In re: Nick H. , 224 Md. App. 668 ( 2015 )


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  •              REPORTED
    IN THE COURT OF SPECIAL APPEALS
    OF MARYLAND
    No. 2768
    September Term, 2010
    IN RE: NICK H.
    Krauser, C.J.,
    Woodward,
    Graeff,
    JJ.
    Opinion by Woodward, J.
    Filed: September 29, 2015
    On June 27, 2006, appellant, Nick H. (DOB: 3/29/90), entered a plea of involved to
    one count of sexual abuse of a five-year-old boy and two counts of second degree sexual
    offense against the same victim in the Circuit Court for Montgomery County, sitting as a
    juvenile court.1 The juvenile court committed appellant to the Department of Juvenile
    Services for placement in a residential treatment center. Approximately ten months later,
    appellant was released from the treatment center and placed on probation with home
    electronic monitoring.
    In 2009 and 2010, the Maryland General Assembly amended the Maryland sex
    offender registration act (“MSORA”), requiring, among other things, that certain juveniles
    convicted of various sex offenses and at significant risk of committing a sexually violent
    offense or a Tier II or Tier III sexual offense (“at significant risk of re-offending”) to register
    as sex offenders upon leaving the jurisdiction of the juvenile court. See Md. Code 2001,
    2008 Repl. Vol., 2010 Cum. Supp. § 11-704(a), (c) of the Criminal Procedure Article (“CP
    2010”).2 As a result of these statutory changes, the State requested that appellant be placed
    on the sex offender registry, and the juvenile court conducted a hearing to determine whether
    1
    On October 31, 2006, appellant proceeded by way of a not involved plea based upon
    an agreed statement of facts, and the juvenile court found him involved on a charge of sexual
    abuse of a minor as to a different victim. Although the cases were considered together for
    the purpose of review hearings monitoring Nick H.’s progress, the juvenile court’s order that
    is the subject of this instant appeal relates only to the offenses involved in the June 27, 2006
    plea.
    2
    This opinion makes several references to different versions of the Maryland sex
    offender registration act (“MSORA”), so the date of each provision will be included
    following “CP” for clarification purposes.
    appellant was at significant risk of re-offending. The court concluded, based on clear and
    convincing evidence, that appellant was at significant risk of re-offending and thus ordered
    him to register as a sex offender pursuant to MSORA.
    Appellant now challenges the juvenile court’s order. He presents two questions for
    our review, which we have rephrased:3
    1.      Did the juvenile court err in ordering appellant to register as a
    sex offender given the Court of Appeals’ holding in Doe v.
    Department of Public Safety & Correctional Services, 
    430 Md. 535
    (2013) (“Doe I”), that retroactive registration is a violation
    of the constitutional prohibition against ex post facto laws?
    2.      Was appellant entitled to specific performance of his plea
    agreement, which did not include a requirement that he register
    as a sex offender?
    3
    Appellant’s original questions, as presented in his brief, are:
    1.      Given the highly punitive and restrictive nature of Maryland’s
    newly enacted sex offender registration laws, does their
    retroactive application violate the federal constitutional ban on
    ex post facto laws and both clauses of Article 17 of the
    Maryland Declaration of Rights prohibiting ex post facto laws
    and ex post facto restrictions?
    2.      Given that the plea agreement entered into by Nick H. did not,
    and indeed could not, contemplate registering as a sex
    offender, is he entitled to specific performance of the plea
    agreement?
    Appellant submitted these questions prior to the Court of Appeals’ decision in Doe v.
    Department of Public Safety & Correctional Services, 
    430 Md. 535
    (2013) (“Doe I”), and
    did not submit any additional questions in his supplemental brief responding to the Doe I
    decision.
    2
    For the reasons set forth below, we answer both questions in the negative and affirm
    the juvenile court’s order requiring appellant to register as a sex offender.
    BACKGROUND
    On June 27, 2006, appellant pleaded involved to one count of sexual abuse of a minor
    and two counts of second degree sexual offense. The State’s proffer revealed that, while
    appellant babysat five-year-old A. H. and his two older brothers, appellant sodomized A. H.
    and forced A. H. to perform fellatio on him. Appellant initially denied sexual contact with
    the victim, but after further questioning admitted that he “had put it in [A. H.’s] mouth about
    midway down the tongue.” Appellant was fifteen years old when the abuse occurred.
    The juvenile court accepted appellant’s plea, and appellant was placed in a residential
    treatment center for about ten months. Upon release from the treatment center in June 2007,
    appellant was placed on probation, and for the following three and one-half years the juvenile
    court monitored appellant’s progress in outpatient sex offender treatment through regular
    review hearings.
    In 2009 and 2010, the Maryland General Assembly amended MSORA. One such
    amendment allowed, under specific circumstances, the juvenile court to order juvenile
    offenders who had been adjudicated involved in certain sexual offenses to register as sex
    offenders when they left the jurisdiction of the juvenile court.4 See CP 2010 §§ 11-704(a),
    4
    As a result of the 2010 amendments, a separate registry for juvenile sex offenders
    who were still under the jurisdiction of the juvenile court was also created. See Md. Code
    (continued...)
    3
    (c). In response to this change, on October 7, 2010, the State requested that the juvenile
    court order appellant to register as a sex offender.
    Based on the new law and the State’s requests, the juvenile court conducted a hearing
    on December 15 and 21, 2010, to determine whether appellant should be placed on the sex
    offender registry. The court’s decision considered only the testimony and reports presented
    at the hearing.
    In rendering its opinion, the juvenile court noted that appellant “committed sexual acts
    with [A. H.] maybe 50 times. 20 times included penetration, and there were also offenses
    that included fellatio . . . .” In addition, the court stated that, “I think maybe there was one
    event that involved [A. H.]’s brother,” and “that there was also another youngster involved
    by the name of [L. F.] . . . . [T]here was denial as to [L.F.] [ ] for a long time, for 20 months
    or so, almost two years.”
    The juvenile court reviewed the testimony and reports of the three witnesses who
    testified at the hearing. Dr. Ronald I. Weiner, an expert in adult and juvenile sex offender
    risk assessments and treatment, provided an independent evaluation of appellant, the findings
    of which were memorialized in a detailed, thirty-page risk assessment report. Dr. Weiner
    testified to his findings at the hearing. The court described Dr. Weiner as “neutral,” and thus
    determined that “his testimony and his report [were to be given] significant weight.” The
    4
    (...continued)
    (2001, 2008 Repl. Vol., 2010 Cum. Supp.), § 11-704.1 of the Criminal Procedure Article.
    This section does not apply to appellant, however, and will not be considered here.
    4
    court also heard testimony from Ta-Keisha Smith, appellant’s case manager, who the court
    also found to be “very credible.” Dr. Fred Berlin, appellant’s treating physician for his sex
    offender treatment, also testified. Because Dr. Berlin was appellant’s treating physician, he
    was not asked to perform an independent evaluation. Regarding Dr. Berlin’s opinion, the
    court stated: “I am forced to give his testimony far less weight. I, he came across in the
    Court’s opinion, as an advocate.”
    Based on the witnesses’ testimony, Dr. Weiner’s report, and “various psycho sexual
    reports” from the years appellant was supervised while in placement and on probation, the
    juvenile court found that appellant was “a highly sexualized young man.” The court
    explained that, when appellant first came into the system,
    both Dr. Weiner and Dr. Berlin reported the significant level of abuse
    and criminal activity that [appellant] was involved in, back for this
    four plus years. Dr. Weiner described it as egregious and predatory.
    ***
    [T]hey noted that [appellant] had not only this criminal history, but
    there was, I guess what the Court can fairly describe as a highly, a
    highly sexualized young man. Not just back when he was 11 to
    almost 16, but thereafter. . . . [H]e acknowledged, I guess, maybe 20
    sexual partners. I’m not talking about young children, I’m talking
    about peers. He acknowledged having sex at least three times with
    someone who was drunk, masturbating in a public place, fondling the
    dog’s genitals, phone sex, internet sex with female peers. So that we,
    and someone who, by his words, by [appellant’s] own words, was
    perhaps addicted to pornography. So that’s the presentation when
    [appellant] came into the system. And it was also the presentation, at
    least by history, that Dr. Weiner and Dr. Berlin were, and are working
    with.
    5
    The juvenile court expressed concern that appellant’s behavior over the four and one-
    half years that he was monitored by the juvenile court raised questions about his honesty.
    The court stated that
    [appellant] has demonstrated some challenging behavior throughout
    the life of this case. Behavior that has involved deception, behavior
    that has involved avoidance, behavior that has involved downright
    lying . . . .
    ***
    There seems to be a pattern in [appellant’s] behavior
    throughout the life of this case of denying, avoiding,—avoiding,
    denying, lying, polygraph, or some type of confrontation, admission,
    then denying again, and then admitting again.
    The juvenile court pointed to numerous examples of appellant’s deceptive behavior.
