{
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  "name": "In the Matter of ROBERT DALE HUTCHINSON",
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    "judges": [
      "Chief Judge MARTIN and Judge ELMORE concur."
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    "parties": [
      "In the Matter of ROBERT DALE HUTCHINSON"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nAfter being charged with failing to update his address in compliance with the North Carolina sex offender registration statutes, Petitioner Robert Dale Hutchinson filed in Brunswick County Superior Court a petition to terminate his sex offender registration requirement. At the hearing on Hutchinson\u2019s petition, the State consented to termination of Hutchinson\u2019s registration requirement, and Judge Ola M. Lewis granted the petition in an order entered 12 January 2011. Thereafter, the order was received by the State Bureau of Investigation (the \u201cSBI\u201d), which, after forwarding the order to and receiving it back from the SBI\u2019s legal counsel, removed Hutchinson from the North Carolina sex offender registry. The SBI notified the Brunswick County Sheriff\u2019s Office of Hutchinson\u2019s removal on 4 February 2011.\nOn 9 February 2011, however, the State filed a notice of appeal of Judge Lewis\u2019 order, along with a motion to stay enforcement of that order. The State\u2019s motion was heard on 31 May 2011 by Superior Court Judge Jay D. Hockenbury. Despite consenting to termination of Hutchinson\u2019s registration and expressing willingness to expedite that process at the January hearing before Judge Lewis, the State argued at the May hearing before Judge Hockenbury that Hutchinson\u2019s registration should not be terminated, that enforcement of the termination order \u2014 with which the State had already voluntarily complied \u2014 \u2022 should be stayed, and that Hutchinson should be reinstated on the sex offender registry. Over Hutchinson\u2019s objections, the State\u2019s motion to stay was granted by Judge Hockenbury.\nThereafter, Hutchinson filed with this Court a motion seeking a temporary stay of Judge Hockenbury\u2019s order and requesting this Court to issue its writ of certiorari and/or its writ of supersedeas \u201cto review the 28 July 2011 decision of [Judge Hockenbury].\u201d On 29 July 2011, this Court allowed Hutchinson\u2019s motion for temporary stay. On 10 August 2011, this Court granted Hutchinson\u2019s petition for writ of supersedeas, referred his petition for writ of certiorari to the panel assigned to hear the appeal, and stayed Judge Hockenbury\u2019s order and \u201c[a]ll further proceedings in this matter\u201d \u201cpending the outcome of the appeal taken to this Court.\u201d It was further ordered that \u201cHutchinson shall not be reinstated to the sexual offender registry at this time.\u201d\nOn 15 August 2011, Hutchinson filed a motion to dismiss the State\u2019s appeal of Judge Lewis\u2019 order. In that motion, Hutchinson argued that the State had not properly preserved any issues for appeal and, thus, the State\u2019s appeal of Judge Lewis\u2019 order terminating Hutchinson\u2019s registration should be dismissed. For the following reasons, we agree.\nAs noted supra, the State consented to termination of Hutchinson\u2019s registration requirement at the hearing before Judge Lewis. However, on appeal, the State now contends that the registration requirement should not have been terminated because Hutchinson had not been registered in North Carolina for 10 years. It is a well-established rule in our appellate courts that a contention not raised and argued in the trial court may not be raised and argued for the first time on appeal. E.g., Wood v. Weldon, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003). Since the State did not argue to the trial court that Hutchinson\u2019s registration requirement could not be terminated because Hutchinson had not been registered for the requisite 10 years, the State cannot raise that argument on appeal. See id.; see also N.C. R. App. P. 10(a)(1).\nNevertheless, the State contends that it is not barred by the general rule stated above because the State\u2019s appeal presents a question of subject matter jurisdiction and because such a question may be raised at any time. We are unpersuaded. The question the State raises on appeal is whether a trial court may grant a petition to terminate a sex offender\u2019s registration requirement where the petitioner has been registered in North Carolina for fewer than 10 years. This Court recently answered that question in In re Borden,_. N.C. App._, _S.E.2d_(2011), where we reversed a trial court\u2019s termination of the petitioner\u2019s registration requirement on the ground that the petitioner had not been registered in North Carolina for at least 10 years. This Court in Borden did not hold that the trial court lacked jurisdiction to rule on the petition in the first place because the petitioner had not been registered in North Carolina for 10 years. On the contrary, in Borden we held that \u201cthe trial court erred when it terminated [the petitioner\u2019s] sex offender registration requirement,\u201d and we \u201creverse[d] the trial court\u2019s order.