People v Lee

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  
CAVANAGH, 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 the trial court’s decision to require defendant to register 
under SORA.  
                                             
1
 We acknowledge that the Legislature amended various provisions of SORA effective 
July 1, 2011.  2011 PA 17.  Because the trial court decided the relevant issues before 
July 1, 2011, we analyze this case under the statutory provisions in effect when the case 
was decided by the trial court.

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 getting 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-degree criminal sexual conduct and seconddegree child abuse with sentence 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 750.136b(5); MCL 769.10.  The parties agreed 
that the trial court could use the police report as the factual basis for the plea, and, at the 
plea hearing, the trial court quoted briefly from the police report. 
At sentencing on March 17, 2006, the prosecution 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 request, the prosecution recited statements 
from the victim advocate that defendant had rubbed JW’s penis  and given him candy 
after the flicking incident.  Defendant objected, and Allegan Circuit Court Judge Harry A. 
Beach noted that the prosecution’s supporting information was not included in the record.  
Furthermore, Judge Beach stated that defendant’s crime was “a rather abusive assault” 
                                             
 None of defendant’s prior convictions involved criminal sexual conduct
but not a “sex act” and concluded that registration under SORA was not appropriate in 
light of the facts in the record.  Thus, Judge Beach did not require defendant to register 
under SORA, but left the question open, subject to the prosecution’s setting a hearing to 
take testimony regarding whether defendant’s conduct required registration.  Judge Beach 
stated that the court was retaining jurisdiction for that purpose but issued a judgment of 
sentence that did not require registration.   
Approximately 20 months after the sentencing hearing, the prosecution moved for 
entry of an order requiring defendant to register under SORA.  Defendant objected, 
arguing that the procedure was improper.   A hearing on the prosecution’s motion was 
scheduled before Judge William A. Baillargeon because Judge Beach had retired.  At the 
December 13, 2007, hearing, JW’s father testified 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 “bullying.”  Defendant testified that he was deeply sorry for 
his conduct and that he had flicked JW’s penis in a reaction to JW’s uncooperativeness.  
He explained that he used the term “bullying” to describe a grown man inflicting pain on 
a small boy.  Defendant testified that he had not been disciplining JW in the sense that he 
had warned him that his penis would be flicked if he did not behave and further denied 
that his actions were intended to injure or humiliate JW.  Finally, defendant stated that he 
had been frustrated when the incident occurred but not angry.  No testimony or evidence 
was presented in support of the prosecution’s prior assertions at sentencing that defendant 
had rubbed JW’s penis and given JW candy after the flicking. 
Judge Baillargeon ruled that defendant must register under SORA, stating that 
there was no procedural bar to granting the prosecution’s motion because Judge Beach
had reserved a decision on the SORA issue.  Also, Judge Baillargeon stated that the 
information used to support  the plea was sufficient to show that defendant’s act was 
“certainly something that would be envisioned by the law and I think that by itself would 
constitute the registration that the People seek.”  Finally, Judge Baillargeon concluded 
that the testimony from the evidentiary hearing supported his decision to require 
registration under SORA because the discussion about “bullying” 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 Appeals for consideration as on leave granted.  
People v Lee, 485 Mich 914 (2009).  On remand, the 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 jurisdiction over a defendant.  The Court of Appeals 
concluded that because defendant was still  on probation, the trial court retained 
jurisdiction, and, thus, Judge Baillargeon’s decision to require registration 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).

III.  ANALYSIS 
Under MCL 28.723(1)(a), a defendant must register as a sex offender if the 
defendant is convicted of a specified “listed offense” as defined 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 listed offense.  Therefore, if defendant 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 individual who is less than 18 
years of age.”  With regard to applying the 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 record and include the determination in 
the judgment of sentence. 
Thus, if a defendant’s crime falls under the catchall provision, MCL 28.722(e)(xi), under 
MCL 769.1(13), the crime is a listed offense, requiring registration under SORA.