    Principal among them was that appellant did not “until very recently . . . reveal to anybody
    that he had been having a sexual relationship with a young girl when he was very young. He
    was maybe eight and the young girl was, I think, 11.” The court found it “startling and
    troubling” that “someone that has been under this intense level of scrutiny in this particular
    field of psycho social treatment, to not disclose that for that long.”
    In addition to appellant hiding his sexual relationship at the age of eight, the juvenile
    court also described numerous instances of appellant lying to his parents and to Dr. Berlin.
    Appellant lied about his part-time employment, and denied being aroused by child
    pornography despite admitting that images of children, including an image of A. H., came
    to his mind while masturbating. The court stated that “it seems clear that [appellant] has, in
    6
    the past, had an addictive, an addiction to pornography and then that became an area of
    deception for him.” That deception became apparent when appellant told Dr. Berlin in 2008
    that he was no longer accessing pornography, but later stated that his use of pornography
    ended in late 2009.
    Appellant also denied using illegal drugs until he tested positive in a random
    urinalysis. Despite the positive drug test, appellant continued to lie about the extent of his
    drug use, suggesting to his case manager that he had only used on his birthday, when in fact
    he had used regularly for a period of seven months. The juvenile court found this alarming,
    given that the drug use occurred “[w]hile on probation, and while under the strictest scrutiny
    by the Court.” Although the court recognized that there were “some unfortunate lapses in
    this case,” namely that appellant was not subject to random urine testing for three years of
    his probation, the court was particularly concerned that appellant took advantage of this lapse
    to regularly use drugs.
    Because of the extent of appellant’s deception, the juvenile court questioned
    appellant’s seemingly good decisions. In 2008, appellant voluntarily agreed to take depo
    lupron, a drug that diminishes testosterone levels. The court stated that
    [i]t seems to be both key to Dr. Weiner and Dr. Berlin that he stay on
    this medication. It’s also key to the Court that he stay on this
    medication. The problem with the Court is, the Court is going to lose
    jurisdiction in a few months, in March.
    ***
    And the question is, will he stay on it? . . . He went on the drug
    7
    voluntarily, which I think shows some good judgment on his part.
    Although, that has some issues around it as to why he did. He told Dr.
    Weiner—no, Dr. Berlin, that he was concerned as to his penis size.
    He was concerned as to the medication’s affect on his weight. And
    he thought that it maybe would look good to the Court if he went on
    this medication.
    Thus the court concluded that it had “no way of assuring [ ] that the odds are good that he’s
    going to stay on [depo lupron].”
    The juvenile court also pointed to Dr. Weiner’s determination that “as a result of his
    testing, . . . there was evidence that [appellant] did not either acknowledge or understand the
    notion of his sexual, any sexual deviant pattern on his part, and his sexual acting out, which
    is concerning.” Dr. Weiner “thought that all of the treatment that [appellant] had[] had was
    appropriate. He thought that the evaluations that he had[] were worthy and comprehensive.
    But at the end of it all [Dr. Weiner] says something to the effect of, I don’t know whether
    [appellant] really has internalized this.” The court pointed out as evidence of appellant’s
    failure to internalize therapy that “at some place in this continuum of disclosure, [appellant]
    talked about grooming another young girl for possible molestation and then backed off of
    that.”
    These issues, plus appellant’s deceptive behavior, led the court to state that “what we
    have in this case is a very disturbing confluence between what we do know and what we
    don’t know.” This confluence caused the court to worry about appellant’s future risk of re-
    offending:
    So in terms of what we know and what we do not, Dr. Weiner
    8
    was quite clear when he was talking about risk, that he saw a major
    issue in the fact that, as he expressed it, he had no way of assessing or
    determining what [appellant’s] sexual arousal patterns are because
    there’s no objective tools. There’s no objective tools that were used
    to determine this. This is also very troubling because [appellant] has
    been in therapy for such a long time and the issue has been child
    molestation. And the issue has been deviant sexual behavior. . . .
    [Appellant] has denied that he, he has denied that he has any
    sexual, deviant sexual arousal patterns as it revolves around children.
    But he’s denied a lot of things. He denied using drugs when he was
    using them. He denied alcohol when he, you know, has been
    drinking—well, not lately, hopefully, since he was 11 or 12. He has
    denied pornography over time, when he was with Dr. Berlin.
    The juvenile court agreed with Dr. Weiner’s assessment that appellant presents “an
    unspecified risk,” and that “what we don’t know” is “very important.” Dr. Weiner suggested
    that it was the healthcare community’s duty to monitor appellant to prevent a relapse, but the
    court observed that appellant would no longer be monitored after he left the jurisdiction of
    the juvenile court. According to the court, “[h]e can do whatever he wants when he’s 21.
    He doesn’t have to live [at] home. He can take medicines or not. He can live at his
    parents[’ home]. He can live somewhere else.”
    The juvenile court concluded that placing appellant on the sex offender registry would
    be the best option for continuing treatment of appellant and ensuring the safety of the
    community:
    We must maintain leverage in the treatment. We can’t leave it up to
    him. That is what Dr. Weiner said, he, meaning [appellant], has a lot
    to overcome in terms of his offenses. . . .
    And Dr. Berlin’s testimony was: “He said he would continue
    9
    [treatment], and I believe him.”
    Putting someone on a sex registry, it is what it is. No one
    pretends that it’s a direct treatment. It is community safety. It is
    something that the legislature has seen fit to place into our statutes.
    I don’t rule out the possibility, however, that it may have some
    therapeutic value. Just the fact that it is in place, may have some type
    of leverage on [appellant] so that he understands that, [although] not
    under this Court’s jurisdiction, there is a continuing interest in him
    and his well being, and in the community’s well being. That, in and
    of itself, may influence him to continue with his treatment.
    The juvenile court also indicated that appellant would have the opportunity to be
    removed from the registry if he could prove to the court that he was no longer at significant
    risk of re-offending:
    [T]he statute includes an opportunity for someone on the registry to
    come back before the Court within the five years to modify placement
    on the registry. If [appellant] is serious about his treatment and he
    continues in his treatment; and perhaps at some future date, I don’t
    know what it is, whether it’s six months, or whether it’s two years, or
    something else entirely, coming off of the depo [lupron]; and he
    demonstrates pro social activities; and there is perhaps some objective
    evidence of non-deviant sexual arousal patterns around children; and
    we have some solid evidence as to what we’re looking at, he has the
    opportunity to come before the Court within this five year period. I
    think that is huge leverage in this case.
    Thus the juvenile court found “by clear and convincing evidence that [appellant], this
    young man, is at significant risk [of re-offending] as indicated in the statute,” and, as a result,
    by Order dated December 27, 2010, placed appellant on the sex offender registry.5
    5
    The juvenile court issued its Order on December 27, 2010, but gave its reasons for
    (continued...)
    10
    Appellant timely filed this appeal challenging the juvenile court’s December 27, 2010
    Order. Additional facts will be set forth below as necessary to resolve the questions
    presented.
    STANDARD OF REVIEW
    Maryland Rule 8-131(c) governs the standard of review in juvenile matters:
    Action tried without a jury. When an action has been tried without
    a jury, the appellate court will review the case on both the law and the
    evidence. It will not set aside the judgment of the trial court on the
    evidence unless clearly erroneous, and will give due regard to the
    opportunity of the trial court to judge the credibility of the witnesses.
    Whether the circuit court erred in ordering appellant to register as a sex offender is
    a question arising under the ex post facto clauses of the federal and state constitutions.
    “[W]here an order involves an interpretation and application of Maryland constitutional,
    statutory or case law, [the appellate court] must determine whether the trial court’s
    conclusions are ‘legally correct’ under a de novo standard of review.” Schisler v. State, 
    394 Md. 519
    , 535 (2006) (quoting Garfink v. Cloisters at Charles, Inc., 
    392 Md. 374
    , 383
    (2006)).
    DISCUSSION
    I. EX POST FACTO CHALLENGE
    (A) Doe I
    5
    (...continued)
    that Order on the record in open court on January 13, 2011.
    11
    In March 2013, the Maryland Court of Appeals decided Doe I.               This Court
    summarized the facts and holding of Doe I in Quispe del Pino v. Maryland Department of
    Public Safety & Correctional Services, 
    222 Md. App. 44
    (2015):
    The pertinent facts in Doe I are as follows:
    In 2006, Doe pled guilty to and was convicted in the
    Circuit Court for Washington County of a single count
    of child sexual abuse arising out of an incident
    involving inappropriate contact with a thirteen-year-old
    student that occurred during the 1983-84 school year
    when Doe was a junior high school teacher. Doe was
    sentenced to ten years incarceration, with all but four
    and one half years suspended, and three years
    supervised probation upon his release. Although Doe’s
    plea agreement did not address registration as a sex
    offender as one of the conditions of probation, Doe was
    ordered at sentencing to “register as a child sex
    offender.” He was also ordered to pay a $500 fine.
