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

C O U R T O F A P P E A L S

In re MICAH MELCHIZEDEK DANIEL, Minor.

PEOPLE OF THE STATE OF MICHIGAN,

Petitioner-Appellant,

and

ATTORNEY GENERAL,

Amicus Curiae,

UNPUBLISHED

September 12, 2017

v No. 334057

Washtenaw Circuit Court

MICAH MELCHIZEDEK DANIEL, Family Division

LC No. 15-000375-DL

Respondent-Appellee.

Before: HOEKSTRA, P.J., and METER and K. F. KELLY, JJ.

PER CURIAM.

Petitioner appeals by right a dispositional order, which exempted respondent from 

registering as a sex offender under the Sex Offenders Registry Act (SORA), MCL 28.721 et seq. 

We reverse.

I. BASIC FACTS

The 15-year-old complainant was a resident at the Washtenaw County Detention Facility. 

She performed oral sex on 16-year-old T.B., who was also a resident at the facility. In a forensic 

interview, complainant indicated that while she was performing oral sex on T.B., respondent 

groped her buttocks from behind. Respondent also forced complainant’s head down on T.B.’s 

ejaculating penis. The interviewer asked for clarification on a few points and included the 

following in her forensic interview report:

[Complainant] clarified that [respondent] was the one who pushed her head down 

when [T.B.] was almost done. She said she saw him move his hand and then he 

started laughing so hard, he had to leave the room. [Complainant] said 
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[respondent] was also grabbing her butt when she was giving [T.B.] head. She 

said she told him to stop and pushed his hand away, but he kept doing it. 

***

I told [complainant] that she had told me part was consensual and part was not. I 

asked what part was not consensual. She said the part with [respondent] grabbing 

her butt and pushing down her head. She said everything with [T.B.] was 

consensual. I asked what [T.B.] said when [respondent] pushed her head. 

[Complainant] said she thinks he laughed, but that was because she got it on her 

face. 

The interviewer asked complainant what she wanted to “see happen” with the investigation. 

Complainant said “she didn’t want any charges to be pressed. She is not mad about what 

happened with [T.B.], but she is mad about [respondent] shoving her head down.” 

Following the investigation, respondent pleaded responsible to third-degree criminal 

sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with a person 13 years of age 

and under 16 years) for aiding and abetting oral sex, and fourth-degree criminal sexual conduct 

(CSC-IV), MCL 750.520e(1)(b) (sexual contact through force or coercion), for touching the 

complainant. Respondent’s CSC-III charge was a “Tier III offense,” for which registration as a 

sex offender was required under MCL 28.723. Respondent was required to register as a sex 

offender unless “the court determines that the victim consented to the conduct constituting the 

violation, that the victim was at least 13 years of age but less than 16 years of age at the time of 

the offense, and that the individual is not more than 4 years older than the victim.” MCL 

28.722(w)(iv).

Respondent asked to be exempted from the SORA registration requirement. Petitioner 

filed a response, noting that the victim had not consented to respondent’s conduct, noting that 

complainant specifically reported that respondent’s acts of groping her buttocks and forcefully 

pushing her head down on to T.B.’s penis were non-consensual. 

At a hearing on the issue, respondent acknowledged that there was no legal or factual 

basis for his position. Still, the lower court concluded:

[W]hen statutes are written I think you can necessarily not anticipate every 

scenario there is going to be and . . . I imagine this is one of the scenarios 

everyone wouldn’t – no one would have put . . . in the forefront of their mind 

when writing the statute. I think that it’s clear from the statement . . . from the 

Complainant that the sexual act on the co-Respondent was consensual. 

[Respondent] then put his hand on her head, she said that touching was not 

consensual . . . but I am convinced with the fact that she consented to the sexual 

act which is what the purpose of the Sex Offender Registry is . . . that I am 

finding . . . that she consented to the conduct and that [respondent] is not required 

to register.

Um – I don’t think this is the kind of conduct they intended to have 

register and the fact that they put in the exception – the so-called Romeo and 
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Juliet exception . . . – that it is much more conduct that falls under that exception 

to the Registry than it is . . . the other. So I am not going to require that he 

register. 

