Petitions for Removal from the Sex Offender Registry: The Wetterling Finding — Part II

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In my previous post I wrote about In re Hamilton, a recent appellate case involving petitions to terminate sex offender registration. In Hamilton, the court of appeals held that a trial court erred when it found under G.S. 14-208.12A that removing a person convicted of indecent liberties with a minor from the sex offender registry after 10 years would not comply with federal standards. Rather, the court concluded, removal after 10 years would comply because (a) indecent liberties would be a tier 1 offense under the Sex Offender Registration and Notification Act (SORNA) and thus subject to a 15-year minimum registration period; and (b) that minimum registration period could be further reduced to 10 years based on SORNA’s “clean record” provision.

Drawing from Hamilton, this post sets out a framework for thinking about the “Wetterling finding” on Form AOC-CR-262. That finding, #7 on Side Two of the form, flows from G.S. 14-208.12A(a1)(2), which says the court may only grant a petition when doing so would comply federal standards “required to be met as a condition for the receipt of federal funds by the State.” To be clear, this analysis does not replace the baseline state law requirement that a non-lifetime registrant may only petition for removal from the registry 10 years from the date of initial county registration. G.S. 14-208.12A(a). And nothing in federal law trumps North Carolina’s rule that recidivists, sexually violent predators, and persons convicted of an aggravated offense must register for life. G.S. 14-208.23. Rather, this is an overlay that apparently must be considered in addition to those baseline rules, in light of G.S. 14-208.12A(a1)(2). I say “apparently” because the Hamilton court never affirmatively held that federal regulations as to registration length apply in North Carolina via G.S. 14-208.12A(a1)(2). The court of appeals certainly treated them as though they do, but as John Rubin pointed out in his comment to yesterday’s post, the threshold question of applicability wasn’t actually before the court.

SORNA covers lots of things, but for purposes of this discussion the relevant issue is registration length. SORNA creates three tiers of sex offenders, tier I, tier II, and tier III. Tier I offenders must register for at least 15 years, tier II offenders must register for at least 25 years, and tier III offenders must register for life. 42 U.S.C. § 16915(a). Given that North Carolina’s registry has only been in existence since 1996, nobody has been on it for more than 16 years. Thus, if the federal regulations do indeed apply, the only offenders for whom a court could make the Wetterling finding would be those who were convicted of a tier I offense. Anyone else would have to be registered for at least 25 years to be eligible for removal in a SORNA-compliant regime. (It’s possible, I suppose, that a person registered in North Carolina for an out-of-state crime may have previously accrued some time on another state’s registry. That time does not count toward the requisite 10-year period under state law—see this post about the meaning of “initial county registration”—but it probably could count toward the minimum federal requirement. The U.S. Attorney General’s final guidelines on SORNA say that the required registration period begins to run upon release from custody for an offender sentenced to incarceration and at the time of sentencing for an offender sentenced to probation. Nothing in the regulations says all of the minimum registration period must be from the same jurisdiction. 73 Fed. Reg. 38030, 38068 (July 2, 2008).)

What exactly is a tier I offense? I’ve discussed it and speculated about it in prior posts, but I’ve never actually spelled out the full definitions of the SORNA tiers on this blog.

Tier I is a residual category that includes sex offenders other than tier II and tier III sex offenders. 42 U.S.C. § 16911(2). So, the only way to identify tier I offenses is to know which offenses fall into tiers II and III.

Tier II offenses (defined in 42 U.S.C. § 16911(3)) are those other than tier III offenses (described below) that are punishable by imprisonment for more than one year and:

Are comparable to or more severe than the following offenses, when committed against a minor (or an attempt or conspiracy to commit them):

  • Abusive sexual contact under 18 U.S.C. § 2244 [The crime of abusive sexual contact generally requires, among other things, that the defendant engage in or cause “sexual contact” with or by another person, defined in 18 U.S.C. § 2246(3) as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person];

OR

That involve:

  • Use of a minor in a sexual performance;
  • Solicitation of a minor to practice prostitution; or
  • Production or distribution of child pornography;

OR

  • That occur after the offender becomes a tier I sex offender. [This provision won’t come into play in our regime because anyone who commits a second or subsequent sex crime would be a recidivist and thus required to register for life under G.S. 14-208.23.]