    Following his sentencing, Doe filed a Motion to Correct
    an Illegal Sentence challenging both the fine and the
    requirement that he register as a child sex offender. The
    Circuit Court agreed with Doe and issued an order
    striking the fine and the registration requirement. Doe
    was released from prison in December 2008. On
    October 1, 2009, Doe’s probation officer directed him
    to register as a child sex offender. Doe maintained that
    he did not agree with the requirement, but, against the
    advice of counsel, he registered as a child sex offender
    in early October 2009.
    The requirement that Doe register as a sex offender was a
    result of the 2009 amendment to MSORA retroactively requiring
    offenders who were convicted on or after October 1, 1995, but
    committed a sexual offense before that date, to register for the first
    time. In October 2009, Doe brought a declaratory judgment suit in the
    circuit court, seeking an order that he was not required to register as
    a sex offender. Doe argued that a registration requirement would
    12
    make his plea invalid as involuntary, because he was not informed
    that he would have to register as a sex offender when he entered into
    the plea agreement in 2006. The State argued that the requirement did
    not violate the prohibition against ex post facto laws. The trial court
    agreed with the State and ordered that Doe “shall not be removed
    from the sex offender registry.”
    After this Court affirmed the circuit court, the Court of Appeals
    granted certiorari and reversed our decision. In a plurality opinion,
    the Court of Appeals held that “requiring [Doe] 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.” The three-judge plurality explained that “in many
    contexts,” the Maryland Declaration of Rights offers broader
    protections than the United States Constitution. The plurality further
    determined that ex post facto claims under Article 17 should be
    analyzed by using the “disadvantage” standard, under which “any law
    passed after the commission of an offense which . . . in relation to that
    offense, or its consequences, alters the situation of a party to his [or
    her] disadvantage” violates Article 17.
    Specifically, under the disadvantage standard, “Article 17
    prohibits the retroactive application of laws that have the effect on an
    offender that is the equivalent of imposing a new criminal sanction or
    punishment.” The plurality determined that requiring Doe to register
    had “essentially the same effect” as placing him on probation, that
    “probation is a form of a criminal sanction,” and that “applying the
    statute to [Doe] effectively imposes on him an additional criminal
    sanction” for a crime committed in the 1980s. The plurality also
    concluded that the dissemination of Doe’s information pursuant to
    MSORA was “tantamount to the historical punishment of shaming,”
    and thus imposed an additional sanction for Doe’s crime. Therefore,
    according to the plurality, the retroactive application of MSORA to
    Doe, which had the effect of imposing the additional sanction of
    probation and shaming, violated the ex post facto prohibition
    contained in Article 17 of the Maryland Declaration of Rights.
    Judge McDonald (joined by Judge Adkins) concurred with the
    plurality’s conclusion that the statute violated Article 17, but, in
    contrast to the plurality, read Article 17 in pari materia with Article
    13
    I, § 10 of the United States Constitution. Judge McDonald’s
    concurrence stated further that “the cumulative effect of [the] 2009
    and 2010 amendments of the State’s sex offender registration law
    took that law across the line from civil regulation to an element of the
    punishment of offenders.” Although his concurrence did not
    expressly state the test that was used, both the language of the
    concurrence and the two law review articles cited therein lead us to
    conclude that Judge McDonald analyzed the issue under the
    “intent-effects test.”
    The United States Supreme               Court    explained    the
    “intent-effects” test in Smith v. Doe:
    We must “ascertain whether the legislature meant the
    statute to establish ‘civil’ proceedings.” If the intention
    of the legislature was to impose punishment, that ends
    the inquiry. If, however, the intention was to enact a
    regulatory scheme that is civil and nonpunitive, we
    must further examine whether the statutory scheme is
    “‘so punitive either in purpose or effect as to negate
    [the State’s] intention’ to deem it ‘civil.’”
    Stated another way, the “intent-effects” test requires a reviewing court
    to engage in a two-part inquiry: “first, the court must consider the
    legislative intent of the statute; second, even if the statute’s stated
    purpose is non-punitive, the court must assess whether its effect
    overrides the legislative purpose to render the statute punitive.”
    Therefore, by declaring that the 2009 and 2010 amendments “took
    that law across the line from civil regulation to an element of the
    punishment of offenders,” Judge McDonald’s concurring opinion
    found a violation of the State and federal ex post facto clauses under
    the “intent-effects” test.
    Judge Harrell, writing separately, concurred in the judgment
    that Doe was entitled to relief, because his 2006 plea agreement “d[id]
    not indicate that sex offender registration was a term” of the
    agreement. Judge Harrell, however, would have denied Doe’s ex post
    facto claims under the “intent-effects” test established in Smith v.
    Doe. Lastly, Judge Barbera (now Chief Judge) dissented and, using
    the “intent-effects” test, would have upheld the 2009 and 2010
    14
    amendments to MSORA under both the State and federal
    constitutions.
    Although the Court ultimately held that “the retroactive
    application to Doe of Maryland’s sex offender registration statute
    violated Article 17 of the Maryland Declaration of Rights,” the
    divided Court did not reach a holding on whether to apply the
    “disadvantage” standard or the “intent-effects” test to future ex post
    facto challenges to MSORA.
    Quispe del 
    Pino, 222 Md. App. at 52-56
    (italics and alterations in original) (citations
    omitted).
    Because Doe I is a plurality decision, we employ the Marks Rule to determine the
    Court’s holding: “‘[W]hen a fragmented Court decides a case and no single rationale
    explaining the result enjoys the assent of [four judges], the holding of the court may be
    viewed as that position taken by those Members who concurred in the judgment on the
    narrowest grounds.’” Wilkerson v. State, 
    420 Md. 573
    , 594 (2011) (quoting Marks v. United
    States, 
    430 U.S. 188
    , 193 (1977)). Thus the Marks Rule requires us to determine the
    common thread running through the plurality and concurring opinions of Doe I. See, e.g.,
    Derr v. State, 
    434 Md. 88
    , 115 (2013) (concluding that, under the Marks Rule, the narrowest
    holding of the Supreme Court’s decision in Williams v. Illinois, 
    132 S. Ct. 2221
    (2012), was
    the position representing the common point of agreement between the plurality and
    concurring opinions), cert. denied, 
    134 S. Ct. 2723
    (2014).
    In Doe I, the decision that MSORA violates the Article 17 ban on ex post facto laws
    is the common denominator representing the position taken by five judges who agreed that
    15
    Doe should be granted relief.6 
    See 430 Md. at 568
    , 578. Because the Marks Rule directs us
    to the narrowest ground common to the plurality and the concurrence, Judge McDonald’s
    interpretation of Article 17 as read in pari materia with the less expansive federal ex post
    facto clause represents the “position taken by those Members who concurred in the judgment
    on the narrowest grounds.”      See 
    Wilkerson, 420 Md. at 594
    (concluding that Justice
    Kennedy’s concurrence represented the narrowest opinion of the Supreme Court in Missouri
    v. Seibert, 
    542 U.S. 600
    (2004)).
    We recognize, however, that in reaching its holding in Doe I, three members of the
    Court applied the disadvantage test (the plurality opinion), while only two applied the intent-
    effects test (Judge McDonald’s concurrence). See Doe 
    I, 430 Md. at 568
    , 578. Thus neither
    test commanded a majority of the Court. Nevertheless, we decide that the intent-effects test
    is the proper test to determine whether MSORA violates Article 17 as applied to appellant.
    The Court of Appeals used the intent-effects test in Young v. State to review a due
    process challenge to MSORA. 
    370 Md. 686
    , 711 (2002). The Court based its decision to
    use this test on two Supreme Court cases that employed the intent-effects test to determine
    6
    Although Judge Harrell concurred in Doe I, his opinion is not included in a Marks
    analysis, because his reasoning, that Doe’s plea agreement precluded any obligation to
    register, is not part of the common point of agreement between the majority of judges. See
    Doe 
    I, 430 Md. at 576-77
    (Harrell, J., concurring); see also A.T. Massey Coal Co., Inc. v.
    Massanari, 
    305 F.3d 226
    , 236 (4th Cir. 2002) (“The Marks rule does not apply . . . unless the
    narrowest opinion represents a common denominator of the Court’s reasoning and embodies
    a position implicitly approved by at least [four judges] who support the judgment.” (citations
    and internal quotation marks omitted)), cert. denied, 
    538 U.S. 1012
    (2003).
    16
    whether civil regulations connected to criminal activity could be construed as punishment
    for double jeopardy and ex post facto purposes. 
    Id. at 711-12
    & n.11 (referencing United
    States v. Ursery, 
    518 U.S. 267
    (1996) (double jeopardy claim), and Kansas v. Hendricks, 
    521 U.S. 346
    (1997) (double jeopardy and ex post facto claims)). Although the plurality opinion
    in Doe I points to various Maryland cases that have used the disadvantage test in the ex post
    facto context since the Young decision, Young is the only decision in this jurisdiction prior
    to Doe I that considered the constitutionality of MSORA specifically. See Doe 
    I, 430 Md. at 553-55
    (plurality opinion). Young is thus the most relevant precedent available to us in
    determining which test to use in the case sub judice.
    We note, however, that the precedent set in Young extends only to the test to be
    applied. The Young decision interpreted the 2000 version of MSORA, prior to the enactment
    of the 2009 and 2010 amendments. 
