People of State v. Lee

• Court: Michigan Supreme Court
• Writing for the Court: Opinion
• Citation: People of State v. Lee, 489 Mich. 289, 803 N.W.2d 165 (Mich. 2011)
• Decision Date: 30 June 2011
• Docket Number: Docket No. 141570.Calendar No. 2.
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee,v.Kent Allen LEE, Defendant–Appellant.

489 Mich. 289

803 N.W.2d 165

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Kent Allen LEE, Defendant–Appellant.

Docket No. 141570.Calendar No. 2.

Supreme Court of Michigan.

Argued April 5, 2011.Decided June 30, 2011.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Frederick Anderson, Prosecuting Attorney, Judy Hughes Astle, Assistant Prosecuting Attorney, and Aaron J. Mead, Special Assistant Prosecuting Attorney, for the people.Cunningham Dalman, P.C., Holland (by David M. Zessin), for defendant.

Opinion

MICHAEL F. CAVANAGH, J.

In this case, we hold that the trial court erred when it required defendant to register as a sex offender under the Sex Offenders Registration Act (SORA) 20 months after defendant had been sentenced. 11

At sentencing on March 17, 2006, the prosecution requested that defendant be required to register as a sex offender under SORA's catchall provision, MCL 28.722(e)( xi ). In support of the registration request, the prosecution recited statements from the victim advocate that defendant had rubbed JW's penis and given him candy after the flicking incident. Defendant objected, and Allegan Circuit Court Judge Harry A. Beach noted that the prosecution's supporting information was not included in the record. Furthermore, Judge Beach stated that defendant's crime was “a rather abusive assault” but not a “sex act” and concluded that registration under SORA was not appropriate in light of the facts in the record. Thus, Judge Beach did not require defendant to register under SORA, but left the question open, subject to the prosecution's setting a hearing to take testimony regarding whether defendant's conduct required registration. Judge Beach stated that the court was retaining jurisdiction for that purpose but issued a judgment of sentence that did not require registration.

Approximately 20 months after the sentencing hearing, the prosecution moved for entry of an order requiring defendant to register under SORA. Defendant objected, arguing that the procedure was improper. A hearing on the prosecution's motion was scheduled before Judge William A. Baillargeon because Judge Beach had retired. At the December 13, 2007, hearing, JW's father testified that he had had three conversations with defendant and that defendant had stated that he had been “bullying” JW, but had not explained what he meant by “bullying.” Defendant testified that he was deeply sorry for his conduct and that he had flicked JW's penis in a reaction to JW's uncooperativeness. He explained that he used the term “bullying” to describe a grown man inflicting pain on a small boy. Defendant testified that he had not been disciplining JW in the sense that he had warned him that his penis would be flicked if he did not behave and further denied that his actions were intended to injure or humiliate JW. Finally, defendant stated that he had been frustrated when the incident occurred but not angry. No testimony or evidence was presented in support of the prosecution's prior assertions at sentencing that defendant had rubbed JW's penis and given JW candy after the flicking.

Judge Baillargeon ruled that defendant must register under SORA, stating that there was no procedural bar to granting the prosecution's motion because Judge Beach had reserved a decision on the SORA issue. Also, Judge Baillargeon stated that the information used to support the plea was sufficient to show that defendant's act was “certainly something that would be envisioned by the law and I think that by itself would constitute the registration that the People seek.” Finally, Judge Baillargeon concluded that the testimony from the evidentiary hearing supported his decision to require registration under SORA because the discussion about “bullying” rather than disciplining “underlies and bolsters” the registration requirement.

The Court of Appeals denied defendant's application for leave to appeal, but this Court remanded the case to the Court of Appeals for consideration as on leave granted. People v. Lee, 485 Mich. 914, 773 N.W.2d 267 (2009). On remand, the Court of Appeals affirmed Judge Baillargeon's decision to require registration under SORA. People v. Lee, 288 Mich.App. 739, 794 N.W.2d 862 (2010). The Court of Appeals determined that there was no procedural bar to requiring registration, in part because registration may be imposed at any time while the trial court has jurisdiction over a defendant. The Court of Appeals concluded that because defendant was still on probation, the trial court retained jurisdiction, and, thus, Judge Baillargeon's decision to require registration under SORA was proper. Id. at 744–745, 794 N.W.2d 862. This Court granted defendant's application for leave to appeal. People v. Lee, 488 Mich. 953, 790 N.W.2d 823 (2010).

