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Blogs | November 9, 2015
2 minute read

MSC to determine whether defendant convicted more than once under SORA may also have sentenced enhanced as habitual offender

The Michigan Supreme Court, in People v. Allen, No. 151843, has granted the defendant’s leave to appeal on the issue of whether a court may use two independent statutes to increase the sentence of a habitual offender of the Sex Offender Registration Act (SORA).  The trial court increased defendant’s statutory sentence to seven years using the repeat offender provision under SORA, and enhanced defendant’s sentence under the general habitual-offender provision in MCL 769.10(1)(a) The Court of Appeals held that only the sentence enhancement in SORA should have been applied and vacated the defendant’s sentence and remanded for resentencing .

The defendant was convicted by a jury of failing to comply with SORA.  Under a section of SORA, MCL 28.279(1)(b), an individual who violates SORA and has one prior conviction for a violation of SORA, may be punished by imprisonment for a maximum of 7 years. The trial court applied this section to increase the defendant’s conviction to the 7 year statutory maximum.  Nevertheless, the trial court further enhanced the defendant’s sentence under the general habitual-offender provision in MCL 769.10(1)(a), which provides that a court may sentence a person who has been convicted of a subsequent felony to imprisonment for a maximum term that is not more than 1-1/2 times the longest term prescribed for a first conviction of that offense.  The trial court sentenced the defendant to a maximum term that was 1-1/2 times 7 years.

The Court of Appeals vacated the defendant’s sentence finding that the trial court erred when it did not follow the plain language of MCL 769.10(1)(a) by enhancing the statutory maximum of 7 years imprisonment from defendant’s subsequent offense rather than his first conviction of that offense.  Thus, the Court of Appeals found the defendant’s maximum sentence should be 6 years imprisonment (i.e. 1-1/2 times 4 years, the longest term proscribed for a first conviction for violation of SORA).  Furthermore, the Court of Appeals held that given that the maximum prison sentence proscribed under SORA and MCL 769.10(1)(a) were in direct conflict (7 years versus 6 years, respectively), the specific enhancement statute will prevail to the exclusion of the general one.  Thus, MCL 28.279(1)(b), which applies specifically to SORA convictions would control over MCL 769.10(1)(a), which applies to convictions generally.

The Michigan Supreme Court granted defendant’s application for leave to appeal the judgment.