The premises restrictions of G.S. 14-208.18 have been in the news again lately. Here in Chapel Hill, a registered sex offender charged with being unlawfully on the premises of the public library had the charge dismissed on constitutional grounds. Meanwhile, the Graham County Sheriff made national headlines went he sent a letter to every registrant in the county prohibiting them, under the 300-foot rule, from going to church. The constitutional issues raised by these scenarios are interesting, but my first reaction in both cases was this: That law doesn’t apply to all registered sex offenders! Continue reading
Tag Archives: sex offenders
I get a lot of mail from inmates. Lately, many of them have written to express their surprise upon being told by prison officials—for the first time—that they will have to complete a term of post-release supervision when they get out of prison. Sex offenders—especially Class F–I sex offenders, including those convicted of indecent liberties—are very surprised to learn that they will be on PRS for five years. Is it a problem that nobody mentioned PRS earlier? Continue reading →
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 →
An amended statute and a recent case improve our understanding of places sex offenders cannot live and go in North Carolina.
First, the statute. Under G.S. 14-208.16, a registered sex offender may not reside within 1,000 feet of a school or child care center. The law has always defined “child care center” by reference to G.S. 110-86(3), which defines a child care center as “an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care.” “Child care,” in turn, is defined as a “program or arrangement where three or more children less than 13 years old, who do not reside where the care is provided, receive care on a regular basis of at least once per week for more than four hours but less than 24 hours per day from persons other than their guardians or full-time custodians, or from persons not related to them by birth, marriage, or adoption.” G.S. 110-86(2). The definition then goes on to exclude 11 types of care, like certain home care arrangements, recreational programs, and drop-in care at a place like a gym or church. In short, it’s a very specific definition that excludes some things that many people would probably think are covered.
Legislation signed into law by the governor on June 24, 2014, S.L. 2014-21 (H 777), amends G.S. 14-208.16 to fill one perceived gap in the statute. The amendment provides that the term “child care center” does, for purposes of the sex offender residency restriction, include “permanent locations of organized clubs of Boys and Girls Clubs of America.” The amended definition applies to all persons registered or required to register on or after June 24, 2014, but does not apply to a person who established his or her residence prior to that date. That grandfather clause allows an otherwise prohibited person to continue living in a residence near a Boys and Girls Club if he or she established the residence before the law came into effect. For a discussion of how a residence is “established,” see this prior post.
(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including but not limited to schools, children’s museums, child care centers, nurseries, and playgrounds;
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in (1) that are located in malls, shopping centers, or other property open to the general public; or
(3) At any place where minors gather for regularly scheduled education, recreational, or social programs.
In State v. Simpson, decided yesterday by the court of appeals, the defendant, a registered sex offender, was found sitting on a bench near the batting cage and ball field at Cub Creek Park in Wilkesboro. An off-duty officer saw him there and called the police. He was arrested and charged under option (2) above—being within 300 feet of any location intended primarily for the use, care, or supervision of minors that is located on premises that are not intended primarily for minors. (I discussed the “location within a place” nature of the 300-foot rule in this prior post.)
The court of appeals rejected the defendant’s argument that the State’s indictment was defective because it failed to specify that the place (the park) within which the prohibited location (the batting cage and ball field) was located was not intended primarily for the use, care, or supervision of minors. Naming the park was enough to give the defendant sufficient notice of the accusation.
As to the substance of the charge, however, the court agreed with the defendant that the batting cage and ball field were not shown to be locations intended primarily for use by minors. Batting cages and ball fields are of course used by minors—there was even testimony that children were in line at the cage while the defendant was there. But unlike the prohibited locations explicitly listed in the statute (playgrounds and children’s museums, for example), it is not self-evident that batting cages and ball fields are intended primarily for minors. Unless the State shows some “special circumstances” to the contrary, they are presumably intended to be used by adults, too.
