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People v. Tucker

Court of Appeals of Michigan

October 15, 2015


         Editorial Note:

         This opinion is subject to revision before final publication in the Michigan Court of Appeals reports.

          Oakland Circuit Court. LC No. 2012-242851-FH.




         Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.


          [312 Mich.App. 649] Per Curiam.

         Defendant appeals by delayed leave granted[1] his no contest plea convictions of felonious assault, MCL 750.82, and domestic violence, MCL 750.81(2). Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to 119 days, time served, for the felonious assault conviction, and 93 days, time served, for the domestic violence conviction. Defendant was also required to register as a sex offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. We affirm.

         I. BACKGROUND

         Defendant was convicted in 1990 of assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1). He was sentenced to three years' probation and was discharged in 1993. On October 1, 1995, SORA went into effect. See 1994 PA 295. Although assault with intent to commit criminal sexual conduct involving penetration is a listed offense requiring registration, MCL 28.722(w)( iv ), defendant was not required to register because he was discharged from probation before the registry went into effect, MCL 28.723(1). In 2011, the Legislature amended [312 Mich.App. 650] SORA, 2011 PA 17, to include the following " recapture" provision, codified at MCL 28.723(1)(e):

(1) Subject to subsection (2), the following individuals who are domiciled or temporarily reside in this state or who work with or without compensation or are students in this state are required to be registered under this act:
* * *
(e) An individual who was previously convicted of a listed offense for which he or she was not required to register under this act, but who is convicted of any other felony on or after July 1, 2011.

         On October 8, 2013, defendant pleaded no contest to felonious assault, MCL 750.82, and domestic violence, MCL 750.81(2), under a Cobbs [2] agreement by which he would be sentenced to time served. At sentencing, the trial court told defendant that he would be required to register as a sex offender under MCL 28.723(1)(e)[3] and gave defendant the opportunity to withdraw his plea. Defendant declined. Defendant was required to register for life as a Tier III offender.

         Defendant then filed a motion to correct an invalid sentence to have himself removed from the SORA registry, arguing that the registration requirement violated the state and federal Ex Post Facto Clauses, the federal Cruel and Unusual Punishment Clause, and the state Cruel or Unusual Punishment Clause. The trial court denied the motion and determined that defendant was required to register under the terms of SORA.

         [312 Mich.App. 651] II. EX POST FACTO CLAUSES

         Defendant first contends that the requirement that he register as a sex offender under SORA violates the Ex Post Facto Clauses of the state and federal Constitutions. We disagree.

          We review de novo issues of constitutional law. People v Temelkoski, 307 Mich.App. 241, 246; 859 N.W.2d 743 (2014), lv gtd 498 Mich. 942, 872 N.W.2d 219 (2015). The United States and Michigan Constitutions prohibit ex post facto laws. People v Callon, 256 Mich.App. 312, 316-317; 662 N.W.2d 501 (2003), citing U.S. Const, art I, § 10; Const 1963, art 1, § 10. This Court has declined to interpret the Ex Post Facto Clause of the Michigan Constitution as affording broader protection than its federal counterpart. Callon, 256 Mich.App. at 317. All laws that violate ex post facto protections exhibit the same two elements: " (1) they attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant." Id. at 318. " The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date." Id. (quotation marks and citations omitted; alteration in original). This Court has identified four circumstances that implicate the Ex Post Facto Clauses:

A statute that affects the prosecution or disposition of criminal cases involving crimes committed before the effective date of the statute violates the Ex Post Facto Clauses if it (1) makes punishable that which was not, (2) makes an act a more serious criminal offense, (3) increases the punishment, or (4) allows the prosecution to convict on less evidence. [ Riley v Parole Bd, 216 Mich.App. 242, 244; 548 N.W.2d 686 (1996).]

         In this case, the third circumstance is at issue. Defendant argues that his registration as a sex offender has[312 Mich.App. 652] increased the punishment for his 1990 conviction. Plaintiff counters that MCL 28.723(1)(e) cannot constitute an ex post facto law because it attaches legal consequences to defendant's 2013 felony conviction, not his 1990 conviction.

         We find caselaw on recidivist statutes helpful in answering this question. As a general matter, " 'recidivist statutes . . . do not change the penalty imposed for the earlier conviction.'" People v Reichenbach, 459 Mich. 109, 124-125; 587 N.W.2d 1 (1998), quoting Nichols v United States, 511 U.S. 738, 747; 114 S.Ct. 1921; 128 L.Ed.2d 745 (1994). Callon is instructive. The defendant in Callon was convicted of impaired driving, MCL 257.625(3), in 1993. Callon, 256 Mich.App. at 315. On October 9, 1999, he was arrested for " operating a vehicle under the influence of intoxicating liquor or while having a blood alcohol content of 0.10 grams or more per 100 milliliters of blood (OUIL/UBAL), MCL 257.625(1)." Callon, 256 Mich.App. at 314. During the period between the two offenses, the Legislature amended MCL 257.625(23)(a) so that a previous impaired-driving conviction could be used to enhance a subsequent OUIL/UBAL conviction. Id. at 315-316. This Court rejected the defendant's ex post facto challenge to this enhancement, holding that the amendment to the statute had not altered the legal consequences of his 1993 conviction, but rather, it altered the legal consequences of his 1999 conviction. Id. at 318. This Court explained, " [T]he conduct for which defendant is being punished is driving while intoxicated or with an unlawful blood alcohol level after having fair notice that the statute had been amended to permit enhancement of an OUIL/UBAL conviction with a prior impaired-driving conviction." Id. at 319. This Court concluded, " Simply put, there is no retroactive application of the law where a prior conviction is [312 Mich.App. 653] used to enhance the penalty for a new offense committed after the effective date of the statute." Id. at 321.