    Young, 370 Md. at 690
    . As Judge McDonald pointed
    out in his concurrence in Doe I, the sex offender registration scheme has changed
    significantly in recent years, and thus an analysis of MSORA under the intent-effects test has
    changed dramatically. See Doe 
    I, 430 Md. at 578
    (McDonald, J., concurring). With this
    point in mind, we turn to the application of MSORA to appellant under Doe I.
    (B) Retroactive Application of MSORA to Appellant
    “To prevail in an ex post facto claim, [appellant] must first show that the law that [he
    is] challenging applies retroactively to conduct that was completed before the enactment of
    the law in question . . . .” Dep’t of Pub. Safety & Corr. Servs. v. Demby, 
    390 Md. 580
    , 593
    17
    n.10 (2006) (emphasis omitted). In the case sub judice, appellant entered a plea of involved
    in June of 2006 to one count of sexual abuse of a minor and two counts of second degree
    sexual offense. At the time of his plea in 2006, appellant was sixteen years old and, because
    he was a juvenile, was not required to register as a sex offender in Maryland. See CP 2005
    § 11-704 (lacking a juvenile sex offender registry and not requiring that former juvenile
    offenders register on the adult sex offender registry upon leaving the jurisdiction of the
    juvenile court).
    In 2009 and 2010, the Maryland General Assembly amended MSORA to require
    certain juvenile offenders to register as sex offenders once they left the jurisdiction of the
    juvenile court. See CP 2010 §11-704(c).7 CP 2010 §11-704(c) requires:
    (c)     Registration by person who was adjudicated delinquent at time
    of act.—(1) A person who has been adjudicated delinquent
    for an act that, if committed by an adult, would constitute
    a violation of § 3-303, § 3-304, § 3-305, or § 3-306 of the
    Criminal Law Article, or § 3-307(a)(1) or (2) or
    § 3-308(b)(1) of the Criminal Law Article involving conduct
    described in § 3-301(f)(2) of the Criminal Law Article, shall
    register with the person’s supervising authority if:
    (i)    the person was a minor who was at least 13
    7
    The 2009 amendment first provided for the possibility that juvenile offenders register
    as sex offenders once they left the jurisdiction of the juvenile court. See CP 2009
    § 11-704(c). Although the phrasing of the registration requirement for juveniles aging out
    of the juvenile system changed in 2010, the content did not. Compare CP 2010 § 11-704(c)
    with CP 2009 § 11-704(c). Because CP 2010 § 11-704(c) is the current statement of the law
    and was the version in effect at the time the State requested that appellant be placed on the
    sex offender registry, we refer to it here to demonstrate the requirements of the statute as they
    applied to appellant. See CP 2014 § 11-704(c); Effect of amendments, CP 2010 § 11-704(c).
    18
    years old at the time the delinquent act was
    committed;
    (ii)    the State’s Attorney or the Department of
    Juvenile Services requests that the person be
    required to register;
    (iii)   90 days prior to the time the juvenile court’s
    jurisdiction over the person terminates under
    § 3-8A-07 of the Courts Article, the court, after
    a hearing, determines under a clear and
    convincing evidence standard that the person
    is at significant risk of committing a sexually
    violent offense or an offense for which
    registration as a tier II sex offender or tier III
    sex offender is required; and
    (iv)    the person is at least 18 years old.
    (Emphasis added).
    The framework of CP 2010 § 11-704(c) clearly applies to appellant.           He was
    adjudicated delinquent of second degree sexual offense, which is prohibited by Section 3-306
    of the Criminal Law Article;8 he was over thirteen years old at the time of the offense; the
    State requested that appellant be required to register as a sex offender; the juvenile court
    determined by clear and convincing evidence that appellant was at significant risk of re-
    offending; and appellant was over eighteen years old when his registration began.
    The 2010 amendments to MSORA also state that “this subtitle shall be applied
    8
    Appellant also entered a plea of involved to one count of sexual abuse of a minor in
    violation of Section 3-602 of the Criminal Law Article. A violation of Section 3-602 is not
    listed in CP 2010 § 11-704(c)(1) as a basis for requiring the registration of a juvenile who
    violated that section.
    19
    retroactively to include a person who . . . is under the custody or supervision of a supervising
    authority on October 1, 2010.” CP 2010 § 11-702.1(a)(1). “Supervising authority” is defined
    as, among other entities, “the Secretary of Juvenile Services, if the registrant was a minor at
    the time the act was committed for which registration is required.” CP 2010 § 11-701(n)(10).
    On October 1, 2010, appellant was on probation under the supervision of the Department of
    Juvenile Services, as well as under the juvenile court’s jurisdiction. While on probation,
    appellant was subject to ongoing review hearings before the juvenile court and active home
    electronic monitoring; he was required to attend various treatment clinics, to submit to
    frequent and random drug tests, and to meet regularly with his juvenile probation officer.
    Appellant was therefore clearly “under the custody or supervision of a supervising authority
    on October 1, 2010.” CP 2010 § 11-702.1(a)(1).
    Because the 2010 amendments apply retroactively, and appellant was subject to the
    requirements of CP 2010 § 11-704(c) based on conduct that occurred in 2005, prior to the
    2010 amendments, we conclude that appellant has satisfied the first step in an ex post facto
    analysis. See 
    Demby, 390 Md. at 593
    n.10. We next turn to whether the application of CP
    2010 § 11-704(c) to appellant violates the prohibition against ex post facto laws in light of
    Doe I.
    (C) Intent-Effects Test
    Appellant contends that he is entitled to relief based on the Doe I Court’s conclusion
    that the retroactive application of MSORA is unlawful. Arguing that Doe and appellant were
    20
    both subject to “punishment” under MSORA, appellant contends that nothing distinguishes
    his case from the Doe I plurality and Judge McDonald’s concurring opinion. Although we
    note some similarities in the two cases, we conclude that the retroactive application of
    MSORA as applied to appellant is not “punishment” under the intent-effects test, and
    therefore is not a violation of the prohibition against ex post facto laws contained in Article
    17. We shall explain.
    1. Legislative Intent
    As stated above, to determine whether MSORA violates the constitutional prohibition
    against ex post facto laws, we apply the intent-effects test. The intent-effects test is a
    two-step process:
    We must ascertain whether the legislature meant the statute to
    establish civil proceedings. If the intention of the legislature was to
    impose punishment, that ends the inquiry. If, however, the intention
    was to enact a regulatory scheme that is civil and nonpunitive, we
    must further examine whether the statutory scheme is so punitive
    either in purpose or effect as to negate [the State’s] intention to deem
    it civil.
    Smith v. Doe, 
    538 U.S. 84
    , 92 (2003) (alteration in original) (citations and internal quotation
    marks omitted). “[W]here a legislative restriction is an incident of the State’s power to
    protect the health and safety of its citizens, it will be considered as evidencing an intent to
    exercise that regulatory power, and not a purpose to add to the punishment.” 
    Id. at 93-94
    (citations and internal quotation marks omitted).
    Although no statement of purpose is expressly set forth in MSORA, its history and
    21
    language suggest that it is not intended to be punitive. In Young, the Court of Appeals
    discussed the legislative purpose of a previous version of MSORA, then set forth in former
    Article 27, § 792:
    As enacted, § 792 contained no express statement of purpose.
    Although it was placed within Article 27 and recodified in the
    Criminal Procedure Article, its location within the criminal procedure
    laws does not necessarily indicate an intent on the part of the General
    Assembly to punish sex offenders. . . . Therefore, in examining the
    purpose of the statute, we look primarily to the plain language. With
    respect to the determination of legislative intent, we conclude that the
    plain language and overall design of § 792 clearly indicate that it was
    not intended as punishment, but rather was intended as a regulatory
    requirement aimed at protection of the public. There is no indication
    in the statutory scheme that the General Assembly intended
    registration or notification as a device to punish convicted sex
    
    offenders. 370 Md. at 712
    (italics in original). When the requirement of registration for certain juvenile
    sex offenders was added to MSORA by the 2009 amendment, there was nothing in the
    language of that provision, nor in its legislative history, to indicate a legislative intent
    different from that which was articulated by the Court of Appeals in Young. See 2009 Md.
    Laws, Chap. 524. We therefore conclude that CP 2010 § 11-704(c) is intended to be civil,
    rather than penal.
    2. Punishment or Non-Punitive Effect
    The intent-effects test next directs us to determine whether the statute’s effect
    “overrides the legislative purpose to render the statute punitive.” Doe 
    I, 430 Md. at 570
    (Harrell, J., concurring) (footnote omitted). Factors derived from the Supreme Court’s
    22
    decision in Kennedy v. Mendoza-Martinez assist us in analyzing whether an otherwise
    regulatory statute becomes punitive. 
    372 U.S. 144
    (1963). These factors include, but are not
    limited to:
    [1] [w]hether 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 an alternative purpose
    to which it may rationally be connected is assignable for it, and [7]
    whether it appears excessive in relation to the alternative purpose
    assigned . . . .
