Ochoa v. Department of Public Safety & Correctional Services

61 A.3d 1, 430 Md. 315, 2013 WL 335295, 2013 Md. LEXIS 19

• Court: Court of Appeals of Maryland
• Decided: January 30, 2013
• Docket: No. 123
• Status: Published

Opinions

ADKINS, J.

In this case we must decide how Maryland’s sex-offender registration statutes apply to Appellant Angel Ochoa, considering multiple statutory revisions since his 1998 conviction of two sex offenses. At the time of his conviction, Ochoa was subject to a ten-year term of registration. The statutes have since changed to require lifetime registration for certain classes of sex offenders.

Ochoa sought declaratory relief in 2010, claiming that he had satisfied the ten-year registration requirement accompanying his conviction and that he was not subject to lifetime registration under Section ll-707(a)(4)(iii) of the Criminal Procedure Article (“CP”). Md.Code (2001, 2008 Repl.Vol., 2010 Cum.Supp.), § ll-707(a)(4)(iii) of the Criminal Procedure Article. The Circuit Court for Prince George’s County denied Ochoa’s claim and declared he was subject to lifetime registration. Ochoa appealed to the Court of Special Appeals, but this Court, on its own motion, granted certiorari to hear his case.

Ochoa appealed on the following question:

Is the Appellant subject to life time registration as a Tier III sex offender, pursuant to § 11-701, et seq, Criminal Procedure Article of the Annotated Code of Maryland when the offenses for which the Appellant is compelled to register are not listed in the statute?

We shall hold that Ochoa is required to register for life as a sex offender under CP § 11 — 707(a)(4)(iii) because his 1998 convictions make him a tier III sex offender under the current statutory scheme, and he was subject to lifetime registration on September 30, 2010, making retroactive application of the statute proper by its own terms.

Facts and Legal Proceedings

Angel Ochoa was indicted in August 1997 on one count of child abuse and three counts of third degree sexual offense, stemming from sexual contact he had with his eleven-year-old stepdaughter “on or about between January 1, 1997 and June 30, 1997.” On January 30, 1998, Ochoa pleaded guilty to the child-abuse count and one count of sexual offense, and prosecutors entered a nolle 'prosequi to the other two counts. Specifically, Ochoa pleaded guilty to violations of Article 27, Section 35C (child sexual abuse) and Article 27, Section 464B (third-degree sexual offense) of the Annotated Code of Maryland. He was convicted and sentenced to two years’ imprisonment, with all but one day suspended, and three years of supervised probation, which he successfully completed.

Upon conviction, Ochoa was required to register as a sex offender for ten years. Since his conviction, however, the statutory framework governing sex-offender registration has changed significantly, requiring lifetime registration for those convicted of many sexual offenses.¹ On April 6, 2010, Ochoa filed a complaint for declaratory relief in the Circuit Court for Prince George’s County, seeking a declaration that he had not committed a crime that required lifetime registration under CP § 11 — 707(a)(4)(iii). After the Department of Public Safety and Correctional Services (“the Department”) answered the complaint, Ochoa moved for summary judgment, which the Department opposed. After a hearing, the Circuit Court issued an order on July 12, 2011, denying Ochoa’s motion and entering judgment in favor of the Department. The Circuit Court declared that Ochoa is required to register as a tier III sex offender for life pursuant to CP § ll-707(a)(4)(iii).

Ochoa timely appealed to the Court of Special Appeals, but on March 6, 2012, this Court, on its own motion, issued a writ of certiorari before review by the intermediate appellate court. See Ochoa v. Dep’t of Corr. & Pub. Safety, 425 Md. 227, 40 A.3d 39 (2012).

