FILED JUNE 30, 2011

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 141570 KENT ALLEN LEE, Defendant-Appellant.

BEFORE THE ENTIRE BENCH

C AVANAGH , J. In this case, we hold that the trial court erred when it required defendant to register

as a sex offender under the Sex Offenders Registration Act (SORA) 20 months after

defendant had been sentenced. 1 Accordingly, we reverse the judgment of the Court of Appeals, which had affirmed th e trial court’s decision to require defendant to register

under SORA.

1 We acknowledge that the Legislature amende d various provisions of SORA effective July 1, 2011. 2011 PA 17. Because the tria l court decided the rele vant issues before July 1, 2011, we analyze this case under the statutory provision s in effect when the case was decided by the trial court. Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra2 I. FACTS AND PROCEDURAL HISTORY On August 6, 2005, defendant and his wife agreed to babysit their neighbors’ two boys. Defendant prepared the children for bedtime by bathing them. Defendant’s son and the older neighbor boy went to another room after ge tting dressed for bed. The younger neighbor boy, three- year-old JW, was uncooperative as defendant attempted to diaper and dress him. According to defendant , he used his finger to flick JW’s penis in an effort to get his attention. Defendant flicked JW’s penis twice because JW did not respond to the first flick. JW cried after the second flick. Defendant was charged with second-degre e criminal sexual conduct and seconddegree child abuse with sent ence enhancement as a fourth -offense habitual offender. 2 On January 27, 2006, defendant pleaded nolo contendere to third-degree child abuse as a

second-offense habitual offender. MCL 750.1 36b(5); MCL 769.10. The parties agreed

that the trial court could use th e police report as the factual basis for the plea, and, at the plea hearing, the trial court quote d briefly from the police report. At sentencing on March 17, 2006, the pros ecution requested that defendant be required to register as a sex offender under SORA’s catchall provision, MCL 28.722(e)( xi ). In support of the registration reque st, the prosecution recited statements

from the victim advocate that defendant ha d rubbed JW’s penis and given him candy after the flicking incident. Defendant object ed, and Allegan Circuit Court Judge Harry A. Beach noted that the prosecutio n’s supporting information was not included in the record. Furthermore, Judge Beach stated that defend ant’s crime was “a rather abusive assault”

2 None of defendant’s prior convicti ons involved criminal sexual conduct.3 but not a “sex act” and conclu ded that registration under SO RA was not appropriate in light of the facts in the reco rd. Thus, Judge Beach did not require defendant to register under SORA, but left the question open, subjec t to the prosecution’s setting a hearing to take testimony regarding whet her defendant’s conduct require d registration. Judge Beach

stated that the court was reta ining jurisdiction for that purpose but i ssued a judgment of sentence that did not require registration. Approximately 20 months after the senten cing hearing, the prosecution moved for entry of an order requiring de fendant to register under SORA. Defendant objected, arguing that the procedure was improper. A hearing on the pros ecution’s motion was scheduled before Judge William A. Baillargeon because Judge Beach had retired. At the December 13, 2007, hearing, JW’s father tes tified that he had had three conversations

with defendant and that defendant had stated that he had been “bullying” JW, but had not explained what he meant by “bul lying.” Defendant te stified that he was deeply sorry for his conduct and that he had flicked JW’s peni s in a reaction to JW’s uncooperativeness. He explained that he used the term “bullyin g” to describe a grown man inflicting pain on a small boy. Defendant testified that he had not been disciplin ing JW in the sense that he had warned him that his penis would be flicke d if he did not behave and further denied that his actions were intended to injure or hum iliate JW. Finally, defe ndant stated that he

had been frustrated when the incident occurre d but not angry. No testimony or evidence was presented in support of the prosecution’s pr ior assertions at sent encing that defendant had rubbed JW’s penis and give n JW candy after the flicking. Judge Baillargeon ruled that defendant mu st register under SORA, stating that there was no procedural bar to granting th e prosecution’s motion because Judge Beach4 had reserved a decision on the SORA issue. Also, Judge Baillarg eon stated that the information used to support the plea was sufficient to show that defendant’s act was “certainly something that woul d be envisioned by the law and I think that by itself would constitute the registration that the People se ek.” Finally, Judge Baillargeon concluded that the testimony from the ev identiary hearing supported his decision to require registration under SORA becaus e the discussion about “bullyin g” rather than disciplining

