                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re MICAH MELCHIZEDEK DANIEL, Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 12, 2017
               Petitioner-Appellant,
and

ATTORNEY GENERAL,

               Amicus Curiae,


v                                                                  No. 334057
                                                                   Washtenaw Circuit Court
MICAH MELCHIZEDEK DANIEL,                                          Family Division
                                                                   LC No. 15-000375-DL
               Respondent-Appellee.


Before: HOEKSTRA, P.J., and METER and K. F. KELLY, JJ.

PER CURIAM.

        Petitioner appeals by right a dispositional order, which exempted respondent from
registering as a sex offender under the Sex Offenders Registry Act (SORA), MCL 28.721 et seq.
We reverse.

                                       I. BASIC FACTS

        The 15-year-old complainant was a resident at the Washtenaw County Detention Facility.
She performed oral sex on 16-year-old T.B., who was also a resident at the facility. In a forensic
interview, complainant indicated that while she was performing oral sex on T.B., respondent
groped her buttocks from behind. Respondent also forced complainant’s head down on T.B.’s
ejaculating penis. The interviewer asked for clarification on a few points and included the
following in her forensic interview report:

       [Complainant] clarified that [respondent] was the one who pushed her head down
       when [T.B.] was almost done. She said she saw him move his hand and then he
       started laughing so hard, he had to leave the room. [Complainant] said

                                               -1-
       [respondent] was also grabbing her butt when she was giving [T.B.] head. She
       said she told him to stop and pushed his hand away, but he kept doing it.

                                                ***

       I told [complainant] that she had told me part was consensual and part was not. I
       asked what part was not consensual. She said the part with [respondent] grabbing
       her butt and pushing down her head. She said everything with [T.B.] was
       consensual. I asked what [T.B.] said when [respondent] pushed her head.
       [Complainant] said she thinks he laughed, but that was because she got it on her
       face.

The interviewer asked complainant what she wanted to “see happen” with the investigation.
Complainant said “she didn’t want any charges to be pressed. She is not mad about what
happened with [T.B.], but she is mad about [respondent] shoving her head down.”

        Following the investigation, respondent pleaded responsible to third-degree criminal
sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with a person 13 years of age
and under 16 years) for aiding and abetting oral sex, and fourth-degree criminal sexual conduct
(CSC-IV), MCL 750.520e(1)(b) (sexual contact through force or coercion), for touching the
complainant. Respondent’s CSC-III charge was a “Tier III offense,” for which registration as a
sex offender was required under MCL 28.723. Respondent was required to register as a sex
offender unless “the court determines that the victim consented to the conduct constituting the
violation, that the victim was at least 13 years of age but less than 16 years of age at the time of
the offense, and that the individual is not more than 4 years older than the victim.” MCL
28.722(w)(iv).

        Respondent asked to be exempted from the SORA registration requirement. Petitioner
filed a response, noting that the victim had not consented to respondent’s conduct, noting that
complainant specifically reported that respondent’s acts of groping her buttocks and forcefully
pushing her head down on to T.B.’s penis were non-consensual.

        At a hearing on the issue, respondent acknowledged that there was no legal or factual
basis for his position. Still, the lower court concluded:

       [W]hen statutes are written I think you can necessarily not anticipate every
       scenario there is going to be and . . . I imagine this is one of the scenarios
       everyone wouldn’t – no one would have put . . . in the forefront of their mind
       when writing the statute. I think that it’s clear from the statement . . . from the
       Complainant that the sexual act on the co-Respondent was consensual.
       [Respondent] then put his hand on her head, she said that touching was not
       consensual . . . but I am convinced with the fact that she consented to the sexual
       act which is what the purpose of the Sex Offender Registry is . . . that I am
       finding . . . that she consented to the conduct and that [respondent] is not required
       to register.

               Um – I don’t think this is the kind of conduct they intended to have
       register and the fact that they put in the exception – the so-called Romeo and
                                                -2-
       Juliet exception . . . – that it is much more conduct that falls under that exception
       to the Registry than it is . . . the other. So I am not going to require that he
       register.

