The Range of Consequences of a Sex Offender Conviction

Tag Archives: sex offenses

The Range of Consequences of a Sex Offender Conviction

Posted on December 11, 2013 by John Rubin

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.

Category: Crimes and Elements, Sentencing, Uncategorized | Tags: C-CAT, collateral consequences, sex offenders, sex offenses

Sex Offender Residency Restriction Clarified

Posted on October 24, 2013 by Jamie Markham

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 [2006] 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.

Category: Crimes and Elements, Uncategorized | Tags: registration, residency restrictions, sex offenders, sex offenses

Revised Sex Offender Flow Chart (August 2013 Edition)

Posted on August 28, 2013 by Jamie Markham

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

The Wetterling Finding: Not an Unconstitutional Delegation

Posted on April 23, 2013 by Jamie Markham

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.

Category: Sentencing, Uncategorized | Tags: mcclain, petitions to terminate, sex offender registration, sex offenders, sex offenses, wetterling

No Sex Offender Registration for a “True PJC”

Posted on March 19, 2013 by Jamie Markham

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.

Category: Sentencing, Uncategorized | Tags: payer for judgment, PJC, sex offender registration, sex offenders, sex offenses, walters

Revised Sex Offender Flow Chart (March 2013 Edition)

Posted on March 7, 2013 by Jamie Markham

It’s time for another update to my sex offender flow chart. The latest version is available here. As in the prior versions, everything to do with sex offender registration is on the front and everything to do with satellite-based monitoring (SBM) is on the back. Here is a summary of the changes in the latest version.

Findings that may trump a Static-99. It is fairly well established by now that when determining whether a defendant requires the “highest possible level of supervision and monitoring”—and thus requires SBM for a period specified by the court—the trial court is not bound by the results of the Static-99 risk assessment. Rather, the court can make findings in support of its conclusion that monitoring should be required in spite of a less-than-HIGH Static-99 score. State v. Morrow, 200 N.C. App. 123, aff’d, 364 N.C. 424 (2010). The chart is updated to reflect a recent case that sheds new light on the nature of those findings, State v. Thomas, __ N.C. App. __ (Feb. 19, 2012).

In Thomas, the defendant’s Static-99 came back LOW, but the trial judge ordered SBM for 10 years based on his findings (1) that the victim was emotionally traumatized, (2) that the defendant took advantage of a position of trust, and (3) that the defendant had a prior conviction for an old sex crime (a 1968 “misdemeanor rape” from another state). The court of appeals said the first finding was improper because it was based solely on unsworn statements from the victim’s mother, who did not testify under oath and whom the defendant had no opportunity to cross-examine. The court said the third finding was improper because the defendant’s old rape crime was already incorporated into scoring of the Static-99. The trial court had also noted concern based on the defendant’s recurrent sexual deviancy even at his age (over 60). The court of appeals said that, too, was off limits as a finding, because the defendant’s age was already factored into the Static-99 score. To summarize the rules from Thomas: (1) additional SBM findings should be supported by competent evidence; and (2) you can’t trump the Static-99 with additional findings that are “explicitly considered in the Static-99” itself.

Risk assessments for women. Speaking of the Static-99, it is not approved for use on women. But G.S. 14-208.40A and -208.40B say that the court “shall order that [DAC] do a risk assessment of the offender” if he or she has committed an offense that involved the physical, mental, or sexual abuse of a minor. So what assessment should the court order for a woman? Lacking any better ideas, my advice has been for the court to ask Community Corrections to run its Offender Traits Inventory (OTI) on the defendant. It’s not sex-offender specific, but it does measure risk of reoffending (as described here), and so would appear to satisfy the statute. That advice is now incorporated into the chart.

Another offense that can never be aggravated. The new chart adds a citation to State v. Boyett, __ N.C. App. __, 735 S.E.2d 371 (2012), in which the court of appeals held that second-degree sexual offense can never be an aggravated offense. It is now clear, based on Boyett and lots of other cases flagged on the chart, that no sexual offense can ever be an aggravated offense. Aggravated offenses are to be determined based on the elements of the conviction offense. State v. Davison, 201 N.C. App. 354 (2009). Because sexual offense can be committed based on sexual acts that do not necessarily involve penetration (fellatio, analingus, and cunnilingus, namely), it does not categorically satisfy the definition of an aggravated offense under G.S. 14-208.6(1a)—no matter what the court might know about the particular facts of the case in question. The supreme court granted a temporary stay in the case, __ N.C. __, 735 S.E.2d 343 (2012), so I’ll keep an eye on that.

Court martial effective date. A sharp-eyed colleague flagged an error in previous versions of the chart. The section on federal convictions had indicated that all qualifying federal convictions, including those resulting from a court martial, were reportable for defendants convicted or released on or after April 3, 1997. In fact, the provision related to courts martial was not added until October 1, 2001, effective for offenses committed on or after that date. S.L. 2001-373. I apologize for the error and thank John Rubin for catching it.

Category: Sentencing, Uncategorized | Tags: sex offender flow chart, sex offenders, sex offenses

Sentencing Rules for Rape and Sexual Offense Against a Child by an Adult Offender

Posted on November 27, 2012 by Jamie Markham

In 2008 the General Assembly enacted two new crimes, rape of a child by an adult offender under G.S. 14-27.2A, and sexual offense with a child by an adult under G.S. 14-27.4A. S.L. 2008-117. Both crimes have special sentencing rules and special provisions for lifetime satellite-based monitoring. Today’s post responds to some of the questions I have been getting about those special rules. (Some of these issues were discussed immediately after the law came into effect in John Rubin’s 2008 legislative summary, available here.)

Rape of a child by an adult offender is defined as vaginal intercourse with a child under 13 by a defendant who is at least 18. Sexual offense with a child by an adult offender is defined as engaging in a sexual act (cunnilingus, analingus, fellatio, anal intercourse, or the insertion of any object into another’s genital or anal opening) with a child under 13 by a defendant who is at least 18. There is thus some overlap between these crimes and the “regular” first-degree statutory rape and sexual offense crimes set out in G.S. 14-27.2 and 14-27.4, respectively—and like those crimes, the “adult offender” versions are Class B1 felonies. The adult offender versions are different, however, in that they carry a notably higher punishment than that applicable to an ordinary Class B1 felony under Structured Sentencing.

Before delving into the special rules, I should say at the outset that the adult offender crimes only apply to offenses committed on or after December 1, 2008. For earlier offenses only the regular Class B1 rape and sexual offense crimes could apply. Many times I have received questions about the special sentencing rules for the adult offender versions, only to discover that the acts in question occurred before December 1, 2008 and thus were not properly charged under the new statutes in the first place. I should also note that these rules appear to apply only to the completed crimes; there is no indication that the special provisions apply to attempts or other inchoate crimes.

As for the special rules themselves, both G.S. 14-27.2A and 14-27.4A provide that a person convicted of those crimes must be sentenced to an active punishment of at least 300 months. I read that as a mandatory minimum sentence of imprisonment, supplanting any shorter minimum sentence otherwise applicable to a Class B1 felon according to the sentencing grid. Depending on the defendant’s prior record level that can make for a pretty substantial increase in the sentence. For example, the adult offender mandatory minimum increases the lowest possible (bottom-of-the-mitigated-range) minimum sentence for a first-time offender from 144 months to 300 months—an increase of 13 years. No statute expressly says so, but it seems to me that if the court imposes a 300-month minimum sentence, the corresponding maximum should be determined according to the regular “formula” applicable to a Class B1 reportable sex crime. Thus, for an offense committed on or after December 1, 2011, the maximum would be 120% of the minimum plus 60 months, making the sentence 300–420 months. For an offense committed before December 1, 2011, the maximum would be 120% of the minimum plus 9 months, making the sentence 300–369 months. (For a description of the changes to sex offender sentencing effective December 1, 2011, see this post.) For defendants otherwise eligible for a sentence in excess of the 300-month minimum, just use the regular sentencing grid as usual.