Discussion

We are tasked with deciding whether the lifetime sex-offender registration requirements of CP Section 11-707(a)(4)(iii), effective October 1, 2010, apply to Ochoa based on his 1998 sex-offense convictions. By its own terms, CP § 11-707 applies only to sex offenders who were “subject to registration [under Title 7 of the Criminal Procedure Article] on September 30, 2010.”² Md.Code (2001, 2008 Repl.Vol., 2010 Cum.Supp.), § 11-702.1 of the Criminal Procedure Article. Under CP § 11-707, the term of registration for sex offenders varies depending on the severity of their crimes. See CP § 11-707. The longest term of registration — for “the life of the registrant” — is required of “tier III sex offender[s.]” CP § 11 — 707( a) (4) (iii). Accordingly, in determining whether Ochoa is subject to lifetime registration under CP Section 11-707(a)(4)(iii), we must decide first whether he was required to register as a sex-offender on September 30, 2010 and second whether he is a tier III offender. We answer both questions in the affirmative and conclude that Ochoa is subject to lifetime registration based on his 1998 convictions of sexual child abuse and sexual offense in the third degree.

I.

Sex-Offender Registration Requirements at the Time of Ochoa’s Conviction in 1998

When Ochoa was convicted in 1998 of violating sections 35C (child sexual abuse) and 464B (third degree sexual offense) of the former Article 27, he became subject to a ten-year registration requirement. The statute in effect at the time required “child sexual offenders” to “register with a local law enforcement agency annually for 10 years[.]” Md.Code (1957, 1996 Repl.Vol.), Article 27, § 792(i). A “child sexual offender” was defined as a person who had “been convicted of violating § 35C ... for an offense involving sexual abuse” or who had “been convicted of violating any of the provisions of §§ 462 through 464B ... for an offense involving an individual under the age of 15 years.” Art. 27, § 792(a)(2)® & (ii).

As Ochoa was convicted of violating both of these statutes in 1998, he was considered a “child sexual offender” under the statutory scheme then in effect and was subject to the ten-year registration requirement. He was therefore required initially to register as a sex offender from January 30, 1998 to January 30, 2008. See Art. 27, § 792®.

Sex-Offender Registration Requirements as of 1999

In 1999, for the purpose of amending “the laws concerning the registration requirements and procedures concerning individuals convicted of certain crimes against children, sexually violent offenses, or other sexual offenses,” the General Assembly made significant revisions to sex-offender registration requirements. See Chapter 317 of the Acts of 1999. Specifically, it subjected to lifetime registration three types of sex offenders: sexually violent predators, child sexual offenders and sexually violent offenders, convicted of certain crimes. See Md.Code (1957, 1996 Repl.Vol., 2000 Cum.Supp.), Article 27, § 792(d)(2), (3), (4) & (5)(ii). The statute continued to define a “child sexual offender” the same way it did at the time of Ochoa’s conviction in 1998 as an individual “convicted of violating § 35C of [Article 27] for an offense involving sexual abuse” or “any of the provisions of §§ 462 through 464B ... for an offense involving an individual under the age of 15 years.” Compare Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 792(a)(2)® & (ii), with Md.Code (1957, 1996 Repl.Vol., 2000 Cum.Supp.), Article 27, § 792(a)(2)(i) & (ii).

The statute further defined a “sexually violent offender” as an individual who had been convicted of a “sexually violent offense,” which was in turn defined as a violation of “any of the provisions of § 462, § 463, § 464, § 464A, § 464B, or § 464F of [Article 27].” Md.Code (1957, 1996 Repl.Vol., 2000 Cum.Supp.), Art. 27, § 792(a)(10) & (11). Under the statute, sexually violent offenders convicted of a “second or a subsequent sexually violent offense” were considered “sexually violent predators.” Art. 27, § 792(a)(12).

Under Section 792(d)(5), sexually violent predators were automatically required to register for life, and sexually violent offenders and child sexual abusers were required to do so if they were convicted of “a violation of any of the provisions of §§ 462 through 464B of this article.” Chapter 317 of the Acts of 1999; Art. 27, § 792(d)(5)(i) & (ii).

