Petitions to Terminate Sex Offender Registration (Part II)

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The other day I posted my thoughts about the “Jacob Wetterling” provision in G.S. 14-208.12A.  While that provision raises what I think are the most difficult questions related to petitions to terminate sex offender registration, they are by no means the only questions. Here are some others (along with my best attempt to answer them, of course).

 

Whom does the registrant petition? The superior court in the district where he or she resides-not necessarily the district of conviction. G.S. 14-208.12A(a). The petition is heard before the superior court even if the crime requiring registration was a misdemeanor (e.g., sexual battery).

 

What type of proceeding is the termination hearing? AOC has advised clerks to treat termination hearings as a part of the criminal action; the hearings probably are not special proceedings under G.S. 1-3. As such, additional court costs should not be assessed on petitioners. The statute does not provide for any fees, unlike, for instance, the statutes governing petitions for certain expunctions. See, e.g., G.S. 15A-145(e) (assessing a $125 fee).

 

Does an offender who moves to North Carolina after registering for several years in another state get credit for the time spent registered there? Apparently not. G.S. 14-208.12A(a) refers only to the date of “initial county registration,” which appears to refer to registrations in this State in the “county where the person resides.” G.S. 14-208.7.

 

Can a registrant’s petition be granted if he or she has ever been arrested for failure to register? I get this question a lot, and my answer is: technically, yes. Failure to register is not itself a reportable conviction, and thus does not require registration under Article 27A. Therefore, I don’t think an arrest for failure to register falls within the language of G.S. 14-208.12A(a1)(1), precluding relief for a registrant who has ever been “arrested for any crime that would require registration under this Article.” Of course, any offender who has been arrested for failing to register may fail the criterion in G.S. 14-208.12A(a1)(3), regarding the court’s satisfaction that that petitioner is not a threat to public safety. On a sort-of related note, Form AOC-CR-262 requires a finding that “[t]he petitioner has complied with the North Carolina registration requirements of Part 2 of Article 27A for at least ten (10) years” before a petition can be granted. Nothing in the statutes technically requires 10 years of “compliance”; that finding might be better worded as 10 years of “being subject to” the registry. In other words, an offender who has had some transgression related to his registration (e.g., a late semiannual update to the sheriff) is not per se barred from a successful petition to terminate. But again, Information about such transgressions is fair game for the judge under G.S. 14-208.12A(a1)(3).

Is the registrant entitled to appointed counsel at the termination hearing? No, not as a statutory matter under Chapter 14 or Chapter 7A. There is an argument that, in light of the complicated nature of the hearing, a registrant has a right to appointed counsel as a matter of constitutional due process, though there are no cases finding such a right. Some states provide for appointed counsel at hearings to review sex offender classification. Loe v. Sex Offender Registry Board, 901 N.E.2d 140 (Mass. Ct. App. 2009) (discussing the statutory right to counsel in Massachusetts).

 

What happens if the petition is denied? If the court denies the petition to terminate registration, the registrant may petition the court again one year from the date of the denial. G.S. 14-208.12A(a3).

Do the rules in G.S. 14-208.12A also apply to petitions to terminate satellite-based monitoring? No. Requests to terminate SBM are filed with the Post-Release Supervision and Parole Commission under G.S. 14-208.43, not with the courts.

20 comments on “Petitions to Terminate Sex Offender Registration (Part II)

  1. If a petition is filed to soon does the petitioner still have to wait another year before he can file again. Motion was 7 days too earlier.

    • When I filed the AOC-CR-262 Petitition for Termination form, the clerks office instructed me to be in court 18 days later. I am unsure if this meets the three week requirement of service upon the District Attorneys office. To the best of my recollection, three weeks is equivalent to 21 days which places me in the court room for the hearing 3 days shy of the required waiting period. I kinda of felt like it was an automatic set up to fail on these grounds. guess I will just have to wait and see.

  2. christina shue: I think G.S. 14-208.12A(a3) — the statute that requires a 1-year waiting period after a petition is denied — was probably meant to apply to denials on the merits under the criteria set out in G.S. 14-208.12A(a1). In your situation the petitioner wasn’t entitled to petition and the court was not empowered to hear the matter until 10 years from the actual date of initial county registration.

  3. Nc Statutes says that For offenders convicted in North Carolina who receive an active sentence and are
    subject to registration after release from a North Carolina penal institution, an
    official of the penal institution will, within at least ten (10) days, but not earlier than
    30 days before the offender is due to be released:
    a. Inform the offender of the their duty to register under Article 27A of
    Chapter 14, of the North Carolina General Statutes, and require the offender
    to sign a written statement that the offender was so informed, or if the
    offender refuses to sign the statement, certify that the offender was so
    informed.

    What if pre release notification was not given. But offender was informed after release from DOC.

  4. Nc Statutes says that For offenders convicted in North Carolina who receive an active sentence and are
    subject to registration after release from a North Carolina penal institution, an
    official of the penal institution will, within at least ten (10) days, but not earlier than
    30 days before the offender is due to be released:
    a. Inform the offender of the their duty to register under Article 27A of
    Chapter 14, of the North Carolina General Statutes, and require the offender
    to sign a written statement that the offender was so informed, or if the
    offender refuses to sign the statement, certify that the offender was so
    informed.

