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People v. Patton

Court of Appeals of Michigan

August 2, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
NICHOLAS JAMES PATTON, Defendant-Appellant.

          Berrien Circuit Court LC No. 2017-001164-FH

          Before: Ronyane Krause, P.J., and Markey and Riordan, JJ.

          Markey, J.

         Defendant appeals by leave granted the trial court's order denying his motion to dismiss two counts of violating the sex offenders registration act (SORA), MCL 28.721 et seq., on the basis that MCL 28.727(1)(h) (requiring reporting "[a]ll telephone numbers registered to the individual or routinely used by the individual"), and MCL 28.727(1)(i) (requiring reporting "[a]ll electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual"), were unconstitutionally vague. Following a preliminary examination, defendant was bound over to circuit court. After briefing and argument of the parties, the trial court ruled that the SORA requirements at issue are not unconstitutionally vague. The trial court also found defendant's ex post facto challenge meritless and issued an order denying defendant's motion to dismiss. We affirm.

         Defendant is subject to the requirements of SORA based on his conviction by guilty plea on November 18, 2009, to second-degree criminal sexual conduct, MCL 750.520c(2)(b), alleged to have occurred on June 26, 2009. According to testimony at the preliminary examination, while defendant was on parole for that offense, his parole agent, Jeanice McConomy, received information that defendant had a cellular telephone that he was using to access the Internet, which was a violation of his parole conditions. During a home visit by McConomy on February 16, 2017, defendant initially denied having a cellular telephone. A search of defendant's person, however, revealed a cellular telephone in defendant's pocket that defendant then admitted was his. Defendant admitted that the cellular telephone could access the Internet, but he claimed that he only accessed the Internet to play games. Defendant denied accessing the Internet on the cellular telephone to visit pornographic websites. Defendant also admitted to McConomy that he did not register the cellular telephone or the cellular telephone number as required by SORA, although he did update his address and his employment. McConomy seized the cellular telephone and contacted police to arrest defendant for a parole violation. McConomy turned the cellular telephone over to Detective Cory Peek of the Berrien County Sheriff's Department.

         Detective Peek was received at the preliminary examination as an expert witness qualified in the area of forensic examination of electronic devices. Detective Peek confirmed that the cellular telephone was a "smart phone" that was capable of accessing the Internet. He used a program called Cellebrite to extract information from the cellular telephone. Detective Peek testified that he found "selfies" photographs of defendant on the cellular telephone. He also discovered pornographic pictures, several hundred e-mails-some of which were from dating websites-and an e-mail account with the address Littlenick642@yahoo.com with the name Nicholas Patton associated with it. Detective Peek also discovered a second e-mail address, Fearlove642@yahoo.com. After this testimony, the trial court, sitting as examining magistrate, bound defendant over to circuit court on both counts.

         In defendant's motion to dismiss the charges, he claimed that the SORA provisions that mandated his registration of cellular telephone numbers registered to him or routinely used by him and of any e-mail accounts assigned to him or routinely used by him violated his state and federal due-process rights because the mandates were unconstitutionally vague. He also claimed that the SORA provisions were unconstitutional because they violated the Ex Post Facto Clauses of the federal and state Constitutions.

         The prosecution argued that it was not relying on that part of the statutory prohibition of "routinely used" that this Court recently found unconstitutionally vague. See People v Solloway, 316 Mich.App. 174, 187; 891 N.W.2d 255 (2016). Rather, the prosecution argued that the phrase "routinely used" could be judicially severed from the statute to save it from constitutional infirmity. Thus, the prosecution argued that it was only proceeding under the "register[ed] to" and "assigned to" language of MCL 28.727(1)(h) and (i). The prosecution also argued that the SORA provisions did not violate the Ex Post Facto Clauses because SORA was not punitive. They are part of a civil remedy or protection.

         The trial court agreed with the prosecution's arguments, noting "that particular subsection of the statute should not be tossed out because one portion was found to be unconstitutionally vague. So I have no problem with allowing the prosecution to go forward on the portion of the statute . . . that is not unconstitutionally vague." The trial court also concluded that the statute was not an unconstitutional ex post facto law because the SORA provision that defendant was accused of violating did not reveal a criminal purpose. Accordingly, the trial court entered its order denying defendant's motion to dismiss. Defendant now appeals by leave granted.

         I. STANDARD OF REVIEW

         A trial court's decision regarding a motion to dismiss is reviewed for an abuse of discretion, People v Herndon, 246 Mich.App. 371, 389; 633 N.W.2d 376 (2001), which occurs when the court chooses an outcome that is outside the range of reasonable and principled outcomes, People v Bass, 317 Mich.App. 241, 256; 893 N.W.2d 140 (2016). This Court reviews de novo the meaning of a statute, People v Pfaffle, 246 Mich.App. 282, 295; 632 N.W.2d 162 (2001), and also reviews de novo constitutional issues, Solloway, 316 Mich.App. at 184.

         II. DISCUSSION

         A. DUE PROCESS

         We conclude that the trial court properly severed the unconstitutionally vague phrase "routinely used" from MCL 28.727(1)(h) and (i). Consequently, the trial court correctly ruled that the prosecution could continue under the "registered to" and "assigned to" portions of those SORA requirements that were not unconstitutionally vague. We further hold that the statutory provisions did not violate the Ex Post Facto Clauses of the federal and state Constitutions.

         Defendant was charged with violating the reporting requirements of SORA under MCL 28.727(1)(h) and (i), which state, in pertinent part:

(1) . . . All of the following information shall be obtained or otherwise provided for ...

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