Sweet v. State

BELL, Chief Judge.

I agree that the judgment of the Court of Special Appeals must be reversed and that the petitioner, Christopher Sweet, is entitled to a new trial. That is the case for the two reasons Judge Raker explains. Pursuant to State v. Thomas, 369 Md. 202, 798 A.2d 566 (2002), the prospective jurors were required to be voir dired with respect to whether the charges against the petitioner; second degree assault and third degree sexual offense against a minor, stirred up in them strong emotional feelings that would affect their ability to be fair and impartial in the trial of the case. Moreover, the trial court never found the factual predicate underlying the factual finding that the petitioner was a sexually violent predator. Therefore, I con*11cur in the judgment. The majority also concludes, and holds, however, that should that latter finding be made, requiring registration is not punishment and, thus, is not subject to proof pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). I do not find the rationale underlying that holding to be at all persuasive.

In Young v. State, 370 Md. 686, 806 A.2d 233 (2002), the petitioner was ordered to register as a sexual offender, see Md.Code art. 27, § 792(a)(6)(vii) (1957, 1996 Repl.Vol., 1998 Supp.),1 pursuant to § 792(c). Although the registration requirement was pursuant to § 792, the obligation to register was made a condition of the petitioner’s probation. The petitioner challenged the order to register as a sexual offender. Relying on Apprendi, he argued that registration was punishment and, thus, it could not be imposed without a jury determination, beyond a reasonable doubt, of the facts necessary for its imposition, in that case, because the violation that triggered § 792(a)(6)(vii)’s application to the petitioner, the minority of the victim was critical, that the victim was under the age of eighteen years of age. To reach that conclusion, the petitioner applied the “intent-effects” analysis, a two part test, gleaned from Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 2082, 138 L.Ed.2d 501, 515 (1997) and Hudson v. United States, 522 U.S. 93, 99-100, 118 S.Ct. 488, 493-94, 139 L.Ed.2d 450, 459 (1997).

Also applying an “intent-effects” test, this one a three part one gleaned from Hendricks and United States v. Ursery, 518 U.S. 267, 288, 116 S.Ct. 2135, 2147, 135 L.Ed.2d 549, 568 (1996), the majority rejected Young’s argument. 371 Md. at 8, 806 A.2d at 270. It held that registration under § 792 is not punishment and that, in any event, the factual findings necessary to ordering a defendant to register did not, in that case, *12expose Young to greater punishment. Id. at 696, 806 A.2d at 239.

Noting that the petitioner, although a violent sexual predator, rather than a sexual offender, makes a similar argument as Young made, the majority states that “the same reasoning is equally applicable in the case sub judice.” 371 Md. 1, 8, 806 A.2d 265, 270 (2002). It therefore holds, “based on Young, in the instant case, due process did not require that a jury find a risk of committing a future sexually violent act, as required by § 792(a)(12).” Id.

Like the majority in Young, I did an extensive analysis of the cases and applied the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), a part of both “intent-effects” tests. I concluded, relying on Kansas v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997) and Doe v. Otte, 259 F.3d 979 (9th Cir.2001), cert, granted, 534 U.S. 1126, 122 S.Ct. 1062, 151 L.Ed.2d 966 (2002), and noting the breadth of the public disclosure of registrant information, that the Maryland sex offender registration statute is punitive.2 Accordingly, Apprendi applied and, because the order was made by the court without any determination by a jury as to the predicate facts qualifying Young for sexual offender status, I dissented from both the rationale of the majority and its judgment.

"The majority acknowledges that the court ordered registration as a condition of probation, but argues only that it was pursuant to § 792; it does not argue that, as the trial court apparently believed, ... that the registration was consistent with its authority to fashion conditions of probation. That is not surprising since conditions of probation are clearly punishment. See Spielman v. State, 298 Md. 602, 610, 471 A.2d 730, 734 (1984) ("It hardly can be contended that one who has been ordered to pay restitution, as a condition of probation, and is subject to revocation of that probation for failure to make payment, has not received punishment.”). The trial court also ordered that the petitioner obtain psychological treatment. Under the majority’s view, that also is not punishment, presumably because it is intended to be remedial.”

*13For the same reasons, I would reach a similar result in this case. Indeed, this is a stronger case since the effect of the community notification provisions is even more damaging for sexually violent predators and the registration provisions are substantially more onerous. See § 792(g)(3)3 and § 792(d)(4).4 Requiring registration every 90 days for life is much like, but certainly more burdensome than, the duty imposed on other defendants, after conviction, to report regularly to a probation officer or to comply with the conditions of supervised release.

Therefore, I dissent from that portion of the majority opinion holding that registration under the sexual offender registration statute is not punishment.

Judge ELDRIDGE joins in the views herein expressed.

. MACode art. 27, § 792 (1957, 1996 Repl.Vol., 1998 Supp.) was repealed and reenacted by 2001 Md. Laws, ch. 10, § 2, effective October 1, 2001, and codified at Md.Code art. 27, § 792, §§ 11-701-11-702 and 11-703-11-721 (1957, 1996 Repl.Vol., 1998 Supp.). By Md. Laws, ch. 221, also effective October 1, 2001, § 11-702.1, pertaining to the retroactive application of the registration law, was added.

. I was persuaded, as well, by the fact that the registration was ordered as a condition of probation, pointing out:

. Pertaining to sexually violent predators, § 792(g)(3) provides:

“(3)(i) Every 90 days, the local law enforcement agency shall mail a verification form, which may not be forwarded, to the last reported address of a sexually violent predator.
“(ii) Within 10 days after receiving the verification form, the sexually violent predator shall sign the form and mail it to the local law enforcement agency.
"(in) Within 5 days after obtaining a verification form from a sexually violent predator, a local law enforcement agency shall send a copy of the verification form to the Department.”

. Section 792(d)(4), as relevant, provides:

“(4) A sexually violent predator shall register every 90 days in accordance with the procedures described in subsection (g)(3) of the section and for the term provided under paragraph (5)(ii) of this subsection.
"(5) The term of registration is:
"(ii) Life if:
“1. The registrant has been determined to be a sexually violent predator in accordance with the procedures described in subsection (b) of this section.”