Sex Offender Registration Act’s Retroactive Application Violated Due Process

It was unconstitutional to retroactively apply Michigan’s Sex Offender Registration Act (SORA) to a defendant who, at age 19, had pleaded guilty to a sex offense under a state diversionary statute, the Michigan Supreme Court has ruled.

In People v Temelkoski, the Michigan Supreme Court emphasized that, when prosecuting crimes, the state must adhere to the promises it makes to defendants who waive their right to a jury trial and plead guilty to a criminal offense under the Holmes Youthful Trainee Act (HYTA). 

Plea Deal Under Diversionary Statute

The defendant in the case pleaded guilty in 1994 to one count of second-degree criminal sexual conduct, in violation of MCL 750.520c(1)(a). Because he was 19 years old at the time, the defendant was subject to HYTA. Under HYTA, certain youth offenders may be assigned youthful trainee status and ultimately have their cases dismissed and their records sealed. At the time the defendant pleaded guilty, HYTA provided that the assignment of an individual to the status of youthful trainee was not a conviction.

The year following the defendant’s HYTA sentencing, SORA went into effect. Because SORA was retroactively applied, it defined the defendant’s youthful trainee adjudication as a “conviction” that required him to register as a sex offender for 25 years. When the defendant completed his HYTA youthful trainee program in 1997, his case was dismissed with prejudice and his record was sealed pursuant to HYTA. However, the defendant remained a registered sex offender under SORA.

Over the years, various amendments to SORA began imposing more restrictions on the defendant, including lifetime sex offender registration. Then in 2014, the Michigan Legislature amended SORA to exclude successfully discharged youthful trainees from sex offender registration requirements. However, that amendment was not made retroactive and, as a result, the defendant remained on the sex offender registry.

The defendant filed a motion in Wayne County Circuit Court to be removed from the sex offender registry. The trial court granted the defendant’s motion, finding that SORA constituted punishment and was an ex post facto law as applied to the defendant.

Court of Appeals: SORA Not ‘Punishment’

The Michigan Court of Appeals reversed (Docket No. 313670) the trial court’s decision, finding that SORA did not impose a punishment on the defendant.

“SORA has not been regarded in our history and traditions as punishment, it does not impose affirmative disabilities or restraints, it does not promote the traditional aims of punishment, and it has a rational connection to a nonpunitive purpose and is not excessive with respect to this purpose,” the Court of Appeals wrote.

“Defendant … has failed to show by ‘the clearest proof’ that SORA is ‘so punitive either in purpose or effect’ that it negates the Legislature’s intent to deem it civil,” the Court of Appeals said. “Accordingly, as applied to defendant, SORA does not violate the Ex Post Facto Clause or amount to cruel or unusual punishment because it does not impose punishment.”

Michigan Supreme Court: Due Process Violation

The Michigan Supreme Court reversed the Court of Appeals in a 5-2 Order (Docket No. 150643). According to the Court, the retroactive application of SORA to the defendant, who had pleaded guilty to a sex offense under HYTA, was a violation of due process under both the Michigan and U.S. Constitutions.

In making its ruling, the Court relied on the defendant’s reasonable expectations under his plea agreement. Citing Santobello v New York, 404 US 257 (1971), the Court explained that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” The justices observed that, pursuant to Santobello, the defendant reasonably relied on the HYTA adjudication and the “express promise” that when he successfully completed his youthful trainee requirements, he would not have a conviction on his record.

The Michigan Supreme Court also noted that the defendant pleaded guilty to the primary charge against him – and that he did so after being screened for HYTA eligibility. “Because defendant pleaded guilty on the basis of the inducement provided in HYTA as effective in 1994 (i.e., before SORA’s effective date), was assigned to HYTA training by the trial judge, and successfully completed his HYTA training, retroactive application of SORA deprived defendant of the benefits under HYTA to which he was entitled and therefore violated his constitutional right to due process,” the Court concluded.

The Michigan Supreme Court decided Temelkoski on due process grounds and, as a result, did not address the unconstitutional punishment argument. However, in dicta, the Court indicated how it might decide the issue when it said: “It is undisputed that registration under SORA constitutes a civil disability.”

Justice Kurtis T. Wilder dissented from the Court’s order, saying he would have remanded the matter for further factual development. According to Justice Wilder, two questions needed to be answered: (1) whether the defendant was promised benefits derived from his assignment to, and subsequent release from, youthful trainee status, and (2) whether the defendant was actually induced to plead guilty because of that promise.

“In my view, the record before us is insufficient to conclude, at this stage, that a violation of defendant’s due process rights has occurred,” Justice Wilder wrote, joined by Justice Brian K. Zahra. “While defendant acknowledges these multiple deficiencies, he asks this Court to assume that his plea was induced by his expectation of HYTA’s benefits. But to make this assumption based on the sequence of events and surviving documents – and, importantly, not an actual record – that (1) a promise was made to defendant and (2) that such a promise induced defendant’s plea runs contrary to this Court’s firmly established jurisprudence.”

Justice Wilder also expressed concern that extending Santobello to statutory provisions, like HYTA, contradicted longstanding jurisprudence. “Even if defendant had an expectation that he would receive the benefits of HYTA … and the subsequent enactment of the Sex Offender Registration Act (SORA) … imposed a new liability based on defendant’s past acts, he has failed to show that the enactment of SORA was a clear violation of his constitutional right to due process,” the justice wrote.