    What if pre release notification was not given. But offender was informed after release from DOC.

  5. christina shue: Is the idea that the registrant should be credited for those days he would have spent on the registry had it not been for DOC’s failure to inform him of the obligation to register prior to release? (And that those extra days would give the registrant the seven days he needs?) I don’t know of a case that directly addresses the question. State v. Harris, 171 NC App 127 (2005), is one of the very few cases to address the notification statute at all, and it adopts a somewhat flexible approach to the requisite notice. For some defendants, if DOC completely fails to give notice the offender cannot be convicted of failing to register, State v. Young, 140 N.C. App. 1 (2000) (involving a person who had been adjudicated incompetent), but it doesn’t follow from that decision that an offender should be credited with the unregistered time.

    If it wasn’t clear from my earlier response, I do think there’s a strong argument that the registrant should be allowed to file again when the 10-year window actually opens without having to wait an additional year.

    (I’m sorry I missed this comment the first time you posted it.)

  6. iwas released on nov6-99 ive been living in puerto rico and in florida now
    it has passed 20 days after my ten years of registration period
    now i have a 8 year old daughter and a 5 year old son they know nothing
    of my registering, but being in florida they aventualy find out cuse overhere
    you donot feel free like a you should and having kids idont want them being ashame of their father.how can i save myfamily a married man from florida.

  7. i had registered always on time for ten years.am i elegible for any kind of petition? and how. conviction was two counts of indecent liberties with minor

  8. Can You list a step by step process for petitioning to be removed from the registry after the ten(10) years have elasped?

    Is it best to hire a lawyer for these proceeedings?

  9. my father was charged 13 years ago with 3 counts of indest libertys with a minor……

    When you go in front of the Judge to get off the registry.. What questions are asked and what may i need

    Can he have a Court Appointed Attorney

  10. Some of these issues are being addressed this year.
    http://library.ncleg.net/Sessions/2011/Bills/House/PDF/H219v1.pdf

    Is the victim/victim’s family notified of the petition? I found this annoyingly short article.

    http://www.charlotteobserver.com/2011/03/08/2121558/former-nc-minister-wants-off-sex.html

    Has anyone successfully been removed from the registry?

  11. the registry is a violation of a person’s privacy. there is no proof that it prevents new crimes since 94.7% of all new crimes are done by new sex offenders. the sex offender laws are passed for one purpose and one purpose alone – to get politicians re-elected. they destroy the lives of people who have to follow the myriad of rules on there and they set people up for failure in employment housing and relationships. the registry has set me back about $400,000 in lost potential income. wasted my college degree, ruined my real estate license and destroyed my training in electronics and microprocessor technology. they dont allow people to get off the registry . they just want to be able to make it easy for them to re-arrest you and keep you off the streets. its basically payback time , they want an opportunity to keep destroying your life because they never learn that enough is enough. besides the many people who have been made homeless by these stupid laws and unemployed the us govt and the politicians and are now responsible for the murder of 11 innocent people. the only reason they were killed was because the person looked that persons information on the computer found out he was a sex offender and decided to take the law into his own hands. so basically the federal govt and all the politicians who voted for megans law are personally responsible for those deaths and its time to collect from them. i would suggest as a sidenote that anyone who passed megans law be tried as war criminal and locked up for life without any rights like they tried to pass on all of us.

  12. Mr. Markham;
    15 aug. 11. I had hearing in watauga superior court judge Ginn. Petition to terminate registration etc. I did an Allford plea to indecent liberties minor in 1996 was originally to have suspended sentence and attend 3 day week”therapy” for two years.Turned out said “therapy” was group of similar whom are required to address their “desire” for children to/with the group and facilitator daily and to continually assert that I did not remember the act of grabbing young girls breast through her clothes while in a blackout from 1/2 gallon gin every day. that I was minimizing denial etc.My alcoholism amounts,blackouts were all well documented. I do not deny offense but I will not admit to depravity and some underlying insiduous want for babies and children.
    So I did the active sentence 19-23 months and registered summer of 98’when released. First wife divorced me around the time I was released and subsequently I was homeless in asheville and not having an address fail to register. Eighteen months more in D.O.C. though time on the registry is still being added because no matter where I was with DOC I registered anew w\county sheriff.Fast forward 2011 Petition Judge Ginn said “I could take his denial, because although NC does not choose to adhere to SORNA and other fed regulations He does” or”I could continue to a date when another judge possibly could give a more favorable ruling though he does not know of a judge in NC that would” also told me that I should” be more prepared”,” build a good case”, for assertions in the petition. I was not aware that I needed a lawyer and couldn’t afford one anyway.How can one prove that they are no longer a threat danger to society? please forgive me for my unprofessional writing standards and I would greatly appreciate any suggestions you might have my new court date is for 26 sept 11 in Watauga thank you very much for your time and consideration! steven james merrell

  13. Could you please tell me if the district court finds no call to have someone placed on the SBM for life but the judge orders it anyway what woud someone have to do to terminate this?

