Michigan Defendant Must Be Told About the Sex Offender Registration Consequences


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.