\u201d Id. at__,_S.E.2d at__ (emphasis added). The obvious implication from reversing a trial court\u2019s ruling on a petition filed by a petitioner who has been registered in North Carolina for fewer than 10 years \u2014 and thereby instructing the trial court to enter an order denying the petition \u2014 is that the trial court has subject matter jurisdiction to rule on petitions for termination of registration filed by petitioners who have been registered in North Carolina for fewer than 10 years. We are bound by that decision. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Accordingly, the State\u2019s argument that Hutchinson\u2019s petition could not be granted because he had not been registered in North Carolina for 10 years does not raise a question of subject matter jurisdiction and, therefore, was waived when the State failed to advance that argument before the trial court.\nBecause the State failed to properly preserve its sole argument on appeal, the appeal must be dismissed. Estates, Inc. v. Town of Chapel Hill, 130 N.C. App. 664, 666, 504 S.E.2d 296, 298 (1998). Further, this Court\u2019s writ of supersedeas and temporary stay are dissolved. As for Hutchinson\u2019s petition for writ of certiorari to review Judge Hockenbury\u2019s order staying Judge Lewis\u2019 order terminating Hutchinson\u2019s registration requirement, we grant certiorari and hold that because the State\u2019s appeal from Judge Lewis\u2019 order is dismissed, Judge Hockenbury\u2019s stay of enforcement of Judge Lewis\u2019 order must be dissolved.\nAppeal DISMISSED; writ of supersedeas and temporary stay DISSOLVED; writ of certiorari GRANTED; trial court\u2019s stay DISSOLVED.\nChief Judge MARTIN and Judge ELMORE concur.\n. From the hearing on Hutchinson\u2019s petition:\n[ADA]: Your Honor, [this] is the petition that [counsel for petitioner] and I spoke with you about to terminate sex offender registration .... I\u2019m not objecting at this point to that registration requirement being terminated. It\u2019s my understanding that [] Hutchinson is going to be moving out of State to the State of Alabama. Is that correct?\n[Counsel for petitioner]: That\u2019s correct.\n[ADA]: He has a job lined up for him there and we\u2019re not wanting to hold him up by these additional requirements.\n[ADA]: And, your Honor, if you do grant the petition, as we\u2019ve discussed, . . . the State will be taking a dismissal on [Hutchinson\u2019s charge for failure to comply with the registration requirements] and we will get that to Madame clerk by the end of the day. We will fax the jail so that that won\u2019t hold him up.\n. Section 14-208.12A(a) provides that \u201c[t]en years from the date of initial county registration, a person required to register . . . may petition the superior court to terminate the [] registration requirement if the person has not been convicted of a subsequent offense requiring registration under this Article.\u201d N.C. Gen. Stat. \u00a7 14-208.12A(a) (2011).",
        "type": "majority",
        "author": "STEPHENS, Judge."
      }
    ],
    "attorneys": [
      "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for Petitioner.",
      "Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for Respondent."
    ],
    "corrections": "",
    "head_matter": "In the Matter of ROBERT DALE HUTCHINSON\nNo. COA11-757\n(Filed 7 February 2012)\nAppeal and Error \u2014 preservation of issues \u2014 argument not raised in trial court \u2014 not subject matter jurisdiction issue\nThe State failed to properly preserve for appeal its sole argument regarding its consent to the termination of respondent\u2019s sex offender registration and its appeal was dismissed. The State failed to make its argument before the trial court and its appeal did not present an issue of subject matter jurisdiction.\nAppeal by Respondent from order entered 12 January 2011 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 14 November 2011.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for Petitioner.\nAttorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for Respondent."
  },
  "file_name": "0443-01",
  "first_page_order": 453,
  "last_page_order": 456
}