People v. Costner, Docket No. 316806.

• Decision Date: 19 February 2015
• Docket Number: Docket No. 316806.
• Citation: 309 Mich.App. 220,870 N.W.2d 582
• Parties: PEOPLE v. COSTNER.
• Court: Court of Appeal of Michigan — District of US

309 Mich.App. 220

870 N.W.2d 582

PEOPLE

v.COSTNER.

Docket No. 316806.

Court of Appeals of Michigan.

Submitted Nov. 14, 2014, at Grand Rapids.

Decided Feb. 19, 2015, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Michael J. Sepic, Prosecuting Attorney, and Elizabeth A. Wild, Assistant Prosecuting Attorney, for the People.

Stephanie Farkas, Bloomfield Hills and Cheryl Carpenter for Defendant.

Before: BOONSTRA, P.J., and DONOFRIO and GLEICHER, JJ.

Opinion

DONOFRIO, J.

Defendant appeals by leave granted an order denying his motion to be removed from Michigan's sex-offender registry. Because defendant was more than four years older than the victim in this case and because requiring him to register as a sex offender was not cruel or unusual punishment, we affirm.

Defendant pleaded guilty to attempted third-degree criminal sexual conduct (victim at least 13 but under 16 years of age), MCL 750.520d(1)(a). Defendant's conviction arises from a consensual act of sexual intercourse engaged in when he was 18 years of age and the victim was 14 years of age. With defendant having been born on February 21, 1991, and the victim having been born on March 16, 1995, the age difference between the two of them is 4 years and 23 days. Defendant was sentenced on December 14, 2009, to a probationary sentence of 36 months under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.

On March 2, 2010, defendant pleaded guilty to violating the terms of his probation by using marijuana and possessing drug paraphernalia. The trial court sentenced defendant to 13 days in jail for the probation violation and continued both defendant's probation and HYTA status. Defendant was also ordered to successfully participate in and complete the Kalamazoo Probation Enhancement Program (KPEP).

On March 16, 2010, defendant pleaded guilty to violating the terms of his probation by breaking his curfew and by going AWOL from the KPEP. The trial court revoked defendant's HYTA status and ordered him to comply with the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. The trial court further sentenced defendant to 60 days in jail and ordered him to return to and complete KPEP once the jail term was served. Defendant's probation was continued.

On January 25, 2011, defendant, yet again, pleaded guilty to violating the terms of his probation, this time for having contact with, or attempting to have contact with, a female under the age of 17. The trial court revoked defendant's probation and sentenced him to six months in jail.

Defendant subsequently petitioned to be removed from the sex-offender registry pursuant to MCL 28.728c(14), which provides, in pertinent part, as follows:

The court shall grant a petition properly filed by an individual under subsection (3) if the court determines that the conviction for the listed offense was the result of a consensual sexual act between the petitioner and the victim and any of the following apply:

(a) All of the following:

(i ) The victim was 13 years of age or older but less than 16 years of age at the time of the offense.

(ii ) The petitioner is not more than 4 years older than the victim.

Defendant argued that because there is only a four-year difference between his age and the victim's age, he necessarily was “not more than 4 years older” than her. Defendant relied on MCL 8.3j, which defines “year” as “a calendar year.”

The trial court denied defendant's petition and stated in its opinion:

This Court is not convinced that the term “year” as defined by MCL 8.3j is the answer to the time computation in this statute, because the statute in issue requires the petitioner (i.e. defendant) to be “not more than 4 years older than the victim.” The phrase “not more than” limits the definition of the word “year”. Therefore, because this Defendant is 23 days older than the 4 years required under the Statute, I find that he does not meet the requirements set forth in MCL 28.728c and MCL 8.3j is not violated by this interpretation.

I. MCL 28.728c(14)

Defendant first argues on appeal that the trial court erred when it denied his petition because under Michigan law, defendant was not more than four years older than the victim. We review issues of statutory interpretation de novo. People v. Zajaczkowski, 493 Mich. 6, 12, 825 N.W.2d 554 (2012).

