] the [General Assembly]’s

remedial intent.” Id. at 714, 806 A.2d at 250. And, we stated that “[s]ex offender

registration traditionally ha[d] not been regarded as punishment.” Id. at 714, 806 A.2d at

- 32 -
250. We observed that the statute had no scienter requirement, possibly promoted

deterrence, had a legitimate purpose other than punishment, and was not excessive in

relation to its remedial purpose. See id. at 715, 806 A.2d at 250.

More than a decade later, in Doe v. Dep’t of Pub. Safety and Corr. Servs., 430 Md.

535, 537, 62 A.3d 123, 124 (2013) (“Doe I”), a plurality of this Court concluded that the

petitioner could not be compelled to register as a sex offender, explaining:

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

The plurality determined that “application of the sex offender registration statute to [the

p]etitioner in 2009 [was] the equivalent of imposing a new criminal sanction for [the

p]etitioner’s prior commission of sex crime in the 1980s.” Id. at 561, 62 A.3d at 138. In

the plurality’s view, placement on the Registry essentially had the same effect as placing

the petitioner on probation, thereby “effectively impos[ing] on him an additional criminal

sanction.” Id. at 562, 62 A.3d at 139. The plurality explained:

[The p]etitioner testified that under threat of arrest and incarceration
he was required to register in 2009. [The p]etitioner currently must report in
person to law enforcement every three months, give notice to law
enforcement of his address and any changes of address, and notify law
enforcement before being away from his home for more than seven days.
Furthermore, he must disclose to the State a significant amount of
information, some of which is highly personal, including: his employment

- 33 -
address; information about his conviction; his [S]ocial [S]ecurity number; his
email address and computer log-in names; information about vehicles he
often uses, including those not owned by him; his finger[]prints and palm
prints; all identifying factors, including a physical description, and an
updated digital image of himself. . . . If [the p]etitioner fails to comply with
these requirements, he faces terms of imprisonment, depending on the
violation, of up to three or five years.

Id. at 562, 62 A.3d at 139 (cleaned up). Moreover, “the dissemination of [the p]etitioner’s

information pursuant to the sex offender registration statute[ was] tantamount to the

historical punishment of shaming[,]” and was “punitive for ex post facto purposes.” Id. at

564, 565, 62 A.3d at 140, 141 (footnote omitted).

In a concurring opinion, the Honorable Glenn T. Harrell, Jr. discussed the various

amendments to the Maryland Sex Offender Registration Act that had occurred since 2009,

stating:

Since 2009, several amendments to the Maryland Sex Offender
Registration Act have been adopted, including, but not limited to: (1) adding
juvenile sex offenders to the list of those who must register; (2) requiring
registration statements to include a list of aliases, electronic email addresses,
computer screen names, or any name by which the registrant had been legally
known; (3) requiring tier III offenders (such as Doe) to register in person
every three months for life; (4) requiring that registrants provide three days[’]
notice after changing addresses; (5) ordering registrants to notify law
enforcement, prior to the relocation, when the registrant obtains a temporary
residence or changes the location where the registrant resides or “habitually
lives” for more than 5 days; (6) requiring homeless registrants to register in
person with the local law enforcement in each county where the registrant
habitually lives; (7) publicize registration information on the Internet; and
(8) granting the Department [] and law enforcement the discretion to provide
notice of a registration statement or a registrant’s change of address to
whomever they deem necessary so as to protect the public from the registrant.

Id. at 569-70, 62 A.3d at 143-44 (Harrell, J., concurring) (citations omitted). Judge Harrell

observed that “significant revisions to the Maryland registration statute ha[d] occurred

- 34 -
since the Young [C]ourt reviewed the statute in 2002.” Id. at 571, 62 A.3d at 145 (Harrell,

J., concurring). For example, Judge Harrell noted that, beyond disseminating basic registry

information about registrants, “the Maryland registry web site allows any person to post

comments, that are available for the public to view, below a registrant’s profile.” Id. at

572, 62 A.3d at 145 (Harrell, J., concurring). Judge Harrell observed that “in-person

registration requirements may involve punitive restraints.” Id. at 572, 62 A.3d at 145

(Harrell, J., concurring). Judge Harrell stated that “dissemination of non-public and

sensitive information about registrants” presented the risk of being stigmatizing, and noted

that registrants were required “to inform the State on every change of location, including

any place in which a registrant habitually lives or stays for more than five days, and . . . the

Department or law enforcement [were permitted] to share the information with anyone

when [] necessary to do so to protect the public.” Id. at 572-73, 62 A.3d at 145 (Harrell,

J., concurring) (citations omitted). As to recidivism, Judge Harrell stated that research

since 2002 demonstrated that, “[a]pplying such a broad-reaching statute like Maryland’s

to any qualifying sex offender without particularized determinations of recidivism may

undermine the law’s intent to prevent the repetition of sex offenses. Indeed, recent research

reports that broad-reaching sex offender registration and notification laws do not reduce

recidivism by sex offenders.” Id. at 573, 62 A.3d at 146 (Harrell, J., concurring) (citations

omitted).

In a separate concurring opinion, the Honorable Robert N. McDonald, joined by the

Honorable Sally D. Adkins, stated that “the cumulative effect of the 2009 and 2010

amendments of the State’s sex offender registration law took [the] law across the line from

- 35 -
civil regulation to an element of the punishment of offenders.” Id. at 578, 62 A.3d at 148

(McDonald, J., concurring) (citations omitted).

Similarly, in Quispe del Pino v. Md. Dep’t of Pub. Safety and Corr. Servs., 222 Md.

App. 44, 63, 112 A.3d 522, 533 (2015), in the ex post facto context, the Court of Special

Appeals concluded:

[T]he retroactive application of [the Maryland Sex Offender Registration
Act] to [the] appellant by the 2010 amendment imposed additional
punishment on [the] appellant for criminal conduct that occurred prior to the
existence of the amended statute, by extending the term of his required
registration from ten years to twenty-five years. Thus the 2010 amendment,
as applied to [the] appellant, is unconstitutional under the prohibition against
ex post facto laws contained in Article 17 of the Maryland Declaration of
Rights.

