Opinion
No. 05-38.
Filed 20 September 2005.
Wake County No. 04 CRS 012408.
Appeal by defendant from judgment entered 12 August 2004 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 24 August 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State. Daniel F. Read, for defendant-appellant.
Kenneth Leroy Kittrell ("defendant") appeals judgment after a jury found him to be guilty of violating the North Carolina Sex Offender Registration Act, N.C. Gen. Stat. § 14-208.5 et seq. ("Article 27A"). We vacate the trial court's judgment.
I. Background
The parties stipulated: (1) defendant pled guilty to second-degree rape on 19 November 1992 and was sentenced to a ten year prison term; and (2) second-degree rape is a "reportable offense" under N.C. Gen. Stat. § 14-208 for which a person must register as a sex offender. Defendant testified his prison term for the second-degree rape conviction ended in 1995. We judicially notice that defendant was released from prison for the second-degree rape conviction on 7 June 1995. Defendant testified he was not informed he had to register as a sex offender upon his release. Defendant was provided information on sex offender registration following his later release from federal prison for a subsequent and unrelated bank robbery conviction.
Defendant initially registered as a sex offender in Wake County on 27 November 2000. Defendant listed his address as 6809 Strawberry Lane, Garner, North Carolina and was provided with a list of his responsibilities as a sex offender. One responsibility required him to provide written notification of any address change to the sheriff in the county where he had most currently registered within ten days of the address change.
Defendant's mother leased an apartment at the Dover Apartments located at 711-D Wexford Drive, Raleigh and lived there for approximately two years. Defendant listed his mother's address as his residence on 29 July 2003. On 5 December 2003, defendant's yearly verification letter, addressed to defendant at 711-D Wexford Drive, Raleigh, North Carolina, was returned by the postal service as an undelivered letter and received by Detective Wayne Baumgardner. The apartment manager where defendant's mother lived informed Detective Baumgardner that defendant never lived at the complex.
Defendant testified he was never a party to the lease at his parents' Wexford Drive apartment, but he lived and received his mail there until 31 October 2003 when his mother and father moved into a senior citizens' home. Defendant testified and the apartment manager acknowledged he applied for an apartment at Wexford Drive and other locations in Raleigh, but his application was denied due to his past criminal record.
Defendant stated he did not have a permanent address from 31 October 2003 and lived in homeless shelters and with friends and relatives until he obtained an apartment on 29 March 2004. Defendant failed to notify the sheriff of his change of address during this period.
Defendant testified he was arrested on the night of Friday, 2 April 2004, and had intended to register his changed address the following Monday with the sheriff. Defendant registered his new address within ten days of his release from jail on the current charge. Defendant was sentenced to an active prison term of twenty to twenty-four months and appeals.
II. Issues
Defendant argues the trial court erred by: (1) denying his motions to dismiss the charge on constitutional grounds; (2) denying his motions to dismiss because insufficient evidence supported the charges; (3) refusing to allow the jury's request for a definition of "change of address;" and (4) overruling his objection to the use of his conviction for second-degree rape both to calculate his prior record level and as the predicate offense for failure to register.
III. Jurisdiction
Defendant argues the charges against him should have been dismissed because he was convicted of a reportable offense in 1992, released from prison in 1995, and the Sex Offender Registration Act did not become effective until 1 January 1996.
A. The Amy Jackson Law
"In 1995, North Carolina enacted the Amy Jackson Law, N.C. Gen. Stat. § 14-208.5 (2003) et seq. ("Article 27A") [ratified 29 July 1995], requiring individuals convicted of certain sex-related offenses to register their addresses and other information with law enforcement agencies." State v. White, 162 N.C. App. 183, 185, 590 S.E.2d 448, 450 (2004).
Article 27A applies to all offenders convicted on or after 1 January 1996 and to all prior offenders released from prison on or after that date. 1995 N.C. Sess. Laws ch. 545, § 3. Under N.C. Gen. Stat. § 14-208.7(a) (2003), "[a] person who is a State resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides." North Carolina residents who are released from a penal institution must register with the sheriff of the county in which the offender resides "[w]ithin 10 days of release from a penal institution. . . ." N.C. Gen. Stat. § 14-208.7(a)(1). Registration must be maintained for ten years following release. N.C. Gen. Stat. § 14-208.7(a). Whenever a person required to register "changes address, the person shall provide written notice of the new address not later than the tenth day after the change to the sheriff of the county with whom the person had last registered." N.C. Gen. Stat. § 14-208.9(a) (2003).
Before a convicted sex offender is released from a North Carolina penal institution, an official of the institution must notify him or her of the duty to register in the county where the person intends to reside. N.C. Gen. Stat. § 14-208.8(a)(1) (2003). The person required to register must sign a statement to verify receipt of the information or, if the person refuses to sign, the official must certify that the person was notified of his or her duty to register. Id.
