People v. Allen
Docket No. 151843
Trial Lawyers' Bottom Line: SORA creates three separate offenses, so a court can use HOA to sentence a SORA-2 offender to 1.5-times the maximum sentence. Court suggests HOA can be used for any statutory scheme with sentence enhancements for repeat offenders, unless there's an explicit carveout.
The Sex Offender Registration Act (SORA), MCL 28.729, spells out maximum sentences for failure to register as a sex offender. Failure to do so once is a maximum of four years (SORA-1); twice is a maximum of seven years (SORA-2); and three times is a maximum of ten years (SORA-3). Allen was convicted twice, but the trial court used the Habitual Offender Act (HOA), MCL 769.10—which allows a court to sentence a person convicted of two felonies to 1.5-times the maximum sentence of the second offense—to sentence Allen to 10.5 years in prison. (Aside: MCL 769.11 and MCL 769.12 apply to people convicted of three and four felonies respectively.) The Court of Appeals reversed the sentence and held that a court could not use HOA to exceed the maximums listed in SORA. In its opinion, the Court of Appeals stated that “the two statutes irreconcilably conflict.”
Justice Zahra, writing for a five-judge majority, highlighted the language in HOA that allowed for statutes to expressly prohibit the application of HOA. And SORA is not one of those statutes. The Court pointed out that when the Legislature wants to exclude statutes from HOA’s reach, it knows how to do so: the Legislature did just this with the former Controlled Substances Act. Thus, there is no statutory bar to applying HOA to SORA offenses.
The Court held that SORA proscribes three different offenses. In other words, SORA-2 is its own offense; it is not just violating SORA twice. And when Allen was convicted of his second felony (SORA-2), the court was permitted to use HOA to sentence him to 1.5-times the maximum sentence of the SORA-2 offense. The Court analogized this to the offenses that listed sentence enhancements for multiple convictions of driving while intoxicated. This suggests that HOA applies to any statutory scheme that delineates sentence enhancements for repeat offenders—unless the Legislature explicitly stated HOA does not apply.
Justice Viviano concurred in judgment only, and Justice Bernstein joined. Their chief concern was to limit the Court’s decision to a narrow holding; there is nothing jurisprudentially significant in the concurrence. Justice Viviano wrote that because Allen conceded that SORA-2 was a separate offense, the Court should only have affirmed. Instead, the majority went ahead to declare that the SORA offenses are always subject to HOA, even though Allen provided no briefing on the issue.