Michigan Court Of Appeals Affirms Lifetime Sex Offender Registry Sentence

On October 15, 2015, the Michigan Court of Appeals affirmed a sentence in a criminal case that required defendant to register as a sex offender for the remainder of his natural life. The case presented a rare situation where defendant was required to register as a sex offender for a sex crime that defendant committed years before the SORA was enacted. Under the SORA's "recapture" provision, a defendant who previously committed a sex crime before the SORA was enacted may be required to register as a sex offender if he committed any other felony after the SORA was made law.

In People v Tucker, Docket No. 322151, the Michigan Court of Appeals addressed two major issues raised by defendant on appeal, including:

  1. whether the recapture provision of the SORA violated the Ex Post Facto Clause of the Michigan and United States Constitution; and
  2. whether the recapture provision of the SORA violated the Eighth Amendment's prohibition of cruel and unusual punishment.

The Court first recited the facts of the case:

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. 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 SORA, 2011 PA 17, to include the following “recapture” provision, codified at MCL 28.723(1)(e):

(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 agreement under 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 in order for the trial court to remove him 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 the law.

The Court's analysis of whether the trial court erred in requiring defendant to register as a sex offender under the SORA for the remainder of his natural life followed:

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 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, 124-225; 587 NW2d 1 (1998), quoting Nichols v United States, 511 US 738, 747; 114 S Ct 1921; 128 L Ed 2d 745 (1994). Callon is instructive in this regard. 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 liquors or while having a blood alcohol content of 0.10 grams or more per 100 milliliters of blood (OUIL/UBAL), MCL 257.625(1). Id. at 314. During the period between the two offenses, the Legislature amended the pertinent statute 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 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 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 319. 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 . . . .

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

Article I, § 16 of the Michigan Constitution prohibits the infliction of cruel or unusual punishment. A threshold question in this case, of course, 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 NW2d 916 (2007); People v Pennington, 240 Mich App 188, 191-197; 610 NW2d 608 (2000). But defendant posits an argument that we have not yet addressed. He argues that in light of recent amendments that have added to the requirements of sex offender registration, it now constitutes punishment. He specifically draws our attention to school safety zones and in-person reporting requirements. We take this opportunity to address the constitutionality of these provisions . . . .

As is apparent from our foregoing discussion, the Mendoza-Martinez factors point us in both directions when it comes to school safety zones. We conclude that such zones impose affirmative restraints, resemble historical punishments, and promote deterrence. However, we also conclude that they are rationally connected to the nonpunitive purpose of public safety and that they are not excessive, as the Legislature is permitted to make the categorical judgment that sex offenders should not live, work, or loiter near schools. Weighing these factors, we are mindful that the burden lies with defendant to establish that school safety zones are punitive. As stated, a party asserting that a statutory scheme imposes punishment must provide “the clearest proof” that the scheme “ ‘is so punitive either in purpose or effect to negate the . . . intention to deem it civil.’ ” Earl, 495 Mich at 44, quoting Hendricks, 521 US at 361 (alteration in Earl). In this case, given that the Mendoza-Martinez factors cut both ways, we cannot conclude that defendant has met his burden. Further, even some of the factors that weigh in defendant’s favor only do so to a limited extent. The zones plainly restrict where offenders can live and work, but the restriction is not absolute, and, therefore, the restrictions are distinguishable from true banishment. And although the zones specifically deter the registered offenders, the Smith Court held that even a deterrent purpose will not render a civil regulatory scheme punitive. Smith, 538 US at 102. Moreover, the nonpunitive purpose of the zones is the most important factor in determining whether they are punitive in effect. See id. Given these considerations, there is not the clearest proof that the school safety zones are so punitive in purpose or effect as to negate the Legislature’s intent to deem them civil. See id . . . .

Regarding the in-person reporting requirements, the Mendoza-Martinez factors do not readily lead to one conclusion over the other. The requirements impose affirmative restraints and arguably resemble conditions of probation and supervised release. However, they do not necessarily promote deterrence or retribution, they are rationally connected to the nonpunitive purpose of protecting the public by ensuring that the registry is accurate, and they are not excessive. As with the school safety zones, we cannot find the clearest proof that they are punitive in effect given that the Mendoza-Martinez factors cut both ways. Further, we again find that even some of the factors that weigh in defendant’s favor only do so to a limited extent. Although the reporting requirements are undeniably burdensome, their restraining effect is not absolute. Registrants are not precluded from many activities, such as changing residences or jobs, but are merely required to report them. And many of the considerations that Smith used to distinguish sex offender registration from probation and supervised release still apply to the in-person reporting requirements. Moreover, the nonpunitive purpose of the zones is the most important factor in determining whether they are punitive in effect. See Smith, 538 US at 102. Given these considerations, we conclude that there is not the clearest proof that the in-person reporting requirements are so punitive in purpose or effect as to negate the Legislature’s intent to deem them civil . . . .