DocketNumber: No. COA12-1367
Citation Numbers: 227 N.C. App. 258
Judges: Elmore, Steelman, Stroud
Filed Date: 5/21/2013
Status: Precedential
Modified Date: 11/27/2022
The State appeals from an order granting a petition filed by William Bunch, III, (“petitioner”) requesting termination of his sex offender registration requirement. The State argues on appeal that the trial court erred in concluding that petitioner did not have a reportable out-of-state conviction and that petitioner was eligible for early termination under N.C. Gen. Stat. § 14-208.12A (2011). Because the State has failed to preserve these arguments, we dismiss the State’s appeal.
I. Background
In April 1993, when he was seventeen years old, petitioner pleaded guilty to third-degree criminal sexual conduct in Wayne County, Michigan for sexual intercourse with a female between the ages of thirteen and fifteen. In Michigan, consensual sexual intercourse between a seventeen-year-old and a person “at least 13 years of age and under 16 years of age” constituted criminal sexual conduct in the third degree. Mich. Comp. Laws. § 750.520d(l)(a) (1993). Petitioner has no other convictions that could be considered reportable sexual offenses.
Nine years later, in July 2002, petitioner’s son was bom. When his son was seven years old, the Circuit Court for the County of Wayne, Michigan, awarded petitioner sole custody of his child, by order entered 5 November 2009. On 18 January 2012, the Michigan court entered an order allowing petitioner to change the domicile of his child to North Carolina, and petitioner and his son moved to North Carolina. After consulting with the local sheriff, petitioner registered with the North Carolina Sex Offender Registry on 8 February 2012. He then filed a petition to terminate his registration requirement in superior court, Cleveland County. On 7 June 2012, the superior court held a hearing on his petition, wherein petitioner was represented by counsel and the State was represented by the elected District Attorney for Cleveland County.
At the hearing, petitioner presented the records of his Michigan conviction and records relating to the custody of his son and argued that he
II. Appellate Jurisdiction
At oral argument, petitioner contended that we should dismiss the State’s appeal because in its 19 July 2012 notice of appeal it only appealed from the full order entered 19 June 2012 and not from the form order entered 7 June 2012. It is clear from the trial court’s rendition of its ruling at the hearing that the court would enter the form order but that it would also enter another order that more fully and accurately stated its findings and conclusions. The trial court did so on 19 July 2012. Effectively, this order amended the trial court’s prior order. Because the State timely appealed from the amended order, we have jurisdiction to hear this appeal. Cohen v. McLawhorn, 208 N.C. App. 492, 497, 704
III. Preservation
The State argues on appeal that we should vacate the lower court’s order granting petitioner’s petition to terminate his sex offender registration requirement because it is uncontested that petitioner has not been registered in North Carolina for ten years and is, therefore, ineligible for relief under N.C. Gen. Stat. § 14-208.12A. The State also contends that the trial court erred in concluding that petitioner’s conviction for sexual conduct in the third degree is not a reportable conviction under N.C. Gen. Stat. § 14-208.6(4) (2011). We dismiss the State’s appeal because it failed to preserve these arguments by presenting them to the trial court.
Rule 10(a)(1) of the Rules of Appellate Procedure states, “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R. App. P 10(a)(1). The district attorney present at the hearing here did not object or make any argument about the petition, let alone specifically argue that petitioner did not qualify for relief due to the statutory time requirement or that his conviction was a reportable conviction. Nevertheless, the State contends that these issues are preserved for our review because the trial court granted relief not authorized under the statute.
Although it is clear from the transcript that the trial court recognized that petitioner did not fit into the statutory grounds for relief under N.C. Gen. Stat. § 14-208.12A, as he had not been registered in North Carolina for ten years or more,
The State is correct that N.C. Gen. Stat. § 14-208.12A, by its plain terms, does not apply to someone who claims that he was never required to register in the first place, and so the State contends that petitioner should have filed suit against the Attorney General in his official capacity for a declaratory judgment that he was not required to register in North Carolina, as some others have done, see, e.g., Walters v. Cooper, _ N.C. App. _, _, 739 S.E.2d 185, 186 (2013). Although we agree a declaratory judgment action is a more appropriate way of obtaining a ruling upon the registration requirement in these circumstances, it is not the exclusive method.
