PEOPLE v COSTNER
Docket No. 316806
Court of Appeals of Michigan
February 19, 2015
309 MICH APP 220
Submitted November 14, 2014, at Grand Rapids. Decided February 19, 2015, at 9:00 a.m.
Evans Costner III pleaded guilty to attempted third-degree criminal sexual conduct,
The Court of Appeals held:
1. Under
2.
Affirmed.
GLEICHER, J., dissenting, would have reversed the decision of the trial court. Whether defendant was more than four years older than the complainant depended on how “years” were measured. The Legislature defined “year” as a calendar year. Because defendant was not more than four calendar years older than the complainant, the trial court erred when it denied defendant‘s petition. Even if the Court could ignore the statutory definition of “year,” the phrase “not more than four years older” would be ambiguous. Because the statute is remedial, it should have been interpreted in favor of defendant.
CRIMINAL LAW -- SEX OFFENDERS REGISTRATION ACT -- PETITIONS FOR REMOVAL FROM THE REGISTRY --- AGE DIFFERENCE BETWEEN THE PETITIONER AND THE VICTIM.
Under
Stephanie Farkas and Cheryl Carpenter for defendant.
Before: BOONSTRA, P.J., and DONOFRIO and GLEICHER, JJ.
DONOFRIO, J. Defendant appeals by leave granted an order denying his motion to be removed from Michigan‘s sex-offender registry. Because defendant was more than four years older than the victim in this case and because requiring him to register as a sex
Defendant pleaded guilty to attempted third-degree criminal sexual conduct (victim at least 13 but under 16 years of age),
On March 2, 2010, defendant pleaded guilty to violating the terms of his probation by using marijuana and possessing drug paraphernalia. The trial court sentenced defendant to 13 days in jail for the probation violation and continued both defendant‘s probation and HYTA status. Defendant was also ordered to successfully participate in and complete the Kalamazoo Probation Enhancement Program (KPEP).
On March 16, 2010, defendant pleaded guilty to violating the terms of his probation by breaking his curfew and by going AWOL from the KPEP. The trial court revoked defendant‘s HYTA status and ordered him to comply with the Sex Offenders Registration Act (SORA),
On January 25, 2011, defendant, yet again, pleaded guilty to violating the terms of his probation, this time for having contact with, or attempting to have contact with, a female under the age of 17. The trial court revoked defendant‘s probation and sentenced him to six months in jail.
Defendant subsequently petitioned to be removed from the sex-offender registry pursuant to
The court shall grant a petition properly filed by an individual under subsection (3) if the court determines that the conviction for the listed offense was the result of a consensual sexual act between the petitioner and the victim and any of the following apply:
(a) All of the following:
(i) The victim was 13 years of age or older but less than 16 years of age at the time of the offense.
(ii) The petitioner is not more than 4 years older than the victim.
Defendant argued that because there is only a four-year difference between his age and the victim‘s age, he necessarily was “not more than 4 years older” than her. Defendant relied on
The trial court denied defendant‘s petition and stated in its opinion:
This Court is not convinced that the term “year” as defined by
MCL 8.3j is the answer to the time computation in this statute, because the statute in issue requires the petitioner (i.e. defendant) to be “not more than 4 years older than the victim.” The phrase “not more than” limits the definition of the word “year“. Therefore, because this Defendant is 23 days older than the 4 years required under the Statute, I find that he does not meet the requirements set forth inMCL 28.728c andMCL 8.3j is not violated by this interpretation.
I. MCL 28.728c(14)
Defendant first argues on appeal that the trial court erred when it denied his
“[T]he intent of the Legislature governs the interpretation of legislatively enacted statutes.” People v Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012). The intent of the Legislature is expressed in the statute‘s plain language. People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012). When the statutory language is plain and unambiguous, the Legislature‘s intent is clearly expressed, and judicial construction is neither permitted nor required. Id. In construing statutes, this Court applies a reasonable construction of the statute, enforces clear statutory language as written, and reconciles any apparent inconsistencies if possible. People v Bulger, 291 Mich App 1, 5; 804 NW2d 341 (2010). If a statute specifically defines a term, the statutory definition is controlling. People v Williams, 298 Mich App 121, 126; 825 NW2d 671 (2012). When “terms are not expressly defined anywhere in the statute, they must be interpreted on the basis of their ordinary meaning and the context in which they are used.” Zajaczkowski, 493 Mich at 13. However, technical words and phrases that have acquired a peculiar and appropriate meaning in law shall be construed and interpreted in accordance with that meaning. See
A 2011 amendment of SORA allows an individual to petition the court for removal from the sex-offender registry. Among its provisions,
The court shall grant a petition properly filed by an individual under subsection (3) if the court determines that the conviction for the listed offense was the result of a consensual sexual act between the petitioner and the victim and any of the following apply:
(a) All of the following:
(i) The victim was 13 years of age or older but less than 16 years of age at the time of the offense.