Both adult offender statutes provide that the court can impose a sentence to a term of months even longer than that allowed by the sentence grid, up to and including life imprisonment without parole, if the court finds “egregious aggravation.” The statutes state that egregious aggravation may be found if “the nature of the offense and the harm inflicted are of such brutality, duration, severity, degree, or scope beyond that normally committed in such crimes, or considered in basic aggravation of these crimes, so as to require a sentence to active punishment in excess of that authorized pursuant to [Structured Sentencing].” The term also includes “further consideration of existing aggravating factors where the conduct of the defendant falls outside the heartland of cases even the aggravating factors were designed to cover,” or consideration of the “extraordinarily young age of the victim, or the depraved torture or mutilation of the victim, or extraordinary physical pain inflicted on the victim.” What sort of aggravation rises to the level of egregious aggravation is not entirely clear from the law itself, but the real problem with the statutes is who they charge with the responsibility of making the egregious aggravation determination. Both laws say that the sentencing judge does it, but it would almost certainly run afoul of a defendant’s Sixth Amendment rights to allow such findings—which clearly increase the maximum permissible punishment—to be made by anyone other than the jury. Blakely v. Washington, 542 U.S. 296 (2004) (holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be admitted to by the defendant or submitted to the jury and proved beyond a reasonable doubt). A trial court judge could perhaps fashion a remedy for the possible constitutional defect by submitting the issue of egregious aggravation to the jury using a special verdict. See State v. Blackwell, 361 N.C. 41 (2006) (speaking approvingly of the special verdict as a way to protect a defendant’s jury trial right after Blakely was decided but before North Carolina’s Blakely fix legislation came into effect). [Author’s note: In State v. Singletary, __ N.C. App. __ (May 3, 2016), the court of appeals cast doubt on a trial court’s authority to fashion a remedy for this constitutional violation by use of a special verdict.]

Finally, the two adult offender statutes are unique in that they require convicted defendants to submit to satellite-based monitoring (SBM) for life upon their release from prison. For other crimes, lifetime SBM does not flow from the crime of conviction, but rather from a separate finding that the offender is a sexually violent predator, a recidivist, or that the conviction offense was an aggravated offense. G.S. 14-208.40A. Both adult offender crimes are “sexually violent offenses” under G.S. 14-208.6(5), meaning they require registration as a sex offender. But there is no provision in the statutes for automatic lifetime registration—raising the odd possibility that a convicted person might be subject to SBM for life but registration for a term of years. Additionally, the adult offender statutes make no mention of automatic lifetime SBM for offenders convicted of attempts, conspiracies, or solicitations to commit those crimes. Those crimes are reportable under G.S. 14-208.6(4)a (attempts) and G.S. 14-208.6(5) (conspiracies and solicitation), but only require SBM if ordered by the court pursuant to the rules applicable to other sexually violent offenses. The special status of the adult offender crimes with respect to SBM is reflected on Form AOC-CR-615, which includes a separate check-box (finding 1.d, near the top of the first page) for defendants convicted of those crimes.

Category: Crimes and Elements, Sentencing, Uncategorized | Tags: adult offender, rape, satellite based monitoring, sbm, Sentencing, sex offenses

No Contact Orders for Sex Offenders

Posted on June 14, 2012 by Jamie Markham

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.

Category: Sentencing, Uncategorized | Tags: hunt, no contact orders, sex offender, sex offenses

Crime Against Nature

Posted on July 26, 2011 by Jessica Smith

Crime against nature is usually an “add on” to other charged sexual assaults, such as forcible or statutory sexual offense and indecent liberties with a child. In this post, I’ll address several aspects of the offense that keep tripping lawyers up.

First, what’s covered by the offense? The statute makes it a Class I felony to “commit the crime against nature, with mankind or beast.” G.S. 14-177. That doesn’t get us very far. Thus, we need to look at the case law. Cases hold that each of the following acts is a crime against nature:

the inserting, by a male, of his sexual organ into the mouth or anus of another male or a female, State v. Fenner, 166 N.C. 247 (1914); State v. Harward, 264 N.C. 746 (1965); State v. Copeland, 11 N.C. App. 516 (1971),
the receiving, by a male or a female, of the sexual organ of a male into his or her mouth or anus, State v. Griffin, 175 N.C. 767 (1876); State v. Chance, 3 N.C. App. 459 (1969),
fellatio, State v. Poe, 40 N.C. App. 385 (1979),
cunnilingus, State v. Joyner, 295 N.C. 55 (1978),
analingus, and
the inserting of an object into a person’s genital opening, State v. Stiller, 162 N.C. App. 138 (2004).

While there are no North Carolina appellate cases on sexual acts with animals, the statute expressly includes “the crime against nature, with . . . [a] beast.” G.S. 14-177. Note that the penetration of the female sexual organ by the male sexual organ (what we think of as heterosexual sex) is not included.

Second, crime against nature is requires penetration. State v. Whittemore, 255 N.C. 583 (1961); In re R.N., ___ N.C. App. ___, 696 S.E.2d 898 (2010). This is in contrast to a charge of sexual offense based on, for example, the act of cunnilingus. For a sexual offense charge, penetration is not required; stimulation by tongue or lips of any part of the woman’s genitalia is sufficient. State v. Ludlum, 303 N.C. 666 (1981). Occasionally the appellate division is somewhat permissive in terms of the evidence that will satisfy the penetration requirement. For example, the court of appeals held there was sufficient evidence of penetration when a 4-year-old victim licked an 11-year-old’s penis. In re Heil, 145 N.C. App. 24 (2001) (“We recognize that the evidence of penetration is, at best, slight. However, in light of the relative size difference between a four year old and an eleven year old, and the fact that the incident occurred in the presumably close quarters of a closet, it was reasonable for the trial court to find . . . that there was some penetration, albeit slight, of juvenile’s penis into [the victim’s] mouth.”). In others, however, it is stricter. Thus, evidence that a juvenile licked and put his mouth on the victim’s private area and “touch[ed] . . . on her private parts” was held to be insufficient to establish penetration, as was evidence that he forced the victim’s head down to his privates and that she saw his private area. In re R.N., ___ N.C. App. ___, 696 S.E.2d 898, 902 (2010).

The third issue that sometimes trips people up regarding crime against nature is the issue of lack of consent. Some sexual offense crimes include force as an element. See, e.g., G.S. 14-27.4 (first-degree forcible sexual offense). As such, the relevant conduct is never constitutionally protected. However, crime against nature does not include an element of force or lack of consent and thus can encompass constitutionally protected conduct. For example, if the relevant acts (fellatio, cunnilingus, etc.) occur between two consenting adults, in private and not for money, the conduct is constitutionally protected under Lawrence v. Texas, 539 U.S. 558 (2003). The crime against nature statute is not unconstitutional on its face under Lawrence and it may be used to prosecute conduct involving a minor, nonconsensual or coercive sexual acts, conduct occurring in a public place, or conduct involving prostitution or solicitation. State v. Whiteley, 172 N.C. App. 772 (2005); State v. Pope, 168 N.C. App. 592 (2005). However, when the charge involves private conduct between adults not in public and not for money, Lawrence requires that the State prove lack of consent. State v. Hunt, __ N.C. App. __, __ S.E.2d __ (May 3, 2011) (reversing the defendant’s conviction for crime against nature based on private conduct with a 17-year-old female, not for money, the court concluded that there was insufficient evidence of lack of consent).

Finally—and perhaps most significantly for defense lawyers trying to figure out the best crime for their clients to plead guilty to—crime against nature is one of the few sexual-related offenses that does not require registration under the sex offender registration statutes. But, as discussed above, if the conduct at issue involves heterosexual sex it’s not covered by this crime and thus there would be no factual basis for a plea.

If there are other areas of confusion about this offense, let me know and I will try to address them.

Category: Crimes and Elements, Uncategorized | Tags: crime against nature, lawrence, sex offenses

Changes to Post-Release Supervision for Sex Offenders

Posted on July 21, 2011 by Jamie Markham

I mentioned in my previous post that the Justice Reinvestment Act (JRA) is not the only new legislation that impacts post-release supervision (PRS). This post looks at S.L. 2011-307, which changes the way PRS applies to sex offenders. (I also mentioned that I would talk about post-release supervision for certain impaired drivers under Laura’s Law, but it turned out that I had so much to say about sex offenders that I decided to leave that for another day.)

Under existing law, the period of post-release supervision in the community is 5 years for Class B1–E offenders imprisoned for a crime that requires sex offender registration. But those offenders face only 9 months of active time if their PRS is revoked—only 9 additional months are built into their active sentences, and they are released from prison 9 months before attaining their maximum. Faced with a choice between 5 years of supervision in the community and 9 months in prison, some offenders opt for the latter. Under G.S. 15A-1368.2(b) a person technically cannot refuse PRS, but some offenders get around that by violating their conditions of supervision on purpose.

To put a stop to that, S.L. 2011-307 amends G.S. 15A-1340.17(f) to provide that for sex offenders convicted of Class B1–E felonies, the maximum sentence is 120 percent of the minimum, rounded to the next highest month, plus 60 additional months. The law then makes a parallel change to G.S. 15A-1368.2(a) to provide that those offenders will be released from prison onto PRS 60 months before attaining their maximum, less earned time. Thus, if they violate PRS, they can be returned to prison for the remaining 60 months—making it far less appealing to serve the prison time in lieu of community supervision.

That change does not apply to Class F–I felons convicted of reportable crimes—even though they will be subject to PRS pursuant to the JRA and will have 5-years of supervised release under existing G.S. 15A-1368.2(c). Even those offenders, though, will have an incentive to complete their PRS in the community under S.L. 2011-307. The new law provides that willful refusal to accept or comply with the terms of PRS is punishable as criminal contempt of court, with the Parole Commission empowered to act as a judicial official would under Chapter 5A. That would appear to mean that the Parole Commission could, after holding a plenary contempt proceeding under G.S. 5A-15 and finding beyond a reasonable doubt that an offender willfully refused to accept or comply with PRS, punish a person by up to 30 days imprisonment under G.S. 5A-12. The amended statute says that notwithstanding any other provision of law, any punishment for that contempt does not count for credit for time served against the underlying sentence. That may conflict with State v. Belcher, 173 N.C. App. 620 (2005), which held that a revoked probationer was entitled to credit for time spent jailed for contempt under G.S. 15A-1344(e1).

The new law also provides that any time spent imprisoned “due to the prisoner’s resistance to . . . release” must “toll the running of the period of supervised release.” “Tolling” in this context appears to mean that the offender’s period of PRS will be right there waiting for him when he gets released from prison, with no time having ticked off the supervision period in the interim—a further disincentive to any attempt to refuse PRS. The inclusion of a tolling provision in this law makes me wonder if a regular (that is, non–sex offender) offender’s period of supervision is tolled when he or she gets imprisoned in response to a non–new crime, non-absconding violation of PRS.

The law amends G.S. 15A-1354(b)(1) to subtract duplicate 60-month periods built into the aggregate maximum sentence for anyone sentenced for multiple reportable Class B1–E crimes. The amended law does not, however, reflect the changes made by the JRA regarding the subtraction of “second and subsequent” 9-month and 12-month duplicate PRS time out of the aggregate maximum. Read together, I think the changes probably accomplish the goal of having the offender serve a single PRS term of the appropriate length for whichever sentence requires the longest period of supervision (assuming that was, in fact, the goal), but it’s not clear.

When sentencing a Class B1–E sex offender, the court will need to add 48 months onto the maximum sentence set out on the back of the post–December 1, 2011 sentencing grid (the number on the chart will be 120% of the minimum plus 12 months, so an additional 48 months will need to be tacked on to get to 60). For sentencing geeks like me, the mere thought of adding time to maximum sentences sets off alarm bells: could this be an issue under Blakely v. Washington, 542 U.S. 296 (2004)? In general I don’t think it is. Sex offender registration typically flows directly from a conviction, and so no additional factual findings (that might trigger the Blakely rule requiring an admission by the defendant or proof to a jury beyond a reasonable doubt) would be required by a judge. A few offenses, however, are only reportable if additional facts beyond those inherent in the conviction itself are true. Kidnapping, for example, is only reportable if committed against a minor. G.S. 14-208.6(1m). It’s not a problem under Blakely for the court to make that factual finding for sex offender registration purposes because registration itself is not a criminal punishment. But to the extent that 48 months of additional imprisonment are at stake, it seems that Blakely might come into play.

The portion of the new law adding 60 months to the maximum sentences for Class B1-E sex offenders is effective December 1, 2011 and applicable to offenses committed on or after that date. The contempt provisions came into effect June 27, 2011, and apply to willful refusals to accept or comply with post-release supervision on or after that date.

Category: Sentencing, Uncategorized | Tags: blakely, contempt, justice reinvestment act, post-release supervision, Sentencing, sex offenders, sex offenses, structured sentencing

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