In Nick H., 224 Md. App. at 673, 689, 123 A.3d at 232, 241, a case where a juvenile

court ordered the appellant to register as a sex offender, the Court of Special Appeals held,

in pertinent part, that the juvenile court properly ordered the appellant to register and that

the retroactive application of the Maryland Sex Offender Registration Act as applied to the

appellant was not punishment and was not a violation of the prohibition against ex post

facto laws. In that case, the juvenile court conducted a hearing to determine whether the

appellant was at a significant risk of re-offending and “concluded, based on clear and

convincing evidence, that [the] appellant was at a significant risk of re-offending, and thus

ordered him to register as a sex offender[.]” Id. at 673, 123 A.3d at 232. The Court of

Special Appeals applied the intent-effects test and examined the various Mendoza-

Martinez factors, see Nick H., 224 Md. App. at 689-705, 123 A.3d at 241-50, concluding:

[A]lthough the requirement of registration imposes an affirmative disability
on [the] appellant, has been regarded historically as punishment, carries the

- 36 -
element of scienter, and applies to behavior that is criminal in nature, these
disadvantages are outweighed by the public safety purpose of [the Maryland
Sex Offender Registration Act] and the process afforded juvenile sex
offenders both before and after being ordered to register. [The Act] requires
an individualized assessment of a juvenile sex offender, under a clear and
convincing evidence standard, before placement on the sex offender registry,
and the opportunity to seek a reduction in the term of registration. By
contrast, [the Act] requires all adults convicted of certain sexual offenses to
register as sex offenders for a specified term regardless of their continuing
threat to society. Therefore, the placement of some juvenile sex offenders
on the sex offender register is explicitly tied to the regulatory purpose of sex
offender registration.

Id. at 705, 123 A.3d at 250-51.

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme

Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” In that case, a New Jersey statute classified the

possession of a firearm for an unlawful purpose as a second-degree offense punishable by

between five years’ and ten years’ imprisonment. See id. at 468. A separate New Jersey

statute, which was a hate crime law, provided for an extended term of imprisonment if the

trial court found by a preponderance of the evidence that the defendant committed the crime

“with a purpose to intimidate an individual or group of individuals due to race, color,

gender, handicap, religion, sexual orientation[,] or ethnicity[.]” Id. at 468-69 (cleaned up).

Under the hate crime law, the extended term of imprisonment for second-degree offenses

was between ten years’ and twenty years’ imprisonment. See id. at 469. The Supreme

Court explained that the New Jersey statutory scheme consisted of the following:

[A] jury [is allowed] to convict a defendant of a second-degree offense based
on its finding beyond a reasonable doubt that [the defendant] unlawfully

- 37 -
possessed a prohibited weapon; after a subsequent and separate proceeding,
it then allows a judge to impose punishment identical to that New Jersey
provides for crimes of the first degree, based upon the judge’s finding, by a
preponderance of the evidence, that the defendant’s purpose for unlawfully
possessing the weapon was to intimidate his [or her] victim on the basis of a
particular characteristic the victim possessed.

Id. at 491 (cleaned up). Applying its holding, the Supreme Court concluded that the New

Jersey statutory scheme could not stand. See id. at 491-92.

Analysis

Here, we hold that applying the intent-effects test and the Mendoza-Martinez factors

leads to the conclusion that sex offender registration under the current statutory scheme is

sufficiently punitive, i.e., serving as more than a mere civil regulation, to require

determination of a fact necessary for placement on the Registry—such as the victim’s

age—be made beyond a reasonable doubt by the trier of fact during the adjudicatory phase

of the criminal proceeding prior to sentencing. Although whether placement on the

Registry is punitive has not been examined in the context of a conviction for CR § 11-

303(a), placement on the Registry is placement on the Registry, regardless of the reason or

the conviction that required sex offender registration. We are satisfied that establishment

of the victim’s age and placing a defendant who is convicted of violating CR § 11-303(a)

on the Registry essentially increases the punishment or penalty for that crime, and that the

determination of the victim’s age must be submitted to the trier of fact and proven beyond

a reasonable doubt. Cf. Apprendi, 530 U.S. at 490 (“Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum should be submitted to a jury, and proved beyond a reasonable doubt.”); see also

- 38 -
Blakely v. Washington, 542 U.S. 296, 303, 313 (2004) (“[T]he ‘statutory maximum’ for

Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant. . . . As Apprendi held, every

defendant has the right to insist that the prosecutor prove to a jury all facts legally essential

to the punishment.” (Cleaned up.)).

We begin our inquiry with the intent-effects test, and whether the General Assembly

intended sex offender registration to be punitive and whether sex offender registration is

so punitive in effect that it cannot be viewed simply as regulatory or civil in nature, despite

the General Assembly’s intent. In Young, 370 Md. at 712, 806 A.2d at 248, we stated “that

the plain language and overall design of” the sex offender registration statutes

demonstrated that sex offender registration “was not intended as punishment, but rather

was intended as a regulatory requirement aimed at protection of the public.” At least as

originally enacted, the General Assembly did not intend “registration or notification as a

device to punish convicted sex offenders” or as a method “to stigmatize or shame sex

offenders.” Id. at 712, 806 A.2d at 248. That the General Assembly may have intended a

non-punitive regulatory scheme is not dispositive; we must determine whether the scheme

is so punitive in effect as to negate that intent. We determine that the cumulative effects

of the Maryland Sex Offender Registration Act are increasingly punitive, i.e., that

placement on the Registry is progressively more punitive, and that case law has begun to

recognize as much.

