PEOPLE v GOLBA
Docket No. 262261
Court of Appeals of Michigan
January 16, 2007
273 Mich App 603
Submitted November 8, 2006, at Grand Rapids. Decided January 16, 2007, at 9:05 a.m. Leave to appeal sought.
PEOPLE v GOLBA
Docket No. 262261. Submitted November 8, 2006, at Grand Rapids. Decided January 16, 2007, at 9:05 a.m. Leave to appeal sought.
Thomas I. Golba was charged in the Berrien County Trial Court, Criminal Division, with one count of possession of child sexually abusive material,
The Court of Appeals held:
1. The trial court did not err by requiring the defendant to register as a sex offender. SORA requires an individual convicted of a listed offense to register. A violation of
2. The order requiring the defendant to register as a sex offender did not violate his due process rights or right to a jury trial. The United States Supreme Court has held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Ordering compliance with SORA, however, is not a punishment and thus does not violate this rule.
Affirmed.
WHITE, J., dissenting, disagreed that the offense of which the defendant was convicted falls within the catchall definition of “listed offense.” The offense does not by its nature constitute a sexual offense. There was also evidence that the defendant committed a violation of
CRIMINAL LAW - SEX OFFENDERS REGISTRATION ACT - LISTED OFFENSES.
The listed offenses for which convicted individuals are required to register under the Sex Offenders Registration Act include any violation of a state law or local ordinance that by its nature constitutes a sexual offense against an individual who is less than 18 years of age; conduct violating a state law or ordinance that has inherent qualities pertaining to or involving sex fits this definition; for a statute that can also be violated by conduct that is nonsexual in nature, whether the offense is by its nature a sexual offense depends on the individual‘s conduct that formed the basis of the conviction, and the court must determine at sentencing whether the offense is a listed offense under the catchall definition (
Law Offices of Tat Parish, P.L.L.C. (by Tat Parish), for the defendant.
Before: O‘CONNELL, P.J., and WHITE and MARKEY, JJ.
MARKEY, J. Defendant was charged with one count of possession of child sexually abusive material,
Defendant first argues that he was convicted of a computer crime under
SORA requires an individual who is convicted of a listed offense after October 1, 1995, to register as a sex offender.
clarification of this catchall provision, the Code of Criminal Procedure, which governs the imposition of sentences, provides:
If the defendant is sentenced for an offense other than a listed offense as defined in section 2(d) (i) to (ix) and (xi) to (xiii) of the sex offenders registration act, 1994 PA 295,
MCL 28.722 , the court shall determine if the offense is a violation of a law of this state or a local ordinance of a municipality of this state that by its nature constitutes a sexual offense against an individual who is less than 18 years of age. If so, the conviction is for a listed offense as defined in section 2(d)(x)2 of the sex offenders registration act, 1994 PA 295,MCL 28.722 , and the court shall include the basis for that determination on the record and include the determination in the judgment of sentence. [MCL 769.1(13) .]
Except when an individual is convicted of certain offenses not applicable here, a person required to register as a sex offender
Defendant was charged with possession of child sexually abusive material,
A person shall not intentionally and without authorization or by exceeding valid authorization do any of the following:
(a) Access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.
A violation of
This Court has opined that the plain language of the SORA catchall provision at issue requires the simultaneous existence of three conditions before a person must register as a sex offender: (1) the defendant must have been convicted of a state-law violation or a municipal-ordinance violation, (2) the violation must, “by its nature,” constitute a “sexual offense,” and (3) the victim of the violation must be under 18 years of age. Meyers, supra at 647.
Regarding the first element, defendant does not dispute that he was convicted of the state-law violation of accessing or allowing access to a computer without authorization.
With respect to the second element necessary to invoke the SORA catchall provision, the Meyers Court noted that the Legislature “did not define what it meant by a violation that, ‘by its nature,’ constitutes a ‘sexual offense.’ ” Meyers, supra at 647. The Meyers Court observed that a dictionary definition of the
phrase “by its nature” suggests that it means “according to ‘inherent qualities.’ ” Id., citing Random House Webster‘s College Dictionary (1997), p 872. Further, “[a] ‘sexual offense’ is the legal ‘transgression’ that is ‘of or pertaining to sex.’ ” Meyers, supra at 647, citing Random House Webster‘s College Dictionary (1997), pp 907, 1185. The Court concluded that “[t]here can be no debate that conduct violating a state criminal law or municipal ordinance that has inherent qualities pertaining to or involving sex fits this second element.” Meyers, supra at 647-648.
