The Court directed the parties to address: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., taken as a whole, amount to “punishment” for purposes of the Ex Post Facto Clauses of the Michigan and United States Constitutions, US Const, art I, § 10; Const 1963, art 1, § 10; see People v Earl, 495 Mich 33 (2014), see also Does #1-5 v Snyder, 834 F3d 696, 703-706 (CA 6, 2016), cert den sub nom Snyder v John Does #1-5, 138 S Ct 55 (Oct 2, 2017); (2) if SORA, as a whole, constitutes punishment, whether it became punitive only upon the enactment of a certain provision or group of provisions added after the initial version of SORA was enacted; (3) if SORA only became punitive after a particular enactment, whether a resulting ex post facto violation would be remedied by applying the version of SORA in effect before it transformed into a punishment or whether a different remedy applies, see Weaver v Graham, 450 US 24, 36 n 22 (1981) (“the proper relief . . . is to remand to permit the state court to apply, if possible, the law in place when his crime occurred.”); (4) if one or more discrete provisions of SORA, or groups of provisions, are found to be ex post facto punishments, whether the remaining provisions can be given effect retroactively without applying the ex post facto provisions, see MCL 8.5; (5) what consequences would arise if the remaining provisions could not be given retroactive effect; and (6) whether the answers to these questions require the reversal of the defendant’s conviction pursuant to MCL 28.729 for failure to register under SORA. Leave was granted on this case after oral argument on the application was heard at the Court’s March 2019 session. Mr. Betts is represented by SADO’s Jessica Zimbelman.

The Court granted leave limited to the issue whether, in exercising its discretion to impose a sentence of life without parole (LWOP), the trial court properly considered the Miller factors as potentially mitigating circumstances. In particular, the Court directed the parties to address: (1) which party, if any, bears the burden of proof of showing that a Miller factor does or does not suggest a LWOP sentence; (2) whether the sentencing court gave proper consideration to the defendant’s “chronological age and its hallmark features,” Miller, 567 US at 477-478, by focusing on his proximity to the bright line age of 18 rather than his individual characteristics; and (3) whether the court properly considered the defendant’s family and home environment, which the court characterized as “terrible,” and the lack of available treatment programs in the Department of Corrections as weighing against his potential for rehabilitation. Mr. Masalmani is represented by SADO’s Erin Van Campen.

The Court directed the parties to address whether permitting an expert witness to testify by two-way interactive video, over the defendant’s objection, denied the defendant his constitutional right to confront witnesses and, if so, whether this error was harmless. Mr. Jemison is represented by SADO’s Kristin LaVoy.

The Court directed the parties to address: (1) whether a legal misconception concerning a defendant’s sentence on one count renders the sentences for other counts arising out of the same transaction invalid; (2) whether the requirements for a motion for relief from judgment must be satisfied before a defendant may be resentenced on other counts where a change in the law requires resentencing for one count, or whether a trial court may exercise its discretion to resentence on other counts where resentencing is required for one count; and (3) if the latter, what parameters apply to the exercise of the court’s discretion when deciding whether to resentence on other counts. Mr. Turner is represented by SADO’s Erin Van Campen.

The Court broadly granted leave to appeal the opinion of the Court of Appeals. The Court of Appeals affirmed Mr. Wood’s conviction for jury tampering based on Mr. Wood’s distribution of pamphlets in front of the courthouse to persons he knew to be potential jurors in the case that was set for trial that day.

The Court directed the parties to address whether second-degree child abuse, MCL 750.136b(3)(b), is an adequate predicate “other felony” to sustain a charge of CSC-I, MCL 750.520b(1)(c), when the alleged act of child abuse is a sexual penetration that is the same sexual penetration that forms the basis of the CSC-I charge.

The Court directed the parties to address: (1) whether assault and battery is a necessarily included offense of assault with intent to commit murder; and if so (2) whether a rational view of the evidence in this case could support a conviction for assault and battery. Mr. Haynie is represented by MAACS attorney Cecilia Quirindongo Baunsoe

ORAL ARGUMENT ON APPLICATIONS

The Court directed the parties to address whether the Court of Appeals erred in concluding: (1) that the preserved error in admitting the rap videos was not outcome determinative; (2) that the unpreserved error in admitting the gang-affiliation testimony was not plain error; and (3) that the erroneously admitted evidence, in conjunction with the prosecutor’s argument in closing that this evidence showed the “mentality” of defendant and his friends and the “lifestyle” they lived, did not constitute impermissible character evidence under MRE 404(a) and People v Bynum, 496 Mich 610 (2014). Mr. Bennett is represented by SADO’s Christine Pagac. 

The Court directed the parties to address: (1) whether the defendant waived the question of his entitlement to an evidentiary hearing regarding the amount of restitution, compare People v Gahan, 456 Mich 264, 276 (1997), overruled in part by People v McKinley, 496 Mich 410, 413 (2014) (stating that the failure to affirmatively request an evidentiary hearing regarding restitution is a waiver of a defendant’s due process claim on appeal) with People v Carter, 462 Mich 206, 215 (2006) (defining waiver as “the intentional relinquishment or abandonment of a known right” and distinguishing waiver from forfeiture, which has been defined as “the failure to make the timely assertion of a right.”); and if not, (2) whether the Wayne Circuit Court erred in denying the defendant such a hearing. See McKinley, 496 Mich 410. Mr. Gilmore is represented by SADO’s Steven Helton. 

The Court directed the parties to address whether the Court of Appeals erred when it concluded that the jury in the defendant’s first trial, when it acquitted him of first- and second-degree murder, necessarily decided an issue of ultimate fact such that the issue-preclusion aspect of the Double Jeopardy Clause bars prosecution for the crime of torture arising out of the same criminal incident. Mr. Lee is represented by SADO’s Angeles Meneses and Jackie McCann.