Simpson helps clarify our understanding of what sort of “location within a place” triggers the 300-foot rule, but questions will surely remain. For some locations the primary intended use will be a close call, like some swimming pools, athletic facilities, arcades, and areas within bookstores to name a few. In light of Simpson, the parties should be prepared to show facts about the location (the typical clientele, the décor, the depth of the pool, the dimensions of the field, the type of games or books present, etc.) that help demonstrate the primary intended use.
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.
From 1995 to 2009, North Carolina had two sentencing grids—one for felonies, one for misdemeanors. That was it. Then the grid was amended in 2009. And 2011 (with special rules for sex offenders). And 2013, for both felonies and misdemeanors. Because you should always use the grid that was in place when the defendant committed his or her crime—and there’s no flexibility on that, by the way, State v. Lee, __ N.C. App. __, 745 S.E.2d 73 (2013)—you need to have all the grids handy.
With that in mind, a new publication, the North Carolina Structured Sentencing Handbook with Felony and Misdemeanor Sentencing Grids, is available for purchase from the School of Government bookstore. It includes all the grids back to 1994, presented in a refreshed design and color scheme that we hope will be helpful. (I sent out a picture of the page proofs sitting on my kitchen table if you want to preview the new look.)
In addition to the grids themselves, the handbook includes instructions on how to use them. Here’s Step 1:
To the extent possible the instructions are presented in a quick-reference format suitable for use in court. For instance, the section on how to calculate a defendant’s prior record level includes this table of rules for what counts for points and what doesn’t.
The instructions also address other topics including:
- Drug trafficking
- Fines, costs, and fees
- How to sentence multiple convictions
- Jail credit
- Deferrals (deferred prosecution, PJC, and G.S. 90-96)
And there are lots of lists, like:
- All the various conditions of probation (regular, special, intermediate, community and intermediate, and sex offender)
- All the aggravating and mitigating factors
- Commonly charged felonies and misdemeanors, sorted by offense class
- Crimes covered under the Crime Victims’ Rights Act
- Crimes requiring sex offender registration
In general the instructions follow the same step-by-step process used for many years by the North Carolina Sentencing and Policy Advisory Commission in its training and reference materials. Sentencing Commission staff kindly reviewed the new handbook, and I thank them for their expertise and advice. Thanks also to School of Government attorney Christopher Tyner for his review.
The School is selling the handbook for $18. The Administrative Office of the Courts purchased copies for superior and district court judges, appellate judges, district attorneys, and select AOC offices. Distribution of those copies will begin in February and should be complete by March. Please contact Joe Slate (919-890-1532) if you have questions about AOC distribution. The Office of Indigent Defense Services purchased 275 copies for felony public defenders and felony contract attorneys. Please contact IDS if you have questions about their distribution.
I welcome your thoughts on the content and format of the handbook. I intend to produce it as frequently as necessary to address subsequent changes to the law, and of course would like for it to be as user friendly as possible.
And I hope you like the colors we used for the grids, because they’ll also appear in another project that—after some technical delays—is about to finish up.
More on that soon…
For a presentation I did recently on termination of sex offender registration requirements, I decided to see what requirements and restrictions a person is subject to under North Carolina law if convicted of an offense subject to sex offender registration. The results are too long for a single blog post, but you can find the entire list of consequences of a conviction here.
The list is not intended to provide detailed guidance on how the consequences are being interpreted and applied by the courts, probation, law enforcement, and other entities. Some of the consequences—for example, restrictions on use of social media websites and participation in religious activities when children are present—are the subject of legal challenges. The list may be useful, however, in understanding and advising people about the range of consequences that follow from conviction of an offense subject to registration.
The consequences of an offense subject to registration fall into four basic categories, described in more detail in the list:
- enhanced criminal sentences and conditions;
- registration requirements;
- satellite-based monitoring; and
- residence, premises, employment, and other restrictions.
Violation of these requirements and restrictions may result in prosecution for additional offenses. For example, failing to comply with registration requirements is usually a Class F felony, interfering with a satellite monitoring device is a Class E felony, and being on certain prohibited premises is a Class H felony.
