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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 2012 September Term, 2007

MY NGUYEN v. STATE OF MARYLAND

Hollander, Salmon, Meredith, JJ.

Opinion by Salmon, J.

Filed: December 29, 2009

On January 12, 2006, My Thien Nguyen ("Nguyen"), appellant, entered a plea of guilty to a fourth-degree sexual offense and to second-degree assault in the Circuit Court for Montgomery County. Nguyen was sentenced to 365 days incarceration for the fourth-degree sex offense and a concurrent term of incarceration of 18 months for second-degree assault. The court suspended all but 88 days of the incarceration (time served) and placed Nguyen on supervised probation for a period of three years. Nguyen's probation contained several conditions, including a requirement that he attend and pay for counseling related to his sex offense and alcohol abuse. The judge expressly said at the sentencing hearing that he was not requiring that Nguyen register as a sex offender. On September 6, 2007, following a hearing, Nguyen was found to have violated his probation by failing: 1) to report to his probation officer, 2) to provide verification of employment and residence, and 3) to attend and complete sex offender and alcohol treatment sessions with his counselor. As a consequence, Nguyen's probation was revoked. He was sentenced to serve the remaining portion of his sentence, and he was ordered to register as a sex offender. Nguyen, through counsel, filed with this Court an application for leave to appeal the portion of the court's order that required that he register as a sex offender. We granted Nguyen's application and transferred the case to the regular appeal docket so that we could decide whether the trial court, at the probation revocation hearing, exceeded its authority when it ordered applicant to register as a sex offender. I. The victim, eleven, was interviewed and told Montgomery County authorities that she was clothed when appellant touched her and that on three occasions Nguyen came up from behind her, wrapped his arms around her, and fondled her vaginal area. At the time these illegal touchings occurred, Nguyen lived in the residence with the victim and her mother. When he pled guilty, Nguyen, 38, admitted that he intentionally touched the victim's vaginal area.

Nguyen pled guilty without knowing whether he would be required to register as a sex offender. The judge who took the plea explained: [Y]ou are to be evaluated by a psychologist or psychiatrist before I sentence you. And . . . the prosecutor has agreed to look at the evaluation. If that evaluation is favorable to you, and [the prosecutor] is going to decide whether she thinks it's favorable to you or not, then she may ask me not to require you to register. If she says to me, "Judge, I don't want him to have to register as a sex offender." I have agreed, if the State asks me not to make you register, that I will not make you register as a sexual offender. If that report is not favorable, in [the prosecutor's] discretion, then both sides are free either to ask me to put you or require you to register as a sex offender or not. Now, there is also, I am also, as part of your sentencing, free to suspend the entire 11 years. And I could put you on up to five years of supervised probation. That is all within my discretion. If I put you on probation, and I suspend time, and you violate your probation in any way, I would then be free to put you in jail for however much time that I decide to suspend, and it could be up to 11 years. Lynn Nghe ("Nghe"), a Senior Clinician at the Multicultural Clinical Center, performed, prior to sentencing, a psychological evaluation of Nguyen to determine, inter alia, whether he should be placed on the sex offender registry. Nghe found that Nguyen was a low-risk sexual offender but that his condition should nevertheless be considered serious and would require much effort to treat. In this regard, the assessment report read: "One should not assume he will not re-offend given the length of time he's struggled with his sexual behaviors."1 Nghe recommended Nguyen participate in, and successfully complete, a sex offender program. At sentencing, the State did not argue that appellant should be required to register as a sex offender. Defense counsel argued that Nguyen not be required to register. The sentencing judge

The sentencing judge noted, however, that in Nguyen's case, all other sexual activities (visiting strip clubs, viewing pornographic videos, etc.) mentioned in the report except the subject fourth-degree sex offense were legal activities for adults. 2

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weighed the matter and said: I recognize that it is for the protection of the public that we have these sex offender registries. I also recognize . . . that imposing the requirement that you register creates a lot of problems for someone like you or like anyone else. . . . Based on the fact that you've acknowledged what you did; based on the fact that it doesn't appear as though you've committed this offense against anybody else; based on the fact that you're 38 years old, one would expect that this would have surfaced prior to now; based on the fact that you are seen as a low risk sexual offender, and I'm not sure exactly what they base that on, other than the problems with you controlling your sexual urge in this case, it doesn't look like you've ever done anything unlawful at any other time with respect to deviant sexual behavior, at least nothing that anybody's been able to surface. Later the sentencing judge warned the appellant: If I find out that you've stopped your counseling, if I find out that you're drinking, then you're going to wind up going to jail for the balance of your sentence in this case. . . . I don't want to hear that you have transportation problems, I don't want to hear that you have job problems. There's nothing more important than that you abide by your probation, and that you do this counseling. If you lose your job and you don't have money for counseling, you better borrow some, or you better go there anyway and tell them that the judge is going to lock you up if you don't come whether you have money or not, because I'm not going to accept any excuses. Without this, you may very well be putting the public at risk. *** I'm not requiring . . . [registration as a] . . . sex offender. . . . Based on the totality of the picture here . . . I don't think it's appropriate in this case. . . . I don't know that it's inappropriate, but I'm not going to impose it. About eleven months after he was originally sentenced, Nguyen was found guilty of violating his probation. He was sentenced for that violation. The sentencing judge said: Well, I think, at a bare minimum, the Court is satisfied that Mr. Nguyen is not going to comply with counseling, or any other conditions, [of] probation. He's proven that by his actions. *** I think, at a bare minimum, he needs to be on the sex offender registry. And I'm going to order that be a part of his sentence for the violation of the probation, that he register as a sex offender. *** [M]y position is that I was willing to postpone having him register as a sex offender 3

based upon all the efforts that [the defense attorney] had gone to . . . and the reports that we had at that time, and his representations that he was going to pay for and do this counseling. But he has complied with almost none of the conditions of probation. And I think that somebody that does that, and he's not going to be on probation, needs to be on the sex offender registry, just so that the public is able to locate him and see where he lives in order to make certain, since he doesn't comply, that at least they can protect their children. So I'm going to require registration on the sex offender registry. (Emphasis added). II. Appellant argues that the court exceeded its authority when it ordered him to register as a sex offender. That argument is founded on the fact that, at the time the original sentence was imposed, registration as a sex offender was not ordered, nor was registration mentioned as a requirement that might be imposed if probation was violated. We agree with appellant. The statute that governs what a circuit court judge can do when a defendant violates one or more conditions of probation is Md. Code (2001, 2008 Repl. Vol.),

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