Opinion
No. COA09-1294
Filed 15 June 2010 This case not for publication
Appeal by Defendant from order entered 24 April 2009 by Judge R. Allen Baddour in Orange County Superior Court. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci, for the State. Mills Economos, L.L.P., by Larry C. Economos, for Defendant-Appellant.
Orange County Nos. 08 CRS 859-864 08 CRS 53599-603.
I. Procedural History
On 17 December 2008, Mendell Collins ("Defendant") entered a plea of guilty to two counts of taking indecent liberties with a child. As to one of the counts, the trial court found one factor in mitigation, that Defendant has accepted responsibility for his criminal conduct, and imposed a mitigated sentence of 11 to 14 months active imprisonment. However, on this count, Defendant was given credit for 527 days in pretrial confinement. Therefore, Defendant received full credit for his 11 to 14 month sentence. On the second count, the trial court imposed a presumptive sentence of 19 to 23 months imprisonment, but suspended the sentence and placed Defendant on 60 months supervised probation. Additionally, the trial court made findings that the conviction was reportable pursuant to N.C. Gen. Stat. § 14-208.6 (2007) and involved the sexual abuse of a minor. As special conditions of probation, the trial court ordered Defendant to have no contact with the victim or her family, register as a sex offender, comply with sex offender evaluation and treatment, undergo a risk assessment by the Department of Correction ("DOC") for satellite-based monitoring ("SBM") purposes, and return to court for a hearing on the need for SBM.
On 24 April 2009, the trial court conducted a hearing to determine whether Defendant should be subjected to SBM in accordance with N.C. Gen. Stat. § 14-208.40A (2009). The trial court found that the offense for which Defendant was convicted was not an aggravated offense, that Defendant was not a recidivist, and that Defendant was not a sexually violent predator. However, the trial court found that the offense was a sexually violent offense and involved the sexual abuse of a minor. At the hearing, the State introduced a "Static-99 Tally Sheet," the DOC's risk assessment. The risk assessment was performed by Keith R. Hersh, Ph.D., a licensed psychologist. In the risk assessment, the psychologist determined that Defendant's risk was low, based on his score of 0. Nonetheless, the trial court found that, "based upon the risk assessment . . . defendant requires the highest possible level of supervision and monitoring." Therefore, the trial court ordered that Defendant be enrolled in an SBM program for a period of five years. Defendant gave oral notice of appeal in open court.
II. Discussion
In his only argument on appeal, Defendant contends that the court erred in concluding that Defendant required the highest possible level of supervision and monitoring where the risk assessment found that Defendant was only a "low" risk. Accordingly, Defendant requests that the trial court's order be reversed. The State concedes that the evidence does not support a finding that Defendant requires the highest possible level of supervision and monitoring, because the only evidence introduced at the hearing was Defendant's Static-99 Tally Sheet, showing that his risk was low. We agree and, accordingly, reverse.
We have recently explained that "a trial court's SBM determination involves two phases: a `qualification' phase and a `risk assessment' phase." State v. Causby, ___ N.C. App. ___, ___, 683 S.E.2d 262, 263 (2009) (quoting State v. Kilby, ___ N.C. App. ___, ___, 679 S.E.2d 430, 433 (2009)). "In the qualification phase, if a defendant was convicted of a reportable offense as defined by N.C. Gen.[]Stat. § 14-208.6(4) (2007), then the `district attorney shall present to the court any evidence' that the defendant falls into one of five categories" specified in N.C. Gen. Stat. § 14-208.40A(a). Id. "[T]he trial court is [then] required to determine `whether the offender's conviction places the offender' in one of the five categories and to `make a finding of fact of that determination,' specifying the category into which the offender falls." Id. (quoting N.C. Gen. Stat. § 14-208.40A(b)). In the instant case, the parties do not dispute that Defendant was convicted of a reportable offense and that the offense involved the physical, mental, or sexual abuse of a minor, pursuant to N.C. Gen. Stat. § 14-208.6(4) (2009).
N.C. Gen. Stat. § 14-208.6(4) defines a "[r]eportable conviction" in part as "[a] final conviction for an offense against a minor, a sexually violent offense, or an attempt to commit any of those offenses unless the conviction is for aiding and abetting."
