Opinion
334057
08-18-2022
In re MICAH MELCHIZEDEK DANIEL, Minor. v. MICAH MELCHIZEDEK DANIEL, Respondent-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellant, and ATTORNEY GENERAL, Amicus Curiae,
UNPUBLISHED
Washtenaw Circuit Court Family Division LC No. 15-000375-DL
Before: K. F. KELLY, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
In this case involving the sexual assault of a 15-year-old victim by respondent, then 16-years-old, and another teenager, which now returns to us on remand from the Michigan Supreme Court, we reversed the order of the trial court exempting respondent from registering as a sex offender under Michigan's Sex Offenders Registry Act (SORA), MCL 28.721 et seq. In re Daniel, unpublished per curiam opinion of the Court of Appeals, issued September 12, 2017 (Docket No. 344057), p 1. As relevant here, we determined the requirement under SORA that respondent register as a sex offender was not a violation of the United States and Michigan Constitutions' prohibitions on cruel or unusual punishment because the purpose and effect of the law was not punitive. Id. at 4-9. However, in People v Betts, 507 Mich. 527, 562; 968 N.W.2d 497 (2021), the Michigan Supreme Court concluded that the requirement that offenders register under SORA constituted punishment for purposes of the prohibition on ex post facto laws. Thus, the Michigan Supreme Court remanded this case to us to reconsider our decision regarding respondent's Eighth Amendment challenge in light of Betts. In re Daniel, Mich.; 969 N.W.2d 56 (2022). Because we conclude the imposition of SORA on juveniles is not cruel or unusual punishment, we reverse the dispositional order of the trial court and remand for further proceedings.
I. BASIC FACTS AND PROCEDURAL HISTORY
This Court's earlier opinion describes the factual circumstances of the case:
The 15-year-old complainant was a resident at the Washtenaw County Detention Facility. She performed oral sex on 16-year-old T.B., who was also a resident at the facility. In a forensic interview, complainant indicated that while she was performing oral sex on T.B., respondent groped her buttocks from behind. Respondent also forced complainant's head down on T.B.'s ejaculating penis. The interviewer asked for clarification on a few points and included the following in her forensic interview report:
[Complainant] clarified that [respondent] was the one who pushed her head down when [T.B.] was almost done. She said she saw him move his hand and then he started laughing so hard, he had to leave the room. [Complainant] said [respondent] was also grabbing her butt when she was giving [T.B.] head. She said she told him to stop and pushed his hand away, but he kept doing it.
I told [complainant] that she had told me part was consensual and part was not. I asked what part was not consensual. She said the part with [respondent] grabbing her butt and pushing down her head. She said everything with [T.B.] was consensual. I asked what [T.B.] said when [respondent] pushed her head. [Complainant] said she thinks he laughed, but that was because she got it on her face.The interviewer asked complainant what she wanted to "see happen" with the investigation. Complainant said "she didn't want any charges to be pressed. She is not mad about what happened with [T.B.], but she is mad about [respondent] shoving her head down."
Following the investigation, respondent pleaded responsible to third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with a person 13 years of age and under 16 years) for aiding and abetting oral sex, and fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(b) (sexual contact through force or coercion), for touching the complainant. Respondent's CSC-III charge was a "Tier III offense," for which registration as a sex offender was required under MCL 28.723. Respondent was required to register as a sex offender unless "the court determines that the victim consented to the conduct constituting the violation, that the victim was at least 13 years of age but less than 16 years of age at the time of the offense, and that the individual is not more than 4 years older than the victim." MCL 28.722(w)(iv).
Respondent asked to be exempted from the SORA registration requirement. Petitioner filed a response, noting that the victim had not consented to respondent's conduct, noting that complainant specifically reported that respondent's acts of groping her buttocks and forcefully pushing her head down on to T.B.'s penis were non-consensual.
At a hearing on the issue, respondent acknowledged that there was no legal or factual basis for his position. Still, the lower court concluded:
[W]hen statutes are written I think you can necessarily not anticipate every scenario there is going to be and . . . I imagine this is one of the scenarios everyone wouldn't - no one would have put . . . in the forefront of their mind when writing the statute. I think that it's clear from the statement . . . from the Complainant that the sexual act on the co-Respondent was consensual. [Respondent] then put his hand on her head, she said that touching was not consensual . . . but I am convinced with the fact that she consented to the sexual act which is what the purpose of the Sex Offender Registry is . . . that I am finding . . . that she consented to the conduct and that [respondent] is not required to register.