In Meyers, the 64-year-old defendant accessed an Internet chat room and entered into a discussion with a person he believed to be a 12-year-old girl. Their two-hour discussion concerned oral sex, which the defendant hoped to obtain from the girl. In reality, the defendant was conversing with an adult police officer. Id. at 638-639. The defendant
“(1) A person shall not use the internet or a computer, computer program, computer network, or computer system to communicate with any person for the purpose of doing any of the following:
* * *
“(b) Committing, attempting to commit, conspiring to commit, or soliciting another person to commit conduct proscribed under section 145a, 157c, 350, 411h, or 411i.” [Meyers, supra at 639, quoting
MCL 750.145d , as amended by 1999 PA 235.]
The prosecution‘s theory in Meyers was that the defendant had used the Internet to attempt to commit an act in violation of
639. The defendant pleaded guilty to the charge. At his sentencing hearing, the defendant argued that, because he did not commit a listed offense, he was not required to register as a sex offender under SORA. The trial court rejected the defendant‘s argument and ordered him to comply with SORA. On appeal, this Court affirmed the trial court‘s decision. This Court observed that to be convicted of violating
At first blush, this possibility—that the conduct that each of these statutes prohibits might not require a sexual
[a]ny person who shall accost, entice, or solicit a child under the age of 16 years with intent to induce or force said child to commit an immoral act, or to submit to an act of sexual intercourse, or an act of gross indecency, or any other act of depravity or delinquency, or shall suggest to such child any of the aforementioned acts, shall on conviction thereof be deemed guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year.
component—suggests that these are not statutes that encompass inherently sexual offenses. However, by referring to “sexual offenses,” rather than “sexual offense statutes,” the language of
MCL 28.722(d)(x) 4 directs us to examine the unique nature of the criminal conduct underlying the charge that the defendant violated a state law or municipal ordinance to determine whether the criminal conduct was inherently sexual. Only the facts of the individual “offense” itself will reveal whether the stalking, kidnapping, felony inducement, or accosting offense was inherently sexual, as this second element requires. In this case, there is no question that Meyers’ online discussion was, “by its nature,” sexual in that it specifically involved graphic discussions of oral sex, which Meyers hoped to obtain from the person with whom he was conversing over the Internet. [Id. at 648-649 (emphasis added).]
As in Meyers, we recognize that conduct that is nonsexual in nature may violate
Moreover, we find additional support for the Meyers holding that whether an offense is “by its nature... a sexual offense” within the meaning of
In the present case, the evidence introduced at trial supported the trial court‘s findings that defendant
violated the school‘s computer acceptable use policy by downloading pornography on his school computer and that he viewed the pornography on the computer in the presence of a 16-year-old female student. The evidence also supported the trial court‘s finding that defendant used the computer to solicit sex from the student. The student received sexually explicit e-mails from an e-mail address that defendant admitted was his. The e-mails, which were sent to the student‘s e-mail address, graphically described sexual acts and contained explicit
Furthermore, the trial court did not clearly err in determining that defendant‘s conduct in violation of
explicit e-mails to a 16-year-old female student and solicited sex from her, in violation of the school‘s computer policy and in violation of
We reject defendant‘s argument that because the jury did not find him guilty of possession of child sexually abusive material, the trial court erred in considering the evidence regarding the child pornography found on his computer in determining whether the conviction for unauthorized access to computers constituted a sexual offense. Defendant misplaces reliance on Koetje v Kent Co Prosecutor‘s Office, unpublished opinion per curiam of the Court of Appeals, issued June 7, 2005 (Docket No. 252343). First, Koetje is an unpublished opinion that lacks binding precedential effect under the rule of stare decisis. MCR 7.215(C)(1). Second, Koetje is distinguishable from the instant case. In Koetje, contrary to the instant case, there was no evidence in the record to support the trial court‘s finding that the defendant engaged in sexual misconduct.
In addition, the jury in this case did not acquit defendant of the charge of possession of child sexually abusive material. Rather, the jury could not agree on a
verdict on the charge, and the trial court declared a mistrial on that count. Although an acquittal or conviction is considered an adjudication on the merits, a mistrial is ” ‘[a] trial that the judge brings to an end, without a determination on the merits....’ ” People v Grace, 258 Mich App 274, 280; 671 NW2d 554 (2003), quoting Black‘s Law Dictionary (7th ed). When a court declares a mistrial, “there has not been an assessment of the sufficiency of the prosecution‘s proofs.” People v Mehall, 454 Mich 1, 5; 557 NW2d 110 (1997).
We also reject defendant‘s argument that the trial court‘s determination that he committed a sexual offense was based on an improper assumption of guilt on the charge of possession of child pornography. A sentence is invalid when it is based on improper assumptions of guilt. People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). But this is because a sentence must be based on accurate information. Id. A trial court may consider facts concerning uncharged offenses, pending charges, and even acquittals, provided that the defendant is afforded the opportunity to challenge the information and, if challenged, it is substantiated by a preponderance of the evidence. People v Ewing (After Remand), 435 Mich 443, 446; 458 NW2d 880 (1990) (BRICKLEY, J.); id. at 473 (BOYLE, J.); People v Coulter (After Remand), 205 Mich App 453, 456; 517 NW2d 827 (1994). Further, as here, the trial court may consider at sentencing evidence admitted during the trial. People v Compagnari, 233 Mich App 233, 236; 590 NW2d 302 (1998); People v Gould, 225 Mich App 79, 89; 570 NW2d 140 (1997). Moreover, as discussed earlier, there was sufficient evidence, even without considering the allegations that defendant possessed child pornography, to support the trial court‘s finding that defendant committed a sexual offense.