Application of the Mendoza-Martinez factors is instructive. As to the first factor,

whether sex offender registration in Maryland involves an affirmative disability or

- 39 -
restraint, we conclude that it does. Even in Young, 370 Md. at 713, 806 A.2d at 249, we

recognized that sex offender registration imposes affirmative disabilities on registrants,

especially given the community notification provisions, and that being labeled as a sex

offender can be highly stigmatizing and lead to social ostracism. Moreover, from our

perspective, the in-person registration requirements involve punitive restraints. For

example, a Tier II sex offender is required to register in person every six months with local

law enforcement and the digital image for registration must also be updated every six

months. See CP § 11-707(a)(1)(i), (ii). Although in-person registration does not constitute

a physical restraint on a registrant, this requirement cannot be said to be a minor one, given

that it occurs every six months, in the case of Tier I and Tier II sex offenders, and every

three months, in the case of Tier III sex offenders and sexually violent predators. See CP

§ 11-707(a)(1)(i), (a)(2)(i), (a)(3)(i).

A Tier II sex offender is required to register for twenty-five years, a period of time

that may long exceed the term of imprisonment imposed. See CP § 11-707(a)(4)(ii).

Indeed, the maximum penalty for a violation of CR § 11-303(a) is ten years’ imprisonment,

a $5,000 fine, or both. See CR § 11-303(c)(1)(i). As part of the registration statement, a

registrant is tasked with providing a plethora of personal information, including the

registrant’s complete name and every address and place where the registrant resides or

habitually lives, the names and addresses of all of the registrant’s employers, a list of

electronic mail addresses, computer log-in or screen names or identities, instant-messaging

identities, and electronic chat room identities the registrant has used, the registrant’s Social

Security number, all identifying factors, including a physical description, information for

- 40 -
any vehicle owned or regularly operated by the registrant and the locations where the

vehicles are kept, and the registrant’s fingerprints and palm prints. See CP § 11-706(a). In

Young, 370 Md. at 713, 806 A.2d at 249, this Court acknowledged that a registration

statement “may include documentation of highly personal, confidential, and ordinarily

nonpublic information such as treatment received for a mental abnormality or personality

disorder.” (Citation omitted). See also CP § 11-706(b). Knowingly failing to provide any

of the information required to be included in a registration statement is, for a first offense,

a misdemeanor punishable by up to three years’ imprisonment, a $5,000 fine, or both, and,

for a second or subsequent offense, a felony punishable by up to five years’ imprisonment,

a $10,000 fine, or both. See CP § 11-721(a), (b).

Significantly, information about sex offender registrants is publicly available and

required to be posted on the Internet. See CP § 11-717(a)(1), (b). The Internet has

increased dissemination of the personal information of sex offenders, and anyone, at any

time and for any reason, can look up a current listing of a registrant. Public availability

and dissemination of sex offender registration expose sex offenders to ostracism, and may

cause lost employment opportunities, housing discrimination, threats, and violence. In

sum, we conclude that this factor—whether sex offender registration in Maryland involves

an affirmative disability or restraint—weighs heavily in favor of registration having a

punitive effect.6

6
Similarly, in Sabisch, 466 Md. at 332-33, 220 A.3d at 275, in evaluating eligibility
to petition for habeas corpus relief, this Court concluded that a person on probation with
conditions that significantly restrain the person’s lawful liberty is eligible to seek habeas

- 41 -
As to the second factor, whether sex offender registration has historically been

regarded as punishment, although in Young, 370 Md. at 714, 806 A.2d at 250, we stated

that “[s]ex offender registration traditionally ha[d] not been regarded as punishment[,]”

more recently, in Doe I, 430 Md. at 561, 564, 52 A.3d at 139, 140, a plurality of this Court

observed that requiring the petitioner to register had the same effect on his life as placing

him on probation, which is a form of a criminal sanction, and that dissemination of the

petitioner’s information was tantamount to the historical punishment of shaming. In Nick

H., 224 Md. App. at 694, 123 A.3d at 244, the Court of Special Appeals concluded that

publishing information about former juvenile sex offenders on a public website created an

enduring stigma of their misconduct akin to shaming. We agree with this reasoning and

conclude that registration has developed in the direction of being punitive.

As to whether sex offender registration depends on a finding of scienter, unlike

juvenile sex offender registration, see Nick H., id. at 694-95, 123 A.3d at 244-45, adult sex

offender registration requirements “are triggered when the offender is released into the

community” and “appl[y] to individuals convicted of any of the enumerated offenses,

without regard to the offender’s state of mind[,]” Young, 370 Md. at 715, 806 A.2d at 250.

As to whether sex offender registration operates to promote the traditional aims of

punishment—retribution and deterrence—in Young, id. at 715, 806 A.2d at 250, we

observed that, because the sex offender registrations statutes were enacted to protect the

public, registration could not be characterized as retribution. Nevertheless, we allowed

corpus relief. Hence, this Court recently recognized that non-physical restraints can
significantly impair liberty.

- 42 -
that the statutes possibly “promote[d] deterrence.” Id. at 715, 806 A.2d at 250. Black’s

Law Dictionary defines “deterrence” as “[t]he act or process of discouraging certain

behavior, particularly by fear; esp[ecially], as a goal of criminal law, the prevention of

criminal behavior by fear of punishment.” Deterrence, Black’s Law Dictionary (11th ed.

2019). The possibility of sex offender registration may very well have a deterrent effect

on some individuals who would otherwise engage in criminal behavior but for the fear, or

threat, of registration. And, as the Court of Special Appeals recognized, the “requirements

of reporting, notification, and disclosure to law enforcement serve a deterrent function by

continually reminding the registrant of the ever-present interest of law enforcement in the

registrant’s behavior[,]” and “the public dissemination of offenders’ information is similar

to shaming, and thus acts to deter past offenders from re-offending, and may deter future

offenders who are aware of the public consequences of sexual offenses.” Nick H., 224 Md.

App. at 695-96, 123 A.3d at 245 (cleaned up). We conclude that this factor weighs in favor

of registration being punitive.

As to whether the behavior to which registration applies is already a crime,

registration “clearly applies to past criminal conduct[.]” Young, 370 Md. at 714, 806 A.2d

at 249. To be sure, “[t]he fact that the statute is triggered by a criminal conviction does not

undermine the [General Assembly]’s intent to create a sex offender registry to aid in the

civil purpose of tracking the location of known sex offenders.” Id. at 714, 806 A.2d at 249.

As such, this factor weighs equally in favor of registration being punitive in nature and

serving a civil purpose.

