                         STATE OF MICHIGAN

                          COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  October 16, 2018
              Plaintiff-Appellee,

v                                                                 No. 336848
                                                                  Chippewa Circuit Court
JOCQUE NOLAN,                                                     LC No. 15-001939-FH

              Defendant-Appellant.


Before: SAWYER, P.J., and STEPHENS and GADOLA, JJ.

PER CURIAM.

        Defendant, Jocque Nolan, appeals as of right his jury trial convictions of two counts of
violating the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., MCL 28.729(1).
Defendant challenges his convictions on constitutional grounds. We affirm.

        Defendant has been required to register under SORA since 2004. He was released from
prison on parole for an unrelated offense on June 30, 2015. In August 2015, defendant’s parole
officer confiscated defendant’s cell phone and it was determined that defendant had used the
phone to access various electronic communication services, including Skype and Facebook. As
a result of defendant’s undisclosed use of these services, he was charged with several criminal
offenses, including three counts of violating SORA’s registration requirements. A jury convicted
defendant of two of the three counts of violating SORA, arising from his failure to disclose his
Skype and Facebook accounts.

                          I. VAGUENESS OF SORA PROVISIONS

        Defendant first argues that his convictions should be vacated because the SORA
registration requirement that he violated was unconstitutionally vague and therefore void.
Defendant also contends that he was denied the effective assistance of counsel because his
second trial counsel failed to pursue a previously filed motion to quash on that basis. We
disagree.

       This Court reviews the constitutionality of a statute de novo. People v Lockett, 295 Mich
App 165, 174; 814 NW2d 295 (2012). Defendant’s related ineffective assistance of counsel
claim presents a mixed question of fact and constitutional law. People v Jordan, 275 Mich App



                                              -1-
659, 667; 739 NW2d 706 (2007). The lower court’s findings of fact are reviewed for clear error,
while its rulings on questions of constitutional law are reviewed de novo. Id. However, because
defendant failed to preserve this issue by moving for a new trial or Ginther1 hearing in the lower
court, People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009), this Court’s review is
limited to errors apparent from the record, Jordan, 275 Mich App at 667.

        Defendant’s first claim of error is premised on his contention that he was convicted of
violating SORA based upon his noncompliance with MCL 28.727(1)(i), which was deemed
unconstitutionally vague in Doe v Snyder, 101 F Supp 3d 672 (ED Mich, 2015) (Doe I), and
People v Solloway, 316 Mich App 174; 891 NW2d 255 (2016). In pertinent part, § 7(1)(i) of
SORA provides:

                 (1) Registration information obtained under this act shall be forwarded to
         the department[2] in the format the department prescribes. Except as provided in
         section 5b(3), a $50.00 registration fee shall accompany each original registration.
         All of the following information shall be obtained or otherwise provided for
         registration purposes:

                                               * * *

                 (i) All electronic mail addresses and instant message addresses assigned to
         the individual or routinely used by the individual and all login names or other
         identifiers used by the individual when using any electronic mail address or
         instant messaging system. [Citation omitted.]

The prosecution, on the other hand, contends that defendant’s convictions arose from his
noncompliance with § 5(1)(f), which has not been invalidated by binding precedent, and states:

                 (1) An individual required to be registered under this act who is a resident
         of this state shall report in person and notify the registering authority having
         jurisdiction where his or her residence or domicile is located immediately after
         any of the following occur:

                                               * * *

                (f) The individual establishes any electronic mail or instant message
         address, or any other designations used in internet communications or postings.

To the extent that defendant’s convictions rested on his violation of § 7(1)(i), he correctly argues
that this Court would be compelled by the holding in Solloway to vacate his convictions.



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
    “ ‘Department’ means the department of state police.” MCL 28.722(d).



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Solloway, 316 Mich App at 184-187 (finding that MCL 28.727(1)(h) and (i) were impermissibly
vague and vacating the defendant’s convictions arising from violating those provisions).
However, the felony information concerning the first two counts only indicates that defendant
willfully violated SORA by “maintaining a Facebook account” and “maintaining a Skype
account,” contrary to MCL 28.729(1), which establishes a willful violation of SORA as a felony
offense. The judgment of sentence similarly refers only to MCL 28.729, and we did not discover
any other filings that explicitly indicate which SORA requirement defendant was alleged to have
violated. Nonetheless, we infer from the record that the defendant’s conviction arose from his
noncompliance with § 5(1)(f) for several reasons.

