9.9Failure to Register or Comply with the SORA1
A.Duties of the Registering Authority
MCL 28.728a states:
“(1) If an individual fails to register or to update his or her registration information as required under [the SORA], the local law enforcement agency, sheriff’s office, or department post responsible for registering the individual or for verifying and updating his or her registration information shall do all of the following immediately after the date the individual was required to register or to update his or her registration information:
(a) Determine whether the individual has absconded or is otherwise unlocatable.
(b) If the registering authority was notified by a registration jurisdiction that the individual was to appear in order to register or update his or her registration information in the jurisdiction of the registering authority, notify the department in a manner prescribed by the department that the individual failed to appear as required.
(c) Revise the information in the registry to reflect that the individual has absconded or is otherwise unlocatable.
(d) Seek a warrant for the individual’s arrest if the legal requirements for obtaining a warrant are satisfied.
(e) Enter the individual into the national crime information center[2] wanted person file if the requirements for entering information into that file are met.”
B.Duties of the Department of State Police
MCL 28.728a(2) states:
“If an individual fails to register or to update his or her registration information as required under [the SORA], the department shall do all of the following immediately after being notified by the registering authority that the individual failed to appear as required:
(a) Notify that other registration jurisdiction that the individual failed to appear as required.
(b) Notify the United States marshal’s service in the manner required by the United States marshal’s service of the individual’s failure to appear as required.
(c) Update the national sex offender registry[3] to reflect the individual’s status as an absconder or as unlocatable.”
C.Penalties for Failure to Comply with SORA Requirements
MCL 28.729(1) states:
“Except as provided in [MCL 28.729(2), MCL 28.729(3), and MCL 28.729(4)], an individual required to be registered under [the SORA] who willfully violates [the SORA] is guilty of a felony punishable as follows:
(a) If the individual has no prior convictions for a violation of [the SORA], by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.
(b) If the individual has 1 prior conviction for a violation of [the SORA], by imprisonment for not more than 7 years or a fine of not more than $5,000.00, or both.
(c) If the individual has 2 or more prior convictions for violations of [the SORA], by imprisonment for not more than 10 years or a fine of not more than $10,000.00, or both.”
MCL 28.729(2) states:
“An individual who willfully fails to comply with [MCL 28.725a], other than payment of the fee required under [MCL 28.725a(6)], is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.”
MCL 28.729(3) states:
“An individual who willfully fails to sign a registration and notice as provided in [MCL 28.727(4)] is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $1,000.00, or both.”
MCL 28.729(4) states:
“An individual who willfully refuses or fails to pay the registration fee prescribed in [MCL 28.725a(6) or MCL 28.727(1)] within 90 days of the date the individual reports under [MCL 28.724a or MCL 28.725a] is guilty of a misdemeanor punishable by imprisonment for not more than 90 days.”
MCL 28.729(1) is a statutory recidivism scheme that created three separate and distinct felonies in MCL 28.729(1)(a)-(c)—SORA-1, SORA-2, and SORA-3, respectively—based on the number of convictions an offender accrues for violating the SORA; the penalties for each of the felonies stated in MCL 28.729(1)(a)-(c) elevate as the number of an offender’s SORA convictions increase. People v Allen, 499 Mich 307, 321-322, 326-327 (2016) (ruling that the Court of Appeals erred when it interpreted MCL 28.729(1) and MCL 769.10 as being in direct conflict). Rather than a single offense imposing harsher penalties for repeat felonies, SORA-1, SORA-2, and SORA-3 are distinguished by the crime class and the definition assigned to each of them by the Legislature under MCL 777.11b. Allen, 499 Mich at 321-322. “[T]he Legislature intended in enacting SORA-2 and SORA-3 to elevate each offense, not merely the punishment.” Id. at 326. The statutory structure of the offenses defined in MCL 28.729(1) and the enhanced penalties for habitual offenders in MCL 769.10–MCL 769.12 are not in conflict; both statutory provisions may be applied to a second conviction of SORA-2. Allen, 499 Mich at 326-327. Under MCL 28.729(1)(b), an offender who is convicted of violating the SORA for a second time has committed a separate felony under the SORA, and that second conviction qualifies the offender as a habitual offender subject to the sentence enhancement under MCL 769.10. Allen, 499 Mich at 321-322.
“Nothing in SORA or the HOA [Habitual Offender Act] precludes a sentencing court from enhancing the maximum sentence provided for SORA-2 by the applicable habitual-offender statute.” Allen, 499 Mich at 311. “[A] trial court can sentence [a] defendant under SORA-2 as a second-offense habitual offender using his SORA-1 conviction.” Id. at 326.
3.Mandatory Revocation of Probation, Parole, and Youthful Trainee Status
A court must revoke the probation of an individual on probation who willfully violates the SORA. MCL 28.729(5).
Youthful trainee status must be revoked for a youthful trainee who willfully violates the SORA. MCL 28.729(6).
The parole board must rescind an individual’s parole if the individual willfully violates the SORA after being paroled. MCL 28.729(7).
An individual who fails to register as required by the SORA or who violates MCL 28.725 may be prosecuted in the following judicial districts:
•The offender’s last residence or registered address.
•The offender’s actual residence or address.
•Where the individual was arrested for the violation. MCL 28.729(8).
1 See M Crim JI 20.39, Sex Offenders Registration Act Violations – Failure to Register; M Crim JI 20.39j, Sex Offenders Registration Act Violations – Venue; M Crim JI 20.39k, Sex Offenders Registration Act Violations – Registration / Notification / Verification In-person Requirement; and M Crim JI 20.39l, Sex Offenders Registration Act Violations – Definitions – Residence / Domicile.
2 Note: The link to the National Crime Information Center (NCIC) was created using Perma.cc and directs the reader to an archived record of the page.
3 Note: The link to the national sex offender registry was created using Perma.cc and directs the reader to an archived record of the page. See also the Michigan Public Sex Offender Registry, also linked using Perma.cc.