People of Michigan v. Christopher Lee Johnson ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 27, 2023
Plaintiff-Appellee,
v No. 361607
Wayne Circuit Court
CHRISTOPHER LEE JOHNSON, LC No. 17-001666-01-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 361858
Wayne Circuit Court
CHRISTOPHER LEE JOHNSON, LC No. 17-001666-01-FC
Defendant-Appellee.
Before: M. J. KELLY, P.J., and SWARTZLE and FEENEY, JJ.
PER CURIAM.
In these consolidated appeals, in Docket No. 361607, defendant appeals by leave granted1
his guilty plea conviction of first-degree criminal sexual conduct (“CSC-I”), MCL 750.520b(1)(c)
(sexual penetration under circumstances involving commission of a felony), (e) (defendant armed
with a weapon), and (f) (defendant caused personal injury and used force or coercion). The trial
court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to 13 to 30 years’
imprisonment and lifetime registration pursuant to the Sex Offenders Registration Act (“SORA”),
MCL 28.721 et seq., for his CSC-I conviction. The trial court’s amended judgment of sentence
1
People v Johnson, unpublished order of the Court of Appeals, entered July 14, 2022 (Docket No.
361607).
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eliminated the lifetime SORA registration requirement because the trial court ruled the
requirement was unconstitutional, as applied to defendant, under People v Betts, 507 Mich 527;
968 NW2d 497 (2021). In Docket No. 361858, the prosecution appeals by right the trial court’s
order granting defendant’s motion for an amended judgment of sentence to remove the requirement
that defendant register pursuant to SORA. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 26, 1995, the victim in this case was raped at gun point. The victim was taken to
a hospital and a rape kit was performed. In 2017, defendant was charged with CSC-I after his
DNA was matched to the DNA collected from the victim’s rape kit.
Defendant’s trial was originally scheduled to begin on May 11, 2017. At a pretrial hearing,
defendant was brought to court because defendant was displaying extreme psychological issues.
Defense counsel told the trial court that defendant was so incoherent that he was unable to
communicate with defendant. The trial court ordered that the prosecution arrange competency and
criminal responsibility evaluations and concurrent independent evaluations be performed. After
the evaluations were completed, the trial court found defendant competent to stand trial and
rescheduled defendant’s trial to begin on February 20, 2018.2
In December 2017, the parties were negotiating a plea agreement, and defense counsel and
the prosecution agreed that defendant’s minimum sentence guidelines range would be 15 to 30
years’ imprisonment if defendant were convicted of CSC-I in this case. The parties were
discussing a plea agreement where defendant would be sentenced to a term of 13 to 30 years’
imprisonment in exchange for pleading guilty. The trial court stated at a hearing that, if it made a
Cobbs3 evaluation in this case, it could not “conceive” of sentencing defendant to a term of
imprisonment that was below the minimum sentence guidelines range if defendant were convicted
of CSC-I at trial. On January 2, 2018, defendant accepted the prosecution’s plea agreement offer
and pled guilty to CSC-I. Under the terms of the agreement, in exchange for his plea , defendant
would receive a sentence of 13 to 30 years’ imprisonment as a second-offense habitual offender
and be required, for life, to register pursuant to SORA. Defendant was sentenced on January 16,
2018. At the sentencing hearing, the prosecution requested, and defense counsel stipulated to, two
changes to the guidelines scoring. Defendant declined to speak at the hearing, and the trial court
sentenced defendant consistently with the plea agreement.
On December 26, 2018, defendant moved in the trial court to withdraw his guilty plea, for
resentencing, or for the trial court to hold a Ginther4 hearing on the basis that his plea was not
knowingly and voluntarily entered because defendant received ineffective assistance of counsel.
Defendant also argued that his plea was not knowing and voluntary because offense variables
(OVs) were incorrectly scored, without identifying which OVs he disputed. There were no
2
From the record, it does not appear that the court resolved the issue whether defendant could be
held criminally responsible.
