Opinion
SC: 164891 COA: 362378
09-15-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Malcolm Dwayne HAYNES, Defendant-Appellant.
Order
By order of January 4, 2023, the prosecuting attorney was directed to answer the application for leave to appeal the September 27, 2022 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted.
Viviano, J. (concurring).
I concur in the Court's order but write to highlight a few issues that might arise on remand. Defendant pleaded guilty to sexually assaulting an elderly neighbor and now challenges the scoring of his sentencing guidelines. Specifically, he claims that the trial court erred in calculating his prior record variables because it relied on three past convictions for failing to register under the 2006 version of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. His convictions under the 2006 SORA were for failing to register, which he was required to do based on a prior conviction in 2003. He claims that the application of the 2006 SORA operated as a retroactive punishment and that his failure-to-register convictions are consequently unconstitutional under the Ex Post Facto Clauses of the Michigan and United States Constitutions. As a result, he contends that these convictions cannot be used to score the guidelines for his present offense. Thus, defendant has brought what amounts to a collateral attack on his prior convictions. While we have allowed collateral challenges when the underlying conviction was obtained in violation of the right to counsel, see People v Moore , 391 Mich. 426, 216 N.W.2d 770 (1974), it is unclear whether such a collateral attack is appropriate here.
Assuming that defendant has properly brought an ex post facto challenge against the 2006 SORA, I question whether he can succeed in demonstrating that there was any retroactive punishment. The criminal offense for failing to register under SORA predated the 2006 amendments to the act. Indeed, as originally enacted in 1994, SORA punished the failure to register. MCL 28.729, as enacted by 1994 PA 295. Consequently, the criminal offense was on the books in 2003, when defendant committed the underlying offense requiring SORA registration. After his 2003 conviction, the Legislature made further changes to the statute, but it appears that the relevant penalties for failure to register remained the same as they were prior to his 2003 conviction. Compare MCL 28.729(2), as amended by 2002 PA 542, with MCL 28.729(2)(a), as amended by 2005 PA 132. Thus, it is unclear whether defendant can show that application of the failure-to-register offense is retroactive at all, as is necessary to prevail in an ex post facto challenge.
To the extent defendant is relying on this Court's decision in People v Betts , 507 Mich. 527, 968 N.W.2d 497 (2021), I question whether he has standing to challenge his failure-to-register convictions. In Betts , this Court held that retroactive application of the 2011 version of SORA violated the Ex Post Facto Clauses. Thus, the Court did not address the effect of the retroactive application of the 2006 SORA, which is at issue here. The Court did, however, strike down one of the provisions enacted by the 2006 SORA: school-safety zones preventing SORA registrants from living or working within a certain distance of schools. The majority indicated in Betts that retroactive application of this provision constituted unconstitutional punishment under the Ex Post Facto Clauses. Id. at 573-574, 968 N.W.2d 497. But defendant here was not convicted for violating that restriction, and so it is difficult to see how defendant's failure-to-register convictions have anything to do with potentially unconstitutional provisions in the 2006 SORA.
His argument, then, appears to depend on the inability to sever the unconstitutional portions of the 2006 SORA from the constitutional provisions in the statute. He would need to argue that the school-safety provision from the 2006 SORA was unconstitutional, that it could not be severed, and that therefore the whole act must be struck down. Only then would he have had no obligation to register. But a strong argument could be made that the provision would be severable and that, if severed, defendant would still be properly convicted for failing to register. Indeed, the majority in Betts characterized the student-safety zone restriction as a "discrete provision[ ] ... [that] could be excised from retroactive application without affecting the statute's workability." Id. at 565, 968 N.W.2d 497.
Moreover, even if the offending provisions could not be severed, this potential argument raises a broader issue that I addressed in my partial dissent in Betts . Specifically, I noted that our modern doctrine of severance allows defendants to obtain relief based on challenges to parts of statutes that have no bearing on their case. I observed that because the challenge to one part of a statute might require severance of the entire statute, courts can "pass on the constitutionality of provisions that have scarce relationship to the case before the court. In other words, it potentially enables parties to challenge statutory provisions that they might lack standing to challenge." Id. at 593-594, 968 N.W.2d 497 ( VIVIANO , J., concurring in part and dissenting in part). It appears that defendant's hopes in the present case might depend on such logic, and thus I question whether he would have standing to proceed.
With these questions in mind, I concur in the remand order.