         In this case, although MCL 28.723(1)(e) is not a traditional recidivist statute, the reasoning of Callon applies nonetheless. Defendant's registration was not required until he committed another felony in 2013. His 1990 conviction was used to enhance the consequences of his 2013 felony, which was committed after the effective date of the statute. This would be a different case if on July 1, 2011, the effective date of MCL 28.723(1)(e), defendant had been immediately required to register as a sex offender because of his 1990 conviction alone. Rather, defendant is required to register in connection with the 2013 felony. Defendant's registration in this case is inextricably tied to his 1990 conviction, but this does not lead to the conclusion that new legal consequences have been added to that conviction. In Callon, the enhancement was similarly tied to the defendant's preceding impaired-driving conviction, but the consequences were added to his subsequent OUIL/UBAL offense. See Callon, 256 Mich.App. at 318. Therefore, the recapture provision found in MCL 28.723(1)(e) does not violate the Ex Post Facto Clauses of the state and federal constitutions.[4]


         Defendant next argues that requiring him to register as a sex offender constitutes cruel or unusual punishment. We disagree.

          [312 Mich.App. 654] As stated, we review de novo issues of constitutional law. Temelkoski, 307 Mich.App. at 246. Defendant, as the party challenging his SORA registration, bears the burden of proving that it is unconstitutional. Id. at 247.

          Article I, § 16 of the Michigan Constitution prohibits the infliction of cruel or unusual punishment.[5] The threshold question in this case is whether registration constitutes punishment at all. See Temelkoski, 307 Mich.App. at 250-251. We have repeatedly held that sex offender registration does not constitute punishment because the registry is designed to protect the public rather than punish the offender. Id. at 250-271; People v Golba, 273 Mich.App. 603, 615-621; 729 N.W.2d 916 (2007); People v Pennington, 240 Mich.App. 188, 191-197; 610 N.W.2d 608 (2000).[6] But defendant posits an [312 Mich.App. 655] argument we have not yet addressed. He argues that sex offender registration constitutes punishment because of the 2011 amendments that added to the SORA registration requirements. He specifically draws our attention to student safety zones and in-person reporting requirements. We take this opportunity to address the constitutionality of these provisions.


         SORA first went into effect on October 1, 1995. People v Dipiazza, 286 Mich.App. 137, 142; 778 N.W.2d 264 (2009). It has since been amended 20 times. See 2014 PA 328; 2013 PA 2; 2013 PA 149; 2011 PA 18; 2011 PA 17; 2006 PA 46; 2006 PA 402; 2005 PA 121, 2005 PA 123, 2005 PA 127, 2005 PA 132, 2005 PA 301; 2005 PA 322; 2004 PA 237, 2004 PA 238; 2004 PA 240; 2002 PA 542; 1999 PA 85; 1996 PA 494; 1995 PA 10.[7] These amendments have generally made registration more intrusive and onerous for registrants. Defendant argues that these successive amendments have turned what was originally only a law enforcement tool into a punishment for offenders.[8]

          [312 Mich.App. 656] The sex offender registry as it first existed in 1995 was not public and was accessible only by law enforcement. Dipiazza, 286 Mich.App. at 142. Offenders were required to register for 25 years for their first offense and for life for a second or subsequent offense committed after October 1, 1995. MCL 28.725(3) and (4), as enacted by 1994 PA 295. In 1996, limited public inspection was allowed. MCL 28.730(2), as added by 1996 PA 494. Police agencies were required to make registry information for the zip codes within their jurisdiction " available for public inspection during regular business hours." Id.

         In 1999, the registry became available to the public through the Internet. MCL 28.728(2), as amended by 1999 PA 85; Dipiazza, 286 Mich.App. at 142-143. Public Act 85 of 1999 also added more listed offenses requiring registration. MCL 28.722(d), as amended by 1999 PA 85. Further, Public Act Public Act 85 prescribed that persons convicted of certain offenses would be required to register for life. MCL 28.725(7), as amended by 1999 PA 85. Finally, offenders were required to report in person to verify their domicile or residence. MCL 28.725a, as added by 1999 PA 85.