3
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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proceedings on defendant’s original motion to withdraw his guilty plea until after defendant filed
a “supplemental” motion to withdraw his guilty plea on February 22, 2022. In the new motion,
defendant again sought to withdraw his plea, be resentenced, or be granted a Ginther hearing.
Defendant argued that his trial counsel was ineffective and his plea was not knowing and voluntary
because defendant did not know that lifetime SORA registration under the Legislature’s 2011
amendments to SORA, 2011 PA 17 and 2011 PA 18, violated defendant’s right to be free from ex
post facto laws. Defendant also argued that he is entitled to resentencing because the sentencing
information report from his original sentencing is missing from the lower court record, and that
prevents defendant from challenging the accuracy of the guidelines scores in the trial court or on
appeal. In response, the prosecution argued that defendant received effective assistance of counsel
and waived his rights to withdraw his plea and to be resentenced. The prosecution also argued that
defendant is still subject to SORA because any considerations of ex post facto laws do not obviate
defendant’s duty to register under the 2021 amendments to SORA, which cured the constitutional
ex post facto law defects of the 2011 version of SORA.
The trial court denied defendant’s motion to withdraw his guilty plea because the record
from defendant’s plea hearing and sentencing hearing showed defendant expressed that he
understood the rights he was giving up and that he was satisfied with his counsel’s representation.
The trial court denied defendant’s motion for a Ginther hearing because there was no indication
from the record that defendant’s trial counsel made any mistakes. The trial court also denied
defendant’s motion for resentencing regarding the missing sentencing information report because
defendant entered his guilty plea knowingly, voluntarily, and understandingly received effective
assistance of counsel. However, the trial court granted defendant’s motion for an amended
judgment of sentence to remove the requirement that he register under SORA for life because
application of the current SORA to defendant constituted an unconstitutional violation of
defendant’s right to be free from an ex post facto law. On May 17, 2022, the trial court entered an
amended judgment of sentence that removed from defendant’s sentence the requirement that he
register under SORA, but did not amend defendant’s term of imprisonment.
On May 31, 2022, in Docket No. 361607, defendant filed an application for leave to appeal
his amended judgment of sentence in this Court arguing he should be allowed to withdraw his plea
on the basis of ineffective assistance of counsel and that he is entitled to resentencing because the
sentencing information report from defendant’s original sentencing is missing. On June 21, 2022,
in Docket No. 361858, the prosecution appealed as of right the trial court’s order removing the
lifetime SORA registration requirement from defendant’s judgment of sentence.5 This Court
5
On June 30, 2022, defendant moved in this Court to dismiss the prosecution’s appeal in Docket
No. 361858, arguing that this Court lacks jurisdiction to hear the prosecution’s appeal because the
trial court’s order rescinding the requirement that defendant register pursuant to the SORA was
not a final order. On August 5, 2022, this Court denied defendant’s motion to dismiss the
prosecution’s appeal in Docket No. 361858. People v Johnson, unpublished order of the Court of
Appeal, entered August 5, 2022 (Docket No. 361858).
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granted defendant’s application for leave to appeal in Docket No. 361607 and entered an order
consolidating these appeals pursuant to MCR 7.211(E)(2)(a).6
II. STANDARDS OF REVIEW
This Court reviews for an abuse of discretion a sentence imposed under the judicial
sentencing guidelines, applying the principle of proportionality. People v Babcock, 469 Mich 247,
253-254; 666 NW2d 231 (2003). “[A] given sentence can be said to constitute an abuse of
discretion if that sentence violates the principle of proportionality, which requires sentences
imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” People v Milbourne, 435 Mich 630, 636; 461 NW2d 1 (1990).