                                                ***

       So it is a dispositional order . . .and all it’s gonna say is plea accepted, . . . the
       Court finds that the complainant consented to the conduct . . .

The lower court entered a final order of disposition and closed the case. Petitioner appeals as of
right.

  II. WHETHER RESPONDENT’S CONDUCT EXEMPTED HIM FROM REGISTERING

        The prosecution argues that the lower court erred in exempting respondent from
registering as a sex offender where respondent’s actions could not be considered consensual. We
agree. “The construction and application of SORA . . . presents a question of law that is
reviewed de novo on appeal.” People v Anderson, 284 Mich App 11, 13; 772 NW2d 792 (2009).
“Additionally, this Court reviews the underlying factual findings of the trial court at sentencing
for clear error.” Id. (quotation marks omitted). “Clear error exists when the reviewing court is
left with the definite and firm conviction that a mistake has been made.” Id., quoting People v
Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993).

        Where a juvenile aids or abets in the commission of an offense, he may be convicted and
punished as if he directly committed the offense, see MCL 767.39, and “[t]he prosecution needs
only to prove that the underlying crime was committed by someone and that the respondent
either committed or aided and abetted in the commission of that crime.” In re McDaniel, 186
Mich App 696, 699–700; 465 NW2d 51 (1991). Pursuant to MCL 750.520d(1)(a), “[a] person is
guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration
with another person and if any of the following circumstances exist . . . That other person is at
least 13 years of age and under 16 years of age.” There is no question that when T.B. engaged in
oral sex with complainant, complainant was 15 years old. Respondent does not dispute that he
was properly adjudicated for aiding and abetting T.B. in committing the offense. Under normal
circumstances, the Tier III offense would require respondent to register as a sex offender.
However, there is an exception to the registration requirement if “the court determines that the
victim consented to the conduct constituting the violation, that the victim was at least 13 years of
age but less than 16 years of age at the time of the offense, and that the individual is not more
than 4 years older than the victim.” MCL 28.722(w)(iv). At issue is whether complainant
consented to the conduct.

        Respondent asked to be exempted from the SORA registration requirement. Petitioner
filed a response, noting that the victim had not consented to the conduct, relying upon the
forensic interview summary in which complainant specifically reported that respondent’s acts of
groping her buttocks and forcefully pushing her head down on T.B.’s penis were non-consensual.
At the hearing, respondent’s attorney specifically admitted:

       I have received the Petitioner’s brief . . .regarding this issue. Um – we don’t
       have a formal response to that, in fact we would concede that the law and the facts
                                                -3-
       of this case are . . . accurately stated in that brief. . . . I have looked into and
       researched this issue extensively regarding – and this is kind of a strange case
       where you have the principal actor who there was consent for then you have an
       aider and abettor who there was not consent . . .with and . . . whether or not the
       aiding and abetting individual takes on the state of mind of the principal. . . .[I]
       did not find anything in that light and certainly the language of the statute which
       refers to the conduct which . . . encompasses the violation of the statute has to be
       consensual, . . . we don’t intend to put on any proof today to refute the
       complaining witnesses [sic] statement on that issue.

               [T]his is a very unfortunate result. . . .[Respondent] is going to have to
       undergo in terms of registration . . . but we don’t have a legal or factual argument
       that his particular conduct was consensual in this instance. It creates a situation
       where his consequences are much greater than his co-[respondent] . . .but . . .
       such is the law as I understand it.

        In spite of defense counsel’s acknowledgement that there was neither legal nor factual
support for his position, the lower court concluded “that the sexual act on the co-Respondent was
consensual” and “the fact that she consented to the sexual act which is what the purpose of the
Sex Offender Registry” exempted respondent from having to register. But clearly respondent did
not meet his burden of proving an exemption, as was his obligation under MCL 28.723a(1). The
lower court concluded that SORA had not contemplated the situation before it and impermissibly
relieved respondent of this burden.