***

So it is a dispositional order . . .and all it’s gonna say is plea accepted, . . . the 

Court finds that the complainant consented to the conduct . . . 

The lower court entered a final order of disposition and closed the case. Petitioner appeals as of 

right.

II. WHETHER RESPONDENT’S CONDUCT EXEMPTED HIM FROM REGISTERING

The prosecution argues that the lower court erred in exempting respondent from 

registering as a sex offender where respondent’s actions could not be considered consensual. We 

agree. “The construction and application of SORA . . . presents a question of law that is 

reviewed de novo on appeal.” People v Anderson, 284 Mich App 11, 13; 772 NW2d 792 (2009). 

“Additionally, this Court reviews the underlying factual findings of the trial court at sentencing 

for clear error.” Id. (quotation marks omitted). “Clear error exists when the reviewing court is 

left with the definite and firm conviction that a mistake has been made.” Id., quoting People v 

Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993).

Where a juvenile aids or abets in the commission of an offense, he may be convicted and 

punished as if he directly committed the offense, see MCL 767.39, and “[t]he prosecution needs 

only to prove that the underlying crime was committed by someone and that the respondent 

either committed or aided and abetted in the commission of that crime.” In re McDaniel, 186 

Mich App 696, 699–700; 465 NW2d 51 (1991). Pursuant to MCL 750.520d(1)(a), “[a] person is 

guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration 

with another person and if any of the following circumstances exist . . . That other person is at 

least 13 years of age and under 16 years of age.” There is no question that when T.B. engaged in 

oral sex with complainant, complainant was 15 years old. Respondent does not dispute that he 

was properly adjudicated for aiding and abetting T.B. in committing the offense. Under normal 

circumstances, the Tier III offense would require respondent to register as a sex offender. 

However, there is an exception to the registration requirement if “the court determines that the 

victim consented to the conduct constituting the violation, that the victim was at least 13 years of 

age but less than 16 years of age at the time of the offense, and that the individual is not more 

than 4 years older than the victim.” MCL 28.722(w)(iv). At issue is whether complainant 

consented to the conduct.

Respondent asked to be exempted from the SORA registration requirement. Petitioner 

filed a response, noting that the victim had not consented to the conduct, relying upon the 

forensic interview summary in which complainant specifically reported that respondent’s acts of 

groping her buttocks and forcefully pushing her head down on T.B.’s penis were non-consensual. 

At the hearing, respondent’s attorney specifically admitted:

I have received the Petitioner’s brief . . .regarding this issue. Um – we don’t 

have a formal response to that, in fact we would concede that the law and the facts 
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of this case are . . . accurately stated in that brief. . . . I have looked into and 

researched this issue extensively regarding – and this is kind of a strange case 

where you have the principal actor who there was consent for then you have an 

aider and abettor who there was not consent . . .with and . . . whether or not the 

aiding and abetting individual takes on the state of mind of the principal. . . .[I] 

did not find anything in that light and certainly the language of the statute which 

refers to the conduct which . . . encompasses the violation of the statute has to be 

consensual, . . . we don’t intend to put on any proof today to refute the 

complaining witnesses [sic] statement on that issue.

[T]his is a very unfortunate result. . . .[Respondent] is going to have to 

undergo in terms of registration . . . but we don’t have a legal or factual argument 

that his particular conduct was consensual in this instance. It creates a situation 

where his consequences are much greater than his co-[respondent] . . .but . . . 

such is the law as I understand it.

In spite of defense counsel’s acknowledgement that there was neither legal nor factual 

support for his position, the lower court concluded “that the sexual act on the co-Respondent was 

consensual” and “the fact that she consented to the sexual act which is what the purpose of the 

Sex Offender Registry” exempted respondent from having to register. But clearly respondent did 

not meet his burden of proving an exemption, as was his obligation under MCL 28.723a(1). The 

lower court concluded that SORA had not contemplated the situation before it and impermissibly 

relieved respondent of this burden. 

