In re: D.C

In Re: D.C., Case No. 427, Sept. Term, 2025, Opinion by Berger, J. JUVENILE – PROBATION – EX POST FACTO LAWS -- APPLICATION OF INTENT-EFFECTS TEST Juvenile proceedings are not criminal, but rather, civil in nature. Juvenile probation is not a form of punishment and not subject to Ex Post Facto Clauses. Under the intent-effects test, there is no violation of the prohibition against ex post facto laws because: (1) there is no clear proof that the General Assembly intended juvenile probation to be punishment; and (2) juvenile probation is not so punitive in effect so as to warrant application of the Ex Post Facto Clauses of the State and federal constitutions. Circuit Court for Frederick County Case No. C-10-JV-24-000100 REPORTED IN THE APPELLATE COURT OF MARYLAND No. 427 September Term, 2025 ______________________________________ IN RE: D.C. ______________________________________ Berger, Zic, Eyler, James R. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Berger, J. ______________________________________ Filed: October 28, 2026 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2026.10.28 '00'04- 15:21:10 Gregory Hilton, Clerk  At a juvenile adjudication hearing on October 29, 2024, fourteen-year-old D.C. admitted involvement relating to motor vehicle theft and rogue and vagabond. At the time of D.C.’s conduct in May 2024, the maximum initial term of juvenile probation that a juvenile court could impose was one year. On November 1, 2024, however, a statutory amendment took effect increasing the maximum initial term of juvenile probation to two years. On April 1, 2025, at D.C.’s disposition hearing, the State requested, and the juvenile magistrate approved, a period of two years’ probation. D.C. filed exceptions arguing that application of the statutory amendment, which became effective after his conduct and which allowed for the imposition of a longer initial term of juvenile probation, violates the Ex Post Facto Clauses of the State and federal constitutions. The juvenile court concluded that juvenile probation is not a punishment and that, under the intent-effects test, the disposition does not violate the prohibition against ex post facto laws. Accordingly, the juvenile court imposed two years’ probation in D.C.’s case. D.C. noted a timely appeal. On appeal, D.C. presents one question for our review, which we have rephrased as follows:1 Whether D.C.’s disposition of two years’ probation, which would have been unlawful at the time of the offense, violates the State and federal constitutional prohibition against ex post facto laws. 1 D.C. phrased the question as follows: Did the juvenile court err and violate constitutionally guaranteed ex post facto principles by ordering a term of probation that would have been unlawful at the time of the offense? For the reasons herein, we affirm. BACKGROUND Statutory Background Central to the resolution of this case is the probation provision of Section 3-8A-19.6 of the Juvenile Causes subtitle of the Courts and Judicial Proceedings Article (“CJP”) of the Maryland Code. Accordingly, we begin with the pertinent background of that provision. During the 2022 Legislative Session, the General Assembly passed the Juvenile Justice Reform Act (“JJRA”). 2022 Md. Laws Ch. 41 (S.B. 691). Prior to the effect of the JJRA, juvenile courts were vested with the authority to place a child on probation until age 21, provided a child’s conduct would constitute a felony if the child were an adult. CJP § 3- 8A-19(d)(1)(i) (amended 2022). Effective June 1, 2022, however, the JJRA placed limitations on the discretion of juvenile courts related to the maximum term of probation that can be imposed on a juvenile offender: Except as provided in paragraph (2) of this subsection, if the most serious offense committed by a child would be a felony if committed by an adult, the court may place the child on probation for a period not exceeding 1 year. CJP § 3-8A-19.6(e)(1) (amended 2024) (emphasis added).2 2 Notably, the statute also gives juvenile courts discretion to extend the term of “probation by periods not exceeding 3 months” -- and not to exceed two years -- upon a finding that: “1. There is good cause to extend the probation; and 2. The purpose of extending the probation is to ensure that the child completes a treatment or rehabilitative program or service.” CJP § 3-8A-19.6(e)(2) (amended 2024). Further, juvenile courts were vested with the discretion to extend the period of probation for a total term of three years after a hearing and finding, by clear and convincing evidence, that: “1. There is good 2  During the 2024 legislative session, the General Assembly amended the JJRA’s probation limitations (“2024 amendment”). Those amendments