Upon making these changes, the General Assembly limited the retroactive application of the statute to “sexually violent offenders” who have committed offenses “on or after July 1, 1997,” but expressly stated that it does apply retroactively to child sexual offenders like Ochoa who (1) were already subject to the ten-year registration requirement under Article 27, Section 792® and (2) “who committed the sexual offense before the effective date of this Act.” See Chapter 317 of the Acts of 1999, Sections 4 & 5; Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 792(i) (“[Be it further enacted, that] a child sexual offender who is subject to the requirements of Chapter 142 of the Acts of the General Assembly of 1995 and who committed the sexual offense before the effective date of this Act is subject to the requirements of this Act.”).³

Under the 1999 revisions, as an individual who violated Sections 35C (child sexual abuse) and 464B (third degree sexual offense) of the former Article 27, Ochoa was both a “sexually violent offender” and a “child sexual offender.” Although as a “sexually violent offender” who committed the qualifying offenses prior to July 1, 1997, Ochoa was not subject to the statute’s application, as a “child sexual offender,” Ochoa met both requirements that triggered retroactivity: he was subject to the ten-year registration requirement at the time of the revision and committed his crimes before the effective date of the revision. See Chapter 317 of the Acts of 1999, Sections 4 & 5; Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 792(i).

It is clear to this Court, then, that Ochoa was subject to lifetime registration as of these 1999 revisions. Furthermore, as sex offender required to register for life since 1999, Ochoa continued to be subject to lifetime registration on September 30, 2010, making the retroactive application of CP § 11-707(a)(4)(iii) proper in this case. Because, Ochoa argues, however, that subsequent amendments to sex-offender registration requirements somehow absolved him of his registration responsibilities, we will examine these subsequent revisions as well.

Sex-Offender Registration Requirements After the 2002 Amendments

Ochoa directs us to CP § 11-707 that came into effect on October 1, 2010 and argues that under that law he was not required to register for life based on his 1998 convictions. As stated above, for the lifetime registration requirement of CP § 11-707 to apply retroactively, the sex offender had to be “subject to registration [under Title 7 of the Criminal Procedure Article] on September 30, 2010.” Md.Code (2001, 2008 Repl.Vol., 2010 Cum.Supp.), § 11-702.1 of the Criminal Procedure Article.

In accordance with CP § 11-707 in effect on September 80, 2010, the following classes of sex offenders were required to register for life: “sexually violent predator[s],” offenders “convicted of a sexually violent offense,” offenders “convicted of a violation of § 3-602 of the Criminal Law Article for commission of a sexual act involving penetration of a child under the age of 12 years,” and offenders who had been convicted of “a prior crime as a child sexual offender, an offender, or a sexually violent offender.” Md.Code (2001, 2008 Repl.Vol., 2009 Cum.Supp.), § ll-707(a)(4)(ii) of the Criminal Procedure Article. Ochoa argues that his 1998 convictions do not fall under either of these listed categories of sex offenders.

Ochoa’s arguments require us to delve further into the legislative history and analyze how these registration provisions became codified. In doing so, we must fulfill our obligation to “ascertain and effectuate the real and actual intent of the Legislature.” McCloud v. Dep’t of State Police, 426 Md. 473, 479, 44 A.3d 993, 996 (2012) (quotations omitted).

Since the 1999 revisions to the sex-offender registration laws that required Ochoa to register as a sex offender for life, the General Assembly has made several other changes. First, in 2002 the General Assembly enacted a major overhaul of the State’s criminal law statutes, where it moved many provisions of Article 27 into a new Criminal Law Article. See Chapter 26 of the Acts of 2002. As a result, the Article 27 crimes of which Ochoa was convicted received different code numbers. Specifically, the former Article 27, Section 35C (child sexual abuse) became Section 3-602 of the Criminal Law Article, and the former Article 27, Section 464B (sexual offense in the third degree) became Section 3-307 of the Criminal Law Article. See id. Both sections were accompanied by a revisor’s note stating the new sections consisted of “new language derived without substantive change from” the former sections.⁴ Id.