In addition to relieving respondent of his burden of proof, the lower court erroneously 

made the sweeping conclusion that complainant consented to the acts for which respondent was 

adjudicated responsible. Because MCL 28.723a(5) prohibited compelling complainant to testify 

at the hearing, we are left with only her forensic interview. Complainant repeatedly indicated 

that certain of her acts with T.B. were consensual. However, she clearly did not consent to 

having respondent force her head down on T.B.’s ejaculating penis. Complainant was free to 

withdraw consent and stop performing oral sex. Respondent’s behavior inhibited complainant 

from potentially withdrawing previously bestowed consent. See M Crim JI 20.27. The lower 

court erred in concluding that respondent was exempted from registering as a sex offender.

III. WHETHER REGISTRATION IS CRUEL OR UNUSUAL PUNISHMENT

Respondent argues that, in the event this Court concludes that he is required to register as 

a sex offender, such registration is unconstitutional for juveniles and as applied to respondent in 

that it violates both the Eighth Amendment of the U.S. Constitution, US Const Amend VIII, and 

Michigan’s constitution, Const Art 1, § 16, because it is punitive. We disagree. “Whether a 

statutory scheme is civil or criminal is . . .a question of statutory construction . . .The 

interpretation of a statute is a question of law that this Court reviews de novo.” People v Earl, 

495 Mich 33, 35-36; 845 NW2d 721 (2014).

Respondent appears to concede that the legislation at issue is civil in nature; instead, he 

argues that it has a punitive effect. The United States Supreme Court provided the framework 

for determining whether a law is punitive in Smith v Doe, 538 US 84; 123 S Ct 1140; 155 L Ed 
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2d 164 (2003), which our Michigan Supreme Court adopted in People v Earl, 495 Mich 33; 845 

NW2d 721 (2014). In Earl, the Court set forth a number of factors to determine whether a law 

was so punitive in purpose so as to negate the state’s intent that the law be deemed civil. The 

factors are:

[1] Whether the sanction involves an affirmative disability or restraint, [2] 

whether it has historically been regarded as a punishment, [3] whether it comes 

into play only on a finding of scienter, [4] whether its operation will promote the 

traditional aims of punishment—retribution and deterrence, [5] whether the 

behavior to which it applies is already a crime, [6] whether an alternative purpose 

to which it may rationally be connected is assignable for it, and [7] whether it 

appears excessive in relation to the alternative purpose assigned. [Id. at 44, 

quoting Kennedy v Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554; 9 L Ed 

2d 644 (1963).]

Both Smith and Earl set forth the relative framework for determining whether a law is 

punitive in nature, at least in the context of whether a law violates the ex post facto clause. But 

our Michigan Courts have also specifically addressed the issue of whether SORA constitutes 

punishment and have repeatedly concluded that it does not. See In re Ayres, 239 Mich App 8; 

608 NW2d 132 (1999), People v Pennington, 240 Mich App 188; 610 NW2d 608 (2000), People 

v Golba, 273 Mich App 603; 729 NW2d 916 (2007). 

People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009) provides an exception. In 

Dipiazza, the 18-year-old defendant had a consensual Romeo-and-Juliet relationship with a girl 

who was 15 years old. The girl’s parents knew of the relationship and the two subsequently 

married. Nevertheless, the defendant was adjudicated under the Holmes Youthful Trainee Act 

(HYTA), MCL 762.11 et seq. and ordered to register as a sex offender. Id. at 140. SORA was 

subsequently amended to exclude youthful trainee status as “convicted” if the assignment 

occurred after October 1, 2004. But because the defendant was assigned youthful trainee status 

prior to that date, he was still considered “convicted” and his motion to remove himself from the 

registry was denied. Id. at 143. The Dipiazza Court concluded “that the registration requirement 

under SORA, as applied to defendant, constitutes punishment” based on the defendant’s 

convincing argument that he was unable to find work because, although he could honestly tell 

employers that he had no conviction, the registry was available. Id. at 153-154. Having 

concluded that registration was punishment as applied to the defendant, the Dipiazza Court then 

concluded that it was cruel or unusual punishment. The Court found that the “circumstances of 

the offense are not very grave” whereas the penalty of registration was harsh. “Defendant is 

required to register as a sex offender along with rapists and pedophiles.” Id. at 155. The Court 

concluded that “[b]ecause defendant’s registration is not tied to a finding that the safety of the 

public is threatened, the registration requirement, as applied to defendant, is excessive.” Id. at 

156. The Court concluded:

it is abundantly clear that there is no goal of rehabilitation in this case. Defendant 

never posed a danger to the public or a danger of reoffending. Defendant is not a 

sexual predator, nor did the trial court deem him to be. Further, even if defendant 

needed rehabilitation, SORA’s labeling him as a convicted sex offender works at 
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an opposite purpose, preventing defendant from securing employment and 

otherwise moving forward with his life plans.

