Sentencing; Retroactive application of the 2021 Sex Offenders Registration Act (SORA); Ex post facto laws; People v Betts; People v Lymon (Lymon I & II); People v Kiczenski

Concluding that the trial court did not abuse its discretion by holding that defendant-Cole was not entitled to removal from SORA, the court affirmed. He pled guilty to CSC I and kidnapping in 1995. He argued “that applying the 2021 SORA retroactively to him for his conduct in 1995 violates the Ex Post Facto Clause.” Specifically, he asserted that the court’s holding in Lymon “required the trial court to remove the SORA registration requirement in his sentence.” The court concluded in Kiczenski that, ‘“[l]imiting the class of offender to those with CSC-I convictions,’ the defendant failed to demonstrate by ‘the clearest proof that the 2021 SORA is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.’ This Court ultimately held that ‘the 2021 SORA does not constitute punishment as applied to CSC-I offenders’ and that ‘there is no ex post facto violation’ in the retroactive application of the 2021 SORA to the defendant, a sexual offender.” In this case, “Cole filed his brief on appeal before the Michigan Supreme Court’s decision in Lymon II and this Court’s decision in Kiczenski were released.” In Lymon II, “the Supreme Court vacated this Court’s opinion in Lymon I ‘insofar as its conclusions went beyond the consideration of non-sexual offenders’ and held that only ‘offenders whose crimes lacked a sexual component are entitled to removal from the sex-offender registry.’” In Kiczenski, the court “held that ‘the 2021 SORA does not constitute punishment as applied to CSC-I offenders’ and that ‘there is no ex post facto violation’ in the retroactive application of the 2021 SORA as to sexual offenders. Cole, who was convicted of CSC-I, is a sexual offender.” Thus, he was “not entitled to removal from the sex-offender registry.” The court noted that the trial court’s opinion and order here was issued before the court “issued its decision in Kiczenski. But we ‘will affirm a lower court’s ruling when the court reaches the right result, albeit for the wrong reason.’”