It’s time to post an updated sex offender registration and monitoring flow chart. The new chart is available here. It incorporates the following issues, which were resolved by recent appellate cases.
“Final conviction” for registration purposes. As discussed in this prior post, the Supreme Court of North Carolina affirmed the ruling of the court of appeals that a person who receives a PJC for an otherwise reportable offense is not required to register. Walters v. Cooper, 748 S.E.2d 144 (2013). By contrast, a superior court conviction on appeal to the appellate division requires registration during the appeal’s pendency. State v. Smith, 749 S.E.2d 507 (2013). A note on these cases is added to the first page of the chart.
Bring-back hearing venue. If a satellite-based monitoring determination hearing is not done at sentencing, the corrections system is required to bring the person back to court for a determination hearing. The proper place to hold that hearing is superior court in the county in which the offender resides. G.S. 14-208.40B. In State v. Mills, 754 S.E.2d 674 (2014), the defendant complained that the State failed to put on evidence that he lived in Buncombe County, and that the trial court therefore lacked subject matter jurisdiction over the hearing held there. The court of appeals disagreed, holding that the place-of-hearing provision in G.S. 14-208.40B relates to venue, not jurisdiction, and that any objection to it was therefore waived by the defendant’s failure to object in the trial court. (Note the difference between this case and In re Dunn, 738 S.E.2d 198 (2013), which deemed the requirement to hear a petition to terminate sex offender registration in the county of conviction to be a jurisdictional requirement.)
Aggravated offense. A new case regarding what crimes qualify as an aggravated offense is added to the back of the chart. In State v. Talbert, 756 S.E.2d 98 (2014), the court of appeals held that second-degree rape of a physically helpless victim under G.S. 14-27.3(a)(2) is an aggravated offense. The court rejected the defendant’s argument that the crime was not aggravated because it did not involve force as an element. Citing prior supreme court case law, the court of appeals concluded that rape of a mentally disabled or incapacitated person necessarily involves sufficient use or threat of violence to qualify as an aggravated offense for SBM purposes. Talbert confirms the view that, under the requisite elements-based analytical framework, all reportable rapes are aggravated, and all other sex crimes (sexual offense and indecent liberties, mainly) are not.
Findings that may trump a Static-99. As noted here, a judge is not bound by the results of the Static-99 risk assessment when determining whether an offender requires the “highest possible level of supervision of monitoring,” and thus SBM for a period determined by the court. The chart is updated to include the rejected additional findings from State v. Jones, __ N.C. App. __ (June 3, 2014). In Jones, the court of appeals held that the trial court erred by making findings related to a “prior sexual offense” that actually turned out to be a conviction for assault on a female (a non-reportable offense). Though that assault had initially been charged as a first-degree sexual offense, the court concluded that the judge should not have looked at the facts underlying the prior conviction to make its determination that the defendant required the highest level of supervision and monitoring.
All-in-all, relatively minor revisions to the chart this time around. I’m not aware of any major legislative initiatives related to sex offender registration during this short session, despite the fact that North Carolina—like most states—continues to be out of compliance with federal rules on sex offender registration, which costs the state a relatively small amount of grant money each year. Remember that this chart only covers “front-end” decisions related to registration and monitoring. For a discussion of all the additional restrictions and crimes related to registration, see John Rubin’s excellent publication here. And for help with petitions to terminate registration, see this outline.