Consequently, after considering the gravity of the offense, the harshness of the 

penalty, a comparison of the penalty to penalties imposed for the same offense in 

other states, and the goal of rehabilitation, we conclude that requiring defendant to 

register as a sex offender for 10 years is cruel or unusual punishment. [Id. at 

156.]

However, following the Dipiazza case, the legislature again amended the SORA to 

provide for a consent exception. This Court has recently analyzed the amended SORA using the 

two-part analytical process set forth in Smith and Earl, and has again concluded that the SORA 

was not intended as a punishment and that the SORA does not constitute punishment as 

generally applied.

In People v Temelkoski, 307 Mich App 241; 859 NW2d 743 (2014), the defendant 

committed his offense in 1994 when he was 19 years old and the victim was 12 years old. He 

pleaded guilty to CSC-II and was adjudicated under HYTA, successfully completing his three 

years of probation. Nevertheless, the defendant was required to register as a sex offender for life 

when the amended SORA went into place, requiring those convicted prior to October 2004 to 

register. Citing Dipiazza, the defendant asked that he be removed from the registry. The trial 

court granted the motion. Temelkoski, 307 Mich App at 244-245. On appeal, the defendant 

argued that the trial court’s decision was correct because the SORA, as applied to him, 

constituted cruel or unusual punishment and violated the Ex Post Facto Clause. Id. at 250. Once 

again, such an argument involved the threshold inquiry as to whether the SORA imposed 

punishment. Id. at 251. 

The Temelkoski Court first noted that Dipiazza was not controlling:

First, the facts of this case are distinguishable. Defendant was not involved in a 

consensual relationship similar to the one at issue in Dipiazza, which involved an 

18–year–old and a female who was “nearly” 15–years–old. In contrast, in this 

case, defendant was 19 when he committed the offense and the complainant was 

only 12 years old. This was not an ongoing Romeo and Juliet relationship 

condoned by the complainant’s parents. Second, the Dipiazza Court analyzed 

whether SORA constituted punishment before the Legislature amended the act in 

2011 and added the consent exception discussed above. This exception addressed 

a primary concern the Dipiazza Court had with SORA—i.e., requiring a youthful 

trainee to register as a sex offender after he engaged in a consensual sexual 

relationship with a peer. Because the Dipiazza Court did not have the opportunity 

to consider if the 2011 amendment had any effect on whether SORA constitutes 

punishment, its constitutional analysis is outdated. [Id. at 257-258 (citation 

omitted).]

Therefore, in order to determine whether the SORA constituted punishment, the Temelkoski

Court considered Earl. Id. at 258. The Court first considered the legislative intent behind the 

SORA by consulting the language of the statutory scheme and again concluded that “the 
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Legislature was acting pursuant to its police powers to protect the citizenry against individuals it 

deemed pose a danger of recidivism by providing police and the public with a means of 

monitoring those individuals” not to “chastise, deter, or discipline the offender.” Id. at 260-261. 

To the extent the Dipiazza Court concluded that the expressed intent was frustrated by branding 

as sex offenders those who were involved in mere juvenile transgressions, the Court in 

Temelkoski confirmed that the newly enacted consent exception disposed of the concern. Id. at 

261. 

Having concluded that the legislature intended the SORA as a civil remedy to protect the 

health and welfare of the public, the Temelkoski Court then had to address whether the purpose 

and effects of the law were nevertheless so punitive so as to negate the state’s intention to deem 

it civil. Id. at 262. In so doing, the Court looked to Earl and considered: (1) historical form of 

punishment; (2) affirmative disability or restraint; (3) traditional aims of punishment; (4) rational 

connection to non-punitive purpose; (5) excessiveness with respect to non-punitive purpose.