This Court reviews for an abuse of discretion a trial court’s decision on a motion to
withdraw a plea. People v Blanton, 317 Mich App 107, 117; 894 NW2d 613 (2016). “A trial
court abuses its discretion when it selects an outcome that does not fall within the range of
reasonable and principled outcomes.” People v Young, 276 Mich App 446, 448; 740 NW2d 347(2007). “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The
trial court’s factual findings are reviewed for clear error, and questions of law are reviewed de
novo. Id. When there was no Ginther hearing requested or held in the trial court, review is limited
to mistakes apparent on the record. People v Mack, 265 Mich App 122, 125; 695 NW 2d 342(2005). A trial court’s decision on a motion to amend a judgment of sentence is a question of law
that is reviewed de novo. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017).
III. DOCKET NO. 361607
A. RESENTENCING
Defendant argues that he is entitled to resentencing because the sentencing information
report prepared at his original sentencing hearing is missing from the lower court record. We
disagree.
Because defendant committed the crime in this case in 1995, before the legislative
sentencing guidelines took effect, defendant must be sentenced under the judicial sentencing
guidelines that were in effect when the crime was committed. People v Reynolds, 240 Mich App
250, 254; 611 NW2d 316 (2000). When sentencing a defendant who is an habitual offender under
the judicial sentencing guidelines, the trial court is required to prepare a sentencing information
report. People v Zinn, 217 Mich App 340, 350; 551 NW2d 704 (1996). However, the judicial
sentencing guidelines do not apply to habitual offenders. Id. Originally, the purpose of requiring
a sentencing court to prepare a sentencing information report for habitual offenders, was to aid the
judiciary in crafting habitual offender judicial sentencing guidelines. Id. The purpose of
completing a sentencing information report for an habitual offender is not to aid the trial court in
determining a proper sentence and “is not for the benefit of the defendant himself . . . .” People v
6
People v Johnson, unpublished order of the Court of Appeal, entered October 5, 2022 (Docket
Nos. 361607 and 361858).
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Yeoman, 218 Mich App 406, 421; 554 NW2d 577 (1996). When crafting a sentence for a habitual
offender whose crime was committed while the judicial sentencing guidelines were in effect, a
sentencing court is only to be guided by the principle of proportionality. Id. at 419. Further, this
Court is prohibited from considering the judicial sentencing guidelines when it reviews an habitual
offender’s sentence for proportionality, and an habitual offender is not permitted to challenge the
trial court’s guidelines calculations on appeal. People v Edgett, 220 Mich App 686, 694-695; 560
NW2d 360 (1996). Accordingly, an habitual offender does not have a right to have an accurately
scored sentencing information report under the judicial sentencing guidelines. Id. at 695.
Defendant argues that remand is necessary because he has the right to have an accurate
presentence investigation report (“PSIR”) on record. This Court has held that remand is required
to correct an error in a defendant’s PSIR even when the error does not affect the defendant’s
sentence. People v Harmon, 248 Mich App 522, 533; 640 NW2d 314 (2001). Defendant has not
challenged the accuracy of the information contained in his PSIR, which is in the lower court
record. Notably, this Court has not held that a trial court must rescore the judicial sentencing
guidelines when a sentencing information report for a habitual offender is missing from the
defendant’s PSIR. To require the trial court in this case to undertake the ministerial task of
recreating a sentencing information report would be inconsistent with this Court’s holdings that a
habitual offender’s sentencing information report is not for the defendant’s benefit, Yoeman, 218
Mich App at 421, and that a habitual offender does not have the right to challenge inaccuracies in
a sentencing information report, Edgett, 220 Mich App at 695.7 Therefore, defendant is not entitled
to a remand for the completion of a “new” sentencing information report.
Defendant also argues that he is entitled to be resentenced because he has a right to have
an accurate sentencing information report to facilitate review of his sentence. Even if the trial
court erred when it scored the judicial sentencing guidelines in this case, defendant would not be
entitled to review of his sentence. It is well-established that “a defendant who voluntarily and
understandingly entered into a plea agreement that included a specific sentence waives appellate
review of that sentence.” People v Billings, 283 Mich App 538, 550; 770 NW2d 893 (2009).