Next, defendant argues that by ordering him to register under SORA, the trial court impermissibly violated his Fifth Amendment right to due process of law and his Sixth Amendment right to a jury trial, as enforced against states by the Fourteenth Amendment. Specifically, defendant relies on the rule enforcing those constitutional rights stated in Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and quoted in Blakely v Washington, 542 US 296, 301; 124 S Ct 2531; 159 L Ed 2d 403 (2004): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Defendant contends that the trial court violated this rule by ordering defendant to register under SORA, which has a 25-year-compliance requirement, on the basis of facts that the court found but the jury did not. We disagree that the trial court‘s fact-finding violated the Apprendi-Blakely rule. We review constitutional issues de novo. In re Ayres, 239 Mich App 8, 10; 608 NW2d 132 (1999).
Because the trial court clearly made additional findings of fact beyond those made by the jury in ordering defendant to register under SORA, the crux of the issue presented here is whether compliance with SORA is a “penalty” within the meaning of the Apprendi-Blakely rule. In applying this rule, “the relevant inquiry is one not of form, but of effect—does the required [judicial fact-] finding expose the defendant to a greater punishment than that authorized by the jury‘s guilty verdict?” Apprendi, supra at 494. The prosecution argues that compliance with SORA is not a punishment and, therefore, does not increase a defendant‘s maximum sentence in violation of the Apprendi-Blakely rule. Defendant argues that the prosecution mistakenly relies on caselaw in other contexts holding that compliance with
SORA is not a punishment. He argues that the issue is one of first impression. Although we agree that the issue defendant raises has not yet been decided by a Michigan appellate court, we conclude that compliance with SORA is not a punishment and, therefore, that ordering defendant
Both this Court and federal courts have reviewed and rejected a number of constitutional challenges to SORA. In Doe v Kelley, 961 F Supp 1105 (WD Mich, 1997), the United States District Court for the Western District of Michigan determined that SORA did not violate the Ex Post Facto Clause or the Double Jeopardy Clause, deprive persons subject to its requirements of liberty or property without due process of law, or violate privacy rights. Nor did SORA impose cruel and unusual punishment or constitute an unlawful bill of attainder. The United States District Court for the Eastern District of Michigan rejected similar challenges to SORA and also determined that SORA violates neither the Equal Protection Clause of the Fourteenth Amendment nor substantive due process. Lanni v Engler, 994 F Supp 849 (ED Mich, 1998). In analyzing the asserted constitutional claims, these two federal courts were required to examine whether SORA was a form of criminal punishment. For example, in reviewing the double jeopardy claim, the issue was whether compliance with SORA had the effect of imposing multiple criminal punishments for the same offense. Lanni, supra at 852. As Judge McKeague explained, the ex post facto, double jeopardy, cruel and unusual punishment, and bill of attainder constitutional challenges “essentially devolve[] into a determination of one question: whether retroactive application of the [public] notification provisions [of SORA] constitutes ‘punishment.’ ” Kelley, supra 1108. The court noted that in the context of
criminal justice, “punishment, generally, is the deliberate imposition, by some agency of the state, of some measure intended to chastise, deter or discipline an offender.” Id. Both federal courts found that SORA was not punitive, but was a remedial regulatory scheme furthering a legitimate state interest. Kelley, supra 1110; Lanni, supra at 854. “[T]he purpose of the act was to protect the public, and not to punish sex offenders.” Id. at 855. In sum, both federal courts determined that any detrimental effects of SORA on sex-offender registrants were not so significant as to warrant finding that the act imposed a criminal penalty affecting constitutional rights. Id.; Kelley, supra 1110-1112.
The first published opinion of this Court to address a constitutional challenge to SORA adopted the reasoning of Kelley and Lanni. Ayres, supra at 18 (“We agree with both Kelley, supra, and Lanni, supra, and adopt their analyses as our own.“). Subsequent panels of this Court also adopted the reasoning of the Kelley and Lanni courts regarding constitutional challenges to SORA. See In re Wentworth, 251 Mich App 560, 565; 651 NW2d 773 (2002) (“We likewise agree with the Lanni court that no due process rights are implicated by the SORA. The SORA did not deprive [the] respondent of liberty.... Injury to a person‘s reputation is not a protected liberty or property interest.“), and People v Pennington, 240 Mich App 188, 197; 610 NW2d 608 (2000) (“We agree with the analyses in both Lanni, supra, and Kelley, supra, and adopt their reasoning as our own.“).