The Temelkoski Court acknowledged that sex offender registries were a relatively new 

phenomenon that each of the states had now adopted and was unlike traditional forms of 

punishment, having a non-punitive purpose. The Court found that the reasoning in Dipiazza was 

no longer applicable because the case was decided on its unique facts. Id. at 262-264. 

Additionally, although the defendant argued that the SORA imposed significant hardships, the 

Court noted that the 2011 amendment allowed certain individuals to petition the court for 

removal based on their individual circumstances and that there was, therefore, no affirmative 

disability or restraint. Id. at 266-267. Nor did the SORA provide traditional aims of 

punishment:

Smith’s reasoning is persuasive and applies in this case. While SORA 

might deter future sexual offenses, that is not the primary purpose of the act and it 

does not render SORA punitive. Further, while SORA exempts certain individuals 

from the registry requirements in situations involving a consensual act and 

categorizes offenders into tiers depending on the severity of the underlying 

offense, as in Smith these mechanisms are “reasonably related to the danger of 

recidivism,” which is “consistent with the regulatory objective.” Id. [Temelkoski, 

307 Mich App at 267.]

The Court noted that there was no question that there was a rational connection to the nonpunitive purpose of public safety. Id. at 267-268. Finally, the Court concluded that the SORA 

was not excessive with respect to its non-punitive purpose. The registry was “passive” in that it 

required the public to seek out the information. The registry also warns that using the 

information to harass individuals could lead to prosecution. The SORA categorized offenders 

such that more serious offenses required lifetime monitoring. Again, the SORA now contained 

an exception for consensual behavior under certain circumstances and the defendant did not meet 

that exception. Id. at 268-270. The Court ultimately concluded:

In sum, the relevant Mendoza–Martinez factors indicate that SORA does 

not impose punishment as applied to defendant. SORA has not been regarded in 

our history and traditions as punishment, it does not impose affirmative 

disabilities or restraints, it does not promote the traditional aims of punishment, 
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and it has a rational connection to a nonpunitive purpose and is not excessive with 

respect to this purpose. Defendant therefore has failed to show by “the clearest 

proof” that SORA is “so punitive either in purpose or effect” that it negates the 

Legislature’s intent to deem it civil. Earl, 495 Mich. at 44, 845 NW2d 721 

(quotation marks and citation omitted). Accordingly, as applied to defendant, 

SORA does not violate the Ex Post Facto Clause or amount to cruel or unusual 

punishment because it does not impose punishment. [Temelkoski, 307 Mich App 

at 270-271.]1

In People v Tucker, 312 Mich App 645; 879 NW2d 906 (2015), the defendant 

specifically challenged provisions of the SORA regarding school safety zones and in-person 

reporting requirements. Id. at 667. The defendant conceded that the SORA was meant as a civil 

law but that its purpose or effect was punitive. The Tucker Court agreed with some of the 

defendant’s arguments but ultimately concluded that neither provision was unconstitutional. 

Regarding school safety zones, this Court ruled:

[T]he Mendoza–Martinez factors point us in both directions when it comes to 

student safety zones. We conclude that student safety zones impose affirmative 

restraints, resemble historical punishments, and promote deterrence. However, we 

also conclude that they are rationally connected to the nonpunitive purpose of 

public safety and that they are not excessive, because the Legislature is permitted 

to make the categorical judgment that sex offenders should not live, work, or 

loiter near schools. Weighing these factors, we are mindful that the burden lies 

with defendant to establish that student safety zones are punitive. As stated, a 

party asserting that a statutory scheme imposes punishment must provide “the 

clearest proof” that the scheme “ ‘is so punitive either in purpose or effect [as] to 

negate the ... intention to deem it civil.’ ” Earl, 495 Mich at 44, 845 NW2d 721, 

quoting Hendricks, 521 US at 361, 117 S Ct 2072 (quotation marks and citations 

omitted). In this case, because the Mendoza–Martinez factors cut both ways, we 

cannot conclude that defendant has met his burden. Further, even some of the 

factors that weigh in defendant’s favor only do so to a limited extent. Student 

safety zones plainly restrict where offenders can live and work, but the 

restrictions are not absolute, and therefore, the restrictions are distinguishable 

from true banishment. And although student safety zones specifically deter 

registered offenders, the Smith Court held that a deterrent purpose alone will not 

render a civil regulatory scheme punitive. Smith, 538 US at 102, 123 S Ct 1140. 

