People v. Allen ( 2016 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
PEOPLE v ALLEN
Docket No. 151843. Argued April 7, 2016 (Calendar No. 3). Decided June 15, 2016.
Floyd Phillip Allen was convicted in the Ionia Circuit Court of a second offense of failing
to comply with the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., after he failed
to properly register his address. MCL 28.729(1)(b) provides for a maximum sentence of 7 years
upon conviction of a second violation of SORA (hereafter “SORA-2”), but the court, David A.
Hoort, J., sentenced defendant under MCL 769.10(1)(a) to 2 to 10.5 years’ imprisonment as a
second-offense habitual offender on the basis of his two convictions for violating SORA.
Defendant appealed, arguing in part that he was entitled to resentencing because the trial court
erred when it enhanced his sentence under the habitual-offender provisions. The Court of
Appeals, BECKERING, P.J., and BORRELLO and GLEICHER, JJ., vacated defendant’s sentence and
remanded for resentencing, agreeing that the sentence imposed for defendant’s SORA-2
conviction could not be enhanced under the applicable habitual-offender statute. The panel
concluded that MCL 28.729(1)(a), (b), and (c) set forth one offense (violating SORA) with
escalating punishments for repeat convictions. Because the second-offense habitual-offender
provision, MCL 769.10(1)(a), directs a court sentencing an offender convicted of a subsequent
offense to impose a maximum term that is not more than 1½ times the longest term prescribed
for a first conviction of that offense and the maximum term prescribed under MCL 28.729(1)(a)
for a first conviction of violating SORA (SORA-1) is 4 years’ imprisonment, the panel
concluded that defendant would have been subject to no more than 6 years’ imprisonment upon
habitual-offender enhancement. The panel further concluded that SORA and the habitual-
offender statutes conflicted and that because SORA was controlling, defendant’s maximum
sentence should have been 7 years. 310 Mich. App. 328 (2015). The Supreme Court granted the
prosecution’s application for leave to appeal. 498 Mich. 910 (2015).
In an opinion by Justice ZAHRA, joined by Chief Justice YOUNG and Justices MARKMAN,
MCCORMACK, and LARSEN, the Supreme Court held:
The sentence imposed for defendant’s second conviction of violating SORA could be
enhanced under the habitual-offender statutes using defendant’s first conviction for violating
SORA because in MCL 28.729 the Legislature created separate offenses for subsequent
violations of SORA and nothing in SORA or the habitual-offender provisions precludes a court
from using the applicable habitual-offender statute to enhance the maximum sentence provided
by MCL 28.729(1)(b) for a second violation of SORA.
1. The habitual-offender statutes, enacted as part of Chapter IX of the Code of Criminal
Procedure, MCL 769.1 et seq., contain three sections to enhance sentences imposed on recidivist
offenders: MCL 769.10 which applies to those sentenced for their second felony convictions;
MCL 769.11, which applies to those sentenced for their third felony convictions; and MCL
769.12, which applies to those sentenced for their fourth or higher felony convictions. The
Legislature did not intend to make being a habitual offender a separate substantive crime;
instead, it intended, for deterrent purposes, to augment the punishment for second or subsequent
offenses. MCL 769.10(1)(a) provides that if a person has been convicted of a felony and
commits a subsequent felony that is punishable upon a first conviction by imprisonment for a
term less than life, the court may sentence the person to imprisonment to a maximum term that is
not more than 1½ times the longest term prescribed for a first conviction of that offense or a
lesser term. The prosecution and the trial court agreed that the phrase “that offense” in the
statute refers to separate felony convictions under MCL 28.729(1). Accordingly, it was
necessary to determine whether SORA sets forth a single substantive offense with enhanced
punishments for subsequent violations or whether it establishes three separate and distinct
substantive offenses for recidivist behavior.
2. MCL 28.729(1) provides that an individual required to register as a sex offender under
SORA who willfully violates the act is guilty of a felony. Subdivision (a) provides that if the
individual has no prior convictions for a violation of SORA (SORA-1), the violation is
punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or
both. Subdivision (b) provides that if the individual has one prior conviction for violating SORA
(SORA-2), the violation is punishable by imprisonment for not more than 7 years or a fine of not
more than $5,000.00, or both. Finally, Subdivision (c) provides that if the individual has two or
more prior convictions under SORA (SORA-3), the violation is punishable by imprisonment for
not more than 10 years or a fine of not more than $10,000.00, or both. Reading SORA, the
habitual-offender provisions, and the sentencing guidelines (MCL 777.1 et seq.) in pari materia
and the amendment history of those statutes indicated that the Legislature created three separate
and distinct felonies in MCL 28.729(1) and that the Legislature intended by enacting SORA-2
and SORA-3 to elevate each offense, not merely enhance the punishment.
3. The Court of Appeals erred by interpreting MCL 28.729(1) and MCL 769.10 as
directly conflicting. Defendant was charged with and convicted of SORA-2, MCL 28.729(1)(b),
and not a violation of SORA generally. The longest term prescribed for a first conviction of
SORA-2 under MCL 28.729(1)(b) is 7 years. MCL 769.10(1)(a) states that the court may
sentence a defendant to a term of imprisonment 1½ times the longest term prescribed for a first
conviction of that offense. Because defendant was subject to a 7-year maximum term of
imprisonment for his SORA-2 conviction, the trial court appropriately exercised its discretion by
sentencing defendant to 1½ times that statutory maximum, i.e., 10.5 years.
Court of Appeals’ judgment reversed; case remanded to circuit court for reinstatement of
original judgment of sentence.
