People of Michigan v. Nicholas James Patton
People of Michigan v. Nicholas James Patton
Opinion
*904 *428 Defendant appeals by leave granted the trial court's order denying his motion to dismiss two counts of violating the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. , on the basis that MCL 28.727(1)(h) (requiring reporting "[a]ll telephone numbers registered to the individual or routinely used by the individual"), and MCL 28.727(1)(i) (requiring reporting "[a]ll electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual"), are unconstitutionally vague. Following a preliminary examination, defendant was bound over for trial on the charged offenses. After briefing and argument of the parties on the motion to dismiss, the trial court ruled that the SORA requirements at issue are not unconstitutionally vague. The trial court also determined that defendant's ex post facto challenge was meritless and issued an order denying defendant's motion to dismiss. We affirm.
Defendant is subject to the requirements of SORA based on his conviction by guilty plea on November 18, *429 2009, to second-degree criminal sexual conduct, MCL 750.520c(2)(b) ; the offense allegedly occurred on June 26, 2009. According to testimony at the preliminary examination in this case, while defendant was on parole for that offense, his parole agent, Jeanice McConomy, received information that defendant had a cellular telephone that he was using to access the Internet, which was a violation of his parole conditions. During a home visit by McConomy on February 16, 2017, defendant initially denied having a cellular telephone. A search of defendant's person, however, revealed a cellular telephone in defendant's pocket that defendant then admitted was his. Defendant admitted that the cellular telephone could access the Internet, but he claimed that he only accessed the Internet to play games. Defendant denied accessing the Internet on the cellular telephone to visit pornographic websites. Defendant also admitted to McConomy that he did not register the cellular telephone or the cellular telephone number as required by SORA, although he did update his address and his employment. McConomy seized the cellular telephone and contacted the police to arrest defendant for a parole violation. McConomy turned the cellular telephone over to Detective Cory Peek of the Berrien County Sheriff's Department.
Detective Peek was received at the preliminary examination as an expert witness qualified in the area of forensic examination of electronic devices. Detective Peek confirmed that the cellular telephone was a "smart phone" that was capable of accessing the Internet. He used a program called Cellebrite to extract information from the cellular telephone. Detective Peek testified that he found "selfies" of defendant on the cellular telephone. He also discovered pornographic pictures, several hundred e-mails-some of which were from dating *905 websites-and an e-mail account *430 with the name Nicholas Patton associated with it. Detective Peek also discovered a second e-mail address on the cellular telephone. After this testimony, the trial court, sitting as examining magistrate, bound defendant over on both counts.
In defendant's motion to dismiss the charges, he claimed that the SORA provisions that mandated his registration of cellular telephone numbers registered to him or routinely used by him and of any e-mail accounts assigned to him or routinely used by him violated his state and federal due-process rights because the mandates were unconstitutionally vague. He also claimed that the SORA provisions were unconstitutional because they violated the Ex Post Facto Clauses of the federal and state Constitutions.
The prosecution argued that it was not relying on that part of the statutory prohibition of "routinely used" that this Court recently found unconstitutionally vague. See
People v. Solloway
,
The trial court agreed with the prosecution's arguments, noting "that particular subsection of the statute should not be tossed out because one portion was found to be unconstitutionally vague. So I have no problem with allowing the prosecution to go forward on the portion of the statute ... that is not unconstitutionally *431 vague." The trial court also concluded that the statute was not an unconstitutional ex post facto law because the SORA provisions that defendant was accused of violating did not reveal a criminal purpose. Accordingly, the trial court entered its order denying defendant's motion to dismiss. Defendant now appeals by leave granted.
I. STANDARD OF REVIEW
A trial court's decision regarding a motion to dismiss is reviewed for an abuse of discretion,
People v. Herndon
,
II. DISCUSSION
A. DUE PROCESS
We conclude that the trial court properly severed the unconstitutionally vague phrase "routinely used" from MCL 28.727(1)(h) and (i). Consequently, the trial court correctly ruled that the prosecution could continue under the "registered to" and "assigned to" portions of those SORA requirements, which were not unconstitutionally vague. We further hold that the statutory provisions did not violate the Ex Post Facto Clauses of the federal and state Constitutions.
Defendant was charged with violating the reporting requirements of SORA under MCL 28.727, which states, in pertinent part:
*906 *432 (1) ... All of the following information shall be obtained or otherwise provided for registration purposes:
* * *
(h) All telephone numbers registered to the individual or routinely used by the individual.
(i) All electronic mail addresses and instant message addresses assigned to the individual or routinely used by the individual and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system.
Our Supreme Court in
People v. Moreno
,
When interpreting statutes, this Court must ascertain and give effect to the intent of the Legislature. The words used in the statute are the most reliable indicator of the Legislature's intent and should be interpreted on the basis of their ordinary meaning and the context within which they are used in the statute. In interpreting a statute, this Court avoids constructions that would render any part of the statute surplusage or nugatory. [Quotation marks and citations omitted.]