Defendant entered into a plea agreement for a specific sentence. And, as will be discussed,
defendant voluntarily and understandingly entered into the plea agreement in this case. The
Supreme Court has also held that a defendant waives appellate review of an above-guidelines
sentence resulting from a plea agreement if the plea agreement was entered into voluntarily and
understandingly regarding the minimum sentence. People v Wiley, 472 Mich 153, 154; 693 NW2d
800 (2005). Here, defendant was sentenced consistently with the terms of the plea agreement.
Therefore, defendant is not entitled to the re-creation of a sentencing information report and has
waived any challenge to his sentence.
B. PLEA WITHDRAWAL
7
In this case, defense counsel, the prosecutors and the trial court all had the sentencing information
report at the time of sentencing but cannot be located now.
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Defendant argues that the trial court erred when it denied his motion to withdraw his guilty
plea or, alternatively, to hold a Ginther hearing to determine whether defendant received the
effective assistance of counsel. We disagree.
A “defendant has a right to withdraw any plea until the court accepts it on the record.”
MCR 6.310(A). A trial court “may not accept a plea of guilty or nolo contendere unless it is
convinced that the plea is understanding, voluntary, and accurate.” People v Cole, 491 Mich 325,
330-331; 817 NW2d 497 (2012). After the trial court accepts a guilty plea on the record, there is
no absolute right for a defendant to withdraw his plea. Blanton, 317 Mich App at 117. An accepted
guilty plea may be withdrawn “only in the interest of justice . . . .” MCR 6.310(B)(1). A defendant
bears the burden of establishing “a fair and just reason for withdrawal of the plea.” People v
Patmore, 264 Mich App 139, 149; 693 NW2d 385 (2004). Plea withdrawal may be allowed when
a defendant receives ineffective assistance of counsel that causes a defendant to unknowingly or
involuntarily enter a guilty plea. People v Thew, 201 Mich App 78, 91; 506 NW2d 547 (1993).
Establishing ineffective assistance of counsel requires a defendant to show his counsel’s
performance was so deficient that he was denied his Sixth Amendment right to counsel. US Const,
Am VI; People v Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). “Effective assistance
of counsel is presumed, and [a] defendant bears a heavy burden to prove otherwise.” Id. In People
v Anderson, 322 Mich App 622, 628; 912 NW2d 607 (2018), this Court explained:
To establish that his or her lawyer provided ineffective assistance, a defendant must
show that (1) the lawyer’s performance fell below an objective standard of
reasonableness under prevailing professional norms and (2) there is a reasonable
probability that, but for the lawyer’s deficient performance, the result of the
proceedings would have been different.
An attorney’s performance may be ineffective when he or she fails to make a reasonable
investigation of the facts in the case. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136(2012). Ineffective assistance of counsel can also be established when a defendant is induced into
accepting a plea agreement on the basis of counsel’s inaccurate legal advice. People v Jackson,
203 Mich App 607, 613; 513 NW2d 206 (1994). Regarding prejudice, there is a reasonable
probability that the result would have been different when the probability is strong enough to
undermine confidence in the outcome. People v Chenault, 495 Mich 142, 159 n 10; 845 NW2d
731 (2014). When a defendant has accepted a plea agreement, establishing prejudice requires the
defendant to show that, but for counsel’s error, the outcome of the plea process would have been
different. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). A defendant is also
required to establish the factual predicate of an ineffective assistance of counsel claim. People v
Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Because no Ginther hearing was held in the trial
court, our review is limited to mistakes apparent on the record. Mack, 265 Mich App at 125.
