Michigan Court Of Appeals Holds SORA Covers Non-Sexual Conduct

On March 26, 2015, the Michigan Court of Appeals held in a criminal case that the Michigan Sex Offender Registration Act (SORA) applies to crimes that have no sexual misconduct component whatsoever - specifically in this case the felony of unlawful imprisonment of a minor.

In People v Bosca, Docket No. 317633, the Michigan Court of Appeals addressed an unusual fact pattern involving two men who caught teenagers breaking in to one of the men's home to steal his medical marijuana. After catching the teenagers, the two men tied them up with duct tape in the home and threatened them with physical harm. A jury found both men guilty of a number of crimes including unlawful imprisonment of a minor.

Under Michigan's SORA, unlawful imprisonment of a minor is a listed offense requiring a person convicted of it to register under the SORA - regardless of whether the unlawful imprisonment included sexual misconduct or not.

The Court's opinion is quite long - 47 pages - and calls on the Michigan Legislature to address the fact that a person can be punished as a "sex offender" under Michigan law without ever having committed any sexual misconduct.

The Court first recited the facts of the case.

Defendant’s convictions arise out of an incident that occurred on June 13, 2011 in Sterling Heights, Michigan. After four minor teenaged boys broke into defendant’s home to steal his marijuana, defendant and two associates, Gerald King and Allen Brontkowski, captured and held them against their will in defendant’s basement. The boys testified that they were duct- taped to chairs, hit with a pistol, kicked and beaten, and threatened with a sword, hatchet, pliers, cigar cutter, flammable liquids, and a circular saw . . . .

The jury convicted defendant as described above. At his sentencing hearing on September 4, 2012, defendant’s counsel sought to disqualify the prosecutor’s office, asserting that the prosecutor had only pursued legal action against defendant on behalf of the boys as victims but had concurrently ignored defendant’s status as a victim of the boys based on the prior break-in and theft from his home. The prosecutor responded, citing the discretion afforded in bringing criminal charges, and the trial court denied the motion. At sentencing, defendant indicated that there were inaccuracies in the presentence investigation report and objected to the scoring of offense variables (OVs) 1, 2, 3, 4, 7, 8, 10 and 13. He also asserted that a downward departure from the guidelines would have been appropriate. The trial court imposed the sentence described above.

Following sentencing, defendant filed a motion for a new trial or judgment of acquittal, and for resentencing. Specifically, defendant challenged the great weight of the evidence and asserted a lack of evidence of criminal intent to support the convictions, and asserted that the prosecution committed misconduct in failing to disclose or obtain cellular telephone records and medical records of the victims. He also requested a Ginther hearing on the ineffective assistance of his trial counsel, citing the failure of counsel to pursue or obtain these records through discovery. Defendant also challenged the requirement that defendant register as a sex offender pursuant to SORA, as an unconstitutional violation of his rights to due process and to be free from cruel and unusual punishment.

The trial court issued a written opinion and order on defendant’s motion on July 24, 2013. In evaluating defendant’s numerous sentencing challenges, the trial court indicated satisfaction with the original handling of defendant’s objections to the scoring of the various OVs and determined that reassessment of the scoring was unnecessary. The trial court similarly found it unnecessary to revisit defendant’s request for a downward departure because “these issues . . . were previously addressed and adequately supported by the record.” The trial court determined that defendant’s challenge to the requirement that he register under SORA to be one that “should be fully litigated.” The trial court instructed the prosecutor to respond to defendant’s challenges on this issue and to that extent granted defendant’s motion for resentencing in part. The trial court denied the remainder of defendant’s motion. The trial court did not make a final ruling on the SORA issue prior to defendant’s August 9, 2013 filing of a claim of appeal. Thereafter, on March 6, 2014, the trial court issued an opinion and order denying defendant’s motion for resentencing regarding the SORA issue. On March 25, 2014, this Court granted defendant’s motion (which was unopposed by plaintiff) to file a supplemental brief on appeal with respect to that issue, and accepted defendant’s previously-submitted supplemental brief for filing. Plaintiff filed a supplemental brief in response on April 15, 2014.

The Court then addressed a number of defendant's other arguments on appeal before analyzing whether Michigan's SORA required defendant to register as a sex offender for criminal conduct completely devoid of a sexual component.

