In People v. Bosca, No. 317633, the Michigan Court of Appeals held that the trial court did not err in requiring the defendant to register as a sex offender, where the defendant was convicted of unlawful imprisonment of a minor in violation of MCL 750.349b. The Court determined that the required registration was constitutional and was proper under the 2011 version of SORA applicable in this case. Even though the underlying conduct was not of a sexual nature, registration is required because unlawful imprisonment involved a victim under the age of 18 is a listed offense.
Defendant was convicted of various offenses, including four counts of unlawful imprisonment, MCL 750.349b, stemming from an incident in which defendant and others, captured, held against their will, and assaulted four teenage boys. The boys had broken into defendant’s home seeking to rob him of marijuana that he was storing in the house. The assault did not involve any sexual contact. Nevertheless, the trial court required defendant to register as a sex offender because the unlawful imprisonment involved a victim under the age of 18.
The Court first determined that the applicable version of SORA was the 2011 amended version, which included unlawful imprisonment where the victim is a minor as a listed offense requiring registration. The Court reasoned that SORA is considered a civil remedy, not a penal statute, and consequently the version of the statute applicable at sentencing applies.
The Court relied on its decision in People v. Fonville, 291 Mich. App. 363 (2011), in which it upheld SORA registration for child enticement even though the underlying factual basis for the conviction was not sexual in nature. In Fonville, the Court reasoned that the term “sex offender” as used in SORA means someone convicted of one of the act’s listed offenses. It also looked to the federal Sex Offender Registration and Notification Act, 42 U.S.C. § 16911(5), the catalyst to 2011 amendments to SORA, which defines “sex offense” to include “a criminal offense that is a specified offense against a minor.” The Court held that registration pursuant to a conviction of unlawful imprisonment was not unconstitutional because SORA is a civil remedy and not punitive in nature.
The Court held that required registration did not violate the defendant’s substantive due process rights because registration under SORA does not implicate a fundamental right, and that it is rationally related to the legitimate state interest of protecting the public. The Court rejected the defendant’s claim that the relevant provision of SORA violated his right to due process because it was vague as applied. The Court also rejected the defendant’s contention that the provision of the act was invalid because it departed from the statute’s purpose under the Title-Object clause of the state constitution. However, the Court encouraged the legislature to revisit the provision because there “remain[ed] something troubling” about defendant being required to register when the offenses of conviction were “wholly non-sexual in nature.”
The Court also held that the trial court erroneously scored 25 points under Offense Variable 12 for contemporaneous felonious acts. Scoring was in error because under OV 12, the contemporaneous felonious act must not result in a separate conviction, but the trial court did not present any evidence that the defendant committed a felony that did not result in a separate conviction. However, since subtracting the 25 points would not alter the defendant’s guidelines range, he was not entitled to resentencing. The Court also rejected the defendant’s double jeopardy, prosecutorial error, sufficiency of the evidence, and ineffective assistance of counsel arguments.
