Relief from a Criminal Conviction (2023 Edition)
General Considerations for Sex Offender Requirements
The next two parts of this guide discuss the statutory mechanisms for terminating sex offender registration and satellite-based monitoring obligations.[1] The discussion below considers other potential forms of relief. Not discussed here are the procedures for appealing a conviction of an offense requiring registration or seeking post-conviction relief through a motion for appropriate relief, which if they result in reversal or vacating of a conviction would terminate the accompanying consequences. See G.S. 14-208.6C (providing for discontinuation of registration if conviction has been reversed, vacated, or set aside).
For the most part, North Carolina’s expunction statutes do not allow expunction of a conviction of an offense subject to sex offender registration. Either the statutes are not broad enough to cover the offenses or the offenses are excluded from relief. Narrow exceptions may exist. If a charge is dismissed or diverted without a conviction, it can be expunged under the usual rules for expunging dismissals. For a further discussion, see infra Appendixes: Frequently Asked Questions (Offenses Subject to Sex Offender Registration).
An unconditional pardon of innocence (discussed infra under Other Procedures: Pardons) discontinues registration and related obligations. G.S. 14-208.6C.
If a person believes that he or she is wrongfully required to register—for example, the person believes the offense is not one subject to registration—the person should file a declaratory relief action rather than a petition to terminate registration obligations. In re Bunch, 227 N.C. App. 258 (2013) (allowing petition to terminate registration but indicating that it is not the appropriate mechanism for this purpose). If the court grants declaratory relief, the person would no longer be required to register.
A different question is whether the court has the authority to order the removal of erroneously obtained registration information to the extent such information exists. Courts in other states have reached different results. See Doe v. Merritt, 261 S.W.3d 672, 676 (Mo. Ct. App. 2008) (holding that “trial court’s order was an acceptable use of its equitable power to fashion an appropriate remedy for the wrongful acquisition of the information”); see also Williams v. Lee, 2010 WL 1794397 (Mo. Ct. App. 2010) (unpublished) (reaching same result), vacated on other grounds, 331 S.W.3d 298 (Mo. 2011). But see Cline v. State, 971 N.E.2d 1240 (Ind. Ct. App. 2012) (in 2-1 decision, finding that trial court lacked statutory authority to order expunction of registration information), transferred and vacated, 982 N.E.2d 298 (Ind. 2013).
Following litigation successfully challenging North Carolina’s practice of having county sheriffs determine whether an out-of-state or federal conviction requires registration, North Carolina enacted legislation requiring a judicial determination if requested by the person. Jamie Markham, New Legislation on Sex Offender Registration for Out-of-State Offenses, N.C. Crim. L., UNC Sch. of Gov’t Blog (Jul. 29, 2020) (discussing litigation over registration for out-of-state convictions and legislative changes). Under G.S. 14-208.12B, notice must be given to the person of the right to obtain a judicial determination. AOC-CR-259 (Aug. 2020) is the form for a person to obtain a judicial determination. The State has the burden to show that the out-of-state or federal conviction is substantially similar to a North Carolina conviction that requires registration. See In re Alcantara, ___ N.C. App. ___, 896 S.E.2d 152 (2023) (finding that State failed to meet its burden). If the person does not request judicial review within 30 days of receipt of notice, the person is deemed to have waived judicial review. G.S. 14-208.12B(f). Once a person requests a judicial determination, the person has the right to appointment of counsel. G.S. 14-208.12B(b); G.S. 7A-451(a)(19).
The above process is not a substitute for a person who is properly required to register to petition to terminate registration. G.S. 14-208.12B(h).
A review of the offenses subject to sex offender registration is beyond the scope of this guide. For further discussion, see Jamie Markham, Sex Offender Registration & Satellite-Based Monitoring (SBM) (July 2017); North Carolina Sheriffs' Association, Sex Offender Registration in North Carolina (Apr. 2022).
[1] A small number of people subject to sex offender registration requirements do not have to petition to terminate registration requirements. Effective December 1, 2006, the General Assembly required anyone then subject to registration requirements to petition to terminate those requirements. Before then, the registration requirements expired automatically after 10 years. North Carolina’s registration program began January 1, 1996. See generally State v. Surratt, 241 N.C. App. 380 (2015) (recognizing that program did not apply to people released from prison before that date but finding that the defendant was released after that date and had to register). Anyone whose registration period began between January 1 and November 30, 1996 (and who was not subsequently convicted of an offense subject to registration) would have completed his or her 10-year registration period before December 1, 2006, and his or her obligations would have expired automatically. See John Rubin, 2006 Legislation Affecting Criminal Law and Procedure, Administration of Justice Bulletin No. 2007/03, at p. 2 & n.2 (Jan. 2007) (discussing this issue); State v. Aiken, 193 N.C. App. 455 (2008) (unpublished) (recognizing that registration automatically terminates for people whose registration began before December 1, 1996, but finding that defendant’s registration obligation began well after that date).