        First, the proofs presented at trial suggest that defendant’s SORA violations must have
concerned defendant’s failure to comply with § 5(1)(f). Section 5(1) identifies events that trigger
a registrant’s duty to immediately report the occurrence of the event to the applicable authority,
while § 7 identifies the information that must generally be provided under SORA. It is
undisputed that defendant was required to register since 2004, but there was no evidence
presented concerning the frequency with which defendant was required to report. See MCL
28.725a (dictating the frequency and schedule for reporting, based upon the registrant’s SORA
tier). In the absence of such evidence, it can be inferred that defendant’s SORA violation arose
from his noncompliance with a provision in § 5(1), which must be reported immediately without
regard to when the registrant would otherwise be required to appear before the applicable
authority, rather than his failure to disclose accounts that may not have existed when he was last
required to report.

         Second, certain comments made by the prosecution suggest that it was pursuing SORA
violation charges based on defendant’s failure to comply with § 5(1)(f). Section 5(1)(f) requires
a registrant to notify the appropriate authority “immediately” after “establish[ing] any electronic
mail or instant message address, or any other designations used in internet communications or
postings.” As used in SORA, the term “immediately” means “within 3 business days.” MCL
28.722(g). At defendant’s preliminary examination, the prosecution indicated that it was
required to prove several elements concerning defendant’s SORA violation, including that
defendant had not reported a change in his e-mail address or social media accounts “within three
days . . . .” Defendant likewise referred to constitutionality of the “three[-]day requirement” at
the preliminary examination. This reference to the information that must be reported within
three days was repeated by the prosecution again during its opening statement and closing
argument at trial. Because § 7(1) does not include the term “immediately” in setting forth
information that must be provided by the individual registering, the repeated references to a
three-day time frame for reporting further supports the prosecution’s contention that defendant
was prosecuted and convicted for violating the reporting requirement set forth in § 5(1)(f).

        The jury instructions provided by the trial court, without objection from defense counsel,
similarly reinforce this conclusion. With respect to the SORA violation charges, the trial court
instructed:

             To prove this charge, the prosecutor must prove the following elements
       beyond a reasonable doubt. First, that the defendant has been convicted of
       unlawful sexual contact, which would require him to provide certain information


                                                -3-
       for the Sex Offender Registry. And to immediately report changes in the
       registration information to a local police agency when the defendant establishes
       an e-mail account or internet communications with an address or account.

               Second, that the defendant established an e-mail or internet
       communications, address, or account. Third, that the defendant failed to notify
       the Michigan State Police or local police agency in the city where he lived of the
       change of registry within three days. Fourth, that the defendant’s failure to
       register was willful. “Willful” means that the defendant freely chose not to
       provide notification [of a] change in the registry information. [Emphasis added.]

This instruction mirrors M Crim JI 20.39a, which cites MCL 28.725(1) in its reference guide.
The above instruction also repeats terminology that is found in § 5 and absent from § 7,
specifically, the requirement that an individual must “immediately” report to the registering
authority after he or she “establishes” an e-mail address or other designation used in “internet
communications.” See MCL 28.725(1)(f).

        In light of the above, we can reasonably conclude that defendant was prosecuted for
violating § 5(1)(f), rather than § 7(1)(i). Accordingly, the question becomes whether § 5(1)(f) is
unconstitutionally vague, such that defendant’s conviction for violating that SORA provision
must be vacated. As this Court recently explained,

       A statute may be determined to be “unconstitutionally vague” when “(1) it does
       not provide fair notice of the conduct proscribed, (2) it confers on the trier of fact
       unstructured and unlimited discretion to determine whether an offense has been
       committed or (3) its coverage is overly broad and impinges on First Amendment
       Freedoms.” [People v Vronko, 228 Mich App 649, 652; 579 NW2d 138 (1998).]
       A statute will not be found vague “if the meaning of the words in controversy can
       be fairly ascertained by reference to judicial determinations, the common law,
       dictionaries, treatises, or their generally accepted meaning.” Id. at 653.
       [Solloway, 316 Mich App at 184-185.]

         Plaintiff relies primarily on Doe I and Solloway in support of his argument regarding this
issue. In Doe I, a federal district court found that § 7(1)(i) was unconstitutional because it was
impermissibly vague. Doe I, 101 F Supp 3d at 687-689, 713. In reaching this conclusion, the
Doe I Court observed that § 7(1)(i) required an individual to report e-mail and instant message
addresses and identifiers that were assigned to or “routinely used” by the individual. Id. The
Court reasoned that the “routinely used” language was “not sufficiently concrete (1) ‘to ensure
fair notice to the citizenry’ or (2) ‘to provide standards for enforcement by the police, judges, and
juries.’ ” Id. at 688 (citation omitted). Although the district court’s holding in Doe I itself is not
binding, this Court has since adopted the Doe I Court’s rationale regarding the validity of
§ 7(1)(i), agreeing that SORA’s use of the phrase “routinely used” is too vague to withstand
constitutional scrutiny. Solloway, 316 Mich App at 184-187.