“underlies and bolsters” the registration requirement. The Court of Appeals denied defendant’s application for leave to appeal, but this Court remanded the case to the Court of Appeal s for consideration as on leave granted. People v Lee , 485 Mich 914 (2009). On remand, th e Court of Appeals affirmed Judge Baillargeon’s decision to require registration under SORA. People v Lee , 288 Mich App 739; 794 NW2d 862 (2010). The Court of Appeals determined that there was no procedural bar to requiring registration, in part because registration may be imposed at any time while the trial court has jurisdicti on over a defendant. The Court of Appeals

concluded that because defendant was still on probation, the tr ial court retained jurisdiction, and, thus, Judge Baillargeon’s decision to require re gistration under SORA

was proper. Id . at 744-745. This Court granted defendant’s application for leave to appeal. People v Lee , 488 Mich 953 (2010).

II. STANDARD OF REVIEW

This Court reviews de novo lower courts ’ interpretations and applications of

statutes and court rules. Estes v Titus , 481 Mich 573, 578-579; 751 NW2d 493 (2008); Pellegrino v AMPCO Sys Parking , 486 Mich 330, 338; 785 NW2d 45 (2010).5 III. ANALYSIS Under MCL 28.723(1)(a), a defendant must register as a sex offender if the defendant is convicted of a specified “lis ted offense” as defi ned in MCL 28.722(e)( i ) through ( x ) and ( xii ) through ( xiv ). Defendant’s crime in this case, third-degree child abuse, is not a specified liste d offense. Therefore, if de fendant is to be required to register, it must be under SORA’s catchall provision, MCL 28.722(e)( xi ), which requires registration for a “violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an indi vidual who is less than 18 years of age.” With regard to applying th e catchall provision, MCL 769.1(13) explains

that [i]f the defendant is sentenced for an offense other than a listed offense as defined in section 2(d)( i ) to ( ix ) and ( xi ) to ( xiii ) [3] of the sex offenders registration act, 1994 PA 295, MCL 28. 722, the court shall determine if the offense is a violation of a law of this state or a local ordinance of a municipality of this state that by its nature constitutes a sexual offense against an individual who is less than 18 years of age. If so, the conviction is for a listed offense as defined in section 2(d)( x ) of the sex offenders registration act, 1994 PA 295, MCL 28 .722, and the court shall include the basis for that determination on the r ecord and include the determination in the judgment of sentence. Thus, if a defendant’s cr ime falls under the catcha ll provision, MCL 28.722(e)( xi ), under MCL 769.1(13), the crime is a listed offense, requiri ng registration under SORA. 4 In

3 “[S]ection 2” refers to MCL 28.722. MCL 28.722 was amende d by 2002 PA 542, effective October 1, 2002, but the cross-refe rence in MCL 769.1(13 ) was not updated to reflect the fact that the applicable pr ovisions in MCL 28.722 were relettered as subdivision (e), rather than subdivision (d), and that the catchall provision was renumbered as subparagraph ( xi ), rather than subparagraph ( x ).

4 Because we conclude later in this opinion that the trial court im properly imposed the registration requirement after sentencing and, thus, erred when it granted the6 turn, for convictions of listed offenses af ter October 1, 1995, MCL 28.724(5) provides the following with regard to SORA’s regi stration procedures: (1) the defendant “shall register before sentencing,” (2) “[t]he probati on officer or the family division of circuit court shall give the individual the registration form after the individual is convicted” and explain the individual’s duties under SORA , and (3) “[t]he court shall not impose

sentence . . . until it determines that the indi vidual’s registration was forwarded to the department [of state police] as required unde r [MCL 28.726].” Fina lly, for crimes falling under the catchall provision, MCL 769.1(13) adds additional procedural requirements regarding registration under SORA, incl uding that the court must include the

determination that the crime is a listed offe nse under the catchall provision, for which registration was therefore required, “in the judgment of sentence.” In this case, the only issue we reach is th e effect of the trial court’s failure to

