State v. Fritsche

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-339

No. COA21-473

Filed 17 May 2022

Wake County, No. 20 CRS 2228

STATE OF NORTH CAROLINA

v.

LARRY FRITSCHE

Appeal by defendant from order entered 7 May 2021 by Judge Paul C.

Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 22

February 2022.

No brief filed on behalf of the State.

CarnesWarwick, by Amy Lynne Schmitz and Jonathan Carnes, for defendant-
appellant.

ZACHARY, Judge.

¶1 Defendant Larry Fritsche appeals from the trial court’s order denying his

petition to terminate his sex-offender registration. After careful review, we affirm.

Background

¶2 On 17 November 2000, Defendant pleaded guilty in Arapahoe County,

Colorado, district court to sexual exploitation of a child, in violation of Colo. Rev. Stat.

§ 18-6-403(3) (2000). The trial court suspended Defendant’s sentence and placed him

on probation. However, after Defendant violated the terms of his probation, the court
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revoked Defendant’s probation and activated his sentence. Defendant served eight

years in prison. Upon his release, Defendant registered with the Colorado Sex

Offender Registry on 26 August 2008, as required by Colorado law. See id. § 16-22-

103(1)(c).

¶3 In February 2020, Defendant moved from Colorado to Florida. On 21 February

2020, Defendant registered with the Florida Sex Offender Registry, as required by

Florida law. See Fla. Stat. § 943.0435 (2020).

¶4 Defendant then moved to North Carolina in October 2020 to be closer to his

two children. On 28 October 2020, he filed a petition pursuant to N.C. Gen. Stat. § 14-

208.12B (2020), requesting a judicial determination of his requirement to register in

North Carolina as a sex offender. After the matter came on for hearing in Wake

County Superior Court, the trial court entered an order on 9 April 2021 requiring

that Defendant register as a sex offender on the North Carolina Sex Offender

Registry. Defendant did so on the following business day, 12 April 2021.

¶5 On 14 April 2021, Defendant filed a petition pursuant to N.C. Gen. Stat. § 14-

208.12A (2021) for termination of his requirement to register as a sex offender. The

matter came on for hearing in Wake County Superior Court on 7 May 2021. The trial

court denied Defendant’s petition on the ground that Defendant did not satisfy all of

the conditions for early termination of his requirement to register as a sex offender,

in that he had not been registered as a sex offender for ten years in North Carolina,
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in accordance with this Court’s holding in In re Borden, 216 N.C. App. 579, 718 S.E.2d

683 (2011). The trial court entered its order on 7 May 2021, and Defendant timely

filed written notice of appeal.

Discussion

¶6 On appeal, Defendant argues that the trial court erred in denying his petition

to terminate his requirement to register as a sex offender because Borden was

incorrectly decided and should be overturned, or, in the alternative, because the

termination statute’s ten-year North Carolina registry requirement violates the

Equal Protection Clause.

I. Standard of Review

¶7 Whether to terminate a sex offender’s registration requirement is a matter left

to the trial court’s discretion. In re Hamilton, 220 N.C. App. 350, 359, 725 S.E.2d 393,

399 (2012); N.C. Gen. Stat. § 14-208.12A(a1). “[A]fter making findings of fact

supported by competent evidence on each issue raised in the petition, the trial court

is then free to employ its discretion in reaching its conclusion of law whether [the

defendant] is entitled to the relief he requests.” Hamilton, 220 N.C. App. at 359, 725

S.E.2d at 399. “A trial court abuses its discretion if its determination is manifestly

unsupported by reason and is so arbitrary that it could not have been the result of a

reasoned decision.” State v. Cummings, 361 N.C. 438, 447, 648 S.E.2d 788, 794 (2007)

(citations and internal quotation marks omitted), cert. denied, 552 U.S. 1319, 170 L.
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Ed. 2d 760 (2008).

¶8 However, “[c]onclusions of law drawn by the trial court from its findings of fact”

are reviewed de novo on appeal. State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290,

294 (2008) (citation omitted). Under de novo review, “the court considers the matter

anew and freely substitutes its own judgment for that of the lower tribunal.” Id. at

632–33, 669 S.E.2d at 294 (citation and internal quotation marks omitted).