Termination of registration extinguishes most of the consequences and accompanying penalties but not all of them. For example, the record of conviction is permanent; a person ordinarily may not expunge a conviction of an offense subject to sex offender registration, whether or not the person is still required to register. (A person may be eligible for an expunction of a misdemeanor conviction if the offense was committed before age 18.)
You can also view the list of consequences as well as other reference materials on sex offender registration and monitoring (thanks to my colleague, Jamie Markham) through the School of Government’s Collateral Consequences Assessment Tool (C-CAT), a free, searchable database of the collateral consequences of a conviction in North Carolina. For those who may have visited the site before, we have removed the subscription and log-in requirements to make C-CAT easier to use.
Each Halloween also seems to bring a wave of news stories related to sex offenders. There apparently isn’t evidence to back up the concern, but some jurisdictions have laws prohibiting registered offenders from participating in Halloween activities. In Missouri, for example, all registrants were required to remain indoors between 5:00 and 10:30 p.m. on October 31, to leave their outdoor lights off, and to post a sign that said “No candy or treats at this residence.” Mo. Ann. Stat. § 589.426. The Missouri Supreme Court deemed that law unconstitutional as applied to an offender on the registry for an offense committed before its enactment. F.R. v. St. Charles County Sheriff’s Dept., 301 S.W.3d 56 (Mo. 2010) (en banc).
Do we have any such laws in North Carolina? There is no statewide General Statute specifically directed at sex offenders and Halloween. Nevertheless, some of our more generalized restrictions on registrants might limit some Halloween activities. The most likely candidate, I think, is G.S. 14-208.18(a)(3), which limits some sex offenders from being in places “where minors frequently congregate,” but I doubt an annual parking lot trunk-or-treat or other similar gathering is frequent enough to be covered, unless it happens to be on the grounds of a school, recreation park, or other place prohibited under the law. I do not think any portion of that law generally prevents a covered registrant from trick-or-treating with his or her children or handing out candy at his or her residence.
Another statute that comes to mind is G.S. 14-208.17(b), which prohibits any person from conducting any activity at a residence where that person accepts a minor into his or her care or custody from another knowing that a registrant lives there. That law might prohibit a registrant from hosting a Halloween party where kids are dropped off at the house, but garden variety trick-or-treaters probably never come into the “care or custody” of anyone at the residence.
A different analysis might apply to a registrant who is on probation, parole, or post-release supervision. A supervised registrant may be subject to a condition of supervision limiting contact with minors that is more restrictive than the criminal provisions described above. Note, however, that the “standard” sex offender probation conditions set out in G.S. 15A-1343(b2) prohibit only residing with minor children. Mere visitation by a trick-or-treater would not violate that condition. See State v. Crowder, 208 N.C. App. 723 (2010) (noting the distinction between visitation and residence). Absent a more restrictive special condition, I don’t know of any basis for preventing an offender from handing out candy, requiring him or her to keep the porch lights off, or requiring the posting of a sign stating that the residence should be avoided.
I have heard about some other approaches to sex offender management on Halloween. Some sheriffs’ offices use the holiday as an opportunity to conduct additional address verifications on registrants. That is permissible under G.S. 14-208.9A(b). Some local probation offices require sex offender probationers to report in to the office on Halloween evening. That’s probably fine under the regular condition of probation that requires an offender “report as directed by [the] probation officer at reasonable times and places and in a reasonable manner,” G.S. 15A-1343(b)(3), but the visit might cease to be “reasonable” if it required the offender to stay for the entire evening. Some offices apparently provide refreshments, so maybe offenders stay voluntarily.
I’d be interested to hear about any other local practices. There may local ordinances in some places that impose additional restrictions. Parents and guardians can obviously take matters into their own hands by searching the registry to determine if there are any houses they would like to skip. Ultimately, remember that the biggest risk to children on Halloween is not sex offenders or, as Jeff discussed a while ago, adulterated candy, but rather being hit by a car. So be careful out there.
A registered sex offender may not knowingly reside within 1,000 feet of a school or child care center. G.S. 14-208.16. That restriction was enacted in 2006, S.L. 2006-247, and applies to all registered sex offenders in North Carolina, regardless of their particular crime or date of offense. A violation of the law is a Class G felony.
