State v. BetheaÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-459
Filed: 3 October 2017
Chatham County, No. 04 CRS 5254-58; 50399
IN THE MATTER OF: ANTHONY RAYSHON BETHEA
Appeal by petitioner from order entered 31 October 2016 by Judge Carl R. Fox
in Chatham County Superior Court. Heard in the Court of Appeals 20 September
2017.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for petitioner-appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General William P.
Hart, Jr. for the State.
TYSON, Judge.
Anthony Rayshon Bethea (“Petitioner”) appeals from the trial court’s denial of
his petition to be removed from the North Carolina Sex Offender Registry. We affirm
the trial court’s order.
I. Background
On 13 September 2004, Petitioner pled guilty to six counts of felony sexual
activity with a student in violation of N.C. Gen. Stat. § 14-27.7(b), upon which the
court sentenced Petitioner. This sexual activity with a student offense to which
Petitioner pled guilty is now codified under N.C. Gen. Stat. § 14-27.32 (2015).
STATE V. BETHEA
Opinion of the Court
Following his convictions, Petitioner registered as a sex offender on 14 October
2004 under the North Carolina Sex Offender and Public Protection Registration
Program (“the Registry Program”). See N.C. Gen. Stat. § 14-208.7, et. seq (2015)
(establishing the North Carolina Sex Offender and Public Protection Registration
Program).
Under the version of the Registry Program in effect at the time of his 2004
convictions, Petitioner’s requirement to be registered as a sex offender was to
automatically terminate after ten years had elapsed, if he did not commit any further
offenses requiring registration. N.C. Gen. Stat. § 14-208.12A (2004).
Statutory amendments in 2006 to the Registry Program affected Petitioner’s
registration status. First, section 14-208.7 was amended to provide that registration
of convicted sex offenders could continue beyond ten years, even when the registrant
had not re-offended. N.C. Gen. Stat. § 14-208.7(5a) (2007) (providing that the
registration requirement “shall be maintained for a period of at least ten years
following the date of initial county registration”).
Second, the provision of section 14-208.7, which provided for automatic
termination of registration, was removed. Section 14-208.12A was added to the
Registry Program. The current version of section 14-208.12A provides that persons
wishing to terminate their registration requirement must petition the superior court
for relief.
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Opinion of the Court
(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 (2015), amended by N.C. Sess. Laws 2017-158, §
22 (adding a provision to section 14-208.12A(a) irrelevant to this appeal).
In 2006, Congress enacted the Adam Walsh Act, also known as the Sex
Offender Registration and Notification Act (“SORNA”). See 42 U.S.C. § 16901, et seq.
The Adam Walsh Act replaced the Jacob Wetterling Act, the prior federal law
addressing sex offender registration. This Court has held “[t]he Adam Walsh Act now
provides the ‘federal standards applicable to the termination of a registration
requirement [under N.C. Gen. Stat. § 14-208.12A(a1)(2)]’ and covers substantially the
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STATE V. BETHEA
Opinion of the Court
same subject matter as the Jacob Wetterling Act.” In re Hamilton, 220 N.C. App. 350,
356, 725 S.E.2d 393, 398 (2012).
SORNA establishes rules governing sex offender registration and conditions
state receipt of certain federal funds on a state’s implementation of those rules. See
42 U.S.C. §§ 16915, 16925. SORNA utilizes a three-tiered system for classifying sex
offenders:
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).
In re Hall, 238 N.C. App. 322, 326, 768 S.E.2d 39, 42-43 (2014), appeal dismissed
and disc. review denied, ___ N.C. ___, 771 S.E.2d 285, cert. denied sub nom Hall v.
North Carolina, ___ U.S. ___, 193 L.Ed.2d 519 (2015).
In September 2014, Petitioner petitioned the Superior Court of Chatham
County to be removed from the sex offender registry. At the hearing on 31 October
2016, Petitioner did not contest his prior offenses qualified him as a tier II offender
under SORNA.
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STATE V. BETHEA
Opinion of the Court
The trial court checked off the following findings of fact on the pre-printed form
entitled Petition and Order for Termination of Sex Offender Registration, AOC-CR-
263, Rev. 12/11:
1. The petitioner was required to register as a sex offender
under Part 2 of Article 27A of Chapter 14 of the General
Statutes for the offense(s) set out above.
2. The petitioner has been subject to the North Carolina
registration requirements of Part 2 of Article 27A for at
least ten (10) years beginning with the Date of Initial NC
Registration above.
3. Since the Date of Conviction above, the petitioner has
not been convicted of any subsequent offense requiring
registration under Article 27A of Chapter 14.