“[T]he intent of the Legislature governs the interpretation of legislatively enacted statutes.” People v. Bylsma, 493 Mich. 17, 26, 825 N.W.2d 543 (2012). The intent of the Legislature is expressed in the statute's plain language. People v. Cole, 491 Mich. 325, 330, 817 N.W.2d 497 (2012). When the statutory language is plain and unambiguous, the Legislature's intent is clearly expressed, and judicial construction is neither permitted nor required. Id. In construing statutes, this Court applies a reasonable construction of the statute, enforces clear statutory language as written, and reconciles any apparent inconsistencies if possible. People v. Bulger, 291 Mich.App. 1, 5, 804 N.W.2d 341 (2010). If a statute specifically defines a term, the statutory definition is controlling. People v. Williams, 298 Mich.App. 121, 126, 825 N.W.2d 671 (2012). When “ terms are not expressly defined anywhere in the statute, they must be interpreted on the basis of their ordinary meaning and the context in which they are used.” Zajaczkowski, 493 Mich. at 13, 825 N.W.2d 554. However, technical words and phrases that have acquired a peculiar and appropriate meaning in law shall be construed and interpreted in accordance with that meaning. See MCL 8.3a ; Bylsma, 493 Mich. at 31, 825 N.W.2d 543. Moreover, it is presumed that the Legislature is familiar with the rules of statutory construction and that the Legislature is “aware of, and thus to have considered the effect on, all existing statutes when enacting new laws.” People v. Kosik, 303 Mich.App. 146, 158, 841 N.W.2d 906 (2013) (citation and quotation marks omitted).

A 2011 amendment of SORA allows an individual to petition the court for removal from the sex-offender registry. Among its provisions, MCL 28.728c(14) allows for an individual to be removed from the sex-offender registry if the underlying conviction involved an act of consensual sex during a so-called “Romeo and Juliet” relationship. The statute provides, in relevant part:

The court shall grant a petition properly filed by an individual under subsection (3) if the court determines that the conviction for the listed offense was the result of a consensual sexual act between the petitioner and the victim and any of the following apply:

(a) All of the following:

(i ) The victim was 13 years of age or older but less than 16 years of age at the time of the offense.

(ii ) The petitioner is not more than 4 years older than the victim. [MCL 28.728c(14).]

The parties did not dispute that the sexual act for which defendant was convicted was consensual. It was likewise undisputed that the victim “was 13 years of age or older but less than 16 years of age at the time of the offense.” Instead, the parties' arguments were focused on whether defendant satisfied MCL 28.728c(14)(a)(ii ) by being “not more than 4 years older than the victim.” Defendant argued that he was eligible for removal from the registry under that subparagraph because, with him being 18 and the victim being 14, there was only a four-year age difference. The prosecution argued that because defendant was actually four years and 23 days older than the victim, he did not meet the requirement of MCL 28.728c(14)(a)(ii ). In denying defendant's petition, the trial court concluded that because defendant was “23 days older than the 4 years required” under MCL 28.728c(14)(a)(ii ), he was not entitled to any relief.

There is no dispute that defendant actually is 4 years and 23 days older than the victim. Therefore, considering the issue on its face, defendant is more than four years older than the victim, and he cannot satisfy MCL 28.728c(14)(a)(ii ). Defendant, however, argues that this Court's implementation of the “birthday rule” in People v. Woolfolk, 304 Mich.App. 450, 848 N.W.2d 169 (2014), supports his position that he was only four years—and thus was not more than four years—older than the victim.

In Woolfolk, this Court was confronted with whether the defendant, who was convicted after committing a murder on the evening before his 18th birthday, should nonetheless be considered as having been 18 years old at the time of the murder. As the Court acknowledged, contrary to common assumption or understanding, when computing a person's age, the common law provides that a person “ ‘reaches his next year in age at the first moment of the day prior to the anniversary date of his birth.’ ” Id. at 461, 848 N.W.2d 169, quoting Nelson v. Sandkamp, 227 Minn. 177, 179, 34 N.W.2d 640 (1948) (emphasis added). For example, under the common law, a person is considered to turn 18 years old the day before the 18th anniversary of his or her birth.

The Court, however, rejected the common-law method of determining when a person reaches a certain age and, instead, adopted the more commonly recognized method under the “birthday rule,” under which “a person attains a given age on the anniversary date of his or her birth.” Woolfolk, 304 Mich.App. at 464, 504, 848 N.W.2d 169 (citation and quotation marks omitted).

Defendant's reliance on Woolfolk is misplaced. Woolfolk only pertained to the proper method to calculate a person's age. More specifically, it addressed when a person attains the next age of his or her life. This concept has no application to the present issue. There is no question that in the present case, at the time of the offense, defendant and the victim had attained the ages of 18 and 14, respectively. Nothing in Woolfolk suggests that when determining whether someone is “more than 4 years older” than someone else, one simply takes the difference between both persons' “year” age, thereby ignoring their actual ages, which include not only how...