Finally, defendant asserts in his supplemental brief various constitutional challenges to the trial court’s requirement that he register in accordance with SORA, MCL 28.721 et seq., insofar as that requirement arises from his conviction for unlawful imprisonment. Those challenges include that the required registration comprises cruel and unusual punishment under the Eighth Amendment to the United States Constitution, violates his right to due process under the Fourteenth Amendment to the United States Constitution, violates the Title-Object Clause of the Michigan Constitution, and fails the constitutionally-required rational relationship test. This Court reviews constitutional issues de novo. People v Fonville, 291 Mich App 363, 376; 804 NW2d 878 (2011). Similarly, this Court reviews “de novo the interpretation and application of statutes.” People v Waclawski, 286 Mich App 634, 645; 780 NW2d 321 (2009) (citation and quotation marks omitted). “In determining whether a sentence is cruel or unusual, we look to the gravity of the offense and the harshness of the penalty, comparing the penalty to those imposed for other crimes in this state as well as the penalty imposed for the same offense by other states and considering the goal of rehabilitation.” People v Poole, 218 Mich App 702, 715; 555 NW2d 485 (1996) . . . .

Before addressing the constitutional issues raised in the supplemental briefs, we first address the issue of whether SORA applies at all in this circumstance, where the record reflects that there was nothing “sexual” about the conduct that led to defendant’s conviction for unlawful imprisonment. We note that defendant does not argue that SORA is inapplicable; rather, defendant’s argument is purely a constitutional one, i.e., that in this circumstance, the requirement that he register as a “sex offender” under SORA is constitutionally impermissible. However, we do not consider the constitutionality of a statute unless it is essential to the disposition of the case before us. People v Higuera, 244 Mich App 429, 441; 625 NW2d 444 (2001). Therefore, before undertaking a constitutional analysis, and in order to give that analysis context, we first address the issue as a matter of statutory interpretation and consider whether SORA, by its language, applies to the crimes for which defendant was convicted.

We must first determine which version of SORA applies in this case. SORA requires registration by an “individual[] who [is] domiciled . . . in this state” and “who is convicted of a listed offense after October 1, 1995.” MCL 28.723(1)(a). At the time defendant’s offenses were committed in June 2011, an earlier version of the statute was in effect. Under that earlier version of the statute, SORA did not include as a “listed offense” a violation of MCL 750.349b (unlawful imprisonment) where the victim was a minor. See 2005 PA 301 . . . .

Similarly, SORA has been found not to be punitive in nature, but rather as also comprising a civil remedy. People v Pennington, 240 Mich App 188, 193-197; 610 NW2d 608 (2000); People v Golba, 273 Mich App 603, 617; 729 NW2d 916 (2007). Thus, registration under SORA “is governed by [the version of] the statute in effect at the time of sentencing.” People v Lueth, 253 Mich App 670, 693; 660 NW2d 322 (2002). That version is the version adopted in 2011, with an effective date of July 1, 2011. See 2011 PA 17. Moreover, application of the 2011 version of SORA to defendant, notwithstanding that defendant’s offenses were committed before its effective date, does not violate the ex post facto clause. Pennington, 240 Mich App at 197. We therefore hold that the trial court ultimately was correct in applying the 2011 version of SORA, and in considering its applicability to the “listed offense” of unlawful imprisonment, MCL 750.349b, where the victims were minors . . . .

Having determined that it is the 2011 version of SORA that we must apply, we must next assess the scope of its reach. Specifically, we must determine whether SORA applies where the “listed offense,” which in this case is unlawful imprisonment, MCL 750.349b, of a minor, arises from conduct that the record reflects was not of a sexual nature . . . .

This Court addressed that question to some extent in Fonville, and upheld a defendant’s required registration under SORA for the offense of child enticement, MCL 750.350, a listed Tier III offense. MCL 28.722(w)(iii). Fonville, 291 Mich App at 379-380.16 The defendant in that case pleaded guilty to child enticement after failing to return children who had been voluntarily placed in his care, and after instead keeping them with him in his vehicle while he and his friend drove around under the influence of alcohol and drugs. Id. at 367-368. This Court noted that “the offense of child enticement includes no express sexual component as a requirement for a conviction of the offense.” Id. at 380. Yet, the Fonville Court concluded that “the Legislature has nevertheless deemed registration for those convicted of that crime to be a necessary measure to protect the safety and welfare of the children of this state. And in that case, Fonville admitted that his conduct, while not sexual in nature, ‘endangered two young kids[.]’ ” Id. Similarly, here, defendant’s conduct definitely endangered his minor victims.

Fonville thus directs our conclusion that where, as here, a defendant is convicted of a “listed offense,” SORA applies even though the underlying conduct is not sexual in nature. Because the rationale for the Court’s conclusion in Fonville may not be readily apparent, however, we find it helpful to delve into the statutory basis that we believe resulted in the conclusion reached in Fonville . . . .

[W]e hold, from a statutory interpretation perspective, that the reach of SORA extends generally to the offense of unlawful imprisonment where the victim is a minor, without regard to whether the underlying conduct was in any way sexual in nature . . . .

. . . [W]e reject defendant’s constitutional challenges to his required registration under SORA, but call for legislative action to address aspects of the statute as discussed in this opinion.