Opinion
No. COA12–34.
2012-06-5
STATE of North Carolina v. Frank John SPECIALE, Jr.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State. James W. Carter, for defendant appellant.
Appeal by defendant from order entered 18 May 2011 by Judge John E. Nobles, Jr., in Craven County Superior Court. Heard in the Court of Appeals 23 April 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State. James W. Carter, for defendant appellant.
McCULLOUGH, Judge.
Following his release from imprisonment for his conviction for indecent liberties with a child, Frank John Speciale, Jr. (“defendant”) was ordered to enroll in satellite-based monitoring (“SBM”) for a period of thirty months, beginning 11 May 2011. Defendant timely filed written notice of appeal to this Court challenging the trial court's SBM order on a number of grounds, including lack of subject matter jurisdiction, failure to give adequate and proper notice, failure to conduct a risk assessment, and violation of his constitutional rights to be free from double jeopardy and cruel and unusual punishment. Because the trial court failed to follow the requisite statutory procedures in conducting defendant's SBM hearing, we vacate and remand.
I. Procedural Background
On 24 September 2008, defendant pled guilty to one count of taking indecent liberties with a child in violation of N.C. Gen.Stat. § 14–202.1 (2011). The trial court sentenced defendant to a split sentence with a six-month active term of incarceration followed by a term of nineteen to twenty-three months' imprisonment, suspended for forty-eight months of supervised probation. In addition, after finding that the offense for which defendant was convicted involved the physical, mental, or sexual abuse of a minor, the trial court found defendant met the requirements of SBM enrollment and ordered defendant to enroll in SBM for forty-eight months following his initial release from imprisonment, while serving his term of probation. Specifically, the trial court's SBM order indicates that defendant
falls into one of the categories requiring [SBM] under G.S. 14–208.40 in that the offense of which the defendant was convicted involved the physical, mental, or sexual abuse of a minor, that offense was not an aggravated offense, the defendant is not a recidivist, the Department of Correction has conducted a risk assessment of the defendant, and based on that assessment, the defendant requires the highest possible level of supervision and monitoring.
However, no risk assessment was performed by the Department of Correction (“DOC”) prior to entry of the trial court's final written judgment with respect to defendant's SBM enrollment.
On 15 October 2008, prior to his release from prison, the State brought defendant's case back before the trial court. Without any participation or appearance by defendant or his trial counsel, the State informed the trial court that defendant could not be enrolled in SBM according to the original 24 September 2008 judgment because defendant must first be assessed by DOC to determine if he falls within one of the categories for high risk. The State requested the trial court to correct the judgment and order that defendant be assessed for SBM, “and then, if he falls within the categories for high risk, that he be put on [SBM].” Accordingly, the trial court entered a modified judgment to correct the “technical error” and ordered that defendant be assessed for SBM eligibility. Having served his initial six-month active term of incarceration, defendant was released on 27 November 2008 to begin his term of probation. At that time, defendant still had not been assessed by DOC for SBM eligibility.
On 30 January 2009, a probation violation report was filed, and on 7 April 2009, defendant admitted to violating the terms of his probation. Accordingly, the trial court activated defendant's suspended sentence of nineteen to twenty-three months' imprisonment. Defendant served this term of incarceration, and at the time of his subsequent release, he again had not been assessed by DOC for SBM eligibility.
On 11 March 2011, the Clerk of Superior Court of Craven County sent defendant a letter informing him that his “case” was “being rescheduled” on 21 March 2011. On 21 March 2011, defendant was appointed counsel and the matter was again rescheduled for 18 May 2011. On 18 May 2011, the State moved the trial court to order defendant to comply with the original 24 September 2008 SBM order by enrolling in SBM for forty-eight months. Without addressing the lack of assessment of defendant by DOC, the trial court ordered defendant to enroll in SBM for a period of thirty months. On 20 May 2011, defendant timely filed written notice of appeal from the SBM order to this Court.
