In re: Pellicciotti

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-624

No. COA21-497

Filed 20 September 2022

Durham County, No. 20 CRS 1644

IN THE MATTER OF: ANTHONY JOSEPH PELLICCIOTTI.

Appeal by defendant from the Order entered 2 February 2021 by Judge

Michael O’Foghludha in Durham County Superior Court. Heard in the Court of

Appeals 8 March 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General Alan D. McInnes, for the State-Appellee.

Thomas, Ferguson & Beskind, LLP by Kellie Mannette and Jay H. Ferguson, for Defendant-Appellant.

CARPENTER, Judge.

¶1 Anthony Joseph Pellicciotti (“Defendant”) appeals from an order (the “Order”)

requiring him to register as a sex offender upon his relocation to North Carolina,

arguing the out-of-state offense is not substantially similar to a reportable North

Carolina offense. After careful review, we affirm the Order of the trial court.

I. Factual and Procedural Background

Opinion of the Court

¶2 On 28 November 2011, Defendant pleaded guilty to second-degree statutory

sexual assault in Pennsylvania. 18 Pa. Cons. Stat. Ann. § 3122.1 (West 1995)

(amended 2012).1 On 13 November 2020, after Defendant moved to North Carolina,

the Durham County Sheriff’s Office notified Defendant that he was required to

register as a sex offender based on his out-of-state conviction. Defendant timely filed

a petition contesting the registration requirement.

¶3 On 2 February 2021, the trial court held a hearing on the petition. The State

argued 18 Pa. Cons. Stat. Ann. § 3122.1 was substantially similar to N.C. Gen. Stat.

§ 14-27.25(a). Defendant conceded 18 Pa. Cons. Stat. Ann. § 3122.1 was substantially

similar to subsection (b) of N.C. Gen. Stat. § 14-27.25, a non-reportable Class C felony,

but argued it was not substantially similar to subsection (a) of the same, a reportable

Class B1 felony. The trial court concluded 18 Pa. Cons. Stat. Ann. § 3122.1 was

substantially similar to N.C. Gen. Stat. § 14-27.25(a), a reportable offense, and

1 The Pennsylvania statute was amended in December 2011, with the amended version taking effect in February 2012. The record reveals the trial court conducted its substantial similarity analysis using the amended 2012 version of the Pennsylvania statute, whereas Defendant was convicted under the 1995 version. The 1995 version, which did not contain subsections, is quoted above. The 2012 version added a second category of defendants who could be convicted of a second-degree felony: one who is eight years older but less than eleven years older than the complainant. 18 PA. Cons. Stat. Ann. § 3122.1(a)(2) (amended 2012). The 2012 amendment also added a first-degree felony when a defendant is eleven or more years older than the complainant. 18 PA. Cons. Stat. Ann. § 3122.1(b) (2012). In short, the 2012 amendment expanded the Pennsylvania statute; however, it did not substantively alter the offense applicable to Defendant’s case, which explains why this apparent discrepancy was not challenged on appeal.

entered the Order requiring registration as a sex offender. On 9 February 2021,

Defendant filed timely, written notice of appeal.

II. Jurisdiction

¶4 Jurisdiction lies in this Court as a matter of right over a final judgment of the

superior court, pursuant to N.C. Gen. Stat. § 7A-27(b) (2021).

III. Issue

¶5 The sole issue on appeal is whether the trial court erred by determining the

Pennsylvania offense of second degree statutory sexual assault was substantially

similar to the reportable North Carolina offense of statutory rape of a person who is

fifteen years of age or younger, thereby requiring Defendant to register as a sex

offender upon his change of residency to North Carolina.

IV. Analysis

A. Standard of Review

¶6 The question of “whether the out-of-state conviction is substantially similar to

a North Carolina offense is a question of law involving comparison of the elements of

the out-of-state offense to those of the North Carolina offense.” State v. Fortney, 201

N.C. App. 662, 671, 687 S.E.2d 518, 525 (2010) (citation omitted). Questions of law

are reviewed by an appellate court de novo. Id. at 669, 687 S.E.2d at 524. The trial

court determines whether the statutes are substantially similar by “compar[ing] the

elements of the out-of-state . . . offense to those purportedly similar to a North

Carolina offense.” N.C. Gen. Stat. § 14-208.12B(c) (2021). The inquiry in a

comparison of the elements test is narrow; courts are limited to examining the

elements of each statute, without considering any underlying facts of the conviction

or legislative purpose. See State v. Sanders, 367 N.C. 716, 719–20, 766 S.E.2d 331,

334 (2014).

B. Substantial Similarity

¶7 Under North Carolina law, any person with a “reportable conviction” must

register with the sheriff of their county of residence. N.C. Gen. Stat. § 14-208.7(a)

(2021). A reportable conviction includes any conviction from another state “which if

committed in this State, is substantially similar to an offense against a minor or a

sexually violent offense . . . .” N.C. Gen. Stat. § 14-208.6(4)(b) (2021). At the hearing,

the State is required to prove by a preponderance of the evidence that the out-of-state

conviction is substantially similar to a reportable conviction in North Carolina. N.C.

Gen. Stat. § 14-208.12B(c). When performing the analysis, it is not a requirement

that the “statutory wording precisely match, but rather that the offense be

substantially similar[.]” State v. Graham, 379 N.C. 75, 2021-NCSC-125, ¶ 7 (internal

quotations omitted); see also N.C. Gen. Stat. § 14-208.6(4)(b).

Standing alone, neither word—“substantially” or “similar”—connotes literalness; therefore, when these words are combined to create the legal term of art “substantially similar,” this chosen phraseology reinforces the lack of a requirement for the statutory language in one

enactment to be the same as the statutory language in another enactment in order for the two laws to be treated as “substantially similar.”

Graham, 379 N.C. 75, 2021-NCSC-125, ¶ 12.

¶8 The version of the Pennsylvania statute in effect at the time of Defendant’s

conviction reads: “a person commits a felony of the second degree when that person

engages in sexual intercourse with a complainant under the age of 16 years and that

person is four or more years older than the complainant and the complainant and

person are not married to each other.” 18 Pa. Cons. Stat. Ann. § 3122.1 (West 1995).

The trial court determined this offense was substantially similar to the North

Carolina offense of “[s]tatutory rape of person who is 15 years of age or younger.”

N.C. Gen. Stat. § 14-27.25.

¶9 In order to compare the offenses contained in the two statutes, we examine

each element in turn. The 1995 version of the Pennsylvania statute results in a

second-degree felony when a defendant:

(1) Engages in sexual intercourse; (2) With a person under the age of 16; (3) The defendant is four or more years older; and (4) The person and defendant are not married to each other.

18 Pa. Cons. Stat. Ann. § 3122.1 (emphasis added). The elements of the North

Carolina offense of statutory rape requires proof the defendant:

(1) Engaged in vaginal intercourse; (2) With another person who is under the age of 16;

(3) And defendant is at least six years older than the complainant; and (4) Defendant was not lawfully married to complainant.

N.C. Gen. Stat. § 14-27.25(a) (emphasis added). Under North Carolina law, statutory

rape is classified as a sexually violent offense reportable under N.C. Gen. Stat. § 14-

208.6(4) and thus requiring registration. See N.C. Gen. Stat. § 14-208.6(5) (2021)

(listing all sexually violent offenses); see also N.C. Gen. Stat. § 14-27.25(a). Because

subsection (b) is not a reportable offense, the sole focus of our substantial similarity

analysis is subsection (a). See N.C. Gen. Stat. § 14-27.25.

¶ 10 Defendant asserts our Legislature has drawn a “line” between the two

categories of offenders: those required to register under subsection (a), and those not

required to register under subsection (b). See N.C. Gen. Stat. § 14-27.25. However,

in a “comparison of the elements test,” the legislative purpose of respective statutes

is not a consideration for the courts. See Sanders, 367 N.C. at 719–20, 766 S.E.2d at

333–34 (rejecting the State’s argument that the court should “look beyond the

elements of the offenses and consider . . . the legislative purpose of the respective

statutes” as the court may only consider the elements of the offenses); see also

Graham, 379 N.C. 75, 2021-NCSC-125, ¶ 14 (citing the Sanders Court’s narrow

elemental inquiry in a “comparison of the elements” test approvingly). Assuming

arguendo that the applicable Pennsylvania offense is substantially similar to N.C.

Gen. Stat. § 14-27.25(b), Defendant would not be required to register, and the point

is moot. The Order requiring Defendant’s registration indicates the trial court

determined the Pennsylvania offense was substantially similar to N.C. Gen. Stat. §

14-27.25(a), thus requiring Defendant to register as a sex offender in this State. See

N.C. Gen. Stat. § 14-208.7(a). Our inquiry is accordingly limited to whether a

comparison of the elements reveals the Pennsylvania offense is substantially similar

to N.C. Gen. Stat. § 14-27.25(a). We now turn to that question.

1. Type of Intercourse Required

¶ 11 The first distinction between the two statutes is the type of intercourse

required to commit the offense of statutory rape. The North Carolina statute uses

the term “vaginal intercourse,” whereas the Pennsylvania statute uses the more

expansive term “sexual intercourse.” See N.C. Gen. Stat. § 14-27.25(a); see also 18

Pa. Cons. Stat. Ann. § 3122.1. “Both statutes employ nearly identical language that

the act of physical intercourse is conducted by the perpetrator with another person

and that the other person is not the offender's spouse by virtue of a lawful marriage.”

See Graham, 379 N.C. 75, 2021-NCSC-125, ¶ 9 (comparing the definitions of “sexual

intercourse” in a Georgia statute and “vaginal intercourse” in N.C. Gen. Stat. § 14-

27.25). Accordingly, we conclude Pennsylvania’s “sexual intercourse” element is

substantially similar to North Carolina’s “vaginal intercourse” element.

2. Age Requirements for Offenders

¶ 12 Defendant maintains the Pennsylvania offense of statutory rape is not

substantially similar to the North Carolina offense because Pennsylvania requires a

defendant be at least four years older than complainant, and North Carolina requires

the defendant be at least six years older. See 18 Pa. Cons. Stat. Ann. § 3122.1(a); see

also N.C. Gen. Stat. § 14-208.7(a). To support his position, Defendant relies on two

cases where a court determined the out-of-state offense was not substantially similar

to a North Carolina offense. After careful review, we conclude each case is

distinguishable.

¶ 13 First, in Sanders, our Supreme Court determined the Tennessee offense of

“domestic assault” was not substantially similar to North Carolina’s offense of

“assault on a female” because the relevant statutes applied to different defendants

and different victims. 367 N.C at 721, 766 S.E.2d at 334. A person is guilty of

domestic assault in Tennessee when they commit an assault against a “domestic

abuse victim.” Id. at 719, 766 S.E.2d at 333. Whether someone is a “domestic abuse

victim” is determined by six categories, all of which require some sort of relationship

between the defendant and the victim, e.g., spouses, related by blood or adoption, or

dating partners. Id. at 720, 766 S.E.2d at 333–34. In North Carolina, a person

commits the offense of assault on a female when a male assailant, at least eighteen

years old, attacks a female. Id. at 719, 766 S.E.2d at 333. These statutes were not

substantially similar, as recognized by the Court, because a stranger could attack a

female in Tennessee and it would not be domestic assault, and a mother could strike

her child, husband, or another female in North Carolina and it would not be assault

on a female. See id. at 721, 766 S.E.2d at 334 (listing possible scenarios in which a

defendant could be convicted under the Tennessee statute but not the North Carolina

statute, and vice versa). As explained by the Graham Court during its analysis of the

statutory differences between its case and Sanders, there is a “meaningful difference”

between “1) a one-year difference in the age of early teenagers who are victims and

2) specified age difference delineations between victims and offenders in [Graham],

and 1) a total elimination of one gender from the ability to offend and 2) the

relationship status of victims and offenders in Sanders.” Graham, 379 N.C. 75, 2021-

NCSC-125, ¶ 15.

¶ 14 Second, Defendant’s reliance on State v. Bryant is misplaced—its reasoning

has been soundly rejected, if not implicitly overruled, by subsequent North Carolina

jurisprudence. 255 N.C. App. 93, 804 S.E.2d 563 (2017); see State v. Graham, 270

N.C. App. 478, 494–95, 841 S.E.2d 754, 767–68 (2020), aff’d. 379 N.C. 75, 2021-NCSC-

125. In Bryant, this Court held the South Carolina offense of criminal sexual conduct

with a minor was not substantially similar to North Carolina’s statutory rape of a

child by an adult because the age of the victims in each statute differed by two years.

255 N.C. App. at 99–100, 804 S.E.2d at 567–68. Bryant is an anomaly in our

jurisprudence—in most other cases in which our courts have found two statutes were

not substantially similar, one offense contained an element far more distinct than a

different age requirement. See Sanders, 367 N.C. at 719–21, 766 S.E.2d at 333–34;

State v. Hogan, 234 N.C. App 218, 230, 758 S.E.2d 465, 474 (2014) (holding the New

Jersey offense of third degree theft was not substantially similar to the North

Carolina offense of felony larceny because “there are many elements of third degree

theft not found in misdemeanor larceny” and some of the elements of the New Jersey

offense would make “the larceny a felony in North Carolina”); State v. Hanton, 175

N.C. App. 250, 259, 623 S.E.2d 600, 607 (2006) (holding New York’s second degree

assault offense was not substantially similar to North Carolina’s assault inflicting

serious injury because it lacked the “serious injury” requirement). Moreover, our

courts have also found substantial similarity between two offenses with greater

differences than an age requirement. See Fortney, 201 N.C. App. at 671, 687 S.E.2d

at 525 (holding Virginia’s possession of a firearm by a felon was substantially similar

to North Carolina’s analogous offense, even though the Virginia offense required

mens rea and the North Carolina offense only required the firearm be in the

defendant’s “possess[ion], custody, care, or control”).

¶ 15 The “aberrant nature of our holding in Bryant” has been recognized by this

Court. Graham, 270 N.C. App. at 495, 841 S.E.2d at 768, aff’d. 379 N.C. 75, 2021-

NCSC-125. Furthermore, our Supreme Court recently held in Graham that minor

deviations in an age requirement are insufficient to prevent two offenses from being

substantially similar. See Graham, 379 N.C. 75, 2021-NCSC-125, ¶ 11.

¶ 16 The instant case is nearly identical to Graham, which therefore controls our

analysis. See id. In Graham, our Supreme Court conducted a substantial similarity

analysis comparing N.C. Gen. Stat. § 14-27.5 and Georgia’s statutory rape provision.

Id., ¶¶ 4, 5. The Georgia statute applied to sexual intercourse with any person under

sixteen years of age, “unless the victim is fourteen or fifteen years of age and the

defendant is no more than three years older than the victim.” Id., ¶ 4 (citing Ga. Code

Ann. § 16-6-3 (2001)). The North Carolina offense, incidentally the same at issue

here, required the defendant be at least six years older. Id., ¶ 5 (citing N.C. Gen.

Stat. § 14-27.25 (2015)). The Court rejected the defendant’s argument that the

Georgia statutory rape offense and the North Carolina offense were not substantially

similar due to the different age requirements. Id., ¶ 10. The defendant contended

two statutes could not be substantially similar if one statute “render[ed] the other

state’s law narrower or broader” such that a person could be convicted of the same

crime in one state, but not the other. Id. In rejecting this argument, the majority

reasoned the defendant “conflate[d] the requirement that statutes subject to

comparison be substantially similar to one another with his erroneous perception that

the two statutes” must be identical. Id., ¶ 11. As a result, the Court held the Georgia

statutory rape statute was substantially similar to the North Carolina statutory rape

statute. Id.

