Sex Offender Registration as a Bargaining Chip

I am sometimes asked if a defendant convicted of a reportable sex crime can plea bargain his or her way out of the obligation to register. I have also been asked if a defendant convicted of a non-reportable offense can plead his or her way into registration.

A formal advisory opinion from that state attorney general’s office suggests that the answer to both questions is no. The June 24, 2002 opinion letter, available here, was issued in response to a sheriff’s inquiry as to whether a particular person was required to register as a result of a federal conviction for sexual abuse of a ward. The letter concluded that the offender needed to register because that crime is substantially similar to G.S. 14-27.7(a), intercourse and sexual offense with certain victims, an offense that is reportable here. The opinion probably could have left it at that, but it went on to say that “it is our opinion that once an offender is convicted of a reportable offense . . . . the individual is subject to registration and no authority exists to alter this requirement. . . . No exceptions exist in North Carolina’s Sex Offender Registry Program either to exclude an otherwise registerable offender from the program, or to include an otherwise non-registerable offender in the program.”

I tend to agree. At the most basic level, plea agreements purporting to excuse a defendant from the obligation to register for a reportable conviction appear to run afoul of G.S. 14-208.7, which says offenders with a reportable conviction “shall be required to maintain registration.” Just as a defendant may not plea bargain around the sentencing laws, it seems to me that he or she may not plead around the registration requirement. See State v. Wall, 348 N.C. 671 (1998) (holding a defendant was not entitled to specific performance of a plea bargain for a concurrent sentence when a consecutive sentence was required by law, notwithstanding the prosecutor’s consent).

Moreover, it’s not clear that sex offender registration is generally something the court has authority to order (or not order) at all. Only in cases involving peeping crimes under G.S. 14-202(l) and aiding and abetting under G.S. 14-208.6(4)(a) does the court have to enter an affirmative order or make findings to trigger the registration requirement. Otherwise, aside from probationers ordered register as a special condition of probation under G.S. 15A-1343(b2), registration is a matter between the registrant and the sheriff that flows from the reportable conviction alone. But see State v. Phillips, __ N.C. App. __, 691 S.E.2d 104 (2010) (referencing a trial court “order requiring defendant to register as a sex offender for the duration of his natural life”). Only since the advent of determination hearings for satellite-based monitoring have trial courts routinely entered “orders” (on forms AOC-CR-615) requiring registration. The judicial notification required under G.S. 14-208.8 for defendants who do not receive an active sentence (for which judges may use AOC-CR-261) is not an order, but rather notice to the defendant of his or her duty to register.

I’ve heard this issue might soon be before the court of appeals. If it results in a reported case I’m sure I’ll write something about it here.