Um - I don't think this is the kind of conduct they intended to have register and the fact that they put in the exception - the so-called Romeo and Juliet exception . . . - that it is much more conduct that falls under that exception to the Registry than it is . . . the other. So I am not going to require that he register.
So it is a dispositional order . . . and all it's gonna say is plea accepted, . . . the Court finds that the complainant consented to the conduct . . . [In re Daniel, unpub op at 1-3 (alterations in original).]
The prosecutor appealed the trial court's order, contending the evidence demonstrated that respondent's contact with the complainant was not consensual. In an unpublished decision, we reversed the trial court's dispositional order. First, we concluded the trial court erred when it found that the contact between respondent and the complainant was consensual:
Complainant repeatedly indicated that certain of her acts with T.B. were consensual. However, she clearly did not consent to having respondent force her head down on T.B.'s ejaculating penis. Complainant was free to withdraw consent and stop performing oral sex. Respondent's behavior inhibited complainant from potentially withdrawing previously bestowed consent. The lower court erred in concluding that respondent was exempted from registering as a sex offender. [Id. at 4 (citation omitted).]
Having concluded the trial court erred, we next addressed respondent's argument that the imposition of the reporting requirement constituted cruel or unusual punishment under the United States and Michigan constitutions. Relying principally on People v Temelkoski, 307 Mich.App. 241; 859 N.W.2d 743 (2014), rev'd 501 Mich. 960 (2018), and People v Tucker, 312 Mich.App. 645; 879 N.W.2d 906 (2015), we concluded the reporting requirement did not violate the prohibition on cruel or unusual punishment because the reporting requirement did not constitute punishment and could, therefore, not constitute cruel or unusual punishment. In re Daniel, unpub op at 4-9.
Respondent filed an application for leave to appeal with the Michigan Supreme Court, which held the application in abeyance while it considered People v Betts, 507 Mich. 527, 562; 968 N.W.2d 497 (2021). On July 27, 2021, the Michigan Supreme Court decided Betts, concluding the retroactive application of SORA to offenders convicted before its enactment violated the constitutional prohibitions on ex post facto laws. Betts, 507 Mich. 562. The Michigan Supreme Court considered five separate factors in deciding that SORA was punishment for purposes of determining whether retroactive application of the law runs afoul of prohibitions on ex post facto laws:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned .... [Betts, 507 Mich. at 543, quoting Kennedy v Mendoza-Martinez, 372 U.S. 144, 168-169; 83 S.Ct. 554; 9 L.Ed.2d 644 (1963).]
First, the Court concluded that SORA "bears significant resemblance to the traditional punishments of banishment, shaming, and parole because of its limitations on residency and employment, publication of information and encouragement of social ostracism, and imposition of significant state supervision." Betts, 507 Mich. at 553. Next, the Court concluded that SORA imposed an "affirmative disability or restraint" because SORA "impose[s] onerous restrictions on registrants by restricting their residency and employment, and it also impose[s] significant affirmative obligations by requiring extensive in-person reporting." Id. at 556. With respect to whether SORA "promote[s] the traditional aims of punishment," the Court determined that the goal of SORA was "to protect the public through deterrence and because its restrictions appear retributive," the law "promotes the traditional aims of punishment." Id. at 558. And while the Court did find that SORA was connected to nonpunitive purposes, such as the monitoring of offenders and protection of public safety, the Court concluded the means chosen by the Legislature were excessive because the law imposes "demanding and intrusive requirements," which are "imposed uniformly on all registrants regardless of an individual's risk of recidivism ...." Id. at 562.
Having decided in Betts that SORA constitutes punishment, the Michigan Supreme Court, in lieu of granting respondent's application for leave to appeal, remanded the case to us to reconsider whether the imposition of the SORA reporting requirements on juveniles constitutes cruel or unusual punishment. We conclude that it does not.
II. STANDARD OF REVIEW
This Court reviews constitutional issues de novo. People v Perkins, 280 Mich.App. 244, 248; 760 N.W.2d 669 (2008). "Statutes are presumed to be constitutional, and the courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent." People v Benton, 294 Mich.App. 191, 203; 817 N.W.2d 599 (2011) (quotation marks and citation omitted). It is the burden of the party challenging the constitutionality of the statute to prove its invalidity. People v Sadows, 283 Mich.App. 65, 67; 768 N.W.2d 93 (2009).
