Michigan Court of Appeals Affirms Sex Offender Conviction

On March 5th, 2015, the Michigan Court of Appeals affirmed the conviction of a sex offender for failing to register as required under Michigan's Sex Offenders Registration Act. Defendant argued on appeal that the trial court erred in denying his request for a new attorney on the day of trial and that the trial court erred in failing to instruct the jury on an alleged "willfulness" requirement not found in the Act at issue.

In People v McFall, Docket No. 318830, the Michigan Court of Appeals addressed two issues involving a defendant's request for a new attorney and the language of the Sex Offenders Registration Act.

The Court first recited the facts of the case.

After his release from prison on February 18, 2013, defendant registered as a sex offender at the Emmet County Sherriff’s Office, as required by MCL 28.725a(3)(c). However, defendant did not visit the Sheriff’s Office to verify his address between April 1 and April 15. On April 16, the Michigan State Police alerted local law enforcement that defendant did not comply with his obligations under the SORA. The prosecution charged him with violation of MCL 28.729(2)4 in the Emmet Circuit Court, which empanelled a jury to hear the case.

Because defendant is indigent, the state appointed an attorney to represent him, who, by chance, had prosecuted defendant for his earlier sex offenses. Nonetheless, defendant—who was aware that the attorney had prosecuted him—did not object to the appointment, and even stated that the attorney is a “good lawyer.”

Soon after the completion of jury selection, defendant’s counsel, outside of the presence of the jury, informed the trial court that defendant wanted substitute counsel. The attorney explained that, the night before and the morning of trial, defendant told him that he should not have waived the preliminary examination, and complained of a supposed lack of communication between counsel and defendant. Defendant then spoke with the trial court, and claimed that his attorney had discussed his defense strategy with the prosecutor and the court—namely, whether defendant could claim that he did not “willfully” violate MCL 28.729(2). The court explained to defendant that both his attorney and the prosecutor had submitted their proposed jury instructions, and that the court would not include an instruction on willfulness as an element of the SORA violation. It also told defendant that his lawyer had not discussed any other trial strategy with the trial court or the prosecutor.

After defendant stated that he had told his attorney the night before trial that he no longer wanted the attorney to represent him, the trial court denied his request for substitute counsel. The trial court stated that defendant’s effort was “an improper tactical maneuver . . . on the morning of trial to impede progress of this matter,” and further stressed that: (1) defendant was aware of his attorney’s prior prosecution of him from the beginning of the representation, and yet did not object to the appointment; and (2) defense counsel was a skilled attorney who regularly appeared before the court, and that defendant had acknowledged his lawyer’s capability. Defendant’s case then proceeded to trial.

Defendant, who testified on his own behalf, argued that he did not “willfully” violate the SORA—he believed he only had to verify his residency every 90 days—and that he could not be convicted under MCL 28.729(2) as a result. The trial court, holding that MCL 28.729(2) was a strict liability offense, did not include an instruction on “willfulness” in the jury instructions, and the jury convicted defendant of failing to register as a sex offender under the statute.

On appeal, defendant argues that the trial court abused its discretion when it: (1) denied his request for substitute counsel; and (2) refused to instruct the jury on the element of “willfulness” supposedly contained in MCL 28.729(2).

The Court first addressed whether the trial court should have honored defendant's request for a new attorney before trial.

Here, defendant argues that he should have received substitute counsel because his attorney: (1) prosecuted him for sex offenses in 1995 (and obtained the conviction that led to his imprisonment); (2) allegedly waived the preliminary examination over his objection; (3) supposedly did not communicate with him and provide him materials related to his trial; and (4) disagreed with him on what defense to pursue.

None of these assertions have any merit. As noted, defendant knew that his attorney had prosecuted him from the beginning of the representation. And yet, he did not voice any concerns about the issue (or any other aspects of defense counsel’s representation) until the night before trial, when he supposedly requested new counsel. If defendant was uncomfortable with his attorney’s representation in light of their prior history, the opportunity for him to request substitute counsel was at the beginning of representation—not the night before trial. Defendant’s protestation on this point is particularly unconvincing because of his satisfaction with defense counsel’s services earlier in the representation—again, defendant went so far as to call his attorney “a good lawyer.”

Moreover, there is nothing in the record to demonstrate that defense counsel “ignored” defendant’s alleged desire to have a preliminary examination, nor is there any indication that defense counsel failed to answer defendant’s calls, reply to his mail, or provide him with needed discovery materials. The record also belies defendant’s contentions that defense counsel did not pursue the defense he wanted—his attorney asked the court to instruct the jury that a MCL 28.729(2) violation must be willful, and defendant testified on his own behalf that he did not “willfully” disregard the statute’s mandates.

Defendant therefore failed to show good cause for the appointment of substitute counsel, and the trial court correctly denied his request for a new attorney.

The Court then addressed defendant's argument concerning a mens era requirement in the Act at issue.

[T]he plain language of the statute indicates that MCL 28.729(2) is a strict liability offense that does not require a “willful” mental state—or any other mental state—for violation (as opposed to other provisions of the statute not exempted by MCL 28.729(1), which specifically mention the word “willfully” multiple times). “Generally, when language is included in one section of a statute but omitted from another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion.” People v Peltola, 489 Mich 174, 185; 803 NW2d 140 (2011). “[C]ourts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.” Id.

Here, defendant unconvincingly claims that the trial court erred when it refused to instruct the jury that his violation of MCL 28.729(2) needed to be “willful.” As noted, MCL 28.729(2) imposes a strict liability penalty—it does not include the word “willful” or “willfully” and is instead silent as to mental state—in a statute that repeatedly specifies a mental state in its other subsections. Again: “when language is included in one section of a statute but omitted from another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion.” Peltola, 489 Mich at 185.

Defendant did not fulfill his obligations under MCL 28.725a(3)(c), which required him to report to the sheriff’s office between April 1, 2013 and April 15, 2013. He therefore violated MCL 28.729(2). The statute makes no mention of a requisite mental state, and defendant’s assertions to the contrary have no merit whatsoever. Accordingly, the trial court correctly denied his request to include a “willful” mental state in the jury instructions.