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Relief from a Criminal Conviction

Termination of Registration and Related Obligations

North Carolina has two registration programs—one for 30 years and the other for life. See G.S. 14-208.6A (stating that North Carolina has these two programs). A person subject to North Carolina’s 30-year registration program (described in Part 2 of Article 27A of G.S. Chapter 14) may petition to terminate registration obligations after 10 years if he or she meets the requirements of G.S. 14-208.12A, set forth in Table 24. This relief is not available to people who have been convicted of aggravated offenses, classified as recidivists, or found to be sexually violent predators, all of whom are subject to North Carolina’s lifetime registration program.[1]

An order granting a petition to terminate registration obligations has the effect of terminating other requirements and restrictions accompanying registration obligations. Thus, for a person convicted of an offense subject to the 30-year registration program, the sentencing court may have ordered satellite-based monitoring. See G.S. 14-208.40(a)(2) (describing circumstances in which court may impose this requirement). An order granting a petition to terminate registration terminates satellite-based monitoring because satellite-based monitoring continues only as long as a person “is required to register.” G.S. 14-208.40(a)(2)(ii); see also G.S. 14-208.43(d1) (requiring termination of satellite-based monitoring if petition to terminate registration is granted). Similarly, a termination order has the effect of terminating other statutory restrictions arising from a conviction subject to registration, such as restrictions on where a person may live, work, or go. Again, the reason is that those restrictions generally apply only as long as a person is a registrant or is required to register.[2] For a comprehensive list of consequences and restrictions, see John Rubin, Consequences of Conviction of Offenses Subject to Sex Offender Registration (Mar. 2017).

The 10-year waiting period for a termination petition begins on the date the person initially registers in North Carolina. The North Carolina Court of Appeals has held that if a person is convicted in another state and initially registers there, the 10-year waiting period does not begin until the person first registers in North Carolina.[3]

A person is ineligible to terminate registration if convicted of a subsequent offense requiring registration. G.S. 14-208.12A(a). In that instance, the person would be considered a recidivist, would be required to register for life, and would be ineligible to terminate registration (although he or she still may be eligible for termination of lifetime satellite-based monitoring obligations (see infra Sex Offender Registration and Monitoring: Termination of Satellite-Based Monitoring Obligations)). A conviction for violating registration obligations is not a disqualifying conviction because it is not a conviction for an offense requiring registration. Such a conviction, however, might lead a judge to deny a termination petition because the petitioner has failed to show that he or she is not a current or potential “threat to public safety,” one of the required grounds for termination. G.S. 14-208.12A(a1)(3).

A person is also ineligible to terminate registration if he or she has been arrested for any crime that would require registration since completing his or her sentence. G.S. 14-208.12A(a1)(1). On its face, this language could be construed as barring termination if the petitioner is ever arrested for such an offense, regardless of the disposition of the case. The General Assembly probably did not intend to bar termination for an arrest on a charge that is later dismissed or for which a person is acquitted, however. More likely, the General Assembly intended by the “arrest” language to bar termination if a person has a pending charge for a crime that would require registration. This interpretation would be consistent with terminology used in more recently enacted relief statutes, which bar relief for pending disqualifying charges.[4]

Last, G.S. 14-208.12A(a1)(2) requires that the termination comply “with the provisions of 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.” It is therefore necessary to consider the impact of federal law on the preconditions for termination of registration. A brief history may be helpful in understanding the potential issues. The Jacob Wetterling Act was enacted by Congress in 1994 and established the first set of federal sex offender registration standards. It did not mandate that states follow the standards; rather, it provided that if a state did not substantially comply with the standards by the deadline in the legislation, it would lose 10 percent of its federal Byrne Justice Assistance grant funds. Congress thereafter amended the federal law several times, employing similar financial incentives and deadlines to induce states to comply; in response, North Carolina enacted and revised a number of its statutes to incorporate changing federal standards. North Carolina also adopted the general reference, above, to federal standards on termination. In 2006, Congress adopted Title I of the Adam Walsh Act, also called the Sex Offender Registration and Notification Act (SORNA). Among other things, SORNA created new registration “tiers,” discussed further below, which control the length and termination of registration. (More information about SORNA can be found on the website of the Office of Sex Offender, Monitoring, Apprehending, Registering, and Tracking, or SMART Office, within the U.S. Department of Justice.) The deadline for states to adopt the SORNA standards expired on July 27, 2011. Other than the general reference to federal termination standards in G.S. 14-208.12A, enacted before the passage of SORNA, the North Carolina General Assembly has not adopted the SORNA registration tiers.[5]

The first question is whether the federal standards apply to termination decisions by the North Carolina state courts. In several cases, the North Carolina courts have applied the federal standards to petitions to terminate registration; petitioners therefore should anticipate that they must satisfy the standards. See State v. Moir, ___ N.C. ___, 794 S.E.2d 685 (2016) (remanding for determination whether petitioner met federal termination standards); State v. Hall, 238 N.C. App. 322 (2014) (holding that federal termination standards applied retroactively to defendant); In re McClain, 226 N.C. App. 465 (2013) (holding that General Assembly did not unconstitutionally delegate its lawmaking authority to Congress by incorporating federal standards on terminating registration into G.S. 14-208.12A).