Justice VIVIANO, joined by Justice BERNSTEIN, concurring in the result only, agreed with
the majority that defendant’s second conviction of failing to comply with SORA was subject to
sentence enhancement under the second-offense habitual-offender provision but would, however,
have reached that conclusion on more limited grounds. Defendant conceded before the Supreme
Court that SORA-2 is a separate felony subject to habitual-offender enhancement when he
admitted that habitual-offender enhancement of a SORA-2 sentence is permissible in certain
circumstances, but he provided no briefing on the point, leaving the Supreme Court without a
full discussion of any arguments that might have run counter to the prosecution’s position.
Given defendant’s concession regarding the prosecution’s argument, the only question was
whether defendant’s SORA-1 conviction could be used as support for both convicting him of
SORA-2 and enhancing his sentence as a second-offense habitual offender. While troubled by
the prosecution’s ability to do so, Justice VIVIANO nonetheless agreed with the majority’s
conclusion that it was permissible in this case. Nothing in the plain language of MCL 28.729 or
MCL 769.10 prohibits the prosecution or the court from using defendant’s SORA-1 conviction to
support a double enhancement. Justice VIVIANO, however, would have limited that holding to
this case and left open for another day the question whether MCL 28.729(1) creates three
separate offenses or only one offense with escalating punishments and instead relied on
defendant’s concession to hold that, for the purposes of this case only, SORA-2 constitutes a
separate felony offense subject to habitual-offender enhancement.
©2016 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Robert P. Young, Jr. Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
FILED June 15, 2016
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 151843
FLOYD PHILLIP ALLEN,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
ZAHRA, J.
This case presents the question whether someone convicted of failing to comply
with the Sex Offenders Registration Act (SORA) 1 as a second offender,
MCL 28.729(1)(b) (SORA-2), 2 can be subject to sentence enhancement under the
1
MCL 28.721 et seq.
2
See note 33 of this opinion.
habitual offender act (HOA). 3 The trial court sentenced defendant as a second-offense
habitual offender on the basis of his prior conviction for violating the registration
requirements of MCL 28.729(1)(a) (SORA-1) and his instant conviction for violating
MCL 28.729(1)(b) (SORA-2). 4 There can no dispute that at the time of sentencing,
defendant had been convicted of two felonies. But because defendant could not be
convicted of SORA-2 without first having been convicted of SORA-1, defendant
maintains that his SORA-1 conviction cannot also be used under the HOA to enhance the
sentence imposed for the SORA-2 conviction. The Court of Appeals agreed with
defendant. We reverse. We hold that the sentence imposed for defendant’s SORA-2
conviction can be enhanced under the habitual-offender statutes because the Legislature
created separate offenses for subsequent violations of SORA. Nothing in SORA or the
HOA precludes a sentencing court from enhancing the maximum sentence provided for
SORA-2 by the applicable habitual-offender statute. This conclusion is consistent with
Michigan caselaw addressing the application of the habitual-offender statutes to other
recidivism statutory schemes. Accordingly, we reverse the judgment of the Court of
Appeals, remand the case to the Ionia Circuit Court, and direct that court to reinstate
3
MCL 769.10, MCL 769.11, MCL 769.12, and MCL 769.13. Specifically, defendant
was charged under the second-offense habitual-offender statute, MCL 769.10(1)(a),
which provides in relevant part that upon conviction of a second felony, the court may
sentence the defendant to a term of imprisonment that is “1-1/2 times the longest term
prescribed for a first conviction of that offense or for a lesser term.”
4
MCL 28.729(1)(c) covers violating SORA a third or subsequent time (SORA-3).
2
defendant’s original judgment of sentence of 2 to 10.5 years as a second-offense habitual
offender for his SORA-2 conviction.
I. FACTS AND PROCEDURAL HISTORY
As a result of a 2007 misdemeanor conviction of fourth-degree criminal sexual
conduct, defendant was required to register on the Michigan Sex Offender Registry
semiannually for 25 years. Defendant failed to properly register and in February 2010
pleaded guilty of SORA-1, a felony, and was sentenced to 5 years’ probation, with the
first 4 months served in jail. On April 30, 2012, defendant registered his address as 6123
Clarksville Road in Clarksville, Michigan. He verified that address on January 9, 2013.
In March 2013, Clarksville police received an anonymous tip that defendant was not
living at the Clarksville Road address, but at 211 West Riverside. After investigating,
police determined that the Clarksville Road address was vacant and that defendant was
staying at 211 West Riverside, the home of his spouse. 5 Defendant was arrested for
failing to comply with SORA. In June 2013, a jury convicted defendant of SORA-2.
Although MCL 28.729(1)(b) provides for a maximum sentence of 7 years, the trial court
sentenced defendant under MCL 769.10(1)(a) as a second-offense habitual offender to 2
to 10.5 years’ imprisonment. 6
5
Defendant was found living with his spouse even though he was precluded from having
any contact with her under the terms of his probation.
6
See note 3 of this opinion.