took effect on November 1, 2024, and provide, among other things that: Except as provided in paragraph (2) of this subsection, if the most serious offense committed by a child would be a felony if committed by an adult, the court may place the child on probation for a period not exceeding 2 years. CJP § 3-8A-19.6(e)(1) (emphasis added).3 Factual Background On October 29, 2024, D.C. admitted at an adjudication hearing that he was involved in two counts arising from events that took place in May 2024: one count of theft of a motor vehicle and one count of rogue and vagabond for entering another vehicle with the intent to commit theft. Thereafter, D.C. was released into his parent’s custody and placed on pre- disposition supervision until his disposition hearing. D.C.’s disposition hearing was initially scheduled for December 18, 2024. The hearing, however, was postponed several times while D.C. was in a residential stabilization program in Utah and the juvenile court awaited the program’s evaluation. On April 1, 2025, a disposition hearing was held before a juvenile magistrate at which time the State asked for two years of unsupervised probation. D.C. argued that, cause to extend the probation; and 2. Extending the probation is in the best interest of the child.” CJP § 3-8A-19.6(e)(3) (amended 2024). 3 Along with this amendment, the General Assembly amended CJP § 3-8A- 19.6(e)(2) to provide that juvenile courts may extend the total period of probation for a term not to exceed three years. Similarly, CJP § 3-8A-19.6(e)(3) was amended to allow for probation to be extended for a total period not to exceed four years. 3 because his offenses occurred prior to the 2024 amendment, imposing a probation term of two years -- which would have been unlawful under CJP § 3-8A-19.6(e)(1) since it was in effect in May 2024 -- would violate the prohibition against ex post facto laws embodied in the Ex Post Facto Clauses of the Maryland and federal Constitutions (collectively, “Ex Post Facto Clauses”). The State argued that, at the time of the adjudication, it had made clear that the law would change to allow for probation of up to two years. Further, the State contended that, because the disposition hearing was occurring after the 2024 amendment, imposing a term of probation of two years would not violate the ex post facto prohibitions because CJP § 3-8A-19.6 dictates only what a juvenile court may impose at disposition hearings. The juvenile magistrate recommended unsupervised probation for a term of two years. Thereafter, D.C. filed exceptions arguing again that applying the 2024 amendment to impose probation for a term of two years for conduct conducted prior to the date that amendment took effect violated the prohibition against ex post facto laws. The State argued that juvenile causes are civil in nature, rather than criminal, and that resulting dispositions are not punitive. According to the State, therefore, the intent-effects test should be applied to determine whether application of the 2024 amendment to D.C. violates the prohibition against ex post facto laws. After applying the intent-effects test, the court concluded that applying the 2024 amendment to D.C. did not violate the prohibition against ex post facto laws because juvenile probation is not punitive. The court, therefore, denied D.C.’s exceptions and 4 approved the magistrate’s recommendation of a term of two-years’ probation. D.C. filed a timely appeal. STANDARD OF REVIEW “Whether the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights” and Article I, Section 10, Clause 1 of the United States Constitution precludes application of the amended probation provisions of CJP § 3-8A- 19.6(e)(1) to D.C.’s juvenile disposition is a “question of law that we review de novo.” Rodriguez v. State, 221 Md. App. 26, 35 (2015) (citing Davis v. Slater, 383 Md. 599, 604 (2004)). DISCUSSION I. The juvenile court did not violate the prohibition against ex post facto laws by imposing a term of probation that would have been unlawful at the time D.C. committed the underlying offenses. On appeal, D.C. argues that, by imposing probation for a term of two years, the juvenile court violated the prohibition against ex post facto laws because such a disposition would have been unlawful at the time D.C. engaged in the underlying conduct. D.C.’s reasoning is two-fold. First, D.C. contends that, because juvenile probation is a form of punishment, the Ex Post Facto Clauses apply. Retroactively applying the 2024 amendment to the JJRA to impose two years of juvenile probation for conduct that occurred prior to the amendment, and when an initial term of probation was limited to one year, therefore, violates the prohibition against ex post