¶9 “An appellate court reviews conclusions of law pertaining to a constitutional

matter de novo.” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010). “In

exercising de novo review, we presume that laws enacted by the General Assembly

are constitutional, and we will not declare a law invalid unless we determine that it

is unconstitutional beyond a reasonable doubt.” State v. Strudwick, 379 N.C. 94,

2021-NCSC-127, ¶ 12 (citation omitted). Furthermore, “[i]t is the burden of the

proponent of a finding of facial unconstitutionality to prove beyond a reasonable

doubt that an act of the General Assembly is unconstitutional in every sense.” Id.

II. Analysis

¶ 10 A sex offender who commits certain “reportable convictions” as defined by N.C.

Gen. Stat. § 14-208.6(4) is “required to maintain registration with the sheriff of the

county where the person resides.” N.C. Gen. Stat. § 14-208.7(a). This registration

requirement generally lasts “for a period of at least 30 years following the date of

initial county registration[.]” Id. However, “[t]en years from the date of initial county
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registration, a person required to register . . . 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[.]” Id. § 14-208.12A(a).

¶ 11 This Court addressed § 14-208.12A(a)’s requirement that a sex offender be

registered for at least ten years in the State of North Carolina in order to be eligible

for termination of the registration requirement in Borden. In Borden, after his

conviction in Kentucky of “Rape 1” or “Sexual Abuse 1st Degree,” the defendant was

ordered to register as a sex offender, which he did in 1995. 216 N.C. App. at 580, 718

S.E.2d at 684. When the defendant moved to North Carolina, he was also required to

register as a sex offender, which he did. Id. In 2010, the defendant received notice

that he was “no longer required to register as a sex offender with the Kentucky Sex

Offender Registry[.]” Id. The defendant thereafter petitioned for termination of his

requirement to register as a sex offender in North Carolina, alleging that he was

eligible for early termination because he had been registered as a sex offender for

more than ten years as required by § 14-208.12A(a). Id.

¶ 12 However, this Court interpreted the statutory phrase “[t]en years from the

date of initial county registration” as limiting eligibility for removal from the North

Carolina sex-offender registry to offenders who have been registered for at least ten

years from their initial date of registration in a North Carolina county, rather than
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ten years from the offender’s initial date of registration in any jurisdiction. Id. at 583,

718 S.E.2d at 686.

¶ 13 The Court reasoned that allowing removal of offenders from the sex-offender

registry after less than ten years of registration in this state would “contradict[ ] the

intent of the statute to protect the public, maintain public safety, and assist law

enforcement agencies and the public in knowing the whereabouts of sex offenders.”

Id. Thus, although the Borden defendant had been registered as a sex offender in his

various states of residence for more than ten years altogether, he was nevertheless

ineligible to terminate his sex-offender registration in North Carolina because he had

not been registered on the North Carolina Sex Offender Registry for at least ten

years. Id. at 583–84, 718 S.E.2d at 686–87.

¶ 14 In sum, § 14-208.12A(a) requires ten years of registration in North Carolina,

and “the amount of time a petitioner has been registered in another state is

irrelevant.” In re Bunch, 227 N.C. App. 258, 262, 742 S.E.2d 596, 599–600, disc.

review denied, 367 N.C. 224, 747 S.E.2d 541 (2013).

¶ 15 The facts of the case at bar are strikingly similar to those presented in Borden.

In 2000, Defendant pleaded guilty to a sex offense that was the Colorado equivalent

of a “reportable conviction” as defined by statute. See Colo. Rev. Stat. § 18-6-403(3);

N.C. Gen. Stat. § 14-208.6(4)(b). Defendant initially registered as a sex offender in

Colorado in 2008, over ten years prior to petitioning for termination of his sex-
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offender registration. However, he initially registered as a sex offender in North

Carolina in 2021, less than a year prior to petitioning for termination of his sex-

offender registration. Section 14-208.12A(a) limits the eligibility for termination of

sex-offender registration to those who have been registered for at least ten years from

the initial date of registration in a North Carolina county. See Borden, 216 N.C. App.

at 583, 718 S.E.2d at 686. Therefore, because Defendant does not satisfy the statute’s

requisite period of registration, he is ineligible for termination from the sex-offender

registry at this juncture.

¶ 16 In light of this outcome, Defendant requests that we overturn Borden.

However, we are bound by our Court’s decision in that case unless and until a higher

court overturns it. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)

(“Where a panel of the Court of Appeals has decided the same issue, albeit in a

different case, a subsequent panel of the same court is bound by that precedent,

unless it has been overturned by a higher court.”).