II. Defective Notice and Lack of Risk Assessment
We first address the statutory procedural defects raised by defendant regarding the SBM hearing conducted on 18 May 2011. First, defendant contends that his procedural due process rights were violated because he received inadequate notice of the basis for his SBM eligibility prior to the 18 May 2011 SBM hearing. The State concedes that in light of the requirements of N.C. Gen.Stat. § 14–208.40B (2011) and this Court's opinion in State v. Stines, 200 N.C.App. 193, 683 S.E.2d 411 (2009), defendant's argument has merit. In addition, defendant argues and the State concedes the trial court committed reversible error in failing to direct DOC to perform a risk assessment and in failing to consider such an assessment before requiring defendant to enroll in SBM. We agree.
N.C. Gen.Stat. § 14–208.40A (2011) sets out the procedures to be employed “during the sentencing phase” in determining whether an offender is required to enroll in SBM. Id.; see also State v. Jarvis, ––– N.C.App. ––––, ––––, 715 S.E.2d 252, 256 (2011). Pursuant to this section:
(d) 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 [DOC] do a risk assessment of the offender. The [DOC] shall have a minimum of 30 days, but not more than 60 days, to complete the risk assessment of the offender and report the results to the court.
(e) Upon receipt of a risk assessment from the [DOC] pursuant to subsection (d) of this section, the court shall determine whether, based on the [DOC]'s risk assessment, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in [an SBM] program for a period of time to be specified by the court.
N.C. Gen.Stat. § 14–208.40A(d), (e). Although the trial court's original 24 September 2008 SBM order in the present case purported to make this determination for defendant at sentencing, the trial court failed to properly follow this statutory procedure, as the State pointed out at the 15 October 2008 hearing. Thus, because defendant's enrollment in SBM was not properly determined at sentencing, the subsequent SBM hearing from which defendant now appeals was governed by the procedural mandates under N.C. Gen.Stat. § 14–208.40B, which applies when “there has been no determination by a court on whether the offender shall be required to enroll in [SBM].” Id.
Under section 14–208.40B, the DOC “shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14–208.40(a).” N.C. Gen.Stat. § 14–208.40B (a).
If the [DOC] determines that the offender falls into one of the categories described in G.S. 14–208.40(a), the district attorney, representing the [DOC], shall schedule a hearing in superior court for the county in which the offender resides. The [DOC] shall notify the offender of the [DOC]'s determination and the date of the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14–208.7.
N.C. Gen.Stat. § 14–208.40B(b). In Stines, 200 N.C.App. 193, 683 S.E.2d 411 (2009), this Court held “that N.C. Gen.Stat. § 14–208.40B(b)'s requirement that the Department ‘notify the offender of [its] determination’ mandates that the Department, in its notice, specify the category set out in N.C. Gen.Stat. § 14–208.40(a) into which the Department has determined the offender falls and briefly state the factual basis for that conclusion.” Stines, 200 N.C.App. at 204, 683 S.E.2d at 418 (alteration in original).
Here, the State concedes the notice sent to defendant in advance of the 18 May 2011 hearing failed these standards “in several respects.” As conceded by the State, the notice here (1) was sent to defendant by the Clerk of Superior Court of Craven County, rather than by DOC; (2) contained no reference to or explanation of the purpose of the hearing or the matter or “case” to be addressed at the hearing; and (3) included neither the criteria by which DOC believed defendant to be eligible for SBM enrollment nor the factual basis for that determination. Accordingly, because defendant's notice was entirely deficient, we must vacate the trial court's SBM order and remand to the trial court for a new SBM hearing consistent with the mandates of our statutory procedure. See Stines, 200 N .C.App. at 204, 683 S.E.2d at 418.
Furthermore, we must also vacate the trial court's SBM order given the complete lack of a risk assessment of defendant, as mandated by N.C. Gen.Stat. § 14–208.40B(c). Under this statute, “[i]f 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,” as the trial court found here, “the court shall order that the [DOC] do a risk assessment of the offender.” Id. (emphasis added). Then:
Upon receipt of a risk assessment from the [DOC], the court shall determine whether, based on the [DOC]'s risk assessment, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in [an SBM] program for a period of time to be specified by the court.