As to whether registration lacks an alternative purpose to which it rationally may be

- 43 -
connected, it is clear that the registration statutes have a purpose other than punishment—

to protect the public. In Young, id. at 715, 806 A.2d at 250, we observed that the

registration statutes have “strong remedial aspects and serve[] the important nonpunitive

goal of alerting law enforcement and the community to the presence of sexual predators

who may reoffend.” Finally, we consider whether the sanction of registration is excessive

in relation to its remedial purpose. From our perspective, given that the provisions of the

sex offender registration statutes protect the public from sex offenders and the registration

requirements apply only to those who qualify as sex offenders under the statutes, see id. at

715, 806 A.2d at 250, it cannot be said that the sanction of registration is excessive. On

balance, however, an examination of all of the factors weighs in favor of determining that

the cumulative effect of the registration statutes is punitive in nature, and, as such, sex

offender registration may be considered akin to punishment. Because establishment of the

victim’s age as a minor would necessitate placement on the Registry for a defendant

convicted of violating CR § 11-303(a), effectively subjecting the defendant to additional

punishment for the crime, it is logical that determination of the victim’s age be submitted

to the trier of fact and proven beyond a reasonable doubt.

In our view, whether placement on the Registry is viewed as punitive, as we

determine, or as regulatory, a defendant should be entitled to process where a fact necessary

for placement on the Registry, e.g., the victim’s age, is at issue. There is no statute, rule,

or case that allows a trial court to make a finding of fact beyond a reasonable doubt (or by

a lesser standard of proof) at sentencing after a jury trial (or a bench trial, for that matter),

or where the defendant has pled guilty and agreed to a statement of facts. Absent an

- 44 -
amendment of CP § 11-701(p)(2) or another statute enacted by the General Assembly,

consistent with the Supreme Court’s holding in Apprendi, to provide for some other

process, we conclude that, to require sex offender registration, the facts of the case adduced

during the adjudicatory phase of the criminal proceeding must establish the age of the

victim beyond a reasonable doubt.

To establish the victim’s age during the adjudicatory phase beyond a reasonable

doubt in a case in which a defendant pleads guilty, the State could pursue an agreed

statement of facts that establishes the victim’s age. Stated otherwise, the defendant and the

State would enter into a plea agreement where the statement of facts establishes the

victim’s age. Under Maryland Rule 4-243(c)(1), after a plea agreement is presented to the

trial court, the trial court “may then accept or reject the plea and, if accepted, may approve

the agreement or defer decision as to its approval or rejection until after such pre-sentence

proceedings and investigation as the [trial court] directs.” Aside from accepting or

rejecting the plea, the trial court is not authorized to make additional findings of fact outside

of those in the plea agreement reached between the defendant and the prosecutor, but may

accept the facts that are presented during the plea as the basis for finding a defendant guilty

beyond a reasonable doubt. The premise of a typical guilty plea is that a defendant agrees

with the facts as presented by the State, not that the trial court would make a finding that

goes against the defendant, unless there is an Alford plea and the parties have agreed to

- 45 -
such a plea.7 Under the process set forth above, where the defendant agrees to plead guilty

to violating what is now CR § 3-1102(a), and the State wants to pursue sex offender

registration, the State would include the victim’s age in the statement of facts. If the

defendant does not want to acknowledge that the victim was a minor, then the defendant

would not agree with the statement of facts, and, presumably, would not plead guilty.

In the event of a jury trial, where the State seeks to have the defendant ordered to

register as a Tier II sex offender under CP § 11-701(p)(2) and the age of the victim is not

an element of the offense, determination of the victim’s age beyond a reasonable doubt

could be achieved by a special verdict question submitted to the jury.8 To be sure, a

defendant may object to the use of a special verdict question regarding the victim’s age as

prejudicial, especially where the defendant is charged with other offenses that do not

require proof of the victim’s age, as some of the offenses referenced by CP § 11-701(p)(2)

do not. In most jury trials, though, witnesses and victims are generally asked to provide

7
In Jackson v. State, 448 Md. 387, 391 n.3, 139 A.3d 976, 978 n.3 (2016), we
explained that an Alford plea—derived from North Carolina v. Alford, 400 U.S. 25
(1970)—is a plea

in which the individual retains the right to appellate review of evidence
subject to a suppression motion but avoids going through the time and
expense of a full trial. By pleading not guilty and agreeing to the proffer of
stipulated evidence or an agreed statement of facts, an individual, like with a
guilty plea, waives a jury trial and the right to confront witnesses but retains
appellate review of the suppression decision.

(Cleaned up).
8
In State v. Adams, 406 Md. 240, 294, 958 A.2d 295, 328 (2008), this Court stated
that special verdicts are appropriate in criminal as well as civil cases, and that “[a] special
verdict is a proper method to create an unambiguous record for appeal.”

- 46 -
their age when testifying, so a victim’s age is usually not a secret. As such, as another

option, where there is genuinely no dispute about a victim’s age, a defendant could agree

or stipulate, outside of the presence of the jury, to the age of the victim if the defendant

believes inclusion of a question on a verdict sheet would be prejudicial.

Alternatively, in lieu of a special verdict question or the defendant’s stipulation

outside of the jury’s presence, the question of the victim’s age could be handled through

sequential jury determinations, whereby the jury would first determine whether the

defendant was guilty of a violation of CR § 11-303(a) (now CR § 3-1102(a)), and, if so,

next determine whether the victim was a minor. This would eliminate any claim of

prejudice before the jury by the defendant. In Galloway v. State, 371 Md. 379, 419, 809

A.2d 653, 677 (2002), in a concurring opinion, the Honorable Alan M. Wilner observed

that, with respect to a case in which a defendant is charged with possession of a firearm by

a person previously convicted of a crime and another offense not requiring proof that the

person was previously convicted of a crime, a trial court could “take the intermediate step

. . . of bifurcating the [criminal in possession] charge—allowing the jury to consider only

the current substantive charges first, and then, after it renders a verdict on those charges,

having that same jury hear the additional evidence and then consider the [criminal in

possession] charge.” (Wilner, J., concurring) (citation omitted). In other words, the jury

would make sequential determinations of the charges.9

At bottom, we conclude that a fact necessary for placement on the Registry, such as

9
At a bench trial, the trial court, of course, could be asked to make the requisite
finding during the adjudicatory phase beyond a reasonable doubt.