        In addition to relieving respondent of his burden of proof, the lower court erroneously
made the sweeping conclusion that complainant consented to the acts for which respondent was
adjudicated responsible. Because MCL 28.723a(5) prohibited compelling complainant to testify
at the hearing, we are left with only her forensic interview. Complainant repeatedly indicated
that certain of her acts with T.B. were consensual. However, she clearly did not consent to
having respondent force her head down on T.B.’s ejaculating penis. Complainant was free to
withdraw consent and stop performing oral sex. Respondent’s behavior inhibited complainant
from potentially withdrawing previously bestowed consent. See M Crim JI 20.27. The lower
court erred in concluding that respondent was exempted from registering as a sex offender.

        III. WHETHER REGISTRATION IS CRUEL OR UNUSUAL PUNISHMENT

         Respondent argues that, in the event this Court concludes that he is required to register as
a sex offender, such registration is unconstitutional for juveniles and as applied to respondent in
that it violates both the Eighth Amendment of the U.S. Constitution, US Const Amend VIII, and
Michigan’s constitution, Const Art 1, § 16, because it is punitive. We disagree. “Whether a
statutory scheme is civil or criminal is . . .a question of statutory construction . . .The
interpretation of a statute is a question of law that this Court reviews de novo.” People v Earl,
495 Mich 33, 35-36; 845 NW2d 721 (2014).

        Respondent appears to concede that the legislation at issue is civil in nature; instead, he
argues that it has a punitive effect. The United States Supreme Court provided the framework
for determining whether a law is punitive in Smith v Doe, 538 US 84; 123 S Ct 1140; 155 L Ed

                                                 -4-
2d 164 (2003), which our Michigan Supreme Court adopted in People v Earl, 495 Mich 33; 845
NW2d 721 (2014). In Earl, the Court set forth a number of factors to determine whether a law
was so punitive in purpose so as to negate the state’s intent that the law be deemed civil. The
factors are:

       [1] Whether the sanction involves an affirmative disability or restraint, [2]
       whether it has historically been regarded as a punishment, [3] whether it comes
       into play only on a finding of scienter, [4] whether its operation will promote the
       traditional aims of punishment—retribution and deterrence, [5] whether the
       behavior to which it applies is already a crime, [6] whether an alternative purpose
       to which it may rationally be connected is assignable for it, and [7] whether it
       appears excessive in relation to the alternative purpose assigned. [Id. at 44,
       quoting Kennedy v Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554; 9 L Ed
       2d 644 (1963).]

       Both Smith and Earl set forth the relative framework for determining whether a law is
punitive in nature, at least in the context of whether a law violates the ex post facto clause. But
our Michigan Courts have also specifically addressed the issue of whether SORA constitutes
punishment and have repeatedly concluded that it does not. See In re Ayres, 239 Mich App 8;
608 NW2d 132 (1999), People v Pennington, 240 Mich App 188; 610 NW2d 608 (2000), People
v Golba, 273 Mich App 603; 729 NW2d 916 (2007).

        People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009) provides an exception. In
Dipiazza, the 18-year-old defendant had a consensual Romeo-and-Juliet relationship with a girl
who was 15 years old. The girl’s parents knew of the relationship and the two subsequently
married. Nevertheless, the defendant was adjudicated under the Holmes Youthful Trainee Act
(HYTA), MCL 762.11 et seq. and ordered to register as a sex offender. Id. at 140. SORA was
subsequently amended to exclude youthful trainee status as “convicted” if the assignment
occurred after October 1, 2004. But because the defendant was assigned youthful trainee status
prior to that date, he was still considered “convicted” and his motion to remove himself from the
registry was denied. Id. at 143. The Dipiazza Court concluded “that the registration requirement
under SORA, as applied to defendant, constitutes punishment” based on the defendant’s
convincing argument that he was unable to find work because, although he could honestly tell
employers that he had no conviction, the registry was available. Id. at 153-154. Having
concluded that registration was punishment as applied to the defendant, the Dipiazza Court then
concluded that it was cruel or unusual punishment. The Court found that the “circumstances of
the offense are not very grave” whereas the penalty of registration was harsh. “Defendant is
required to register as a sex offender along with rapists and pedophiles.” Id. at 155. The Court
concluded that “[b]ecause defendant’s registration is not tied to a finding that the safety of the
public is threatened, the registration requirement, as applied to defendant, is excessive.” Id. at
156. The Court concluded:

       it is abundantly clear that there is no goal of rehabilitation in this case. Defendant
       never posed a danger to the public or a danger of reoffending. Defendant is not a
       sexual predator, nor did the trial court deem him to be. Further, even if defendant
       needed rehabilitation, SORA’s labeling him as a convicted sex offender works at


                                                -5-
       an opposite purpose, preventing defendant from securing employment and
       otherwise moving forward with his life plans.