(ii) The petitioner is not more than 4 years older than the victim. [
MCL 28.728c(14) .]
The parties did not dispute that the sexual act for which defendant was convicted was consensual. It was likewise undisputed that the victim “was 13 years of age or older but less than 16 years of age at the time of the offense.” Instead, the parties’ arguments were focused on whether defendant satisfied
There is no dispute that defendant actually is 4 years and 23 days older than the victim. Therefore, considering the issue on its face, defendant is more than four years older than the victim, and he cannot satisfy
In Woolfolk, this Court was confronted with whether the defendant, who was convicted after committing a murder on the evening before his 18th birthday, should nonetheless be considered as having been 18 years old at the time of the murder. As the Court acknowledged, contrary to common assumption or understanding, when computing a person‘s age, the common law provides that a person “‘reaches his next year in age at the first moment of the day prior to the anniversary date of his birth.‘” Id. at 461, quoting Nelson v Sandkamp, 227 Minn 177, 179; 34 NW2d 640 (1948) (emphasis added). For example, under the common law, a person is considered to turn 18 years old the day before the 18th anniversary of his or her birth.
The Court, however, rejected the common-law method of determining when a person reaches a certain age and, instead, adopted the more commonly recognized method under the “birthday rule,” under which “a person attains a given age on the anniversary date of his or her birth.” Woolfolk, 304 Mich App at 464, 504 (citation and quotation marks omitted).
Defendant‘s reliance on Woolfolk is misplaced. Woolfolk only pertained to the proper method to calculate a person‘s age. More specifically, it addressed when a person attains the next age of his or her life. This concept has no application to the present issue. There is no question that in the present case, at the time of the offense, defendant and the victim had attained the ages of 18 and 14, respectively. Nothing in Woolfolk suggests that when determining whether someone is “more than 4 years older” than someone else, one simply takes the difference between both persons’ “year” age, thereby ignoring their actual ages, which include not only how many years they have been alive, but also how many months and days. In fact, Woolfolk even relied on Bay Trust Co v Agricultural Life Ins Co, 279 Mich 248, 253; 271 NW 749 (1937), in which our Supreme Court, in the context of an insurance policy provision, held that a person who was 60 years, 2 months, and 10 days old was “over the age of 60 years.” Woolfolk, 304 Mich App at 498-499. The Supreme Court noted that “a year is a unit of time” and that the deceased had lived “over, beyond, above, or in excess” of 60 years. Bay Trust Co, 279 Mich at 252. Likewise, defendant, being 4 years and 23 days older than the victim, was indeed “more than 4 years older than the victim.”
We find support for our view in other jurisdictions as well. In State v Marcel, 67 So 3d 1223 (Fla App, 2011), the Florida appellate court was confronted with the same issue and was presented with facts that are remarkably similar to the facts in the instant case. In Marcel, the defendant was 18 and the victim was 14 at the time of the offense; the defendant was designated a sexual offender and subjected to reporting requirements on the basis of his plea to a sex crime requiring lifetime registration under Florida‘s sex offender registration
The Marcel court rejected the defendant‘s argument that application of the birthday rule resulted in him being no more than four years older than the victim because the difference was only four years (18 minus 14). Id. Instead, according to the court, the birthday rule is only used to compute a person‘s age-it is not used in the calculation of time, which is what was called for in the statute. Id. Therefore, as long as a defendant is one day past the four-year eligibility limit prescribed by Florida statute, the defendant is ineligible to petition for relief. Id. at 1225.