U.S. Department of Justice (USDOJ) guidelines on SORNA summarize the tier II requirements nicely by saying that they essentially cover: (1) offenses involving the use of minors in prostitution; (2) offenses against minors involving sexual contact—i.e., any sexual touching of or contact with the intimate parts of the body, either directly or through the clothing; and (3) offenses involving the production or distribution (but not the mere possession) of child pornography. 73 Fed. Reg. 38030, 38053–54.

Tier III offenses (defined in 42 U.S.C. § 16911(4)) are those that are punishable by imprisonment for more than 1 year and:

Are comparable to or more severe than the following offenses (or an attempt or conspiracy to commit them):

  • Aggravated sexual abuse under 18 U.S.C. § 2241 or sexual abuse under 18 U.S.C. § 2242; [“Sexual abuse” crimes generally require, among other things, the commission of a “sexual act,” defined in 18 U.S.C. § 2246 as contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or the mouth and the anus; penetration of the anal or genital opening of another by a hand, finger, or any object; or direct touching, not through the clothing, of the genitalia of a person under 16.]
  • Abusive sexual contact under 18 U.S.C. § 2244 [described above in the tier II offense definition] when committed against a minor under 13 years old;

OR

  • Involve kidnapping of a minor (unless committed by a parent or guardian);

OR

  • That occur after the offender becomes a tier II sex offender. [Again, this provision won’t come into play here because anyone who commits a second or subsequent sex crime would be a recidivist and thus required to register for life under G.S. 14-208.23.]

If the petitioner’s registration offense does not match up with any of the descriptions set out above, then North Carolina would be permitted under SORNA to treat it as a tier I offense. (The state might actually choose to require a longer registration period, but again, the question before the court at this point is whether removal from the registry would comply with the federal standards themselves.)

How exactly should the court go about determining whether a registration offense meets the tier II or tier III definitions? Federal regulations say that when assessing whether an offense satisfies the tier II or tier III classification, “jurisdictions generally may premise the determination on the elements of the offense, and are not required to look to underlying conduct that is not reflected in the offense of conviction.” 73 Fed. Reg. at 38053. That is reminiscent of (although not directly governed by) North Carolina’s approach to determinations of “aggravated offenses” for our satellite-based monitoring law: the court looks only at the elements of the conviction offense, not at the facts that may have led to the conviction. (That issue is discussed here.) Under that approach, it seems right that a crime like indecent liberties—which can, by its elements, be committed in ways that do not involve “sexual contact” or “sexual acts” as defined above—could be a tier I offense in a SORNA-compliant regime. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime 247–48 (7th ed. 2012) (collecting cases on indecent liberties, including, for example, a case involving a defendant who French kissed a child and another in which the defendant secretly videotaped a teenager trying on clothes). Federal regulations make an exception to the elements-based approach for tier classifications that depend on victim age: those requirements must be obeyed even for crimes whose elements do not specify that the victim must be below the threshold age if the victim was in fact below it. 73 Fed. Reg. at 38053.

If the court concludes through this approach that a registrant’s offense is not required to be a tier II or tier III offense under SORNA, then it would not violate SORNA to treat the offense as tier I and to grant his or her petition to come off the registry—if the person had been registered for 15 years. The only offenders registered for fewer than 15 years for whom the court could make the Wetterling finding are those who were convicted of tier I offenses and who also have a “clean record” as defined in 42 U.S.C. § 16915(b)(1). As I discussed yesterday, to have a clean record, the person must:

  • Not be convicted of any subsequent offense for which imprisonment for more than 1 year may be imposed;
  • Not be convicted of any subsequent sex offense;
  • Successfully complete any period of supervised release, probation, and parole; and
  • Successfully complete an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General.