       Consequently, after considering the gravity of the offense, the harshness of the
       penalty, a comparison of the penalty to penalties imposed for the same offense in
       other states, and the goal of rehabilitation, we conclude that requiring defendant to
       register as a sex offender for 10 years is cruel or unusual punishment. [Id. at
       156.]

       However, following the Dipiazza case, the legislature again amended the SORA to
provide for a consent exception. This Court has recently analyzed the amended SORA using the
two-part analytical process set forth in Smith and Earl, and has again concluded that the SORA
was not intended as a punishment and that the SORA does not constitute punishment as
generally applied.

        In People v Temelkoski, 307 Mich App 241; 859 NW2d 743 (2014), the defendant
committed his offense in 1994 when he was 19 years old and the victim was 12 years old. He
pleaded guilty to CSC-II and was adjudicated under HYTA, successfully completing his three
years of probation. Nevertheless, the defendant was required to register as a sex offender for life
when the amended SORA went into place, requiring those convicted prior to October 2004 to
register. Citing Dipiazza, the defendant asked that he be removed from the registry. The trial
court granted the motion. Temelkoski, 307 Mich App at 244-245. On appeal, the defendant
argued that the trial court’s decision was correct because the SORA, as applied to him,
constituted cruel or unusual punishment and violated the Ex Post Facto Clause. Id. at 250. Once
again, such an argument involved the threshold inquiry as to whether the SORA imposed
punishment. Id. at 251.

       The Temelkoski Court first noted that Dipiazza was not controlling:

       First, the facts of this case are distinguishable. Defendant was not involved in a
       consensual relationship similar to the one at issue in Dipiazza, which involved an
       18–year–old and a female who was “nearly” 15–years–old. In contrast, in this
       case, defendant was 19 when he committed the offense and the complainant was
       only 12 years old. This was not an ongoing Romeo and Juliet relationship
       condoned by the complainant’s parents. Second, the Dipiazza Court analyzed
       whether SORA constituted punishment before the Legislature amended the act in
       2011 and added the consent exception discussed above. This exception addressed
       a primary concern the Dipiazza Court had with SORA—i.e., requiring a youthful
       trainee to register as a sex offender after he engaged in a consensual sexual
       relationship with a peer. Because the Dipiazza Court did not have the opportunity
       to consider if the 2011 amendment had any effect on whether SORA constitutes
       punishment, its constitutional analysis is outdated. [Id. at 257-258 (citation
       omitted).]

Therefore, in order to determine whether the SORA constituted punishment, the Temelkoski
Court considered Earl. Id. at 258. The Court first considered the legislative intent behind the
SORA by consulting the language of the statutory scheme and again concluded that “the

                                                -6-
Legislature was acting pursuant to its police powers to protect the citizenry against individuals it
deemed pose a danger of recidivism by providing police and the public with a means of
monitoring those individuals” not to “chastise, deter, or discipline the offender.” Id. at 260-261.
To the extent the Dipiazza Court concluded that the expressed intent was frustrated by branding
as sex offenders those who were involved in mere juvenile transgressions, the Court in
Temelkoski confirmed that the newly enacted consent exception disposed of the concern. Id. at
261.

         Having concluded that the legislature intended the SORA as a civil remedy to protect the
health and welfare of the public, the Temelkoski Court then had to address whether the purpose
and effects of the law were nevertheless so punitive so as to negate the state’s intention to deem
it civil. Id. at 262. In so doing, the Court looked to Earl and considered: (1) historical form of
punishment; (2) affirmative disability or restraint; (3) traditional aims of punishment; (4) rational
connection to non-punitive purpose; (5) excessiveness with respect to non-punitive purpose.