3
Defendant appealed, arguing, among other things, that he is entitled to
resentencing because the trial court erred when it enhanced his sentence under the
habitual-offender provisions. The Court of Appeals vacated defendant’s sentence and
remanded for resentencing, concluding that the sentence imposed for defendant’s SORA-
2 conviction could not be enhanced under the applicable habitual-offender statute. 7
The Court of Appeals noted that the “language of MCL 769.10(1)(a) directs a
sentencing court to sentence the offender for a subsequent offense to a maximum term
‘that is not more than 1½ times the longest term prescribed for a first conviction of that
offense . . . .’ ” 8 The Court of Appeals concluded that MCL 28.729(1), which delineates
SORA-1, SORA-2 and SORA-3, set forth one offense with escalating punishments for
repeat convictions, stating:
The maximum term prescribed for a first conviction of that offense is 4
years’ imprisonment. MCL 28.729(1)(a). Thus, under MCL 769.10(1)(a)
defendant would be subject to no more than 6 years’ imprisonment—1½
times 4 years is 6 years. The trial court erred by basing defendant’s
sentence on 1½ times the maximum prison sentence (7 years) provided
under MCL 28.729(1)(b) because that provision sets forth the punishment
for a second conviction of failure to comply with SORA. The plain
language of MCL 769.10(1)(a) clearly directs a court to enhance a sentence
by increasing the longest term prescribed for a first conviction of the
subsequent offense, not the longest term prescribed for a second
conviction.[9]
7
People v Allen, 310 Mich. App. 328; 872 NW2d 21 (2015).
8
Id. at 349.
9
Id. at 350.
4
As a result, the Court of Appeals concluded that SORA and the HOA conflicted
because under the applicable habitual-offender statute, defendant was subject to not more
than a 6-year prison sentence, while under SORA-2, MCL 28.729(1)(b), defendant was
subject to a 7-year maximum sentence. 10 The Court of Appeals described MCL
28.729(1)(a) to (c) as “set[ting] forth the penalties for failing to comply with the
requirements of SORA.” 11 Because the maximum prison sentence prescribed under the
applicable habitual-offender statute is different from the maximum prison sentence
prescribed under SORA-2 the Court of Appeals concluded that “the two statutes
irreconcilably conflict.” 12 The Court of Appeals held that because SORA-2 specifically
applies to subsequent violations of SORA, whereas the HOA generally applies to
subsequent felony convictions, SORA is controlling and defendant’s maximum sentence
should have been 7 years. 13
We granted leave to address “whether the second-offense habitual-offender
enhancement set forth under MCL 769.10 may be applied to the sentence prescribed
under MCL 28.729(1)(b).” 14
10
Id. at 350-351.
11
Id. at 350.
12
Id. at 350-351.
13
Id. at 351.
14
People v Allen, 498 Mich. 910 (2015).
5
II. STANDARD OF REVIEW AND RULES OF STATUTORY INTERPRETATION
We review de novo questions of statutory interpretation. 15 When interpreting a
statute, courts must strive to give effect to the Legislature’s intent. 16 “The focus of our
analysis must be the statute’s express language, which offers the most reliable evidence
of the Legislature’s intent.” 17 The Legislature is presumed to have intended the meaning
it plainly expressed in the statute. 18 When the statutory language is clear and
unambiguous, judicial construction is not permitted and the statute is enforced as
written. 19
In this case we examine the interplay between several statutes: the HOA, SORA,
and the sentencing guidelines, MCL 777.1 et seq. “[A] court’s duty is to give meaning to
all sections of a statute and to avoid, if at all possible, nullifying one by an overly broad
interpretation of another.” 20 More specifically, it is appropriate to read the sentencing
guidelines and the HOA, which are part of Michigan’s Code of Criminal Procedure, 21
“together with the substantive statutes that the Legisalture has enacted that define crimes
15
People v Hartwick, 498 Mich. 192, 209; 870 NW2d 37 (2015); Hannay v Dep’t of
Transp, 497 Mich. 45, 57; 860 NW2d 67 (2014).
16
People v Watkins, 491 Mich. 450, 467; 818 NW2d 296 (2012).
17
Badeen v PAR, Inc, 496 Mich. 75, 81; 853 NW2d 303 (2014).
18
In re AJR, 496 Mich. 346, 353; 852 NW2d 760 (2014). See also People v Likine, 492
Mich. 367, 387; 823 NW2d 50 (2012).
19
People v Gardner, 482 Mich. 41, 50; 753 NW2d 78 (2008).
20
Koenig v South Haven, 460 Mich. 667, 677; 597 NW2d 99 (1999).
21
MCL 760.1 et seq.
6
and prescribes fines and costs.” 22 Thus, the sentencing guidelines, the HOA, and SORA
should be read in pari materia. 23
III. ANALYSIS
A. THE HABITUAL OFFENDER ACT
In 1927, Michigan enacted the HOA as part of Chapter IX of the Code of Criminal
Procedure. 24 It contains three sections to enhance sentences imposed on recidivist
offenders. MCL 769.10 applies to those sentenced for their second felony convictions,
MCL 769.11 applies to those sentenced for their third felony convictions, and MCL
769.12 applies to those sentenced for their fourth or higher felony convictions. This
Court has repeatedly stated that, by enacting the HOA, “the legislature did not intend to
make a separate substantive crime out of being a habitual offender but rather, for
deterrent purposes, intended to augment the punishment for second or subsequent
offenses.” 25
Importantly, in 1998 the Legislature expressly instructed courts when
enhancement under the HOA is inapplicable. Each of the three enhancement sections
states: “A conviction shall not be used to enhance a sentence under this section if that
22
People v Cunningham, 496 Mich. 145, 156 n 8; 852 NW2d 118 (2014).
23
Id. (“[T]he Penal Code and the Code of Criminal Procedure ‘relate generally to the
same thing and must therefore be read in pari materia . . . .’ ”), quoting People v Smith,
423 Mich. 427, 442; 378 NW2d 384 (1985).
24
See 1927 PA 175.
25
People v Shotwell, 352 Mich. 42, 46; 88 NW2d 313 (1958).