N.C. Gen. Stat. § 14-208.40A(a) (2009) provides in part that "[w]hen an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), during the sentencing phase, the district attorney shall present to the court any evidence that (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."
Here, the trial court found that Defendant was not a recidivist, was not a sexually violent predator, and that he was not convicted of an aggravated offense. Therefore, the case moved on to the risk assessment phase, and the trial court was required to order the DOC to conduct a risk assessment of Defendant. N.C. Gen. Stat. § 14-208.40A(d) (2009). Upon receipt of the risk assessment, the trial court "shall determine whether, based on the [DOC's] risk assessment, the offender requires the highest possible level of supervision and monitoring." N.C. Gen. Stat. § 14-208.40A(e). "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 [SBM] for a period of time to be specified by the court." N.C. Gen. Stat. § 14-208.40A(e).
In reviewing an SBM order, "`we review the trial court's findings of fact to determine whether they are supported by competent record evidence, and we review the trial court's conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found.'" Kilby, ___ N.C. App. at ___, 679 S.E.2d at 432 (quoting State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005)).
The DOC risk assessment conducted in this case concluded that Defendant posed only a "low" risk of reoffending. The Static-99 Tally Sheet was the only evidence introduced by the State. Without making any factual findings, the trial court determined that Defendant required the highest level of supervision and monitoring. Therefore, we must determine whether the findings support such a conclusion. We conclude they do not.
After the trial court rendered its determination and Defendant gave notice of appeal, the parties agreed to make an intake report and correspondence from Defendant's psychologist part of the record. However, it does not appear that the State introduced these documents as evidence, and it is not clear whether they were before the trial court. Nonetheless, these documents also support the conclusion that Defendant's risk was low.
In Kilby, we held:
Although we cannot discern any direct correlation between the designation of low, moderate or high risk by the DOC assessment and the terminology of N.C. Gen.[]Stat. § 14-208.40B(c) which directs the determination of whether an offender may "require the highest possible level of supervision and monitoring," N.C. Gen.[]Stat. § 14-208.40B(c), the trial court made no findings of fact which could justify the conclusion that "defendant requires the highest possible level of supervision and monitoring." The trial court erred by concluding that "defendant requires the highest possible level of supervision and monitoring." The findings of fact are insufficient to support the trial court's conclusion that "defendant requires the highest possible level of supervision and monitoring" based upon a "moderate" risk assessment from the DOC.
Id. at ___, 679 S.E.2d at 434. Although Kilby involved the review of a trial court's decision under N.C. Gen. Stat. § 14-208.40B as opposed to § 14-208.40A, we find the reasoning of Kilby controlling. See Causby, ___ N.C. App. at ___, 683 S.E.2d at 263 (applying the Kilby analysis to a case involving N.C. Gen. Stat. § 14-208.40A).
As in Kilby, the trial court in the instant case made no findings of fact which could support its conclusion that Defendant required the highest possible level of supervision and monitoring. Indeed, the defendant in Kilby presented an even higher level of risk than the defendant herein. In Kilby, the defendant's risk level was "moderate," while here, Defendant's risk assessment is "low." Without more, the trial court's determination is not supported. Accordingly, we hold that the trial court erred in concluding that Defendant required the highest possible level of supervision and monitoring.
Despite its concession that the trial court's determination is not supported by the evidence, the State requests that the case be remanded to permit the trial court to make sufficient findings of fact to support its determination that Defendant requires the highest possible level of supervision and monitoring. In Kilby, the State made a similar request. Kilby, ___ N.C. App. at ___, 679 S.E.2d at 434. However, we found that remand was not warranted, explaining:
As no evidence was presented which tends to indicate that defendant poses a greater than "moderate" risk or which would demonstrate that "defendant requires the highest possible level of supervision and monitoring[,]" we need not remand this matter to the trial court for additional findings of fact as requested by the State. Consequently, we reverse the trial court's order.
Id.
In the present case, we are presented with a similar situation. At the hearing on 24 April 2009, the State presented no evidence which tends to show that Defendant posed greater than a "low" risk or which would demonstrate that Defendant requires the highest possible level of supervision and monitoring. Thus, the order of the trial court is
REVERSED.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).