        The Temelkoski Court acknowledged that sex offender registries were a relatively new
phenomenon that each of the states had now adopted and was unlike traditional forms of
punishment, having a non-punitive purpose. The Court found that the reasoning in Dipiazza was
no longer applicable because the case was decided on its unique facts. Id. at 262-264.
Additionally, although the defendant argued that the SORA imposed significant hardships, the
Court noted that the 2011 amendment allowed certain individuals to petition the court for
removal based on their individual circumstances and that there was, therefore, no affirmative
disability or restraint. Id. at 266-267. Nor did the SORA provide traditional aims of
punishment:

               Smith’s reasoning is persuasive and applies in this case. While SORA
       might deter future sexual offenses, that is not the primary purpose of the act and it
       does not render SORA punitive. Further, while SORA exempts certain individuals
       from the registry requirements in situations involving a consensual act and
       categorizes offenders into tiers depending on the severity of the underlying
       offense, as in Smith these mechanisms are “reasonably related to the danger of
       recidivism,” which is “consistent with the regulatory objective.” Id. [Temelkoski,
       307 Mich App at 267.]

The Court noted that there was no question that there was a rational connection to the non-
punitive purpose of public safety. Id. at 267-268. Finally, the Court concluded that the SORA
was not excessive with respect to its non-punitive purpose. The registry was “passive” in that it
required the public to seek out the information. The registry also warns that using the
information to harass individuals could lead to prosecution. The SORA categorized offenders
such that more serious offenses required lifetime monitoring. Again, the SORA now contained
an exception for consensual behavior under certain circumstances and the defendant did not meet
that exception. Id. at 268-270. The Court ultimately concluded:

               In sum, the relevant Mendoza–Martinez factors indicate that SORA does
       not impose punishment as applied to 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,

                                                -7-
       and it has a rational connection to a nonpunitive purpose and is not excessive with
       respect to this purpose. Defendant therefore 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. Earl, 495 Mich. at 44, 845 NW2d 721
       (quotation marks and citation omitted). 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. [Temelkoski, 307 Mich App
       at 270-271.]1

        In People v Tucker, 312 Mich App 645; 879 NW2d 906 (2015), the defendant
specifically challenged provisions of the SORA regarding school safety zones and in-person
reporting requirements. Id. at 667. The defendant conceded that the SORA was meant as a civil
law but that its purpose or effect was punitive. The Tucker Court agreed with some of the
defendant’s arguments but ultimately concluded that neither provision was unconstitutional.
Regarding school safety zones, this Court ruled:

       [T]he Mendoza–Martinez factors point us in both directions when it comes to
       student safety zones. We conclude that student safety zones impose affirmative
       restraints, resemble historical punishments, and promote deterrence. However, we
       also conclude that they are rationally connected to the nonpunitive purpose of
       public safety and that they are not excessive, because the Legislature is permitted
       to make the categorical judgment that sex offenders should not live, work, or
       loiter near schools. Weighing these factors, we are mindful that the burden lies
       with defendant to establish that student safety zones are punitive. As stated, a
       party asserting that a statutory scheme imposes punishment must provide “the
       clearest proof” that the scheme “ ‘is so punitive either in purpose or effect [as] to
       negate the ... intention to deem it civil.’ ” Earl, 495 Mich at 44, 845 NW2d 721,
       quoting Hendricks, 521 US at 361, 117 S Ct 2072 (quotation marks and citations
       omitted). In this case, because the Mendoza–Martinez factors cut both ways, we
       cannot conclude that defendant has met his burden. Further, even some of the
       factors that weigh in defendant’s favor only do so to a limited extent. Student
       safety zones plainly restrict where offenders can live and work, but the
       restrictions are not absolute, and therefore, the restrictions are distinguishable
       from true banishment. And although student safety zones specifically deter
       registered offenders, the Smith Court held that a deterrent purpose alone will not
       render a civil regulatory scheme punitive. Smith, 538 US at 102, 123 S Ct 1140.
       Moreover, the nonpunitive purpose of the student safety zones is “a most
       significant factor” in determining whether they are punitive in effect. See id.
       (quotation marks and citation omitted). Given these considerations, there is not
       the clearest proof that the student safety zone restrictions are so punitive in




1
     Temelkoski is now in the Michigan Supreme Court. Oral arguments were heard in
December 2016 and the Court subsequently ordered additional oral arguments for October 2017.