7
conviction is used to enhance a sentence under a statute that prohibits use of the
conviction for further enhancement under this section.” 26 We presume, as we must, that
the Legislature was well aware of these provisions of the HOA when it amended SORA
in 1999 to create SORA-1, SORA-2, and SORA-3. 27 We also presume that the
Legislature was aware that Michigan courts had applied the HOA to other recidivism
criminal statutes at the time the pertinent provisions of SORA became law. 28
Significantly, the Legislature added nothing to SORA to exempt it from application of the
HOA.
The Legislature has also demonstrated that when it intends to do so, it is able to
exclude particular categories of felonies from the HOA. 29 For example, the HOA was
amended in 1978 to explicitly exclude application of the HOA to subsequent major
26
MCL 769.10(3), MCL 769.11(3), and MCL 769.12(3), all as amended by 1998 PA
317.
27
See Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich. 488, 506; 475 NW2d 704
(1991) (“[T]he Legislature is presumed to act with knowledge of statutory interpretations
by the Court of Appeals and this Court.”).
28
E.g., People v VanderMel, 156 Mich. App. 231, 232; 401 NW2d 285 (1986). The
defendant in that case pleaded guilty of second-degree criminal sexual conduct,
MCL 750.520c(1)(b), and having committed a second criminal sexual conduct offense,
MCL 750.520f, and was sentenced as a second-offense habitual offender under
MCL 769.10. The Court of Appeals held that both the recidivism criminal sexual
conduct statute, MCL 750.520f, and the habitual-offender statute, MCL 769.10, could be
concurrently applied. Id. at 235-237. In so holding, the Court of Appeals stated,
“Because the Legislature has not prohibited concurrent application of MCL 750.520f and
the habitual offender statutes, we decline to do so . . . .” Id. at 236-237 (citation omitted).
29
People v Bewersdorf, 438 Mich. 55, 72; 475 NW2d 231 (1991).
8
controlled substance offenses by adding the following language to MCL 769.10 and
substantially similar language to MCL 769.11 and MCL 769.12:
If the subsequent felony is a major controlled substance offense, the
person shall be punished as provided by Act No. 196 of the Public Acts of
1971, as amended, being saections 335.301 to 335.367 of the Michigan
Compiled Laws.[30]
The HOA makes no such exception for convictions under SORA’s recidivism provisions,
MCL 28.729(1)(a), (b), and (c). The Legislature has amended various criminal statutes to
expressly prohibit application of the HOA to an offense, 31 but it has not seen fit to adopt
30
MCL 769.10(1)(c), as amended by 1978 PA 77. See also MCL 769.11(1)(c), and MCL
769.12(1)(c), both as amended by 1978 PA 77. The reference was to the former
Controlled Substances Act. Subsequently, 1988 PA 90 revised the reference to Chapter
74 of the Public Health Code, MCL 333.7401 et seq.
31
For example, in 1998 PA 311, the Legislature revised the first-degree retail fraud
statute, MCL 750.356c, to state:
If the sentence for a conviction under this section is enhanced by 1
or more prior convictions, those prior convictions shall not be used to
further enhance the sentence for the conviction pursuant to section 10, 11,
or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL
769.10, 769.11, and 769.12. [MCL 750.356c(6).]
Similar prohibitions against application of the habitual-offender sentence enhancements
can be found in MCL 750.79(4) (intent to commit arson); MCL 750.131(5) (checks
drawn on insufficient funds); MCL 750.157s(4) (use of revoked or canceled financial
transaction devices with intent to defraud); MCL 750.157w(4) (use of financial
transaction device in excess of funds with intent to defraud); MCL 750.174(11)
(embezzlement); MCL 750.218(10) (false pretenses); MCL 750.356(9) (larceny);
MCL 750.362a(8) (refusal/neglect to return rented vehicle); MCL 750.377a(4) (malicious
destruction of personalty); MCL 750.535(11) (receiving or concealing stolen property);
and MCL 750.540g(4) (unauthorized use of telecommunications services). “Courts
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.” Farrington v Total Petroleum, Inc, 442 Mich. 201, 210, 501 NW2d 76 (1993).
9
a similar exception for SORA-2 and SORA-3 convictions, although it has had numerous
opportunities to do so. 32
There being no statutory bar to the application of the HOA to SORA, the trial
court sentenced defendant as a second-offense habitual offender under
MCL 769.10(1)(a), which states:
If a person has been convicted of a felony or an attempt to commit a
felony . . . and that person commits a subsequent felony within this state,
the person shall be punished upon conviction of the subsequent felony . . .
as follows:
(a) If the subsequent felony is punishable upon a first conviction by
imprisonment for a term less than life, the court . . . may place the person
on probation or sentence the person to imprisonment for a maximum term
that is not more than 1-1/2 times the longest term prescribed for a first
conviction of that offense or for a lesser term. [Emphasis added.]
Defendant maintains, and the Court of Appeals agreed, that the words “that
offense” refer to violations of SORA generally under MCL 28.729(1). Defendant’s
position is premised on the notion that MCL 28.729(1)(a) to (c) are merely sentence-
enhancement provisions applicable when there are repeat violations of SORA. The
prosecution contends, and the trial court agreed, that the words “that offense” refer to
separate felony convictions under MCL 28.729(1), in this case SORA-2, MCL
28.729(1)(b). Accordingly, we must determine whether SORA sets forth a single
32
The Legislature has amended SORA several times since its enactment and has elected
to not preclude application of the habitual-offender provisions to a SORA-2 or SORA-3
conviction.
10
substantive offense with enhanced punishments for subsequent violations or whether
SORA provides three separate and distinct substantive offenses for recidivist behavior.