Defendant first argues that his trial counsel did not perform an adequate investigation and
was unprepared to go to trial. Defendant’s first attorney, Jermaine Wyrick, moved in the trial court
for an independent DNA analysis, that defendant be allowed to take a polygraph examination, and
that the trial court appoint an independent investigator for defendant. The trial court granted each
of those motions. The independent DNA analysis was completed, and Wyrick indicated that the
defense would not be calling the DNA analyst as a witness. Defendant was scheduled for a
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polygraph examination on May 2, 2017, and there is no indication that the examination did not
happen. The record does not contain what evidence, if any, was uncovered in the independent
investigation. Rather than showing a failure to investigate, the record shows that Wyrick pursued
many avenues to find exculpatory evidence and that apparently none was found. Defendant has
not identified any evidence that may have been uncovered through further investigation. There is
no suggestion from the record that counsel failed to investigate possible avenues of defense.
Therefore, defendant has failed to establish the factual predicate of his claim. Hoag, 460 Mich at
6.
Defendant’s assertion in his affidavit that his counsel was unprepared for trial also lacks
merit. Defendant’s trial was originally scheduled to begin on May 11, 2017. As discussed, Wyrick
had performed a full investigation and was engaged in pretrial proceedings. From the record,
Wyrick appeared prepared for trial, and even refused to stipulate to the proper chain of custody for
the prosecution’s DNA evidence. Defendant’s trial did not begin on May 11, 2017, because
counsel raised the question regarding defendant’s competencyto stand trial. Defendant’s second
trial counsel, Sanford Schulman, was appointed on June 6, 2017. After the court found defendant
was competent to stand trial on October 12, 2017, defendant’s trial was scheduled to begin on
February 20, 2018. Defendant pleaded guilty on January 2, 2018, long before trial. Even if
defendant’s original counsel was unprepared for trial, which does not appear to be the case, the
record does not support that defendant’s second attorney was unprepared for trial considering that
defendant pleaded guilty nearly two months before defendant’s trial was scheduled to begin.
The record also does not support that defendant unknowingly or involuntarily entered his
guilty plea. The process for accepting a guilty plea is governed by court rule. MCR 6.302. Before
accepting a guilty plea, the trial court must make sure that the defendant understands the trial rights
the defendant is waiving, including the rights to a jury trial, the presumption of innocence, the
requirement that guilt be proven beyond a reasonable doubt, and to call one’s own witnesses and
confront the prosecution’s witnesses. MCR 6.302(B)(3)(a)-(i). At defendant’s plea hearing, the
trial court asked defendant if he understood he was giving up each of the rights the court is required
to inquire about under the court rule, and defendant responded that he understood he was waiving
those rights. To establish the voluntariness of a guilty plea, the trial court is required to ask the
defendant whether he was promised anything beyond what is in the plea agreement, whether
anyone has threatened him, and whether it is the defendant’s own choice to plead guilty. MCR
6.302(C)(4)(a)-(c). The trial court asked defendant each of these questions, and defendant
responded that no one had promised him anything beyond the plea agreement, no one had
threatened him, and it was his own choice to plead guilty. Defendant also said that he was satisfied
with his representation.
Defendant also argues that his trial counsel coerced him into accepting the prosecution’s
plea agreement offer by threatening defendant that he would receive a sentence of life
imprisonment if defendant were found guilty at trial. Defendant’s attorney accurately advised
defendant of his sentencing exposure. A defendant convicted of CSC-I may be sentenced to
imprisonment for life. MCL 750.520b(2)(a). Because defendant never showed hesitation or
equivocation when entering his guilty plea, he stated he was satisfied with his representation on
the record, and the record does not show defendant was given inaccurate advice, defendant’s
argument that he entered his guilty plea unknowingly or involuntarily lacks merit.
