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In the Matter of McClain

4-16-2013 North Carolina:

In the Matter of McClain
Nos. COA12-1258.

Petitioner Kevin McClain pled guilty to the felony offense of indecent liberties with a child on 29 January 2001. He was sentenced to fifteen to eighteen months imprisonment, thirty-six months of supervised probation, and was required to register as a sex offender under the North Carolina Sex Offender and Public Protection Registration Program, N.C.G.S. §§ 14-208.7-19A, which he did on 7 August 2001.

After ten years, McClain petitioned the Superior Court of New Hanover County to be removed from the sex offender registry. Petitioner admitted at the subsequent hearing on 13 June 2012 that during the past ten years he was "convicted of a felony for failure to comply with obligations under the sex offender registry law and served a period of imprisonment," and as a result, he did not have a "clean record." The court denied McClain's petition for removal from the registry on the grounds that the requested relief did not comply with federal standards as outlined in N.C.G.S. § 14-208.12A(a1) (2).

On appeal, petitioner McClain contends it was error for the trial court to deny his petition for removal from the sex offender registry on the basis that it did not comply with N.C.G.S. § 14-208.12A(a1) (2), because the incorporation of the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act") and the federal Sex Offender Registration and Notification Act ("SORNA") into N.C.G.S. § 14-208.12A(a1) (2) is an unconstitutional delegation of legislative authority under the North Carolina Constitution.


Although another panel of this Court recently decided In re Hamilton, ___ N.C. App. ___, 725 S.E.2d 393 (2012) (incorporating and applying the requirements of the Adam Walsh Act under N.C.G.S. § 14-208.12A(a1) (2)), both parties agree that the constitutionality of the incorporation of those federal standards was not raised in that case. Therefore, because the instant case presents a question distinct from that at issue in In re Hamilton, we now consider petitioner's constitutional argument. Cf. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989) (holding that a court is bound by the decision of prior panels of the same court on the same issue). After careful consideration, we affirm the trial court's order.

... ... ...

Petitioner first registered pursuant to N.C.G.S. § 14-208.7 on 7 August 2001. He petitioned the trial court for removal on 29 May 2012, more than ten years later. Based on evidence at the hearing, the trial court found that evidence supported that petitioner had satisfied all the requirements for removal except the requirement that the relief he requested complied with the provisions of the federal Jacob Wetterling Act, as amended, and "any other federal standards applicable to the termination of [the] registration requirement," because petitioner admitted at trial that he did not have a "clean record." Based on these findings of fact, the court correctly concluded that petitioner is not entitled to the relief requested, and must continue to maintain registration.

Moreover, we must also note that even if petitioner's argument that the provision incorporating the Adam Walsh Act was unconstitutional as an improper delegation of legislative authority had merit, the trial court could still have exercised its discretion to deny petitioner's request to terminate his registration requirement. See In re Hamilton, ___ N.C. App. at ___, 725 S.E.2d at 399 (holding that "after making findings of fact" the trial court is "free to employ its discretion in reaching its conclusion of law whether [p]etitioner is entitled to the relief he requests" because N.C.G.S. § 14-208.12A(a1) states that the trial court "may" grant petitioner relief if the terms of the statute are met). The trial court's order denying petitioner McClain's petition is affirmed. Affirmed.



eAdvocate notes:

The NC statute in question:
§ 14‑208.12A. Request for termination of registration requirement. (a1)(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
The more I think about this case, the more I become concerned that the court even mentioned SORNA. Here is why. The NC law basically trys to draw in ANY FEDERAL law which concerns "Petitioning for Removal from the Registry (PGOR)." OK, at the time NC enacted its law (before SORNA was enacted) to permit folks to PGOR, SORNA did not exist, and that can be argued.

Further, SORNA after enactment has NO PGOR provision, so what were NC Lawmakers thinking; no one knows, and the court can only speculate, the statute doesn't mention one word about SORNA. Now, as to "Clean Record," if that were NC lawmaker's thinking, that is not spelled out in the NC law either. Again, at best the court can only speculate, lawmakers were thinking about the, yet to be enacted, SORNA definition.

The entire NC statute is about "Petitioning to get off the registry (PGOR)," and I'm sure lawmakers could spell out what conditions a petitioner has to meet to be granted relief, they didn't and that leaves a court to do one of two things:
  • 1) Speculate as to what the NC Legislature meant without facts to support speculation; or,
  • 2) Substitute the courts thinking as to what conditions a PGOR petitioner must meet to receive relief, and base that on a retroactive erroneous interpretation of SORNA.

The court in McClain did #2 and that is illegal for it to do; courts cannot substitute its thinking for that of the legislature. I totally disagree with the McClain court decision, but I am but a tiny voice.

Belief here, this can be appealed, hopefully lawyers will take control and do so.

See also: The Wetterling Finding: Not an Unconstitutional Delegation

The court of appeals recently decided another case on petitions to terminate sex offender registration. Once again, the decision turned on what I have called the “Wetterling finding”—the rule in G.S. 14-208.12A(a1)(2) that a judge may not remove a person from the registry if doing so would not comply with “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.” That law generates some difficult questions about the interplay between state and federal law, which I discussed here and here. ..continued.. by Jamie Markham

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