    
    Id. at 168-69
    (footnotes omitted). In Doe I, Judge McDonald concluded that “the cumulative
    effect of [the] 2009 and 2010 amendments . . . took that law across the line from civil
    regulation to an element of the punishment of 
    offenders.” 430 Md. at 578
    (McDonald, J.,
    concurring). The question before us is whether the cumulative effect of the MSORA
    amendments regarding juvenile sex offenders codified in CP 2010 § 11-704(c) has caused
    the statute to cross the line drawn in Doe I. We conclude that the statute has not crossed such
    line.
    (a) Affirmative disability or restraint
    We turn first to whether MSORA involves an affirmative disability or restraint.
    Appellant argues that many of the registration requirements outlined in Doe I are also
    applicable to him, including:
    [R]eport[ing] in person to law enforcement every three months,
    giv[ing] notice to law enforcement of his address and any changes of
    23
    address, and notify[ing] 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 address; information about his
    conviction; his social security 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. Additionally, other than to vote,
    [appellant] is prohibited from entering onto real property that is used
    as a school or a family child care center . . . without first obtaining
    permission. If [appellant] fails to comply with these requirements, he
    faces terms of imprisonment, depending on the violation, of up to
    three or five years.
    Doe 
    I, 430 Md. at 562
    (plurality opinion) (citations omitted).
    The State counters that, despite these significant requirements, appellant’s situation
    is distinguishable from Doe I. As the State correctly points out, appellant’s “period of
    registration is much less than that required of Tier III offenders who committed similar
    offenses after they reached the age of majority.”
    Appellant was adjudicated delinquent by the juvenile court for committing two counts
    of second degree sexual offense. Because of appellant’s adjudication as a delinquent,
    appellant’s registration term is limited to five years. See CP 2010 § 11-707(a)(4)(iv). If
    appellant had been charged with second degree sexual offense as an adult, however, he
    would have been categorized as a Tier III offender and thus would have been subject to a
    lifelong registration requirement. See CP 2010 §§ 11-701(q)(1)(ii), -707(a)(4)(iii).
    Both Doe and appellant experienced an increase in the length of their respective
    registration requirements as a result of the 2009 and 2010 MSORA amendments. Doe’s
    24
    registration requirements, which initially did not exist, automatically increased to lifelong
    registration.   Doe 
    I, 430 Md. at 540
    (plurality opinion).             Appellant’s registration
    requirements, which initially did not exist, increased to a five-year period of registration after
    the juvenile court determined that appellant was at significant risk of re-offending, but also
    allowed appellant to petition the court to reduce his registration term. See CP 2010
    § 11-707(a)(4)(iv). The difference between the length of Doe’s and appellant’s registration
    terms is stark, and only a former juvenile sex offender has the opportunity to be removed
    from the sex offender registry prior to the expiration of his registration term.9 Nevertheless,
    because any period of registration imposed on appellant constitutes an affirmative disability,
    and the ex post facto prohibition applies to any increase in punishment or sanction, see
    Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), we conclude that the first factor weighs in
    favor of appellant.
    (b) Historical perspective
    Second, we consider whether the regulation has been regarded historically as
    punishment. As the plurality in Doe I noted, “requiring [Doe] to register has essentially the
    same effect on his life as placing him on probation. It is well-settled in this State that
    9
    A juvenile sex offender who has been required to register as a sex offender under
    CP 2010 § 11-704(c)(1) may file a petition for a reduction in the term of registration, and the
    juvenile court may reduce such term. See CP 2010 § 11-707(a)(4)(iv). The statute, however,
    does not specify what standard the juvenile court is to employ in deciding whether to grant
    or deny a reduction in the term of registration, nor what burden of proof the registrant must
    satisfy to obtain such reduction. See 
    id. 25 probation
    is a form of a criminal 
    sanction.” 430 Md. at 561
    (plurality opinion). In addition,
    according to the plurality, “the dissemination of [Doe’s] information . . . is tantamount to the
    historical punishment of shaming.” 
    Id. at 564
    (plurality opinion). Appellant’s status as a Tier
    III sex offender, a color photo, his current home and employment addresses, his vehicle
    description and information, his physical features, and information about his offenses are all
    published on the Department of Public Safety and Correctional Services’ website for the
    public to see.    See Dep’t of Pub. Safety & Corr. Servs., Maryland SOR Search,
    http://www.dpscs.state.md.us/sorSearch/search.do (last visited Sept. 9, 2015). As appellant
    points out, “[t]he purpose of keeping [juvenile] records confidential is to further the
    rehabilitation of young offenders by relieving them of the enduring stigma of their
    misconduct.”     See District of Columbia v. Cooper, 
    483 A.2d 317
    , 323 (D.C. 1984).
    Publishing information about former juvenile sex offenders on a public website hardly
    provides confidentiality, and instead creates the “enduring stigma of their misconduct.” 
    Id. Thus, in
    light of the plurality opinion in Doe I that the requirement of registration is similar
    to probation and the dissemination of offender information resembles shaming, the second
    factor weighs in favor of appellant.
    (c) Scienter
    Next, we turn to whether the statute “comes into play only on a finding of scienter.”
    
    Mendoza-Martinez, 372 U.S. at 168
    . CP 2010 § 11-704(c)(1)(iii) requires the juvenile court
    to determine, by clear and convincing evidence, that the juvenile sex offender “is at
    26
    significant risk of committing a sexually violent offense or an offense for which registration
    as a tier II sex offender or tier III sex offender is required” before ordering the offender to
    register. A determination that the juvenile sex offender is at significant risk of re-offending
    logically implies that the juvenile court must find a significant risk of future criminal intent
    on the part of the juvenile offender. Such finding of scienter differentiates CP 2010
    § 11-704(c) from the adult registration requirements, which “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
    . Because “[t]he existence of a scienter requirement is customarily an
    important element in distinguishing criminal from civil statutes,” we determine that this
    factor also weighs in favor of appellant. See Kansas v. Hendricks, 
    521 U.S. 346
    , 362 (1997).
    (d) Promotion of traditional aims of punishment
    The fourth factor asks us to consider “whether [MSORA’s] operation will promote
    the traditional aims of punishment—retribution and deterrence.” 
    Mendoza-Martinez, 372 U.S. at 168
    . Because MSORA is intended to be only a civil regulation, we cannot conclude
    that the statute promotes retribution. See 
    Smith, 538 U.S. at 93-94
    (“[W]here a legislative
    restriction is an incident of the State’s power to protect the health and safety of its citizens,
    it will be considered as evidencing an intent to exercise that regulatory power, and not a
    purpose to add to the punishment.” (citations and internal quotation marks omitted)).
    Although not retributive, MSORA is intended to deter the commission of future sex
    crimes. See 
    Smith, 538 U.S. at 102
    ; 
    Young, 370 Md. at 712
    . MSORA’s requirements of
    27
    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. See 
    Young, 370 Md. at 712
    . Moreover, as noted above, 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.10 See Doe 
    I, 430 Md. at 564
    (plurality opinion). A
    deterrent purpose, however, does not alone render the statute punitive. See 
    Smith, 538 U.S. at 102
    (“To hold that the mere presence of a deterrent purpose renders such sanctions
    criminal . . . would severely undermine the Government’s ability to engage in effective
    regulation.” (alterations in original) (citations and internal quotation marks omitted)); 
    Young, 370 Md. at 715
    (“Even an obvious deterrent purpose, however, does not make the law
    punitive, in as much as deterrence can serve both civil and criminal goals.”). We also note
    that MSORA promotes public safety as much as it operates to deter potential offenders from
    committing sexual crimes. See 
    Young, 370 Md. at 712
    . Because MSORA has both civil and
    deterrent purposes, but certainly is not intended to promote retribution, we conclude that the
    fourth factor is neutral.
    10
    New research, however, suggests that sex offender statutes may not have the
    deterrent effect that the legislatures once hoped. See, e.g., Amanda Y. Agan, Sex Offender
    Registries: Fear Without Function?, 54 J.L. & Econ. 207, 208 (2011) (explaining that
    statistical evidence does not suggest sex offender registration statutes are deterring past or
    future offenders); Catherine L. Carpenter, Legislative Epidemics: A Cautionary Tale of
    Criminal Laws that Have Swept the Country, 58 Buff. L. Rev. 1, 56-59 (2010) (same).
    28
    (e) Criminal nature of the behavior
    Next, we consider whether the behavior to which MSORA applies is criminal.
    Although sex offender registration has a clear prerequisite of having committed an
    enumerated criminal sexual offense, the State suggests that, in the case of juvenile sex
    offenders, the registration requirement does not result from a criminal conviction, but instead
    from the juvenile court’s registration order. According to the State, “[i]n contrast to the
    consequences attendant to criminal convictions, the purposes of the Juvenile Causes Act are
    not penal and juvenile delinquency proceedings in Maryland are conducted under a separate
    system of law, civil in nature.” Appellant responds that, although juvenile cases are
    technically civil, not criminal, the nature of a juvenile proceeding does not affect the instant
    case.