- 47 -
the victim’s age, must be determined by the trier of fact beyond a reasonable doubt, during

the adjudicatory phase of the criminal proceeding, prior to sentencing. In this case, that

did not occur. Instead, Rogers pled guilty to violating CR § 11-303(a) and the victim’s age

was not established during the agreed statement of facts or at any point during the guilty

plea proceeding. Without being authorized by statute, regulation, or case law, through use

of an unknown standard of proof, and after the underlying criminal proceeding had

concluded and Rogers had served a sentence of imprisonment, the Department determined

that the victim was a minor and ordered Rogers to register as a Tier II sex offender. This

action was taken without notice to Rogers or permitting him to be heard in any respect.

Placement on the Registry is no less punitive or consequential for those convicted under

CR § 11-303(a) (now CR § 3-1102(a)), as opposed to those convicted under CR § 11-

303(b)(1) (now CR § 3-1102(b)(1)), and, absent amendment of the statutes, one group of

people should not be subject to placement on the Registry through an unidentified process

and then required to challenge that placement. The circuit court correctly granted summary

judgment in Rogers’s favor, and properly determined that Rogers was not required to

register and that his name was to be removed from the Registry. We reverse the judgment

of the Court of Special Appeals.

JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED. CASE REMANDED TO
THAT COURT WITH INSTRUCTION TO
AFFIRM THE JUDGMENT OF THE CIRCUIT
COURT FOR ANNE ARUNDEL COUNTY.
RESPONDENTS TO PAY COSTS IN THIS
COURT AND IN THE COURT OF SPECIAL
APPEALS.

- 48 -
Circuit Court for Anne Arundel County
Case No. C-02-CV-17-000296
Argued: January 10, 2020
IN THE COURT OF APPEALS

OF MARYLAND

No. 32

September Term, 2019
______________________________________

JIMMIE ROGERS

v.

STATE OF MARYLAND, ET AL.
______________________________________

Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,

JJ.
______________________________________

Dissenting Opinion by Biran, J.,
which Barbera, C.J., and Hotten, J., join.
______________________________________

Filed: March 31, 2020
Respectfully, I dissent.

In my view, the Majority misinterprets the Maryland Sex Offender Registration Act

(“MSORA”) to preclude the Department of Public Safety and Correctional Services (the

“Department”) from determining the existence of a fact that triggers sex offender

registration for Petitioner Jimmie Rogers, where that fact was not necessary to a finding of

guilt in Rogers’s prior criminal case, and therefore was not proven or admitted in that

proceeding. I would hold that the General Assembly impliedly delegated the power to make

such a determination to the Department, subject to judicial review in an administrative

mandamus action or (as in this case) a declaratory judgment action filed by a person who

has been directed to register as a sex offender.

Rogers did not preserve his constitutional arguments for appellate review, and

therefore I would not reach them. On the merits of those claims, I would hold that the

Department’s determination that Rogers’s victim (M.H.) was a minor does not violate the

separation of powers mandated under Article VIII of the Maryland Declaration of Rights.

As to Rogers’s Sixth Amendment argument, I would conclude that Maryland’s sex

offender registration regime is not punitive, but rather achieves the remedial purpose for

which the General Assembly intended it: to protect the public. Alternatively, even if sex

offender registration in Maryland is considered effectively to be punitive, registration does

not increase a person’s punishment for a criminal offense beyond the otherwise applicable

statutory maximum for that offense, within the meaning of Apprendi v. New Jersey, 530

U.S. 466 (2000). Thus, I would hold that the trier of fact in a criminal case is not required

to determine beyond a reasonable doubt the existence of any fact that, while not an element
of the offense, is a prerequisite to registration under MSORA.

In concluding otherwise, the Majority creates a new, unprecedented, and ill-advised

procedure that Maryland judges and juries must now try to carry out in criminal cases, with

the likely result that some Maryland residents whose conduct warrants sex offender

registration will not be required to register, and that others, who have previously registered

as sex offenders in Maryland without ever disputing their status as such, will now file

similar declaratory judgment actions seeking removal from Maryland’s Sex Offender

Registry. In addition, the Majority’s decision is unique among the States, and may well

encourage some individuals who are currently registered as sex offenders in other

jurisdictions to move to Maryland in the hope that they will be able to avoid registration

here. I do not believe the General Assembly intended to make Maryland an outlier when it

decided who would qualify as Tier I, Tier II, and Tier III sex offenders under Maryland

law. Nor does the Sixth Amendment require this unfortunate result.

Applying the substantial evidence test for review of factual determinations by

administrative agencies, I would uphold the Department’s finding that M.H. was a minor

at the time Rogers committed his human trafficking offense. Accordingly, I would remand

this case to the Circuit Court with instructions to enter summary judgment for Respondents

and to issue a judgment declaring that Rogers is, and must continue to register as, a Tier II

sex offender.

-2-
I

A Supervising Authority Under MSORA Has the Authority to Determine a
Circumstance That Triggers Sex Offender Registration Where That Circumstance
Is Not an Element of a Registrant’s Criminal Offense.

Because the age of the victim is not an element of the human trafficking offense to

which Rogers pled guilty, it is not surprising that there was neither a proffer by the State

nor a finding by the Circuit Court at Rogers’s plea hearing that M.H. was a minor at the

time of the offense. This left open a gap in the determination whether Rogers would be

required to register as a Tier II sex offender. If Rogers’s victim was a minor, he would be

a Tier II sex offender and therefore obligated to register. If his victim was not a minor,

Rogers would not be required to register at all.