facto laws. Accordingly, D.C. argues that the inquiry should have ended there, and that the intent-effects test should not have been applied. Next, D.C. contends that, even if juvenile probation is not punitive and the intent- 5 effects test was properly applied, the juvenile court erred in concluding that juvenile probation is not so punitive in its effect as to negate the General Assembly’s intent to deem it civil. The State counters that juvenile delinquency proceedings are civil in nature and that juvenile probation is not a form of punishment. The State reasons that, because juvenile probation -- and juvenile courts more broadly -- are intended as a form of treatment to protect and rehabilitate juvenile offenders and their parents, juvenile probation, unlike adult probation, is not a form of punishment. The State, therefore, contends that application of the intent-effects test was proper. Under the intent-effects test, the State argues there is no violation of the prohibition against ex post facto laws because: (1) there is no clear proof that the General Assembly intended juvenile probation to be punishment; and (2) juvenile probation is not so punitive in effect so as to warrant application of the Ex Post Facto Clauses despite the Legislature’s intent. The State, therefore, urges us to affirm. As we shall explain, we agree with the State and affirm. A. Legal framework. Ex post facto laws are prohibited under the United States and Maryland Constitutions. U.S. Const., art. I, § 10, cl. 1 (“No State shall . . . pass any . . . ex post facto Law[.]”); Md. Decl. of Rts., Art. 17 (“That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal are oppressive, unjust, and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required.”). The Supreme Court of Maryland has explained that “The Ex Post Facto Clauses of the United States Constitution 6 and Maryland Declaration of Rights have been viewed generally to have the ‘same meaning’….” Khalifa v. State, 382 Md. 400, 425 (2004) (citation omitted). “[T]he Latin phrase ‘ex post facto’ literally encompasses any law passed ‘after the fact[.]’” Collins v. Youngblood, 497 U.S. 37, 41 (1990) (citing Calder v. Bull, 3 Dall. 386, 390-92 (1798)). The constitutional prohibition against ex post facto laws, however, has long been recognized to apply “only to penal statutes which disadvantage the offender affected by them.” Id. (citing Calder, 3 Dall. at 390-92). Indeed, “[b]y enacting the Ex Post Facto Clause, ‘the Framers sought to assure that legislative Acts give fair warning of their effect. . . .’” Khalifa, 382 Md. at 425 (quoting Weaver v. Graham, 450 U.S. 24, 28 (1981)). The Ex Post Facto Clauses, therefore, are understood to “protect[] liberty by preventing governments from enacting statutes with ‘manifestly unjust and oppressive’ retroactive effects.” Stogner v. California, 539 U.S. 607, 611 (2003) (quoting Calder, 3 Dall. at 391). Historically, four types of laws have been recognized as violating the prohibition against ex post facto laws: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Id. at 612 (quoting Calder, 3 Dall. at 390-91) (emphasis omitted). 7  The prohibition against ex post facto laws applies to all criminal and penal laws. See, e.g., Nat’l Ass’n for Rational Sexual Offense L. v. Stein, 112 F.4th 196, 202 (4th Cir. 2024) (quoting Kansas v. Hendricks, 521 U.S. 346, 370 (1997)) (“The Ex Post Facto Clause ‘forbids the application of any new punitive measure to a crime already consummated.’”); State v. Raines, 383 Md. 1, 26 (2004) (describing elements required “for a criminal or penal law to be ex post facto”). Penal laws are those that impose punishment. See Hendricks, 521 U.S. at 371. Criminal laws are not the only type of law that is penal. Indeed, civil laws can be penal in nature. We utilize a two-step framework to determine whether a statute is “penal/punitive in character, or whether it was intended to be merely civil in nature.” Raines, 383 Md. at 27. This well-established framework -- the “intent-effects” test -- was set forth by the Supreme Court of the United States in Smith v. Doe, 538 U.S. 84 (2003): We must [first] “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L.Ed.2d 501 (1997). 