    We agree with appellant and conclude that the origin of the case sub judice in a
    juvenile, rather than in criminal court, is “a distinction without a difference.” In re Antonette
    H., 
    200 Md. App. 341
    , 344 n.1 (2011). “[O]nly a prosecutor can initiate juvenile delinquency
    proceedings [and the] proceeding is a prosecution in lieu of criminal proceedings.” In re
    Anthony W., 
    388 Md. 251
    , 266 (2005) (citations omitted). In addition, Maryland courts have
    recognized that juveniles in delinquency proceedings are afforded many of the same
    constitutional and common law rights as adults in criminal proceedings. See, e.g., In re
    Thomas J., 
    372 Md. 50
    , 57-59 (2002). Therefore, we conclude that, regardless of whether
    the offender is a juvenile or an adult, the behavior to which MSORA applies is criminal in
    29
    nature.
    However, “this factor alone is not sufficient to render a regulatory statute punitive.”
    
    Young, 370 Md. at 714
    ; see also 
    Hendricks, 521 U.S. at 362
    . The Court of Appeals has
    stated:
    There are many occasions when legislatures attach both criminal and
    civil sanctions to the same act or omission. The fact that the statute
    is triggered by a criminal conviction does not undermine the
    Legislature’s intent to create a sex offender registry to aid in the civil
    purpose . . . . Thus, although the connection between sex offender
    registration and past criminal behavior is clear, we accord only limited
    weight to this factor in light of the equally strong connection between
    registration and legitimate civil purposes.
    
    Young, 370 Md. at 714
    . Although MSORA applies to past criminal conduct in the case of
    a juvenile sex offender placed on the registry, the legislative intent to create a civil regulatory
    scheme is a weighty counterbalance. See 
    id. Balancing the
    clear connections between
    criminal conduct and registration with the civil regulatory intent of the legislature, we
    conclude that this factor weighs slightly in favor of appellant.
    (f) Alternative purpose
    Turning to the sixth factor, it is clear, as noted above, that the 2009 and 2010
    amendments to MSORA have a purpose other than punishment. The statute’s goal is
    remedial in nature and “serves the important nonpunitive goal of alerting law enforcement
    and the community to the presence of sexual predators who may reoffend.” 
    Id. at 715.
    Although the Young decision discusses the purpose of a previous version of MSORA, and
    does not specifically address the registration of juvenile sex offenders who reach the age of
    30
    majority, this general statement of purpose, in our view, is applicable to the entire amended
    Act.
    The public safety purpose of MSORA is especially apparent in the juvenile context.
    The registration statute requires the juvenile court to hold a hearing to determine whether
    juvenile sex offenders are at significant risk of re-offending, and thus only offenders who
    continue to threaten public safety are ordered to register. See CP 2010 § 11-704(c). Because
    the legislature clearly intended sex offender registration as a public safety mechanism, the
    sixth factor weighs in favor of the State.
    (g) Excessive nature of sanction
    Finally, we consider whether the sanction of MSORA is excessive despite its non-
    punitive purpose. This factor weighs the heaviest in our determination of whether MSORA,
    as applied to juvenile sex offenders placed on the sex offender registry, crosses the line from
    a civil regulation to a criminal punishment. See, e.g., Wallace v. State, 
    905 N.E.2d 371
    , 383
    (Ind. 2009) (affording the final Mendoza-Martinez factor “considerable weight,” and citing
    cases from three other jurisdictions that found this factor to be the most significant). For
    reasons set forth below, we hold that the registration requirements are not excessive as
    applied to juvenile sex offenders who are placed on the registry.
    Juvenile offenders who are adjudicated delinquent of a variety of sexual offenses,
    including a second degree sexual offense as appellant was here, may be required to register
    upon leaving the jurisdiction of the juvenile court. CP 2010 § 11-704(c). Before any
    31
    juvenile sex offender is placed on the registry, the State’s Attorney or the Department of
    Juvenile Services must submit a request to the juvenile court that the subject juvenile be
    required to register. CP 2010 § 11-704(c)(1)(ii). In addition, the court must determine, after
    a hearing at least ninety days prior to termination of the juvenile court’s jurisdiction over the
    juvenile, that “under a clear and convincing evidence standard[,] the person is at significant
    risk of committing a sexually violent offense or an offense for which registration as a tier II
    sex offender or tier III sex offender is required.” CP 2010 § 11-704(c)(1)(iii). The court may
    also order an evaluation of the juvenile to aid in its decision. CP 2010 § 11-704(c)(4).
    If the juvenile court decides that the juvenile sex offender should be placed on the
    registry, the court may order registration for a period of up to five years.                   CP
    2010 § 11-707(a)(4)(iv). Thus the court has discretion to determine the actual period of the
    registration, but not more than five years. The court may also reduce the registration term
    originally ordered if the registrant requests a reduction, and the court agrees to such request.11
    
    Id. In contrast,
    adult sex offenders are automatically placed on the registry if they have
    been convicted of an enumerated offense. CP 2010 § 11-704(a). They are provided no
    hearing or individualized assessment to determine whether they pose a continuing threat to
    society. Tier I offenders are required to register for fifteen years; Tier II offenders for
    twenty-five years; and Tier III offenders register for life. CP 2010 § 11-707(a)(4). Except
    11
    See footnote 
    9, supra
    .
    32
    for a reversal, vacation, set aside, or pardon of the underlying conviction, Tier II and Tier III
    offenders have no process by which to remove their names from the registry or to reduce the
    terms of their registration.    CP 2010 § 11-704(b).        Tier I offenders shall have their
    registration term reduced to ten years, but only if, during those ten years, the registrant:
    (1)     is not convicted of any offense for which a term of
    imprisonment of more than 1 year may be imposed;
    (2)     is not convicted of any sex offense;
    (3)     successfully completes, without revocation, any period of
    supervised release, parole, or probation; and
    (4)     successfully completes an appropriate sex offender treatment
    program.
    CP 2010 § 11-707(c).
    One aspect of MSORA that was important to the holding of a violation of the
    constitutional prohibition against ex post facto laws by the Court of Appeals in Doe I and by
    this Court in Quispe del Pino was the automatic imposition of the registration requirement
    because of a conviction for a particular sex crime. See Doe 
    I, 430 Md. at 568
    (plurality
    opinion); Quispe del 
    Pino, 222 Md. App. at 61
    . At the conclusion of the plurality opinion
    in Doe I, Judge Greene wrote:
    Registration was imposed, over twenty years later in 2009, under
    the sex offender registration statute as a direct consequence of
    [Doe’s] commission and conviction for his sex crime. The
    application of the statute has essentially the same effect upon [Doe’s]
    life as placing him on probation and imposing the punishment of
    shaming for life, and is, thus, tantamount to imposing an additional
    sanction for [Doe’s] crime.
    
    33 430 Md. at 568
    (plurality opinion) (emphasis added).
    In Quispe del Pino, this Court made a similar observation concerning the operation
    of MSORA:
    [T]he retroactive application of the 2010 amendment
    automatically subjects appellant to registration under MSORA
    for a period of time, fifteen years, during which time he otherwise
    would not have been subject to any of the statute’s requirements,
    restrictions, or public dissemination of private 
    information. 222 Md. App. at 61
    (italics in original) (bold emphasis added). Thus a statutory scheme, like
    the one to which appellant is subject, that does not automatically impose a registration
    requirement, but mandates a court finding, based upon clear and convincing evidence
    adduced at a hearing, of a significant risk of re-offending, is more consistent with the
    regulatory purpose of MSORA than with any punitive effect. See CP 2010 § 11-704(c).
    In states that have reviewed ex post facto challenges to retroactive sex offender
    registration schemes, whether the requirement of registration is based on an individualized
    assessment of the offender and whether the offender has the possibility of reducing his
    registration term have proved to be important considerations. Courts have held retroactive
    registration statutes not violative of the prohibition against ex post facto laws based, at least
    in part, upon the requirement of an individualized assessment of an offender to justify
    placement on the registry and the opportunity for an offender to seek reduction in the term
    of registration.
    In Doe v. Pataki, the U.S. Court of Appeals for the Second Circuit reviewed the
    34
    retroactive application of New York State’s sex offender law and determined that the statute
    did not constitute punishment under an ex post facto analysis. 
    120 F.3d 1263
    , 1265 (2d Cir.
    1997), cert. denied, 
    522 U.S. 1122
    (1998). Under New York law, persons subject to
    registration as a result of a conviction for a sexual offense are evaluated by a panel of experts
    on behavior and treatment of sex offenders for the offenders’ “risk of recidivism” and “the
    degree of harm [that the offender] potentially presents.” 
    Id. at 1268.
    The evaluation occurs
    only when the offender is released, discharged, or paroled. 
    Id. The sentencing
    court uses the
    evaluation to determine an appropriate length of the offender’s registration term, and the
    amount of information the offender must provide. 
    Id. at 1268-69.
    The offender may also
    challenge the expert’s recommendation, and appear at the registration hearing with counsel.