include a definitive determination of defendan t’s registration status in the judgment of sentence and the subsequent 20-month delay between senten cing and the determination that defendant must register. We hold that the trial court’s decision mandating registration was erroneous because the court failed to comply with the statutory requirements. To begin with, we reject the Court of Appe als’ conclusion that the trial court “did not commit procedural error” when it ordere d defendant to register under SORA 20 prosecution’s postsentencing motion requesting that the trial court require defendant to register, we need not determin e whether, on the facts of this particular case, defendant’s crime “by its nature constitutes a sexual offe nse” sufficient to satisfy SORA’s catchall provision. MCL 28.722(e)( xi ). As a result, this opinion sh ould not be inte rpreted to hold that defendant’s conduct in this ca se was or was not a sexual offense.7 months after sentencing. The Court of App eals reasoned that the trial court retained jurisdiction over defendant because de fendant remained on probation. Lee , 288 Mich App at 744-745. However, the Court of Appeals cited no au thority in support of its conclusion and, indeed , none exists. Furthermore, it is clear that the trial cour t committed multiple procedural errors in this case. First, the trial court did not requ ire defendant to register under SORA “before sentencing” as required by MCL 28.724(5). Second, because the trial court did not impose the registration requirement until long after sentencing had occurred, the trial court did not ensure completion of the seco nd requirement of MCL 28.724(5), and, thus, both the probation officer and the family divi sion of the circuit court failed to “give [defendant] the registration form after [defe ndant was] convicted” and explain his duties under SORA. Third, when the trial court im posed defendant’s sentence without a final SORA determination, it ignored the clear directive of MCL 28.724(5) that it “ shall not impose sentence . . . until it determines that th e individual’s registra tion was forwarded to the department [of state police] as required under [MCL 28.726].” (Emphasis added.) Finally, if defendant’s conviction fell under the catchall provision, the trial court also failed to comply with MCL 7 69.1(13) when it entered the judgment of sentence without including in the judgment its determination that the crime was a listed offense for which registration was required. Although the trial court indicated in the judgment of sentence that a hearing was to be set regarding defend ant’s possible registration as a sex offender, that is not a determination regarding registra tion. Furthermore, there is no support in SORA for permitting a postsent encing hearing to make a determination regarding8 registration. Indeed, such a hearing is a cl ear violation of the registration procedures established by MCL 28.724(5). 5 As a result of these procedural errors by th e trial court, the sentence imposed in the March 20, 2006, judgment of senten ce may have been invalid. See People v Whalen , 412 Mich 166, 170; 312 NW2d 63 8 (1981) (recognizing that sentences that “do not comply with essential procedural requirements” are invalid). Thus, the pr osecution could have sought to correct the sentence because, unde r MCR 6.429(A), “[a] motion to correct an invalid sentence may be filed by either party.” 6

5 To the extent that People v Meyers , 250 Mich App 637, 640; 649 NW2d 123 (2002), implicitly endorsed such a delay when it affirmed the tr ial court’s decision to require registration under SORA 23 days after sentencing, it is overruled.

6 Because third-degree child abuse is not a specified listed offense requiring registration under SORA, and Judge Beach determined that , on the record ava ilable at sentencing, defendant’s crime did not require registration because the fact s did not satisfy the catchall provision, arguably the sentence imposed in the judgment of sentence, without a registration requirement, was valid. And, no tably, MCR 6.429(A) states that a “court may not modify a valid sentence after it has been imposed except as provided by law.” (Emphasis added.) See, also, People v Barfield , 411 Mich 700, 703; 311 NW2d 724 (1981) (stating that “a trial court cannot set aside a valid sentence and impose a new and different one, after the defendant has been re manded to jail to await the execution of the sentence”) (quotation marks and citation omitted); People v Miles , 454 Mich 90, 96; 559 NW2d 299 (1997) (“[T]he authority of the cour t over a defendant typically ends when a valid sentence is pronounced . . . .”); and People v Holder , 483 Mich 168, 177; 767 NW2d 423 (2009) (“[I]f the origin al judgment of sentence was valid when entered, MCR 6.429[A] controls . . . .”). Therefore, arguabl y, the trial court should have rejected the prosecution’s postsentencing motion to requi re defendant to register under SORA because the sentence imposed was valid and modification of a valid sentence is not permitted under MCR 6.429(A). But because we conc lude that the prosecution was not entitled to have its postconviction motion cons idered even if the sentence imposed was invalid, we will assume, for purposes of th is case, that the sentence was invalid.9 In this case, however, the time limits to bring a motion to correct an invalid sentence were long past. MCR 6.429(B) sets the time limits for a motion to correct an invalid sentence, and that court rule applie s to prosecutors and defendants alike because the statute governing appeals by the prosecution, MCL 770.12, does not indicate that the prosecution is entitled to seek relief beyond the time provided in the court rules. Because defendant entered a plea in th is case, he could only appeal by leave of the Court of Appeals. See MCR 6.302(B)(5). Therefore, in this case, MCR 6.4 29(B)(3) required that a motion to correct the sentence be brought “with in 6 months of entry of the judgment of conviction and sentence.” But the prosecuti on’s motion to require registration was filed