B. SORA CREATES THREE SEPARATE OFFENSES
There is strong textual support leading to the conclusion that the Legislature
created three separate offenses in MCL 28.729(1). 33 When the Legislature enacted
SORA in 1994, it delineated only one offense punishable by 4 years’ imprisonment, a
fine, or both. 34 Had that section been left in its original form, there would have been no
doubt that subsequent violations of SORA would be subject to enhancements under the
HOA and, for a second-offense habitual offender, the maximum sentence would be 6
33
MCL 28.729(1) currently provides:
[A]n individual required to be registered under this act who willfully
violates this act is guilty of a felony punishable as follows:
(a) If the individual has no prior convictions for a violation of this
act, by imprisonment for not more than 4 years or a fine of not more than
$2,000.00, or both.
(b) If the individual has 1 prior conviction for a violation of this act,
by imprisonment for not more than 7 years or a fine of not more than
$5,000.00, or both.
(c) If the individual has 2 or more prior convictions for violations of
this act, by imprisonment for not more than 10 years or a fine of not more
than $10,000.00, or both.
34
MCL 28.729(1), as enacted by 1994 PA 295, provided:
An individual required to be registered under this act who willfully
violates this act is guilty of a felony punishable by imprisonment for not
more than 4 years or a fine of not more than $2,000.00, or both.
11
years, 1½ times the 4-year sentence. But the Legislature amended SORA in 1999 to set
forth SORA-1, SORA-2 and SORA-3. 35 Simultaneously, the Legislature amended the
sentencing guidelines, MCL 777.1 et seq., to address the SORA amendments. 36
The sentencing guidelines expressly assign felonies an offense category and
offense class, and MCL 777.11 to MCL 777.18 give descriptions of the offenses and
identify the statutory maximum terms of imprisonment. Before the 1999 amendment of
SORA that set forth SORA-1, SORA-2, and SORA-3, MCL 777.11 (as originally enacted
by 1998 PA 317) identified MCL 28.729 as establishing one offense, a Class G felony, 37
punishable by up to 4 years’ imprisonment and described as “Sex offenders—failure to
register[.]” In 1999 PA 90, the Legislature amended MCL 777.11 to list SORA-1,
SORA-2, and SORA-3 as separate and distinct offenses. 38 While the Legislature
designated the three offenses as being in the offense category of “crimes against public
35
1999 PA 85, effective September 1, 1999.
36
1999 PA 90, effective September 1, 1999.
37
All offenses to which the guidelines apply are classified in a manner that generally
corresponds to the seriousness of the offense. This gradation of seriousness is indicated
by the offense’s class, which is designated by the letters “M2” (second-degree murder)
and “A” through “H,” in order of decreasing seriousness. For example, when scoring
Prior Record Variable (PRV) 1, MCL 777.51, a “high severity felony conviction” is
defined in part as a conviction for a “crime listed in class M2, A, B, C, or D”; when
scoring PRV 2, MCL 777.52, a “low severity felony conviction” is defined in part as a
conviction for a “crime listed in class E, F, G, or H[.]”
38
At that time, MCL 28.729 was listed in MCL 777.11. Subsequently, 2002 PA 31
added several new sections to the guidelines, and MCL 28.729 became listed in MCL
777.11b.
12
order,” 39 it did not assign the same offense class to all three. Furthermore, the
Legislature gave different descriptions for all three. SORA-1, MCL 28.729(1)(a), is a
Class F felony, punishable by up to 4 years’ imprisonment and described as “Failure to
register as a sex offender, first offense[.]”40 SORA-2, MCL 28.729(1)(b) is a Class D
felony, punishable by up to 7 years’ imprisonment and described as “Failure to register as
a sex offender, second offense[.]” 41 SORA-3, MCL 28.729(1)(c) is a Class D felony,
punishable by up to 10 years’ imprisonment and described as “Failure to register as a sex
offender, third or subsequent offense[.]”42 The Legislature’s references to SORA-1,
SORA-2, and SORA-3 as individual offenses, its classification of these offenses in two
different offense classes, and its differing offense descriptions and penalties demonstrate
that the Legislature intended these offenses to be separate and distinct felonies that
elevate in severity for recidivist behavior.
Having concluded that SORA does indeed create three separate offenses, we
return to the provision of the HOA at issue:
If the subsequent felony is punishable upon a first conviction by
imprisonment for a term less than life, the court . . . may place the person
on probation or sentence the person to imprisonment for a maximum term
39
MCL 777.5(d); MCL 777.11b. All offenses to which the sentencing guidelines apply
belong to one of six offense categories: crimes against a person, crimes against property,
crimes involving a controlled substance, crimes against public order, crimes against
public trust, and crimes against public safety. MCL 777.5(a) to (f).
40
MCL 777.11b.
41
Id.
42
Id.
13
that is not more than 1-1/2 times the longest term prescribed for a first
conviction of that offense or for a lesser term.[43]
The words “first conviction of that offense” plainly refer to “the subsequent
felony” identified in the first part of the sentence. Defendant’s subsequent felony is his
conviction in June 2013 of SORA-2, which is punishable by a maximum of 7 years’
imprisonment.
We conclude that the Court of Appeals erred by interpreting MCL 28.729(1) and
MCL 769.10 as directly conflicting. Defendant was charged with and convicted of
SORA-2, MCL 28.729(1)(b), and not a violation of SORA generally. We must then
consider the longest term prescribed for a first conviction of SORA-2 under
MCL 28.729(1)(b), which, again, is 7 years. MCL 769.10(1)(a) states that the court may
sentence a defendant to a term of imprisonment 1½ times the longest term prescribed for
a “first conviction of that offense.” 44 The Court of Appeals, by holding that
MCL 28.729(1) sets forth a single offense, erroneously read the phrase “that offense” as
meaning any violation under MCL 28.729. Consequently, the Court of Appeals
mistakenly concluded that the phrase “first conviction of that offense” in
MCL 769.10(1)(a) referred to MCL 28.729(1)(a) (SORA-1) and, as a result, defendant’s
maximum sentence as a second-offense habitual offender would be 6 years. Rather,
defendant was subject to a 7-year maximum term of imprisonment, and the trial court
43
MCL 769.10(1)(a) (emphasis added).