     However, for the reasons set forth above, it is evident that defendant was convicted under
MCL 28.729(1) based upon his violation of the requirement in § 5(1)(f), rather than those that


                                                 -4-
were invalidated in Doe I and Solloway. Importantly, the “routinely used” language that was
problematic in Doe I and Solloway does not appear in § 5(1)(f). Instead, that section
unambiguously requires that an individual who is required to register immediately notify the
registering authority when he or she “establishes any electronic mail or instant message address,
or any other designations used in internet communications or postings.” MCL 28.725(1)(f)
(emphasis added). In other words, it is the registrant’s act of establishing an address or
designation that triggers the duty to report, rather than “routine[] use[]” of uncertain regularity or
frequency. Given this clarity, § 5(1)(f) does not raise the same concerns that registrants, law
enforcement personnel, and the judiciary might be unable to determine when the registrant’s duty
to report arises. As such, defendant’s contention that this Court is obligated to vacate his
convictions pursuant to Solloway is unpersuasive, and he has not presented any further argument
as to why § 5(1)(f) is impermissibly vague.3

       Defendant also argues that he was denied the effective assistance of counsel when his
second trial counsel failed to pursue the motion to quash filed by his first attorney.

As a general rule, “[f]ailing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793
NW2d 120 (2010). Defendant’s motion to quash lacked merit because, as discussed above, he
was not charged with violating an invalid provision of SORA.

                                 II. EX POST FACTO CLAUSES

       Next, defendant argues that his convictions must be reversed because the reporting
requirements concerning e-mail and instant messaging addresses, and other internet designations
or identifiers, were not added to SORA until it was amended in 2011. See 2011 PA 18.
According to defendant, application of reporting requirements that were not in effect when he
was placed on the registry in 2004 violates the constitutional prohibitions against ex post facto
laws. We disagree.

        Initially, we note that this Court recently rejected the same challenge to the similar
provisions in § 7(1)(i). People v Patton, ___ Mich App ___; ___ NW2d ___ (No. 341105,
issued August 2, 2018). While this reasoning equally applies here, because we conclude that
defendant was actually convicted under § 5 rather than § 7, we will nevertheless analyze the
issue as well.




3
  We recognize that the Doe I Court also held that MCL 28.725(1)(f) was invalid on First
Amendment grounds because the requirement that a registrant must report required information
in person was not narrowly tailored to protect the state’s interest in protecting minors and
investigating sexual crimes. Doe I, 101 F Supp at 704. However, Doe I is not binding on this
Court, Solloway, 316 Mich App at 184, and defendant has not presented a First Amendment
argument.



                                                 -5-
        Matters of constitutional law are reviewed de novo. People v Tucker, 312 Mich App 645,
651; 879 NW2d 906 (2015). Both the United States and Michigan Constitutions prohibit ex post
facto laws. People v Callon, 256 Mich App 312, 316; 662 NW2d 501 (2003), citing US Const,
art I, § 10 and Const 1963, art 1, § 10. “Both ex post facto clauses are designed to secure
substantial personal rights against arbitrary and oppressive legislation and to ensure fair notice
that conduct is criminal[.]” Callon, 256 Mich App at 317 (citations omitted). Michigan courts
apply a two-part inquiry to determine whether a law violates the Ex Post Facto Clauses:

       The court must begin by determining whether the Legislature intended the statute
       as a criminal punishment or a civil remedy. If the Legislature’s intention was to
       impose a criminal punishment, retroactive application of the law violates the Ex
       Post Facto Clause and the analysis is over. However, if the Legislature intended
       to enact a civil remedy, the court must also ascertain whether “the statutory
       scheme is so punitive either in purpose or effect as to negate [the State’s]
       intention to deem it civil.” Stated another way, even if the text of the statute
       indicates the Legislature’s intent to impose a civil remedy, we must determine
       whether the statute nevertheless functions as a criminal punishment in application.
       [People v Earl, 495 Mich 33, 38; 845 NW2d 721 (2014) (citations omitted)
       (alteration in original).]

“The critical question . . . is whether the law changes the legal consequences of acts completed
before its effective date.” Callon, 256 Mich App at 318 (quotation marks and citation omitted).

