People v. Hoffman, 306314

• Decision Date: 13 December 2012
• Docket Number: No. 306314,306314
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTHONY JAMES HOFFMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v.ANTHONY JAMES HOFFMAN, Defendant-Appellant.

No. 306314

STATE OF MICHIGAN COURT OF APPEALS

Filed: December 13, 2012

UNPUBLISHED

Clinton Circuit Court

LC No. 10-008688-FH

Before: WHITBECK, P.J., and FITZGERALD and BECKERING, JJ.

PER CURIAM

Defendant was charged with child sexually abusive activity, MCL 750.145c(2), installing an eavesdropping device, MCL 750.539d, furnishing obscenity to a child, MCL 750.142, and distributing or promoting child sexually abusive activity, MCL 750.145c(3). Pursuant to a plea agreement, defendant pleaded guilty on February 7, 2011, to installing an eavesdropping device and the trial court sentenced him to six months in jail and three years probation. In lieu of granting leave to appeal, the Michigan Supreme Court remanded this case to this Court for consideration as on leave granted "of the . . . issue regarding a claimed failure of the sentencing court to comply with the procedural requirements of MCL 28.724(5) and MCL 769.1(13) before ordering defendant to register as a sex offender." People v Hoffman, 491 Mich 924; 812 NW2d 769 (2012).¹ We vacate defendant's sentence and remand for resentencing.

In pleading guilty, defendant admitted that he had placed a surveillance camera in his stepdaughter's bedroom, but claimed that the camera was installed for the purpose of capturing images of his stepson stealing. The camera captured roughly 500 images, two of which were images of his stepdaughter's exposed breasts. Defendant admitted that he kept all of the recorded images, but he claimed that he had never looked at them.

At sentencing on March 21, 2011, defendant objected to the prosecutor's request that defendant be required to register as a sex offender pursuant to the Sex Offender Registration Act("SORA"), MCL 28.721 et seq. The trial court determined that defendant was required to register as a sex offender under MCL 28.722(e)(xi), a catchall provision of SORA.

Defendant argues that the trial court failed to comply with the procedural requirements of MCL 28.724(5) and MCL 769.13 before ordering defendant to register as a sex offender. Issues of statutory interpretation are reviewed de novo. People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009).

MCL 28.724 of the SORA governs registration procedure. MCL 28.724(5) provides:

Subject to section 3, an individual convicted of a listed offense² in this state after October 1, 1995 shall register before sentencing, entry of the order of disposition, or assignment to youthful trainee status. The probation officer or the family division of the circuit court shall give the individual the registration form after the individual is convicted, explain the duty to register and to pay a registration fee, to verify his or her address, and to provide notice of address changes, and accept the completed registration for processing under section 6. The court shall not impose sentence, enter the order of disposition, or, before October 1, 2004, assign the individual to youthful trainee status until it determines that the individual's registration was forwarded to the department as required under section 6.

Defendant argues that the trial court erred by failing to follow the SORA procedures laid out in MCL 28.724(5). The following steps must be taken if registration is required:

(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. [People v Lee, 489 Mich 289, 296; 803NW2d 165 (2011) (internal quotation marks omitted).³ ]

The lower court record is devoid of any evidence establishing compliance with the SORA procedures. At a hearing on defendant's motion to correct the judgment of sentence, the trial court said, "I had hoped that my—my transcript reflected that we actually had a signature by Mr. Hoffman before we moved forward in the proceedings, and that would have been my—mypreferred course of action and I don't see that that was done." The record is also silent with regard to whether defendant...