The Department subsequently closed this gap with its determination that Rogers’s

victim was a minor. The Majority holds that the Department lacked the authority to do so,

concluding that, in the absence of an express delegation by the General Assembly of the

authority to determine the age of a victim in these circumstances, it will not read MSORA,

Md. Code Ann., Crim. Proc. (CP) § 11-701, et seq. (2001, 2008 Repl. Vol., 2016 Supp.),1

impliedly to delegate such authority to the Department. Maj. Slip Op. at 26. Contrary to

the Majority’s conclusion, I believe the General Assembly intended the Supervising

Authority (here, the Department2) to determine the age of a victim for purposes of sex

1
Unless otherwise noted, I refer to this version of CP § 11-701 throughout this
opinion.

2
A “Supervising Authority” under MSORA is “the agency or person that is
responsible for collecting the information for the initial registration” of a particular sex

-3-
offender registration, where that fact is not an element of a potential registrant’s offense of

conviction.

Whether the General Assembly impliedly granted the Supervising Authority this

authority is a question of law, and “turns on the General Assembly’s intent in empowering

the agency and the statutory scheme under which the agency acts.” Thanner Enterprises,

LLC v. Baltimore Cty., 414 Md. 265, 279 (2010) (citing Bd. of Liquor License Comm’rs

for Baltimore City v. Hollywood Prods., Inc., 344 Md. 2, 11 (1996) (cleaned up)). When

the General Assembly has bestowed upon an agency a broad delegation of power, this

Court liberally construes the scope of that agency’s implied powers. Id. In addition,

“[a]dministrative agencies possess an ‘expertise’ and, thus, have a greater ability to

evaluate and determine the matters and issues that regularly arise, or can be expected to be

presented, in the field in which they operate or in connection with the statute that they

administer.” Adventist Health Care Inc. v. Maryland Health Care Comm’n, 392 Md. 103,

119 (2006). “[C]onsiderable weight is due [to] the agency’s interpretation and application

of the statute it administers and to the agency’s interpretation of its own regulations.” Id.at

121 (cleaned up).

I believe the Majority focuses too narrowly on CP § 11-701(p)(2), which governs

whether a person convicted of the criminal offense to which Rogers pled guilty qualifies

as a Tier II sex offender. To fully understand the import of the Majority’s holding and why

offender. CP § 11-701(n). For all individuals who are incarcerated in a correctional facility
operated by the Department, the Supervising Authority is the Secretary of the Department.
Id. § 11-701(n)(1). For ease of reference, I will refer to the Department as Rogers’s
Supervising Authority.

-4-
I believe it is incorrect, it is useful to begin by examining CP § 11-701 in greater detail, as

well as other pertinent statutory and regulatory provisions.

A. Statutory and Regulatory Framework

The General Assembly first enacted a sex offender registration regime for Maryland

in 1995. See 1995 Md. Laws, Chapter 142. It has amended the statute, now commonly

referred to as MSORA, several times in the quarter century that has passed. The

Department is the agency charged with maintaining Maryland’s Sex Offender Registry.

The General Assembly has provided that, “[w]ith advice from the Criminal Justice

Information Advisory Board …, the Secretary shall adopt regulations to carry out

[MSORA].” CP § 11-720. The Department, in turn, has promulgated regulations that are

located in Title 12, Subtitle 6, Chapter 1, of the Code of Maryland Regulations (COMAR).

The Department’s prefatory regulation states that “[t]he purpose of this chapter is to

establish the framework for the sex offender registration process and to specify the duties

and responsibilities of a registrant and State and local agencies as established under

Criminal Procedure Article, §§11-701-11-721, Annotated Code of Maryland.” COMAR

12.06.01.01 (2015).3

In many instances, a person is classified as a Tier I, Tier II, or Tier III sex offender

if the person is convicted of a particular listed offense, without the necessity of any

additional circumstance being present. For example, if a person is convicted of a fourth-

degree sex offense under Md. Code Ann., Crim. Law (CR) § 3-308 (2002, 2012 Repl.

3
I refer to this version of COMAR throughout this opinion.

-5-
Vol.),4 he or she is a Tier I sex offender. CP § 11-701(o)(1). Another example is someone

who is convicted of first-degree rape under CR § 3-303; that person is defined as a Tier III

sex offender. CP § 11-701(q)(1)(ii). The fact of a conviction for such a listed offense

automatically triggers the requirement to register as a sex offender at one of the specified

tiers, and there is no need in such an instance for anyone to make a finding about anything

that was not necessarily proven at a trial or admitted by the defendant as part of a guilty

plea to that offense.

In many other instances, however, to be classified as a Tier I, Tier II, or Tier III sex

offender, a defendant must be convicted of a particular listed offense and a particular

additional circumstance must be present. Several of these instances arise where the victim

of the offense for which the defendant was convicted is in a certain age range, but the age

of the victim is not an element of the crime:

• CP § 11-701(o)(2) (Tier I sex offender status for a person who has been
convicted under CR § 3-902 (visual surveillance with prurient intent), “if
the victim is a minor”5).

• CP § 11-701(p)(2) (2001, 2018 Repl. Vol., 2019) (Tier II sex offender
status for a person who has been convicted under CR § 3-1102 (2002,
2012 Repl. Vol., 2019 Supp.) (sex trafficking),6 CR § 3-1103 (2002, 2012

4
Unless otherwise noted, all citations to sections of the Criminal Law Article
are to those as set forth in the 2012 Replacement Volume.
5
A “minor” is an “individual under the age of 18 years.” CR § 1-101(g).
6
CR § 3-1102 was previously codified as CR § 11-303. Rogers was convicted
of human trafficking under former CR § 11-303(a), a misdemeanor, which does not include
the age of the victim as an element of the offense. As the Majority explains, subsection
(b)(1) of former CR § 11-303 requires proof that the victim was a minor, is a felony offense,
and contains greater maximum penalties than subsection (a) of former CR § 11-303. In

-6-
Repl. Vol., 2019 Supp.) (marriage trafficking), CR § 11-303 (2002, 2012
Repl. Vol., 2019 Supp.) (engaging in “assignation,” or occupying a
building, structure, or conveyance for prostitution or assignation),7 CR §
11-306 (2002, 2012 Repl. Vol., 2019 Supp.) (soliciting, or offering to
procure or solicit, prostitution or assignation), or CR § 11-307 (2002,
2012 Repl. Vol., 2019 Supp.) (additional offenses involving the use of a
building, structure, or conveyance for prostitution or assignation), “if the
intended prostitute or victim is a minor”).

