Relief from a Criminal Conviction (2023 Edition)
Termination of Registration and Related Obligations
North Carolina has two registration programs—one for 30 years and the other for life. See G.S. 14-208.6A (stating that North Carolina has these two programs). A person subject to North Carolina’s 30-year registration program (described in Part 2 of Article 27A of G.S. Chapter 14) may petition to terminate registration obligations after 10 years if he or she meets the requirements of G.S. 14-208.12A, set forth in Table 28. This relief is not available to people who have been convicted of aggravated offenses, classified as recidivists, or found to be sexually violent predators, all of whom are subject to North Carolina’s lifetime registration program.[1]
If the court denies the petition, the person may file a new petition one year from the date of the denial. See G.S. 14-208.12A(a3); State v. Ledbetter, 278 N.C. App. 606 (2021) (unpublished) (holding that petitioner failed to provide trial court with sufficient information to determine whether out-of-state conviction for which he was required to register in North Carolina met federal termination requirements; court adds that petitioner may refile petition after a year has passed). North Carolina statutes do not provide for appointment of counsel for an indigent person to petition to terminate registration. Compare supra Sex Offender Registration and Monitoring: General Considerations for Sex Offender Requirements (discussing right to counsel for determination of effect of out-of-state and federal convictions). Effective for offenses committed on or after December 1, 2019, the victim of the offense has the right to be heard on a petition to terminate registration. G.S. 14-208.12A(c), added by S.L. 2019-245 (S 199).
An order granting a petition to terminate registration obligations has the effect of terminating other requirements and restrictions accompanying registration obligations, such as restrictions on where a person may live, work, or go. The reason is that those restrictions generally apply only as long as a person is required to register.[2] It is not as clear that termination of registration terminates satellite-based monitoring.[3] A person may need to petition separately to terminate satellite-based monitoring. See infra Sex Offender Registration and Monitoring: Termination of Satellite-Based Monitoring Obligations. For a list of consequences and restrictions, see John Rubin, Consequences of Conviction of Offenses Subject to Sex Offender Registration (Apr. 2024).
The 10-year waiting period to petition to terminate registration begins on the date the person initially registers in North Carolina. The North Carolina courts have held that if a person is convicted in another state and initially registers there, the 10-year waiting period does not begin until the person first registers in North Carolina.[4]
A person is ineligible to terminate registration if convicted of a subsequent offense requiring registration. G.S. 14-208.12A(a). In that instance, the person would be considered a recidivist, would be required to register for life, and would be ineligible to terminate registration. A conviction for violating registration obligations does not disqualify a person from obtaining an order terminating registration because it is not a conviction for an offense requiring registration. A judge still may deny a termination petition if the petitioner has failed to show that he or she is not a current or potential “threat to public safety,” one of the required grounds for termination. G.S. 14-208.12A(a1)(3); see also In re Cuevas, 271 N.C. App. 179 (2020) (unpublished) (finding that judge did not abuse discretion in denying petition to terminate on this ground); State v. Fore, 271 N.C. App. 179 (2020) (unpublished) (to same effect); State v. Johnson, 271 N.C. App. 179 (2020) (unpublished) (to same effect).
A person is also ineligible to terminate registration if he or she has been arrested for any crime that would require registration since completing his or her sentence. G.S. 14-208.12A(a1)(1). On its face, this language could be construed as barring termination if the petitioner is ever arrested for such an offense, regardless of the disposition of the case. See In re Cuevas, 271 N.C. App. 179 (2020) (unpublished) (trial judge denied petition to terminate for, among other reasons, arrest for offense subject to registration even though jury acquitted him after trial; appellate court did not rule on whether this ground was proper, upholding denial of petition based on other grounds on which judge denied relief); In re Dunn, 225 N.C. App. 43 (2013) (trial judge denied petition to terminate for, among other reasons, arrest of petitioner for offense subject to registration even though he was not convicted; appellate court did not rule on petitioner’s argument that denial violated equal protection and due process, vacating trial judge’s ruling for lack of jurisdiction). The General Assembly may not have intended to bar termination for an arrest on a charge that is later dismissed or for which a person is acquitted. More likely, the General Assembly intended by the “arrest” language to bar termination if a person has a pending charge for a crime that would require registration. This interpretation would be consistent with terminology used in more recently enacted relief statutes, which bar relief for pending disqualifying charges.[5]
Last, G.S. 14-208.12A(a1)(2) requires that the termination comply “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.” It is therefore necessary to consider the impact of federal law on the preconditions for termination of registration. A brief history may be helpful in understanding the potential issues. The Jacob Wetterling Act was enacted by Congress in 1994 and established the first set of federal sex offender registration standards. It did not mandate that states follow the standards; rather, it provided that if a state did not substantially comply with the standards by the deadline in the legislation, it would lose 10 percent of its federal Byrne Justice Assistance grant funds. Congress thereafter amended the federal law several times, employing similar financial incentives and deadlines to induce states to comply; in response, North Carolina enacted and revised a number of its statutes to incorporate changing federal standards. North Carolina also adopted the general reference, above, to federal standards on termination. In 2006, Congress adopted Title I of the Adam Walsh Act, also called the Sex Offender Registration and Notification Act (SORNA). Among other things, SORNA created new registration “tiers,” discussed further below, which control the length and termination of registration. (More information about SORNA can be found on the website of the Office of Sex Offender, Monitoring, Apprehending, Registering, and Tracking, or SMART Office, within the U.S. Department of Justice.) The deadline for states to adopt the SORNA standards expired on July 27, 2011. Other than by referring to federal termination standards in G.S. 14-208.12A, enacted before the passage of SORNA, the North Carolina General Assembly did not specifically adopt the SORNA registration tiers.