In State v Parmley, 2012 Wis App 79; 325 Wis 2d 769; 785 NW2d 655 (2010), the Wisconsin Court of Appeals construed a Romeo and Juliet exception in the Wisconsin sex offenders registration act. Like Marcel and the instant case, the facts of Parmley involved a defendant who was 18 and a victim who was 14 at the time of the offense. Id. at ¶ 6. After his conviction for second-degree sexual assault of a child, the defendant filed a petition seeking removal from Wisconsin‘s sex-offender registry pursuant to
to calculate the disparity of ages required in
WIS. STAT. § 301.45(1m)(a)2. , to determine if an actor is exempt from registering as a sex offender, the time between the birth dates of the two parties is to be determined. Using this method we first consider [the defendant‘s] birthday of January 18, 1986, and then the victim‘s birthday of June 9, 1990. We conclude that there is a difference of four years, four months and twenty-three days. Therefore, [the defendant] is more than four years older than the victim. [Id. at ¶ 21.]
Defendant, on appeal, argues that these other cases are not persuasive because Michigan has a statutory definition for the term “year.”
Defendant maintains that the definition of the word “year” as a “calendar year” should be used for both calculating a length of time and age. Because defendant‘s position is untenable, we reject it. First, we note that the definitions provided in
To illustrate how adoption of defendant‘s argument would create an absurd result clearly not intended by the Legislature, consider that under defendant‘s view,
that he is only four years older than the victim. But defendant is not using the definition from
Instead, we hold that under
part, as “a space of 12 calendar months calculated from any point“). Therefore, one who is even one day past the 4-year or 48-month eligibility limit described in
II. CRUEL AND UNUSUAL PUNISHMENT
Defendant also argues that subjecting him to registration under SORA is
The United States Constitution prohibits cruel and unusual punishment.
But before determining whether a punishment is cruel or unusual, a “threshold question” must be answered: does the complained-of punishment constitute “punishment” under the Constitution? In re Ayres, 239 Mich App 8, 14; 608 NW2d 132 (1999). SORA requires persons convicted of certain listed offenses to register as sex offenders.
Although a defendant may see registration as a penalty for a conviction of a listed offense, it is not actually a punitive measure intended to chastise, deter or discipline an offender. It is merely a “remedial regulatory scheme furthering a legitimate state interest.” [Fonville, 291 Mich App at 381, quoting Golba, 273 Mich App at 617 (other quotation marks and citations omitted).]
Because the SORA registration requirement is not punishment, the requirement does not constitute cruel or unusual punishment in violation of the Michigan or the United States Constitution, Golba, 273 Mich App at 617-619, and defendant‘s unpreserved argument is therefore unavailing. See also People v Temelkoski, 307 Mich App 241, 270-271; 859 NW2d 743 (2014).
Although he acknowledges the controlling legal authority that registration is not a punitive measure, defendant relies on this Court‘s decision in People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009), and argues that the registration requirement, as applied to him, still constitutes cruel or unusual punishment under the Michigan Constitution. However, Dipiazza is factually distinguishable from the instant case, and, even if defendant‘s argument was not precluded by Fonville and Golba, there is no guidance to be had from it.
In Fonville, 291 Mich App at 381-382, this Court aptly summarized Dipiazza:
In Dipiazza, this Court held that requiring the defendant in that case to register as a sex offender was cruel or unusual punishment. However, in that case, after the defendant completed probation, his case was dismissed under the terms of [HYTA], leaving him with no conviction on his record. Despite the dismissal of his case, because he was assigned to youthful-trainee status on August 29, 2004, he continued to remain required to register as a sex offender, whereas after amendments of SORA, a defendant assigned to youthful-trainee status after October 1, 2004, was not required to register (unless the defendant‘s status of
youthful trainee was revoked and an adjudication of guilt was entered). This Court concluded that, under those circumstances, requiring the defendant to register as a sex offender was cruel or unusual punishment. [Citations omitted.]
In the instant case, after defendant was afforded the benefit of HYTA status to induce his compliance with his probationary terms and, more importantly, to avoid a felony conviction and the obligation to register as a sex offender, defendant repeatedly violated his probation. Consequently, unlike the defendant in Dipiazza, defendant‘s HYTA status was revoked, and his conviction was never dismissed. Therefore, the reasoning in Dipiazza is not applicable to the instant case, and we perceive no plain error.
