{ "id": 6815872, "name": "IN THE MATTER OF KEVIN MCCLAIN", "name_abbreviation": "In re McClain", "decision_date": "2013-04-26", "docket_number": "No. COA12-1258", "first_page": "465", "last_page": "470", "citations": [ { "type": "official", "cite": "226 N.C. App. 465" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 U.S.C. \u00a7\u00a7 16913", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 16902", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2006, "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 16911", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 16926", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2006, "opinion_index": 0 }, { "cite": "255 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "667", "parenthetical": "holding that an ordinance which gives authority to the Superintendent to approve the use of school property for certain extracurricular activities is not unconstitutional as a delegation of legislative authority" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552007 ], "year": 1979, "pin_cites": [ { "page": "43", "parenthetical": "holding that an ordinance which gives authority to the Superintendent to approve the use of school property for certain extracurricular activities is not unconstitutional as a delegation of legislative authority" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0040-01" ] }, { "cite": "195 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "283 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558195 ], "year": 1973, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0110-01" ] }, { "cite": "143 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "265 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574532 ], "year": 1965, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0109-01" ] }, { "cite": "42 U.S.C. \u00a7 16915", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2006, "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 16901", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2006, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "120 Stat. 600", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 16923", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 14072", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "parenthetical": "repealed 2006" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 14071", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1997, "pin_cites": [ { "page": "(a)(1)", "parenthetical": "repealed 2006" }, { "page": "(b)(6)(A)", "parenthetical": "repealed 2006" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "430 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "684" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525941 ], "year": 1993, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0506-01" ] }, { "cite": "543 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "848", "parenthetical": "\"[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.\"" } ], "opinion_index": 0 }, { "cite": "353 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135972 ], "year": 2001, "pin_cites": [ { "page": "348", "parenthetical": "\"[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0343-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36-37", "parenthetical": "holding that a court is bound by the decision of prior panels of the same court on the same issue" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "holding that a court is bound by the decision of prior panels of the same court on the same issue" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "725 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2012, "pin_cites": [ { "parenthetical": "incorporating and applying the requirements of the Adam Walsh Act under N.C.G.S. \u00a7 14-208.12A(al)(2)" }, { "page": "399" }, { "page": "399" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 642, "char_count": 13415, "ocr_confidence": 0.71, "pagerank": { "raw": 4.643594115661138e-08, "percentile": 0.2915065704602855 }, "sha256": "a5078144df57b0a54c0e46a6d70b24b111d8660964e2ff9823ede20647d25a6a", "simhash": "1:8fed86e06d8f0433", "word_count": 2131 }, "last_updated": "2023-07-14T18:05:47.059681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STEPHENS concur." ], "parties": [ "IN THE MATTER OF KEVIN MCCLAIN" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nPetitioner 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. \u00a7\u00a7 14-208.7-19A, which he did on 7 August 2001.\nAfter 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 \u201cconvicted of a felony for failure to comply with obligations under the sex offender registry law and served a period of imprisonment,\u201d and as a result, he did not have a \u201cclean record.\u201d The court denied McClain\u2019s 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. \u00a7 14-208.12A(al) (2).\nOn 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. \u00a7 14-208.12A(al)(2), because the incorporation of the Adam Walsh Child Protection and Safety Act of 2006 (\u201cthe Adam Walsh Act\u201d) and the federal Sex Offender Registration and Notification Act (\u201cSORNA\u201d) into N.C.G.S. \u00a7 14-208.12A(al)(2) is an unconstitutional delegation of legislative authority under the North Carolina Constitution.