3.5Sentencing a Sexually Delinquent Person¹

A defendant charged with certain sex offenses may also be charged with and convicted of being a sexually delinquent person. Being a sexually delinquent person is not a stand-alone crime, and a charge of sexual delinquency may only be brought in conjunction with the following offenses:

•Crime against nature or sodomy, MCL 750.158;

•Indecent exposure, MCL 750.335a;

•Gross indecency between male persons, MCL 750.338;

•Gross indecency between female persons, MCL 750.338a;

•Gross indecency between male and female persons, MCL 750.338b.

“Conviction of sexual delinquency can be obtained only in conjunction with conviction on the principal charge. Yet, sexual delinquency is a matter of sentencing, unrelated to proof of the original charge.” People v Helzer, 404 Mich 410, 417 (1978), overruled in part by People v Breidenbach, 489 Mich 1 (2011); see also People v Franklin, 298 Mich App 539, 547 (2012) (noting that “sexual delinquency is not an actual element of [indecent exposure; r]ather, a finding of sexual delinquency merely allows for an enhancement of the sentence for [an] indecent exposure offense”).

A.Procedure

MCL 767.61a details the procedure for charging and sentencing a defendant as a sexually delinquent person. It provides that “an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life” may be imposed where the defendant is found to have been a sexually delinquent person at the time the principal charge was committed. Id. “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.” Id. 

B.Sentencing

Each of the sexual delinquency principal offenses contains language stating that if the person was sexually delinquent at the time of the offense, he or she may be punished by imprisonment for an indeterminate term, and that the minimum term must be one day, and the maximum term must be life in prison. See MCL 750.158; MCL 750.335a; MCL 750.338; MCL 750.338a; MCL 750.338b. See also MCL 767.61a. The “1 day to life” sentence is not required, but provides “an option a sentencing judge could draw upon, alongside and not to the exclusion of other available options.” People v Arnold, 502 Mich 438, 444, 469 (2018) (Arnold I) (construing the “1 day to life” provision in MCL 750.335a(2)(c)). The Court reiterated the sentencing scheme it set out in Arnold I and further held that the statutory sentencing guidelines do not apply to MCL 750.335a(2)(c) despite the fact that MCL 777.16q lists that offense; instead, “defendants found guilty under § 335a(2)(c) can be sentenced to the penalties in § 335a, along with any applicable enhancements, as discussed in . . . Arnold I.” People v Arnold, 508 Mich 1, 26 (2021) (Arnold II).

“Sexual delinquency is not merely a penalty enhancement provision related to the principal charge; it is an alternate sentencing provision tied to a larger statutory scheme.” People v Kelly, 186 Mich App 524, 528 (1990). See also People v Winford, 404 Mich 400, 404 n 5 (1978) (“the indeterminate penalty for a sexual delinquency conviction [i]s an alternate form of sentencing”; a defendant may only be sentenced once upon conviction of the principal charge and the sexual delinquency charge, i.e., the court has the discretion to sentence the defendant under the terms of the principal offense, or under the terms of the sexual delinquency offense, but not both).

If the trial court chooses to impose a “1 day to life” sentence it cannot be modified. Arnold I, 502 Mich at 469.