Opinion
No. COA10-956
Filed 19 April 2011 This case not for publication
Appeal by defendant from judgment entered 7 December 2009 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 21 February 2011.
Roy Cooper, Attorney General, by Assistant Attorney General Joseph Finarelli, for the State. Castle Law Firm, by Paul Y. K. Castle, for defendant-appellant.
Pitt County No. 09 CVS 056817.
Defendant was indicted for six counts of taking indecent liberties with a child. On 7 December 2009, he entered pleas of guilty to three of the charges, pursuant to a plea arrangement. The trial court entered three separate judgments by which it sentenced defendant to three consecutive active terms of imprisonment for sixteen months minimum and twenty months maximum. In addition, the trial court made findings that defendant had not been classified as a sexually violent predator; is not a recidivist; that the offenses were aggravated offenses under N.C.G.S. § 14-208.6(1a); that the offenses involved the physical, mental, or sexual abuse of a minor; and that defendant required the highest level of supervision and monitoring. The trial court ordered that defendant register as a sex offender and, upon release from the Department of Corrections, that defendant be subjected to satellite-based monitoring ("SBM") for the remainder of his life pursuant to N.C.G.S. § 14-208.43. Defendant appeals.
Defendant's sole contention on appeal is that the trial court erred in ordering that he be registered as a sex offender for life and be enrolled in SBM for life. The State concedes error, and, for the following reasons, we agree.
Resolution of issues involving statutory construction is "ultimately a question of law for the courts," Brown v. Flowe, 349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998), which we therefore review de novo. See, Bruning Federle Mfg. Co. v. Mills, 185 N.C. App. 153, 156, 647 S.E.2d 672, 674, cert. denied, 362 N.C. 86, 655 S.E.2d 837 (2007). Thus, we review de novo the trial court's interpretation and application of the procedures required by N.C.G.S. § 14-208.40A for an order requiring lifetime SBM. See State v. Davison, ___ N.C. App. ___, ___, 689 S.E.2d 510, 513 (2009), disc. review denied, ___ N.C. ___, 703 S.E.2d 738 (2010).
In the present case, defendant's convictions were reportable under N.C.G.S. § 14-208.6(4)(a). See N.C. Gen. Stat. § 14-208.6(4)(a) (2009) (including in the category of "reportable convictions," "a final conviction for an offense against a minor"). When a defendant is convicted of a reportable offense, as defendant was in this case, N.C.G.S. § 14-208.40A requires the trial court, during the sentencing phase, hear evidence and
determine whether the offender's conviction places the offender in one of the categories described in G.S. 14-208.40(a), and if so, [the court] shall make a finding of fact of that determination, specifying whether (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.2A or G.S. 14-27.4A, or (v) the offense involved the physical, mental, or sexual abuse of a minor.
N.C. Gen. Stat. § 14-208.40A(b) (2009). The trial court determined that, having been convicted of indecent liberties with a minor, defendant's offense constituted "physical, mental, or sexual abuse of a minor." See State v. Cowan, ___ N.C. App. ___, ___, 700 S.E.2d 239, 246 (2010) ("[A]n act which rises to the level of a completed taking indecent liberties with a minor inevitably has `within or as part of itself the `physical, mental, or sexual abuse of a minor.'"). That finding alone, however, is not sufficient to support an order that defendant be subjected to lifetime SBM.
If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, that the offense is not an aggravated offense or a violation of G.S. 14-27.2A or G.S. 14-27.4A and the offender is not a recidivist, the court shall order that the Department do a risk assessment of the offender.
N.C. Gen. Stat. § 14-208.40A(d). No risk assessment was conducted in this case, nor did the trial court conduct a hearing on the other issues required by the statute.
The trial court appears to have based its order of lifetime SBM monitoring on its finding that defendant's crimes amounted to "an aggravated offense." See N.C. Gen. Stat. § 14-208.40A(c) ("If the court finds that the offender . . . has committed an aggravated offense, . . . the court shall order the offender to enroll in a satellite-based monitoring program for life.").
That finding is not supported by the record and is erroneous. Defendant was convicted of taking indecent liberties with a minor. N.C.G.S. § 14-202.1(a) defines that offense:
A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a) (2009); see also Davison, N.C. App. at ___, 689 S.E.2d at 516 (enumerating elements of the offense of indecent liberties with a minor).
N.C. Gen. Stat. § 14-208.6(1a), however, defines an "aggravated offense" as
any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.
N.C. Gen. Stat. § 14-208.6(1a). Comparing these definitions, it is clear that defendant's conviction for indecent liberties with a child is not an aggravated offense as defined by N.C.G.S. § 14-208.6(1a). See also Davison, ___N.C. App. at ___, 689 S.E.2d at 516. In determining whether the offenses for which defendant was convicted were "aggravated offenses," the trial court must consider only the elements of those offenses and not the underlying facts giving rise to the convictions. Id. at ___, 689 S.E.2d at 516-17. Accordingly, the trial court's determination that the offenses for which defendant was convicted were aggravated offenses, and its order that defendant was subject to lifetime SBM and sex offender registration, see N.C.G.S. § 14-208.23 ("A person . . . who is convicted of an aggravated offense . . . shall maintain [sex offender] registration for the person's life"), must be vacated. This matter is remanded with instructions that the trial court order a risk assessment, as required by N.C.G.S. § 14-208.40A(d) before making a determination as to defendant's SBM eligibility pursuant to the procedure set forth in N.C.G.S. § 14-208.40A.
Vacated and remanded.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).