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150643 - People v Boban Temelkoski

The People of the State of Michigan,
Julie A. Powell
(Appeal from Ct of Appeals)
(Wayne – Chylinski, J.)
Boban Temelkoski,
David Herskovic


In 1993, when the defendant was 19 years old, he committed second-degree criminal sexual conduct. He pled guilty to the offense under the Holmes Youthful Trainee Act (HYTA), which allows a young offender to be placed on probation for a number of years, and if probation is successfully completed, to avoid a felony conviction. While the defendant was still on probation in 1995, the Legislature enacted the Sex Offenders Registration Act (SORA), which required a defendant convicted of second-degree criminal sexual conduct to register for 25 years. That registration later became public. The Legislature subsequently imposed additional requirements on registered offenders, and in 2011 required lifetime registration. The defendant seeks removal from the registry, arguing that registration has become cruel and unusual punishment, and is an ex post facto law. The trial court granted the defendant’s motion. The Court of Appeals reversed the trial court in a published opinion. The Supreme Court granted leave to appeal, asking the parties to brief: (1) whether the requirements of SORA amount to “punishment,” under Michigan law; (2) whether the answer to that question is different when applied to individuals who have successfully completed probation under HYTA; (3) whether MCL 28.722(b) denies the defendant due process of law because it defines HYTA status as a “conviction” for purposes of SORA even though successful completion of HYTA requires the court to dismiss criminal proceedings without entering an order of conviction; (4) whether, assuming that the requirements of SORA do not amount to “punishment” as applied to the defendant, application of the civil regulatory scheme established by SORA to the defendant otherwise violates guarantees of due process; (5) whether requiring the defendant to register under SORA is an ex post facto punishment, where the registry has been made public, and other requirements enacted, only after the defendant committed the instant offense and pled guilty under HYTA; and (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA.