Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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In this Wake County case, the Supreme Court affirmed the Court of Appeals decision that defendant’s petition for early termination of his sex offender registration was properly denied.
In November of 2000, Defendant pleaded guilty to sexual exploitation of a child in Colorado. After completing his sentence in 2008, he registered as a sex offender in Colorado. Defendant moved to North Carolina in October 2020, and petitioned under G.S. 14-208.12B for a determination as to whether he must register as a sex offender. The trial court determined that defendant must register, and he did in April 2021. Subsequently, defendant filed a petition under G.S. 14-208.12A, arguing that his registration should be terminated as it had been over ten years from the date he initially registered in Colorado. The trial court denied this petition, relying on In re Borden, 216 N.C. App. 579 (2011), for the proposition that the statute only allows removal of defendant’s registration after he has been registered for ten years in North Carolina. The Court of Appeals affirmed the trial court’s denial of the petition, holding that the plain meaning of the statute required ten years of registration in North Carolina.
The Supreme Court granted discretionary review to take up defendant’s argument that the Court of Appeals improperly interpreted G.S. 14-208.12A. Specifically, the Court considered whether the word “county” as used in the statute meant any county or only North Carolina counties, concluding that “[b]ecause the definitions under Article 27A refer specifically to counties in North Carolina, ‘initial county registration’ in section 14-208.12A must mean the first registration compiled by a sheriff of a county in the state of North Carolina.” Slip Op. at 6. The Court noted this conclusion was supported by “the General Assembly’s silence since the Court of Appeals decided In re Borden in 2011.” Id. at 7.
Justice Barringer, joined by Justice Dietz, concurred by separate opinion and would not have adopted the General Assembly’s acquiescence from its silence after In re Borden. Id. at 9.
Justice Earls dissented and would have allowed defendant’s petition for termination of his registration. Id. at 11.
In determining whether the defendant’s convictions for taking indecent liberties with a child suffice to make him a Tier II offender as defined in 42 U.S.C. § 16911(3)(A)(iv), the court held that it was required to utilize the categorical approach, as supplemented by the “modified categorical approach” in the event that the defendant was convicted of violating a divisible statute. However, the court concluded that because it did not have the benefit of briefing and argument concerning numerous legal questions of first impression which must be resolved in order to determine the defendant’s eligibility for removal from the registry, remand was required. It noted, among other things, that the trial court failed to determine whether the statute was a divisible one and whether a conviction requires proof that the defendant intentionally touched the victim in a specified manner. The court thus affirmed the Court of Appeals’ decision that the trial court erred by applying the circumstance-specific approach in determining whether the defendant should be deemed eligible to terminate registration. However, it modified the Court of Appeals’ decision to require the use of the modified categorical approach rather than the pure categorical approach in cases involving divisible statutes and remanded to the trial court for further proceedings. It specifically instructed:
On remand, the trial court should consider whether N.C.G.S. § 14-202.1 is a divisible statute. If the trial court deems N.C.G.S. § 14-202.1 to be divisible, it must then consider whether guilt of any separate offense set out in N.C.G.S. § 14-202.1(a)(2) requires proof of a physical touching and whether any such physical touching requirement necessitates proof that the defendant “intentional[ly] touch[ed], either directly or through the clothing, [ ] the genitalia, anus, groin, breast, inner thigh, or buttocks of” the victim. Finally, if guilt of any separate offense set out in N.C.G.S. § 14-202.1(a)(2) requires proof that defendant “intentional[ly] touch[ed], either directly or through the clothing, [ ] the genitalia, anus, groin, breast, inner thigh, or buttocks of” the victim, the trial court must determine whether any document that the trial court is authorized to consider under Shepard permits a determination that defendant was convicted of violating N.C.G.S. § 14-202.1(a)(2) rather than any specific offense set out in N.C.G.S. § 14-202.1(a)(1) or any generic offense made punishable pursuant to N.C.G.S. § 14-202.1(a). Finally, if necessary, the trial court should consider, in the exercise of its discretion, whether it should terminate defendant’s obligation to register as a sex offender.
