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HEADNOTE: Kenneth E. Barnes v. State of Maryland, No. 124, September Term, 2010 CRIMINAL LAW--POST CONVICTION--MD RULE 4-345(a) MOTION TO CORRECT AN ILLEGAL SENTENCE--COMPLETION OF SENTENCE RENDERS CASE MOOT A Maryland Rule 4-345(a) motion to correct an illegal sentence simply permits a court to revise an illegal sentence. A Rule 4-345(a) motion is not specifically or exclusively designed to challenge the "validity" of incarceration. Accordingly, if a defendant files a motion to correct an illegal sentence after completion of his or her sentence, a court should dismiss the action as moot.

Circuit Court for Baltimore City Case No. 205138021-22

IN THE COURT OF APPEALS OF MARYLAND No. 124 September Term, 2010

KENNETH E. BARNES v. STATE OF MARYLAND

Bell, C.J., Harrell Greene *Murphy Adkins Barbera, Eldridge, John C., (Retired, Specially Assigned) JJ. Opinion by Adkins, J. Greene, J., joins judgment only. Bell, C.J., Murphy and Eldridge, JJ., dissent.

Filed: October 27, 2011 *Murphy, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

In this case, we are asked to determine whether a person may use a motion to correct an illegal sentence as a means to challenge the requirement that he register as a sex offender, even though he does not claim the requirement is a sentence, and is no longer subject to any criminal penalties stemming from his sexual offense conviction. In 1998, Petitioner Kenneth Barnes pleaded guilty to third-degree sexual offense involving a minor under the age of 15. Following his conviction, Barnes was directed to register as a sexual offender pursuant to Maryland Code (1957, 1996 Repl. Vol., 1997 Cum. Supp.), Article 27, Section 792. While initially he complied with this requirement, Barnes was later convicted of violating the registration statute by failing to notify local law enforcement of a change in his address. He was placed on probation, and a subsequent violation of that probation resulted in prison time. Upon being released, Barnes filed a Motion to Correct an Illegal Sentence, pursuant to Maryland Rule 4-345(a), in which he argued that his probation and incarceration were the result of the erroneous imposition of the sexual offender registration requirement. The Circuit Court denied Barnes's motion on the grounds that he was indeed subject to the registration requirement. Barnes appealed to the Court of Special Appeals. In a reported opinion, the intermediate appellate court determined that it had jurisdiction to entertain the case and affirmed the lower court on the merits. See Barnes v. State, 195 Md. App. 1, 5 A.3d 1103 (2010). Barnes then petitioned this Court for a Writ of Certiorari and the State submitted a conditional cross-petition, both of which were granted on January 21, 2011. Barnes v. State, 417 Md. 500, 10 A.3d 1180 (2011). On appeal, Barnes asks us to determine [Whether it was] illegal to retroactively impose sex offender registration under Maryland's 1997 Sex Offender Registration

Act on Mr. Barnes where his alleged offense was committed before July 1, 1997, and he was not previously subject to the requirements of the old 1995 Sex Offender Registration Act[.] The State, meanwhile, asks [Whether] the Court of Special Appeals err[ed] in finding that the requirement that Barnes register as a child sexual offender was a sentence that could be challenged at any time under Md. Rule 4-345(a)?[.] We shall hold, contrary to the holding of the Court of Special Appeals, that Barnes's claim is not justiciable because he is not currently serving a "sentence" for the purposes of Rule 4-345(a). As there is no "sentence" for this Court to correct, we dismiss his case as moot. FACTS AND LEGAL PROCEEDINGS A. Sexual Assault Conviction In November 1996, the State charged Barnes with second-degree rape, assault with intent to commit rape, third-degree sexual offense, fourth-degree sexual offense, and assault. The victim had reported that, on various occasions between January and May of that year, Barnes had "tried to kiss her[,]" "fondl[e] her[,]" and would "place[] his fingers in and about her private areas . . . like he was trying to tickle her."1 Before the case could proceed, however, two physicians diagnosed Barnes with "Bipolar I Disorder, Manic Type" and "Schizo Affective Disorder-Bipolar Type," and the court appointed Barnes's mother as his
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Barnes claims that the victim later recanted her claims against him in a deposition taken on May 9, 2008. According to Barnes, the victim "explained that she lied at the time because she was jealous of the friendship between Mr. Barnes and her older sister . . . with whom she was very close." No such deposition was included in the record because the validity of Barnes's initial conviction is not before us at this time.
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guardian. As a result of the medical reports, Barnes's attorney filed a Motion for a Competency Determination. On July 15, 1997, a Baltimore City Circuit Court judge ruled that Barnes was not competent to stand trial and committed him to Spring Grove Hospital under the care of the Department of Mental Health and Hygiene. On October 17, 1997, Spring Grove sent a letter to the court, concluding that Barnes was competent to stand trial. On December 1, 1997, the court found that Barnes was competent to stand trial and ordered him to be released from Spring Grove on the condition that he reside with his mother. On August 31, 1998, Barnes appeared in the Circuit Court on his sexual offense charges. Counsel for Barnes informed the court that Barnes had agreed to an Alford plea on the single count of third-degree sexual offense, and in exchange the state agreed not to prosecute the remaining charges. Mr. Barnes's understanding was that if he agreed to the plea, the court would impose a suspended ten-year sentence with a supervised probationary period of four years. The court heard the prosecution's presentation of the allegations against Barnes, and consequently found him guilty of third-degree sexual offense. Pursuant to the agreement with Barnes's counsel, the court imposed a ten-year suspended sentence with a four-year period of supervised probation. During this proceeding, the court imposed the conditions of Barnes's probation, including instructions that he continue receiving psychiatric treatment and not have contact with the complaining witness or the prosecutor. The court did not expressly order that Barnes register as a sexual offender.

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Following Barnes's conviction, the Maryland Division of Parole and Probation provided him with a form stipulating that Article 27, Section 692B required him to register as a sexual offender with the Maryland Division of Parole and Probation. On November 4, 1998, Barnes signed the form, acknowledging that he had been advised of the registration requirement and that he understood that "failure to comply may place [him] in violation of [his] supervision and may also subject [him] to additional criminal penalties." B. Violation of Notification Requirement and Subsequent Probation Barnes finished his four-year supervisory probation in August 2002 without incident. During this period of probation, he complied with all registration requests. After his period of probation ended, however, Barnes moved to a new address and failed to notify his supervising authority as required by law. See Md. Code (2001, 2008 Repl. Vol.),

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