A sex offender’s child sex crimes conviction could be tossed. The reason: a clerical error.
NEW HANOVER COUNTY, NC (WECT) - A state court of appeals has ordered a registered sex offender’s conviction on child sex crimes be tossed due to a clerical error made in the nearly 15-year-old case.
Cornelius Edward Nixon III pleaded guilty in New Hanover County Superior Court on March 2, 2006 to indecent liberties with a child and contributing to the delinquency of a minor. A judge sentenced him to a minimum of 19 months and a maximum of 23 months in prison.
His conviction landed him on the state’s sex offender registry, where he is currently listed as a recidivist and required to remain on for the rest of his life.
But the appeals court’s ruling could change that requirement.
Though he admitted guilt in the case, in November 2017 Nixon requested that judgment be vacated in a “motion for appropriate relief,” in which he argued the lower court lacked jurisdiction to accept his plea because of missing paperwork.
Nixon was originally indicted on July 26, 2004 for committing a crime against nature, according to the appeals court’s ruling, which was released on Tuesday. A bill of information, filed sometime after his indictment and before his guilty plea, additionally charged him with indecent liberties with a child and contributing to the delinquency of a minor.
As a result of the plea agreement, prosecutors agreed to dismiss the crime against nature charge against Nixon.
At issue now: was the lower court legally able to accept that plea without an official “waiver of indictment,” which, according to the ruling, did not happen.
In felony criminal cases, indictments serve as the mechanism to formally accuse a person of a crime. The court does not have jurisdiction over a case without an indictment. However, defendants can choose to waive indictment, thereby giving a court jurisdiction over the case. State law requires this waiver be in writing and signed by the defendant and his or her attorney.
No such document exists in Nixon’s case, according to the ruling. When considering his motion to vacate the judgement against him in a December 2017 hearing, a lower court concluded that because Nixon signed the bill of information acknowledging the charges against him, that served as his waiver of his right to an indictment.
But in its review, the three-judge appeals panel determined the case mirrored prior rulings in that the lower court does not have jurisdiction over a case without a formal written waiver.
“The absence, in this case, of a formal waiver signed by both Defendant and his counsel on or attached to the Bill of Information meeting the statutory requirements of N.C. Gen. Stat. § 15A-642(c) deprived the trial court of jurisdiction to accept Defendant’s guilty plea and enter the original Judgment,” Judge Toby Hampson wrote in the ruling.
Additionally, the appeals court found the initial indictment on the crime against nature charge, which was “erroneously” kept on the initial judgment despite the plea dismissing the charge, did not give the lower court jurisdiction over the indecent liberties and contributing to the delinquency of a minor charges as neither are considered a “lesser offense” of crime against nature.
“Accordingly, we reverse the portion of the trial court’s 4 December 2017 Order denying Defendant’s MAR (motion for appropriate relief). We remand this matter to the trial court, with instructions to grant the MAR, and to vacate the 2 March 2006 Judgement against Defendant,” the appeals court’s ruling stated.
Technically, the appeals court’s decision is not final. The state could ask the Supreme Court of North Carolina to review the appeals court’s decision. If the Supreme Court upheld the appeals court’s ruling, the state could decide to retry the case. The state also could retry the case should it accept the appeals court’s ruling and forego the Supreme Court review.
No decision had been made as of Tuesday afternoon, according to a spokesperson for the New Hanover County District Attorney’s Office.
“At this time we are communicating with his defense attorney and evaluating our ability to proceed with the prosecution,” the spokesperson said in an email.
So, what does this mean for Nixon’s status as a registered sex offender?
Should his conviction ultimately be vacated, any associated stipulations relating to the sex offender registry would presumably be tossed out as well.
“At this time, we’re waiting for the decision to become final before speculating what this will mean for the registry,” Nixon’s attorney, Jillian Katz, said.
Nixon’s prior conviction on a charge of attempted kidnapping of a minor, which is also listed on the sex offender registry, appears to have been vacated as well, according to N.C. Department of Corrections records. Additional information about that case was not immediately available.
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