       When the Legislature amended SORA in 2002, it added § 1a, which provides:

               The legislature declares that the sex offenders registration act was enacted
       pursuant to the legislature’s exercise of the police power of the state with the
       intent to better assist law enforcement officers and the people of this state in
       preventing and protecting against the commission of future criminal sexual acts
       by convicted sex offenders. The legislature has determined that a person who has
       been convicted of committing an offense covered by this act poses a potential
       serious menace and danger to the health, safety, morals, and welfare of the
       people, and particularly the children, of this state. The registration requirements
       of this act are intended to provide law enforcement and the people of this state
       with an appropriate, comprehensive, and effective means to monitor those persons
       who pose such a potential danger. [MCL 28.721a.]

According to this express statement of intent, the Legislature did not intend SORA to act as a
criminal punishment, but rather as a means of assisting in the prevention of “future criminal
sexual acts by convicted sex offenders,” by monitoring those offenders. Id. See also Earl, 495
Mich at 42-43 (“[W]here a legislative restriction is an incident of the State’s power to protect the
health and safety of its citizens, it will be considered as evidencing an intent to exercise that
regulatory power, and not a purpose to add to the punishment.”) (quotation marks and citation
omitted; alteration in original). Even before SORA was amended to include § 1a, this Court
found that SORA was “directed at protecting the public and [had] no punitive purpose . . . .”
People v Pennington, 240 Mich App 188, 197; 610 NW2d 608 (2000), citing Lanni v Engler,


                                                -6-
994 F Supp 849 (ED Mich, 1998), and Doe v Kelley, 961 F Supp 1105 (WD Mich, 1997). The
2011 amendment that added the reporting requirement in § 5(1)(f) did not alter the Legislature’s
statement of intent. See People v Temelkoski, 307 Mich App 241, 260-262; 859 NW2d 743
(2014), rev’d on other grounds 501 Mich 960; 905 NW2d 593 (2018) (finding that “the
Legislature intended SORA as a civil remedy to protect the health and welfare of the public” 307
Mich App at 262).

         In light of the Legislature’s clearly stated intent, we must consider whether the 2011
SORA amendment to § 5 is nonetheless “so punitive either in purpose or effect as to negate [the
State’s] intention to deem it civil.” Earl, 495 Mich at 38 (quotation marks and citation omitted)
(alteration in original). This Court has previously analyzed this question in Temelkoski, 307
Mich App at 262-270. Although the underlying facts involved in Temelkoski are distinguishable
from those at issue here, the Court’s analysis in that case is equally applicable to defendant’s ex
post facto challenge. The Temelkoski Court considered the five factors reviewed by the United
States Supreme Court when it reviewed a similar challenge to Alaska’s sex offender registration
act, Alas Stat 12.63.010 et seq., i.e., whether the statutory scheme “(1) ‘has been regarded in our
history and traditions as a punishment,’ (2) ‘imposes an affirmative disability or restraint,’ (3)
‘promotes the traditional aims of punishment,’ (4) ‘has a rational connection to a nonpunitive
purpose,’ and (5) ‘is excessive with respect to this purpose.’ ” Temelkoski, 307 Mich App at
262, quoting Smith v Doe, 538 US 84, 97; 123 S Ct 1140; 155 L Ed 2d 164 (2003).

        With respect to the first factor, this Court found that the requirements of SORA, as
amended in 2011, are “unlike traditional forms of punishment.” Temelkoski, 307 Mich App at
264. The Court explained that although a registrant may be exposed to humiliation or public
disapproval, it is a collateral consequence of SORA, which is principally geared toward public
safety goals. Id. at 263-264. Furthermore, § 5(1)(f) in particular does not raise that concern
because e-mail and instant messaging addresses are not available to the public. MCL
28.728(3)(e). Further, while there is limited historical treatment of similar statutory schemes,
other jurisdictions in recent years have found that “sex offender registration and notification laws
are nonpunitive in nature.” Temelkoski, 307 Mich App at 263. We see no reason to reach a
different conclusion with respect to the 2011 amendment to § 5(1)(f).