• CP 11-701(p)(3) (Tier II sex offender status for a person who has been
convicted under CR § 3-314 (sexual conduct between correctional or
juvenile justice employee and inmate or confined child) or CR § 3-603
(sale of a minor) “if the victim is a minor who is at least 14 years old”).

• CP § 11-701(q)(1)(iii) (Tier III sex offender status for a person who has
been convicted under CR § 3-502 (kidnapping) “if the victim is a minor”).

• CP § 11-701(q)(2) (Tier III sex offender status for a person who has been
convicted under CR § 3-314 (sexual conduct between correctional or
juvenile justice employee and inmate or confined child), CR § 3-503
(child kidnapping), or CR 3-603 (sale of a minor) “if the victim is under
the age of 14 years”).

• CP § 11-701(q)(3) (Tier III sex offender status for a person who is
convicted of conspiring to commit, attempting to commit, or committing
the common law offense of false imprisonment, “if the victim is a
minor”).8

2019, the General Assembly renumbered the human trafficking statute as CR § 3-1102 and
changed some references in the statute from “human trafficking” to “sex trafficking.” At
the same time, the General Assembly somewhat confusingly renumbered a
prostitution/assignation statute which had been CR § 11-306 as new CR § 11-303. In
keeping with the Majority’s approach, I will refer to the statute under which Rogers was
prosecuted as CR § 11-303, notwithstanding that a different offense is now set forth at §
11-303 of the Criminal Law Article and also is a predicate offense for Tier II sex offender
registration “if the intended prostitute or victim is a minor.”
7
See note 6 above.
8
A few of the underlying criminal statutes listed in CP §§ 11-701(o), (p), and
(q) as qualifying for Tier I, Tier II, or Tier III sex offender status if the victim or other
specified person is within a certain age range, can only be violated if the victim or other

-7-
Although the age of a victim involved in an offense is the most common additional

circumstance that, along with a conviction for an offense, triggers sex offender registration,

age is not the only such circumstance that MSORA refers to in defining a Tier I, Tier II, or

Tier III sex offender. Other additional circumstances include:

• CP §§ 11-701(o)(3), 11-701(p)(5) & 11-701(q)(5) (Tier I, Tier II, or Tier
III sex offender status, respectively, for conviction of a crime committed
in a federal, military, tribal, or other jurisdiction that, “if committed in
this State, would constitute” one of the Maryland offenses that triggers
sex offender registration).

• CP § 11-701(o)(5) (Tier I sex offender status for conviction of certain
military offenses that are “similar to” various listed federal offenses).

• CP §§ 11-701(o)(6), 11-701(p)(6) & 11-701(q)(6) (Tier I, Tier II, or Tier
III sex offender status, respectively, for conviction of a crime in a court
of certain foreign countries that, “if committed in this State, would
constitute” one of the crimes listed in CP §§ 11-701(o)(1) through (o)(5),
11-701(p)(1) through (p)(3), or 11-701(q)(1) through (q)(3)).

• CP § 11-701(p)(4) (Tier II sex offender status for conviction of an offense
that would require the person to register as a tier I sex offender “after the
person was already registered as a tier I sex offender”).

• CP § 11-701(q)(1)(v) (Tier III sex offender status for person who has been
convicted of the common law offense of sodomy, or of the commission
of an unnatural or perverted sexual practice under CR § 3-322, “if the
offense was committed with force or threat of force”).

• CP § 11-701(q)(4) (Tier III sex offender status for conviction of an
offense that would require the person to register as a Tier I or Tier II sex
offender “after the person was already registered as a [T]ier II sex
offender”).

person is within that age range. See, e.g., CP § 11-701(o)(2) (Tier I sex offender status for
person who violates CR § 11-208 “if the victim is a minor”; CR § 11-208 prohibits
possession of a visual representation of a child under 16 engaged in certain sexual acts).
The redundancy in a few of the subsections of §§ 11-701(o), (p), and (q) has no bearing on
the issues in this case.

-8-
Other statutory and regulatory provisions also provide useful context. Under CP §

11-704(a), a person who is a Tier I, Tier II, or Tier III sex offender “shall register with the

person’s supervising authority.” The Department has promulgated a regulation providing

that “a registrant shall complete, sign, and date a registration statement form with a

supervising authority.” COMAR 12.06.01.05(A). If the person required to register was

sentenced to a term of imprisonment, the person must register with his or her supervising

authority “before the date that the registrant is released.” CP § 11-705(b)(1).

For all sex offenders in the State, a registration statement must include, among other

things, “a description of the crime for which the registrant was convicted.” CP § 11-

706(a)(4). The Department has issued regulations that detail the information in the

registration statement that must be supplied by the registrant and the Supervising Authority,

respectively. COMAR 12.06.01.05(B) & (C). The Department has provided that, “[f]or

each crime for which the registrant is required to register,” the Supervising Authority must

supply certain information:

(a) Name of the crime, including statutory citation if applicable and
available;
(b) Date of conviction;
(c) Name of Maryland court and county, or other court and location, where
the registrant was convicted;
(d) Date the crime was committed; and
(e) Victim’s age at the time the crime was committed.

Id. at 12.06.01.05(C)(4) (emphasis added).

Under COMAR 12.06.01.06, a Supervising Authority “shall establish procedures

for … [o]btaining information required for the registration statement before to [sic] its

submission to the Sex Offender Registry Unit and to other agencies as required.” In

-9-
addition, “before releasing a registrant, a representative of the Supervising Authority shall

complete the registration statement, including the information required under Regulation

.05 of this chapter.” Id. at 12.06.01.06(C)(1)(a) (cleaned up).

