Opinion
No. COA15–608.
01-05-2016
STATE of North Carolina v. Johnathon Paul CHASE.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State. Tarlton Law, PLLC, by Raymond C. Tarlton, for defendant-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.
Tarlton Law, PLLC, by Raymond C. Tarlton, for defendant-appellant.
Opinion
Appeal by defendant from judgment entered 17 March 2009 by Judge Jack W. Jenkins in Craven County Superior Court. Heard in the Court of Appeals 20 October 2015.
BRYANT, Judge.
Where the trial court erred in finding that defendant's conviction for first-degree sexual offense was an aggravated offense within the statutory definition of N.C. Gen.Stat. § 14–208.6(1a), and as a result ordered that defendant register as a sex offender and enroll in a satellite-based monitoring program for his natural life, we reverse and remand for further proceedings.
On 21 April 2008, a grand jury convened in Craven County Superior Court indicted defendant Johnathon Paul Chase on two counts of committing a sexual offense with a child under the age of 13. On 13 October 2008, a superseding indictment was issued as to one count, adding as an aggravating factor that the victim was very young. Defendant pled guilty to two counts of first-degree sexual offense in violation of N.C. Gen.Stat. § 14–27.4(a)(1). And on 17 March 2009, in accordance with his plea agreement, the trial court entered a consolidated judgment against defendant on two counts of first-degree sexual offense and sentenced defendant to a term of 240 to 297 months. The same day, the court also entered Judicial Findings and Order for Sex Offenders—Active Punishment. In its order, the court found that defendant had been convicted of a reportable conviction under G.S. 14–208.6, more specifically, rape of a child or sexual offense with a child. The court further found the conviction to be for an aggravated offense. The trial court ordered that upon release from prison, defendant register as a sex offender for his natural life and enroll in satellite-based monitoring for his natural life.
On 28 August 2014, defendant filed with this Court a petition for writ of certiorari to review the 17 March 2009 Judicial Findings and Order for Sex Offenders—Active Punishment. This Court allowed defendant's petition on 19 September 2014. Defendant noted an appeal on 16 February 2015.
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On appeal, defendant argues that the trial court erred by finding that first-degree sexual offense is an aggravated offense which subjects defendant to a lifetime sex offender registration requirement and a lifetime satellite-based monitoring requirement. Defendant contends that the trial court order imposing lifetime sex offender registration and lifetime satellite-based monitoring enrollment must be vacated. We agree in part.
Judgment was entered against defendant on two counts of first-degree sexual offense in violation of General Statutes, section 14–27.4(a)(1). Pursuant to our General Statutes, section 14–27.4, “[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act: (1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim[.]” N.C. Gen.Stat. § 14–27.4(a)(1) (2013). In its Judicial Findings and Order for Sex Offenders—Active Punishment entered 17 March 2009, the trial court found that defendant's conviction for two counts of first-degree sexual offense in violation of General Statutes, section 14–27.4(a)(1) was an aggravated offense.
North Carolina General Statutes, Chapter 14, Subchapter VII (“Offenses Against Public Morality and Decency”), Article 27A (“Sex Offender and Public Protection Registration Programs”), Part 1 (Registration Programs, Purpose and Definitions Generally), 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) (2013). Defendant contends that the offense for which he was convicted is not an aggravated offense because the offense does not require penetration.
This Court addressed a similar issue in State v. Treadway, 208 N.C.App. 286, 702 S.E.2d 335 (2010), where the defendant was convicted of one count of first-degree sexual offense and was ordered upon release from prison to submit to satellite-based monitoring for the remainder of his natural life. Id. at 289, 702 S.E.2d at 340. On direct appeal, the defendant argued that his first-degree sexual offense conviction was not an aggravated offense as defined by N.C. Gen.Stat. § 14–208.6(1a). Quoting this Court's opinion in State v. Davison, 201 N.C.App. 354, 689 S.E.2d 510 (2009), the Treadway Court stated that
The State argues on appeal that this Court lacks the authority to apply its holdings retroactively. In support of this proposition, the State cites Fowler v. N.C. Dep't of Crime Control & Pub. Safety, 92 N.C.App. 733, 735, 376 S.E.2d 11, 12 (1989) (“There is a presumption in North Carolina favoring retroactive application of a decision rendered by our Supreme Court that changes the existing law.”), abrogation on other grounds recognized in Parrish v. Hill, 350 N.C. 231, 513 S.E.2d 547 (1999). We note that the Fowler Court retroactively applied a heightened standard of care in considering negligence claims against law enforcement officers involved in motor vehicle accidents while carrying out their official duties, as a standard that was established by our Supreme Court in Bullins v. Schmidt, 322 N.C. 580, 369 S.E.2d 601 (1988), abrogation recognized in Parrish, 350 N.C. 231, 513 S.E.2d 547. Fowler, 92 N.C.App. at 734–36, 376 S.E.2d at 12–13 (citing Bullins, 322 N.C. at 583, 585, 369 S.E.2d at 603–04) (holding that the heightened standard of care announced in Bullins would not significantly impair the administration of justice and applying Bullins retroactively).
where, after reviewing the language of the statutes at issue, this Court held that the General Assembly's repeated use of the term “conviction” compelled the conclusion that the trial court is only to consider the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction when determining whether a defendant's conviction offense is an aggravated offense.