-7-
While defendant’s ineffective assistance of counsel claim fails because he cannot show his
counsel’s conduct fell below an objective standard of reasonableness, defendant also cannot show
prejudice. There is no indication from the record that the outcome of the plea process would have
been different absent defense counsel error. The only potential error defendant has raised is that
his trial counsel did not inform him of the requirement that he register pursuant to SORA for life,
and defendant asserts on appeal that this issue is now moot because the court removed the SORA
registration requirement from his sentence. The record shows that defendant accepted the
prosecution’s plea agreement offer after protracted consideration. On May 5, 2017, at a pretrial
conference before defendant’s original trial date, the prosecution stated that it had offered
defendant a plea agreement with a sentence of 13 to 30 years’ imprisonment and a requirement
that defendant register under SORA for life. In December 2017, the parties were in the process of
discussing a plea agreement under those same terms. At a December 18, 2017 hearing, the
prosecution again offered a plea agreement of 13 to 30 years’ imprisonment, and defendant asked
the trial court for, and was granted, two additional weeks to consider the prosecution’s offer. On
January 2, 2018, defendant accepted that offer after it was stated on the record that defendant was
agreeing to lifetime SORA registration and pled guilty to CSC-I. The record demonstrates that
defendant accepted a plea agreement that had remained unchanged for months, and defendant
accepted the offer nearly two months before his trial was scheduled to begin. Under these
circumstances, defendant has not met his burden of showing that there would have been a different
outcome in his plea taking process absent an error of counsel.
In sum, defendant received effective assistance of counsel and is not entitled to a Ginther
hearing on remand. The trial court did not err when it denied defendant’s motion to withdraw his
guilty plea because defendant entered his guilty plea knowingly, voluntarily, and understandingly.
IV. DOCKET NO. 361858
The prosecution argues that the trial court erred when it granted defendant’s motion for an
amended judgment of sentence to remove the requirement that defendant register pursuant to
SORA for life. We disagree.
When SORA was first enacted,8 it required criminal defendants convicted after October 1,
1995, of specified sex offenses to register their addresses with law enforcement and to have the
information kept in a confidential database accessible only to law enforcement. Betts, 507 Mich
at 533. SORA was amended numerous times, and the early amendments included changes such
as making the database public and requiring registrants to provide updated photographs to be kept
in the database. Id. at 535. Beginning in 2006, registrants were prohibited from living, working,
or “loitering” within 1,000 feet of a school, a provision referred to as “exclusion zones.” Id. In
2011, the Legislature made substantial changes to SORA, which included the creation of a three-
tiered classification that labeled registrants on the basis of the severity of their offenses and a
requirement for registrants to report a wide swath of information including all e-mail addresses
and social media accounts. Id. at 555. Although SORA’s requirements on convicted defendants
were substantial, this Court had determined that SORA was a civil remedy to protect public health
8
1994 PA 295.
-8-
and safety, and that its requirements did not constitute a criminal punishment. People v Bosca,
310 Mich App 1, 60; 871 NW2d 307 (2015), rev’d in part 509 Mich 851 (2022).
In Betts, the Supreme Court considered whether SORA was a civil remedy or whether it
imposed a criminal punishment on registrants for the purposes of the Michigan and United States
Constitutions’ prohibition on ex post facto laws. The Betts Court concluded that the requirement
to register and comply with the 2011 version of SORA constituted a criminal punishment. Betts,
507 Mich at 562. In that case, the defendant was convicted of second-degree criminal sexual
conduct in 1993 and was required to register pursuant under SORA. Id. at 536. In 2012, the
defendant failed to report a change of residence, his e-mail address, and the purchase of a vehicle
within three days, and the defendant was convicted of violations of the 2011 SORA amendments.
Id. at 536-537. After this Court denied the defendant’s application for leave to appeal his SORA
violation conviction, the Supreme Court granted the defendant’s application for leave to appeal
and ordered the parties to address whether the requirements of SORA constituted a criminal
punishment and whether enforcing the 2011 SORA amendments against registrants whose crimes
were committed before the passage of those amendments implicated the Michigan and United
States Constitution’s prohibition against ex post facto laws. Id. at 538.