Defendant first argues that MCL 28.727(1)(h) and (i) are unconstitutionally vague under the Due Process Clauses of the United States and Michigan Constitutions. U.S. Const., Am XIV ; Const. 1963, art. 1, § 17. When reviewing a constitutional challenge to a statute, this Court must construe it to be constitutional unless its unconstitutionality is clearly apparent.
Solloway
,
The Legislature has specifically provided for the use of severability when any part of a statute is determined to be invalid if appropriate to avoid rendering the remaining parts of the statute meaningless. To that end, MCL 8.5 states:
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.
*907
In this case, defendant argues, as he did in his motion to dismiss, that on the basis of this Court's
*434
holding in
Solloway
,
In
Solloway
, the defendant was on probation because of a conviction of fourth-degree criminal sexual conduct, and as a result, he was required to be registered under SORA.
Solloway
,
*435 In this case, the phrase "routinely used," as found in MCL 28.727(1)(h) and (i) renders those statutory provisions vague. We find the analysis in Doe ,101 F.Supp.3d at 688-713 , persuasive. Given the dictionary definition of "routinely," as discussed in that case, id . at 688, it is evident that law enforcement officers and judges could hold different views of how often a telephone number or e-mail address must be used by an individual to be "routinely used" under the statute. We thus agree with the holding in Doe and find that the provisions under which defendant was convicted are unconstitutionally vague.
Therefore, defendant's convictions for failing to comply with SORA are vacated. [ Id . at 187,891 N.W.2d 255 .]
Thus, the Solloway Court only held unconstitutionally vague the alternative part of MCL 28.727(1)(h) and (i) requiring registration of "telephone numbers" and "electronic mail addresses and instant message addresses" that are "routinely used" by the person subject to the requirements of SORA. The Solloway Court did not address or hold unconstitutionally vague the portions of MCL 28.727(1)(h) and (i) requiring registration of "telephone numbers" and "electronic mail addresses and instant message addresses" that are "registered to" or "assigned to" the person subject to the requirements of SORA. This view of Solloway is buttressed by the fact that the Court found Doe persuasive, which also only addressed the "routinely used" alternative language of MCL 28.727(1)(h) and (i). Moreover, our interpretation is further supported by the fact that the evidence against the defendant in Solloway consisted of a cellular telephone that was registered to a relative, not to the *908 defendant, and an e-mail account that was registered to the defendant's father, not to the defendant. Therefore, the prosecution in Solloway could only proceed against the defendant under the "routinely used" alternative language of MCL 28.727(1)(h) and (i). Consequently, Solloway is *436 distinguishable from the facts of the instant case because the evidence showed that defendant personally purchased the cellular telephone; in addition, there were selfies of defendant on the cellular telephone, and at least one of the e-mail addresses found on the cellular telephone was registered in defendant's name. The present case is in direct contrast to the prosecution in Solloway , which relied entirely on the "routinely used" alternative language of MCL 28.727(1)(h) and (i), and the evidence only showed that a telephone belonged to a family member and an e-mail account was registered in the name of the defendant's father.
This reasoning is further supported by the language of the statute. It uses the term "or" in separating the phrases "registered to" and "assigned to" from the phrase "routinely used." MCL 28.727(1)(h) and (i). The Legislature's use of the disjunctive term "or" evidences that there are two ways to violate the statute. See
People v. Kowalski
,
*437
The trial court in this case properly severed the invalid parts of the statute after it concluded that the "routinely used" language of MCL 28.727(1)(h) and (i) was unconstitutionally vague but that the remaining portions of the statute relating to "registered to" and "assigned to" language of the statute regarding phone numbers and e-mail and instant-message accounts was valid. See MCL 8.5 ;
People v. McMurchy
,
Moreover, Merriam-Webster's dictionary defines "registered" as "having the owner's name entered in a register" and "recorded as the owner of...." Merriam-Webster's Collegiate Dictionary (11th ed.). The same source defines "assign" as "to consider to belong to." Id . When one applies *909 these definitions to the terms as used in MCL 28.727(1)(h) and (i), it is clear that an offender subject to the SORA reporting requirements must report any telephone number that the offender is the "recorded owner of" or for which the offender's *438 name is "entered" as the owner. In this case, as discussed above, defendant admitted that he personally purchased the cellular telephone with money he had earned. Accordingly, defendant was the recorded owner of the cellular telephone number or had his name entered as the owner of the cellular telephone number. Also, defendant must report any e-mail addresses "consider[ed] to belong to" him. See MCL 28.727(1)(i) and Merriam-Webster's Collegiate Dictionary (11th ed) (defining the term "assign"). In this case, there was at least one e-mail address specifically registered to defendant by name, which must be considered to belong to defendant.