The residency restriction law has two exceptions that exclude certain sex offenders from its coverage. Both exceptions, which operate as grandfather clauses that protect certain registrants’ property interests, were likely included in the in an effort to avoid some of the litigation that had arisen regarding other states’ residency restrictions around that time. See, e.g., Mann v. Georgia Dept. of Corr., 653 S.E.2d 740 (Ga. 2007) (holding that Georgia’s similar restriction violated the Takings Clause by forcing a sex offender to move out of his home, without compensation, when a child care center opened nearby).
The first exception is for changes in the ownership or use of property within 1,000 feet of a registrant’s address that occur after the registrant establishes residency. G.S. 14-208.16(d). In other words, if the sex offender was there first, he or she does not have to move away if a school or child care center opens up nearby. The statute provides three ways in which a residence can be “established” for purposes of applying the exception:
- Purchasing or entering into a specifically enforceable contract to purchase the residence;
- Entering into a written lease for the residence; and
- Residing with an immediate family member “who established residence in accordance with this subsection [G.S. 14-208.16(d)].” Immediate family member is defined as a child or sibling who is at least 18 years old, or a parent, grandparent, legal guardian, or spouse of the registrant.
The second exception, broader than the first, is that the restriction does not apply at all to any registrant who established a residence before the law came into effect in 2006. Unlike the first exception, the second exception was not initially written into G.S. 14-208.16 itself. It was, rather, included in the effective date clause of the legislation that enacted that statute. S.L. 2006-247, § 11.(c) (“Subsection (a) of this section does not apply to a person who has established a residence prior to the effective date of this subsection.”). The same methods of establishing residence applicable to the first exception (purchase, lease, or residing with an immediate family member) also apply to the second exception.
Not everyone interpreted the second exception the same way. First, because it was in the session law but not the codified statute, some people apparently were not aware of it at all. Second, there was some confusion about the triggering date of the exception, with some people reading the law to exclude registrants who established a residence before December 1, 2006 (the date mentioned in §11.(c) of S.L. 2006-247), and others thinking the residence had to have been established by August 16, 2006 (the day the governor signed the bill into law). Third (and perhaps most significantly), there were differences of opinion about the proper interpretation of the “reside with an immediate family member” method of establishing residence. Some thought the exception applied only if the registrant actually moved in with the immediate family member before the law’s effective date, regardless of when the family member purchased or leased the residence. Others read that exception to relate back to the date the immediate family member established the residence, even if the registrant himself or herself didn’t live there until later. The latter reading had some support in the statute (the law refers to immediate family members who establish residence “in accordance with this subsection,” arguably bringing them within the law’s overall effective date fold), but people disagreed.
Legislation enacted this year, effective when it became law on April 16, 2013, attempted to address all three of those concerns. S.L. 2013-28. First, the legislation wrote the second exception into G.S. 14-208.16(a) itself, bringing it out of the shadows of the session laws. Second, the now-codified second exception makes clear that it applies as of August 16, 2006—not December 1 of that year.
Finally, the legislation attempted to clarify that the exception is measured by the date the registrant establishes residency, and does not relate back to the date the residence was established by an immediate family member. A pointed clause in the legislation’s preamble defined the problem the revised law was intended to address:
“Whereas, law enforcement officials mistakenly believe, based only upon the codified portion of the  law . . . that a registered sex offender can legally reside within 1,000 feet of a school or day care center if the offender moves in with a family member who had established residence at the location prior to the effective date of the law, even though the offender did not establish residence at the location prior to August 16, 2006 . . . .”
That framing of the issue should make clear (to people who read session laws, at least) that revised G.S. 14-208.16(a) is intended to exclude only those registrants who themselves established a residence before August 16, 2006, and that the exclusion does not relate back to the date an immediate family member established residence. Any registrant who was residing with an immediate family member under a former interpretation of the law probably should have moved out after April 16, 2013.
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.