The first question then is whether the federal standards apply to termination decisions by the North Carolina state courts. In several cases, the North Carolina courts have held that the federal standards apply to petitions to terminate registration. See State v. Moir, 369 N.C. 370 (2016) (remanding for determination whether petitioner met federal termination standards); State v. Hall, 238 N.C. App. 322 (2014) (holding that federal termination standards applied retroactively to defendant); In re McClain, 226 N.C. App. 465 (2013) (holding that General Assembly did not unconstitutionally delegate its lawmaking authority to Congress by incorporating federal standards on terminating registration into G.S. 14-208.12A).
The second question is how to apply the SORNA standards to North Carolina offenses. SORNA establishes three different tiers of offenses, each with a different registration period. For tier 1 offenses, the required registration period is 15 years; for tier 2 offenses, the period is 25 years; and for tier 3 offenses, the period is life. A person convicted of a tier 1 offense may reduce the registration period—from 15 to 10 years—if during the period of registration he or she has a “clean record” as defined in SORNA. A person convicted of a tier 2 or 3 offense may not reduce the registration period required for those tiers (although a person required to register under North Carolina’s 30-year registration program could petition to reduce the registration period from 30 to 25 years if convicted of an offense considered to be a tier 2 offense). It is not always clear how to apply these tiers because North Carolina does not organize its offenses into three tiers and the offense descriptions within the three SORNA tiers do not correspond neatly to the North Carolina offenses subject to registration. For a further discussion of how to categorize North Carolina offenses according to the three SORNA tiers, see Jamie Markham, Terminating Sex Offender Registration (July 2017). See also Jamie Markham, Petitions to Terminate Sex Offender Registration: Moir Tiers, N.C. Crim. L., UNC Sch. of Gov’t Blog (Jan. 5, 2017).
Table 28. Termination of Registration and Related Obligations
Matters Subject to Termination of Registration and Related Obligations | Principal Restrictions on Termination of Registration | Applicable Statutes and Forms |
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[1] The General Assembly established the 30-year registration period for people convicted of offenses subject to Part 2 of Article 27A of G.S. Chapter 14, effective for registrations made on or after December 1, 2008. The author of this guide believes that this program sets a maximum registration period, which ends automatically at 30 years if not terminated earlier. The author also takes the view that the 30-year period applies to anyone still required to register under Part 2 on or after December 1, 2008. See John Rubin, 2008 Legislation Affecting Criminal Law and Procedure, Administration of Justice Bulletin No. 2008/06, at p. 4 & nn. 2–3 (Nov. 2008). No cases have specifically addressed the issue yet because no one has been on the registry for 30 years. Cf. In re Hamilton, 220 N.C. App. 350, 355 n.1 (2012) (suggesting in different context and without addressing the issues raised here that 30-year registration requirement applies to people first registering on or after December 1, 2008). Regardless of the maximum required registration period, people subject to registration under Part 2 may petition to terminate their registration requirements if they have registered for the required minimum period and meet the other criteria for termination.
