State v. Goldberg

• Court: Court of Appeals of North Carolina
• Decided: September 17, 2024
• Docket: 23-1015
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 23-1015

Filed 17 September 2024

Mecklenburg County, No. 23 CRS 8251

IN THE MATTER OF: DAVID ROBERT GOLDBERG

Appeal by Petitioner from Order entered 6 July 2023 by Judge Michael A.

Stone in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 May

2024.

Paul M. Dubbeling for Petitioner-Appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph Finarelli, for the State.

HAMPSON, Judge.

Factual and Procedural Background

David Robert Goldberg (Petitioner) appeals from an Order dismissing his

Petition for Termination of Sex Offender Registration based on improper venue

pursuant to N.C. Gen. Stat. § 14-208.12A (2023). The Record before us tends to reflect

the following:

In 2003, Petitioner was convicted of Possession of Child Pornography in the

United States District Court for the District of South Carolina. Upon his conviction,

Petitioner registered as a sex offender in South Carolina.

In 2005, Petitioner moved to Mecklenburg County and, as required by law, IN RE: GOLDBERG

Opinion of the Court

registered as a sex offender with the Sheriff of Mecklenburg County. He later moved

to Florida. In November 2022, he successfully petitioned for removal from the South

Carolina sex offender registry.

On 23 June 2022, Petitioner filed a Petition for Termination of Sex Offender

Registration in Mecklenburg County, where he last resided in North Carolina. At the

hearing, the State argued that the trial court did not have jurisdiction under N.C.

Gen. Stat. § 14-208.12A to hear the Petition. The State posited there was no

jurisdiction because Section 14-208.12A requires a petitioner convicted of an out-of-

state or federal offense to file the petition “in the district where the person resides”

and Petitioner resided in Florida, not in Mecklenburg County.

Petitioner argued that dismissal was improper because the provisions of

Section 14-208.12A directing where petitions should be filed establish venue rather

than determining jurisdiction. Petitioner further argued venue was proper in

Mecklenburg County under the general venue provisions of N.C. Gen. Stat. § 1-82.

Petitioner also contended if there was no venue or jurisdiction in Mecklenburg County

where he was registered—and, thus, nowhere in North Carolina—this raised

constitutional issues under the Privileges and Immunities Clause and Equal

Protection Clause of the United States Constitution.

The trial court interpreted the statute as establishing venue but ruled that

Mecklenburg County was an improper venue and dismissed the Petition. On 6 July

2023, the trial court entered its written Order dismissing the Petition. On 26 July

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2023, Petitioner timely filed written notice of appeal.

Issue

The dispositive issue is whether N.C. Gen. Stat. § 14-208.12A allows persons

whose underlying conviction occurred outside of North Carolina and who no longer

reside in the state to petition for removal from the North Carolina Sex Offender

Registry in the district where they previously resided and registered as a sex offender

in North Carolina.

Analysis

The North Carolina Sex Offender and Public Protection Registration Program is

governed by Part 2 of Article 27A in Chapter 14 of the North Carolina General

Statutes. By its terms it requires:

(a) 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. If the person moves to North Carolina from outside this State, the person shall register within three business days of establishing residence in this State, or whenever the person has been present in the State for 15 days, whichever comes first. If the person is a current resident of North Carolina, the person shall register:

(1) Within three business days of release from a penal institution or arrival in a county to live outside a penal institution; or

(2) Immediately upon conviction for a reportable offense where an active term of imprisonment was not imposed.

Registration shall be maintained for a period of at least 30 years following the date of initial county registration

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unless the person, after 10 years of registration, successfully petitions the superior court to shorten his or her registration time period under G.S. 14-208.12A.

N.C. Gen. Stat. § 14-208.7

Under N.C. Gen. Stat. § 14-208.12A, persons required to register as a sex

offender may, ten years after their initial registration, petition in Superior Court to

terminate their registration requirements. The statute directs where this petition

should be filed:

If the reportable conviction is for an offense that occurred in North Carolina, the petition shall be filed in the district where the person was convicted of the offense.

