Petitions to Terminate Sex Offender Registration (Part II)

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.