USDOJ guidelines on SORNA note that the requirement to “successfully complete” any period of supervised release, probation, and parole means “completing those periods without revocation.” 73 Fed. Reg. at 38068. If a tier I petitioner satisfied all four prongs of the clean record requirement, the court could make the Wetterling finding and grant his or her petition after 10 years of registration.

If fewer than 10 years have passed since the person’s date of initial county registration, he or she is not eligible for removal from the registry. That’s really just a matter of state law under G.S. 14-208.12A, but it would also be true under the federal regulations.

I apologize for the length of this post. This is a difficult issue, and my sense—based on the many questions I have been asked about it—is that people don’t have ready access to the resources they may need to resolve it. If nothing else, I hope the post will be useful to the extent that it collects and links to the primary source materials you will need to decide whether the federal regulations apply, and, if so, a starting point for how to apply them. If the General Assembly takes any action related to SORNA compliance during the short session, I’m sure I’ll write about it here.

18 comments on “Petitions for Removal from the Sex Offender Registry: The Wetterling Finding — Part II

  1. How about changing the AOC form and eliminate the #7 option. We do not fall under SORNA and hopefully never will. Maybe one day the legislature can revisit the sex offender laws in general. They certainly need to be streamlined. It seems that now offenders who may be lifetime registrants in other states move to NC and can petition for removal after ten years. These laws are a joke. They certainly do not make me feel any safer.

  2. Mark, the exact problem with sex offender laws is that their only true purpose for existing is to make people FEEL safer. They do nothing to improve actual safety of general society, and may bring about more harm than good in multiple ways: destabilizing social supports required for successful reintegration, severely hindering ability to meet basic living requirements (food, water, shelter, employment), and lulling people into a false sense of security by publishing a “bad guy list” instead of a more broad education about not becoming a victim in the first place.

    The laws are indeed a joke. They are hard at work reducing everyone’s safety, and North Carolina seems to think that’s a good thing–so much so that people like yourself call for more powerful laws to more effectively reduce the safety of the general population. What people reading this whilst foaming at the mouth are ignoring is the fact that I’m advocating for the exact same thing they ultimately are: increasing the safety and stability of our society. While there are vast numbers of studies that prove these laws perform a de facto function opposite of their stated purposes, they “feel good” and that’s all that matters to the “squeakiest wheels” in the state.

  3. I guess my comment was not clear. Angry Offender, I think the whole sex offender registration process is a joke. The legislators should focus on requiring longer prison sentences for violent sexual predators and pedophiles. If they must be monitored upon release, let them “reintegrate” through post release supervision for an indefinite period of time. Furthermore, I do not need the government to provide a “more broad education about not becoming a victim”. How do you suppose the government can educate a child about not becoming a victim of sexual abuse from a parent, sibling, relative, coach etc.?

    Government: Now Little Johnny… if your drunk Uncle Bobby tries to molest you then go to your happy place.

    Little Johnny: Ok. I can pray that I’m a bird… and fly…far far away.

    We build prisons for a reason. It for people like Uncle Bobby.

  4. I agree that the sex offender registry is solely a ‘feel-good’ program that does nothing to prevent abuses and everything to ostracize offenders; it terrorizes people into demanding more draconian laws and making sex offenders more withdrawn and spiteful of society.
    If we continue to deceive ourselves that knowing everything about everyone is good, then why not a registry for every felon? People have more to worry about from gangsters and robbers than non-violent sex offenders. Why stop there? Put misdemeanors, too; I’ll know JUST who to point the blame if something goes missing.

  5. Does a tier 1 offender automatically come off the registry after 15 years ?

    • No, the offender is ‘eligible’ for a review by the court, but by no means does it have to be granted nor is it automatic.