In Ayres, a case involving an adjudication of a juvenile for second-degree criminal sexual conduct, the Court considered whether requiring the respondent to register under SORA as a sex offender constituted cruel
or unusual punishment under the Michigan Constitution,
In Pennington, this Court addressed whether the requirements of SORA amounted to a criminal punishment within the context of a double jeopardy challenge. The defendant was convicted and sentenced for a listed offense, first-degree criminal sexual conduct, before the effective date of SORA. The defendant contended that requiring him to comply with the act violated the ex post facto clauses of both the Michigan and United States constitutions. Pennington, supra at 191 n 1. In particular, the defendant argued that SORA was an ex
post facto law as applied to him because it increased the punishment for a crime committed before the effective date of the act. Pennington, supra at 192. Thus, the issue whether SORA‘s requirements impose a criminal penalty was squarely presented in Pennington. The Court, agreeing with and adopting the analysis of Lanni and Kelley, concluded that SORA is directed at protecting the public with no punitive purpose; therefore, it does not violate the constitutional prohibitions against ex post facto laws. Pennington, supra at 197.
In Wentworth, this Court again addressed a due process challenge to SORA with respect to the adjudication of a juvenile for a listed offense. Wentworth, supra at 561, 563. Although the Court found the application of SORA to juvenile sex offenders to be “draconian,” the Court nevertheless held that the act did not unconstitutionally deprive the respondent of a liberty or privacy interest. Id. at 568. Specifically, the Court
conclude[d] that the requirements of the SORA are not an unconstitutional infringement of respondent‘s protected liberty, property, or privacy interests, and that the state is not required to engage in due process beyond that afforded in respondent‘s juvenile court proceedings before including information about respondent in the public database of registered sex offenders. [Id. at 567.]
Other courts reviewing the constitutionality of SORA have also upheld the act. SORA does not violate a defendant‘s procedural due process rights. Fullmer v Michigan Dep‘t of State Police, 360 F3d 579, 582 (CA 6, 2004). A defendant does not have a legitimate privacy interest in preventing the compilation and dissemination of truthful information that is already a matter of public record. Akella v Michigan Dep‘t of State Police, 67 F Supp 2d 716, 728-730 (ED Mich, 1999). Further,
SORA does not violate a defendant‘s
From our analysis of SORA and the cases addressing its constitutionality, some principles emerge that apply to our determination whether judicial fact-finding regarding SORA violates the Apprendi-Blakely rule. First, SORA does not impose a penalty in the form in which criminal statutes generally express maximum penalties. That is, SORA does not affect a person‘s liberty by imposing additional confinement beyond the statutorily authorized maximum penalty. Nor does SORA improperly deprive a person convicted of a listed offense of property by imposing an additional fine beyond the statutorily authorized maximum penalty. Second, the prior decisions of this Court, which we must follow, and the federal courts’ analyses that this Court has adopted have concluded that SORA does not impose a penalty or punishment as a sanction for a criminal violation, that is, that it is not “the deliberate imposition, by some agency of the state, of some measure intended to chastise, deter or discipline an offender.” Kelley, supra at 1108. Rather, SORA is a remedial regulatory scheme furthering a legitimate state interest of protecting the public; it was not designed to punish sex offenders. Kelley, supra at 1110; Lanni, supra at 854-855. Consequently, we conclude that judicial fact-finding in applying SORA does not violate defendant‘s constitutional rights to a jury trial and due process of law as announced by the Supreme Court in Apprendi, supra at 490: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”6
We affirm.
O‘CONNELL, P.J., concurred.
WHITE, J. (dissenting). I respectfully dissent. I am unable to agree that defendant was properly required to register under the Sex Offenders Registration Act (SORA). The offense of which defendant was convicted—unauthorized
The jury failed to convict defendant of possession of child sexually abusive material. I do not agree that
Regarding the offense of which defendant was convicted, unauthorized access to computers, the offense does not by its nature constitute a sexual offense. Further, unlike the situation in People v Meyers, 250 Mich App 637; 649 NW2d 123 (2002), there was evidence in this case to support that the offense was committed in a manner that had nothing to do with a sexual offense: defendant admitted that he allowed students and another teacher to use his user name and password, which was contrary to the computer use policy, and that he asked the student witness to install a file-sharing program on his computer. While there was testimony from which one could conclude that the offense was committed in a fashion that did involve sexual aspects, it is impossible to determine on which basis the jury concluded that the offense had been committed, especially when the jury was unable to reach agreement on the other charge. Under these circumstances, I am unable to agree that defendant was convicted of an offense that by its nature constitutes a sexual offense and must conclude that the court erred in determining that defendant is required to register under the SORA.