B. Discussion

Against this backdrop, I turn to the Majority’s interpretation of MSORA as requiring

“the trier of fact–not the Department–[to] determine the facts necessary for placement on

the Registry.” Maj. Slip Op. at 29.9 I disagree with the Majority’s analysis for several

reasons. First, the General Assembly must be presumed to understand that, in the normal

course, a jury in a criminal case is not asked to decide whether a victim of an offense is a

minor (or any other fact) unless such a determination is necessary for a finding of guilt on

a charged offense. Yet, as the above discussion makes clear, the General Assembly has

created many circumstances that trigger sex offender registration in Maryland that are not

elements of a criminal offense. It seems very unlikely that the General Assembly intended

to make so many non-element-based determinations an additional responsibility of the

criminal trier of fact without expressly saying so, especially given that there is no precedent

9
In Part II of its Discussion, the Majority holds that, as a matter of
constitutional law, the trier of fact must decide beyond a reasonable doubt during the
adjudicatory phase of a criminal case whether the victim of a human trafficking charge
brought under CR § 11-303(a) was a minor in order for a person convicted under § 11-
303(a) to be required to register as a sex offender. Given that holding, Part I of the
Majority’s analysis seems not to be essential. In other words, on the Majority’s view, even
if the General Assembly intended to leave such a determination to the Department or other
Supervising Authority, the Sixth Amendment prohibits the General Assembly from doing
so. Because I disagree with the Majority’s Sixth Amendment analysis, I must reach the
question of statutory interpretation that the Majority considers in Part I of its Opinion.

- 10 -
under Maryland law that I am aware of for the trier of fact in the guilt phase10 of a criminal

case to make a finding that does not bear on an element of a charged offense. Put another

way, I do not believe the General Assembly would have assumed when drafting MSORA

that a criminal jury (or judge in a nonjury trial) would ever be called upon to determine the

age of a victim, where the offense does not require the State to prove the age of the victim

in order to obtain a conviction. Given that such a role for a jury would be a very significant

departure from the traditional role of Maryland criminal juries, I believe that, if the General

Assembly had wanted to make such determinations the province of the jury, it expressly

would have said so.

Second, my interpretation of MSORA is buttressed by the reality that many of the

circumstances that are not elements of a criminal offense, but which the General Assembly

has made prerequisites to sex offender status, are not circumstances that a Maryland jury

(or even a Maryland sentencing court) would ever be in a position to decide. For example,

a Maryland resident who is convicted in another jurisdiction of an offense that, if

committed in Maryland “would constitute” one of the Maryland offenses that triggers

registration, or is convicted in a military court of an offense that is “similar to” various

10
When Maryland maintained the death penalty as a possible punishment for
first-degree murder, a jury often would decide beyond a reasonable doubt in the penalty
phase of a capital murder case whether a particular aggravating factor alleged by the State
was present. See generally Borchardt v. State, 367 Md. 91 (2002). That process was
explicitly governed by statute, see id. at 101-02, and involved the ultimate punishment. The
Majority does not assert that the capital murder penalty phase that previously existed under
Maryland law is relevant to the consideration of whether the General Assembly intended
the criminal trier of fact to determine non-element facts necessary for placement on the Sex
Offender Registry. Nor could such a link plausibly be inferred.

- 11 -
listed federal offenses that trigger registration, is defined as a sex offender under MSORA

and must register at the specified tier. See CP §§ 11-701(o)(3), 11-701(p)(5) & 11-

701(q)(5); CP § 11-701(o)(5); CP §§ 11-701(o)(6), 11-701(p)(6) & 11-701(q)(6).

Practically speaking, only a registrant’s Supervising Authority would be in a position to

determine whether a Maryland resident convicted in another jurisdiction must register as a

sex offender in Maryland on the basis that his or her offense of conviction “would

constitute” or is “similar to” an offense specified in CP § 11-701(o), (p), or (q). Given that

the General Assembly indisputably intended that the Supervising Authority, not the

criminal trier of fact, decide some of the non-element circumstances that are prerequisites

to sex offender registration, I believe the General Assembly intended the Department also

to have authority to find whether the other non-element circumstances referenced in the

same subsections of § 11-701 are present in a particular case. See Whiting-Turner

Contracting Co. v. Fitzpatrick, 366 Md. 295, 302-03 (2001) (“[W]hen interpreting any

statute, the statute as a whole must be construed, interpreting each provision of the statute

in the context of the entire statutory scheme”).

Third, the Department or other Supervising Authority is well positioned to

determine the age of a victim and the other non-element circumstances that trigger

registration. The age of a victim usually will be determinable by the Supervising Authority

with minimal effort, through the review of undisputed evidence, and will not likely require

a credibility determination. See Hutton v. State, 339 Md. 480, 500-01 (1995) (discussing

the “province of the jury” to “judge the credibility of the witnesses and weigh their

testimony and … to resolve contested facts”).

- 12 -
Another example of a non-element factual determination that is obviously within

the competency of a Supervising Authority to determine is the circumstance of prior

registration being in effect when a person commits a new offense that qualifies for

registration. Consider a person who is charged with committing a fourth-degree sex offense

under CR § 3-308 at a time when he already was registered as a Tier II sex offender. Under

CP § 11-701(q)(4), if that person is convicted of the new fourth-degree sex offense, he will

be a Tier III sex offender because he was registered as a Tier II sex offender when he

committed the new offense.11 Under the Majority’s interpretation of MSORA, carried to

its logical conclusion, a Supervising Authority would not be authorized to determine that

the person was registered as a Tier II sex offender at the time he committed the fourth-

degree sex offense because the General Assembly has not expressly authorized the

Supervising Authority to do so. Rather, under the Majority’s reasoning, the fact of the

person’s prior registration as a Tier II sex offender would be alleged in the indictment and

introduced at the trial for fourth-degree sex offense, and the jury would be asked to

determine whether the defendant was a Tier II sex offender at the time he committed the

alleged fourth-degree sex offense. It is difficult to conceive that the General Assembly

would have created such a scenario sub silentio, which would not only inject additional

time and complexity into a criminal trial being conducted in a presumably busy Circuit

Court, but would also allow the jury to learn very prejudicial information about a

11
See also CP § 11-701(p)(4) (similar provision that defines a pers

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10487614. Public record. Not legal advice.