When, if ever, must a person register as a sex offender in North Carolina because of a juvenile adjudication from another state? Continue reading
Tag Archives: sex offender registration
When a defendant is convicted of a reportable sex crime, someone is required to give him or her notice of the duty to register. Who does it depends on whether or not the defendant receives an active sentence. Continue reading →
Last month the supreme court decided State v. Moir. It is a case about how a state sex crime—namely, indecent liberties with a child—fits within the offense tiering system set out in the federal Sex Offender Registration and Notification Act (SORNA). Continue reading →
A few years ago I began tracking and compiling the consequences that attach to an offense subject to sex offender registration (a registrable offense). In preparation for an upcoming course, I just updated my Consequences Paper.
The list of consequences continues to grow. So, too, has litigation over them. A recent court of appeals decision, State v. Barnett (Jan. 19, 2016), considered the limits on the court’s authority to enter a no-contact order against a person convicted of a registrable offense. (Jamie Markham wrote a blog post about another aspect of the decision—whether attempted rape is an aggravated offense and subject to stricter registration and monitoring requirements. It isn’t.) [After publication of this blog post, the North Carolina Supreme Court reversed the Court of Appeals’ decision in Barnett. The Supreme Court agreed that G.S. 15A-1340.50 protects the victim of the offense, not third parties, and a judge may not prohibit contact with third parties for their protection; however, the Supreme Court held that, on appropriate findings, a judge may prohibit the defendant from indirectly contacting the victim through specifically identified third parties, such as the victim’s family.] Continue reading →
Like most states, North Carolina has not substantially implemented the federal Sex Offender Registration and Notification Act (SORNA). (Only 17 states have.) Nevertheless, some portions of the federal law wind up impacting sex offenders in North Carolina. As discussed in previous posts, as a matter of existing state law, a judge may not grant a petition for removal from the sex offender registry if doing so would violate the “federal Jacob Wetterling Act, as amended, and any other 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.” G.S. 14-208.12A(a1)(2). With that requirement in place, federal rules regarding minimum registration period effectively trump the state-law regime allowing a non-lifetime registrant to petition for removal 10 years after the date of initial county registration. The minimum registration periods under federal law are 15 years for so-called “Tier I” offenses (reducible to 10 years in certain circumstances), 25 years for “Tier II” offenses, and life for “Tier III” offenses.
That longwinded introduction brings me to the real purpose of today’s post. To apply the state law referencing federal law correctly, you need to know the tier into which the registrant’s reportable offense would fall. Federal law defines the tiers mostly by reference to federal crimes. In today’s post I will summarize the federal laws and regulations regarding tiering, including all of the relevant definitions of qualifying acts. Continue reading →
In the course of robbing a convenience store, a man restrains a 17-year-old clerk. Suppose the parties work out a plea to second-degree kidnapping. Everything is fine until the judge advises the defendant of the maximum permissible punishment for his Class E crime: 136 months. “136 months?” his lawyer said, puzzled. “I thought it would be 88.” “It would be,” the court replied, “if this crime didn’t require registration as a sex offender.” Continue reading →
With three words—PER CURIAM. AFFIRMED.—the Supreme Court of North Carolina last week added a new wrinkle to two already perplexing areas of the law: sex offender registration and PJCs. In Walters v. Cooper, the high court affirmed the court of appeals’ conclusion that a conviction for which a person receives a prayer for judgment continued (PJC) does not require registration as a sex offender.
The details of the case are set out in this prior post, but I will recap them briefly here. Paul Walters received a PJC for his 2006 conviction of misdemeanor sexual battery. He did not register at that time, but was later required to register. He sought declaratory relief in superior court, arguing that a PJC was not a “final conviction” within the meaning of G.S. 14-208.6(4). The trial judge rejected that argument and required him to continue registering. Over a dissent, the court of appeals reversed, concluding that a “true PJC” like the one received by Mr. Walters was not a final conviction for sex offender registration purposes.
The supreme court affirmed, adopting the view of the court of appeals majority that the legislature’s use of the word “final” before “conviction” in G.S. 14-208.6(4) was intended to exclude convictions followed by a PJC. With that interpretation in place, sex offender registration stands as an exception to the general rule that a PJC is the functional equivalent of a conviction for virtually all subsequent purposes, including:
- Prior record points. State v. Hatcher, 136 N.C. App. 524 (2000); State v. Canellas, 164 N.C. App. 775 (2004).