20 months after the judgment of sentence entered. Thus, even if the se ntence imposed in the March 20, 2006, judgment of sentence wa s invalid because of the procedural errors relating to registration under SORA, the pr osecution’s motion was untimely under MCR 6.429(B)(3), and the trial court should have denied it. Finally, it is notable that Judge Beach determined that registration under the catchall provision, MCL 28.722(e)( xi ), was not proper on the record before the trial court at sentencing. Although Ju dge Beach erroneously permitte d the prosecution to bring additional evidence at a postsentencing heari ng, see MCL 28.724(5) and MCL 769.1(13), the prosecution failed to provide any new evid ence at that hearing in support of its previous claim that defenda nt had rubbed JW’s penis a nd given JW candy after the flicking incident. Thus, Judge Baillargeon’s conclusion that the in formation used to support the plea alone was sufficient to re quire registration under SORA’s catchall provision was in direct conflict with Judge Beach’s previous de termination that the

information used to support the plea did not support the prosecution’s request for10 registration. In accordance with the essence of the general rule favoring sentencing by the judge who accepts a plea, 7 Judge Beach’s findings shou ld have been afforded substantial deference. Indeed, in a case proce durally similar to this one, this Court stated that for a successor trial judge “[t]o sentence a prisoner to the penite ntiary . . . when the [previous] trial judge has distinctly said he ought not to be so sent enced, is not supplying his omissions, but is overruling his decision.” Weaver v People , 33 Mich 296, 298 (1876). Just as th e successor judge in Weaver erred by overru ling the predecessor judge’s determination rather than merely correcting an omission, Judge Baillargeon’s determination regarding regi stration under SORA imprope rly overruled Judge Beach’s previous decision in light of the prosecutio n’s failure to provide any new evidence or support for its previous claim that defendant had rubbed JW’s penis and given JW candy after the flicking incident.

IV. CONCLUSION Under MCL 769.1(13) and MCL 28.724(5), a trial court must, before imposing a sentence, satisfy multiple requirements in order to properly require a defendant to register

as a sex offender. Because the trial court in this case failed to satisfy those statutory requirements, its subsequent decision at a po stsentencing hearing held 20 months after

7 See, e.g., People v Pierce , 158 Mich App 113, 115; 404 NW2d 230 (1987), citing People v Clemons , 407 Mich 939 (1979). Th is general rule recognizes that the judge who accepts a defendant’s plea is in the best positi on to ensure that a defendant’s sentence is “based upon the circumstances esta blished at the time of the plea,” Pierce , 158 Mich App at 115-116, so that, consistently with the “modern view of sent encing,” the sentence imposed is “tailored to the particular circ umstances of the case and the offender,” People v McFarlin , 389 Mich 557, 574; 208 NW2d 504 (1973).11 the sentence was entered to require regist ration was erroneous. Furthermore, the prosecution failed to bring a motion to correct the arguably invalid sentence within the time limit provided in MCR 6. 429(B)(3). Accordingly, we reverse the judgment of the Court of Appeals and vacate the trial court’s order requiring defendan t to register under

SORA.

Michael F. Cavanagh Robert P. Young, Jr. Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra