In re: Alcantara, COA22-795, ___ N.C. App. ___ (Dec. 5, 2023)

In this Guilford County case, defendant appealed the order requiring him to register a sex offender, arguing the federal statute he pleaded guilty under was not substantially similar to North Carolina’s statute. The Court of Appeals vacated the order and remanded to the trial court for a new hearing. 

In April of 2003, defendant pleaded guilty to violating 18 U.S.C. 2252(a)(4)(a) in Puerto Rico. Defendant completed his 40-month sentence and three years of supervised release. In October 2021, the Guilford County Sheriff's Office informed defendant he must register as a sex offender, and defendant filed a petition for a judicial determination of sex offender registration requirement. During the June 2022 hearing, the State offered a copy of defendant’s 2003 conviction along with a copy of the 2021 version of 18 U.S.C. 2252(a)(4)(a), arguing it was substantially similar to G.S. 14-190.17A(a), third-degree sexual exploitation of a minor. The trial court ultimately ordered defendant to register, finding the statutes substantially similar. 

Taking up defendant’s argument, the Court of Appeals noted that “we have ‘consistently held that when evidence of the applicable law is not presented to the trial court, the party seeking a determination of substantial similarity has failed to meet its burden of establishing substantial similarity by a preponderance of the evidence.’” Slip Op. at 5, quoting State v. Sanders, 367 N.C. 716, 718 (2014). Here, the State did not offer any evidence related to the 2003 version of the federal statute or that the statute was unchanged since defendant’s plea. As a result, “[t]he State failed to provide to the trial court such evidence as to allow it to determine that 18 U.S.C. § 2252(a)(4)(A) remained unchanged from 2003 to 2021 and that the federal statute is substantially similar to the North Carolina statute.” Id. at 6. This failure justified vacating the order and remanding for a new hearing.