¶ 17 Defendant next asserts that N.C. Gen. Stat. § 14-208.12A(a)’s ten-year North

Carolina registry requirement violates the Equal Protection Clauses of the North

Carolina and United States Constitutions, in that the statute “treats defendants with

initial out-of-state registrations differently from defendants with initial in-state

registrations.” Defendant further contends that this provision “is not rationally
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related to public safety[,]” which is the primary purpose underlying the sex-offender

registry. See N.C. Gen. Stat. § 14-208.5. Again, we disagree.

¶ 18 Defendant asserted this equal-protection challenge below; when denying

Defendant’s petition, the trial court acknowledged Defendant’s constitutional

challenge and noted that Defendant had “preserved that argument by making it” at

the hearing. Accordingly, as a preliminary matter, we examine the trial court’s

jurisdiction to rule on Defendant’s constitutional challenge to N.C. Gen. Stat. § 14-

208.12A(a)’s ten-year in-state registration requirement.

¶ 19 Section 1-267.1(a1) of our General Statutes provides that, with limited

exceptions not relevant here, “any facial challenge to the validity of an act of the

General Assembly shall be transferred . . . to the Superior Court of Wake County and

shall be heard and determined by a three-judge panel of the Superior Court of Wake

County[.]” Id. § 1-267.1(a1). Section 1-267.1 applies only in civil actions. Id. § 1-

267.1(d).

¶ 20 Nevertheless, this Court has previously determined that the three-judge panel

provisions are not applicable where a defendant raises a facial constitutional

challenge to the validity of the satellite-based monitoring statutory regime, which is

a civil matter but often arises during criminal sentencing. See State v.

Stroessenreuther, 250 N.C. App. 772, 774 n.1, 793 S.E.2d 734, 736 n.1 (2016) (“Section

1-267.1(a1) . . . permit[s] a criminal defendant to assert [a facial] constitutional
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challenge before a single trial judge during sentencing without having to transfer the

issue to a three-judge panel.”).

¶ 21 Like satellite-based monitoring, our sex-offender registration statutes exist

along that indistinct boundary between criminal and civil actions. See, e.g., Bowditch,

364 N.C. at 352, 700 S.E.2d at 13; State v. Abshire, 363 N.C. 322, 330, 677 S.E.2d 444,

450 (2009); State v. White, 162 N.C. App. 183, 195, 590 S.E.2d 448, 456 (2004).

Because § 14-208.12A(a) belongs to the same overarching sex-offender regulatory

scheme as satellite-based monitoring, see N.C. Gen. Stat. § 14-208.5 et seq.; Bowditch,

364 N.C. at 337, 700 S.E.2d at 3, it follows, then, that facial challenges to § 14-

208.12A(a) should be addressed in the same manner as facial challenges to satellite-

based monitoring. Thus, we conclude that § 1-267.1(d) did not bar the trial court in

the instant case from hearing Defendant’s facial challenge to § 14-208.12A(a) without

transferring the issue to a three-judge panel.

¶ 22 The Equal Protection Clauses of the United States and North Carolina

Constitutions “forbid North Carolina from denying any person the equal protection

of the laws, and require that all persons similarly situated be treated alike.” State v.

Fowler, 197 N.C. App. 1, 26, 676 S.E.2d 523, 543–44 (2009) (citations and internal

quotation marks omitted), appeal dismissed and disc. review denied, 364 N.C. 129,

696 S.E.2d 695 (2010); see U.S. Const. amend. XIV, § 1 (“No State shall . . . deny to
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any person within its jurisdiction the equal protection of the laws.”); N.C. Const. art.

I, § 19 (“No person shall be denied the equal protection of the laws . . . .”).

¶ 23 The analysis of an equal-protection challenge is two-pronged:

Our state courts use the same test as federal courts in
evaluating the constitutionality of challenged
classifications under an equal protection analysis. When
evaluating a challenged classification, the court must first
determine which of several tiers of scrutiny should be
utilized. Then it must determine whether the statute meets
the relevant standard of review.

Fowler, 197 N.C. App. at 26, 676 S.E.2d at 544 (citations and internal quotation

marks omitted).

¶ 24 Although the Equal Protection Clause “require[s] that all persons similarly

situated be treated alike[,]” id. (citation and internal quotation marks omitted), it

“do[es] not require perfection in respect of classifications. In borderline cases, the

legislative determination is entitled to great weight[,]” State v. Greenwood, 280 N.C.