      • Can Teir III offender who took a plea bargain at his attorney’s suggestion get off registry?

  6. The main problem I have with the SOR is that there are offenders listed who are not a risk to the public at all, and having people on the SOR who have not committed a true sex offense against anyone with the most serious and dangerous sex offenders dilutes the effectiveness of the registry, and gives the public a false sense of security. The more offenders on the list, the harder it is to monitor all of them. I want to research the NC SOR and calculate how many of the offenders who are listed committed hands- on offenses. When a person is on the SOR, it makes reintegration into society very difficult, and to subject people who are not dangerous to the same supervisory restrictions as someone who committed an offense involving actual contact, is just a waste.

  7. I need advice! Is there any way for someone who is considered a Tier II offender to seek removal from the SOR? My husband has been told by a local attorney that as a Tier II offender, he will NEVER be eligible for removal from the list. Although, his conviction happened in Georgia in 1992 and he was not required to register in North Carolina when we moved here in 2002 (because his conviction was before 1996), he did so to satisfy his requirements to Georgia. He had to insist to be voluntarily put on the list to appease his requirements to Georgia. He then had to wait ten years before petitioning the court to be removed from the list. He hired a local attorney (actually a former prosecutor for the county) and had a hearing scheduled before a judge. Only one day before the hearing, the attorney returned his payment and told my husband that the Federal laws had so recently changed that he was not aware of them. He told us that SORNA took precedence over the state laws which had not yet been changed to reflect the new Federal guideline. The attorney also said my husband would never be allowed to have his name removed from the registry.

    I have tried to read the NC state laws pertaining to this and they don’t seem to reflect what we have been told. Also, I have not been able to locate any information which would indicate the SORNA guidelines were somehow updated in 2013 as we were told.

    Can anyone shed any light on this very confusing and complex issue?

  8. Mr. Markham,
    I am representing myself next Wednesday (11/13) for a petition hearing to terminate my being required to register on the NC sex-offender registry. Can I make objections during the proceeding? For example, I have two moving violations (both relating to the same event) which I incurred during the ten-year post initial registration period, but both charges were dropped/dismissed. Can I make an objection if the ADA chooses to mention these carges to the Court at my petition hearing?
    Thank you,
    John Mc

  9. Hi.

    Concerns are based upon NC SOR laws.

    Can’t seem to find the obvious answer to a simple question. My lawyer says he has send the petition to Raleigh. However, as of yet I have signed no papers, including any affidavit pertaining to my petition. Furthermore, non of my references have as yet received any papers for signing and such. Should not the petition include the affidavit, or am I at error.

    My basic question: What is the actual process of filing and how do the roles of the petition and the affidavit intertwine?

    Many thanks for any help..

  10. Can a Tier III offender who was found to be innocent after he took a plea deal and completed incarceration time be removed from registry after 11 yrs of registering?

  11. Innocent people are becoming Sex Offenders. Look at Brian D. Hill who was charged in the Greensboro Federal Court with child pornography.

    See his case files here:
    https://archive.org/details/USAvHill

    He was framed with child porn after he was going to remove a North Carolina Senator from Office of power. Politics can be one very reason for wrongful convictions.

    Corrupt State Senators of North Carolina should quit setting people up with child porn. I have read the Whistleblower with the leaked SBI Document and know for a fact that Brian David Hill was framed with child porn photos. Child porn was downloading after the fact that Brian’s computer was seized by law enforcement. The corrupt U.S. Attorney doesn’t care at all about this fact.

    Just more innocent people being added to the witchhunt Sex Offender Pretender Registry.