44
Emphasis added.
14
appropriately exercised its discretion in sentencing defendant to 1½ times that statutory
maximum, i.e., 10.5 years. 45
C. CASELAW SUPPORTS APPLICATION OF THE HOA TO A SORA-2
CONVICTION
Michigan caselaw also supports our conclusion that a SORA-2 conviction can be
enhanced under the HOA. In People v Bewersdorf, one of the defendants, Bewersdorf,
pleaded guilty of operating a motor vehicle while under the influence of intoxicating
liquor, third offense (OUIL-3), a felony punishable by up to 5 years’ imprisonment, and
of being a second-offense habitual offender. 46 The Court of Appeals panel in
45
We do not quibble with the notion that the Legislature clearly set the maximum penalty
for two convictions of violating SORA at 7 years. Implicit in defendant’s argument and
the Court of Appeals’ opinion is the notion that, having set that penalty, the Legislature
could not have intended to also allow a sentencing court to impose a 10.5 year maximum
sentence. But as outlined in this opinion, it is clear that this is exactly what the Legiature
intended. The Legislature was fully aware that sentence enhancement under the HOA is
not mandatory, as vast discretion with regard to sentence enhancement is placed in the
sentencing court and the prosecution. A sentencing court can exercise the option to not
enhance a defendant’s sentence. See MCL 769.10(1)(a) (“[T]he court . . . . may place the
person on probation or sentence the person to imprisonment for a maximum term that is
not more than 1-1/2 times [the applicable term].”) (emphasis added); People v Turski,
436 Mich. 878 (1990). In order to seek sentence enhancement under the HOA, the
prosecuting attorney must file a written notice of intent to do so. MCL 769.13. The
prosecutor thus has discretion not to seek habitual-offender sentence enhancement. It is
clear that the Legislature wanted to ensure that an offender violating SORA a second time
would be subject to a maximum sentence of not less than 7 years, while vesting in the
sentencing court and the prosecution discretion that could result in a maximum sentence
of up to 10.5 years.
46
Bewersdorf, 438 Mich. at 60. At the time, OUIL-3 was prohibited by MCL 257.625(6),
as amended by 1987 PA 109, and punishable under MCL 257.902 as a 5-year felony.
The offense is now operating a motor vehicle while intoxicated (OWI) and is a 5-year
felony prohibited by MCL 257.625(9)(c).
15
Bewersdorf, much like the Court of Appeals panel in this case, vacated Bewersdorf’s
habitual-offender sentence enhancement, concluding that the two statutes stood in
conflict and therefore the more specific sentencing scheme applicable to OUIL offenses
under the Michigan Vehicle Code “prevail[ed] to the exclusion of the general habitual-
offender statute.” 47
This Court reversed in part, concluding that while the HOA establishes a
procedure for enhancing a sentence, it is clear that the OUIL provisions of the Michigan
Vehicle Code established separate crimes. 48 We rejected the Court of Appeals’ “forced
construction that placed the two statutes in conflict,” holding that the two statutes could
be read to “dovetail harmoniously,” thereby concluding that Bewersdorf’s OUIL-3
conviction was subject to the habitual-offender provisions of the HOA. 49
The statutory scheme in SORA, MCL 28.729(1), is similar to that currently
establishing the OWI offenses (previously known as OUIL) in the Michigan Vehicle
Code, MCL 257.625(9)(a) to (c). Both schemes establish three separate crimes, stating in
the prefatory language that a violation will be punished as stated in the subparts and then
creating a first offense, second offense, and third or subsequent offense.
47
People v Bewersdorf, 181 Mich. App. 430, 433; 450 NW2d 271 (1989), aff’d in part and
rev’d in part 438 Mich. 55 (1991).
48
Bewersdorf, 438 Mich. at 68.
49
Id. at 69-70 (quotation marks and citation omitted).
16
Just as Bewersdorf held that “OUIL-3 is a separate crime” from other OUIL
offenses, the same is true of SORA. 50 MCL 257.625(9) currently creates three separate
crimes under Subdivision (a) (first offense), Subdivision (b) (second offense if committed
within 7 years of a prior conviction), and Subdivision (c) (third or subsequent offense),
and MCL 28.729(1) creates three separate crimes under Subdivision (a) (first offense),
Subdivision (b) (second offense), and Subdivision (c) (third or subsequent offense). This
is likewise true of other statutory schemes of commonly charged offenses, such as
domestic violence, MCL 750.81(2) to (4). In addition, our reasoning is consistent with
other Court of Appeals cases that have addressed this issue. 51
50
Id. at 68. The OUIL provisions at issue in Bewersdorf differ from the SORA provisions
in that the underlying offenses in Bewersdorf were misdemeanors and SORA-1, SORA-2,
and SORA-3 are all felonies. Defendant complains that his sentence is inappropriate
because his SORA-1 conviction was used to support his SORA-2 conviction and as the
predicate to enhance his sentence as a second-offense habitual offender. While defendant
objects to this, he offers no statutory or legal analysis to support the contention that his
claimed double enhancement is inappropriate. The critical point from Bewersdorf is that
the OUIL provisions increased the punishment for each repeated offense, just as the
SORA provisions do in the present case. In fact, defendant concedes that there is no error
in enhancing a SORA-2 sentence under the habitual-offender provisions as long as the
habitual-offender enhancement is based on a felony other than a SORA violation. Thus,
to this extent, defendant agrees with our conclusion that MCL 28.729(1)(a) to (c) sets
forth separate, elevated offenses.