If the reportable conviction is for an offense that occurred in another state, the petition shall be filed in the district where the person resides. . . . Regardless of where the offense occurred, if the defendant was convicted of a reportable offense in any federal court, the conviction will be treated as an out-of-state offense for the purposes of this section.

N.C. Gen. Stat. § 14-208.12A(a). The statute thus expressly assigns the proper district

for filing a petition for (1) those with in-state convictions (the district of conviction)

and (2) those with out-of-state convictions who reside in North Carolina (their district

of residence).

As an initial matter, in this case, the State contends the trial court properly

dismissed the Petition. However, the State posits the trial court should have

grounded its decision in a lack of jurisdiction rather than venue. The State rests its

argument on our decision in In re Dunn, 225 N.C. App. 43, 738 S.E.2d 198 (2013).

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In that case, the petitioner appealed the trial court’s denial of his petition to

terminate his sex offender registration. 225 N.C. App. 43, 44, 738 S.E.2d 198, 198

(2013). The petitioner’s registration requirement stemmed from a North Carolina

offense. Id. Accordingly, Section 14-208.12A(a) required that he file his petition in the

district where he was convicted of the offense. The petitioner was convicted of the

underlying sex offense in Montgomery County but filed his petition in Cumberland

County. Id. We declined to reach the merits of the petitioner’s argument, instead

holding that under Section 14-208.12A the trial court did not have jurisdiction to hear

the petition because it had not been filed in the county in which the petitioner had

been convicted. Id. at 45, 738 S.E.2d at 199. Accordingly, we dismissed the appeal

and vacated the trial court’s order as null and void for lack of jurisdiction. Id.

The State contends that Dunn, because it describes Section 14-208.12A(a) as

jurisdictional in nature, requires we hold the trial court in this case likewise did not

have jurisdiction to hear Petitioner’s Petition. Dunn is, however, inapposite. Dunn

does not address registrants with out-of-state convictions and, unlike in this case,

addresses a petition filed in the incorrect forum when the correct forum was expressly

provided by the statute.

Petitioner’s conviction, unlike that in Dunn, occurred outside of North

Carolina. The statute mandates that his petition be filed “in the district where [he]

resides.” N.C. Gen. Stat. § 14-208.12A(a). The State encourages us to read this

provision narrowly, such that it only establishes jurisdiction in a district so long as

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the person remains a physical resident of that district. Unlike in Dunn, where the

statute mandated the petition be filed in Montgomery County but it was mistakenly

filed in Cumberland, the State argues that filing the Petition in Mecklenburg was

improper because there is no district in which it can be properly filed. This reading

would leave any registrant with an out-of-state conviction who moves to another state

unable to petition for removal from the registry after the ten-year period.

The goal of statutory interpretation is to determine the meaning that the

legislature intended upon the statute’s enactment. State v. Beck, 359 N.C. 611, 614,

614 S.E.2d 274, 276-77 (2005). In determining this intent, we look first to the plain

language of the statute, then to the legislative history, the spirit of the act, and what

the act seeks to accomplish. State v. Langley, 371 N.C. 389, 395, 817 S.E.2d 191, 196

(2018). If a literal interpretation of a word or phrase’s plain meaning would lead to

“absurd results, or contravene the manifest purpose of the Legislature, as otherwise

expressed, the reason and purpose of the law shall control.” Beck, 359 N.C. at 614,

614 S.E.2d at 277.

The better reading of this statute is to interpret it as a whole with the rest of

Article 27A, which establishes the North Carolina Sex Offender Registry and sets

registration requirements. “Parts of the same statute dealing with the same subject

matter must be considered and interpreted as a whole.” State ex rel. Comm’r of Ins.