- Evidence Rule 609. State v. Sidberry, 337 N.C. 779 (1994) (holding that a PJC entered after a guilty plea counts as a conviction for Rule 609 impeachment purposes).
- Prohibition on handgun permits for felons. Friend v. State, 169 N.C. App. 99 (2005).
Courts generally come to that conclusion on the theory that the underlying determination of guilt, not the judgment, is the conviction.
The supreme court declined to adopt the thinking of Judge Steelman’s court of appeals dissent. In it, the judge reasoned that whether a PJC is a “final conviction” for sex offender registration purposes was beside the point in Mr. Walters’ case, because he didn’t receive a true PJC. Recall that a PJC is converted into a judgment when it includes conditions that amount to punishment—which certainly includes conditions like imprisonment or a fine, State v. Brown, 110 N.C. App. 658 (1993), but has also been deemed to include lesser things like a curfew or a requirement to write a letter of apology, State v. Popp, 197 N.C. App. 226 (2009).
Judge Steelman would have concluded that the condition on Mr. Walters’ PJC that he “not have any contact with, communicate with, in any shape, form, or fashion, the victim, [and] not be on her property or contact any member of her immediate family” was a sufficient enough limitation on Walters’ rights of association and movement to convert the purported PJC into a final judgment. The State noted the “conditions amounting to punishment” issue as an alternative argument in its appellate brief, but did not cite to Popp. Previously I would have said in light of Popp that about the only conditions that do not convert a PJC into a judgment are a requirement to pay costs, G.S. 15A-101(4a), and a requirement to obey the law, Brown, 110 N.C. App. at 659. The supreme court’s affirmance of Walters has me wondering if the case can be viewed as setting a slightly higher floor for what constitutes a non-punitive condition.
The court of appeals recently decided another case on petitions to terminate sex offender registration. Once again, the decision turned on what I have called the “Wetterling finding”—the rule in G.S. 14-208.12A(a1)(2) that a judge may not remove a person from the registry if doing so would not comply 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 law generates some difficult questions about the interplay between state and federal law, which I discussed here and here.
The latest case is In re McClain. In McClain, a registrant petitioned for removal from the sex offender registry after 10 years of registration for his 2001 conviction for indecent liberties with a child. The trial court denied his petition, concluding that removing him from the registry would run afoul of federal standards. Even assuming his registration crime could be classified as a Tier I offense under federal law (which our appellate courts assumed to be true in In re Hamilton, __ N.C. App. __, 725 S.E.2d 393 (2012), and which the parties apparently agreed on here), McClain had subsequent felony convictions that rendered him ineligible for the “clean record” status that would reduce his minimum registration period from 15 years to 10.
McClain appealed, arguing that incorporating federal standards into state law by way of G.S. 14-208.12A(a1)(2) is an unconstitutional delegation of legislative authority from the General Assembly to Congress—especially to the extent that the law purports to incorporate “future enactments to be promulgated by Congress.” Slip op. at 6. It’s an issue I discussed briefly in this 2009 post.
The court of appeals disagreed and affirmed the trial court’s denial of McClain’s petition. The court concluded that the General Assembly did not improperly delegate the task of filling in the details of the state’s sex offender registration program. To the contrary, the state and federal programs exist “side-by-side,” and G.S. 14-208.12A(a1)(2) was, the court said, merely the legislature’s attempt to “substantially implement the Adam Walsh Act.”
There may be room for debate about whether G.S. 14-208.12A(a1)(2) was added to the law specifically to implement the Adam Walsh Act, or whether it was a broader attempt to keep us in line with evolving federal standards. The Wetterling provision in subdivision (a1)(2) was added to a bill (H 1896) before the Adam Walsh Act became law, and years before the U.S. Department of Justice issued its final guidelines. And in any event, the USDOJ does not view North Carolina as being substantially compliant with federal law—although that may have more to do with our laws on juvenile registration than on our minimum registration length for adults.