White, 162 N.C. App. at 185, 590 S.E.2d at 450 (emphasis supplied).
"To meet its burden under § 14-208.11(a)(2), the State must prove that: 1) the defendant is a sex offender who is required to register; and 2) that defendant failed to notify the last registering sheriff of a change of address." State v. Holmes, 149 N.C. App. 572, 577, 562 S.E.2d 26, 30 (2002) (emphasis supplied).
"Failing to register as a sexual offender . . . is not a status but constitutes a separate crime." State v. Harrison, 165 N.C. App. 332, 334, 598 S.E.2d 261, 262 (citing N.C. Gen. Stat. § 14-208.11 ("A person required by this Article to register who does any of the following is guilty of a Class F felony. . . .")), disc. rev. denied, 359 N.C. 72, 664 S.E.2d 922 (2004).
The State argues defendant's constitutional rights were not violated and cites Smith v. Doe, 538 U.S. 84, 105, 155 L. Ed. 2d 164, 175, reh'g denied, 538 U.S. 1009, 155 L. Ed. 2d 844 (2003) and White, 162 N.C. App. 183, 590 S.E.2d 448. The facts of Smith and White are readily distinguishable from those here.
In Smith, Alaska's legislature expressly made Alaska's sex offender registration statute retroactive. 538 U.S. 84 at 90, 155 L. Ed. 2d at 175 ("The Alaska law, which is our concern in this case, contains two components: a registration requirement and a notification system. Both are retroactive.")
In White, the defendant appealed from a conviction for failure to comply with North Carolina's sex offender registration requirements. 162 N.C. App. at 184, 590 S.E.2d at 450. However, the defendant "pled guilty to committing indecent liberties with a minor" in April 1996 and was released from prison on 19 March 1997. Id. at 186, 590 S.E.2d at 451. Article 27A applies to all sexual offenders convicted on or after 1 January 1996 and to all prior sexual offenders released from prison on or after that date. 1995 N.C. Sess. Laws ch. 545, § 3 (emphasis supplied). The defendant's guilty plea and release from prison both occurred after the effective date of the registration statute. White, 162 N.C. App. at 186, 590 S.E.2d at 451. The defendant in White clearly was included within the scope of Article 27A.
B. Ex Mero Motu
The question of subject matter jurisdiction may properly be raised for the first time on appeal. N.C. Gen. Stat. § 1A-1, Rule 12(h)(3). Furthermore, this Court may raise the question on its own motion even when it was not argued by the parties in their briefs. Jenkins v. Winecoff, 267 N.C. 639, 148 S.E.2d 577 (1966).
Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C. App. 414, 421, 248 S.E.2d 567, 571 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 32 (1979). We raise the question of subject matter jurisdiction ex mero motu. Id.
Here, defendant pled guilty to second-degree rape on 19 November 1992 and testified he was released from prison in 1995. We judicially notice defendant was released from prison on 7 June 1995.
The device of judicial notice is available to an appellate court as well as a trial court. This Court has recognized in the past that important public documents will be judicially noticed. Consideration of matters outside the record is especially appropriate where it would disclose that the question presented has become moot, or academic, and therefore neither of the litigants has any real interest in supplementing the record.
Utilities Comm. v. Southern Bell Telephone, 289 N.C. 286, 288, 221 S.E.2d 322, 323-24 (1976) (internal quotation and citations omitted).
Defendant was convicted of second degree rape approximately two years and one month and was released from state prison for that charge approximately seven months prior to the effective date of Article 27A. Unlike the defendants in Smith and White, defendant here was convicted under a statute not expressly retroactive to reportable crimes prior to 1 January 1996 and was not in effect when defendant was convicted of a reportable crime or released from prison for that crime.
Because the statute is not retroactive to crimes prior to the effective date and defendant was convicted of a reportable sexual offense and released from prison before the effective date of Article 27A was enacted, the trial court lacked subject matter jurisdiction over defendant. Bache Halsey Stuart, Inc., 38 N.C. App. at 421, 248 S.E.2d at 571.
IV. Conclusion
Defendant was convicted of second-degree rape and released from prison prior to the effective date of Article 27A on 1 January 1996. Defendant's conviction and judgment for failure to comply with the provisions of Article 27A for a conviction of a reportable offense and his release from prison where both occurred prior to the effective date of the statute must be vacated. The trial court did not possess subject matter jurisdiction over defendant and the parties cannot stipulate to subject matter jurisdiction.
In light of our holding, we do not address defendant's remaining assignments of error. The trial court's order is vacated.
Vacated.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).