V. N.C. Auto. Rate Admin. Office, 294 N.C. 60, 66, 241 S.E.2d 324, 328 (1978). Any

North Carolina resident with a reportable conviction is required to register with the

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Sheriff “of the county where the person resides.” N.C. Gen. Stat. § 14-208.7. When a

person required to maintain registration moves to a new county, they are required to

report to both the Sheriff of the current county of residence and also the Sheriff of the

new county of residence. See N.C. Gen. Stat. § 14-208.9(a). The Sheriff then reports

the change of address or county to the North Carolina Department of Public Safety

who, in turn, informs the new Sheriff of the change of address. Id. In that case,

logically, a person with a reportable out-of-state conviction would appropriately file a

petition for removal from the registry under section 14-208.12 in the judicial district

containing the new county of residence.

Likewise, if the person intends to move out of state, the person is required to

notify the Sheriff of the county of current residence. See N.C. Gen. Stat. § 14-208.9(b)

(2023). The Sheriff notifies the Department of Public Safety, who notifies the

appropriate state official in the new state of residence. See N.C. Gen. Stat. § 14-

208.9(b)(2) (2023). However, there does not appear to be any mechanism—other than

that provided by Section 14-208.12—for removal from the North Carolina Sex

Offender Registry for former North Carolina residents with out-of-state reportable

convictions who relocate out of the state.

Simply stated, any person who takes residency in North Carolina with a

reportable conviction is required to maintain registration with the Sheriff “in the

county where the person resides.” N.C. Gen. Stat. § 14-208.7(a). In turn, Section 14-

208.12a requires a person seeking removal from the registry to file in one of two

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venues: if the person has a reportable North Carolina conviction, that person must

file in the judicial district where the conviction occurred. See Dunn, 225 N.C. App.

At 45, 738 S.E.2d at 199. If the person has a reportable out-of-state or federal

conviction, that person must file in the judicial district in which they reside and thus

were required to register in North Carolina. N.C. Gen. Stat. § 14-208.12A(a).

Here, to comply with the statutory North Carolina Sex Offender Registry

reporting requirements, Petitioner was required to maintain registration in

Mecklenburg County—where he resided in North Carolina. There is no indication on

this Record that Petitioner relocated his residence elsewhere in North Carolina or

became a resident of any other North Carolina county such that he was required to

register in a different North Carolina county. As such, for purposes of the North

Carolina Sex Offender Registry, Petitioner’s residency in North Carolina remains in

Mecklenburg County.

Thus, Petitioner—with an out-of-state reportable conviction1—filed the

Petition in Mecklenburg County Superior Court: the district of his residence in North

Carolina and the county in which he was registered with the Sheriff consistent with

N.C. Gen. Stat. §§ 14-208.7 and 14-208.12A. Therefore, venue was proper in that

judicial district and the Mecklenburg County Superior Court had jurisdiction to hear

1 For persons with a North Carolina reportable conviction, presumably venue and jurisdiction

will always lie in the judicial district where the conviction occurred irrespective of residency. Dunn, 225 N.C. App. At 45, 738 S.E.2d at 199; N.C. Gen. Stat. § 14-208.12A(a).

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the Petition.2 Consequently, the trial court erred in dismissing the Petition for

improper venue.3

Conclusion

Accordingly, for the foregoing reasons, we reverse the trial court’s Order

dismissing the Petition and remand this matter to the trial court for further

proceedings on the Petition. We express no opinion on the merits of the Petition.

REVERSED AND REMANDED.

Judges WOOD and STADING concur.

2 Based on our resolution of this matter on statutory grounds we need not address the constitutional implications of Petitioner’s argument. 3 We also do not address the State’s alternative argument that the petition should have been

dismissed based on Petitioner’s failure to include with his petition an affidavit verifying that he has provided notice of the petition to the sheriff of the county where he was originally convicted, as required by N.C. Gen. Stat. § 14-208.12A(a). This issue was not raised before the trial court and thus has not been preserved for our review. N.C. R. App. P., Rule 10.

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