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People v. Costner

Court of Appeals of Michigan

February 19, 2015

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
EVANS COSTNER III, Defendant-Appellant

Berrien Circuit Court. LC No. 2009-004980-FH.

Before: BOONSTRA, P.J., and DONOFRIO, J. and GLEICHER, JJ. GLEICHER, J. (dissenting).

OPINION

Page 583

[309 Mich.App. 222] Pat M. Donofrio, J.

Defendant appeals by leave granted an order denying his motion to be removed from Michigan's sex-offender registry. Because defendant was more than four years older than the victim in this case and because requiring him to register as a sex

Page 584

offender was not cruel or unusual punishment, we affirm.

Defendant pleaded guilty to attempted third-degree criminal sexual conduct (victim at least 13 but under 16 years of age), MCL 750.520d(1)(a). Defendant's conviction arises from a consensual act of sexual intercourse engaged in when he was 18 years of age and the victim was 14 years of age. With defendant having been born on February 21, 1991, and the victim having been born on March 16, 1995, the age difference between the two of them is 4 years and 23 days. Defendant was sentenced on December 14, 2009, to a probationary sentence of 36 months under the Holmes Youthful Trainee Act (HYTA), MCL 762.14 .

On March 2, 2010, defendant pleaded guilty to violating the terms of his probation by using marijuana and possessing drug paraphernalia. The trial court [309 Mich.App. 223] sentenced defendant to 13 days in jail for the probation violation and continued both defendant's probation and HYTA status. Defendant was also ordered to successfully participate in and complete the Kalamazoo Probation Enhancement Program (KPEP).

On March 16, 2010, defendant pleaded guilty to violating the terms of his probation by breaking his curfew and by going AWOL from the KPEP. The trial court revoked defendant's HYTA status and ordered him to comply with the Sex Offenders Registration Act (SORA), MCL 28.721 et seq The trial court further sentenced defendant to 60 days in jail and ordered him to return to and complete KPEP once the jail term was served. Defendant's probation was continued.

On January 25, 2011, defendant, yet again, pleaded guilty to violating the terms of his probation, this time for having contact with, or attempting to have contact with, a female under the age of 17. The trial court revoked defendant's probation and sentenced him to six months in jail.

Defendant subsequently petitioned to be removed from the sex-offender registry pursuant to MCL 28.728c(14), which provides, in pertinent part, as follows:

The court shall grant a petition properly filed by an individual under subsection (3) if the court determines that the conviction for the listed offense was the result of a consensual sexual act between the petitioner and the victim and any of the following apply:
(a) All of the following:
( i ) The victim was 13 years of age or older but less than 16 years of age at the time of the offense.
( ii ) The petitioner is not more than 4 years older than the victim.

[309 Mich.App. 224] Defendant argued that because there is only a four-year difference between his age and the victim's age, he necessarily was " not more than 4 years older" than her. Defendant relied on MCL 8.3j, which defines " year" as " a calendar year."

The trial court denied defendant's petition and stated in its opinion:

This Court is not convinced that the term " year" as defined by MCL 8.3j is the answer to the time computation in this statute, because the statute in issue requires the petitioner (i.e. defendant) to be " not more than 4 years older than the victim." The phrase " not more than" limits the definition of the word " year" . Therefore, because this Defendant is 23 days older than the 4 years required under the Statute, I find that he does not meet the requirements set forth in MCL 28.728c and MCL 8.3j is not violated by this interpretation.

I. MCL 28.728c(14)

Defendant first argues on appeal that the trial court erred when it denied his

Page 585

petition because under Michigan law, defendant was not more than four years older than the victim. We review issues of statutory interpretation de novo. People v Zajaczkowski, 493 Mich. 6, 12; 825 N.W.2d 554 (2012).

" [T]he intent of the Legislature governs the interpretation of legislatively enacted statutes." People v Bylsma, 493 Mich. 17, 26; 825 N.W.2d 543 (2012). The intent of the Legislature is expressed in the statute's plain language. People v Cole, 491 Mich. 324, 330, 817 N.W.2d 497 (2012). When the statutory language is plain and unambiguous, the Legislature's intent is clearly expressed, and judicial construction is neither permitted nor required. Id. In construing statutes, this Court applies a reasonable construction of the statute, [309 Mich.App. 225] enforces clear statutory language as written, and reconciles any apparent inconsistencies if possible. People v Bulger, 291 Mich.App. 1, 5; 804 N.W.2d 341 (2010). If a statute specifically defines a term, the statutory definition is controlling. People v Williams, 298 Mich.App. 121, 126; 825 N.W.2d 671 (2012). When " terms are not expressly defined anywhere in the statute, they must be interpreted on the basis of their ordinary meaning and the context in which they are used." Zajaczkowski, 493 Mich. at 13. However, technical words and phrases that have acquired a peculiar and appropriate meaning in law shall be construed and interpreted in accordance with that meaning. See MCL 8.3a; Bylsma, 493 Mich. at 31. Moreover, it is presumed that the Legislature is familiar with the rules of statutory construction and that the Legislature is " aware of, and thus to have considered the effect on, all existing statutes when enacting new laws." People v Kosik, 303 Mich.App. 146, 158; 841 N.W.2d 906 (2013) (citation and quotation marks omitted).

A 2011 amendment of SORA allows an individual to petition the court for removal from the sex-offender registry. Among its provisions, MCL 28.728c(14) allows for an individual to be removed from the sex-offender registry if the underlying conviction involved an act of consensual sex during a so-called " Romeo and Juliet" relationship. The statute provides, in relevant part:

The court shall grant a petition properly filed by an individual under subsection (3) if the court determines that the conviction for the listed offense was the result of a consensual sexual act between the ...

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