Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  January 24, 2018                                                                   Stephen J. Markman,
                                                                                                Chief Justice

  150643 & (145)                                                                           Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                          Kurtis T. Wilder
                                                                                    Elizabeth T. Clement,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                   Justices
            Plaintiff-Appellee,
  v                                                        SC: 150643
                                                           COA: 313670
                                                           Wayne CC: 94-000424-FH
  BOBAN TEMELKOSKI,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered by the Court, we REVERSE the
  judgment of the Court of Appeals and REINSTATE the Wayne Circuit Court’s order
  removing defendant from the sex offender registry on the basis that requiring him to
  register violates due process. US Const, Am XIV; Const 1963, art 1, § 17.

         On March 4, 1994, defendant pleaded guilty as charged to one count of second-
  degree criminal sexual conduct in violation of MCL 750.520c(1)(a) and was sentenced as
  a youthful trainee under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.,
  to a 3-year term of probation. HYTA provides that when a criminal defendant between
  the ages of 17 and 20 pleads guilty to certain crimes, a trial court may “without entering a
  judgment of conviction and with the consent of that individual, consider and assign that
  individual to the status of youthful trainee.” MCL 762.11(1). The statute in effect at the
  time of defendant’s plea further provided that “[a]n assignment of an individual to the
  status of youthful trainee as provided in this chapter is not a conviction for a crime, and
  the individual assigned to the status of youthful trainee shall not suffer a civil disability
  or loss of right or privilege following his or her release from that status because of his or
  her assignment as a youthful trainee.” MCL 762.14(2), as amended by 1993 PA 293
  (emphasis added).

         Defendant does not claim that he was promised assignment as a youthful trainee in
  exchange for his guilty plea. Cf. Santobello v New York, 404 US 257, 262 (1971)
  (“[W]hen 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.”). Rather, he claims that he was induced by HYTA to plead
  guilty because the statute offered him potential benefits for pleading guilty that he could
  not otherwise have obtained had he exercised his constitutional right to a trial. See
  generally Corbitt v New Jersey, 439 US 212 (1978) (implicitly recognizing that a statute
  alone can induce a plea). We believe that the Santobello principle applies with equal
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force to a statutory provision, such as HYTA, that induces a defendant to plead guilty by
offering him certain benefits if he does so and satisfies other statutory conditions.

        In this case, defendant was screened and presumably deemed eligible for youthful
trainee status before entering his guilty plea, and thus it is clear that such a disposition
was contemplated by the parties. While he had no entitlement to assignment as a
youthful trainee, there can be little doubt that the possibility of a HYTA discharge was
“one of the principal benefits sought by defendant[] [in] deciding whether to [plead
guilty] or instead to proceed to trial.” INS v St Cyr, 533 US 289, 323 (2001). Indeed, in
light of the fact that defendant pleaded guilty to the principal charge, it appears this may
have been the only motivation for his decision to waive his right to a trial and plead
guilty.

       After defendant pleaded guilty, the Legislature enacted the Sex Offender
Registration Act (SORA), MCL 28.721 et seq., which retroactively defined defendant’s
completion of youthful training as a conviction and required him to register under the act
and to comply with the obligations imposed on such registrants. 1994 PA 295. It is
undisputed that registration under SORA constitutes a civil disability. Although the
Legislature may retroactively attach civil consequences to a conviction, see Hawker v
New York, 170 US 189 (1898), here defendant pleaded guilty in reasonable reliance on
the possibility of receiving a sentence under HYTA and benefitting from its express
promise that upon successful completion of his youthful training, he would not have a
conviction on his record or suffer any related civil disabilities.

        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. US Const, Am
XIV; Const 1963, art 1, § 17. See Jideonwo v Immigration & Naturalization Serv, 224
F3d 692, 700 n 7 (CA 7, 2000) (noting that “where retroactive application of a statute
disturbs settled expectations based on the state of the law upon which a party relied at the
time an action was taken such that ‘manifest injustice’ would result, the Due Process
Clause prohibits retroactive application of the law.”).

    The motion of plaintiff-appellee to add an appendix to its supplemental brief is
GRANTED.

       WILDER, J. (dissenting).

      I respectfully dissent from this Court’s order reversing the judgment of the Court
of Appeals and reinstating the trial court’s order removing defendant from the sex
offender registry. I write separately because I would have remanded the case to the trial
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court to further develop the factual record to determine (1) whether, at the time of his
plea, defendant was promised benefits derived from his assignment to and subsequent
release from youthful trainee status under the Holmes Youthful Trainee Act (HYTA),
MCL 762.11 et seq., and (2) whether he was actually induced to plead guilty as a result
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.

        To comport with due process, a defendant’s guilty plea must be voluntary,
knowing, and made “ ‘with sufficient awareness of the relevant circumstances and likely
consequences.’ ” People v Cole, 491 Mich 325, 333 (2012), quoting Brady v United
States, 397 US 742, 748 (1970). Moreover, “when a plea rests in any significant degree
on a promise” such that the promise is “part of the inducement or consideration” for the
plea, “the essence of th[at] promise[] must in some way be made known” and the promise
“must be fulfilled.” Santobello v New York, 404 US 257, 261-262 (1971) (emphasis
added).

