Separate hearing to determine if defendant was “sexually delinquent” under MCL 767.61a; Double jeopardy; Convictions of indecent exposure by a sexually delinquent person & aggravated indecent exposure; Sentencing

The court held that because defendant-Gray “did not plead guilty or no contest and because the question as to whether he was a sexually delinquent person was determined by the jury, the trial court did not err by not holding a separate hearing on the matter.” In the wake of the prosecution’s concession that a double jeopardy violation occurred, the court rejected its argument that “the sentencing enhancement applied to the indecent exposure conviction for being a sexually delinquent person should be applied to Gray’s conviction for aggravated indecent exposure.” He first argued that the trial court erred in not conducting “a separate hearing to determine if he was ‘sexually delinquent’ under MCL 767.61a.” The court noted the “statute expressly provides that when a defendant pleads guilty to both the underlying sexual offense and the charge of being a sexually delinquent person, the trial court must ‘conduct an examination of witnesses relative to the sexual delinquency of such person and may call on psychiatric and expert testimony.’” It must also do so when a “defendant pleads no contest to both charges.” The trial court here “did not hold a separate hearing” but the record showed “the jury was instructed to determine both his guilt as to the underlying sexual offense and to the charge that he was a sexually delinquent person.” As to double jeopardy, the prosecution conceded on appeal that his indecent exposure conviction should be vacated. But it suggested that applying the sentencing enhancement was appropriate. The court noted that “the felony complaint clearly lists two offenses: indecent exposure by a sexually delinquent person and aggravated indecent exposure. Further, the jury was presented with” these two counts. Thus, the record clearly showed “that the sexual-delinquency sentencing enhancement was tied to the charge of indecent exposure, not the charge of aggravated indecent exposure. Because the charge to which the indecent exposure conviction was attached must be vacated in order to remedy the double-jeopardy violation, there is no conviction to which the sexual-delinquency sentencing enhancement may now be applied.” The court vacated his indecent exposure by a sexually delinquent person conviction but otherwise affirmed.