       The second factor also weighs in favor of finding that the 2011 amendment to § 5(1)(f) is
nonpunitive. Id. at 265-266. In considering whether the 2011 amendment imposes an
affirmative disability or restraint, the Court should evaluate “how the effects of the Act are felt
by those subject to it.” Id. at 265 (quotation marks and citation omitted). According to the
Temelkoski Court,

       SORA “ ‘inflicts no suffering, disability or restraint.’ ” Pennington, 240 Mich
       App at 195, quoting Kelley, 961 F Supp at 1109. Although [the] defendant
       certainly experiences adverse effects from being listed on the PSOR [public sex
       offender registry], these effects stem from the commission of the underlying act,
       not SORA’s registration requirements. While secondary effects may flow
       indirectly from the PSOR, “ ‘punishment in the criminal justice context must be
       reviewed as the deliberate imposition by the state of some measure intended to
       chastise, deter or discipline. Actions taken by members of the public, lawful or


                                                -7-
       not, can hardly be deemed dispositive of whether legislation’s purpose is
       punishment.’ ” Pennington, 240 Mich App at 196, quoting Kelley, 961 F Supp at
       1111. The central purpose of SORA is not intended to chastise, deter, or
       discipline; rather, it is a remedial measure meant to protect the health, safety, and
       welfare of the general public. [Temelkoski, 307 Mich App at 266.]

        The third factor—whether § 5(1)(f) of SORA, as amended in 2011, promotes the
traditional aims of punishment—similarly weighs in favor of finding that it is nonpunitive. As
the Temelkoski Court succinctly stated, “[w]hile SORA might deter future sexual offenses, that is
not the primary purpose of the act and it does not render SORA punitive.” Id. at 267.

        The fourth factor is whether SORA’s 2011 amendment to § 5(1)(f) has a rational
connection to a nonpunitive purpose. Id. at 262. Again, this factor supports the conclusion that
it is nonpunitive. SORA was enacted and amended to promote the public health and welfare by
protecting against “future criminal sexual acts by convicted sex offenders,” MCL 28.721a,
which is a legitimate and nonpunitive purpose, Temelkoski, 307 Mich App at 267-268.

        With respect to the last factor, the Temelkoski Court found that SORA’s requirements
were not excessive with respect to their purpose. Id. at 268-270. The Court explained that the
registry requirements are reasonably tied to the regulatory purpose of public protection. Id. at
269. Although Temelkoski focused primarily on the publicly available registry information, the
same holds true for the provision with which defendant failed to comply. Section 5(1)(f)
requires registrants to report to the applicable authority upon establishing “any electronic mail or
instant message address, or any other designations used in internet communications or postings.”
It goes without saying that the internet and other means of electronic communication are
commonly used in planning and committing various crimes that SORA is designed to prevent.
See MCL 28.722(s), (u), and (w) (identifying offenses by tier level). See also, e.g., People v
Seadorf, 322 Mich App 105; 910 NW2d 703 (2017) (defendant convicted under MCL
750.145c(2), based upon downloaded child sexually abusive material); People v Cervi, 270 Mich
App 603; 717 NW2d 356 (2006) (defendant charged under MCL 750.520d(1)(a) and MCL
750.145c(2) after communicating with undercover officer posing as a 14-year-old female in
internet chat room). Given the frequent use of electronic communication in perpetrating sexual
offenses, the requirement of § 5(1)(f) is not excessive with respect to its purpose.

        In sum, because all five factors set forth in Temelkoski and Smith weigh in favor of
concluding that § 5(1)(f) is nonpunitive, there is no basis to conclude that the effects negate the
Legislature’s stated intent. As such, it does not impose punishment and therefore does not
violate the Ex Post Facto Clauses of the state or federal constitutions. Defendant’s reliance on
Doe v Snyder, 834 F3d 696 (CA 6, 2016) (Doe II), is misplaced because decisions of lower
federal courts are not precedentially binding, Solloway, 316 Mich App at 184, and the analysis
set forth in Doe II is directly contradicted by published caselaw from this state concluding that
SORA’s requirements do not constitute punishment. See, e.g., Tucker, 312 Mich App at 681-
683; Temelkoski, 307 Mich App at 270-271; People v Golba, 273 Mich App 603, 620; 729
NW2d 916 (2007); Pennington, 240 Mich App at 197.




                                                -8-
                                III. PAROLE REVOCATION

        Lastly, in a supplemental brief filed pursuant to Supreme Court Administrative Order No.
2004-6, defendant argues that his parole revocation premised on the same SORA violations
should also be reversed in the event the above criminal convictions are vacated. Because
defendant is not entitled to appellate relief with respect to his SORA violation convictions, we
need not address this conditional issue. Moreover, even if we found merit in defendant’s other
claims of error, we could not grant the requested relief because this appeal was taken from the
circuit court’s judgment of sentence and not the separate determination that defendant violated
the terms of his parole.

       Affirmed.



                                                           /s/ David H. Sawyer
                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Michael F. Gadola




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