When the terms of MCL 28.727(1)(h) and (i) on which the prosecution in this case is based are considered in light of their common meaning or in consultation with dictionary definitions, it is clear that those portions of the statute are not unconstitutionally vague. See
Solloway
,
*439 Finally, the scope of MCL 28.727(1)(h) and (i) after severing the phrase "routinely used" is not so overly broad as to infringe defendant's First Amendment freedoms. Subdivision (h) only applies to telephone numbers owned or entered as being owned by defendant. And Subdivision (i) only applies to e-mail addresses considered to belong to defendant. Considering these factors in light of the facts-(1) that defendant admitted that the cellular telephone was his, (2) that he purchased the cellular telephone with his own money from his employment, (3) that there were selfies of defendant on the cellular telephone, and (4) that at least one e-mail address was directly linked to defendant by name-we conclude that the trial court correctly ruled that the prosecution in this case could be continued based on the "registered to" and "assigned to" terms of MCL 28.727(1)(h) and (i) without application of the "routinely used" provisions of the statute. We hold that because the "registered to" and "assigned to" provisions of MCL 28.727(1)(h) and (i) are separate, severable provisions, they are not unconstitutionally vague.
B. EX POST FACTO LAW
Defendant next argues that application of MCL 28.727(1)(h) and (i) violated the Ex Post Facto Clauses of the United States and Michigan Constitutions. U.S. Const, art. I, § 10 states, in relevant part, "No State shall ... pass any ... ex post facto Law...." Mich. Const. 1963, art. 1, § 10 states, "No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted."
*910
There are four categories of ex post facto laws: (1) any law that punishes an act that was innocent when the act was committed, (2) any law that makes an act
*440
a more serious criminal offense than when committed, (3) any law that increases the punishment for a crime committed before the law was passed, or (4) any law that allows the prosecution to convict a defendant on less evidence than was required when the act was committed.
People v. Callon
,
In this case, defendant originally became subject to SORA after his conviction for second-degree criminal sexual conduct in 2009. MCL 28.727(1)(h) and (i) were added to SORA by
The United States Supreme Court in
Smith v. Doe
,
whether the [L]egislature meant the statute to establish civil proceedings. If the intention of the [L]egislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the Legislature's] intention to deem it civil. [ Id . (quotation marks and citations omitted).]
Defendant cites
People v. Temelkoski
,
In
Temelkoski
, our Supreme Court concluded that the retroactive application of SORA to the defendant was contrary to principles of due process developed in the context of plea bargaining.
Temelkoski
,
Applying the principles developed under the United State and Michigan Ex Post Facto Clauses, and specifically guided by
Smith
,
Second, we conclude that MCL 28.727(1)(h) and (i) are not "so punitive either in purpose or effect as to
*443
negate [the Legislature's] intention to deem it civil."
Smith
,
In
Snyder
, the Sixth Circuit Court of Appeals addressed whether provisions of SORA constituted punishment in violation of the Ex Post Facto Clause of the United States Constitution.
Id
. at 699-700. The
Snyder
court conducted the two-step inquiry that the Supreme Court applied when analyzing whether the Alaska sex-offender registry law violated the Ex Post Facto Clause. "[T]he test we must apply ... is quite fixed: an ostensibly civil and regulatory law, such as SORA, does not violate the Ex Post Facto clause unless the plaintiff can show 'by the clearest proof' that 'what has been denominated a civil remedy' is, in fact, 'a criminal penalty[.]' "
Id
. at 700, quoting
Smith
,
In reaching its conclusion that SORA's 2006 and 2011 amendments were ex post facto laws, the Snyder court observed:
A regulatory regime that severely restricts where people can live, work, and "loiter," that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by-at best-scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska's first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information. [ Id . at 705.]
The instant case is distinguishable from
Snyder
3
because, unlike the plaintiffs in
Snyder
, defendant in this case only challenges the reporting of telephone
*445
numbers and e-mail addresses. As the above quotation from
Snyder
indicates, the court considered additional provisions of SORA-most importantly, the restriction on where offenders could live, work, and loiter, as well as the tier classification based on crime of conviction-to determine that SORA had a punitive effect. In concluding that SORA was akin to punishment, the court noted that SORA, as amended by
As just noted, with respect to the fourth "most relevant" factor, see
Snyder
,
The last of the "most relevant" factors,
Smith
,
III. CONCLUSION
In summation, we conclude that the "registered to" and "assigned to" portions of MCL 28.727(1)(h) and (i) are separate provisions that operate independently from the invalid "routinely used" portions of the statute. See MCL 8.5 ;
McMurchy
,
We further hold that although MCL 28.727(1)(h) and (i) applied retroactively to defendant, those provisions further a civil regulatory scheme and are not punitive in effect. Therefore, we hold that the "registered to" and "assigned to" provisions of MCL 28.727(1)(h) and (i) do not violate the Ex Post Facto Clauses of the federal and state Constitutions. See
Smith
,
We affirm and remand for further proceedings. We do not retain jurisdiction.
Ronayne Krause, P.J., and Riordan, J., concurred with Markey, J.
Opinions of the lower federal courts and foreign jurisdictions are not binding but may be considered persuasive. See
Abela v. Gen. Motors Corp,
"Michigan does not interpret its constitutional provision more expansively than its federal counterpart."
Callon
,
"Although state courts are bound by the decisions of the United States Supreme Court construing federal law, there is no similar obligation with respect to decisions of the lower federal courts."
Abela,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.