In re Pellicciotti

• Decision Date: 20 September 2022
• Docket Number: COA21-497
• Parties: In the MATTER OF: Anthony Joseph PELLICCIOTTI.
• Court: North Carolina Court of Appeals

878 S.E.2d 155

In the MATTER OF: Anthony Joseph PELLICCIOTTI.

No. COA21-497

Court of Appeals of North Carolina.

Filed September 20, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Alan D. McInnes, for the State-Appellee.

Thomas, Ferguson & Beskind, LLP by Kellie Mannette, Chapel Hill, and Jay H. Ferguson, Durham, for Defendant-Appellant.

CARPENTER, Judge.

¶ 1 Anthony Joseph Pellicciotti ("Defendant") appeals from an order (the "Order") requiring him to register as a sex offender upon his relocation to North Carolina, arguing the out-of-state offense is not substantially similar to a reportable North Carolina offense. After careful review, we affirm the Order of the trial court.

I. Factual and Procedural Background

¶ 2 On 28 November 2011, Defendant pleaded guilty to second-degree statutory sexual assault in Pennsylvania. 18 Pa. Cons. Stat. Ann. § 3122.1 (West 1995) (amended 2012).¹ On 13 November 2020, after Defendant moved to North Carolina, the Durham County Sheriff's Office notified Defendant that he was required to register as a sex offender based on his out-of-state conviction. Defendant timely filed a petition contesting the registration requirement.

¶ 3 On 2 February 2021, the trial court held a hearing on the petition. The State argued 18 Pa. Cons. Stat. Ann. § 3122.1 was substantially similar to N.C. Gen. Stat. § 14-27.25(a). Defendant conceded 18 Pa. Cons. Stat. Ann. § 3122.1 was substantially similar to subsection (b) of N.C. Gen. Stat. § 14-27.25, a non-reportable Class C felony, but argued it was not substantially similar to subsection (a) of the same, a reportable Class B1 felony. The trial court concluded 18 Pa. Cons. Stat. Ann. § 3122.1 was substantially similar to N.C. Gen. Stat. § 14-27.25(a), a reportable offense, and entered the Order requiring registration as a sex offender. On 9 February 2021, Defendant filed timely, written notice of appeal.

II. Jurisdiction

¶ 4 Jurisdiction lies in this Court as a matter of right over a final judgment of the superior court, pursuant to N.C. Gen. Stat. § 7A-27(b) (2021).

III. Issue

¶ 5 The sole issue on appeal is whether the trial court erred by determining the Pennsylvania offense of second degree statutory sexual assault was substantially similar to the reportable North Carolina offense of statutory rape of a person who is fifteen years of age or younger, thereby requiring Defendant to register as a sex offender upon his change of residency to North Carolina.

IV. Analysis

A. Standard of Review

¶ 6 The question of "whether the out-of-state conviction is substantially similar to a North Carolina offense is a question of law involving comparison of the elements of the out-of-state offense to those of the North Carolina offense." State v. Fortney , 201 N.C. App. 662, 671, 687 S.E.2d 518, 525 (2010) (citation omitted). Questions of law are reviewed by an appellate court de novo. Id. at 669, 687 S.E.2d at 524. The trial court determines whether the statutes are substantially similar by "compar[ing] the elements of the out-of-state ... offense to those purportedly similar to a North Carolina offense." N.C. Gen. Stat. § 14-208.12B(c) (2021). The inquiry in a comparison of the elements test is narrow; courts are limited to examining the elements of each statute, without considering any underlying facts of the conviction or legislative purpose. See State v. Sanders , 367 N.C. 716, 719–20, 766 S.E.2d 331, 334 (2014).

B. Substantial Similarity

¶ 7 Under North Carolina law, any person with a "reportable conviction" must register with the sheriff of their county of residence. N.C. Gen. Stat. § 14-208.7(a) (2021). A reportable conviction includes any conviction from another state "which if committed in this State, is substantially similar to an offense against a minor or a sexually violent offense ...." N.C. Gen. Stat. § 14-208.6(4)(b) (2021). At the hearing, the State is required to prove by a preponderance of the evidence that the out-of-state conviction is substantially similar to a reportable conviction in North Carolina. N.C. Gen. Stat. § 14-208.12B(c). When performing the analysis, it is not a requirement that the "statutory wording precisely match, but rather that the offense be substantially similar[.]" State v. Graham , 379 N.C. 75, 2021-NCSC-125, ¶ 7, 863 S.E.2d 752 (internal quotations omitted); see also N.C. Gen. Stat. § 14-208.6(4)(b).

Standing alone, neither word—"substantially" or "similar"—connotes literalness; therefore, when these words are combined to create the legal term of art "substantially similar," this chosen phraseology reinforces the lack of a requirement for the statutory language in one enactment to be the same as the statutory language in another enactment in order for the two laws to be treated as "substantially similar."

