About seven years ago, I wrote this post about habitualized sex crimes. The issue I explored there was how to sentence a person convicted of a Class F through I sex crime when he or she has also attained habitual felon status. The question is whether the defendant, who is now sentenced as a Class B1 through E felon due to the habitual felon law’s four-class enhancement, is subject to the elevated maximum sentence applicable to Class B1 through E sex offenders under G.S. 15A-1340.17(f). When I wrote that post there was no appellate case answering the question. There is now. Continue reading
Tag Archives: sex offender
Habitualized Sex Crimes, Take Two
I received an interesting question recently when I taught about the intersection of criminal defense and Chapter 35A incompetency. Suppose a person is adjudicated incompetent in a Chapter 35A proceeding and a guardian is appointed. Suppose that same person had been convicted of a crime requiring registration as a sex offender and compliance with the other obligations of Chapter 14, Article 27A. The person is required to register changes to their address (including providing notice to law enforcement of an intention to move out-of-state), to their academic and employment status, and to notify the State of changes to their name or online identifiers, including e-mail addresses. G.S. 14-208.7; G.S. 14-208.9. What effect does declaration of incompetency have on these registration requirements? Who is responsible for ensuring that the incompetent adult complies with these registration obligations—the adult or their guardian? Continue reading →
SORNA Tier Chart
Over two years ago I said I would someday try to sort North Carolina’s reportable sex crimes into the tiers set out in the federal Sex Offender Registration and Notification Act (SORNA). Today’s the day. Continue reading →
Under G.S. 14-208.16, a registered sex offender may not reside “within 1,000 feet of the property on which any public or nonpublic school or child care center is located.” What’s the right way to measure those 1,000 feet? As the crow flies? Property line to property line? Building to building? Continue reading →
Habitualized Sex Crimes
Suppose a defendant is convicted of a Class F–I felony that requires registration as a sex offender. He is also convicted as a habitual felon. When sentencing the defendant as a habitual felon, the court obviously will select a minimum sentence appropriate for an offense that is four classes higher than the underlying felony. But what maximum sentence should the court impose? Should it use the regular maximum sentence from G.S. 15A-1340.17(e), or the elevated sex offender maximum from subsection (f)? Continue reading →
The Court of Appeals Finds Another Fatal Defect in a Sex Offender Indictment
A couple of months ago, I blogged about State v. Herman, __ N.C. App. __ (2012), a case in which the court of appeals found a fatal defect in an indictment charging the defendant with being a sex offender unlawfully on a premises in violation of G.S. 14-208.18(a)(2). In a nutshell, the indictment in that case failed to allege that the defendant belonged to the specific subclass of registrants to whom the unlawfully on premises statute applies. Yesterday, the court of appeals issued another opinion reversing a sex offender case based on a similar indictment error.
The defendant in State v. Barnett was a sex offender. He was convicted of failing to notify the sheriff’s office of a change of address, in violation of G.S. 14-208.9. On appeal, he argued that the indictment was defective. It alleged that he “unlawfully, willfully and feloniously did fail to provide written notice or notify the Gaston County Sheriff’s Department within three business days after a change of address as required by the North Carolina General Statute 14-208.9.” The court of appeals concluded that “[t]he indictment in this case failed to specify that Defendant was ‘a person required to register,’ an essential element of the charged offense.” The court ruled that the reference to G.S. 14-208.9 in the indictment did not save the document, relying on a line of cases providing that a correct statutory citation cannot cure inadequate charging language.
The court vacated the defendant’s conviction, though of course he is not home free: double jeopardy generally doesn’t bar a new prosecution under a valid indictment when an initial indictment is deemed defective. But the need for further proceedings could have been avoided through careful drafting. So far, the court’s rulings haven’t cast any doubt on the validity of the charging language for sex offender registration offenses contained in Arrest Warrant and Indictment Forms. At least for now, that language appears to be a safe haven for prosecutors and their assistants who are trying to navigate the minefield of sex offender indictments.
No Contact Orders for Sex Offenders
Under G.S. 15A-1340.50, a judge may issue a permanent no contact order prohibiting a sex offender from coming into contact with the victim of his or her offense. According to the procedure set out in the statute, the prosecutor can, at the defendant’s sentencing for a reportable sex crime, request that the judge issue a no contact order. The defendant then gets the opportunity to show cause why the order should not issue. The victim also has a right to be heard. If the judge determines at the hearing that reasonable grounds exist for the victim to fear any future contact with the defendant, then the judge must issue the no contact order. The court has to enter written findings of fact and the grounds on which the order is issued. The AOC form for the order, AOC-CR-620, gives the court plenty of space to do that.