II. STANDARD OF REVIEW

This Court reviews de novo lower courts' interpretations and applications of statutes and court rules. Estes v. Titus, 481 Mich. 573, 578–579, 751 N.W.2d 493 (2008); Pellegrino v. AMPCO Sys. Parking, 486 Mich. 330, 338, 785 N.W.2d 45 (2010).

III. ANALYSIS

Under MCL 28.723(1)(a), a defendant must register as a sex offender if the defendant is convicted of a specified “listed offense” as defined in MCL 28.722(e)( i ) through ( x ) and ( xii ) through ( xiv ). Defendant's crime in this case, third-degree child abuse, is not a specified listed offense. Therefore, if defendant is to be required to register, it must be under SORA's catchall provision, MCL 28.722(e)( xi ), which requires registration for a “violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age.” With regard to applying the catchall provision, MCL 769.1(13) explains that

[i]f the defendant is sentenced for an offense other than a listed offense as defined in section 2(d)( i ) to ( ix ) and ( xi ) to ( xiii ) ³ of the sex offenders registration act, 1994 PA 295, MCL 28.722, the court shall determine if the offense is a violation of a law of this state or a local ordinance of a municipality of this state that by its nature constitutes a sexual offense against an individual who is less than 18 years of age. If so, the conviction is for a listed offense as defined in section 2(d)( x ) of the sex offenders registration act, 1994 PA 295, MCL 28.722, and the court shall include the basis for that determination on the record and include the determination in the judgment of sentence.

Thus, if a defendant's crime falls under the catchall provision, MCL 28.722(e)( xi ), under MCL 769.1(13), the crime is a listed offense, requiring registration under SORA.⁴ In turn, for convictions of listed offenses after October 1, 1995, MCL 28.724(5) provides the following with regard to SORA's registration procedures: (1) the defendant “shall register before sentencing,” (2) “[t]he probation officer or the family division of circuit court shall give the individual the registration form after the individual is convicted” and explain the individual's duties under SORA, and (3) “[t]he court shall not impose sentence ... until it determines that the individual's registration was forwarded to the department [of state police] as required under [ MCL 28.726].” Finally, for crimes falling under the catchall provision, MCL 769.1(13) adds additional procedural requirements regarding registration under SORA, including that the court must include the determination that the crime is a listed offense under the catchall provision, for which registration was therefore required, “in the judgment of sentence.”

In this case, the only issue we reach is the effect of the trial court's failure to include a definitive determination of defendant's registration status in the judgment of sentence and the subsequent 20–month delay between sentencing and the determination that defendant must register. We hold that the trial court's decision mandating registration was erroneous because the court failed to comply with the statutory requirements.

To begin with, we reject the Court of Appeals' conclusion that the trial court “did not commit procedural error” when it ordered defendant to register under SORA 20 months after sentencing. The Court of Appeals reasoned that the trial court retained jurisdiction over defendant because defendant remained on probation. Lee, 288 Mich.App. at 744–745, 794 N.W.2d 862. However, the Court of Appeals cited no authority in support of its conclusion and, indeed, none exists.

Furthermore, it is clear that the trial court committed multiple procedural errors in this case. First, the trial court did not require defendant to register under SORA “before sentencing” as required by MCL 28.724(5). Second, because the trial court did not impose the registration requirement until long after sentencing had occurred, the trial court did not ensure completion of the second requirement of MCL 28.724(5), and, thus, both the probation officer and the family division of the circuit court failed to “give [defendant] the registration form after [defendant was] convicted” and explain his duties under SORA. Third, when the trial court imposed defendant's sentence without a final SORA determination, it ignored the clear directive of MCL 28.724(5) that it “shall not impose sentence ... until it determines that the individual's registration was forwarded to the department [of state police] as required under [MCL 28.726].” (Emphasis added.) Finally, if defendant's conviction fell under the catchall provision, the trial court also failed to comply with MCL 769.1(13) when it entered the judgment of sentence without including in the judgment its determination that the crime was a listed offense for which registration was required. Although the trial court indicated in the judgment of sentence that a hearing was to be set regarding defendant's possible registration as a sex offender, that is not a determination...