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June 16, 2016

MSC: Conviction for SORA-2 subject to sentence enhancement under HOA

The Sex Offenders Registration Act (SORA), MCL 28.729(1), outlines different punishments based on the number of times a defendant is convicted for failing to register properly as a sex offender—SORA-1 (first conviction), SORA-2 (second conviction), and SORA-3 (three or more convictions)—and each conviction is a felony.  The Habitual Offender Act (HOA) enhances the sentence of a defendant convicted of a second felony (MCL 769.10(1)(a)), and directs a court to impose a maximum sentence “that is not more than 1½ times the longest term prescribed for a first conviction of that offense.”  The Michigan Supreme Court in People v. Allen, No. 151843, held that SORA-2 is a separate offense from SORA-1, and is subject to the HOA sentence enhancement.
 
Defendant was convicted of fourth-degree sexual conduct in 2007, and he was required to register on the Michigan Sex Offender Registry semiannually for 25 years.  In February 2010, the defendant pled guilty to SORA-1, a felony, for failing to properly register.  Defendant then registered his address.  However, following an anonymous tip in January 2013, police found that the defendant was actually living at a different house belonging to his spouse, even though the terms of his probation from his SORA-1 conviction did not permit him to have any contact with her.  In June 2013, a jury convicted the defendant of SORA-2, and the trial judge sentenced the defendant to 2 to 10½ years imprisonment, applying the HOA sentence enhancement to the longest term for SORA-2.  Defendant appealed.  The Court of Appeals vacated the defendant’s sentence, finding that SORA is only one offense with increasing punishment, so that when the HOA describes the sentence enhancement as “1½ times the longest term prescribed for a first conviction of that offense,” the maximum sentence could only be 1½ times the longest term for SORA-1.  The Michigan Supreme Court disagreed with the Court of Appeals and reversed, finding that SORA-2 is a separate offense from SORA-1, so the sentencing enhancement under HOA imposes a maximum sentence of 10½ years, which is 1½ times the 7 year maximum sentence under SORA-2.
 
Two justices concurred in the result only, because they believed that the holding should have been limited to just this case.  Defendant conceded before the Court that SORA-2 is a separate felony subject to the HOA enhancement, and nothing in the language of the statutes made the result impossible.  However, the two justices would have preferred to leave open the question of whether SORA created just one offense or three separate offenses until the Court could have more briefing on the subject. 

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