SORA – Finally A Win?
Finally, a win in a sex offender case in the Michigan Supreme Court. On June 30, a unanimous Michigan Supreme Court said a trial court could not order a defendant to register as a sex offender more than 20 months after the court had originally sentenced him. In People v. Lee, a judge of the Allegan Circuit Court decided not to require registration but retained jurisdiction for a future hearing. Then, twenty months later, a different judge took over the case, conducted a hearing, and granted the prosecutor’s motion to require the defendant to register under the Sex Offender Registration Act (MCL 28.722, et seq.)* The Court of Appeals affirmedthis decision, but the Supreme Court reversed, holding the trial court “failed to satisfy” SORA’s “multiple requirements.”
In January 2006, the defendant, Kent Allen Lee, pleaded nolo contendere to third-degree child abuse. MCL 750.136b(5). At Lee’s March 2006 sentencing, Judge Harry A. Beach relied on a police report as the factual basis for Lee’s plea. The prosecution attempted to introduce additional evidence but the defense objected. Judge Beach noted that while Lee’s crime was “a rather abusive assault,” it was not a “sex act,” and thus registration under SORA was unwarranted. Nevertheless, Judge Beach retained jurisdiction over the case while issuing a sentence that did not require registration.
In December 2007, the Circuit Court held a new hearing on the prosecution’s motion to require SORA registration. Judge Beach had retired by this time and Judge William A. Baillargeon took over the case. Judge Baillargeon heard additional testimony and concluded that SORA registration was now justified because Lee’s act — which involved touching the victim’s genitals in what Lee described as a “disciplinary” measure — was “certainly something that would be envisioned by [SORA] and I think by itself would constitute the registration that the People seek.”
Justice Michael F. Cavanaugh, writing for a unanimous Supreme Court, reversed Judge Baillargeon’s decision. Justice Cavanaugh explained that the trial court made four procedural errors in mandating Lee’s registration. First, SORA requires a defendant to register “before sentencing,” not 20 months later. MCL 28.724(5). Second, because of that delay, Lee’s probation officer and the family division of the Circuit Court could not comply with SORA’s requirement to give Lee the registration form after his conviction. Third, SORA clearly states that a court “shall not impose sentence” until determining a defendant’s registration is forwarded to the state police. MCL 28.726. Finally, since Lee’s crime — third-degree child abuse — was not a “specific listed offense” under SORA, the trial court was required to, but did not, include in its sentence a determination that the offense fell under a “catchall” provision that applies to any “sexual offense” against a minor. MCL 769.1(13).
Ultimately, Justice Cavanaugh noted, “there is no support in SORA for permitting a post-sentencing hearing to make a determination regarding registration.” To the contrary, everything the trial court did violated SORA. Consequently, Justice Cavanaugh said, “the sentence imposed [in 2006] … may have been invalid.” The prosecution could have attempted to correct the invalidity by filing a timely motion, which is six months under MCR 6.429(B)(3), not 20 months.
Finally, Justice Cavanaugh said Judge Baillargeon and the previous trial judge, Judge Beach, contradicted one another as to whether Lee’s offense fell within SORA’s “catchall” provision. Cavanaugh said that while “Judge Beach erroneously permitted the prosecution to bring additional evidence at a post-sentencing hearing,” he ultimately found the evidence supporting the plea — the original police report — did not justify invoking the catchall provision. Judge Baillargeon later concluded just the opposite. Justice Cavanaugh said that Weaver v. People (1876) required Judge Baillargeon to afford “substantial deference” to Judge Beach’s findings, as he was the judge who accepted the plea.
*SORA was amended effective July 1, but the Supreme Court said that since “the trial court decided relevant issues” before then, it would analyze the case under the law as it was then in effect.
Mark A. Satawa practices in the area of criminal defense, specializing in sex crimes. He is a member of the board of directors of the National Association of Criminal Defense Lawyers (www.NACDL.org), and is a frequent continuing legal education speaker on sex offenses, most recently at the Institute for Continuing Legal Education seminar on Proven Defense Strategies for Challenging Criminal Sexual Conduct Cases.