    
    Id. After he
    or she is placed on the registry, the offender continues to have the ability to
    petition the court for relief from the registration requirements. 
    Id. at 1282.
    Due to the relief
    available to registrants and the individualized assessment each offender is provided prior to
    being placed on the registry, the Second Circuit concluded that the statute remained a
    regulatory measure rather than a punitive sanction. 
    Id. at 1281-83;
    see also Cutshall v.
    Sundquist, 
    193 F.3d 466
    , 474, 477 (6th Cir. 1999) (finding no ex post facto violation where
    law enforcement officials have the discretion to disclose registry information only when
    necessary to protect the public), cert. denied, 
    529 U.S. 1053
    (2000).
    By contrast, where registration schemes do not provide individualized risk
    assessments or an opportunity for offenders to be relieved of registration requirements, our
    35
    sister jurisdictions have held that retroactive registration violates the prohibition against ex
    post facto laws. In Wallace, the Indiana Supreme Court determined that, “if [sex offender]
    registration and disclosure [of offenders’ information] are not tied to a finding that the safety
    of the public is threatened, there is an implication that the Act is 
    excessive.” 905 N.E.2d at 383
    . In addition, the Court stated that “we think it significant for this excessiveness inquiry
    that the Act provides no mechanism by which a registered sex offender can petition the court
    for relief from the obligation of continued registration and disclosure. Offenders cannot
    shorten their registration or notification period, even on the clearest proof of rehabilitation.”
    
    Id. at 384
    (footnote omitted). Based on the excessiveness of retroactive registration when
    no individual assessment is provided and registrants have no avenue for relief from
    registration, the Court concluded that Indiana’s registration law was punitive. 
    Id. Maine’s high
    court came to the same conclusion in State v. Letalien, 
    985 A.2d 4
    (Me.
    2009). In Letalien, a clinical psychologist performed a sex offender risk assessment on the
    appellee and determined that he presented “the lowest possible risk of reoffending.” 
    Id. at 8.
    However, because Letalien’s crime triggered a mandatory registration requirement, he
    was ordered to register as a sex offender. 
    Id. At the
    time of his offense, Letalien was
    required to register for fifteen years, but he could petition for a waiver of the registration
    requirements after his first five years of registration.      
    Id. at 9.
    Years later, Maine’s
    registration law was amended, and as a result, Letalien was required to register for the
    duration of his life without the possibility of a waiver. 
    Id. at 10.
    These changes caused the
    36
    Supreme Judicial Court of Maine to conclude that the amended statute violated the
    prohibition against ex post facto laws, stating that the statute
    does not allow for a waiver of its requirements, nor does it condition
    an offender’s duty to register or verify on an individualized
    determination of the offender’s risk of re-offending; rather, its
    requirements are mandatory and attach strictly as a consequence of the
    conviction of a crime identified by the statute.
    
    Id. at 15,
    26.
    The highest courts of Ohio, Alaska, and Kentucky all have reached the same
    conclusion as the Indiana and Maine courts. In State v. Williams, the Supreme Court of Ohio
    decided that, because “all the registration requirements apply without regard to the future
    dangerousness of the sex offender,” retroactive application of sex offender registration
    requirements violated the prohibition against ex post facto laws. 
    952 N.E.2d 1108
    , 1113
    (Ohio 2011). In Alaska, the Supreme Court pointed to the registrant’s inability to petition
    the trial court for relief from the registration and disclosure obligations under Alaska’s sex
    offender registration law as an important part of its holding that retroactive registration
    violated the ex post facto clause in the state constitution. Doe v. State, 
    189 P.3d 999
    , 1017
    (Alaska 2008). Finally, the Supreme Court of Kentucky stated that, “[w]hen a restriction is
    imposed equally upon all offenders, with no consideration given to how dangerous any
    particular registrant may be to public safety, that restriction begins to look far more like
    retribution for past offenses than a regulation intended to prevent future ones.”
    Commonwealth v. Baker, 
    295 S.W.3d 437
    , 444 (Ky. 2009), cert. denied, 
    559 U.S. 992
    37
    (2010).
    In Maryland, juveniles adjudicated delinquent of certain sex offenses by the juvenile
    court are provided the same safeguards that our sister jurisdictions found important to
    upholding the retroactive registration laws against ex post facto challenges. As stated above,
    the State’s Attorney or the Department of Juvenile Services must request that the juvenile sex
    offender be placed on the registry. CP 2010 § 11-704(c)(1)(ii). Once the request for
    registration is made, the juvenile court is charged with determining, after a hearing, whether
    the juvenile sex offender is “at significant risk” of re-offending based on clear and
    convincing evidence. CP 2010 § 11-704(c)(1)(iii). To aid in its assessment, the court can
    request an individualized evaluation of the offender. CP 2010 § 11-704(c)(4). Finally, if the
    juvenile sex offender is determined to be at significant risk of re-offending and placed on the
    registry, the juvenile court can decide the term of registration, up to a maximum of five years.
    CP 2010 § 11-707(a)(4)(iv). Thereafter, the former juvenile sex offender can petition the
    juvenile court for a reduction of the registration term. 
    Id. In the
    case sub judice, appellant was afforded all of the protections set forth in CP
    2010 § 11-704(c). The juvenile court ordered an independent evaluation of appellant and
    spent two days taking testimony in order to determine whether appellant was at significant
    risk of re-offending. Based on the evidence admitted, the court determined, based on clear
    and convincing evidence, that appellant was at significant risk of re-offending, and ordered
    him to register for five years. The court even reminded appellant of the opportunity to have
    38
    his registration requirement reviewed:
    If [appellant] is serious about his treatment and he continues in his
    treatment; and perhaps at some future date, I don’t know what it is,
    whether it’s six months, or whether it’s two years, or something else
    entirely, coming off of the depo; and he demonstrates pro social
    activities; and there is perhaps some objective evidence of non-
    deviant sexual arousal patterns around children; and we have some
    solid evidence as to what we’re looking at, he has the opportunity to
    come before the Court within this five year period. I think that is
    huge leverage in this case.
    Appellant was thus afforded, and reminded of, all the safeguards available to juvenile
    sex offenders prior to and after placement on the sex offender registry. Those same
    safeguards lead us to conclude that retroactive application of MSORA to appellant is not
    excessive given the regulatory purpose of sex offender registration.
    (D) Conclusion
    Reviewing the Mendoza-Martinez factors together, we conclude that, although the
    requirement of registration imposes an affirmative disability on appellant, has been regarded
    historically as punishment, carries the element of scienter, and applies to behavior that is
    criminal in nature, these disadvantages are outweighed by the public safety purpose of
    MSORA and the process afforded juvenile sex offenders both before and after being ordered
    to register. MSORA 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, MSORA requires
    all adults convicted of certain sexual offenses to register as sex offenders for a specified term
    39
    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.
    “Because we ordinarily defer to the legislature’s stated intent, only the clearest proof
    will suffice to override legislative intent and transform what has been denominated a civil
    remedy into a criminal penalty.” 
    Smith, 538 U.S. at 92
    (citations and internal quotation
    marks omitted). That “clearest proof” of a criminal penalty is not present here, and thus
    retroactive registration for juvenile sex offenders remains a civil remedy. Therefore,
    retroactive application of MSORA as applied to juvenile sex offenders under CP 2010
    § 11-704(c) does not violate the prohibition against ex post facto laws under Article 17 of the
    Maryland Declaration of Rights, as read in pari materia with the U.S. Constitution. Because
    MSORA is constitutional as applied to appellant, we decline to grant him the relief he seeks
    on these grounds.
    II. SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT
    Appellant contends that, even if the retroactive application of CP 2010 § 11-704(c)
    to him does not violate the constitutional prohibition against ex post facto laws, he should be
    entitled to specific performance of his plea agreement, which did not require that he register
    as a sex offender. Relying on Judge Harrell’s concurring opinion in Doe I, appellant points
    out that he could not have been required to register at the time of his plea, because no such
    requirement existed in 2006. As a result, appellant argues that no reasonable person “could
    40
    possibly have believed that registration would be part of the plea,” and thus specific
    enforcement of his plea, which did not include registration, is required. Appellant contends
    that not enforcing the plea “would create a dangerous precedent allowing the State to add
    additional terms to a plea agreement at its whim anytime there was no specific mention of
    those terms made during the plea agreement.” Finally, appellant argues that not enforcing
    his plea creates a disincentive for others to enter into plea agreements. We are not persuaded.
    In Doe I, Judge Harrell argued that, under Cuffley v. State, 
    416 Md. 568
    (2010),
    “[d]etermining the meaning of a sentencing term in a plea agreement requires strict
    adherence to the ‘four corners’ of the plea agreement as established in the Maryland Rule
    4-243 plea proceeding and to ‘due process concerns for fairness and adequacy of procedural
    safeguards.’” Doe 
    I, 430 Md. at 576
    (Harrell, J., concurring) (quoting 
    Cuffley, 416 Md. at 580-81
    ). The petitioner in Cuffley agreed to a plea deal wherein he pled guilty to robbery in
    exchange for a sentence within the sentencing guidelines of four to eight years. 
