opinion is subject to revision before final publication in
the Michigan Court of Appeals reports.
Oakland Circuit Court. LC No. 2012-242851-FH.
PEOPLE OF MI, Plaintiff-Appellee: TANYA NAVA,
PROSECUTOR-APPELLATE DIVISION, PONTIAC, MI.
ANTHONY GESTAIL TUCKER, Defendant-Appellant: JESSICA L.
ZIMBELMAN, LANSING, MI.
AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Amicus Curiae:
SOFIA V. NELSON, DETROIT, MI.
HOEKSTRA, P.J., and JANSEN and METER, JJ.
Mich.App. 649] Per Curiam.
appeals by delayed leave granted 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.
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
(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.
October 8, 2013, defendant pleaded no contest to felonious
assault, MCL 750.82, and domestic violence, MCL 750.81(2),
under a Cobbs  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) and gave defendant the
opportunity to withdraw his plea. Defendant declined.
Defendant was required to register for life as a Tier III
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.
Mich.App. 651] II. EX POST FACTO CLAUSES
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.
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).]
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
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.
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
CRUEL OR UNUSUAL PUNISHMENT
next argues that requiring him to register as a sex offender
constitutes cruel or unusual punishment. We disagree.
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. 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). 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.
HISTORY OF 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. 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.
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."
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.
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
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.]
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.
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. 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.
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. 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
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.
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).
THE MENDOZA-MARTINEZ FACTORS
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:
"  Whether the sanction involves an affirmative
disability or restraint,  whether it has historically been
regarded as a punishment,  whether it comes into play only
on a finding of scienter,  whether its operation will
promote the traditional aims of punishment--retribution and
deterrence,  whether the behavior to which it applies is
already a crime,  whether an alternative purpose to which
it may rationally be connected is assignable for it, and 
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 .]
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. ...