Michigan Court of Appeals Denies Sex Offender Registry Removal Petition

On February 19th, 2015, the Michigan Court of Appeals held in a criminal case that defendant is ineligibile for removal from the Sex Offender Registry because he was more than four calendar years older than the victim at the time of the offense. The Court also held that defendant's registration requirement does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.

In People v Costner, Docket No. 316806, the Michigan Court of Appeals addressed two issues:

  1. Whether defendant is eligible for removal from the Sex Offender Registry; and 
  2. Whether defendant's registration requirement is cruel and unusual punishment.

The Court first recited the facts of the case.

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 being born on February 21, 1991, and the victim being 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 sentenced defendant on the probation violation to 13 days in jail 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 Offender 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 defend to six months in jail.

Defendant subsequently petitioned to be removed from the sex-offender registry pursuant to MCL 28.728c(14) . . .

Defendant argued that because there is only a four-year difference between him and the victim’s age, he necessarily was “not more than 4 years older” than her. Defendant relied on MCL 8.3j, which defined “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 27.728c and MCL 8.3j is not violated by this interpretation. [Footnote omitted.]

The Court's analysis of whether defendant is eligible for removal from the Registry followed.

. . . There is no dispute that defendant actually is 4 years and 23 days older than the victim. Thus, on its face, defendant is more than four years older than the victim, and he cannot satisfy the requirements of MCL 28.728c(14)(a)(ii). Defendant, however, argues that this Court’s implementation of the “birthday rule” in People v Woolfolk, 304 Mich App 450; 848 NW2d 169 (2014), supports his position that he was only four years—and thus was not more than four years—older than the victim.

In Woolfolk, this Court was confronted with whether the defendant, who was convicted for committing a murder on the evening before his 18th birthday, id. at 458, should nonetheless be considered 18 years old at the time of the murder. As the Court acknowledged, contrary to common assumption or understanding, when computing a person’s age, common law provides that a person “‘reaches his next year in age at the first moment of the day prior to the anniversary date of his birth.’” Id. at 461, quoting Nelson v Sandkamp, 227 Minn 177, 179; 34 NW2d 640 (1948) (emphasis added). For example, under the common law, a person is considered to turn 18 years old the day before the 18th anniversary of his birth.

The Court, however, rejected the common law method of determining when a person reaches a certain age and, instead, adopted the more commonly recognized method under the “birthday rule,” where “a person attains a given age on the anniversary date of his or her birth.” Woolfolk, 304 Mich App at 464, 504 (quotation marks omitted).

Defendant’s reliance on Woolfolk is misplaced. Woolfolk only pertained to the proper method to calculate a person’s age. More specifically, it addressed when a person attains the next age of his or her life. This concept has no application to the present issue. There is no question that in the present case, at the time of the offense, defendant and the victim had attained the ages of 18 and 14, respectively. Nothing in Woolfolk suggests that when determining whether someone is “more than 4 years older” than someone else, one simply takes the difference between both persons’ “year” age, thereby ignoring the persons’ actual age, which includes not only how many years they have been alive, but also how many months and days. In fact, Woolfolk even relied on Bay Trust Co v Agricultural Life Ins Co, 279 Mich 248; 271 NW 749 (1937), in which our Supreme Court, in the context of an insurance policy provision, held that a person who was 60 years, 2 months, and 10 days old was “over the age of 60 years.” Woolfolk, 304 Mich App at 498-499. The Supreme Court noted that “a year is a unit of time” and that the deceased had lived “over, beyond, above, or in excess” of 60 years. Bay Trust Co, 279 Mich at 252. Likewise, defendant, being 4 years and 23 days older than the victim was indeed “more than 4 years older than the victim . . . .”

. . . [W]e hold that under MCL 28.728c(14)(a)(ii), when it inquires into whether a defendant “is not more than 4 years older than the victim,” it is using the commonly understood definition of a “year” as a measure of time, and a “year” is commonly understood as being 12 months in duration. See Random House Webster’s College Dictionary (1997) (defining “year,” in pertinent part, as “a space of 12 calendar months calculated from any point”). Therefore, one who is even one day past the 4-year or 48-month eligibility limit described in MCL 28.728c(14)(a)(ii) is ineligible to obtain relief under that statute. Consequently, defendant being 4 years and 23 days older than the victim in the present case is “more than 4 years older” than the victim, and the trial court was correct to deny defendant’s petition.

The Court's analysis of whether defendant's registration requirement is cruel and unusual punishment followed.

. . . [B]efore determining whether a punishment is cruel or unusual, a “threshold question” must be answered: does the complained-of punishment constitute “punishment” under the constitution? In re Ayres, 239 Mich App 8, 14; 608 NW2d 132 (1999). The SORA requires persons convicted of certain listed offenses to register as sex offenders. MCL 28.723. However, this Court has held that this registration requirement is not “punishment.” People v Fonville, 291 Mich App 363, 381; 804NW2d 878 (2011), citing People v Golba, 273 Mich App 603, 617; 729 NW2d 916 (2007).

Although a defendant may see registration as a penalty for a conviction for a listed offense, it is not actually a punitive measure intended to chastise, deter or discipline an offender. It is merely a “remedial regulatory scheme furthering a legitimate state interest.” [Fonville, 291 Mich App at 381, quoting Golba, 273 Mich App at 617 (other quotation marks and citations omitted).]

Thus, because the SORA registration requirement is not “punishment,” the requirement does not constitute cruel and unusual punishment in violation of the Michigan or federal constitutions, Golba, 273 Mich App at 617-620, and defendant’s unpreserved argument is therefore unavailing. See also People v Temelkoski, ___ Mich App ___; ___ NW2d ___ (Docket No. 313670, issued October 21, 2014), slip op, p 16.

In spite of acknowledging the controlling legal authority that registration is not a punitive measure, defendant relies on this Court’s decision in People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009), and argues that the registration requirement, as applied to him, still constitutes cruel or unusual punishment under the Michigan Constitution. However, Dipiazza is factually distinguishable from the instant case, and, even if defendant’s argument was not precluded by Fonville and Golba, there is no guidance to be had from it.

In Fonville, 291 Mich App at 381-382, this Court aptly summarized Dipiazza:

In Dipiazza, this Court held that requiring the defendant in that case to register as a sex offender was cruel or unusual punishment. However, in that case, after the defendant completed probation, his case was dismissed under the terms of [HYTA], leaving him with no conviction on his record. Despite the dismissal of his case, because he was assigned to youthful-trainee status on August 29, 2004, he continued to remain required to register as a sex offender, whereas after amendments of SORA, a defendant assigned to youthful-trainee status after October 1, 2004, was not required to register (unless the defendant’s status of youthful trainee was revoked and an adjudication of guilt was entered). This Court concluded that, under those circumstances, requiring the defendant to register as a sex offender was cruel or unusual punishment. [Citations omitted.]

In the instant case, after defendant was afforded the benefit of HYTA status to induce his compliance with his probationary terms and, more importantly, to avoid a felony conviction and the obligation to register as a sex offender, defendant repeatedly violated his probation. Consequently, unlike the defendant in Dipiazza, defendant’s HYTA status was revoked, and his conviction was never dismissed. Therefore, the reasoning in Dipiazza is not applicable to the instant case, and we perceive no plain error.