This recodification of the State’s criminal laws necessitated revisions to the criminal law references in the Criminal Procedure Article. The General Assembly thus also updated the Criminal Procedure Article, which details the sex-offender registration term requirements, by replacing cross-references to the repealed provisions of Article 27 with cross-references to the provisions transferred to the new Criminal Law Article. See Chapter 213 of the Acts of 2002 (“[For] the purpose of correcting certain cross-references to the Criminal Law Article in the Annotated Code of Maryland.... ”). Specifically, the requirement of a lifetime “term of registration” for sexual offenders “convicted of any violation of Article 27, §§ 462 through 464B of the Code” — which includes Ochoa’s conviction for third degree sexual offense — was replaced by “any violation of §§ 3-303 through 3-307 of the Criminal Law Article.” Id.

Second, during the same 2002 legislative session, as part of the effort to alter the definition of “ ‘a sexually violent offense’ to include certain crimes committed against a person under a certain age,” the General Assembly also changed the description of the offenses subject to a lifetime registration requirement from the code-specific reference to codified offenses, ie. “any violation of Article 27, §§ 462 through 464B of the Code,” to a general term of “a sexually violent offense.”⁵ See Chapter 194 of the Acts of 2002; Md.Code (2001, 2001 Repl.Vol., 2002 Cum.Supp.), § 11 — 707(a)(4)(ii)(2) of the Criminal Procedure Article.

Section ll-701(k) of the Criminal Procedure Article further provided definitions of sexually violent offenses subject to the lifetime registration requirement of CP § ll-707(a)(4)(ii). One such definition of a “sexually violent offense” was “a violation of §§ 3-303 through 3-307 or §§ 3-309 through 3-312 of the Criminal Law Article.” CP § ll-701(k)(l). Another definition included an “assault with intent to commit rape ... or a sexual offense ... as prohibited on or before September 30, 1996, under the former Article 27, § 12 of the Code.” CP § ll-701(k)(2). The General Assembly provided that these changes were to apply retroactively to sex offenders like Ochoa, who were “convicted of an offense committed before July 1, 1997, and who [were] under the custody or supervision of a supervising authority on October 1, 2001.” CP § 11-702.1(a).

In Ochoa’s opinion, however, he has not been convicted of a “sexually violent offense.” With respect to the first definition of “sexually violent offense” under CP Section ll-701(k)(l), Ochoa posits that he:

ha[d] not been convicted of a sexually violent offense as it was defined by the Annotated Code of Maryland on September 30, 2010. While Ochoa had been convicted of two offenses under Article 27 he had not been convicted of violating any provision of the Criminal Law Article.

To be sure, Ochoa was not literally convicted of violating any provision of the current Criminal Law Article, if only for the strikingly obvious reason that the Criminal Law Article did not exist at the time of his violation or conviction. As we discussed above, however, the third degree sexual offense under Section 464B of Article 27 — one of the crimes of which Ochoa was convicted in 1998 — was recodified as Section 3-307 of the Criminal Law Article. See Chapter 26 of the Acts of 2002. Thus, at least one of Ochoa’s 1998 convictions falls under the first definition of “sexually violent offense,” requiring Ochoa to register as a sex offender for life under CP § 11— 707(a)(4)(ii)(2).

Ochoa supplements his legislative-intent argument by directing our attention to the second definition of a “sexually violent offense.” As Ochoa correctly states, this definition included “assault with intent to commit rape in the first or second degree or a sexual offense in the first or second degree as prohibited on or before September 30, 1996, under former Article 27, § 12 of the Code[.]” Md.Code (2001, 2008 Repl.Vol., 2009 Cum.Supp.), § ll-701(k)(2) of the Criminal Procedure Article. Under Ochoa’s reading of this statute, however, because the statute refers to Article 27, Section 12, if the General Assembly had intended to classify as “sexually violent offenses” other offenses under Article 27 — like his convictions under former Article 27, Sections 35C and 464B — it would have expressly stated so as well.