    Cuffley, 416 Md. at 574
    . The trial court accepted Cuffley’s plea and agreed to be bound by its terms. 
    Id. At the
    disposition hearing several months later, however, the trial court sentenced Cuffley
    to fifteen years’ incarceration, suspending all but six years. 
    Id. Cuffley filed
    a Motion to
    Correct an Illegal Sentence, arguing that the sentence violated his plea agreement. 
    Id. at 574-
    75. The Court of Appeals agreed with Cuffley, and concluded that a defendant must
    reasonably understand the terms of his sentence as they are presented in the “four corners”
    of the plea agreement. 
    Id. at 581-82.
    Based on the decision in Cuffley, Judge Harrell stated
    41
    in Doe I that, “[a]ssuming that a registration term would be included in an agreement at
    Doe’s 2006 plea hearing, a reasonable person in Doe’s position likely would understand that
    registering as a sex offender was not a part of the agreement.” Doe 
    I, 430 Md. at 576
    (Harrell, J., concurring).
    Judge Barbera (now Chief Judge) disagreed with Judge Harrell, arguing that “Cuffley
    plainly does not apply to the case before us. Cuffley and the rule emanating from it focus on
    ‘the meaning of the sentencing term,’ and ‘what the defendant reasonably understood to be
    the sentence.’” Doe 
    I, 430 Md. at 598-99
    (Barbera, J., dissenting) (italics in original)
    (quoting 
    Cuffley, 416 Md. at 582
    ).         Because sex offender registration is “imposed
    mandatorily by operation of law,” Judge Barbera stated that sex offender registration is a
    collateral consequence of a plea, and not part of the sentence imposed by the trial court. Doe
    
    I, 430 Md. at 600
    (Barbera, J., dissenting). Judge Barbera concluded that
    [t]he requirement that [Doe] register as a sex offender likewise had no
    effect on the ultimate range of punishment he faced upon conviction.
    Because sex offender registration is not punishment, but a
    collateral consequence of a conviction, it was not required to be
    included as part of [Doe’s] plea agreement.
    
    Id. (emphasis added)
    (footnote omitted).
    In Sinclair v. State, this Court held that sex offender registration is a collateral
    consequence of a conviction. 
    199 Md. App. 130
    , 135 (2011). In 2006, Sinclair pled guilty
    to child abuse that was sexual in nature and that had occurred from 1989 through 1994. 
    Id. at 132-33.
    He was sentenced to four years of house arrest, with all but one year suspended,
    42
    and was placed on probation for five years. 
    Id. The probation
    order did not include a
    requirement that Sinclair register as a sex offender. 
    Id. With the
    enactment of the 2009 MSORA amendments, however, child sex offenders
    “convicted on or after October 1, 1995, of an offense committed before October 1, 1995,”
    were required to begin registering. CP 2009 § 11-702.1(c)(1)(ii). If offenders did not
    register, they were subject to criminal prosecution. CP 2009 § 11-721(b), (c). In response
    to the amended law and its retroactive application, Sinclair filed a motion, in the criminal
    case where he was convicted of the sexual offense, requesting a judicial determination that
    he not be required to register. 
    Sinclair, 199 Md. App. at 134
    .
    We denied Sinclair’s request. 
    Id. at 140.
    Although noting that relief by way of a
    declaratory judgment may be obtained prior to actual criminal prosecution when the
    constitutionality of a statute is at issue and violation of the statute carries criminal sanctions,
    we nonetheless concluded that “Maryland law does not recognize the filing of a declaratory
    judgment action in a criminal cause, even if the object of the declaratory judgment action is
    to obtain a ruling concerning a collateral consequence of the conviction.” 
    Id. at 137,
    140 12
    In reaching our decision, we stated that “[t]he thrust of Sinclair’s motion is not
    collaterally to challenge his conviction that has long since been final and unappealable. His
    12
    A declaratory judgment action, which is not filed in the criminal case that resulted
    in a conviction giving rise to the requirement of registration, is the appropriate procedural
    vehicle to challenge the constitutionality of MSORA “when there is an actual controversy
    between the parties and the declaratory judgment will terminate the conflict.” Doe 
    I, 430 Md. at 545
    .
    43
    statutory construction point is directed to a collateral consequence of the conviction.” 
    Id. at 135.
    Implicit in this conclusion was that sex offender registration was not a part of Sinclair’s
    original plea and conviction. See 
    id. at 135-36.
    Instead, it was collateral to the criminal
    action. 
    Id. at 135.
    Maryland Rule 4-242(f) now expressly categorizes sex offender registration as a
    collateral consequence of a guilty plea. Appellant correctly notes that Rule 4-242(f) requires
    that the defendant be advised of a plea’s collateral consequences, including sex offender
    registration, before the court accepts the plea. However, the Rule also states that “[t]he
    omission of advice concerning the collateral consequences of a plea does not itself mandate
    that the plea be declared invalid.” Md. Rule 4-242(f). Indeed, the Court of Appeals has
    determined that only when direct consequences of a plea are not explained to a defendant will
    the plea be rendered involuntary. Yoswick v. State, 
    347 Md. 228
    , 239-40 (1997). In Yoswick,
    the Court of Appeals held that a guilty plea was not rendered involuntary even though the
    trial court did not inform the defendant that, “in order to become eligible for parole, he had
    to first serve fifteen years.” 
    Id. at 236,
    241.
    Turning to the case sub judice, we recognize that appellant’s plea agreement did not
    include a registration requirement. Appellant contends that, because his plea did not mention
    registration, specific performance of that plea mandates that he not be required to register.
    Because the plea did not need to include sex offender registration, which is a collateral
    consequence of a guilty plea, appellant’s argument fails.
    44
    Moreover, specific performance of a plea agreement only entitles appellant to either
    the “benefit of the bargain” or a withdrawal of the plea.13 
    Cuffley, 416 Md. at 583
    .
    According to appellant, the benefit of the bargain in his plea agreement means that he is not
    required to register. The plea agreement’s silence as to the issue of registration, however,
    did not suggest whether appellant would or would not be subject to a sex offender
    registration requirement. The juvenile court’s order in 2010 that appellant register as a sex
    offender therefore did not violate his plea agreement. See Doe 
    I, 430 Md. at 601
    (Barbera,
    J., dissenting). Appellant’s registration obligation is, again, simply a collateral consequence
    of his plea.
    In sum, “[b]ecause sex offender registration is not punishment, but a collateral
    consequence of a conviction, it was not required to be included as part of [appellant’s] plea
    agreement.” 
    Id. at 600
    (Barbera, J., dissenting). Therefore, the lack of any reference to a
    requirement for sex offender registration in appellant’s plea agreement cannot serve as a
    basis for implying a term in the plea agreement that appellant not be required to register as
    a sex offender. In other words, there is nothing in appellant’s plea agreement for the trial
    court to specifically enforce.
    Finally, we move to appellant’s last two arguments. First, we disagree with appellant
    that a decision not to “enforce” appellant’s plea as he desires will allow “the State to add
    13
    Because appellant does not challenge the underlying conviction or the applicability
    of CP 2010 § 11-704(c) if deemed constitutional, there appears to be no basis for appellant
    to withdraw his plea.
    45
    additional terms to a plea agreement at its whim anytime there was no specific mention of
    those terms made during the plea agreement.” We initially note that the State cannot add
    additional terms to a plea agreement that are direct consequences of a criminal conviction.
    See 
    Yoswick, 347 Md. at 240
    . In the case of collateral consequences, Rule 4-242(f)
    specifically refers to two collateral consequences—immigration consequences and sex
    offender registry consequences. These consequences are beyond the power of the State to
    change, because they are imposed by the federal courts and agencies under federal law or
    they apply automatically by operation of Maryland law. In addition, in the case of juvenile
    sex offenders, the collateral consequence of registration is only a requirement after a hearing
    in which the judge must find by clear and convincing evidence that the individual is at
    significant risk of re-offending. CP 2010 § 11-704(c). The proof required to meet a clear
    and convincing evidence standard can hardly be described as allowing the State to add terms
    “at its whim.”
    Second, we disagree with appellant’s assertion that not “enforcing” appellant’s plea
    deal “creates a strong disincentive for defendants to plead guilty.” As previously stated,
    juvenile sex offenders, like appellant, cannot be placed on the sex offender registry unless,
    after a hearing, the juvenile court finds, based on clear and convincing evidence, that the
    juvenile offender is at significant risk of committing a sexually violent offense or a Tier II
    or III offense. CP 2010 § 11-704(c). Therefore, the lack of notification that sex offender
    registration would be possible in appellant’s 2006 plea does not create a disincentive for
    46
    others to enter plea agreements today.
    ORDER OF THE CIRCUIT COURT FOR
    MONTGOMERY COUNTY, SITTING AS A
    JUVENILE COURT, DATED DECEMBER
    27, 2010 AFFIRMED; APPELLANT TO PAY
    COSTS.
    47