North Carolina Criminal Law NC Criminal Law

In my previous post I wrote about In re Hamilton, a recent appellate case involving petitions to terminate sex offender registration. In Hamilton, the court of appeals held that a trial court erred when it found under G.S. 14-208.12A that removing a person convicted of indecent liberties with a minor from the sex offender registry after 10 years would not comply with federal standards. Rather, the court concluded, removal after 10 years would comply because (a) indecent liberties would be a tier 1 offense under the Sex Offender Registration and Notification Act (SORNA) and thus subject to a 15-year minimum registration period; and (b) that minimum registration period could be further reduced to 10 years based on SORNA’s “clean record” provision.

Drawing from Hamilton, this post sets out a framework for thinking about the “Wetterling finding” on Form AOC-CR-262. That finding, #7 on Side Two of the form, flows from G.S. 14-208.12A(a1)(2), which says the court may only grant a petition when doing so would comply federal standards “required to be met as a condition for the receipt of federal funds by the State.” To be clear, this analysis does not replace the baseline state law requirement that a non-lifetime registrant may only petition for removal from the registry 10 years from the date of initial county registration. G.S. 14-208.12A(a). And nothing in federal law trumps North Carolina’s rule that recidivists, sexually violent predators, and persons convicted of an aggravated offense must register for life. G.S. 14-208.23. Rather, this is an overlay that apparently must be considered in addition to those baseline rules, in light of G.S. 14-208.12A(a1)(2). I say “apparently” because the Hamilton court never affirmatively held that federal regulations as to registration length apply in North Carolina via G.S. 14-208.12A(a1)(2). The court of appeals certainly treated them as though they do, but as John Rubin pointed out in his comment to yesterday’s post, the threshold question of applicability wasn’t actually before the court.

SORNA covers lots of things, but for purposes of this discussion the relevant issue is registration length. SORNA creates three tiers of sex offenders, tier I, tier II, and tier III. Tier I offenders must register for at least 15 years, tier II offenders must register for at least 25 years, and tier III offenders must register for life. 42 U.S.C. § 16915(a). Given that North Carolina’s registry has only been in existence since 1996, nobody has been on it for more than 16 years. Thus, if the federal regulations do indeed apply, the only offenders for whom a court could make the Wetterling finding would be those who were convicted of a tier I offense. Anyone else would have to be registered for at least 25 years to be eligible for removal in a SORNA-compliant regime. (It’s possible, I suppose, that a person registered in North Carolina for an out-of-state crime may have previously accrued some time on another state’s registry. That time does not count toward the requisite 10-year period under state law—see this post about the meaning of “initial county registration”—but it probably could count toward the minimum federal requirement. The U.S. Attorney General’s final guidelines on SORNA say that the required registration period begins to run upon release from custody for an offender sentenced to incarceration and at the time of sentencing for an offender sentenced to probation. Nothing in the regulations says all of the minimum registration period must be from the same jurisdiction. 73 Fed. Reg. 38030, 38068 (July 2, 2008).)

What exactly is a tier I offense? I’ve discussed it and speculated about it in prior posts, but I’ve never actually spelled out the full definitions of the SORNA tiers on this blog.

Tier I is a residual category that includes sex offenders other than tier II and tier III sex offenders. 42 U.S.C. § 16911(2). So, the only way to identify tier I offenses is to know which offenses fall into tiers II and III.

Tier II offenses (defined in 42 U.S.C. § 16911(3)) are those other than tier III offenses (described below) that are punishable by imprisonment for more than one year and:

Are comparable to or more severe than the following offenses, when committed against a minor (or an attempt or conspiracy to commit them):

• Sex trafficking as defined in 18 U.S.C. § 1591;

• Coercion and enticement under 18 U.S.C. § 2422(b);

• Transportation with intent to engage in criminal sexual activity under 18 U.S.C. § 2423(a); or

• Abusive sexual contact under 18 U.S.C. § 2244 [The crime of abusive sexual contact generally requires, among other things, that the defendant engage in or cause “sexual contact” with or by another person, defined in 18 U.S.C. § 2246(3) as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person];

OR

That involve:

• Use of a minor in a sexual performance;

• Solicitation of a minor to practice prostitution; or

• Production or distribution of child pornography;

OR

• That occur after the offender becomes a tier I sex offender. [This provision won’t come into play in our regime because anyone who commits a second or subsequent sex crime would be a recidivist and thus required to register for life under G.S. 14-208.23.]

U.S. Department of Justice (USDOJ) guidelines on SORNA summarize the tier II requirements nicely by saying that they essentially cover: (1) offenses involving the use of minors in prostitution; (2) offenses against minors involving sexual contact—i.e., any sexual touching of or contact with the intimate parts of the body, either directly or through the clothing; and (3) offenses involving the production or distribution (but not the mere possession) of child pornography. 73 Fed. Reg. 38030, 38053–54.