Affirmed.
BOONSTRA, P.J., concurred with DONOFRIO, J.
GLEICHER, J. (dissenting). The question presented is whether defendant was “more than four years older” than the complainant when the two engaged in consensual sexual relations. The answer depends on how “years” are measured. In my view, the Legislature solved this dilemma by enacting
In relevant part, the statute at issue provides for removal from the sex-offender registry as follows:
The court shall grant a petition properly filed by an individual under subsection (3) if the court determines that the conviction for the listed offense was the result of a consensual sexual act between the petitioner and the victim and any of the following apply:
(a) All of the following:
(i) The victim was 13 years of age or older but less than 16 years of age at the time of the offense.
(ii) The petitioner is not more than 4 years older than the victim. [
MCL 28.728c(14) (emphasis added).]
Defendant and the complainant had consensual sex when the complainant was 14 years old and defendant was 18 years old. Defendant is 4 years and 23 days older than the complainant. I respectfully disagree with the majority‘s determination that 23 days makes all the difference.
The majority holds that “the commonly understood definition of ‘year’ as a measure of time” dictates that a year “is commonly understood as being 12 months in duration.” Thus, the majority reasons, “one who is even one day” more than four years older is ineligible for relief. According to the majority‘s calculus, defendant therefore falls outside the statute‘s embrace. The majority pronounces the “calendar year” approach an “extremely awkward (and entirely inaccurate) way of calculating whether someone was more than four years older than someone else.” But we are not judicial lawmakers. Our role in interpreting the language is to apply the statute as written. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
I respectfully disagree with the majority‘s view that we may interpret the term “more than four years older” on a clean slate of “plain meaning.” The general rules of statutory construction promulgated by our Legislature dictate the interpretation of the word “year.”
The majority reasons that
Even assuming that we may properly overlook
The majority holds that the commonly understood definition of “year” is a “measure of time” that is “12 months in duration.” Therefore, the majority opines, “one who is even one day past the 4-year or 48-month eligibility limit described in
ordinary discourse, people refer to age as a specific number of years rather than as a
Speaking generally, five years is more than four years. Speaking specifically, four years and one day is more than four years. Should we interpret the term “year” loosely, as we do in real life-a year means a calendar year? Or should we construe it strictly-a year consists of months and days? Setting
“A statutory provision is ambiguous if it is equally susceptible to more than a single meaning.” Klida v Braman, 278 Mich App 60, 65; 748 NW2d 244 (2008). The majority‘s understanding of the term “more than four years” as encompassing registrants even 1 day and 4 years older than the complainant is plausible. So is the notion that the Legislature meant that “more than four years” requires subtracting the complainant‘s age from the defendant‘s, and arriving at a whole number. Viewed through the lens of common meaning, the statutory language is decidedly ambiguous.
Resolving the ambiguity requires judicial construction guided by “our duty . . . to consider the object of the statute, as well as the harm it is designed to remedy, and [to] apply a reasonable construction that best accomplishes the statute‘s purpose.” Id. at 70-71.
of the sex-offender registry. This Court determined that an earlier version of this remedial enactment was motivated “by concerns that ‘the reporting requirements are needlessly capturing individuals who do not pose a danger to the public, and who do not pose a danger of reoffending.‘” People v Dipiazza, 286 Mich App 137, 148; 778 NW2d 264 (2009), quoting House Legislative Analysis, HB 4920, HB 5195, and HB 5240, November 12, 2003, at 1. This Court further observed that “[t]he implied purpose of [the Sex Offenders Registration Act], public safety, is not served by requiring an otherwise law-abiding adult to forever be branded as a sex offender because of a juvenile transgression involving consensual sex during a Romeo and Juliet relationship.” Dipiazza, 286 Mich App at 149.
As remedial legislation designed to shield certain youthful offenders from the harsh, punitive effects of mandatory sex-offender registration,
Honoring and implementing the remedial purpose of the statute, I would hold that the term “more than four years older” should be construed to mean that defendant was not more than four years older than the complainant when they engaged