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.’” [Id.] (quoting United States v. Ward, 448 U.S. 242, 248-249, 100 S. Ct. 2636, 65 L.Ed.2d 742 (1980)). Id. at 92. We now endeavor to apply this legal framework to the present case. B. Juvenile proceedings are civil in nature and the imposition of probation on a juvenile offender is not punishment. The first step in our analysis is to determine whether the relevant statute -- the 2024 amendment to the JJRA increasing the allowable initial term of juvenile probation from 8 one year to two years -- was intended to be civil in nature. We “ordinarily defer to the legislature’s stated intent,” Hendricks, 521 U.S. at 361, so “‘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 (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)). “[W]hether [the] legislature meant for the statute to be criminal or civil in nature [i]s a matter of statutory construction” that requires first “consider[ing] the statute’s text and structure.” Raines, 383 Md. at 28 (citing Smith, 538 U.S. at 92). In Maryland, juvenile delinquency proceedings such as D.C.’s are conducted under a separate legal system pursuant to the Juvenile Causes subtitle of the Courts and Judicial Proceedings Article of the Maryland Code. CJP §§ 3-8A-01 to 3-8A-35. This separate system of law has long been understood to be civil -- rather than criminal -- in nature. See In re Victor B., 336 Md. 85, 94 (1994) (“From an analysis of the Juvenile Causes Act and case law, it is clear that it was the intent of the General Assembly to create a separate system of courts, procedure and method of treatment for juveniles. This extensive system is civil in nature and is not a criminal proceeding.”); In re Areal B., 177 Md. App. 708, 714 (2007) (“Juvenile causes are civil, not criminal proceedings.”); In re J.B., 261 Md. App. 274, 279 (2024) (quoting In re Franklin P., 366 Md. 306, 328-29 (2001)) (“This separate system reflects the General Assembly’s intent to place juveniles in a process that is ‘civil, not criminal, [in] nature.’”). The statutorily defined purposes of the Juvenile Causes subtitle include, among other things: 9  (1) To ensure that the Juvenile Justice System balances the following objectives for children who have committed delinquent acts: (i) Public safety and the protection of the community; (ii) Accountability of the child to the victim and the community for offenses committed; and (iii) Competency and character development to assist children in becoming responsible and productive members of society; (2) To hold parents and children found to be delinquent responsible for the child’s behavior and accountable to the victim and the community; (3) To hold parents and children found to be delinquent or in need of supervision responsible, where possible, for remedying the circumstances that required the court’s intervention; (4) To provide for the care, protection, and wholesome mental and physical development of children within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest; (5) To conserve and strengthen the child’s family ties and to separate a child from his parents only when necessary for his welfare or in the interest of public safety[.] CJP § 3-8A-02(a).4 Our courts, therefore, “have repeatedly noted that the Legislature intended the juvenile justice system to be ‘guided generally by principles of protection and 4 “This kind of statute, ‘a rarely used express statement of legislative intent,’ is enacted ‘to underscore the importance’ of the law and serves as the clearest possible instruction from the legislature to courts on how to implement it.” Hicks v. State, 270 Md. App. 174, 242 n.8 (2026) (joint concurrence) (quoting Wash. Gas Light Co. v. Md. Pub. Serv. Comm’n, 460 Md. 667, 671 (2018)). 10 rehabilitation of the individual rather than a societal goal of punishment and retribution.’” Smith v. State, 399 Md. 565, 580 (2007) (quoting Moore v. Miley, 372 Md. 663, 672-73 (2003)). These statutorily defined purposes are effectuated by judges through juvenile dispositions upon a finding of delinquency. Pursuant to CJP § 3-8A-19(d), such dispositions include: (i) “plac[ing] the child on probation or under supervision in [the child’s] own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate, including community detention;” (ii) “commit[ting] the child to the custody or under the guardianship of the Department of Juvenile Services, the Maryland Department of Health, or a public or licensed private agency on terms that the court considers appropriate to meet the priorities set forth in § 3- 8A-02 of this subtitle . . . ;” or (iii) “[o]rder[ing] the child, parents, guardian, or custodian of the child to participate in rehabilitative services that are in the best interest of the child and the family.” Any juvenile delinquency disposition -- including juvenile probation -- “must balance the ‘competing objectives’ of public safety, accountability, and rehabilitation.” In re S.F., 477 Md. 296, 325 (2022) (quoting Moore, 372 Md. at 673-74). As D.C. properly points out, rehabilitation is viewed, in the context of sentencing an adult convicted of a crime, as one of the core purposes of criminal sentencing that include specific and general deterrence, rehabilitation and