Id. (emphasis added).
Here, as the State concedes, the record reveals that no risk assessment was performed on defendant, and if such assessment had been performed, the results were neither presented by the State to the trial court nor considered by the trial court in making an SBM enrollment determination. As the State points out, at the 15 October 2008 hearing to modify the 24 September 2008 judgment, the State informed the trial court of the error. The record reveals no assessment was ever, in fact, performed on defendant subsequent to the modified order. Accordingly, the trial court's SBM order must be vacated, having failed to follow the mandatory procedural guidelines established under N.C. Gen.Stat. § 14–208.40B. See State v. Smith, 201 N.C.App. 681, 688, 687 S.E.2d 525, 530 (2010). On remand, the trial court, if it so finds the other factual criteria are met in this case, must order DOC to conduct a risk assessment of defendant within the time limitations prescribed by N.C. Gen.Stat. § 14–208.40B(c). Only after obtaining such a risk assessment may the trial court conduct a proper SBM determination hearing to consider whether defendant can be enrolled in SBM, taking into account the risk assessment and any other competent record evidence relevant to the risk posed by defendant. State v. Morrow, 200 N.C.App. 123, 131, 683 S.E.2d 754, 760–61(200),aff'd,364 N.C. 424, 700 S.E.2d 224 (2010).
III. Subject Matter Jurisdiction and Constitutional Arguments
We dismiss defendant's three remaining arguments, in which he contends (1) the trial court lacked subject matter jurisdiction to conduct the SBM hearing because the State did not file a complaint or issue a summons to defendant as required by the North Carolina Rules of Civil Procedure; (2) enrollment in the SBM program is punishment that, having served his full sentence for the underlying offense, constitutes double jeopardy in violation of the Fifth Amendment; and (3) requiring him to wear a visible monitoring device for thirty months after having served his original sentence is disproportionate punishment in violation of his Eighth Amendment rights.
In State v. Self, ––– N.C.App. ––––, 720 S.E.2d 776 (2011), we considered defendant's same subject matter jurisdiction argument and held that “contrary to defendant's contention, SBM hearings are not required to be initiated pursuant to the North Carolina Rules of Civil Procedure.” Id. at ––––, 720 S.E.2d at 777. Rather, “N.C. Gen.Stat. § 14–208.40B(b) (2009), which governs the notification procedure for an offender when there was no previous SBM determination at sentencing, does not require NCDOC to either file a complaint or issue a summons in order to provide a defendant with adequate notice of an SBM determination hearing.” Id.
Similarly, as defendant readily acknowledges, recent decisions by both our Supreme Court and this Court have rejected both of defendant's constitutional arguments. See State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010) (holding that the SBM program is a civil, regulatory scheme and is not punitive); State v. Anderson, 198 N.C.App. 201, 204–05, 679 S.E.2d 165, 167 (2009) (holding that SBM does not constitute a punishment and cannot violate an offender's right to be free from double jeopardy), disc. review denied,364 N.C. 436, 702 S.E.2d 491 (2010); Jarvis, ––– N.C.App. at ––––, 715 S.E.2d at 262 (holding SBM does not implicate a defendant's Eighth Amendment rights (citing State v. Wagoner, 199 N.C.App. 321, 683 S.E.2d 391 (2009), aff'd per curium, 364 N.C. 422, 700 S.E.2d 222 (2010))).
IV. Conclusion
In conducting the 18 May 2011 SBM determination hearing, the trial court failed to follow the mandatory statutory procedures set forth under N.C. Gen.Stat. § 14–208.40B. Specifically, defendant's notice of the SBM determination hearing was deficient, and the trial court failed to both order and consider a DOC risk assessment of defendant. Therefore, the trial court's 18 May 2011 SBM order must be vacated, and we remand the case to the trial court for a new SBM determination hearing consistent with the requisite statutory procedural mandates. Defendant's remaining arguments are dismissed.
Vacated and remanded. Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).