                                             
3
 “[S]ection 2” refers to MCL 28.722.   MCL 28.722 was amended by 2002 PA 542, 
effective October 1, 2002, but the cross-reference in MCL 769.1(13) was not updated to 
reflect the fact that the applicable provisions 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 improperly imposed the 
registration requirement after sentencing and, thus, erred when it granted the 
turn, for convictions of listed offenses after October 1, 1995, MCL 28.724(5) provides 
the following with regard to SORA’s registration procedures: (1) the defendant “shall 
register before sentencing,” (2) “[t]he probation 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 individual’s registration was forwarded to the 
department [of state police] as required under [MCL 28.726].”  Finally, for crimes falling 
under the catchall provision,  MCL 769.1(13) adds additional procedural requirements 
regarding registration under SORA, including that the court must include the 
determination that the crime is a listed offense under the catchall provision, for which  
registration was therefore required, “in the judgment of sentence.”   
In this case, the only issue we reach is the effect of the trial court’s failure to 
include a definitive determination of defendant’s registration status in the judgment of 
sentence and the subsequent  20-month delay between sentencing 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 Appeals’ conclusion that the trial court “did 
not commit procedural error” when it ordered defendant to register under SORA 20 
prosecution’s postsentencing motion requesting that the trial court require defendant to 
register, we need not determine whether, on the facts of this particular case, defendant’s 
crime “by its nature constitutes a sexual offense” sufficient to satisfy SORA’s catchall 
provision.  MCL 28.722(e)(xi).  As a result, this opinion should not be interpreted to hold 
that defendant’s conduct in this case was or was not a sexual offense. 
months after sentencing.  The Court of Appeals reasoned that the trial court retained 
jurisdiction over defendant because defendant remained on probation.   Lee, 288 Mich 
App at 744-745.  However, the  Court of Appeals cited no authority in support of its 
conclusion and, indeed, none exists.   
Furthermore, it is clear that the trial court committed multiple procedural errors in 
this case.  First, the trial court did not require 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 second requirement of MCL 28.724(5), and, thus, 
both the probation officer and the family division of the circuit court failed to “give 
[defendant] the registration form after [defendant was] convicted” and explain his duties 
under SORA.  Third, when the trial court imposed 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 the individual’s registration 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 769.1(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 defendant’s possible registration as a sex offender, 
that is not a determination regarding registration.  Furthermore, there is no support in 
SORA for permitting a postsentencing hearing to make  a determination regarding
registration.  Indeed, such a hearing is a clear violation of the registration procedures 
established by MCL 28.724(5).
5
   
As a result of these procedural errors by the trial court, the sentence imposed in the 
March 20, 2006, judgment of sentence may have been invalid.  See People v Whalen, 412 
Mich 166, 170; 312 NW2d 638 (1981) (recognizing that sentences that “do not comply 
with essential procedural requirements” are invalid).  Thus, the prosecution could have 
sought to correct the sentence because, under 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 trial 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 available at sentencing, 
defendant’s crime did not require registration because the facts did not satisfy the catchall 
provision, arguably the sentence imposed  in the judgment of sentence, without a 
registration requirement, was valid.  And, notably, 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 remanded 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 court 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 original judgment of sentence was valid when entered, MCR 
6.429[A] controls . . . .”).  Therefore, arguably, the trial court should have rejected the 
prosecution’s postsentencing motion to require 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 conclude that the prosecution was not 
entitled to have its postconviction motion considered even if the sentence imposed was 
invalid, we will assume, for purposes of this case, that the sentence was invalid
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 applies 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 this case, he could only appeal by leave of the Court of 
Appeals.  See MCR 6.302(B)(5).  Therefore, in this case, MCR 6.429(B)(3) required that 
a motion to correct the sentence be brought “within 6 months of entry of the judgment of 
conviction and sentence.”  But the prosecution’s motion to require registration was filed 
20 months after the judgment of sentence entered.  Thus, even if the sentence imposed in 
the March 20, 2006, judgment of sentence was invalid because of the procedural errors 
relating to registration under SORA, the prosecution’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 Judge Beach erroneously permitted the prosecution to bring 
additional evidence at a postsentencing hearing, see MCL 28.724(5) and MCL 769.1(13), 
the prosecution failed to provide any new evidence at that hearing in support of its 
previous claim that defendant had rubbed JW’s penis and given JW candy after the 
flicking incident.  Thus, Judge Baillargeon’s  conclusion that the information used to 
support the plea alone was sufficient to require registration under SORA’s catchall 
provision was in direct conflict with Judge Beach’s previous determination that the 
information used to support the plea  did not  support the prosecution’s request for
registration.  In accordance with the essence  of the general rule favoring sentencing by 
the judge who accepts a plea,
7
 Judge Beach’s findings should have been afforded 
substantial deference.  Indeed, in a case procedurally similar to this one, this Court stated 
that for a successor trial judge “[t]o sentence a prisoner to the penitentiary . . . when the 
[previous] trial judge has distinctly said he ought not to be so sentenced, is not supplying 
his omissions, but is overruling his decision.”   Weaver v People, 33 Mich 296, 298 
(1876).  Just as the successor judge in  Weaver erred by overruling the predecessor 
judge’s determination rather  than merely correcting an  omission, Judge Baillargeon’s 
determination regarding registration under SORA improperly overruled Judge Beach’s 
previous decision in light of the prosecution’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 postsentencing 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).  This general rule recognizes that the judge who 
accepts a defendant’s plea is in the best position to ensure that a defendant’s sentence is 
“based upon the circumstances established at the time of the plea,” Pierce, 158 Mich App 
at 115-116, so that, consistently with the  “modern view of sentencing,” the sentence 
imposed is “tailored to the particular circumstances of the case and the offender,” People 
v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973). 
the sentence was entered to require registration 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 defendant 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