In 2000, the defendant pleaded guilty to sexual exploitation of a child in violation of Colorado’s laws. The defendant served eight years in prison and registered with the Colorado Sex Offender Registry in 2008, as required by Colorado law. In February 2020, the defendant moved from Colorado to Florida and registered with the Florida Sex Offender Registry, as required by Florida law. The defendant moved to North Carolina in October 2020 and filed a petition requesting a judicial determination of his requirement to register in North Carolina as a sex offender. The trial court entered an order in 2021 requiring that the defendant register as a sex offender on the North Carolina Sex Offender Registry, and the defendant did so on the following business day.
The defendant then filed a petition pursuant to G.S. 14- 208.12A for termination of his requirement to register as a sex offender. The trial court denied the defendant’s petition on the ground that the defendant did not satisfy all of the conditions for early termination of his requirement to register as a sex offender, in that he had not been registered as a sex offender for ten years in North Carolina.
On appeal, the defendant argued that the trial court erred in denying his petition to terminate his requirement to register as a sex offender because the Court’s holding in In re Borden, 216 N.C. App. 579 (2011), was incorrectly decided and should be overturned. In Borden, the Court of Appeals interpreted the statutory phrase “ten years from the date of initial county registration” as limiting eligibility for removal from the North Carolina sex-offender registry to offenders who have been registered for at least ten years from their initial date of registration in a North Carolina county, rather than ten years from the offender’s initial date of registration in any jurisdiction. Slip op. at ¶ 12. Here, the Court determined that although the defendant initially registered as a sex offender in Colorado in 2008, he initially registered as a sex offender in North Carolina in 2021. The Court thus held that because the defendant did not satisfy the statute’s requisite period of registration, he was ineligible for termination from the sex-offender registry.
The defendant argued, in the alternative, that the trial court erred in denying his petition to terminate his requirement to register as a sex offender because the termination statute’s ten-year North Carolina registry requirement violates the Equal Protection Clause. The Court of Appeals determined that an individual’s residency at the time of his initial registration as a sex offender is not inherently suspect, and thus applied a rational basis review to determine whether the statute violated the Equal Protection Clause. The Court concluded that the requirement that a defendant be registered in North Carolina as a sex offender for at least ten years in order to be eligible for early termination of sex offender registration is rationally related to the State’s legitimate interests in maintaining public safety and protection. The Court also concluded that the defendant was treated the same as all other registered sex offenders who initially enrolled in another jurisdiction’s sex-offender registry based upon an out-of-state conviction. The Court thus held that the ten-year North Carolina registry requirement under G.S. 14-208.12A(a) does not violate the Equal Protection Clauses of the United States and North Carolina Constitutions.
The court affirmed the trial court’s denial of the petitioner’s petition to be removed from the sex offender registry. The trial court found that the requested relief did not comply with federal law. On appeal, the court rejected the petitioner’s argument that the trial court violated his substantive due process rights by denying his petition for termination of sex offender registration after finding that he “is not a current or potential threat to public safety.” Specifically, the petitioner argued after the trial court found that he was not a current or potential threat to public safety, it was arbitrary for the trial court to deny his petition and to require him to continue to register because of federal standards incorporated into state law. The court also rejected the petitioner’s argument that the retroactive application of federal sex offender registration standards violates ex post facto protections. Citing its prior cases on point, the court rejected this argument.
The trial court lacked jurisdiction to reconsider the petitioner’s request to terminate sex offender registration where the State failed to oppose termination at the initial hearing and did not appeal the initial order. At the initial hearing the trial court granted the defendant’s motion to terminate registration. At that hearing, the assistant district attorney representing the State chose not to put on any evidence or argue in opposition to termination. At a rehearing on the matter, held after an assistant attorney general representing the North Carolina Division of Criminal Information wrote to the judge suggesting that the judge had incorrectly concluded that termination of registration complies with the Jacob Wetterling Act, the judge reversed course and denied petition. It was this amended order that was at issue on appeal. The court found that the letter submitted to the trial judge by the assistant attorney general did not vest the trial court with jurisdiction to review the termination order for errors of law.