651, 658, 187 S.E.2d 8, 13 (1972); see also Parham v. Hughes, 441 U.S. 347, 351, 60

L. Ed. 2d 269, 274 (1979) (“State laws are generally entitled to a presumption of

validity against attack under the Equal Protection Clause.”). The Clause “impose[s]

upon law-making bodies the requirement that any legislative classification be based

on differences that are reasonably related to the purposes of the Act in which it is

found.” Greenwood, 280 N.C. at 656, 187 S.E.2d at 11 (citation and internal quotation

marks omitted). “In the absence of a classification that is inherently invidious or that
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impinges upon fundamental rights, a state statute is to be upheld against equal

protection attack if it is rationally related to the achievement of legitimate

governmental ends.” G. D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 71 L. Ed. 2d 250,

256 (1982).

¶ 25 The classification of which Defendant complains—that is, an individual’s

residency at the time of his initial registration as a sex offender—is not inherently

suspect; thus, we apply rational-basis review to determine whether the legislation

violates the Equal Protection Clause. See, e.g., State v. Harris, 242 N.C. App. 162,

166, 775 S.E.2d 31, 35 (2015); White v. Pate, 308 N.C. 759, 766, 304 S.E.2d 199, 204

(1983) (“When a governmental classification does not burden the exercise of a

fundamental right or operate to the peculiar disadvantage of a suspect class, the

lower tier of equal protection analysis requiring that the classification be made upon

a rational basis must be applied.”). Under rational-basis review, the validity of any

challenged law “depends upon its reasonable relation to the accomplishment of the

State’s legitimate objective[.]” Greenwood, 280 N.C. at 656, 187 S.E.2d at 12 (citation

and internal quotation marks omitted).

¶ 26 The requirement that a defendant be registered in North Carolina as a sex

offender for at least ten years in order to be eligible for early termination of sex-

offender registration is rationally related to the State’s legitimate interests in

maintaining public safety and protection. As our Supreme Court has explained: “The
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North Carolina Sex Offender and Public Protection Registration Program is a public

safety measure specifically designed to assist law enforcement agencies’ efforts to

protect communities.” State v. Bryant, 359 N.C. 554, 560, 614 S.E.2d 479, 483 (2005)

(citation and internal quotation marks omitted); N.C. Gen. Stat. § 14-208.5. “[T]he

twin aims of the North Carolina Sex Offender and Public Protection Registration

Program[ are] public safety and protection[.]” Bryant, 359 N.C. at 560, 614 S.E.2d at

483. Additionally, maintaining public safety is a well-established legitimate state

interest. See, e.g., id.; State v. Vestal, 281 N.C. 517, 522, 189 S.E.2d 152, 156 (1972);

State v. Ballance, 229 N.C. 764, 769–70, 51 S.E.2d 731, 735 (1949). And as this Court

has concluded, allowing offenders “to be removed from the sex offender registry

without being on the registry for at least ten years in North Carolina contradicts the

intent of the statutes to protect the public, maintain public safety, and assist law

enforcement agencies and the public in knowing the whereabouts of sex offenders.”

Borden, 216 N.C. App. at 583, 718 S.E.2d at 686.

¶ 27 Moreover, in the instant case, Defendant was treated the same as all other

registered sex offenders who initially enrolled in another jurisdiction’s sex-offender

registry based upon an out-of-state conviction. That Defendant, as a sex offender who

initially registered in another state, is negatively impacted by an otherwise neutral

law does not, alone, render N.C. Gen. Stat. § 14-208.12A(a) invalid. See Parham, 441
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U.S. at 351, 60 L. Ed. 2d at 274 (“Legislatures have wide discretion in passing laws

that have the inevitable effect of treating some people differently from others . . . .”).

¶ 28 Thus, N.C. Gen. Stat. § 14-208.12A(a)’s ten-year North Carolina registry

requirement does not violate the Equal Protection Clauses of the United States and

North Carolina Constitutions. Defendant’s contention to the contrary is unavailing.

Conclusion

¶ 29 Accordingly, we affirm the trial court’s order denying Defendant’s petition for

termination of his requirement to register as a sex offender on the North Carolina

Sex Offender Registry.

AFFIRMED.

Judges INMAN and GORE concur.