4. Since the completion of his/her sentence for the offense(s)
set out above, the petitioner has not been arrested for any
offense that would require registration under Article 27A
of Chapter 14.
5. The petitioner served this petition on the Office of the
District Attorney at least three (3) weeks prior to the
hearing held on this matter.
6. The petitioner is not a current or potential threat to
public safety.
7. The relief requested by the petitioner [does not] comp[ly]
with the provisions of the federal Jacob Wetterling Act, 42
U.S.C § 14071, 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.
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STATE V. BETHEA
Opinion of the Court
The court denied Petitioner’s petition for relief from registration and removal
from the registry. The court concluded Petitioner’s requested relief and termination
of his duty to register would not comply with “federal standards applicable to the
termination of registration requirement required to be met as a condition for receipt
of federal funds by the State, based upon . . . SORNA[,]” and entered an order thereon.
Petitioner timely appealed from the trial court’s denial of his petition.
II. Jurisdiction
Jurisdiction lies in this Court from final judgment of the superior court
pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2015).
III. Issues
Petitioner argues: (1) 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”; and, (2) the retroactive
activation of federal sex offender registration standards violates the ex post facto
clauses of the federal and state constitutions.
IV. Standard of Review
This Court “reviews conclusions of law pertaining to constitutional matters de
novo.” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (citations omitted).
Under de novo review, this Court “considers the matter anew and freely substitutes
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STATE V. BETHEA
Opinion of the Court
its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-
33, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted).
V. Analysis
A. Substantive Due Process
Petitioner argues the trial court’s denial of his petition for termination of sex
offender registration violates his substantive due process rights. He asserts that after
the trial court found Petitioner “is 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 the SORNA standards incorporated into state law under section
14-208.12A(a1)(2). We disagree.
Petitioner argues “[t]he State can establish no justification for the arbitrary
extension of [his] registration requirement now that he has been judicially
determined to be no threat to the public.” Petitioner failed to challenge the trial
court’s findings of fact detailed above. When “the trial court's findings of fact are not
challenged on appeal, they are deemed to be supported by competent evidence and
are binding on appeal.” State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733,
735-36 (2004).
1. XIV Amendment and Article I § 19
Pursuant to the Constitution of the United States, “[n]o State shall make or
enforce any law which shall ... deprive any person of life, liberty, or property, without
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Opinion of the Court
due process of law. . . .” U.S. Const., amend. XIV, § 1. The North Carolina Constitution
provides that “[n]o person shall be . . . in any manner deprived of his life, liberty, or
property, but by the law of the land.” N.C. Const. art. I, § 19. Our Supreme Court
has held that “[t]he term ‘law of the land’ as used in Article I, Section 19, of the
Constitution of North Carolina, is synonymous with ‘due process of law’ as used in
the Fourteenth Amendment to the Federal Constitution.” Rhyne v. K-Mart Corp., 358
N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (citation and quotations omitted).
The Due Process Clause provides two types of protection: substantive and
procedural due process. See State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277,
282 (1998).
“‘Substantive due process’ protection prevents the government from engaging
in conduct that shocks the conscience, or interferes with rights implicit in the concept
of ordered liberty.” Id.Our established method of substantive-due-process
analysis has two primary features: First, we have regularly
observed that the Due Process Clause specially protects
those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history and
tradition and implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were
sacrificed. Second, we have required in substantive-due-
process cases a careful description of the asserted
fundamental liberty interest.
Washington v. Glucksberg, 521 U.S. 702, 720-21, 138 L.Ed.2d 772, 787-88 (1997)
(citations and quotations omitted).
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STATE V. BETHEA
Opinion of the Court
Although the trial court did check or select the box on the pre-printed AOC
form finding Petitioner “is not a current or potential threat to public safety[,]”section
14-208.12A(a1) allows a trial court to grant a petition for relief to register and
removal from the Registry Program only 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(a1) (emphasis supplied).
The statute clearly states that upon a finding that a petitioner does not have a
dis-qualifying arrest and is not ineligible for relief under federal law, a trial court is
required to find a petitioner is not otherwise a “current or potential threat to public
safety” before it can exercise its discretion to grant relief. Here, the trial court
determined Petitioner did not have a disqualifying arrest and that he is ineligible for
relief under federal law.