                                               -8-
       purpose or effect as to negate the Legislature’s intent to deem them civil.
       [Tucker, 312 Mich App at 681-682.]

And as for in-person reporting requirements, this Court ruled:

               Regarding the in-person reporting requirements, the Mendoza–Martinez
       factors do not readily lead to one conclusion over the other. The requirements
       impose affirmative restraints and arguably resemble conditions of supervised
       probation or parole. However, the reporting requirements do not necessarily
       promote deterrence or retribution, they are rationally connected to the nonpunitive
       purpose of protecting the public by ensuring that the registry is accurate, and they
       are not excessive. As with the student safety zones, we cannot find the clearest
       proof that the in-person reporting requirements are punitive in effect given that
       the Mendoza–Martinez factors cut both ways. Further, we again find that even
       some of the factors that weigh in defendant’s favor only do so to a limited extent.
       Although the reporting requirements are undeniably burdensome, their restraining
       effect is not absolute. Registrants are not precluded from many activities, such as
       changing residences or jobs, but are merely required to report them. And many of
       the considerations that Smith used to distinguish sex offender registration from
       supervised probation or parole still apply to the in-person reporting requirements.
       Given these considerations, we conclude that there is not the clearest proof that
       the in-person reporting requirements are so punitive in purpose or effect as to
       negate the Legislature’s intent to deem them civil. [Id. at 682-683.]2

        Given this Court’s clear and generally unwavering opinion that the SORA is
constitutional, only the Michigan Supreme Court will change that position. We decline
respondent’s request to declare SORA unconstitutional as applied to him.

    IV. WHETHER RESPONDENT SHOULD BE AFFORDED AN OPPORTUNITY TO
                         WITHDRAW HIS PLEA

        If this Court determines that respondent is required to register as a sex offender, then
respondent requests the “remedy” of an opportunity to withdraw his plea because he was
originally advised that he would have to report for 25 years when, in fact, registration was for a
lifetime. We disagree.

        Defense counsel comes close to misrepresenting the record. At the July 15, 2016
hearing, respondent’s attorney specifically noted that, even if respondent was required to register
as a sex offender, respondent had no interest in withdrawing his plea:




2
        Tucker, like Temelkoski, is in Michigan Supreme Court. On September 27, 2016, the
Court ordered that the application for appeal in Tucker be held in abeyance until the Court’s
resolution in Temelkoski.


                                                -9-
              I did pull the plea hearing from . . .the actual taking of the plea and would
       note that . . . [respondent] did not make any admissions regarding the CSC third
       in terms of whether or not there was consent or not and I would also note for the
       record that [respondent] was affirmatively advised that this was a 25 year Sex
       Offender Registry. I think the Court was about to say lifetime then . . . asked the
       Prosecutor who then said it was a 25 year registry rather than a lifetime. We now
       understand that it is . . .

       It is life. Ah – I don’t have any precedent that would allow . . . [respondent] to
       withdraw his plea on that basis. . . . [M]ost of the case law just says they need to
       be advised that sex offender registration is a potential consequence which he
       indeed was although it was erroneous on the length. . . . [H]e has advised me that
       he does not wish to withdraw his plea . . . or even make that argument at this
       point to . . . that’s the situation.

It is clear that respondent’s plea was understanding, voluntary and accurate. See MCR 6.302;
People v Cole, 491 Mich 325; 817 NW2d 497 (2012).

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                            /s/ Joel P. Hoekstra
                                                            /s/ Patrick M. Meter
                                                            /s/ Kirsten Frank Kelly




                                              -10-
