People v. CostnerPeople v. Costner
Lead Opinion
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 offender was not cruel or unusual punishment, we affirm.
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
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.
The trial court denied defendant’s petition and stated in its opinion:
This Court is not convinced that the term “year” as defined byMCL 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.
Defendant first argues on appeal that the trial court erred when it denied his petition because under Michigan law, defendant was not more than four years older than the victim. We review issues of statutory interpretation de novo. People v Zajaczkowski,
“[T]he intent of the Legislature governs the interpretation of legislatively enacted statutes.” People v Bylsma,
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.
*226 (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,
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,
Defendant’s reliance on Woolfolk is misplaced. Wool-folk 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,
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 act. Id. at 1224. The defendant later filed a petition seeking relief under Florida’s “Romeo and Juliet” law, Fla Stat 943.04354(l)(c) (2007), which provided an exception to sex-offender registration for consensual conduct by young people. Marcel, 67 So 3d at 1224. One of the criteria for relief under the Florida statute was that the defendant be “not more than [four] years older than the victim of th[e] violation who was [fourteen] years of age or older but not more than [seventeen] years of age at the time the person committed th[e] violation.” Id. (quotation marks and citation omitted; alterations in original).
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
In State v Parmley, 2012 Wis App 79;
to calculate the disparity of ages required inWis. Stat. § 301.45(lm)(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,
Instead, we hold that under
II. CRUEL AND UNUSUAL PUNISHMENT
Defendant also argues that subjecting him to registration under SORA is cruel and unusual punishment, which violates his constitutional rights. Defendant never preserved this issue by raising it at the trial court. See People v Hogan,
The United States Constitution prohibits cruel and unusual punishment. US Const, Am VIIL The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1, § 16. “If a punishment ‘passes muster under the state constitution, then it necessarily passes muster under the federal constitution.’ ” People v Benton,
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,
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,
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,
In Fonville,
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*234 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.
Notes
We note that Wisconsin, which, like Michigan, statutorily defines “year” as a calendar year, also has held that this definition does not apply when measuring time. Parmley, 2010 Wis App at ¶ 8 n 3.
The dissent also applies this definition for “calendar year,” but as discussed, this definition is not accurate.
An even more absurd result occurs if one considers the age difference between a defendant born on January 2, 1990, and someone born on December 30, 1995. In reality, they are only three days shy from being six years apart in age. But using the “calendar year” definition, the defendant would only be four “years” older because there are only four calendar years between their births (1991, 1992, 1993, and 1994).
Dissenting Opinion
(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
‘Tear” is a nontechnical term. Ordinarily, we would interpret it “according to the common and approved usage of the language [.]”
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
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.” Elida v Braman,
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.
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 in consensual sex, and would reverse the trial court.
Because our Legislature has defined the term “year,” the cases cited by the majority from other jurisdictions are inapposite. The legislatures of those jurisdictions have not enacted the same definitional statute.
It seems to me, however, that if the Legislature intended that every month count, it could easily have drafted the statute in terms of months, not years. See