Graham , 379 N.C. 75, 2021-NCSC-125, ¶ 12, 863 S.E.2d 752.

¶ 8 The version of the Pennsylvania statute in effect at the time of Defendant's conviction reads: "a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and person are not married to each other." 18 Pa. Cons. Stat. Ann. § 3122.1 (West 1995). The trial court determined this offense was substantially similar to the North Carolina offense of "[s]tatutory rape of person who is 15 years of age or younger." N.C. Gen. Stat. § 14-27.25.

¶ 9 In order to compare the offenses contained in the two statutes, we examine each element in turn. The 1995 version of the Pennsylvania statute results in a second-degree felony when a defendant:

(1) Engages in sexual intercourse;

(2) With a person under the age of 16;

(3) The defendant is four or more years older; and (4) The person and defendant are not married to each other.

18 Pa. Cons. Stat. Ann. § 3122.1 (emphasis added). The elements of the North Carolina offense of statutory rape requires proof the defendant:

(1) Engaged in vaginal intercourse;

(2) With another person who is under the age of 16;

(3) And defendant is at least six years older than the complainant; and

(4) Defendant was not lawfully married to complainant.

N.C. Gen. Stat. § 14-27.25(a) (emphasis added). Under North Carolina law, statutory rape is classified as a sexually violent offense reportable under N.C. Gen. Stat. § 14-208.6(4) and thus requiring registration. See N.C. Gen. Stat. § 14-208.6(5) (2021) (listing all sexually violent offenses); see also N.C. Gen. Stat. § 14-27.25(a). Because subsection (b) is not a reportable offense, the sole focus of our substantial similarity analysis is subsection (a). See N.C. Gen. Stat. § 14-27.25.

¶ 10 Defendant asserts our Legislature has drawn a "line" between the two categories of offenders: those required to register under subsection (a), and those not required to register under subsection (b). See N.C. Gen. Stat. § 14-27.25. However, in a "comparison of the elements test," the legislative purpose of respective statutes is not a consideration for the courts. See Sanders, 367 N.C. at 719–20, 766 S.E.2d at 333–34 (rejecting the State's argument that the court should "look beyond the elements of the offenses and consider ... the legislative purpose of the respective statutes" as the court may only consider the elements of the offenses); see also Graham , 379 N.C. 75, 2021-NCSC-125, ¶ 14, 863 S.E.2d 752 (citing the Sanders Court's narrow elemental inquiry in a "comparison of the elements" test approvingly). Assuming arguendo that the applicable Pennsylvania offense is substantially similar to N.C. Gen. Stat. § 14-27.25(b), Defendant would not be required to register, and the point is moot. The Order requiring Defendant's registration indicates the trial court determined the Pennsylvania offense was substantially similar to N.C. Gen. Stat. § 14-27.25(a), thus requiring Defendant to register as a sex offender in this State. See N.C. Gen. Stat. § 14-208.7(a). Our inquiry is accordingly limited to whether a comparison of the elements reveals the Pennsylvania offense is substantially similar to N.C. Gen. Stat. § 14-27.25(a). We now turn to that question.

1. Type of Intercourse Required

¶ 11 The first distinction between the two statutes is the type of intercourse required to commit the offense of statutory rape. The North Carolina statute uses the term "vaginal intercourse," whereas the Pennsylvania statute uses the more expansive term "sexual intercourse." See N.C. Gen. Stat. § 14-27.25(a) ; see also 18 Pa. Cons. Stat. Ann. § 3122.1. "Both statutes employ nearly identical language that the act of physical intercourse is conducted by the perpetrator with another person and that the other person is not the offender's spouse by virtue of a lawful marriage." See Graham , 379 N.C. 75, 2021-NCSC-125, ¶ 9, 863 S.E.2d 752 (comparing the definitions of "sexual intercourse" in a Georgia statute and "vaginal intercourse" in N.C. Gen. Stat. § 14-27.25 ). Accordingly, we conclude Pennsylvania's "sexual intercourse" element is substantially similar to North Carolina's "vaginal intercourse" element.

2. Age Requirements for Offenders

¶ 12 Defendant maintains the Pennsylvania offense of statutory rape is not substantially similar to the North Carolina offense because Pennsylvania requires a defendant be at least four years older than complainant, and North Carolina requires the defendant be at least six years older. See 18 Pa. Cons. Stat. Ann. § 3122.1(a) ; see also N.C. Gen. Stat. § 14-208.7(a). To support his position, Defendant relies on two cases where a court determined the out-of-state offense was not substantially similar to a North Carolina offense. After careful review, we conclude each case is distinguishable.

¶ 13 First, in Sanders , our Supreme Court determined the Tennessee offense of "domestic assault" was not substantially similar to North Carolina's offense of "assault on a female" because the relevant statutes applied to different defendants and different...