retribution. Although our cases have compared juvenile probation to adult probation, the two are distinct. Indeed, the Supreme Court of Maryland has explained that: 11  Unlike adult probation, juvenile probation is not considered a punishment for a crime, nor does juvenile probation follow a conviction. Compare Doe v. Dep’t of Pub. Safety and Corr. Servs., 430 Md. 535, 561, 62 A.3d 123, 139 (2013) (“It is well- settled in this State that [adult] probation is a form of a criminal sanction.”) (citation omitted), with In re Ann M., 309 Md. 564, 570, 525 A.2d 1054, 1057 (1987) (“Under the Juvenile Causes Act, no disposition of a juvenile petition, whether of a delinquent, CINA or a CINS, may result in a criminal conviction.”) (citation omitted); In re Appeal Misc. No. 32, 29 Md. App. 701, 704, 351 A.2d 164, 165 (1976) (citation omitted) (“Judges in juvenile cases do not think in terms of guilt, but rather in terms of the need of the child for protection, guidance, or rehabilitation.”). In re S.F., 477 Md. at 325 n.16. From this, we conclude that the General Assembly intended juvenile probation, and juvenile delinquency proceedings more broadly, to be civil in nature. Moreover, it is evident that juvenile dispositions -- including juvenile probation -- are not intended to be punishment. D.C. urges us to reach the opposite conclusion but fails to provide “the clearest proof” to override the explicit intent of the General Assembly. Smith, 538 U.S. at 92 (quoting Hudson, 522 U.S. at 100). To be sure, D.C.’s argument that juvenile probation is a form of punishment relies principally on out-of-state cases and cases extending other constitutional protections, such as due process protections, to children in juvenile delinquency proceedings. As to the former, the way in which juvenile courts and dispositions are treated in other jurisdictions has no bearing on the intent of the legislature in this State. Regarding the latter, as the State aptly notes, the fact that children are afforded due process protections in adjudication and violation-of-probation proceedings does not 12 mean that the General Assembly had the same intent in promulgating the Juvenile Causes subtitle as it did in promulgating adult sentencing statutes. D.C. contends that probation is a restriction on the probationer’s liberty. Indeed, it is this restriction on liberty that requires juvenile courts to afford the children before them with due process protections. See In re W.Y., 228 Md. App. 596, 617-18 (2016) (quoting Sinhogar v. Parry, 412 N.Y.S.2d 966, 973 (N.Y. Sup. Ct. 1979)) (“The requirement that the juvenile and his parent must have notice and an opportunity to be heard is rooted in the principle that out-of-state placements of delinquent children ‘are similar to probation or parole supervision,’ and thus a restriction on liberty that cannot be imposed without due process.”). It does not follow, however, that the General Assembly intended juvenile probation to be punishment. Accordingly, we conclude that the Juvenile Causes subtitle is a civil statutory scheme, and that juvenile probation is nonpunitive. C. Application of the intent-effects test was proper. D.C. argues that the juvenile court erred in applying the intent-effects test to determine whether application of the 2024 amendment to his case violated the prohibition against ex post facto laws. According to D.C., the intent-effects test is inapplicable to his case and the juvenile court should have instead analyzed whether there was an ex post facto clause violation by applying the disadvantage test. The State counters that the intent- effects test was properly applied and that the disadvantage test has not been adopted by the Supreme Court of Maryland. As we shall explain, we agree with the State. In Young v. State, 370 Md. 686 (2002), the Supreme Court of Maryland adopted the intent-effects test “to determine whether Maryland’s sex offender registration statute 13 constitutes punishment.”5 Id. at 712. The Young Court explained that the intent-effects test is a two-part inquiry that considers “whether (1) the legislature intended the sanction to be punitive, and (2) the sanction is ‘so punitive’ in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the legislature’s intent.” Id. at 706-07 (quoting Russell v. Gregoire, 124 F.3d 1079, 1087 (9th Cir. 1997)). As the Young Court explained, “absent conclusive evidence of [legislative] intent as to the penal nature of the statute,” the Supreme Court of the United States has outlined factors to be considered “in determining whether a statute is punitive for the purposes of determining whether criminal prosecution safeguards are required.” Young, 370 Md. at 698 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)). The