This argument misinterprets the General Assembly’s reason for specifying the former Article 27, Section 12 in the statute. The crimes in that section were abolished in 1996 when the General Assembly substantively revised the State’s assault laws. See Chapter 632 of the Acts of 1996. As the Department argues:

Thus, there is no directly analogous statute in the new Criminal Law Article to Article 27, § 12 and, therefore, no cross-reference that could have been updated. In other words, convictions under Article 27, § 12 were the only ones that the General Assembly continued to refer to by the old statutory reference because they were the only ones that did not have a new statutory reference. The General Assembly’s goal was to ensure that individuals convicted of Article 27, § 12 violations before the statute’s abolition in 1996 would still be required to register, not to ensure everyone convicted of any other sexual offenses before September 30, 2002 be relieved from this requirement. We agree with this explanation and the view of the law.

The General Assembly has increased the length of the registration terms and added retroactivity provisions with an eye toward strengthening this State’s sex-offender laws. It is a reasonable interpretation of the statute then, consonant with legislative intent, that certain convictions under the former Article 27 — including Ochoa’s conviction for third degree sexual offense — are not excluded from the definition of a “sexually violent offense,” as defined on September 30, 2010. See, e.g., McCloud, 426 Md. at 480, 44 A.3d at 997 (“Additionally, we must always give the statute a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense.” (quotations omitted)).

The 2002 revisions were intended to be “nonsubstantive,” unless expressly provided, and “may not otherwise be construed to render any substantive change in the criminal law of the State.” See Chapter 26, Section 13 of the Acts of 2002. We have already seen that the sections relevant to Ochoa were “derived without substantive change” from the former laws. See id. As the Department argues, “[tjhere is no indication in the statute or elsewhere of any intent by the General Assembly to use those ‘nonsubstantive revisions’ to radically alter the law as to who was required to register as a sex offender and for how long registration was required.” This is plainly true, and we cannot imagine that when the General Assembly made clerically necessary updates to statutory cross-references, it would have intended to strip away the registration requirements for all sexual offenders convicted under the former Article 27. Such an interpretation would directly undermine the clear legislative intent to gradually strengthen sex-offender statutes.

Accordingly, regardless of which version of the sex-offender registration statute we apply, we find that Ochoa’s 1998 convictions of child sexual abuse and third degree sexual offense made him subject to lifetime registration on September 30, 2010, requiring retroactive application of Title 7 of the Criminal Procedure Article. See Md.Code (2001, 2008 Repl.Vol., 2010 Cum.Supp.), § 11-702.1 of the Criminal Procedure Article.

II.

Ochoa’s 1998 Crimes Under the Tier System

Having found that Ochoa was required to register as a sex offender on September 30, 2010, making retroactive application of the statute proper in this case, we next turn to Ochoa’s status under the tier sex offender classification of CP § 11 — 707(a) (4) (iii). The tier-based system replaced the former sex-offender designations of “sexually violent predator,” “sexually violent offender,” and “child sexual offender” in 2010. See Chapters 174 and 175 of the Acts of 2010. Section 11-701(q) of the Criminal Procedure Article defines a “tier III sex offender” as a person who has been convicted of a number of offenses, including Section 3-602 (“Sexual abuse of a minor”) and Section 3-307(1)-(3) (“Sexual offense in the third degree”) of the Criminal Law Article. Md.Code (2001, 2008 Repl.Vol., 2010 Cum.Supp.), § 11-701(q)(1) & (2) of the Criminal Procedure Article.

As discussed above, during the 2002 recodification of Maryland’s criminal laws, Section 3-602 (“Sexual abuse of a minor”) of the Criminal Law Article replaced the former Article 27, Section 35C (child sexual abuse), and Section 3-307(1)-(3) (“Third degree sexual offense”) of the Criminal Law Article replaced the former Article 27, Section 464B (“Third degree sexual offense”). See Chapter 26 of the Acts of 2002. Both of these newly codified offenses were accompanied by a revisor’s note stating the new sections consisted of “new language derived without substantive change from” the former sections. Id.