III. ANALYSIS
A. LEGAL PRINCIPLES
"The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1, § 16, whereas the United States Constitution prohibits cruel and unusual punishment, U.S. Const, Am VIII." Benton, 294 Mich.App. at 204. Thus, "the protection afforded under the Michigan Constitution is considered to be broader than that provided for under the United States Constitution." People v Stovall, 334 Mich.App. 553, 566-567; 965 N.W.2d 264 (2020). "[W]hether a penalty may be considered cruel or unusual is to be determined by a three-pronged test that considers (1) the severity of the sentence imposed and the gravity of the offense, (2) a comparison of the penalty to penalties for other crimes under Michigan law, and (3) a comparison between Michigan's penalty and penalties imposed for the same offense in other states." Benton, 294 Mich.App. at 204, citing People v Bullock, 440 Mich. 15, 33-34; 485 N.W.2d 866 (1992); see also People v Brown, 294 Mich.App. 377, 390; 811 N.W.2d 531 (2011) ("In deciding if punishment is cruel or unusual, this Court looks to the gravity of the offense and the harshness of the penalty, comparing the punishment to the penalty imposed for other crimes in this state, as well as the penalty imposed for the same crime in other states."). Courts are also instructed to consider Michigan's "goal of rehabilitation" when assessing the constitutionality of the punishment. Bullock, 440 Mich. at 34.
Turning to the penalty, "SORA is a conviction-based registration statute that requires individuals convicted of certain 'listed offenses' to register as sex offenders." People v Dowdy, 489 Mich. 373, 379-380; 802 N.W.2d 239 (2011), quoting MCL 28.722(e). Respondent is classified as a "Tier III" offender as a result of the CSC-III conviction under MCL 750.520d(1)(a). See MCL 28.722(v). As a Tier III offender, respondent is required to comply with SORA's reporting requirements for life. MCL 28.725(13).
As explained by the Michigan Supreme Court in Betts, SORA has evolved over the years and imposes a number of reporting requirements on eligible offenders:
The [SORA] registry became accessible to the public in 1997, when the Legislature required law enforcement to make the registry available for in-person public inspection during business hours. MCL 28.730(2), as amended by 1996 PA 494. Shortly thereafter, in 1999, the Legislature required computerization of the registry and granted law enforcement the authority to make the computerized database available to the public online. MCL 28.728(2), as amended by 1999 PA 85. And in 2006, the Legislature allowed for the registry to send e-mail alerts to any subscribing member of the public when an offender registers within or when a registrant moves into a specified zip code.
As the registry became more accessible to the public, the information registrants were required to provide to law enforcement also expanded. In 2002, the Legislature required registrants to report whenever they enrolled, disenrolled, worked, or volunteered at an institution of higher education. MCL 28.724a, as amended by 2002 PA 542. Two years later, in 2004, the Legislature directed registrants to provide an updated photograph for addition to the online database. MCL 28.728(3)(c), as amended by 2004 PA 238, effective May 1, 2005. And in 2011, the Legislature required registrants to report more personal information, including employment status, "electronic mail addresses and instant message addresses," vehicle information, and travel schedules. MCL 28.727, as amended by 2011 PA 18. Registrants were required to update law enforcement of these changes within three business days, a substantial shortening of the time frame from the initial 10-day reporting window. MCL 28.725(1), as amended by 2011 PA 17. The updates were also required to be made in person rather than by mail, telephone, or e-mail. Id. The 2011 amendments further added a periodic reporting requirement that instructed registrants to present themselves to law enforcement, in person, one or more times a year, even if registrants had no changes to report. MCL 28.725a(3), as amended by 2011 PA 17. [Betts, 507 Mich. at 534-535 (footnotes omitted).]
B. APPLICATION
Respondent attacks SORA's reporting requirements both facially (as to all juveniles) and as applied to him specifically. We will address each argument separately.
In his facial challenge, respondent contends that under the Bullock framework, imposing SORA's reporting requirements on juveniles constitutes cruel or unusual punishment. Respondent contends that under the first factor of the Bullock framework, the penalties imposed by SORA outweigh the "gravity of the offense" because: (1) the reporting will last for the offender's lifetime; (2) there is no individualized assessment of the offender; and (3) the goal of the juvenile system is rehabilitation. Respondent, however, does not explain how lifetime registration is disproportionate to the gravity of the offense beyond the conclusory statement that it simply is. See People v Kevorkian, 248 Mich.App. 373, 389; 639 N.W.2d 291 (2001) (quotation marks and citation omitted) ("It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.").