¶ 17 Here, unlike in Sanders, the Pennsylvania offense of second-degree statutory

rape and the North Carolina offense both apply to victims who are under the age of

sixteen, and they both require physical intercourse of some kind. See Sanders, 367

N.C. at 719–20, 766 S.E.2d at 333–34. The two statutes implicate the same behavior

to the same victim. Akin to Graham, where a primary difference between the two

statutes was a one-year difference in the age of victims, the age differential between

victims and defendants required by the statutes sub judice varies by merely two

years. See Graham, 379 N.C. 75, 2021-NCSC-125, ¶ 10. Contrary to Defendant’s

argument, even though a defendant who is five years older than the victim could be

prosecuted in Pennsylvania but not North Carolina, that difference alone is

insufficient to render the two statutes substantially dissimilar. See id., ¶ 11; see also

State v. Riley, 253 N.C. App. 819, 827, 802 S.E.2d 494, 500 (“There may be other

hypothetical scenarios which highlight the more nuanced differences between the two

offenses. But the subtle distinctions do not override the almost inescapable conclusion

that both offenses criminalize essentially the same conduct[.]”) (emphasis added).

¶ 18 In relying on Sanders to support the proposition that the statutes are not

substantially similar due to different age requirements, Defendant conveniently

overlooks the reasoning in Graham that “substantially similar,” by definition,

requires something less than “identicalness.” See Graham, 379 N.C. 75, 2021-NCSC-

125, ¶ 12. The majority in Graham strongly emphasized the distinction between

“substantially similar” and “identicalness[,]” reasoning that requiring a “mirrored

reflection” between two statutes takes an “erroneously expansive approach” to the

analysis. Id. Our Supreme Court expressly declined to articulate a “bright line rule”

because such an analysis requires “flexibility” in comparing the elements of two

statutes. Id., ¶ 16. The majority of our Supreme Court rejected the dissent’s

approach, which it characterized as a “test of identicalness[,]” because “[t]here are so

many iterations of so many similar laws written in so many different ways . . . [and]

courts of this state must necessarily possess the ability to operate with flexibility” in

determining whether two laws are substantially similar. Id., ¶ 17 (emphasis added);

see also id., ¶ 32 (Earls J., dissenting) (arguing the “majority’s unwillingness to

articulate a clear legal rule . . . creates a significant risk of rendering [the statute]

unconstitutionally vague”).

¶ 19 Graham further differentiated cases such as here, where there is a two-year

age difference in defendants, from Sanders, where one statute eliminates one gender

from the list of potential offenders. Id., ¶ 15. Based on Graham, a two-year disparity

in the minimum age difference between victims and defendants is insufficient to

persuade us the Pennsylvania statute and the North Carolina statute are not

substantially similar. See id.

¶ 20 Finally, Defendant argues Graham limited its holding to sentencing purposes

only. We disagree. Although the narrow issue on appeal in Graham concerned the

calculation of sentencing points resulting from prior convictions, the majority

conducted a thorough substantial similarity analysis without including language

limiting its reasoning to sentencing purposes. See id., ¶¶ 12–14. Defendant notes

two Graham references to “sentencing purposes,” but these references explain the

lower court's actions rather than constituting substantive analysis. Id., ¶¶ 8, 11.

Furthermore, requiring registration as a sex offender and calculating prior record

points share a similar purpose of determining present consequences for prior bad

acts. We discern no logical basis to suggest “substantial similarity” would be defined

or applied differently in either context, hence our application of the sound legal

principles set forth in Graham.

¶ 21 Our conclusion that the Supreme Court’s reasoning in Graham controls is only

reinforced by the fact that the Court considered the same North Carolina statute at

issue here. We therefore hold the trial court did not err in concluding the two offenses

specified in the Pennsylvania and North Carolina statutes are substantially similar

despite a minor variation in minimum age difference between victim and defendant.

C. Rule of Lenity

¶ 22 Finally, Defendant asserts the rule of lenity should apply to interpret the

statute in his favor because the rule applies when there are “multiple North Carolina

offenses” that are substantially similar to the out-of-state offense. See Hanton, 175

N.C. App. at 259, 623 S.E.2d at 606. “The rule of lenity is a principle of statutory

interpretation that only applies when an appellate court is charged with interpreting

an ambiguous statute.” State v. Huckelba, 240 N.C. App. 544, 562, 771 S.E.2d 809,

823 (2015), rev’d on other grounds 268 N.C. 569, 780 S.E.2d 750; see also State v.