  14. Im a sex offender in nc but my reg. has expired where I arrigonally had the offense. I moved here in NC to get married 03/2007. do I have to waite ten years after 03/2007 to petition?

  15. My heart does not break for any sex offender on a registry. Behaviors have consequences. If you don’t like the consequence don’t participate in the behavior. Don’t get drunk, don’t do drugs and don’t molest innocent children. COntrol yourself and behave according to the rules of society. THen you won’t have to suffer the consequences of your own actions.
    The children you molest are the only innocents in this. They were not drunk, drugged nor did they “make a mistake”. Yet their suffering will be lifelong.

    If you don’t like the rules don’t enter the arena. As you can see most citizens don’t break the rules and harm children. You want a second chance? Start at the bottom and work your way up. You threw it all away when you touched a child. No one took it.

    Until you begin to recognize who is at fault you will never fix yourself.

    • This is bullshit because theres a lot of innocence people doing Buck Rodger years and then they find out that they really didn’t commit the crime even people on the streets that have to register and then fight to get their case over turned and come to find out they are innocence what a damn shame. don’t get me wrong there are people out there that need to be on there but its a lot of people that don’t so its bullshit what your saying so sorry

      • Way to go you are so right about that. People need to look at how many people have been charged but have not done anything. But for most children do lie and they know all they have to say is a man touched me and there are some women like that so until you are in a reg sex offenders shoes and you have something negative to say it’s best not to say nothing because you have no clue what they have been through

    • Harriet:

      After reading most of the comments in this blog, I found yours to be the most interesting.

      I want to start by saying that I agree that all human actions have consequences. When we live by the rules of society, we are still thrown rocks in the process. Society dictates how and when a person should be looked at in a specific manner. Who is society? You and many me and everyone else in-between.

      However, the truth of all this conversation is, that society all have different views and oponions that make all these offenders register on this list that allows for discrimination and bullying. Is that right? How would you feel if society looked at all women and made us register as a women and then was able to determine the kinds of jobs we are allowed to perform or where we are allowed to work and so forth. I understand that women in the United States has not performed an act of crime, but in some countries, just the act of being a women makes you vunerable to these discriminations.

      Ok, if an offender does a horrible act of touching a child inappropriately, then I agree that those offenders should be monitored closely as with these registrations etc. However, the laws that are currently in place and dictate what crime is appropriate to allocate this sexual offender designation, are full of holes and biases. They even hurt more individuals than help those children that this law was created to protect.

      Put yourself in someone’s position here: You have a child that was engaging in inappropriate communications with a minor over the internet in an “adult intended” social network and then the “victim” invites your child to text messaging and begins to talk about sexual content. Let’s say this “victim” the child that the law protects, offers your child to do things that are very inappropriate for a 15 year old child. Your child is a young man and falls to the temptation of this 15 year old child offering to do things that no 15-year old should even be discussing, in my oponion. Yes, I agree that the young man should have some self-control in this situation, but it does not dispute the fact that this 15-year old child has the knowledge of an adult of acts of sexual content and begins to solicit themself. This so called “victim” was having these same discsuions with 8 other men. They also had done this in the past to many others. The law still calls this 15-year old a victim of sexual offenses and charges the young man with enticing and luring a chid with an attempt to perform sexual activity. Really?

      Moral of the story is many young lives are being distroyed by these laws that are supposed to protect the innocent children. This 15-year is not an innocent child that should have never endured this kind of behavior. How does society react to this kind of crime. Places a young man behind bars, gives him probation and makes him register as a sex offender for the rest of his life. Really? Is that protecting the children? I’m sorry if I see things more clearly in regards to every story has two sides and the laws do not allow for the 2 stories to be heard before prosecuting and destroying young lives. Should the information about this 15-year old talking to 8 other men and doing this on multiple occasions, not be heard in this case? Why not? Because she is the victim? How about the young man that was having these conversations, never in trouble in his life, ex military, ex EMT very loving and couteous young man that will forever endure a life of discrimination and harrassment by society.

      Society as a whole is messed up in my oponion because we are taking sides without considering the facts involved in the entire situation and thus a lot of innocent lives are being destroyed in the process.

      In this case, the 15-year old girl is free to continue to talk to men over these social netwroking sites without any consequences of her actions to destroy a person’s life in the process. My son will be chastised a sexual offender for the rest of his life for falling in a police-enticed trap to get men that are talking to children over the internet off the streets- a polical game changer for many politicians as my attorney told us. So may the whole world be more educated and do some research on the many lives that these corrupt politicians will destroy with issues that society deems necessary to protect the children.

  16. Someone please confirm this: Whom does the registrant petition? The superior court in the district where he or she resides-not necessarily the district of conviction. G.S. 14-208.12A(a). The petition is heard before the superior court even if the crime requiring registration was a misdemeanor (e.g., sexual battery).

    I am a Tier I, my conviction was in NC, I have been registered now for 16 years and live in another state. I have lived in my current state the entire 16 years. I CAN FILE MY PETITION IN MY CURRENT STATE NOT NC?

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