Moreover, the nonpunitive purpose of the student safety zones is “a most 

significant factor” in determining whether they are punitive in effect. See id. 

(quotation marks and citation omitted). Given these considerations, there is not 

the clearest proof that the student safety zone restrictions are so punitive in 

 1 Temelkoski is now in the Michigan Supreme Court. Oral arguments were heard in 

December 2016 and the Court subsequently ordered additional oral arguments for October 2017.
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purpose or effect as to negate the Legislature’s intent to deem them civil. 

[Tucker, 312 Mich App at 681-682.]

And as for in-person reporting requirements, this Court ruled:

Regarding the in-person reporting requirements, the Mendoza–Martinez

factors do not readily lead to one conclusion over the other. The requirements 

impose affirmative restraints and arguably resemble conditions of supervised 

probation or parole. However, the reporting requirements do not necessarily 

promote deterrence or retribution, they are rationally connected to the nonpunitive 

purpose of protecting the public by ensuring that the registry is accurate, and they 

are not excessive. As with the student safety zones, we cannot find the clearest 

proof that the in-person reporting requirements are punitive in effect given that 

the Mendoza–Martinez factors cut both ways. Further, we again find that even 

some of the factors that weigh in defendant’s favor only do so to a limited extent. 

Although the reporting requirements are undeniably burdensome, their restraining 

effect is not absolute. Registrants are not precluded from many activities, such as 

changing residences or jobs, but are merely required to report them. And many of 

the considerations that Smith used to distinguish sex offender registration from 

supervised probation or parole still apply to the in-person reporting requirements. 

Given these considerations, we conclude that there is not the clearest proof that 

the in-person reporting requirements are so punitive in purpose or effect as to 

negate the Legislature’s intent to deem them civil. [Id. at 682-683.]2

Given this Court’s clear and generally unwavering opinion that the SORA is 

constitutional, only the Michigan Supreme Court will change that position. We decline 

respondent’s request to declare SORA unconstitutional as applied to him.

IV. WHETHER RESPONDENT SHOULD BE AFFORDED AN OPPORTUNITY TO 

WITHDRAW HIS PLEA

If this Court determines that respondent is required to register as a sex offender, then 

respondent requests the “remedy” of an opportunity to withdraw his plea because he was 

originally advised that he would have to report for 25 years when, in fact, registration was for a 

lifetime. We disagree. 

Defense counsel comes close to misrepresenting the record. At the July 15, 2016

hearing, respondent’s attorney specifically noted that, even if respondent was required to register 

as a sex offender, respondent had no interest in withdrawing his plea:

 2 Tucker, like Temelkoski, is in Michigan Supreme Court. On September 27, 2016, the 

Court ordered that the application for appeal in Tucker be held in abeyance until the Court’s 

resolution in Temelkoski. 
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I did pull the plea hearing from . . .the actual taking of the plea and would 

note that . . . [respondent] did not make any admissions regarding the CSC third 

in terms of whether or not there was consent or not and I would also note for the 

record that [respondent] was affirmatively advised that this was a 25 year Sex 

Offender Registry. I think the Court was about to say lifetime then . . . asked the 

Prosecutor who then said it was a 25 year registry rather than a lifetime. We now 

understand that it is . . .

It is life. Ah – I don’t have any precedent that would allow . . . [respondent] to 

withdraw his plea on that basis. . . . [M]ost of the case law just says they need to 

be advised that sex offender registration is a potential consequence which he 

indeed was although it was erroneous on the length. . . . [H]e has advised me that 

he does not wish to withdraw his plea . . . or even make that argument at this 

point to . . . that’s the situation.

It is clear that respondent’s plea was understanding, voluntary and accurate. See MCR 6.302; 

People v Cole, 491 Mich 325; 817 NW2d 497 (2012).

Reversed and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction.

/s/ Joel P. Hoekstra 

/s/ Patrick M. Meter 

/s/ Kirsten Frank Kelly