In re Hall

• Decision Date: 31 December 2014
• Docket Number: No. COA14–435.,COA14–435.
• Citation: 768 S.E.2d 39
• Court: North Carolina Court of Appeals
• Parties: In the Matter of David Paul HALL.

768 S.E.2d 39

In the Matter of David Paul HALL.

No. COA14–435.

Court of Appeals of North Carolina.

Dec. 31, 2014.

Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, Jr., for the State.

Glenn Gerding and Anne M. Hayes, Raleigh, for petitioner.

Opinion

BRYANT, Judge.

Where the language of N.C. Gen.Stat. § 14–208.12A shows a clear intent by our legislature to incorporate the requirements of the federal sex offender registration statutes, SORNA, into our State's statutory provisions governing the sex offender registration process, and to retroactively apply those provisions to sex offenders currently on the registry, we affirm the trial court's order doing so. It is well-established by our Courts that the application of N.C. Gen.Stat. § 14–208.5 et seq. which governs the sex offender registration process does not violate our prohibition against ex post facto laws. Where petitioner fails to raise a constitutional argument before the trial court, that argument is deemed waived on appeal.

On 18 January 1982, petitioner David Paul Hall pled guilty to first-degree rape and second-degree kidnapping and was sentenced to life in prison. After serving over twenty years, petitioner was released on parole in April 2003 and properly registered himself as a sex offender in Mecklenburg County.

On 3 May 2013, petitioner filed a petition in Mecklenburg County Superior Court seeking termination of his sex offender registration. After a hearing on 23 September 2013, the trial court entered an order on 30 September denying the petition. Petitioner appeals.

_________________________

Petitioner raises three issues on appeal: (I) whether the trial court erred in relying on the federal SORNA statute to deny his petition to terminate his sex offender registration; (II) whether the trial court's application of SORNA to support denying the petition constituted an ex post facto violation; and (III) whether the denial of the petition violated petitioner's substantive due process rights.

I.

Petitioner contends the trial court erred in relying on the federal SORNA statute to justify the denial of his petition for termination of his sex offender registration. Specifically, petitioner contends such reliance on SORNA was erroneous because N.C. Gen.Stat. § 14–208.12A was not meant to be applied retroactively. We disagree.

Resolution of issues involving statutory construction is ultimately a question of law for the courts. Where an appeal presents a question of statutory interpretation, full review is appropriate, and we review a trial court's conclusions of law de novo ....

When the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required. However, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment. Moreover, when confronted with a clear and unambiguous statute, courts are without power to interpolate, or superimpose, provisions and limitations not contained therein.

The best indicia of the legislature's intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish. Moreover, in discerning the intent of the General Assembly, statutes in pari materia should be construed together and harmonized whenever possible. In pari materia is defined as upon the same matter or subject.

In re Borden, 216 N.C.App. 579, 581, 718 S.E.2d 683, 685 (2011) (citations and quotations omitted).

North Carolina General Statutes, section 14–208.12A, provides that

(a) Ten years from the date of initial county registration, a person required to register under this Part may petition the superior court to terminate the 30–year registration requirement if the person has not been convicted of a subsequent offense requiring registration under this Article....

(a1) The court may grant the relief if:

(1) The petitioner demonstrates to the court that he or she has not been arrested for any crime that would require registration under this Article since completing the sentence,

(2) The requested relief complies 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, and

(3) The court is otherwise satisfied that the petitioner is not a current or potential threat to public safety.

N.C. Gen.Stat. § 14–208.12A(a), (a1) (2013) (emphasis added).

SORNA,¹ 42 U.S.C.S. § 16911 et seq., the Sex Offender Registration and Notification Act, establishes federal standards for sex offender registration and sets up guidelines for state sex offender registration programs. The federal standards are implemented and applied pursuant to the provisions of N.C. Gen.Stat. § 14–208.5 et seq., which set forth North Carolina's sex offender registration program. See N.C. Gen.Stat. § 14–208.7(a) (2013) (“A person who is a State resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides.... Registration shall be maintained for a period of at least 30 years following the date of initial county registration unless the person, after 10 years of registration, successfully petitions the superior court to shorten his or her registration time period under G.S. 14–208.12A.”).

SORNA utilizes three tiers. Under SORNA, a tier I sex offender must register for fifteen years, a tier II sex offender must register for twenty-five years, and a tier III sex offender must register for life. However, a tier I sex offender may reduce his or her registration period to ten years by keeping a clean record; likewise, a tier II sex offender may reduce his or her registration period to twenty years. Only a tier III sex offender who is “adjudicated delinquent [as a juvenile] for the offense” may reduce his or her registration period to twenty-five years; otherwise, a tier III sex offender is subject to lifetime registration. See 42 U.S.C.S. § 16915(a), (b) (2013).

Here, petitioner pled guilty to first-degree rape in which a knife was used to threaten the victim; petitioner was not adjudicated delinquent for this offense. Therefore, based on the application of SORNA standards, petitioner is a tier III sex offender subject to lifetime registration.Compare id. § 16911(4) (“The term ‘tier III sex offender’ means a sex offender whose offense is punishable by imprisonment for more than 1 year and [ ] is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense: aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18, United States Code [18 U.S.C.S. §§ 2241 and 2242 ] )[.]”), and 18 U.S.C.S. § 2241(a) (2013) (defining “aggravated sexual abuse” as “[w]hoever ... knowingly causes another person to engage in a sexual act—(1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.”), with first-degree rape as defined by N.C. Gen.Stat. § 14–27.2(a)(2) (2013) (“A person is guilty of rape in the first degree if the person engages in vaginal intercourse [ ] [w]ith another person by force and against the will of the other person, and [ ] [e]mploys or displays a dangerous or deadly weapon[.]”).

Petitioner argues that because N.C.G.S. § 14–208.12A, as amended in 2001, did not apply retroactively to petitioner's sex offender registration requirements, the 2006 amendment of this statute cannot be applied retroactively either. N.C.G.S. § 14–208.12A(a) (2001) stated that: “The requirement that a person register under this Part automatically terminates 10 years from the date of initial county registration if the person has not been convicted of a subsequent offense requiring registration under this Article.” In 2006, N.C.G.S. § 14–208.12A(a) was amended, and subsection (a1) added, to provide that:

(a) A person required to register under this Part may petition the superior court in the district where the person resides to terminate the registration requirement 10 years from the date of initial county registration if the person has not been convicted of a subsequent offense requiring registration under this Article.

(a1) The court may grant the relief if:

(1) The petitioner demonstrates to the court that he or she has not been arrested for any crime that would require registration under this Article since completing the sentence,

(2) The requested relief complies 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, and

(3) The court is otherwise satisfied that the petitioner is not a current or potential threat to public safety.

(emphasis added).

Petitioner's argument that the 2006 amendment is not applicable to his petition to terminate his sex offender registration lacks merit, since N.C.G.S. § 14–208.12A (2006) is clearly retroactively applicable to petitioner. Petitioner was released from prison in April 2003, at which time petitioner registered with the Mecklenburg County Sheriff's Office as a sex offender. As such, petitioner was not eligible to petition the Mecklenburg County Superior Court for termination of his sex offender registration until ten years later, in April 2013.

This Court has addressed a similar retroactivity argument in In re Hamilton. In In re Hamilton, the petitioner argued that the requirements governing the termination of sex offender registration pursuant to N.C.G.S. § 14–208.12A were...