51
E.g., People v Eilola, 179 Mich. App. 315, 325; 445 NW2d 490 (1989) (holding that the
habitual-offender provisions could be used to enhance a sentence for a conviction that
constituted first-degree retail fraud because of a prior conviction, MCL 750.356c(2), as
added by 1988 PA 20); People v Brown, 186 Mich. App. 350, 357; 463 NW2d 491 (1990)
(reaffirming Eiolola and extending it by holding that the sentence could be enhanced
using the same conviction used to elevate the offense (answering a question left open in
Eilola)); People v James, 191 Mich. App. 480, 481-482; 479 NW2d 16 (1991) (holding
that the habitual-offender statutes and the statute imposing a mandatory minimum 5-year
sentence for a second offense of criminal sexual conduct may be concurrently applied);
17
Pursuant to the statutory analysis discussed earlier in this opinion, we conclude the
Legislature intended in enacting SORA-2 and SORA-3 to elevate each offense, not
merely the punishment. Thus, Michigan caselaw also supports our conclusion that a trial
court can sentence defendant under SORA-2 as a second-offense habitual offender using
his SORA-1 conviction.
IV. CONCLUSION
We conclude that MCL 28.729(1) sets forth a recidivism statutory scheme that
creates three separate felonies that elevate on the basis of repeat offenses. We further
conclude that a SORA-2 sentence for recidivist behavior may be elevated under the
second-offense habitual-offender statute, MCL 769.10(1)(a). Accordingly, the trial court
People v Lynch, 199 Mich. App. 422, 423-424; 502 NW2d 345 (1993) (relying on Eilola
and Bewersdorf and citing Brown to hold that the habitual-offender provision could
enhance a sentence for a recidivist conviction of fleeing and eluding). See also People v
Fetterley, 229 Mich. App. 511, 540-541; 583 NW2d 199 (1998) (“[W]here a defendant
commits a controlled substances offense, but is not subject to the enhancement provisions
of the Public Health Code because, although the defendant is an habitual offender, there
are no prior controlled substance offenses, enhancement under the habitual offender
provisions is permitted. Where the legislative scheme pertaining to the underlying
offenses elevates the offense, rather than enhances the punishment, on the basis of prior
convictions, both the elevation of the offense and the enhancement of the penalty under
the habitual offender provisions is [sic] permitted.”) (citations omitted). But cf. People v
Honeycutt, 163 Mich. App. 757, 760-763; 415 NW2d 12 (1987), in which the Court
concluded that when a defendant has been convicted of felony-firearm (and the requisite
underlying felony) and also found to be an habitual offender, the trial court must impose
the mandatory two-year sentence for the felony-firearm conviction without enhancement
by the HOA and then impose a sentence on the underlying felony with enhancement by
the HOA, with the second sentence running consecutively to the felony-firearm sentence.
While the felony-firearm statute creates a crime separate and distinct from the underlying
felony, the felony-firearm statute mandates the imposition of a mandatory, determinate
sentence, which would necessarily conflict with a trial court’s discretion to impose an
indeterminate sentence under the HOA. Id. at 760.
18
appropriately exercised its discretion when it sentenced defendant to a 10.5-year
maximum term of imprisonment. The Court of Appeals erred when it vacated
defendant’s sentence and wrongly concluded that MCL 769.10 and MCL 28.729 conflict
and that, as a result, defendant could only be sentenced to the 7-year maximum set forth
in MCL 28.729(1)(b).
We reverse the judgment of the Court of Appeals, remand the case to the Ionia
Circuit Court, and direct that court to reinstate defendant’s original judgment of sentence
of 2 to 10.5 years as a second-offense habitual offender for a second offense of failing to
comply with the SORA reporting requirements, MCL 28.729(1)(b). Pursuant to
MCR 7.315(C)(3), the Clerk of the Court is directed to issue the judgment order
forthwith.
Brian K. Zahra
Robert P. Young, Jr.
Stephen J. Markman
Bridget M. McCormack
Joan L. Larsen
19
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 151843
FLOYD PHILLIP ALLEN,
Defendant-Appellee.
VIVIANO, J. (concurring in the result only).
I agree with the majority’s conclusion that defendant’s conviction of failing to
comply with the Sex Offenders Registration Act (SORA), 1 second offense, under
MCL 28.729(1)(b) (SORA-2), is subject to sentence enhancement under the second-
offense habitual-offender provision, MCL 769.10(1)(a). I would, however, reach that
conclusion on more limited grounds and therefore concur in the majority’s result only.
The Court of Appeals held that the trial court erred by sentencing defendant as a
second-offense habitual offender to a 10.5-year maximum for his SORA-2 conviction
solely on the basis of his prior conviction under MCL 28.729(1)(a) (SORA-1). 2 In so
doing, the Court of Appeals concluded, among other things, that MCL 28.729(1), which
delineates SORA-1, SORA-2, and SORA-3, 3 sets forth one offense with escalating
1
MCL 28.721 et seq.
2
People v Allen, 310 Mich. App. 328, 349; 872 NW2d 21 (2015).
3
MCL 28.729(1)(c).
punishments for repeat convictions. 4 Before this Court, the prosecution argued: (1) that
SORA-1, SORA-2, and SORA-3 are separate and distinct chargeable offenses—not one
offense with escalating punishments as the Court of Appeals held; and (2) that nothing
precluded the trial court from using defendant’s prior conviction of SORA-1 to both
support his SORA-2 conviction and enhance his sentence as a second-offense habitual
offender.