Regardless, McClain is now the second case (along with Hamilton) indicating that the Wetterling finding essentially trumps the minimum registration periods described elsewhere in state law. That reality is reflected in this paper, which gives a finding-by-finding summary of the petition hearing process. I also recommend reviewing John Rubin’s summary of the registration termination process, available as part of his guide on Relief from a Criminal Conviction.
I’m headed to High Point today to teach a session for magistrates on crimes related to sex offender registration. I’m glad I looked at the slip opinions from the court of appeals before I left. A case decided today answers a somewhat frequently asked question about sex offender registration: Does a PJC for a sex crime count as a “final conviction” for purposes of the sex offender registration law? The answer, according to the majority of the panel in Walters v. Cooper, is no.
Walters involved a Franklin County man who pled guilty to misdemeanor sexual battery in 2006. (His offense date was March 2006—just a few months after that crime was made a reportable offense, effective for offenses committed on or after December 1, 2005. S.L. 2005-130.) Prayer for judgment was continued in the case, upon condition that he pay costs and attorney fees and not have any contact with the victim or her immediate family. He was not told to register as a sex offender at that time, and he didn’t.
In November 2011, the sheriff’s office told Mr. Walters that he needed to register because of his sexual battery conviction. So he did. But a few months later he filed a civil action seeking declaratory judgment that he was not required to register for a conviction for which prayer for judgment had been continued, and an order directing the attorney general’s office to remove him from the registry. The trial judge granted summary judgment for the AG. Mr. Walters appealed.
The court of appeals reversed, concluding that a “true PJC” like the one received by Mr. Walters was not a “final conviction” within the meaning of G.S. 14-208.6(4).
The appellate court first grappled with the question of whether Mr. Walters had actually received what it termed a “true PJC.” The court acknowledged the rule, discussed here, that a PJC can be converted into a final judgment if it includes conditions that amount to punishment. Notwithstanding cases like State v. Popp, 197 N.C. App. 226 (2009), in which the court has said that most anything other than costs and a requirement to obey the law converts a PJC into a judgment, the Walters court determined that “none of the conditions imposed upon the Plaintiff in this case appear to be punitive in nature . . . ,” and Mr. Walters had thus received a true PJC. Slip op. at 5–6. (The dissent disagreed on this point, as I’ll discuss in a moment.)
The court then moved on to the question of the meaning of the term “final conviction” in the sex offender registration law. The phrase is undefined, so the court reviewed how it had interpreted similar language in North Carolina’s motor vehicle statutes. Mainly the court looked to Florence v. Hiatt, 101 N.C. App. 539 (1991), where it had held that a PJC did not, under G.S. 20-24 as it was written at the time, constitute a “final conviction” triggering a license revocation by DMV. Chapter 20 defines “conviction” differently today (see G.S. 20-4.01(4a)), but the court presumed that when the General Assembly wrote the sex offender registration law in 1995, it was aware that modifying the word “conviction” with the adjective “final” would, in light of Florence, exclude convictions followed by true PJCs. Slip op. at 8 (distinguishing other statutory references to mere “convictions,” like Rule 609 and the possession of firearm by a felon law in G.S. 14-415.1).
Judge Steelman dissented. He disagreed that Mr. Walters’ PJC was a true PJC within the meaning of G.S. 15A-101(4a), which says that “[p]rayer for judgment continued upon payment of costs, without more, does not constitute the entry of judgment.” Here, the judge wrote, there was “more”—the “trial judge placed several explicit conditions upon the entry of the prayer for judgment continued,” slip op. at 2 (Steelman, J., dissenting), and thus converted the purported PJC into an entered judgment, see State v. Brown, 110 N.C. App. 658 (1993) (“When, however, the trial judge imposes conditions amounting to punishment on the continuation of the entry of judgment, the judgment loses its character as a PJC and becomes a final judgment.” (internal quotations omitted)). The dissent would have concluded that the condition prohibiting Mr. Walters from contacting the victim or the victim’s family was clearly punishment, and thus rendered Walters’ PJC a “final conviction” for all purposes. No need to wade into the registration consequences of a “true PJC,” because Walters didn’t get one.
The dissent may set up review by the supreme court. For the moment, however, Walters bucks the clear trend that a PJC is the functional equivalent of a conviction in almost every way that matters.