The failure to advise a defendant of a SORA requirement when registration is succinct, clear and explicit is ineffective assistance of counsel.

In People v Fonville, __ Mich App __ (#294554, 1/25/2011) the Court of Appeals ordered that defendant be allowed to withdraw his plea of guilty to child enticement because defense counsel failed to advise defendant that he would be required to register under the SORA.  Like deportation, sex offender registration is not a criminal sanction, but is a particularly 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 requirements70 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.”

If the sex offender registration statute is “succinct, clear, and explicit” in defining the registration requirement for a particular conviction, applying the Padilla rationale, defense counsel must advise a defendant that registration as a sexual offender is a consequence of his guilty plea.  The failure to inform a pleading defendant that his plea will necessarily require registration as a sex offender will thereby affect whether the plea was knowingly made.