The majority spends a significant portion of the opinion discussing the
prosecution’s first argument—i.e., whether SORA-2 is a separate felony subject to
habitual-offender enhancement. However, I see no need to do so because defendant
conceded that point before this Court by admitting that habitual-offender enhancement of
a SORA-2 sentence is permissible in certain circumstances. 5 And in conceding the issue,
defendant provided no briefing on it, leaving this Court without a full discussion of the
arguments that may run counter to the prosecution’s position. 6 In light of this lack of
4
Allen, 310 Mich. App. at 350.
5
Defendant’s brief on appeal states, “In other words, had some other prior felony
conviction (other than the previous conviction for Failing to Comply with SORA) been
used to charge Mr. Allen as a 2nd Felony Habitual Offender, he could have been
sentenced to a maximum of 10.5 years.” Defendant’s brief further states:
Admittedly, the prosecution’s arguments have some validity under
certain circumstances. If the prosecution had relied upon a different prior
(underlying) felony conviction, aside from the prior failure to comply with
SORA (which elevated both the underlying offense to a 2nd offense and the
sentence maximum from four years to seven years . . .), then the
prosecution would have a valid argument.
6
For example, a reasonable argument can be made that even though the sentencing
guidelines suggest that SORA-1, SORA-2, and SORA-3 are separate offenses, the plain
language of MCL 28.729(1) indicates that they are nothing more than provisions for
2
briefing, I would leave open for another day the question whether MCL 28.729(1) creates
separate offenses or only one offense with escalating punishments and instead rely on
defendant’s concession to hold that, for the purposes of this case only, SORA-2
constitutes a separate felony offense subject to habitual-offender enhancement.
Given defendant’s concession regarding the prosecution’s first argument, we need
only answer whether defendant’s SORA-1 conviction can be used as support for both
convicting him of SORA-2 and enhancing his sentence as a second-offense habitual
offender. While I am troubled by the prosecution’s ability to do so, I nonetheless agree
with the majority’s conclusion that it is permissible in this case. Nothing in the plain
language of MCL 28.729 or MCL 769.10 prohibits the prosecution or the court from
using defendant’s SORA-1 conviction to support a double enhancement. And in this area
of the law, the Legislature’s silence is significant since, as the majority recognizes, the
increased punishments. See People v Fetterley, 229 Mich. App. 511, 540-541; 583 NW2d
199 (1998) (“Where the legislative scheme pertaining to the underlying offenses elevates
the offense, rather than enhances the punishment, on the basis of prior convictions, both
the elevation of the offense and the enhancement of the penalty under the habitual
offender provisions is permitted.”) (emphasis added). There is also an interesting
distinction between MCL 28.729(1) and the statutes at issue in People v Bewersdorf, 438
Mich. 55; 475 NW2d 231 (1991). SORA-1, SORA-2, and SORA-3 are all felonies with
only increased punishment as their distinctions, whereas the drunk-driving provisions at
issue in Bewersdorf escalated the severity of the offense from a 90-day misdemeanor, to a
one-year misdemeanor, to a felony. Id. at 64, 71. Finally, a plausible argument may be
made that SORA is a standalone act not subject to habitual-offender enhancement. See
People v Edmonds, 93 Mich. App. 129, 135; 285 NW2d 802 (1979) (“As such, [the former
Controlled Substances Act, former MCL 335.301 et seq.] represents this state’s
comprehensive policy toward the use of controlled substances. As a specific and
comprehensive measure the act’s sentence-augmentation provision controls over the
general habitual offender statute.”); see also People v Honeycutt, 163 Mich. App. 757,
761-762; 415 NW2d 12 (1987).
3
Legislature has clearly demonstrated that it knows how to exclude certain offenses from
habitual-offender enhancement. 7 First, in the habitual-offender provisions, the
Legislature has excluded habitual-offender enhancement of subsequent felonies that are
major controlled substance offenses. 8 Second, in various acts throughout our statutory
scheme, the Legislature has precluded use of the same prior conviction for double
enhancement. 9 However, even though the Legislature knows how to do so, it chose not
to exclude convictions under MCL 28.729(1) from double enhancement. Therefore,
assuming for this case only that SORA-2 is a separate offense, I agree with the majority
that nothing precludes the trial court from using defendant’s SORA-1 conviction to both
support his SORA-2 conviction and enhance his sentence as a second-offense habitual
offender. 10
Accordingly, I agree that the trial court did not err when it sentenced defendant as
a second-offense habitual offender to a 10.5-year maximum sentence for his SORA-2
conviction. However, I would limit that holding to this case for the reasons stated here
and not decide whether SORA-2 is a separate offense subject to habitual-offender
7
Ante at 8-10.
8
See, e.g., MCL 769.10(1)(c) (“If the subsequent felony is a major controlled substance
offense, the person shall be punished as provided by part 74 of the public health code,
1978 PA 368, MCL 333.7401 to 333.7461.”).
9
For example, MCL 750.356c(6), which pertains to first-degree retail fraud, reads, “If the
sentence for a conviction under this section is enhanced by 1 or more prior convictions,
those prior convictions shall not be used to further enhance the sentence for the
conviction pursuant to [the habitual-offender statutes].” See also ante at 9 n 31.
10
See People v Miller, 498 Mich. 13, 24-25; 869 NW2d 204 (2015).
4
enhancement because the issue was conceded by defendant. Thus, I concur in the result
only.
David F. Viviano
Richard H. Bernstein
5