208 N.C.App. at 302, 702 S.E.2d at 348 (quoting Davison, 201 N.C.App. at –––, 689 S.E.2d at 517). Analyzing the statutes that define a first-degree sexual offense, which require the child victim be “under the age of 13,” N.C.G.S. § 14–27.4(a)(1), and an aggravated offense, which require that the child victim be “less than 12 years old,” N.C.G.S. § 14–208.6(1a), the Treadway Court reasoned that, compelled by the precedent of Davison, it was “obliged to hold that first degree sexual offense pursuant to N.C. Gen.Stat. § 14–27.4(a)(1) is not an aggravated offense.” Treadway, 208 N.C.App. at 303, 702 S.E.2d at 348 (citing In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)).
Though defendant's argument here—that first-degree sexual offense is not an aggravated offense due to the requirement for penetration specified only in the definition of “aggravated offense”—is distinct from this Court's analysis in Treadway, the ultimate holding of Treadway, that first-degree sexual offense as defined by N.C. Gen.Stat. § 14–27.4(a)(1) is not an aggravated offense as defined by N.C. Gen.Stat. § 14–208.6(1a), is controlling.
General Statutes, section 14–208.6A, codified within Article 27A (“Sex Offender and Public Protection Registration Programs”), Part 1 (Registration Programs, Purpose and Definitions Generally), states the following:
It is the objective of the General Assembly to establish a 30–year registration requirement for persons convicted of certain offenses against minors or sexually violent offenses with an opportunity for those persons to petition in superior court to shorten their registration time period after 10 years of registration. It is the further objective of the General Assembly to establish a more stringent set of registration requirements for recidivists, persons who commit aggravated offenses, and for a subclass of highly dangerous sex offenders who are determined by a sentencing court with the assistance of a board of experts to be sexually violent predators.
To accomplish this objective, there are established two registration programs: the Sex Offender and Public Protection Registration Program and the Sexually Violent Predator Registration Program. Any person convicted of an offense against a minor or of a sexually violent offense as defined by this Article shall register in person as an offender in accordance with Part 2 of this Article [ (Sex Offender and Public Protection Registration Program) ]. Any person who is a recidivist, who commits an aggravated offense, or who is determined to be a sexually violent predator shall register in person as such in accordance with Part 3 of this Article [ (Sexually Violent Predator Registration Program) ].
N.C. Gen.Stat. § 14–208.6A.
Here, based on the erroneous finding that defendant's conviction was an aggravated offense, the trial court ordered that defendant register as a sex offender pursuant to Part 3 of Article 27A, for his natural life. Absent this finding, defendant was eligible to register as a sex offender under Part 2 of Article 27A, which initially requires registration for a 30 year period but allows a registrant to petition for relief after a 10 year period. See id. Accordingly, we reverse the portion of the trial court's order regarding lifetime sex offender registration and remand for entry of an order under Part 2 of Article 27A.
As to the part of the trial court's order requiring satellite-based monitoring for defendant's natural life, we again look to the statutory basis for ordering lifetime satellite-based monitoring. General Statutes, section 14–208.40A, codified within Article 27A (“Sex Offender and Public Protection Registration Programs”), Part 5 (Sex Offender Monitoring Programs), states the following:
(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 ..., the court shall order that the Division of Adult Correction do a risk assessment of the offender [ ] ... and report the results to the court.
(e) Upon receipt of a risk assessment from the Division of Adult Correction pursuant to subsection (d) of this section, the court shall determine whether, based on the Division of Adult Correction'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 a satellite-based monitoring program for a period of time to be specified by the court.
N.C. Gen.Stat. § 14–208.40A(d), (e) (2013). Here, the trial court erred in ordering that defendant enroll in the satellite-based monitoring program for his natural life where there was neither evidence of a risk assessment from the Division of Adult Correction nor a determination that defendant required the highest level of supervision. See id.; see also State v. Jones, ––– N.C.App. ––––, ––––, 758 S.E.2d 444, 447–48 (2014) ( “This Court has previously held that a DOC risk assessment of ‘moderate,’ without more, is insufficient to support the finding that a defendant requires the highest possible level of supervision and monitoring.”). After erroneously determining that defendant had been convicted of an aggravated offense the trial court did not order the risk assessment required when the court finds that the offender committed an offense involving a minor but is not an aggravated offense. See N.C.G.S. § 14–208.40A(d). Accordingly, we reverse the trial court's order regarding defendant's enrollment in satellite-based monitoring for his natural life and remand for further proceedings in accordance with N.C.G.S. § 14–208.40A.
REVERSED AND REMANDED.
Judges CALABRIA and ZACHARY concur.
Report per Rule 30(e).
We note that in State v. Treadway, 208 N.C.App. 286, 702 S.E.2d 335 (2010), review denied, 365 N.C. 195, 710 S.E.2d 35 (2011), the defendant appealed from a trial court order entered 30 July 2009. And the cases upon which the Treadway Court's pertinent ruling most principally relies were State v. Phillips, 203 N.C.App. 326, 691 S.E.2d 104 (2010), and State v. Davison, 201 N.C.App. 354, 689 S.E.2d 510 (filed 8 December 2009). Therefore, the Treadway Court's most pertinent authority were court opinions retroactively applied after entry of defendant's judgment following conviction and entry of order to enroll in satellite based monitoring for the remainder of his natural life. Therefore, we overrule this contention.