\nAlthough 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. \u00a7 14-208.12A(al)(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\u2019s 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\u2019s order.\nWe review this issue de novo. Piedmont Triad Reg\u2019l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (\u201c[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.\u201d). \u201cThis Court presumes that any act promulgated by the General Assembly is constitutional and resolves all doubt in favor of its constitutionality.\u201d Guilford Cty. Bd. Of Educ. v. Guilford Cty. Bd. Of Elections, 110 N.C. App. 506, 511, 430 S.E.2d 681, 684 (1993).\nAfter ten years on North Carolina\u2019s sex offender registry, \u201ca person required to register under [N.C.G.S. \u00a7 14-208.7] 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.\u201d N.C. Gen. Stat. \u00a7 14-208.12A(a) (2011). The court \u201cmay\u201d grant this relief if, among other conditions being met, \u201c[t]he 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.\u201d N.C. Gen. Stat. \u00a7 14-208.12A(al)(2).\nThe federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (\u201cthe Jacob Wetterling Act\u201d), which set up guidelines for state sex offender registration programs, was enacted on 26 November 1997. 42 U.S.C. \u00a7 14071(a)(1) (1997) (repealed 2006). Initially, under the Jacob Wetterling Act, \u201c[a] person required to register under subsection (a)(1) of this section shall continue to comply with this section . . . until 10 years have elapsed since the person was released from prison or placed on parole, supervised release, or probation . . . .\u201d 42 U.S.C. \u00a7 14071(b)(6)(A) (repealed 2006). In October 1998, the Jacob Wetterling Act was amended to include additional requirements under the Pam Lynchner Sexual Offender Tracking and Identification Act of 1996 (\u201cthe Pam Lynchner Act\u201d). 42 U.S.C. \u00a7 14072 (repealed 2006). On 27 July 2006, the Jacob Wetterling and Pam Lynchner Acts were repealed, effective \u201cthe later of 3 years after July 27, 2006, or 1 year after the date on which the software described in [42 U.S.C. \u00a7 16923] is available.\u201d Act of July 27, 2006, Pub. L. No. 109-248, tit. I, \u00a7 129(b), 120 Stat. 600.\nOn the same day, the Adam Walsh Child Protection and Safety Act of 2006 was enacted to \u201cprotect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below,\u201d and to \u201cestablish[] a comprehensive national system for the registration of those offenders.\u201d 42 U.S.C. \u00a7 16901 (2006). The Adam Walsh Act makes it clear that it is intended to expand on and replace the Jacob Wetterling Act. The Adam Walsh Act covers substantially the same subject matter previously covered by the Jacob Wetterling Act; in particular, it outlines and updates the requirements for sex offender registration and notification in Part A of the statute. Pursuant to the Adam Walsh Act, the full registration period for what it deems a Tier 1 sex offender is fifteen years; it can be reduced to ten years, however, if the offender is not convicted of another sex offense or of an offense for which imprisonment of more than a year can be imposed, i.e., they have a \u201cclean record,\u201d and if the offender successfully completes any periods of supervised release, probation, and parole and an appropriate sex offender treatment program. 42 U.S.C. \u00a7 16915 (2006).\nPetitioner contends that incorporating the \u201cclean record\u201d requirement of the Adam Walsh Act into the North Carolina Sex Offender and Public Protection Registration Program, as was done in In re Hamilton by referring to \u201cthe 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\u201d in N.C.G.S. \u00a7 14-208.12A(al)(2) is an unconstitutional delegation of the North Carolina General Assembly\u2019s lawmaking authority. Specifically, petitioner argues that the statutory reference to \u201cthe Jacob Wetterling Act, as amended\u201d and the \u201cfederal standards\u201d language improperly incorporates future federal enactments to be promulgated by Congress.\nUnder article II, section 1 of the North Carolina Constitution, the General Assembly may not abdicate or delegate its authority to make law to departments of government or administrative agencies. See N.C. Const, art. II, \u00a7 1; N.C. Tpk. Auth. v. Pine Island, Inc., 265 N.C. 109, 114, 143 S.E.2d 319, 323 (1965). Constitutional delegation of limited legislative authority occurs when the legislature has \u201cdeclared the policy to be effectuated and has established the broad framework of law within which it is to be accomplished and standards for the guidance of the administrative agency,\u201d and simply \u201cdelegate[s] to such agency the authority to make determinations of fact upon which the application of a statute to particular situations will depend.\u201d Foster v. N.C. Med. Care Comm\u2019n, 283 N.C. 110, 119, 195 S.E.2d 517, 523 (1973). Simply defining when particular conduct is unlawful by reference to an external standard, on the other hand, has not been deemed an unconstitutional delegation of legislative authority. See State v. Rhoney, 42 N.C. App. 40, 43, 255 S.E.2d 665, 667 (1979) (holding that an ordinance which gives authority to the Superintendent to approve the use of school property for certain extracurricular activities is not unconstitutional as a delegation of legislative authority).