The second question is how to apply the SORNA standards to North Carolina offenses. SORNA establishes three different tiers of offenses, each with a different registration period. For tier 1 offenses, the required registration period is 15 years; for tier 2 offenses, the period is 25 years; and for tier 3 offenses, the period is life. A person convicted of a tier 1 offense may reduce the registration period—from 15 to 10 years—if during the period of registration he or she has a “clean record” as defined in SORNA. A person convicted of a tier 2 or 3 offense may not reduce the registration period required for those tiers (although a person required to register under North Carolina’s 30-year registration program could petition to reduce the registration period from 30 to 25 years if convicted of an offense considered to be a tier 2 offense). It is not entirely clear how to apply these tiers because North Carolina does not organize its offenses into three tiers and the offense descriptions within the three SORNA tiers do not correspond neatly with the North Carolina offenses subject to registration. North Carolina case law, cited above, is continuing to develop. For a further discussion of how to categorize North Carolina offenses according to the three SORNA tiers, see Jamie Markham, Petitions to Terminate Sex Offender Registration (Oct. 2013). See also Jamie Markham, Petitions to Terminate Sex Offender Registration: Moir Tiers, N.C. Crim. L., UNC Sch. of Gov't Blog (Jan. 5, 2017).

 

Table 24. Termination of Registration and Related Obligations

Matters Subject to Termination of Registration and Related Obligations

Principal Restrictions on Termination of Registration

Applicable Statutes and Forms

  • Conviction of an offense subject to Part 2 of Art. 27A of G.S. Ch. 14 (30-year registration program)
  • Petition may not be filed until 10 years from date of initial county registration in North Carolina
  • Petitioner has not been convicted of subsequent offense requiring registration
  • Petitioner has not been arrested for an offense that would require registration since completing sentence
  • Relief complies with applicable federal law
  • Judge finds that petitioner is not current or potential threat to public safety



[1] The General Assembly established the 30-year registration period for people convicted of offenses subject to Part 2 of Article 27A of G.S. Chapter 14, effective for registrations made on or after December 1, 2008. The author of this guide believes that this program sets a maximum registration period, which terminates automatically at 30 years if not terminated earlier. The author also takes the view that the 30-year period applies to anyone still required to register under Part 2 on or after December 1, 2008. See John Rubin, 2008 Legislation Affecting Criminal Law and Procedure, Administration of Justice Bulletin No. 2008/06, at p. 4 & nn. 2–3 (Nov. 2008). No cases have specifically addressed the issue yet because no one has been on the registry for 30 years. Cf. In re Hamilton, 220 N.C. App. 350, 355 n.1 (2012) (suggesting in different context and without addressing the issues raised here that 30-year registration requirement applies to people first registering on or after December 1, 2008). Regardless of the maximum required registration period, people subject to registration under Part 2 may petition to terminate their registration requirements if they have registered for the required minimum period and meet the other criteria for termination.

[2] Some exceptions to this general rule exist. See G.S. 15A-145.4(a)(3) (for expunction petitions filed on or after Dec. 1, 2012, disallowing expunction of a felony requiring registration whether or not the person is currently required to register); G.S. 15A-145.5(a)(3) (to same effect); G.S. 50D-6, enacted by S.L. 2015-91 (S 60) (effective Oct. 1, 2015, person who is victim of offense subject to sex offender registration may obtain civil no-contact order for life of offender); see also State v. Mastor, ___ N.C. App. ___, 777 S.E.2d 516 (2015) (finding that under consent order prohibiting defendant from allowing convicted sex offender to be in presence of defendant's children, person convicted of felony peeping was convicted sex offender although sentencing court had not required person to register as sex offender).

[3] In re Borden, 216 N.C. App. 579 (2011). Borden did not address how to calculate credit if a person initially registers in North Carolina and then moves to another state. See Jamie Markham, “Initial County Registration” for Sex Offender Registration Purposes, N.C. Crim. L., UNC Sch. of Gov’t Blog (Nov. 1, 2011); see also North Carolina Department of Justice, Law Enforcement Liaison Section, The North Carolina Sex Offender & Public Protection Registration Programs, at p. 43 (Sept. 2014) (stating in answer to question no. 12 that no time spent on another state’s registry counts toward the 10-year requirement, and stating in answer to question no. 11 that if a person registers in North Carolina and then moves to another state, the person is required to maintain registration to the extent required by North Carolina statutes, raising the possibility that the person may receive credit from the date he or she initially registers in North Carolina).

[4] See G.S. 14-415.4(e)(2) (barring restoration of firearm rights if person is under indictment or finding of probable cause exists for felony); G.S. 15A-145.4(e)(3) (barring expunction of nonviolent felony conviction if person has outstanding warrant or pending criminal case); G.S. 15A-173.2(b)(5) (barring certificate of relief if person has pending criminal charge). For a discussion of this guide's approach to statutory interpretation, see supra Overview: Interpreting Relief Statutes (discussing significance of overall legislative scheme).

[5] Based on the timing of the state and federal legislation, it appears that the North Carolina General Assembly added the requirement that a petitioner comply with federal standards to terminate registration in anticipation that it would adopt the SORNA standards once enacted by Congress. See John Rubin, 2006 Legislation Affecting Criminal Law and Procedure, Administration of Justice Bulletin No. 2007/03, at p. 2 & n.1 (Jan. 2007). Initially, states had three years to adopt the SORNA standards. The initial deadline was July 27, 2009, and was extended to July 27, 2011. The final deadline passed without action by the North Carolina General Assembly.