Moreover, the alleged error below is not automatically preserved as a jurisdictional issue. The statute makes clear that a “person required to register” must have been registered for 10 years to be eligible for early termination of the registration requirement. See N.C. Gen. Stat. § 14-208.12A(a) (“[t]en 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____”). This Court has interpreted that provision to require 10 years of registration in North Carolina such that the amount of time a petitioner has been registered in another state is irrelevant. In re Borden, _ N.C. App. at _, 718 S.E.2d at 686. Nevertheless, this Court has held that the fact that a petitioner has not actually been registered in North Carolina for ten years does not deprive the trial court of subject matter jurisdiction to rule upon the petition. In re Hutchinson, _ N.C. App. _, _, 723 S.E.2d 131, 133, disc. rev. denied, _ N.C. __, 724 S.E.2d 910 (2012).
In Hutchinson, the petitioner had not been registered in North Carolina for ten years at the time he petitioned to terminate his sex offender registration requirement. In re Hutchinson, _ N.C. App. at _, 723 S.E.2d at 133. The petition in Hutchinson made clear on its face that the petitioner had not been registered for ten years or more.
Here, when asked by the trial court whether he had anything to add, the district attorney simply responded, “No, sir.” The State did not argue before the trial court that petitioner was ineligible for the relief sought either because he had not been registered for ten years or for any other reason. We fail to see a material distinction between Hutchinson and the present case. If the trial court was not deprived of jurisdiction by the petitioner’s failure to meet the statutory ten year requirement in Hutchinson, it also was not so deprived here. Moreover, the relief granted was not beyond that authorized by the statute - the trial court merely terminated petitioner’s sex offender registration requirement. The State’s argument that the trial court erroneously determined that petitioner was eligible for relief under N.C. Gen. Stat. § 14-208.12A was not automatically preserved. Therefore, as in Hutchinson, we hold that the State has failed to preserve the argument that petitioner was not eligible for termination under N.C. Gen. Stat. § 14-208.12A. Id.; N.C.R. App. P. 10(a)(1). Accordingly, we dismiss the State’s appeal. In re Hutchinson, _ N.C. App. at _, 723 S.E.2d at 133 (dismissing the State’s appeal because it failed to preserve its arguments for appeal).
DISMISSED.
. Petitioner submitted evidence that he had committed no more sexual offenses in the intervening years and that those around him did not consider him a threat to public safety. Additionally, if he was 17 and the person with whom he engaged in consensual intercourse was over the age of 13, as petitioner asserted and the State did not contest at the hearing, his offense would not be considered a sexual offense for purposes of the federal sex offender registration law and therefore not subject to the federal registration requirements. See 42 U.S.C. § 16911(5)(c) (2006).
. Form AOC-CR-263, Rev. 12/11 includes both the petition which is filed by the petitioner and the order for execution by the court on the same form.
. A person “required to register” may petition under N.C. Gen. Stat. § 14-208.12A(a) to have his thirty year registration requirement terminated ten years after the date of his initial registration. The ten year period does not begin until the offender registers in North Carolina; any time registered in another state does not count toward the ten years. In re Borden,_N.C. App._,_, 718 S.E.2d 683, 686 (2011).
. For instance, if a person is charged with failure to register, he may raise the argument that he was never required to register as a defense. See, e.g., State v. Stanley, 205 N.C. App. 707, 697 S.E.2d 389 (2010).
. Although it was not mentioned in the opinion, we take judicial notice of the Hutchinson petition to terminate sex offender registration, which was part of the record on appeal in that case. See Four Seasons Homeowners Ass’n, Inc. v. Sellers, 72 N.C. App. 189, 190, 323 S.E.2d 735, 737 (1984) (“[0]ur appellate courts may take judicial notice of their own records ....”).