In an unfortunate defense loss, the Michigan Court of Appeals just ruled that the United States Supreme Court’s ruling in Padilla v Kentucky is not retroactive. Padilla held that a defense attorney was ineffective when he gave his client incorrect information about the deportation consequences of the plea. Padilla, however, also held that even if the attorney gave no advice, he would still be ineffective. In a case called People v Davidovich, the Michigan Supreme Court had reached a contrary ruling some ten years early. In People v Gomez, the Court of Appeals ruled in a publish decision that Padilla was not retroactive. As the Court correctly noted, right now the US Federal Appellate Courts are bitterly divided. The United States Court of Appeals for the Seventh Circuit ruled in a divided ruling that Padilla is not retroactive. Conversely, the US Court of Appeals for the Third Circuit reached the opposite holding. The Seventh Circuit decision is currently being appealed to the US Supreme Court and the case may prove appealing to the high court. It is being advocated by a very good appellate advocate and has a number of organizations backing the petition.

In Michigan, Mr. Gomez’s attorney (Liisa Speaker of Lansing Michigan) has indicated that she will appeal the ruling to the Michigan Supreme Court. You can monitor the case developments here. To track developments on the basic law, you can click here to see cases citing to the Third Circuit’s decision. Sooner or later the US Supreme Court will have to decide this issue.

Today’s Sex Offender Research Blog has an interesting story about a North Carolina Sex Offender who is challenging a lifetime ban on accessing Facebook, Myspace, and other social media sites. In addition to banning sex offenders from going to schools and other places where children congregate. North Carolina law bans sex offenders from joining or using social media sites that also admit children. Last year, the attorney representing the challengers succeeded in striking down a North Carolina law which created a 300 foot buffer between sex offenders and places where children congregated. As applied, this law stopped sex offenders from going to church.

In a surprise defense victory, the Michigan Court of Appeals ruled (2-1) that a criminal defendant can have his guilty plea vacated because he was not adequately informed of the sex offender registration (SORA) consequences of his plea. People v Fonville, Court of Appeals No. 294544. The key holding is that the United States Supreme Court’s ruling in Padilla v Kentucky applies to sex offender registry consequences. A defendant who pleads guilty without being warned about those consequences may withdraw his plea.

In Padilla, the United States Supreme Court ruled that a non-citizen criminal defendant must be informed of any deportation consequences as part of the plea. In adopting this approach, the United States Supreme Court rejected the approach used by many courts that said that “collateral consequences” (no matter how important) do not have to be conveyed to a criminal defendant. The comparisons to deportation are obvious. Like deportation, sex offender registration is not a criminal sanction, but is a extremely severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency reporting requirement and place of domicile restrictions. Moreover, sex offender registration is “intimately related to the criminal process.” The “automatic result” of sex offender registration for certain defendants makes it difficult “to divorce the penalty from the conviction.” For these reasons, the Court rejected the notion that the SORA consequences were not part of the criminal conviction.

The secondary important part of the ruling (which isn’t as good) implies that the Court’s prior ruling in People v DiPiazza, 286 Mich App 137, 778 NW2d 264 (2009) may only apply to individuals who do not have a criminal record, but are still on the sex offender registry.

California (like many states) passed its own variant of Jessica’s Law which prohibited convicted sex offenders from living close to parks, schools, and other places which people believe children are likely to congregate. California granted an exception to the law to people who already lived near such places, but any subsequent arrest for any offense required the offender to move. J.S. was convicted of sexually assaulting a fifteen year when he was sixteen. For years J.S. continued to live with his mother. Then he received a ticket for driving the wrong way down a street, which was technically a misdemeanor under California law. This required him to move from the home he was living in for years. Jessica’s law is being challenged on constitutional grounds. Some former supporters of the law have changed their position because the law has made sex offenders homeless, more transient, and therefore potentially more dangerous. Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts To read the Silicon Valley (formerly San Jose) Mercury News story on this case, click here. To read the Contra Costa Times summary of the case, click here.

Michigan’s Sex Offender Registration Act (“SORA”) requires an individual “who is convicted of a listed offense after October 1, 1995, to register as a sex offender.” MCL 28.723(1)(a). The definition of “listed offense” in MCL 28.722(e) includes a catchall provision, MCL 28.722(e)(xi), which states that “[a]ny other violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age,” constitutes a listed
offense.

Last week, in People v Atlhoff, the Michigan Court of Appeals had the opportunity to clarify what the registration obligations were under this provision. Mr. Althoff had been convicted of downloading child pornography from the internet. The question was whether this act constituted a “sexual offense against an individual who is less than 18 years of age” under the Act.

Previously, in People v Meyers, 250 Mich App 637, 649 NW2d 123 (2002), the Court stated that in catch-all cases, a Court was required to look at the specific facts of a given case to determine whether the Defendant’s conduct fell within the catch-all. In December of 2006, the Michigan Supreme Court remanded Althoff to the Court of Appeals as on leave granted. In its remand order, the Michigan Supreme Court stated in dicta that the language in Meyers was dicta. People v Althoff, 477 Mich 961 (2006). In People v Golba, the Court of Appeals stated that this language was holding. In Altholff, the Court of Appeals found that Golba was wrongly decided because it ignored the remand order in Althoff. In other words, the Court of Appeals created a “wrongly decided” exception to Michigan’s “first out rule.” Because the prior panel failed to detect or credit a suggestion that Meyers was dicta, the decision was invalid. Even though Michigan’s court rules require to follow a post-1990 published Court of Appeals decision, Atlhoff chose not to. In the process, the Court has inadvertently created an exception which will swallow the rule. The authors of this decision will regret their words.

According to the Tennessean, Tennessee and Kansas have created sex offender style registries for persons convicted of possessing methamphetamine. When will the craziness stop? There is no showing that these registries stop recidivism and there is strong evidence of exactly the opposite -- they directly impede a person’s ability to resume a normal life.