  12. Thank you for posting this kind of stuff because it is really important to me. I have a guy that I am really in love with, but I break up with him because his child like ways, he does jealous game with me because he is jealous of me, he likes to me upset and he is a sex offender too. He told me his story, I told lawyers, law enforcement, Department Of Corrections and they took my emails seriously. He lost his mom when he was thirteen years old, so he lived in foster care. His parents lost him at a young age because the law enforcement caught his parents at a bar with him when he was a baby. When he was eighteen years old he got kicked out of foster care. He met his victim when she was fourteen years old. He kissed her and spanked her once and they were dating at the time. They really liked each other, but he told me she was really mean to him and he wrestled her down because she was mean to him and he couldn’t take it. He lived with her, but she admitted he was down stairs most of the time and he had a job too. The mom took his car to steal money from Sonic, the nephew dressed up like him and stole money too and they tried to get him in trouble, but the nephew ended up saying it was him. In 2009, the victim accused him of raping her, they took the rape test, the DNA test said he never raped her, the Polygraph said he never raped her and she is telling people he is rapist, but that is not true because the Sheriff’s papers said that they never had sex with her and I saw it too. So he is going to court in September to see if he is able to get off the sex offender registration. I have been fighting with him for a long time. The victim called me a twelve year old that needs to go back to Elementary School, she said that I am an idiot, he is a liar, he is crazy, I really do want him to get off there. Please pray for us. She is not a very friendly person. She was telling the judge lies and she admitted that the Parole Officer was sending letters to her and they were sending letters to her about me. They told her what I was saying about her to the lawyers, law enforcement, this man works for the Department Of Corrections and that is not right. Have a great day. I have dealt with this for two years to try to get this off his record. God bless you. I hope you make a difference in people’s lives.

  13. i was wrongly convicted of shoplifting when i was young and it was really my friend that did it,i was cleared after 2 years but the record was never changed or removed,this affected me when i was to go to college and even get a part time job,once a background check is carried out wherever i worked i ended up losing any well paying job till i friend from work introduced me to a group of ethical elite hackers who helped get all my records removed from everywhere they ever existed and till date those records are never hunting me again ,i suggest u contact eliterealhack(((at)))gmail(((dot)))com and thank me later.

  14. […] federal registration period. Only for Tier I offenders with a defined “clean record” (discussed here) could a judge make the finding necessary to allow removal in as few as 10 […]

  15. […] minimum federal registration period. Only for Tier I offenders with a defined “clean record” (discussed here) could a judge make the finding necessary to allow removal in as few as 10 […]

  16. Can someone provide me and others with the following information? Suppose a sex offender has completed his incarceration, parole and or probation. Suppose he is no longer required to register as a sex offender in the state were he was convicted, either because a required amount of time has passed or a judge has released him. For example, in the state of New York a Level 1 sex offender, the lowest of three levels, is automatically released for sex offender requirements after 20 years. In the state of New Jersey a Level 1 sex offender can petition the court for release from sex offender requirements after 15 years. Suppose he goes to another state after his sex offender requirements in the state where he was convicted are over. Can he be required to register there as a sex offender? If so, would it be possible for the government in the other state to find out if he was once a registered sex offender in his home state? Also, if two states have time limits on sex offender registration does “the clock” in both states start from when the person was placed on the sex offender list in the state where he was convicted or when he enters the other state? In other words, if a Level 1 sex offender in NY is released from listing after 20 years and goes to NJ does he have to register there since NY, where he was convicted, no longer requires him to register as a sex offender? If NJ does require him to register can he immediately petition the court to release him or must he be registered in NJ for an additional 15 years before he can petition the court for release? If over 50 jurisdictions can each have their own requirements for people who have already been released from sex offender requirements in the state where they were convicted it will result in an impossible situation that were cause trouble for everyone.
    Realistically, I think that most sex offenders forget that there might still be legal restrictions on them soon after their incarceration, parole or probation is over, or they only remember that they have to fill out a yearly questionnaire or report a residence change. Even more sex offenders probably believe that once they are free of restrictions in the state where they were convicted they are free of restrictions everywhere in the US.
    Please reply to my email jchem70@outlook.com since I probably will not log onto your web site in the future. I only encountered your website through a question that I asked Google.

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