[2] Some exceptions to this general rule exist. See G.S. 15A-145.4(a)(3) (for expunction petitions filed on or after Dec. 1, 2012, disallowing expunction of a felony requiring registration whether or not the person is currently required to register); G.S. 15A-145.5(a)(3) (to same effect); G.S. 50D-6, enacted by S.L. 2015-91 (S 60) (effective Oct. 1, 2015, person who is victim of offense subject to sex offender registration may obtain civil no-contact order for life of offender); see also State v. Mastor, 243 N.C. App. 476 (2015) (finding that under consent order prohibiting defendant from allowing convicted sex offender to be in presence of defendant’s children, person convicted of felony peeping was convicted sex offender although sentencing court had not required person to register as sex offender); G.S. 15A-1345(b1) (limiting pretrial release for person arrested for probation violation if previously “convicted of an offense at any time that requires registration”).
[3] At issue are the two types of offenses that are subject both to the 30-year registration program, which may be terminated early by a court, and to the potential imposition by a court of satellite-based monitoring. Not at issue are offenses that are subject either to the 30-year registration program but not satellite-based monitoring (such as forcible sexual offense against a person who is not a minor) or are subject to lifetime registration, such as aggravated offenses.
One of the offense types at issue in this discussion is an offense involving physical, mental, or sexual abuse of a minor, for which the court may order satellite-based monitoring for a period of years. For this type of offense, G.S. 14-208.40(a) provides that satellite-based monitoring is intended for people who satisfy specified criteria, including that they are “required to register.” G.S. 14-208.40(a)(2)(ii); see also G.S. 14-208.41(b) (authorizing court to impose satellite-based monitoring for people who meet the criteria in G.S. 14-208.40(a)(2), including requirement to register); G.S. 15A-1343(b2)(7), (8) (requiring satellite-based monitoring as a condition of probation and post-release supervision if, among other things, the person is required to register under G.S. 14-208.40(a)(1) and G.S. 14-208.40(a)(2)). This language suggests that termination of registration terminates satellite-based monitoring. No doubt existed about that result when the Post-Release Supervision Commission was the body responsible for deciding requests to terminate satellite-based monitoring because G.S. 14-208.43(d1) explicitly stated that termination of registration terminated satellite-based monitoring. When it revised G.S. 14-208.43 to transfer to the courts the authority to decide requests to terminate satellite-based monitoring, however, the General Assembly repealed subsection (d1) and did not enact similar language applicable to the courts. See S.L. 2021-138 sec. 18.(h) (S 300), as amended by S.L. 2021-182 sec. 2.(b) (S 183). Notwithstanding this omission, because satellite-based monitoring may be imposed only if a person is required to register, termination of registration may terminate monitoring.
The second type of offense is a violation of G.S. 14-27.28, statutory sexual offense with a child by an adult, for which the court may impose satellite-based monitoring for life. This offense requires sex offender registration, but registration is not a precondition for the court to order satellite-based monitoring. See G.S. 14-208.40(a)(3); G.S. 14-208.41(c). Termination of registration therefore may have no effect on satellite-based monitoring obligations. Statutory rape of a child by an adult in violation of G.S. 14-27.23 is also subject to satellite-based monitoring for life; however, because it is an aggravated offense, the statutes do not authorize termination of registration.
[4] State v. Fritsche, ___ N.C. ___, 895 S.E.2d 347 (2023); In re Borden, 216 N.C. App. 579 (2011). These decisions do not address how to calculate credit if a person initially registers in North Carolina and then moves to another state. See Jamie Markham, “Initial County Registration” for Sex Offender Registration Purposes, N.C. Crim. L., UNC Sch. of Gov’t Blog (Nov. 1, 2011) (discussing Borden); see also North Carolina Department of Justice, Law Enforcement Liaison Section, The North Carolina Sex Offender & Public Protection Registration Programs, at p. 43 (Sept. 2014) (stating in answer to question no. 12 that no time spent on another state’s registry counts toward the 10-year requirement, and stating in answer to question no. 11 that if a person registers in North Carolina and then moves to another state, the person is required to maintain registration to the extent required by North Carolina statutes, raising the possibility that the person may receive credit from the date he or she initially registers in North Carolina).
[5] See G.S. 14-415.4(e)(2) (barring restoration of firearm rights if person is under indictment or finding of probable cause exists for felony); G.S. 15A-145.4(e)(3) (barring expunction of nonviolent felony conviction if person has outstanding warrant or pending criminal case); G.S. 15A-145.5(c2), (c3) (barring expunction if person has outstanding warrants, pending criminal cases, or current indictment or finding of probable cause for felony); G.S. 15A-145.9(f) (barring expunction of conviction of offense by human trafficking victim if person has outstanding warrant); G.S. 15A-173.2(b)(5) (barring certificate of relief if person has pending criminal charge). For a discussion of this guide’s approach to statutory interpretation, see supra Overview: Interpreting Relief Statutes (discussing significance of overall legislative scheme).