Sentencing for CSC IV convictions; Lifetime registration under the Sex Offenders Registration Act (SORA); Cruel or unusual punishment; People v Lymon (Lymon II); People v Kardasz; Proportionality; People v Lorentzen factors; Application of the 2021 SORA; Ex post facto punishment; Comparing the 2021 SORA with the 2011 SORA; People v Henriques (After Remand) (Unpub); Determination of SORA tier procedure; Sixth Amendment right to due process; Waiver by pleading no contest

The court rejected defendant’s claims that lifetime SORA registration for his CSC IV convictions was unconstitutionally cruel or unusual punishment. It also held that “applying the challenged 2021 SORA reporting requirements to” him did not constitute ex post facto punishment. Finally, by entering an unconditional plea of no contest, he waived his Sixth Amendment due process challenge, “as his no-contest pleas waived his right to challenge the factual basis of whether he committed a Tier III offense.” He pled no-contest to CSC IV counts involving minors. He was sentenced to 365 days in jail and ordered to comply with the SORA. On appeal, he argued that lifetime SORA registration was so disproportionate to his conviction of CSC IV “against a person under the age of 13 that it constitutes unconstitutionally cruel or unusual punishment both on its face and as applied to defendant. Kardasz has already rejected the argument that SORA is facially unconstitutional as cruel or unusual punishment, so defendant’s facial challenge must fail.” He also contended that lifetime registration was “a grossly disproportionate punishment as applied to his conviction for a single act of touching the clothed buttocks of a girl who was under the age of 13 as she ascended the stairs in front of him.’ The court disagreed. Applying the Lorentzen factors, it first concluded that the gravity of his offense factor did “not weigh in favor of disproportionality.” It noted that while he only pled no contest to a CSC IV charge, his “sexual contact with a person under 13 years old” satisfied the elements of CSC II. The other Lorentzen factors “were squarely addressed in Kardasz.” Considering them “as a whole, as in Kardasz, ‘the 2021 SORA is not cruel or unusual punishment either in all instances or as applied to defendant.’” Next, the court rejected his ex post facto “argument for three reasons. First,” he failed to “identify which of the 2021 SORA amendments he is attempting to avoid because it provides an increased punishment.” Second, the court considered “the 2021 addition of ‘internet identifiers’ as merely an upgraded term for” language in the 2011 disclosure requirements, “not as an increased punishment.” Third, the court noted that it addressed this argument in Henriques, where it found that defendant failed to show “the 2021 SORA was more punitive as a whole than the 2011 SORA[.]” Affirmed.