         In 2002, SORA was amended to require sex offenders who were students or employees at institutions of higher education to register with the law enforcement agency having jurisdiction over the institution's campus. MCL 28.724a, as added by 2002 PA 542. A registrant's status as a student or employee at such an institution began being listed on the registry. MCL 28.728(3)(b), as added by 2002 PA 542. Public Act 542 of 2002 also included a statement of legislative purpose:

The legislature declares that the sex offenders registration act was enacted pursuant to the legislature's [312 Mich.App. 657] exercise of the police power of the state with the intent to better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders. The legislature has determined that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state. The registration requirements of this act are intended to provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those persons who pose such a potential danger. [MCL 28.721a, as added by 2002 PA 542.]

         In 2004, registrants were first required to pay a $35 registration fee. MCL 28.725a(6), as added by 2004 PA 237. Another 2004 amendment required that photographs of registrants be added to the registry. MCL 28.728(3)(c), as added by 2004 PA 238.

          In 2005, SORA was amended to create " student safety zones." A student safety zone was defined as " the area that lies 1,000 feet or less from school property." MCL 28.733(f), as added by 2005 PA 121. Offenders were generally precluded from residing within student safety zones. MCL 28.735(1), as added by 2005 PA 121. This preclusion did not apply if the offender was residing within a student safety zone when the amendment became effective. MCL 28.735(3)(c), as added by 2005 PA 121.[9] Otherwise, an offender was required to " change his or her residence to a location outside the student safety zone not more than 90 days after he or she [was] sentenced for the conviction that [gave] rise to the obligation to register." MCL 28.735(4), as added by 2005 PA 121.

          [312 Mich.App. 658] Another amendment in 2005 precluded offenders from working or loitering within student safety zones. MCL 28.734, as added by 2005 PA 127. " Loiter" was defined as " to remain for a period of time and under circumstances that a reasonable person would determine [was] for the primary purpose of observing or contacting minors." MCL 28.733(b), as added by 2005 PA 121. This subsection likewise did not apply to a sex offender working within a student safety zone when the amendment became effective, MCL 28.734(3)(a), as added by 2005 PA 127, or to a sex offender " whose place of employment [was] within a student safety zone solely because a school [was] relocated or [was] initially established 1,000 feet or less from the individual's place of employment," MCL 28.734(3)(b), as added by 2005 PA 127.[10] In 2006, the public became eligible to receive a notification when a resident in a designated zip code was required to register as a sex offender or when a registered sex offender moved his or her residence to that zip code. MCL 28.730(3), as amended by 2006 PA 46.

         In 2011, SORA underwent what defendant characterizes as a " sweeping overhaul." The recapture provision was added. MCL 28.723(1)(e), as added by 2011 PA 17. Further, sex offenders were classified into three tiers according to the offenses of which they were convicted. MCL 28.722(r)-(w), as added by 2011 PA 17. Tier I offenders were required to register for 15 years, Tier II offenders for 25 years, and Tier III offenders for life. MCL 28.725(10)-(12), as amended by 2011 PA 17. Offenders were also required to report in person when they changed residences, changed places of employment, [312 Mich.App. 659] discontinued employment, enrolled as a student with institutions of higher education, discontinued such enrollment, changed their names, temporarily resided at any place other than their residence for more than seven days, established an e-mail or instant message address or " any other designations used in internet communications or postings," purchased or began regularly operating a vehicle, or discontinued such ownership or operation. MCL 28.725(1)(a)-(h), as amended by 2011 PA 17.

         In 2013, SORA was amended to require a $50 registration fee upon initial registration and each year thereafter, capped at $550. MCL 28.725a(6), as amended by 2013 PA 149. Further, the number of times and the specific months during which an offender had to report became dependent on the tier the offender fell into and the offender's birth month. MCL 28.725a(3), as amended by 2013 PA 149. In the present case, defendant, as a Tier III offender, must report four times each year for the rest of his life, MCL 28.725a(3)(c), as well as when any of the events listed in MCL 28.725(1).


          Determining whether a statutory scheme imposes a punishment requires a two-step inquiry. Temelkoski, 307 Mich.App. at 258. First, the Court must determine " whether the Legislature intended the statute as a criminal punishment or a civil remedy." Id. (quotation marks and citation omitted). If the intent was to punish, the inquiry is complete. Id. But " if the Legislature intended to enact a civil remedy, the court must also ascertain whether the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil." Id. (quotation marks [312 Mich.App. 660] and citations omitted; alteration in original). To do so, the Court looks to the seven factors enunciated in Kennedy v Mendoza-Martinez, 372 U.S. 144; 83 S.Ct. 554; 9 L.Ed.2d 644 (1963). Temelkoski, 307 Mich.App. at 259. Those factors are as follows:

" [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 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." [ People v Earl, 495 Mich. 33, 44; 845 N.W.2d 721 (2014), quoting Mendoza-Martinez, 372 U.S. at 168-169 .]

         These seven factors serve as " useful guideposts" and are " neither exhaustive nor dispositive." Earl, 495 Mich. at 44 Further, a party asserting that a statutory scheme imposes punishment must provide " 'the clearest proof that the statutory scheme is so punitive either in purpose or effect [as] to negate the [State's] intention to deem it civil.'" Id., quoting Kansas v Hendricks, 521 U.S. 346, 361; 117 S.Ct. ...

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