Tier III offenses (defined in 42 U.S.C. § 16911(4)) are those that are punishable by imprisonment for more than 1 year and:

Are comparable to or more severe than the following offenses (or an attempt or conspiracy to commit them):

• Aggravated sexual abuse under 18 U.S.C. § 2241 or sexual abuse under 18 U.S.C. § 2242; [“Sexual abuse” crimes generally require, among other things, the commission of a “sexual act,” defined in 18 U.S.C. § 2246 as contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or the mouth and the anus; penetration of the anal or genital opening of another by a hand, finger, or any object; or direct touching, not through the clothing, of the genitalia of a person under 16.]

• Abusive sexual contact under 18 U.S.C. § 2244 [described above in the tier II offense definition] when committed against a minor under 13 years old;

OR

• Involve kidnapping of a minor (unless committed by a parent or guardian);

OR

• That occur after the offender becomes a tier II sex offender. [Again, this provision won’t come into play here because anyone who commits a second or subsequent sex crime would be a recidivist and thus required to register for life under G.S. 14-208.23.]

If the petitioner’s registration offense does not match up with any of the descriptions set out above, then North Carolina would be permitted under SORNA to treat it as a tier I offense. (The state might actually choose to require a longer registration period, but again, the question before the court at this point is whether removal from the registry would comply with the federal standards themselves.)

How exactly should the court go about determining whether a registration offense meets the tier II or tier III definitions? Federal regulations say that when assessing whether an offense satisfies the tier II or tier III classification, “jurisdictions generally may premise the determination on the elements of the offense, and are not required to look to underlying conduct that is not reflected in the offense of conviction.” 73 Fed. Reg. at 38053. That is reminiscent of (although not directly governed by) North Carolina’s approach to determinations of “aggravated offenses” for our satellite-based monitoring law: the court looks only at the elements of the conviction offense, not at the facts that may have led to the conviction. (That issue is discussed here.) Under that approach, it seems right that a crime like indecent liberties—which can, by its elements, be committed in ways that do not involve “sexual contact” or “sexual acts” as defined above—could be a tier I offense in a SORNA-compliant regime. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime 247–48 (7th ed. 2012) (collecting cases on indecent liberties, including, for example, a case involving a defendant who French kissed a child and another in which the defendant secretly videotaped a teenager trying on clothes). Federal regulations make an exception to the elements-based approach for tier classifications that depend on victim age: those requirements must be obeyed even for crimes whose elements do not specify that the victim must be below the threshold age if the victim was in fact below it. 73 Fed. Reg. at 38053.

If the court concludes through this approach that a registrant’s offense is not required to be a tier II or tier III offense under SORNA, then it would not violate SORNA to treat the offense as tier I and to grant his or her petition to come off the registry—if the person had been registered for 15 years. The only offenders registered for fewer than 15 years for whom the court could make the Wetterling finding are those who were convicted of tier I offenses and who also have a “clean record” as defined in 42 U.S.C. § 16915(b)(1). As I discussed yesterday, to have a clean record, the person must:

• Not be convicted of any subsequent offense for which imprisonment for more than 1 year may be imposed;

• Not be convicted of any subsequent sex offense;

• Successfully complete any period of supervised release, probation, and parole; and

• Successfully complete an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General.

USDOJ guidelines on SORNA note that the requirement to “successfully complete” any period of supervised release, probation, and parole means “completing those periods without revocation.” 73 Fed. Reg. at 38068. If a tier I petitioner satisfied all four prongs of the clean record requirement, the court could make the Wetterling finding and grant his or her petition after 10 years of registration.

If fewer than 10 years have passed since the person’s date of initial county registration, he or she is not eligible for removal from the registry. That’s really just a matter of state law under G.S. 14-208.12A, but it would also be true under the federal regulations.

I apologize for the length of this post. This is a difficult issue, and my sense—based on the many questions I have been asked about it—is that people don’t have ready access to the resources they may need to resolve it. If nothing else, I hope the post will be useful to the extent that it collects and links to the primary source materials you will need to decide whether the federal regulations apply, and, if so, a starting point for how to apply them. If the General Assembly takes any action related to SORNA compliance during the short session, I’m sure I’ll write about it here.

A recent case from the court of appeals sheds some light on a frequently asked question about petitions for removal from the sex offender registry. The case, In re Hamilton, considered a trial court’s refusal to grant a petition because granting it would not comply with the federal Jacob Wetterling Act, as amended, and other related federal standards. It’s an issue I wrote about in this prior post, but given this new case (and the passage of three years) it’s time for an update.

In Hamilton, the petitioner pled guilty to taking indecent liberties with a child in August 2001. He registered as a sex offender that same month. Almost exactly ten years later, in August 2011, the trial court heard his petition to terminate his registration. The trial judge denied the petition based solely on a finding that allowing Mr. Hamilton off the registry would not comply with applicable federal law.

