Opinion
No. COA15-1193
04-19-2016
STATE OF NORTH CAROLINA v. GREIVIN GUSTAVINO, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State. Charlotte Gail Blake for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Buncombe County, No. 11 CRS 58240 Appeal by defendant from order entered 19 March 2015 by Judge Jeffrey P. Hunt in Buncombe County Superior Court. Heard in the Court of Appeals 11 April 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State. Charlotte Gail Blake for defendant-appellant. GEER, Judge.
Defendant Greivin Gustavino appeals from an order subjecting him to satellite-based monitoring ("SBM"). On appeal, defendant argues that the trial court erred in ordering him to enroll in SBM for 10 years when his risk category was low and no additional findings were made. Because there is insufficient competent evidence in the record to support the court's finding that defendant requires the highest possible level of supervision and monitoring, we reverse the order.
Facts
On 22 January 2015, defendant pled guilty to attempted incest of a child under 13 and attempted statutory sexual offense. The trial court sentenced defendant to a presumptive-range term of 125 to 159 months imprisonment. On 19 March 2015, the trial court held a hearing to determine whether defendant should be enrolled in SBM. Thereafter, the trial court entered an order which included findings that: (1) defendant was convicted of a reportable conviction as defined by N.C. Gen. Stat. § 14-208.6(4) (2015); (2) the offense was a sexually violent offense or an attempt to commit such an offense; (3) the offense was not an aggravated offense; and (4) defendant was not a recidivist or predator. The trial court then ordered defendant, upon his release from prison, to be enrolled in an SBM program for 10 years. Defendant appeals.
Discussion
Defendant argues that the trial court erred in ordering him to enroll in SBM. The State concedes error, and we agree.
In the present case, defendant pled guilty to several reportable offenses as defined by N.C. Gen. Stat. § 14-208.6(4). Where, as here, the reportable offense involves the physical, mental, or sexual abuse of a minor, and the defendant was not convicted of an aggravated offense, or determined to be a recidivist or a sexually violent predator, the trial court must order that the Division of Adult Correction ("DAC") conduct a risk assessment of the defendant. N.C. Gen. Stat. § 14-208.40A(d) (2013). If the trial court determines that the defendant requires "the highest possible level of supervision and monitoring" based on DAC's risk assessment that defendant poses a "high" risk of reoffending, the court is required to order the defendant to enroll in an SBM program for a period of time to be specified by the court. N.C. Gen. Stat. § 14-208.40A(e).
N.C. Gen. Stat. § 14-208.40A(d) was amended by 2015 N.C. Sess. Law ch. 181, § 41. The amendment simply updated citations to other statutes referenced within and became effective 1 December 2015. Since the court's order was issued on 19 March 2015, prior to this amendment, we refer to the prior version of the statute.
In both State v. Causby, 200 N.C. App. 113, 117, 683 S.E.2d 262, 264 (2009), and State v. Kilby, 198 N.C. App. 363, 370-71, 679 S.E.2d 430, 434-35 (2009), this Court reversed an order enrolling the defendant in an SBM program when the trial court found that the defendant required "the highest possible level of supervision and monitoring" notwithstanding DOC's risk assessment that the defendant posed only a "moderate" risk of reoffending. In both cases, this Court held that the DOC "moderate" rating was not sufficient standing alone to support the SBM order. Causby, 200 N.C. App. at 117, 683 S.E.2d at 265; Kilby, 198 N.C. App. at 370, 679 S.E.2d at 434.
Here, the sole evidence presented by the State was a "Static-99R Coding Form" upon which DAC indicated that defendant had a score of -1 and was a "Low" risk. Pursuant to Kilby and Causby, we conclude that the State's evidence was insufficient to support the trial court's determination that defendant required the highest possible level of supervision and monitoring. Accordingly, we reverse.
REVERSED.
Judges McCULLOUGH and ZACHARY concur.
Report per Rule 30(e).