“A law is considered ex post facto if it: (1) punishes an act that was innocent when the act
was committed; (2) makes an act a more serious criminal offense; (3) increases the punishment for
a [committed] crime; or (4) allows the prosecution to convict on less evidence.” Betts, 507 Mich
at 542 (quotation marks omitted). The Court concluded that the 2011 amendments to SORA
potentially increased the punishment for the conviction of a crime committed before the
amendments so analysis of whether the amendments were an ex post facto law was necessary. Id.
Determining whether a law is ex post facto requires the application of a two-step process, which
begins with determining whether the legislature intended the statute to be criminal penalty or civil
remedy. Id. If the legislature intended the statute to impose a criminal penalty, the inquiry ends.
Id. at 542-643. If, however, a court determines that the legislature intended the statute to be a civil
remedy, which the Court did in Betts, then it must apply the Mendoza-Martinez9 factors to
determine whether the statute imposes an ex post facto penalty. Id. at 543. The Mendoza-Martinez
factors are:
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. [Kennedy v Mendoza-Martinez, 372 US 144, 168-
189; 83 S Ct 554; 9 L Ed 2d 644 (1963).]
9
Kennedy v Mendoza-Martinez, 372 US 144, 168-189; 83 S Ct 554; 9 L Ed 2d 644 (1963).
-9-
The Supreme Court determined that the 2011 version of SORA imposed a disability or
restraint, its requirements have historically been regarded as punishment, it promotes the
traditional aims of punishment, and its requirements were excessive but that it is rationally
connected to a nonpunitive purpose. Betts, 507 Mich at 549-562. The Court weighed the factors
and concluded that the 2011 version of SORA imposed a criminal punishment and enforcing it
against someone who committed his or her crime before the 2011 amendments took effect violates
the Michigan and United States Constitutions’ prohibitions against ex post facto laws. Id. at 562.
The Court further concluded that, despite Michigan’s preference for severing unconstitutional
provisions from a statute and leaving the rest of the statute in effect, MCL 8.5, the unconstitutional
provisions of SORA could not be severed. Id. The Court reasoned that SORA’s complicated
legislative history would make it impossible to glean legislative intent regarding how particular
provisions related to the whole statutory scheme and that severing individual provisions would
require the Court to make legislative choices. Id. at 562-573. Therefore, the Court held that it was
unconstitutional to apply the 2011 SORA amendments to someone whose crime was committed
before the 2011 amendments took effect, but the Betts Court left intact the 2011 amendments for
those who committed crimes after the amendments’ enactment. Id. at 574.
Following oral arguments in Betts, but before the Court’s opinion was issued, the
Legislature passed 2020 PA 295 to amend SORA, effective March 24, 2021. Betts, 507 Mich at
538. The Supreme Court issued its opinion in Betts on July 27, 2021, and the Court did not
consider whether the enforcement of any post-2011 amendments to SORA, including 2020 PA
295, against a defendant who committed his or her crime before 2011 ran afoul of the constitutional
prohibition against ex post facto laws. Id. at 574 n 30. According to the Michigan House of
Representatives legislative analysis, one of the purposes of 2020 PA 295 was to remove several
provisions contained in the 2006 and 2011 amendments to SORA, most notably the exclusion
zones, which the United States Court of Appeals for the Sixth Circuit opined may be
unconstitutional in Does #1-5 v Snyder, 834 F3d 696, 705-706 (2016).10 House Legislative
Analysis, HB 5679 (December 1, 2020).
The prosecution argues that defendant is still required to register under the 2021 version of
SORA because the amendments cured the constitutional defects of the 2011 version of SORA and
the statute is once again a civil regulatory statute rather than a criminal punishment. This Court
held that the current version of SORA continues to impose a criminal penalty, however, in People
v Lymon, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 327355); slip op at 18, lv
gtd in part ___ Mich ___; 983 NW2d 82 (2023).11
10
In Does #1-5, the court held that enforcement of the 2006 and 2011 amendments to SORA
violated the United States Constitution’s prohibition on ex post facto laws, and the court did not
reach the question whether individual provisions of SORA were unconstitutional. Does #1-5, 834
F3d at 705-706.