Heavner, 227 N.C. App. 139, 144, 741 S.E.2d 897, 901 (2013) (the rule of lenity only

applies when the relevant statute is ambiguous). The rule of lenity should not be

used when a statute “only has one plausible reading . . . .” Heavner, 227 N.C. App. at

144, 741 S.E.2d at 902 (brackets omitted). The rule of lenity is “reserved for cases

where, ‘after seizing everything from which aid can be derived, the Court is left with

an ambiguous statute.’” DePierre v. United States, 564 U.S. 70, 88, 131 S. Ct. 2225,

2237, 180 L. Ed. 2d 114, 129 (2011) (quoting Smith v. United States, 508 U.S. 223,

239, 113 S. Ct. 2050, 2059 124 L. Ed. 2d 138, 155 (1993)).

¶ 23 In State v. Hanton, the trial court examined a criminal statute which gave

either the State or the defendant the ability to prove an out-of-state offense was

substantially similar to a North Carolina offense by a preponderance; however, the

statute did not delineate how to determine which North Carolina offense was most

substantially similar to the out-of-state offense. 175 N.C. App. at 259, 623 S.E.2d at

606 (interpreting N.C. Gen. Stat. § 15A-1340.14 (2003)). The statute was therefore

ambiguous because multiple North Carolina statutes with similar elements could

have been used in the comparison. Id. at 259, 623 S.E.2d at 606. This Court reasoned

the rule of lenity applied in the defendant’s favor because of the ambiguity regarding

which criminal statute should apply. Id. at 259, 623 S.E.2d at 606.

¶ 24 Defendant’s reading of Hanton is overbroad. The ambiguity present in Hanton

is absent here because N.C. Gen. Stat. § 14-208.7(a) clearly and unambiguously

directs courts to the comparable statute. Under N.C. Gen. Stat. § 14-208.7(a), any

person with a “reportable conviction” must register with the sheriff of their county of

residence. N.C. Gen. Stat. § 14-208.7(a). A reportable conviction includes any

conviction from another state “which if committed in this State, is substantially

similar to an offense against a minor or a sexually violent offense . . . .” N.C. Gen.

Stat. § 14-208.6(b) (2021). Statutory rape of a person who is fifteen years or younger

is a sexually violent offense under N.C. Gen. Stat. § 14-208.6(5).

¶ 25 Moreover, N.C. Gen. Stat. § 14-27.25 itself is unambiguous. See DePierre, 564

U.S. at 88, 131 S. Ct. at 2237, 180 L. Ed. 2d at 129. We note our Supreme Court has

established a clear framework for comparing two statutes—first in Sanders, and

subsequently refined in Graham—where the Court analyzed the same statute at

issue in this case. See Sanders, 367 N.C. 716, 766 S.E.2d 331; see also Graham, 379

N.C. 75, 2021-NCSC-125, ¶¶ 4, 5 (comparing North Carolina’s statutory rape statute

with Georgia’s statutory rape statute). There is no ambiguity regarding which North

Carolina offense to analyze for substantial similarity, nor is there ambiguity present

in either statute. Our General Assembly and Supreme Court have provided more

than sufficient “aid” to reach the conclusion we do today. See DePierre, 564 U.S. at

88, 131 S. Ct. at 2237, 180 L. Ed. 2d at 129. Accordingly, we conclude the rule of

lenity is inapplicable to the instant case.

V. Conclusion

¶ 26 Based on the foregoing, we hold the Pennsylvania statutory sexual assault

statute and the North Carolina statutory rape statute are substantially similar for

purposes of registration as a sex offender under North Carolina law. Additionally,

the rule of lenity does not apply in Defendant’s favor. We therefore affirm the trial

court’s Order requiring Defendant to register as a sex offender in this State.

AFFIRMED.

Judges GORE and GRIFFIN concur.