Reading the pre-printed “[t]he petitioner is not a current or potential threat to
public safety[,]” finding of fact on the AOC form in light of the language of section 14-
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STATE V. BETHEA
Opinion of the Court
208.12A, clarifies this finding of fact. The trial court did not find Petitioner is not a
current or potential threat to public safety without qualification, rather Petitioner is
not otherwise a current or potential threat to public safety beyond his ineligibility for
removal from the registry under federal law. The required findings are cumulative
and the court’s finding in Petitioner’s favor on one, some, or even most of the
requirements does not reduce Petitioner’s burden to show compliance with all
requirements.
The incorporation of federal sex offender registration standards into section
14-208.12A(a1)(2) is rationally related to the government purpose of protecting public
safety, especially the protection and safety of minors and other victims, from sexual
offenders. Even though the trial court found Petitioner “is not otherwise a current or
potential threat to public safety,” section 14-208.12A identifies and classifies
Petitioner as a continuing threat to public safety under federal sex offender
standards. See N.C. Gen. Stat. § 14-208.12A(a1)(2). The Congress of the United
States enacted SORNA: “In order to protect the public from sex offenders and
offenders against children, and in response to the vicious attacks by violent predators
. . . . “ 42 U.S.C. § 16901.
Petitioner’s assertion that he has “been judicially determined to be no threat
to the public” is a threshold finding that is required in the seven listed required
findings, in addition to compliance with section 14-208.12A, which limits what the
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Opinion of the Court
trial court can conclude before it grants his requested relief. See N.C. Gen. Stat. § 14-
208.12A.
B. Ex Post Facto
Petitioner next contends the retroactive application of SORNA to section 14-
208.12A constitutes an ex post facto violation. We disagree.
The enactment of ex post facto laws is prohibited by both the Constitution of
the United States and the North Carolina Constitution. See U.S. Const. art. I, § 10
(“No state shall . . . pass any bill of attainder, ex post facto law, or law impairing the
obligation of contracts . . . .”); N.C. Const. art. I, § 16 (“Retrospective laws, punishing
acts committed before the existence of such laws and by them only declared criminal,
are oppressive, unjust, and incompatible with liberty, and therefore no ex post facto
law shall be enacted.”). This prohibition against ex post facto laws applies to:
1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when
committed. 3d. Every law that changes the punishment,
and inflicts a greater punishment, than the law annexed to
the crime, when committed. 4th. Every law that alters the
legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the
commission of the offence, in order to convict the offender.
State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (citations and quotation
omitted), cert. denied, 537 U.S. 1117, 154 L.E. 2d. 795 (2003). “Because both the
federal and state constitutional ex post facto provisions are evaluated under the same
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STATE V. BETHEA
Opinion of the Court
definition, we analyze defendant’s state and federal constitutional contentions
jointly.” Id. (citation omitted).
Petitioner’s contention that the retroactive application of SORNA minimum
registration periods through section § 14-208.12A(a1)(2) constitutes an ex post facto
law was recently addressed by this Court in In re Hall, 238 N.C. App. at 329-33, 768
S.E.2d at 44-46. In Hall, the Court stated:
This Court has held that Article 27A of Chapter 14 [N.C.
Gen. Stat. § 14-208.5 et seq.] of our North Carolina General
Statutes sets forth civil, rather than punitive, remedies
and, therefore, does not constitute a violation of ex post
facto laws. See [State v. Williams, 207 N.C. App. 499, 505,
700 S.E.2d 774, 777-78 (2010)]. Therefore, in light of this
Court’s prior decisions rejecting the argument that our sex
offender registration statutes constitute an ex post
facto law, we are bound to say that petitioner’s argument
lacks merit.
Id. at 332, 768 S.E.2d at 46.
In State v. Sakobie, 165 N.C. App. 447, 598 S.E.2d 615 (2004), this Court held
“the legislature did not intend that the provisions of Article 27A [to] be punitive [and]
. . . the effects of North Carolina’s registration law do not negate the General
Assembly’s expressed civil intent and that retroactive application of Article 27A does
not violate the prohibitions against ex post facto laws.” 165 N.C. App. at 452, 598
S.E.2d at 618 (citations omitted).
We are bound by the precedents in Hall and Sakobie. “Where a panel of the
Court of Appeals has decided the same issue, albeit in a different case, a subsequent
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Opinion of the Court
panel of the same court is bound by that precedent, unless it has been overturned by
a higher court.” In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Petitioner’s argument that the extension of his registration period as a sex offender
through the incorporation of SORNA federal standards into N.C. Gen. Stat. § 14-
208.12A(a1)(2) is overruled.
VI. Conclusion
Petitioner has failed to show any reversible errors in the trial court’s order.
The order of the trial court is affirmed. It is so ordered.
AFFIRMED.
Judges ELMORE and STROUD concur.
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