With another legislative session in the books, it’s time for an update to the sex offender registration and monitoring flow chart. Continue reading
Tag Archives: flow chart
Today’s post is an update to the sex offender registration and monitoring flow chart. (It’s really more of a cheat sheet than a flow chart, but after seven years of calling it a flow chart—the first version appeared in 2009—I’m going to stick with it.) Continue reading →
Category: Sentencing, Uncategorized | Tags: cheat sheet, flow chart, satellite based monitoring, sbm, sex offenders
It’s time to post an updated sex offender and monitoring flow chart. I was going to do it last week, but I’m glad I didn’t. Yesterday, the Supreme Court of the United States reversed North Carolina’s appellate courts on an issue that may impact the constitutionality of SBM. The new chart, available here, incorporates Grady v. North Carolina and includes several other changes. Continue reading →
Category: Sentencing, Uncategorized | Tags: flow chart, Grady, satellite based monitoring, sbm, sex offenders, Static-99
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.
Category: Sentencing, Uncategorized | Tags: flow chart, satellite based monitoring, sbm, Sentencing, sex offenders
With another legislative session in the books, it’s time once again for a revised sex offender flow chart. The revised chart is available here. The changes are summarized below.
New reportable offenses. Session Law 2013-33 added human trafficking under G.S. 14-43.11 to the list of sexually violent offenses that require sex offender registration, but only when the crime is committed against a person under 18 years old, or against any person with the intent that he or she be held in sexual servitude. (Sexual servitude under G.S. 14-43.13 is already a reportable offense.) Qualifying offenses committed on or after December 1, 2013 are reportable.
Session Law 2013-368 made several amendments related to human trafficking and prostitution offenses. Most notably for the purpose of today’s post, the act repeals two reportable offenses, promoting prostitution of a minor (G.S. 14-190.18) and participating in the prostitution of a minor (G.S. 14-190.19), and replaces them with two new reportable offenses, patronizing a prostitute who is a minor or mentally disabled (G.S. 14-205.2(c) and (d)), and promoting prostitution of a minor or mentally disabled person (G.S. 14-205.3(b)). The new offenses are reportable for offenses committed on or after October 1, 2013. Though the repealed offenses are removed from the definition of a sexually violent offense in G.S. 14-208.6(5), a savings clause in the legislation makes fairly clear that the prior law continues to require registration for offenses committed before the new law’s effective date.
Extra factual findings that trigger registration. For most reportable crimes, registration flows automatically from a defendant’s conviction. Some crimes, however, require the finding of some additional fact or facts in order to be reportable. For example, a kidnapping, abduction of children, or felonious restraint conviction meets the definition of an “offense against a minor” only when the victim of the crime is a minor and the defendant is not the minor’s parent. G.S. 14-208.6(1m). The revised chart includes a reference to State v. Arrington, __ N.C. App. __, 741 S.E.2d 453 (2013), which held that the court is not limited to the elements of the conviction offense when making these additional findings. (I think this could raise a Blakely issue if the additional facts trigger increased post-release supervision or a longer maximum sentence, as I noted in this prior post. The issue did not come up in Arrington because of the defendant’s offense date.)
Aggravated offense: Still elements only. In contrast to the rule from Arrington, the procedure for determining whether a crime meets the definition of an aggravated offense is a purely elements based analysis. We were reminded of that once again last week in State v. Green, __ N.C. App. __, 2013 WL 4441921 (N.C. Ct. App. Aug. 20, 2013), in which the court of appeals held that even a first-degree forcible sexual offense is not an aggravated offense. The crime of sexual offense does not necessarily require penetration as an element (it can be committed in ways that do not involve penetration), and so it is never an aggravated offense—even when the facts of the particular case clearly establish penetration. Green is added to the revised chart in the “NOT AGGRAVATED” section.
Category: Sentencing, Uncategorized | Tags: flow chart, human trafficking, sex offenders, sex offenses