Mr. Hamilton made two arguments on appeal. The first, styled as an issue of “mootness,” was that his registration should have terminated automatically after ten years based on the law that existed when he was first placed on the registry. The registry used to work that way, the court of appeals noted, but the petition procedure put in place by the General Assembly in 2006 was made applicable to “persons for whom the period of registration would terminate on or after December 1, 2006.” S.L. 2006-247, sec. 10.(b). The change therefore included Mr. Hamilton, whose registration would have run until at least 2011. (John Rubin noted this issue on page 2 of his 2006 legislative summary, available here. The upshot is that only a narrow cohort of registrants who initially registered between January 1, 1996 and November 30, 1996, would see their registration terminate automatically after 10 years.) The court of appeals rejected the argument.

The second argument—which is really the one that I want to discuss—was that the trial court erred when it found that removing Mr. Hamilton from the registry would not comply with federal law. The connection to federal law stems from G.S. 14-208.12A(a1)(2), which says that a court may grant a petition for removal only if “[t]he requested relief complies with the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” That requirement appears as finding #7 on Side Two of Form AOC-CR-262, Petition and Order for Termination of Sex Offender Registration; I’ll refer to it here as the “Wetterling finding.” Hamilton argued that removing him from the registry would not run contrary to federal standards for minimum registration length.

To evaluate Hamilton’s argument, the court of appeals had to look to the federal standards themselves. Those standards are set out in the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248—the successor to the Jacob Wetterling Act. As I discussed in the prior post linked in the opening paragraph above, one portion of that law is the Sex Offender Registration and Notification Act, or SORNA. SORNA sets out a comprehensive registration program that jurisdictions (states, the District of Columbia, U.S. territories, and Indian tribes) must “substantially implement” to avoid losing 10 percent of certain federal grant funds each year. 42 U.S.C. 16925(a).

As of today, 44 jurisdictions (15 states, two territories, and 27 tribes) have substantially implemented SORNA. North Carolina is not one of them, an issue I discussed in this prior post. Nevertheless, the federal standards exist and are, within the language of G.S. 14-208.12A(a1)(2), “required to be met as a condition for the receipt of federal funds by the State.” The original SORNA compliance deadline was July 27, 2006. North Carolina, like just about every other state, received a series of extensions that pushed the deadline to July 27, 2011. Before that deadline passed, there was a decent argument that a judge could sign off on the Wetterling finding on an order granting a petition to come of the registry without really digging in to whether the requested relief would comply with federal standards—the standards did not apply to the state directly, and they weren’t yet required to be met to receive our full federal grant allotment. Now that that date has passed, it seems that a court can probably only let someone off the registry when doing so would comply with federal standards.

That’s what the court of appeals did in Hamilton, walking through the Adam Walsh Act and noting that it sets out different minimum registration durations for different offenses according to a tiered system. Tier I sex offenders must register for 15 years, tier II offenders must register for 25 years, and tier III offenders must register for life. 42 U.S.C. 16915(a). The law also provides that tier I offenders may have their minimum registration period reduced from 15 years to 10 if they have a “clean record” as defined in 42 U.S.C. 16915(b)(1). To have a clean record, the person must:

• Not be convicted of any subsequent offense for which imprisonment for more than 1 year may be imposed;

• Not be convicted of any sex offense;

• Successfully complete any period of supervised release, probation, and parole; and

• Successfully complete an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General.

In Hamilton, the parties apparently all agreed that Mr. Hamilton’s crime of indecent liberties with a minor would be a tier I offense. Thus, it would comply with federal requirements to allow him to come off the registry after 15 years. Further, the appellate court’s review of the record indicated that Mr. Hamilton had not been convicted of any new felonies; had not been convicted of any new sex crimes; had successfully completed his probation; and had successfully completed sexual abuse treatment as a condition of his probation. He therefore satisfied the “clean record” definition and it would thus comply with federal requirements to come off the registry after 10 years. Based on that analysis the court of appeals vacated the trial court’s finding that removing Hamilton from the registry would not comply with federal standards. The court remanded the case to allow the trial court to decide in its discretion whether to grant Hamilton’s petition.

Hamilton strikes me as an important case, helpful in developing an analytical framework that trial courts can use when deciding whether or not to make the Wetterling finding. As a threshold matter, Hamilton illustrates how North Carolina’s decision not to enact a SORNA-compliant regime does not—as I have heard some people say—mean that no one can get off the registry for now. The Wetterling finding is not asking the court to decide whether North Carolina is, as a state, in compliance with federal law. (We are not.) Nor does the finding require the court to predict precisely what a SORNA-compliant regime enacted by the General Assembly might look like. (Remember, SORNA sets a floor that jurisdictions are free to exceed.) Rather, the question before the court is: Is there a hypothetical, SORNA-compliant regime in which this person could come off the registry now? That determination is inherently speculative; it is the United States Department of Justice that will ultimately decide whether whatever legislative action North Carolina takes in response to SORNA “substantially complies” with federal requirements. But until our legislature acts, that appears to be what courts must do.

And it won’t always be as easy as it turned out to be in Hamilton, in which the parties—and the court of appeals—agreed that indecent liberties with a minor would be a tier I offense. Part two of this post will set out an analytical framework that courts can use when deciding whether or not they can make the Wetterling finding.