The law gives the judge some flexibility in determining the exact form of relief set out in the order. It can, among other things, order the defendant not to threaten or visit the victim; not to abuse or injure the victim; not to telephone or electronically contact the victim; not to be present at the victim’s residence, school, or work; or some or all of the above. There is also a catch-all provision that allows the court to impose any other relief deemed necessary and appropriate. Again, the AOC form accommodates this sort of cafeteria plan approach to shaping the order. At any time after issuance of the order the court may rescind it on motion of the State (at the request of the victim) or the defendant if it determines that the victim no longer has a reasonable grounds to fear future contact from the defendant. G.S. 15A-1340.50(h).
Any no contact order issued should be enforced by all North Carolina law enforcement agencies without further order by the court. Under G.S. 15A-1340.50(g), an officer shall arrest and take a person into custody, with or without a warrant, if he or she has probable cause to believe that the person knowingly violated the order. A knowing violation of the order is a Class A1 misdemeanor.
The no contact order statute has been in effect for a few years (it was enacted in 2009, S.L. 2009-380, and made effective for offenses committed on or after December 1, 2009), but I haven’t heard much about how or how often it is being used. Last week the court of appeals decided State v. Hunt, __ N.C. App. __ (June 5, 2012), the first appellate case to consider the law.
In Hunt, the judge issued a no contact order for a defendant convicted of multiple counts of statutory rape and sexual offense against his 13-year-old half-sister. The victim asked the State to seek the order because she feared that the defendant would, as her half-brother, be aware of her contact information and because the offenses against her were violent and unprovoked. The trial judge found that those concerns were reasonable grounds for her to fear future contact and issued the no contact order.
The defendant made several arguments about the order on appeal.
First, he argued that the no contact order was an impermissible punishment under Article XI, section I of the North Carolina Constitution. That section lists the permissible punishments in our state, including (among other things) imprisonment, fines, probation, community service, and death. The court of appeals determined that the no contact order was civil in nature and thus did not implicate Article XI, section I at all. To reach that conclusion the court applied the same “intent-effects” test our courts have used to determine that sex offender registration and satellite-based monitoring (SBM) of sex offenders are civil regimes. See State v. White, 162 N.C. App. 183 (2004) (registration); State v. Bowditch, 364 N.C. 335 (2010) (SBM, discussed here). As with registration and SBM, the court decided that the General Assembly did not intend for no contact orders to be criminal punishment (notwithstanding the statute’s placement in Chapter 15A, enforcement by the police, and literal statement that the no contact order “shall be incorporated into the judgment imposing the sentence”). The court then concluded that the law was not so punitive in effect as to negate the legislature’s intent to deem it civil. To the contrary, the court noted that the effect of the no contact order was “quite minor” in comparison to SBM; that the law had a clear, rational connection to a nonpunitive purpose (protecting victims from further contact by their assailants); and that the law was not excessive with respect to that purpose. Other jurisdictions have come to different conclusions about similar issues. See State v. Orduna, 129 Wash. App. 1026 (2005) (unpublished) (“The State concedes that the no-contact order erroneously extended beyond the statutory maximum for the crime.”).
Second, the defendant argued that his due process rights were violated because the State did not provide him with notice of its intent to seek the no contact order. Assuming for the sake of argument that a protected liberty interest was at stake, the court concluded that no special notice was required. The defendant should, the court said, be generally aware of the prospect that a show cause hearing might be held by virtue of the no contact order statute itself. Additionally, because the no contact order hearing necessarily is done at sentencing, it is more akin to SBM determinations done at sentencing under G.S. 14-208.40A, for which no special notice is required, State v. Jarvis, __ N.C. App. __ (Aug. 2, 2011), than to SBM determinations done at “bring-back” hearings under G.S. 14-208.40B, for which the Division of Adult Correction must give the offender notice of the eligibility category into which it believes he or she falls and a brief statement of the factual basis for that determination, State v. Stines, 200 N.C. App. 193 (2009).
Next, the defendant argued that imposition of the no contact order, in addition to his term of imprisonment, violated double jeopardy. Having determined that the no contact order was not punishment at all, the court of appeals rejected the argument.
Finally, the court disagreed with the defendant’s argument that the trial court failed to follow the statutory procedure of G.S. 15A-1340.50 by combining the sentencing hearing with the show cause hearing on the no contact order. The court of appeals said the trial court is not required to delineate one hearing from the other to comply with the law.
Because the court found the no contact order to be civil and not criminal, it noted that notice of the defendant’s appeal of the trial court order should—like the appeal of an SBM determination—have been in writing pursuant to Rule 3(a) of the North Carolina Rules of Appellate Procedure. See State v. Brooks, 204 N.C. App. 193 (2010). The court of appeals nonetheless chose to hear the case as a petition for writ of certiorari. Slip op. at 6 (noting that a defendant “would have needed a considerable degree of foresight” to know that the appellate courts would deem the no contact order civil and that written notice of appeal would therefore be required). On a related note, the court of appeals continues to do that in SBM cases (it happened again last week in State v. Lineberger), but as time goes by and the rule becomes more well established, the court’s willingness to do so may diminish.