11
The defendant in Lyman was the appellant in this Court. The defendant filed an application for
leave to appeal this Court’s decision in the Michigan Supreme Court, and the prosecution filed a
cross-application for leave to appeal. The Supreme Court denied the defendant’s application for
-10-
In Lymon, ___ Mich App at ___; slip op at 1-2, the defendant was convicted of three counts
of unlawful imprisonment, MCL 750.349b, after confining his wife and two minor children at
gunpoint in 2014. Under SORA, a defendant who is convicted of unlawfully imprisoning a minor
must register pursuant to SORA. Id. at ___; slip op at 1. The defendant argued that requiring him
to register pursuant to SORA for a non-sex offense violates the Michigan Constitution’s
prohibition against cruel or unusual punishment and the United States Constitution’s prohibition
against cruel and unusual punishment. Id. at ___; slip op at 6. Before it could reach the issue
whether the punishment was unconstitutional, this Court had to first consider whether SORA
registration is still a criminal punishment, or if the 2021 SORA amendments rendered SORA a
civil regulation. Id. at ___; slip op at 11. This Court relied almost entirely on the Supreme Court’s
analysis of the Mendoza-Martinez factors because the post-2011 SORA amendments made very
few changes relevant to weighing the factors. Id. at ___; slip op at 11-18. The only notable
changes that would factor against determining that SORA imposes a criminal punishment were
the removal of the exclusion zones and modifications to some reporting requirements. Id. at ___;
slip op at 12-15. This Court concluded that the version of SORA in effect after the 2021
amendments still imposes a punishment on those required to register under it. Id. at ___; slip op
at 18.
In this case, the trial court properly granted defendant’s motion to be relieved of the
obligation to register pursuant to SORA for life. The prosecution’s main argument is that,
following the 2021 amendment to SORA, the statute is once again a civil regulatory statute rather
than a criminal punishment, so the Supreme Court’s decision in Betts, 507 Mich at 574 does not
apply to defendant. This Court expressly rejected the argument that the 2021 version of SORA is
not a criminal punishment. Lyman, ___ Mich App at ___; slip op at 18. And, notably, the Supreme
Court entered orders directing trial courts to grant relief from judgment to remove SORA
registration requirements for defendants convicted of sex offenses before the 2011 amendments
after it decided Betts and with knowledge of the 2021 SORA amendments. See, e.g., People v
Werner, ___ Mich ___; 969 NW2d 330 (2022); People v Smith, ___ Mich ___; 969 NW2d 15(2022). The only other argument that the prosecution has made, briefly and without citation to
authority, is that defendant’s obligation to register pursuant to SORA arises from the current 2021
version of SORA and not a previous one. The current version of MCL 28.723 still imposes a
requirement under SORA that individuals who were convicted of an enumerated offense after
October 1, 1995, must register, and defendant was convicted of CSC-I after that date. Following
Betts, 507 Mich at 574, and Lyman, ___ Mich App at ___; slip op at 18, however, that requirement
is essentially a nullity because the state lacks the ability to enforce that requirement on someone
convicted before the 2011 SORA amendments took effect. Therefore, the trial court did not abuse
leave to appeal and granted the prosecution’s cross-application for leave to appeal. People v
Lymon, ___ Mich ___; 983 NW2d 82 (2023). The Supreme Court’s order granting leave to appeal
confines the issue presented to the single question whether requiring a defendant to register
pursuant to SORA, when the defendant was convicted of a nonsexual crime, violates the Michigan
Constitution’s prohibition against cruel or unusual punishment and the United States
Constitution’s prohibition against cruel and unusual punishment. Id.-11-
its discretion when it granted defendant’s motion for an amended judgment of sentence to remove
the requirement that defendant register pursuant to SORA for life.
Affirmed.
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
/s/ Kathleen A. Feeney
-12-