(1) The trial court did not err by relying on the federal SORNA statute to deny the defendant’s petition to terminate his sex offender registration. The language of G.S. 14-208.12A shows a clear intent by the legislature to incorporate the requirements of SORNA into NC’s statutory provisions governing the sex offender registration process and to retroactively apply those provisions to sex offenders currently on the registry. (2) The retroactive application of SORNA does not constitute an ex post facto violation. The court noted that it is well established that G.S. 14-208.12A creates a “non-punitive civil regulatory scheme.” It went on to reject the defendant’s argument that the statutory scheme is so punitive as to negate the legislature’s civil intent.
(1) On the State’s appeal from the trial court order terminating the defendant’s sex offender registration, the court noted that when a defendant seeks to be removed from the registry because he was erroneously required to register, the more appropriate avenue for relief is a declaratory judgment; however, it found that a declaratory judgment is not the exclusive avenue for relief. It continued:
But we would caution that those who seek to terminate registration as a sex offender under N.C. Gen. Stat. § 14-208.12A, for any reason other than fulfillment of the ten years of registration and other requirements of N.C. Gen. Stat. § 14-208.12A in the future will probably not succeed if the State does raise any objection or argument in opposition to the request.
(2) The fact that a person has not actually registered for 10 years in NC does not deprive the trial court of jurisdiction to rule on a petition to terminate.
The court rejected the defendant’s argument that the trial court erred by denying his petition for removal from the sex offender registry because the incorporation of the Adam Walsh Act and SORNA into G.S. 14-208.12A(a1)(2) was an unconstitutional delegation of legislative authority. The court reasoned in part that “[s]imply defining when particular conduct is unlawful by reference to an external standard . . . has not been deemed an unconstitutional delegation of legislative authority.”
Holding, in a case in which the trial court denied the defendant’s motion to terminate his sex offender registration, that the superior court did not have jurisdiction to enter its order. Under G.S. 14-208.12A(a), a petition to terminate must be filed in the district where the person was convicted. Here, the defendant was convicted in Montgomery County but filed his petition to terminate in Cumberland County.
(1) Amendments to the sex offender registration scheme’s period of registration and automatic termination provision made after the defendant was required to register applied to the defendant. When the defendant was required to register in 2001, he was subject to a ten-year registration requirement which automatically terminated if he did not re-offend. In 2006 the registration statutes were amended to provide that registration could continue beyond ten years, even when the registrant had not reoffended. Also, the automatic termination language was deleted and a new provision was added providing that persons wishing to terminate registration must petition the superior court for relief. The court held that both legislative changes applied to the defendant. (2) The trial court erred by finding that the defendant’s removal from the registry would not comply with the federal Adam Walsh Act.
The State could not appeal an order terminating the defendant’s sex offender registration requirement when it had consented to the trial court’s action. The court rejected the State’s argument that the trial court lacked jurisdiction to terminate the defendant because he had not been registered for 10 years.
The trial court erred by terminating the petitioner’s sex offender registration. G.S. 14-208.12A provides that 10 years “from the date of initial county registration,” a person may petition to terminate registration. In this case the convictions triggering registration occurred in 1995 in Kentucky. In 2010, after having been registered in North Carolina for approximately 1½ years, the petitioner received notice from Kentucky that he was no longer required to register there. He then filed a petition in North Carolina to have his registration terminated. The court concluded that the term “initial county registration” means the date of initial county registration in North Carolina, not the initial county registration in any jurisdiction. Since the petitioner had not been registered in North Carolina for at least ten years, the trial court did not have authority under G.S. 14-208.12A to terminate his registration.