Crimes qualifying as Tier III offenses include gross indecency with children under the age of 13, MCL 28.722(v)(i); kidnapping or enticing minor, MCL 28.722(v)(ii), (iii); criminal sexual conduct in the first and third degree, MCL 28.722(v)(iv); criminal sexual conduct in the second degree committed against a child under 13, MCL 28.722(v)(v); criminal sexual conduct in the fourth degree committed against a child under 17, MCL 28.722(v)(vi); or any attempt or conspiracy to commit these enumerated offenses, MCL 28.722(v)(vii). This Court's opinions are replete with the horrors these crimes inflict upon their victims, and they are some of the most serious offenses a person can commit against another. We therefore find no basis to conclude that requiring an offender-even a juvenile offender-to report for life under SORA is not disproportionate to the severity of these crimes.
Moreover, we reject the argument that because SORA does not provide for an individualized assessment of the juvenile offender when determining the length of reporting, it is necessarily disproportionate. SORA provides an exception to the reporting requirements, for example, for "Romeo and Juliet" relationships. See MCL 28.722(v)(iv) (exempting from the definition of a Tier III offender where "the court determines that the victim consented to the conduct constituting the violation, that the victim was at least 13 years of age but less than 16 years of age at the time of the offense, and that the individual is not more than 4 years older than the victim").
Similarly, while we recognize the importance of promoting the goal of rehabilitation, "[t]he risk of recidivism posed by sex offenders is 'frightening and high.'" Smith v Doe, 538 U.S. 84, 103; 123 S.Ct. 1140; 155 L.Ed.2d 164 (2003), quoting McKune v Lile, 536 U.S. 24, 34; 122 S.Ct. 2017; 153 L.Ed.2d 47 (2002). This Court also recognizes the strong admonitions from the United States Supreme Court that the "imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children." Miller v Alabama, 567 U.S. 460, 474; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012). It is clear the law recognizes that juveniles make "impetuous and ill-considered actions and decisions," are "more vulnerable or susceptible to negative influences and outside pressures," and that "the character of a juvenile is not as well formed as that of an adult." Roper v Simmons, 543 U.S. 551, 569-570; 125 S.Ct. 1183; 161 L.Ed.2d 1 (2005). However, we refuse to take the leap respondent suggests we take in equating sentencing a juvenile to death or life in prison without the possibility of parole to lifetime reporting under SORA. Indeed, the United States Supreme Court recognizes the difference between death penalty and nondeath penalty cases. See Graham v Florida, 560 U.S. 48, 59; 130 S.Ct. 2011; 176 L.Ed.2d 825 (2010) ("The Court's cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty."). And even in Graham, in which the United States Supreme Court used the "categorical approach" to address a sentencing challenge by a juvenile convicted of a noncapital crime, the punishment itself-life in prison without parole-is more akin to the death penalty than lifetime reporting under SORA.
Under the second factor-a comparison of the penalty under SORA to other penalties imposed for other crimes-respondent contends that juveniles that are designated as Tier I or II offenders do not have to "register under SORA." In addition, respondent points to the court rule allowing for juvenile diversion programs that avoid registration. But respondent fails to connect the dots as to why these differences result in a constitutional infirmity. That juveniles convicted of the most serious sexual crimes are treated differently than other juveniles who committed less serious crimes is not, in itself, unconstitutional. The relevant question is whether these differences result in a grossly disproportionate penalty. See Benton, 294 Mich.App. at 204 ("[T]he prohibition against cruel or unusual punishment include[s] a prohibition on grossly disproportionate sentences.").
We do not believe the differences identified by respondent result in a finding that SORA is unconstitutional as to juvenile offenders. Plea bargains and diversion programs are a common feature of our criminal justice system. Indeed, these methods of adjudication of offenses allow courts and prosecutors to give individualized consideration to each offender to determine, under the facts of the particular case, whether the offender deserves a less harsh penalty. The fact that juveniles designated as Tier I or II offenders do not have to comply with the reporting requirements evidences a judgment by the Legislature that there are other classes of crimes in which the risk of recidivism and future harm is too high to allow these individuals back into society without monitoring. See United States v Gould, 568 F.3d 459, 472 (CA 4, 2009) ("[S]ex offenders constitute a unique class of criminal insofar as members of that class are considered to have higher rates of recidivism than other offenders."). Moreover, almost completely missing from Tier I and Tier II offenses are the crimes in which the offender actually sexually assaults the victim. See MCL 28.722(r) (defining Tier I offenses); MCL 28.722(t) (defining Tier II offenses). Thus, we are unconvinced by respondent's arguments that these differences in the law are so disproportionate as to render the law unconstitutional.
"While the decisions of lower federal courts and other state courts are not binding on this Court, they may be considered as persuasive authority." People v Walker, 328 Mich.App. 429, 444; 938 N.W.2d 31 (2019) (quotation marks and citation omitted).