\nHere, the legislature is not creating a framework and then asking Congress or another federal agency to determine facts or fill in that framework; these statutes comprise two parallel sex offender notification and registration programs, state and federal, existing side-by-side. Rather than abdicating or delegating legislative authority to make new guidelines to the federal government, the North Carolina legislature is attempting to bring its program in line with the external federal standards with which it needs to comply in order to receive federal funding.\nThe Adam Walsh Act explicitly requires jurisdictions to \u201csubstantially implement\u201d its requirements in order to receive federal funds, as long as doing so is not unconstitutional under its state Constitution. 42 U.S.C. \u00a7 16926 (2006). Accordingly, there are provisions in N.C.G.S. \u00a7 14-208.7 et seq. which directly implement aspects of the Adam Walsh Act; these provisions, however, are spelled out and do not refer to the federal statute or requirements, they simply adopt the requirements specifically in the text of the statute. The offending reference to \u201cfederal standards\u201d in N.C.G.S. \u00a7 14-208.12A(al)(2) of which the petitioner complains is the legislature\u2019s attempt to substantially implement the Adam Walsh Act\u2019s requirements by bringing North Carolina\u2019s conditions for removal from the sex offender registry in line with those recommended by the federal government in the Adam Walsh Act. Because we hold this action by the North Carolina legislature is not an unlawful delegation of its authority, we review the court\u2019s denial of the petition for removal using the framework employed by the Court in In re Hamilton.\nHere, both parties agree that petitioner is a tier 1 sex offender pursuant to 42 U.S.C. \u00a7 16911.\nThus, under the terms of section 16915, [p]etitioner\u2019s full registration period would be 15 years (subsection (a)), which could be reduced by five years (subsection (b) (3) (A)) if, after a period of ten years (subsection (b)(2) (A)), [p]etitioner had not committed another sex offense or other serious offense and had successfully completed any \u201cperiods of supervised release, probation, and parole\u201d and \u201can appropriate sex offender treatment program\u201d (subsection (b)(1)).\nIn re Hamilton, N.C. App. at _, 725 S.E.2d at 399.\nPetitioner first registered pursuant to N.C.G.S. \u00a7 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 refief he requested complied with the provisions of the federal Jacob Wetterling Act, as amended, and \u201cany other federal standards applicable to the termination of [the] registration requirement,\u201d because petitioner admitted at trial that he did not have a \u201cclean record.\u201d 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.\nMoreover, we must also note that even if petitioner\u2019s 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\u2019s request to terminate his registration requirement. See In re Hamilton, N.C. App. at_, 725 S.E.2d at 399 (holding that \u201cafter making findings of fact\u201d the trial court is \u201cfree to employ its discretion in reaching its conclusion of law whether [petitioner is entitled to the relief he requests\u201d because N.C.G.S. \u00a7 14-208.12A(al) states that the trial court \u201cmay\u201d grant petitioner relief if the terms of the statute are met). The trial court\u2019s order denying petitioner McClain\u2019s petition is affirmed.\nAffirmed.\nJudges HUNTER and STEPHENS concur.\n. Jacob Wetterling is the first victim listed as inspiring the legislation in \u00a7 16901, which declares the purpose of the statute. 42 U.S.C. \u00a7 16901(1) (2006). Moreover, \u00a7 16902 of the Adam Walsh Act states \u201c[t]his chapter establishes the Jacob Wetterling, Megan Nicole Kanka, and Pam Lynchner Sex Offender Registration and Notification Program.\u201d 42 U.S.C. \u00a7 16902 (2006).\n. 42 U.S.C. \u00a7\u00a7 16913 and 16916 require in-person initial registration and in-person updates to keep an offender\u2019s registration current; N.C.G.S \u00a7\u00a7 14-208.7 and 14-208.9 added these requirements as well.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by William R Hart, Jr., Assistant Attorney General, for the State.", "Staples S. Hughes, Appellate Defender, by John F. Carella, Assistant Appellate Defender, for petitioner-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF KEVIN MCCLAIN\nNo. COA12-1258\nFiled 26 April 2013\nSexual Offenders \u2014 sex offender registry \u2014 denial of request to terminate registration requirement\nThe trial court did not err by denying a petition for removal from the sex offender registry. Even if petitioner\u2019s argument that the provision under N.C.G.S. \u00a7 14-208.12A(al)(2) that incorporated 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\u2019s request to terminate his registration requirement.\nAppeal by petitioner from order entered 13 June 2012 by Judge Walter H. Godwin, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 11 March 2013.\nRoy Cooper, Attorney General, by William R Hart, Jr., Assistant Attorney General, for the State.\nStaples S. Hughes, Appellate Defender, by John F. Carella, Assistant Appellate Defender, for petitioner-appellant." }, "file_name": "0465-01", "first_page_order": 475, "last_page_order": 480 }