Petition for Writ of Certiorari — Anthony Rayshon Bethea, Petitioner v. North Carolina

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APPENDIX A

Court of Appeals of North Carolina.

In the MATTER OF: Anthony Rayshon BETHEA

No. COA17-459

Filed: October 3, 2017

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. Chatham County, No. 04 CRS

5254–58; 50399

Appellate Defender Glenn Gerding, by Assistant

Appellate Defender James R. Grant, for petitionerappellant.

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).

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.

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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.

(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.

...

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(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 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

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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 twentyfive 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. ––––, 136 S.Ct.

688, 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.

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

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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.

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

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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 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

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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 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).

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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-dueprocess 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, 117

S.Ct. 2258, 2268, 138 L.Ed.2d 772, 787–88 (1997) (citations and quotations omitted).

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,

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(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 14–208.12A, 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 Petition-

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er’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 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

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contracts ....”); N.C. Const. art. I, § 16 (“Retrospective

laws, punishing acts committed before the existence

of such *682 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, 123 S.Ct. 882, 154 L.Ed. 2d 795

(2003). “Because both the federal and state constitutional ex post facto provisions are evaluated under

the same 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:

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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 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.

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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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APPENDIX B

Supreme Court of North Carolina

In the Matter of: Anthony Rayshon Bethea

From N.C. Court of Appeals

(17-459)

From Chatham

(04CRS50399 04CRS5254-S8)

ORDER

Upon consideration of the notice of appeal from

the North Carolina Court of Appeals, filed by the Petitioner on the 24th of October 2017 in this matter

pursuant to G.S. 7A-30, and the motion to dismiss

the appeal for lack of substantial constitutional

question filed by the State of NC, the following order

was entered and is hereby certified to the North

Carolina Court of Appeals: the motion to dismiss the

appeal is

“Allowed by order of the Court in conference, this

the 9th of May 2018.”

s/ Morgan, J.

For the Court

Upon consideration of the petition filed on the

24th of October 2017 by Petitioner in this matter for

discretionary review of the decision of the North

Carolina Court of Appeals pursuant to G.S. 7A-31,

the following order was entered and is hereby certified to the North Carolina Court of Appeals:

“Denied by order of the Court in conference, this

the 9th of May 2018.”

s/ Morgan, J.

For the Court

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Witness my hand and official seal of the Supreme

Court of North Carolina, this the 17th of May 2018.

Amy L. Funderburk

Clerk, Supreme Court of North Carolina

M.C. Hackney

Assistant Clerk, Supreme Court of North

Carolina

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APPENDIX C

State of North Carolina

Chatham County

In the General Court of Justice

Superior Court Division

Petition and Order for Termination

of Sex Offender Registration

In the Matter of:

Anthony R. Bethea

….

IV. FINDINGS OF FACT

After a hearing on this petition, the Court finds the

following:

[x] 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.

[x] 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.

[x] 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.

[x] 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.

[x] 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.

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[x] 6. The petitioner is not a current or potential

threat to public safety.

[ ] 7. The relief requested by the petitioner complies 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.

[ ] 8. If the petitioner filed a previous petition for

termination under G.S. 14-208.12A that was denied,

one year or more has passed since the date of the

denial.

[ ] 9. If the conviction requiring the petitioner’s

registration occurred in another state, the petitioner

(i) provided written notice to the sheriff of the county

where the petitioner was convicted that the petitioner is petitioning the court to terminate the registration requirement and (ii) included with the petition

an affidavit, signed by the petitioner, that verifies

that the petitioner notified the sheriff of the county

where the petitioner was convicted of the petition

and that provides the mailing address and contact

information for that sheriff.

V. CONCLUSIONS OF LAW

After a hearing on this petition, and based on the

foregoing findings, the Court concludes as follows:

(check one)

[ ] 1. The petitioner is entitled to the relief requested. (All of the findings of fact above must be

found.)

[x] 2. The petitioner is NOT entitled to the relief

requested.

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VI. ORDER

(check one)

[ ] 1. The relief requested by the petitioner is

granted and the petitioner’s registration under Part

2 of Article 27A of Chapter 14 is hereby ordered terminated. The clerk shall forward a certified copy of

this Order to the State Bureau of Investigation,

Attn: Criminal Information and Identification Section, Sex Offender Coordination Unit, Building 16B,

Post Office Box 29500, Raleigh, NC 27626-0500.

[x] 2. The relief requested by the petitioner is NOT

granted and the petitioner shall continue to maintain registration under Part 2 of Article 27A of

Chapter 14.

Date: 10/31/2016

Name of Judge (Type or Print): Carl R. Fox

Signature of Judge: /s/ Carl R. Fox