There are two exceptions: (1) an offender can be designated as Tier I having committed fourth degree criminal sexual conduct; however, that designation is only proper when the victim is 18 or older, MCL 28.722(r)(v); and (2) an offender can be designated as Tier II having committed sodomy on a minor, but only where the victim consented and victim and offender are within a certain age range (i.e., the Romeo and Juliet exception). MCL 28.722(t)(iv).
Next, under the third Bullock factor, respondent argues that other jurisdictions have employed reporting regimes that are more focused on individualized sentencing, while still others have altogether struck down lifetime reporting regimes for juveniles. Accordingly, respondent suggests we should follow the lead of those courts and strike down SORA as it applies to juvenile offenders. For example, in In re JB, 107 A.3d 1, 2 (Pa, 2014), the Pennsylvania Supreme Court addressed a challenge to that state's sex offender registry law as it applied to juveniles. However, while the lower court in that case determined the law violated prohibitions on ex post facto, cruel and unusual punishment, and violations of due process, the Pennsylvania Supreme Court affirmed on the basis that the law deprived juveniles of due process. Id. at 429. According to the Pennsylvania Supreme Court in In re JB, the law created an irrebuttable presumption that juveniles could not be rehabilitated and deregister-a point the Court concluded was not universally true and, therefore, a violation of due process. Id. at 429-438.
Respondent also relies on In re TB, 489 P.3d 752, 772 (Colo, 2021), in which the Colorado Supreme Court decided, as a matter of first impression, that lifetime registration for juveniles under that state's offender registry system constituted cruel and unusual punishment. Noting under that state's law that offenders with multiple qualifying offenses could not petition a court to deregister from the list, the Colorado Supreme Court held "the legislature cannot, under the Eighth Amendment, mandate lifetime sex offender registration for offenders with multiple juvenile adjudications without providing a mechanism for individualized assessments or an opportunity to deregister upon a showing of rehabilitation." Id. The Court reasoned that the law "fail[ed] to serve any legitimate penological goals" because it "foreclose[ed] any chance of redemption" and "stands in direct opposition to the goals of the juvenile justice system." Id. at 771.
We find In re JB and In re TB unpersuasive. In both cases, the constitutional infirmity identified by the courts was the irrebuttable presumption that some (or all) juvenile offenders were irredeemable and, therefore, not eligible for deregistration. In contrast to those states' laws, SORA allows for juvenile Tier III offenders to petition a court to deregister from the list. MCL 28.728c. In other words, the problematic feature of both the Colorado and Pennsylvania laws is the inability for the juvenile offender to change his status. This simply is not an issue with SORA. Instead, we join our other sister courts that have concluded juvenile registration is not cruel and unusual punishment. See In re TH, 913 N.W.2d 578, 597 (Iowa, 2018) (concluding registration law was constitutional where the juvenile is placed "on the sex offender registry throughout the duration of their dispositional order, which is directly tied to the juvenile's period of rehabilitation"); State v Boche, 885 N.W.2d 523, 537-538 (Neb, 2016) (upholding constitutionality of sex offender registry for juveniles where the offenders undergo a risk assessment and can appeal their conditions of supervision).
In sum, none of the arguments advanced by respondent convince us that the penalty of lifetime reporting for juveniles is so disproportionate to the severity of the eligible crimes that SORA runs afoul of the United States or Michigan constitutions. We therefore reject respondent's facial challenge to SORA, and turn next to his as-applied challenge.
Respondent focuses on the fact that in his particular case, he was not the principal actor in the charge resulting in his Tier III status; yet as an aider and abettor, he is subject to the same lifetime reporting requirement as if he had been the principal. He claims he has "taken steps" toward rehabilitation, which is hindered by his SORA reporting obligations. Yet we have previously held that it is not cruel or unusual punishment for an accomplice to be given the same sentence as the principal actor. People v Shepherd, 63 Mich.App. 316, 319; 234 N.W.2d 502 (1975) (concluding it was not cruel or unusual punishment to sentence the defendant to a term of imprisonment for larceny where the defendant was only convicted under the aiding and abetting statute). And given our analysis above, we do not believe that, as applied to respondent, the requirement that he register as a sex offender for life constitutes cruel or unusual punishment.
While decisions of this Court published before November 1, 1990, are not binding, they may be considered for their persuasive value. People v Rogers, 335 Mich.App. 172, 192; 966 N.W.2d 181 (2020).
Reversed and remanded. We do not retain jurisdiction.