As a sex offender convicted both of a violation of Article 27, Section 35C and a violation of Article 27, Section 464B, Ochoa cannot escape classification as a tier III sex offender under CP Section 11-701(q)(1) & (2). In the eyes of the General Assembly, whether codified under the former Article 27 or the current Criminal Law Article, the offenses of which Ochoa was convicted — child sexual abuse and third-degree sexual offense — are the types of sex offenses that require the longest period of registration.

Thus, Ochoa’s 1998 convictions for child sexual abuse and third degree sexual offense make him a tier III sex offender under CP § ll-701(q)(l) and (2). As a sex offender subject to registration on September 30, 2010, Ochoa must comply with the registration requirements of CP § ll-707(a)(4)(iii) and register for life.

III.

Ochoa’s Assertion That Sex-Offender Registration Is Penal in Nature

As a final argument, Ochoa also insists that the sex-offender registration statute is penal and must be “strictly construed against the State.” Although Ochoa quotes at length one case in support of this proposition, he makes no effort in his brief to apply it to his own case or develop it in any meaningful way. For example, he does not argue that the alleged penal nature of the statute bars retroactive application of the 1999 law imposing a lifetime registration under the principles of due process.⁶ See Maryland Rule 8-504(a)(5) (requiring “[ajrgument in support of a party’s position”). We have held that “arguments not presented in a brief or not presented with particularity will not be considered on appeal.” Klauenberg v. State, 355 Md. 528, 552, 735 A.2d 1061, 1074 (1999) (citation omitted) (declining to address an appellant’s argument that was merely “lumped in” with another). Considering these principles, we need not address this issue.

Conclusion

We agree with the Department that the 2002 revisions left unchanged the requirement in place since 1999 that all sex offenders convicted of child sexual abuse — a group that includes Ochoa — register for life. Furthermore, even under the 2002 revisions, Ochoa was required to register for life as an offender who has committed a “sexually violent offense.” Finally, under the most recent version of the sex-offender registration statute, Ochoa continues to be required to register for life because he is a tier III sex offender who was required to register on September 30, 2010. His term of registration remains at life, as it has been since the 1999 revisions.

JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. APPELLANT TO PAY COSTS.

BELL, C.J., and GREENE, J., dissent.

1 . We shall discuss these changes in full below.

2 . In addition, the sex-offender registration section applies retroactively in other circumstances as well but those other circumstances do not apply to this case. See Md.Code (2001, 2008 Repl.Vol., 2010 Cum. Supp.), § 11-702.1 of the Criminal Procedure Article ("CP") (stating, for example, that the statute applies retroactively to sex offenders "convicted of any crime on or after October 1, 2010" if they have "a prior conviction for an offense for which registration as a sex offender is required under this subtitle”).

3 . Chapter 142 of the Acts of 1995 was codified in Article 27, Section 792 at the time of Ochoa's conviction.

4 . These revisor’s notes also mentioned several cosmetic and semantic changes, implemented for clarity and consistency and not affecting the substance of the sections. See Chapter 26 of the Acts of 2002.

5 . Both the revisions of Chapter 194 (changing the Article 27 cross-reference to a "sexually violent offense”) and Chapter 213 (changing the Article 27 cross-reference to “any violation of 3-303 through 3-307 of the Criminal Law Article”) were approved on April 25, 2002. The revisions of Chapter 194, however, went into effect on September 30, 2002, and the revisions of Chapter 213 went into effect on October 1, 2002. Although technically, by the time the revisions of Chapter 213— changing the cross-references from Article 27 to the newly codified sections of the Criminal Law Article — went into effect, CP § 11-707(2)(4)(ii) no longer contained the cross-reference to Article 27, we discuss these changes in the reverse order for the sake of clarity.

6 . This issue is one of the questions on which certiorari was granted in Doe v. Department of Public Safety & Corrections, No. 125 (2011 Term), which was argued on September 7, 2012.