so-called Mendoza-Martinez factors are: (1) whether 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 it lacks an alternative purpose to which it rationally may be connected; and (7), if such alternative does exist, whether the statute appears excessive in relation to it. Id. (citing Mendoza-Martinez, 372 U.S. at 168-69). Thereafter, “there was confusion in Maryland as to what test should be used in determining whether” a law violates Article 17 of the Maryland Declaration of Right’s 5 We acknowledge that the Court in Young applied the intent-effects test to a due process, rather than ex post facto, question. Young, 370 Md. at 711. As we explain, our courts, however, have utilized the intent-effects test to determine whether there is an ex post facto clause violation in subsequent cases. See, e.g., Long v. Md. State Dep’t of Pub. Safety & Corr. Svcs., 230 Md. App. 1 (2016). 14 prohibition against ex post facto laws. Long v. Md. State Dep’t of Pub. Safety & Corr. Svcs., 230 Md. App. 1, 13 (2016). “The competing tests” were the intent-effects test discussed by the Supreme Court of the United States in Smith v. Doe, 538 U.S. 84 (2003) and adopted by the Supreme Court of Maryland in Young “and the ‘disadvantage test,’ which was utilized by a plurality” of the Supreme Court of Maryland in Doe v. Dep’t of Pub. Safety & Corr. Svcs. (“Doe I”), 430 Md. 535, 551-52 (2013). Id. We addressed this confusion in In re Nick H. (“Nick H.”), 224 Md. App. 668 (2015). We first explained the pertinent facts underlying Doe I: 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. Nick H., 224 Md. App. at 681-82 (citation omitted). We went on to explain that, in Doe I, “[t]he requirement that Doe register as a sex offender was a result of [a 2009 statutory amendment] retroactively requiring offenders who were convicted on or after October 1, 15 1995, but committed a sexual offense before that date, to register for the first time.” Id. at 682 (citation omitted). Doe brought a declaratory judgment action “seeking an order that he was not required to register as a sex offender.” Id. (citation omitted). The circuit court agreed with the State that the registration requirement did not violate the prohibition against ex post facto laws and we affirmed. Id. (citation omitted). As we thoroughly discussed in Nick H., the then Court of Appeals granted certiorari and reversed: 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 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 [the statute at issue] 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 [the statute at issue] to Doe, which had the effect of imposing the additional sanction of probation 16  and shaming, violated the ex post facto prohibition contained in Article 17 if the Maryland Declaration of Rights. Id. at 682-83 (citation omitted). We went on to discuss, however, that only a plurality of three judges endorsed application of the disadvantage test under Article 17 in Doe I: 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 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 the 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.” ... 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 amendments to [the statute at issue] under both the State and federal constitutions. Id. at 684 (citation omitted). We then proceeded to analyze the narrowest ground that garnered the support of a majority in Doe I: 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 17  result enjoys the assent of [four judges], the holding of the court may be viewed as that position taken by those Members who have concurred in the judgment on the narrowest grounds.’” Wilkerson v. State, 420 Md. 573, 594, 24 A.3d 703 (2011) (quoting Marks v. United States, 430 U.S. 188. 193, 97 S. Ct. 990, 51 L.Ed.2d. 260 (1977)). Thus the Marks Rule requires us to determine the common thread running through the plurality and concurring opinions of Doe I. . . . In Doe I, the decision that [the statute at issue] violates the Article 17 ban on ex post facto laws is the common denominator representing the position taken by five judges who agreed that Doe should be granted relief. See 430 Md. at 568, 578, 62 A.3d 123. 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.” . . . 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, 62 A.3d 123. Id. at 684-86. Although “neither test commanded a majority of the Court,” we determined that the “intent-effects test is the proper test to determine whether [the statute at issue] violates Article 17 as applied to [Nick H.].” Id. at 686. Accordingly, we agree with the State that the intent-effects test is the appropriate method for determining whether a statute violates the Ex Post Facto Clauses of both the