       Appellate review of a defendant’s guilty plea is a “necessarily limited and record-
circumscribed inquiry . . . .” People v Taylor, 383 Mich 338, 360 (1970). The starting
point for evaluating the voluntariness of a defendant’s guilty plea is the “verbatim
record” of the guilty-plea proceeding made contemporaneously in the trial court. MCR
6.302(F). “Normally, where a defendant states on the record that no promises,
inducements, coercion, or other undue influences have been offered to him or brought to
bear upon him, he will be held to his record denial.” People v Weir, 111 Mich App 360,
361 (1981).

        The trial court has the responsibility of deciding whether the defendant’s plea was
induced by an unfulfilled promise, and its finding should not be overturned unless it is
clearly erroneous. People v Hall, 399 Mich 288, 291 (1976) (holding that “[i]t was the
circuit judge’s responsibility to determine whether the plea was induced by a promise of
leniency which went unfulfilled” and that the Court of Appeals “erred in substituting its
judgment for that of the circuit judge”); id. (“The trial court is in the best position to
determine whether or not the plea of guilty was induced by promises of leniency because
it can observe the demeanor of the conflicting witnesses in determining their
credibility.”) (quotation marks and citation omitted); see also People v Belanger, 73 Mich
App 438, 450-451 (1977) (“The trial court is best equipped to determine whether the
defendant’s guilty plea was induced by promises of leniency since it held an evidentiary
hearing on the matter and had the opportunity to observe the demeanor of the witnesses
and determine their credibility.”); People v Bolden, 78 Mich App 120, 123 (1977) (“It
was the circuit judge’s responsibility to determine whether the plea was induced by a
promise of leniency which went unfulfilled.”) (quotation marks and citation omitted).

      On the record before this Court, the trial court has made no finding that any
promise was made to defendant that actually induced him to plead guilty, and no finding
                                                                                             4

has been made that any such promise made has not been fulfilled. Moreover, there is no
record evidence establishing by whom such promise was made, i.e., by defense counsel,
the prosecutor, or the court. Notably, during oral argument before this Court, defense
counsel conceded that defendant does not claim that the HYTA statute itself constitutes a
promise on which defendant relies. In addition, no written plea agreement exists, and no
transcript of the plea hearing exists. The absence of rudimentary factual findings or
supporting records is unsurprising considering that the issue of whether a due process
violation occurred was never raised by the parties or addressed by the trial court or the
Court of Appeals in the lower court proceedings. See Taylor, 383 Mich at 359-360 (the
voluntariness of a guilty plea is a question of fact, which “cannot be determined under
our adversary system of jurisprudence in a proceeding in which that question of fact was
never put in issue”).

        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. See Taylor, 383 Mich at 359-360; Hall, 399 Mich at 291. Because the
record is clearly insufficient to support a conclusion that defendant’s plea was induced by
an alleged expectation of receiving potential HYTA benefits, the trial court is in the best
position to make a factual determination as to the promise made and whether defendant
relied on that promise at the time he entered his guilty plea. For these reasons, I
respectfully disagree with this Court’s determination to substitute its own judgment for
that of the trial court.

        I am also concerned that extending the Santobello principle, which applies solely
to record promises made by prosecutors, to apply with equal force to statutory provisions,
such as HYTA, runs contrary to this Court’s jurisprudence. See Studier v Mich Pub Sch
Employees’ Retirement Bd, 472 Mich 642, 661 (2005) (“[A]bsent some clear indication
that the legislature intends to bind itself contractually, the presumption is that ‘a law is
not intended to create private contractual or vested rights but merely declares a policy to
be pursued until the legislature shall ordain otherwise.’ ”) (quotation marks and citations
omitted). Furthermore, absent a clear violation of a defendant’s constitutional rights, the
potential unfairness of retroactive civil legislation is not a sufficient reason for a court to
fail to give a statute its intended scope. Landgraf v USI Film Prod, 511 US 244, 267
(1994). “[L]egislation readjusting rights and burdens is not unlawful solely because it
upsets otherwise settled expectations. This is true even though the effect of the
legislation is to impose a new duty or liability based on past acts.” Concrete Pipe & Prod
of California, Inc v Constr Laborers Pension Trust for Southern California, 508 US 602,
637 (1993) (quotation marks and citations omitted). Even if defendant had an
expectation that he would receive the benefits of HYTA—i.e., that he would not suffer a
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civil disability or loss of right or privilege—and the subsequent enactment of the Sex
Offender Registration Act (SORA), MCL 28.721 et seq., 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.

        Accordingly, I would remand the case to the trial court to further develop the
factual record before making a judicial determination at the outset, on appeal, as to
whether SORA’s sex offender registry requirement violates defendant’s due process
rights.

      ZAHRA, J., joins the statement of WILDER, J.

      CLEMENT, J., did not participate.




                        I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        January 24, 2018
       t0117
                                                                            Clerk
