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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V JOHN SATTERWHITE FRANKLIN, Defendant-Appellant.

FOR PUBLICATION July 3, 2012 9:10 a.m. No. 296591 Saginaw Circuit Court LC No. 08-031656-FH

Before: BECKERING, P.J., and FITZGERALD and STEPHENS, JJ. PER CURIAM. In lieu of granting leave to appeal, the Michigan Supreme Court remanded this case to this Court "for consideration as on leave granted." People v Franklin, 490 Mich 871; 803 NW2d 320 (2011).1 Defendant entered a plea of nolo contendere to aggravated indecent exposure, MCL 750.335a(2)(b), and indecent exposure, MCL 750.335a. Defendant was sentenced as a habitual offender, fourth offense, MCL 769.12, to 34 months to 15 years in prison for the aggravated indecent exposure and 1 day to life in prison for the indecent exposure under sexual deviant status, MCL 750.335a(2)(c). We vacate his convictions for indecent exposure and sexual delinquency, affirm his conviction for aggravated indecent exposure and remand for further proceedings. First we find that the trial court erred by sentencing defendant as a sexually delinquent person without first holding a hearing to determine if defendant was sexually delinquent. A trial court's general conduct of trial is reviewed for an abuse of discretion. See People v Romano, 181 Mich App 204, 220; 448 NW2d 795 (1989); People v Collier, 168 Mich App 687, 698; 425 NW2d 118 (1989). To the extent that resolution of this issue involves a matter of statutory interpretation, review is de novo. People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009). The trial court's findings of fact are reviewed for clear error. Id.

Defendant filed a delayed application for leave to appeal, which this Court denied on March 24, 2010. People v Franklin, unpublished order of the Court of Appeals, entered March 24, 2010 (Docket No. 296591).

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MCL 750.335a(2)(c) provides that a person convicted of indecent exposure is subject to an indeterminate sentence of one day to a maximum of life if the defendant was a "sexually delinquent person" at the time of the offense. MCL 750.10a defines "sexually delinquent person" as any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16. MCL 767.61a provides, in pertinent part, that when the possibility of adjudicating a defendant as a sexually delinquent person is in issue, The indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. In every such prosecution the people may produce expert testimony and the court shall provide expert testimony for any indigent accused at his request. In the event the accused shall plead guilty to both charges in such indictment, the court in addition to the investigation provided for in [MCL 768.352,] and before sentencing the accused, shall conduct an examination of witnesses relative to the sexual delinquency of such person and may call on psychiatric and expert testimony. All testimony taken at such examination shall be taken in open court and a typewritten transcript or copy thereof, certified by the court reporter taking the same, shall be placed in the file of the case in the office of the county clerk. Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense. [Emphasis added.] In People v Helzer, 404 Mich 410, 419; 273 NW2d 44 (1978), overruled on other grounds by People v Breidenbach, 489 Mich 1; 498 NW 2d 783 (2011), our Supreme Court concluded that under MCL 767.61a, "[e]ven where defendant pleads guilty, the court is ordered

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MCL 768.35 provides as follows: Whenever any person shall plead guilty to an information filed against him in any court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied after such investigation as he may deem necessary for that purpose respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.

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to separately investigate the charge of sexual delinquency." Helzer further directed that if a defendant pleads to both the principal and delinquency charges, the court's consideration of the latter "should be conducted under a procedure equivalent to that used where a jury decides the sexual delinquency question." Id. at 419 n 15. Breidenbach, 489 Mich at 18, overruled Helzer to the extent that it had held that pursuant to MCL 767.61a, separate juries are required to determine a defendant's guilt of the underlying charge and the charge of being a sexually delinquent person. Our Supreme Court in Breidenbach observed that "MCL 767.61a only calls for a separate hearing in regards to sexual delinquency `[i]n the event the accused shall plead guilty. . . .'" Breidenbach, 489 Mich at 10 (citation omitted; emphasis in original). Entering a plea of nolo contendere is "an admission of all the essential elements of a charged offense and, thus, is tantamount to an admission of guilt for the purposes of the criminal case." People v Patmore, 264 Mich App 139, 149; 693 NW2d 385 (2004). Here, defendant answered affirmatively to the court's question of whether he was "entering a no contest plea." The two count felony information charged defendant with one count of aggravated indecent exposure and one count of indecent exposure under circumstances subjecting him to alternative sentencing as a sexually delinquent person. Under these circumstances, defendant's plea should be understood as pleading guilty to both charges. The question then becomes whether the process followed by the court before sentencing constituted "a separate hearing in regards to sexual delinquency." We conclude that it did not. The legislature specifically required that the court conduct an examination regarding sexual delinquency. This examination could have taken place at the plea hearing or later. The prosecutor admitted that no hearing was conducted in its brief before this Court. However, the prosecutor contends that an examination of criminal history is sufficient to meet the requirement imposed by the legislature as interpreted by the Court in Breidenbach. This defendant's history is disconcerting and replete with convictions for indecent exposure and other sexual misconduct offenses from 1980 until 1998. However, the prosecution's argument would render the sexual delinquency an automatic enhancement for every sexual habitual offender. Certainly the legislature could have exercised its policy making authority and provided for automatic enhancement of some sort. It did not. Rather, it required a separate examination, interpreted by the Court to be a hearing. No such hearing occurred in this case. Consequently, we vacate the trial court's determination that defendant was a sexual deviant and remand with instructions to conduct the requisite hearing. Next we address the issue of defendant's convictions of both aggravated indecent exposure and indecent exposure and find that they violate his double jeopardy rights. A claim that a conviction violates the prohibition against double jeopardy presents a question of law that this Court reviews de novo. People v Artman, 218 Mich App 236, 244; 553 NW2d 637 (1996). Both the United States and Michigan Constitutions protect an individual "from being placed twice in jeopardy for the same offense." People v Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004); US Const, Am V; Const 1963, art 1,

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