Opinion
No. COA09-1424
Filed 6 July 2010 This case not for publication
Appeal by Defendant from order entered 27 March 2009 by Judge R. Allen Baddour in Orange County Superior Court. Heard in the Court of Appeals 21 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Lisa Y. Harper, for the State. Ryan McKaig for defendant-appellant.
Orange County No. 03 CRS 55666.
On 10 January 2006, Defendant Shearrod Jackson ("Defendant") was indicted for one count of taking indecent liberties with a child stemming from an incident which occurred on 9 October 2003. Defendant entered a plea of guilty to taking indecent liberties with a child on 27 November 2006. Based on his plea, the trial court sentenced Defendant to a minimum of 15 months and a maximum of 18 months imprisonment, but suspended this sentence and placed Defendant on 24 months of supervised probation. On 28 October 2008, the court terminated Defendant's probation.
In or around April 2008, prior to the termination of Defendant's probation, the North Carolina Department of Correction sought to have Defendant required to participate in satellite-based monitoring (SBM). In its original petition, the Department of Correction only sought to have Defendant enrolled in SBM for the duration of his probation period. On 28 April 2008, Defendant appeared at a hearing convened pursuant to N.C. Gen. Stat. § 14-208.40B. At that hearing, the trial court appointed counsel and continued the SBM proceeding.
After an additional continuance, the SBM hearing was held on 24 March 2009, several months after Defendant's probation had been terminated. By this time, the State contended that Defendant should be declared subject to lifetime SBM on the grounds that Defendant had been convicted of an "aggravated offense." On 27 March 2009, the trial court entered an order in which it found that Defendant was not a recidivist or a sexually violent predator. However, the trial court found that Defendant had been convicted of an aggravated offense. Based on this finding, the trial court ordered Defendant to enroll in SBM for the duration of his natural life. Defendant noted an appeal to this Court from the trial court's order.
Defendant orally noted an appeal from the trial court's order requiring him to enroll in SBM for the remainder of his natural life. On 18 May 2010, this Court filed its opinion in State v. Brooks, ___ N.C. App. ___, ___ S.E.2d ___ (2010), in which we held that a party wishing to note an appeal from a trial court's order requiring enrollment in SBM was required to file a written notice of appeal. As a result of his failure to file a written notice of appeal in accordance with N.C.R. App. P. 3(a), Defendant's appeal from the trial court's order is subject to dismissal. However, given that the State has not challenged our jurisdiction to hear Defendant's appeal and given that Defendant's appeal was noted months before the issuance of our decisions in Brooks and State v. Singleton, ___ N.C. App. ___, ___, 689 S.E.2d 562, 565, disc. review allowed, 364 N.C. 131 (2010) (holding that, "for purposes of appeal, a[n] SBM hearing is not a `criminal trial or proceeding' for which a right of appeal is based upon N.C. Gen. Stat. § 15A-1442 or N.C. Gen. Stat. § 15A-1444"), we elect to treat the record on appeal and Defendant's brief as a petition for a writ of certiorari, allow Defendant's petition, and address the merits of his challenge to the trial court's SBM order. Brooks, ___ N.C. App. at ___, ___ S.E.2d at ___.
On appeal, Defendant argues that the trial court erred by concluding that his crime was an "aggravated offense" and that he was, for that reason, required to enroll in lifetime SBM. Defendant argues that the trial court erred in making this finding because the elements of taking indecent liberties with a child do not satisfy the statutory definition of an "aggravated offense" as defined in N.C. Gen. Stat. § 14-208.6(1a). The State concedes that indecent liberties with a child is not an "aggravated offense" for purposes of N.C. Gen. Stat. § 14-208.6(1a) and, therefore, agrees with Defendant that the trial court's order requiring Defendant to enroll in lifetime SBM should be reversed.
N.C. Gen. Stat. § 14-208.40(a) makes two categories of offenders subject to SBM:
In 2008 N.C. Sess. L. c. 117, s. 16, the General Assembly amended N.C. Gen. Stat. § 14-208.40 to make a third category of offenders subject to lifetime SBM, with this third category consisting of offenders who have been convicted of violating N.C. Gen. Stat. § 14-27.2A or N.C. Gen. Stat. § 14-27.4A. The 2008 amendment became effective 1 December 2008 and only applies to offenses committed on or after that date. We have omitted any reference to this additional statutory language in our discussion of N.C. Gen. Stat. §§ 14-208.40 and-208.40B, because it has no application to the matters at issue in this case.
(1) Any offender who is convicted of a reportable conviction as defined by [N.C. Gen. Stat. § ] 14-208.6(4) and who is required to register under Part 3 of Article 27A of Chapter 14 of the General Statutes because the defendant is classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense as those terms are defined in [N.C. Gen. Stat. § ] 14-208.6.
(2) Any offender who satisfies all of the following criteria: (i) is convicted of a reportable conviction as defined by [N.C. Gen. Stat. § ] 14-208.6(4), (ii) is required to register under Part 2 of Article 27A of Chapter 14 of the General Statutes, (iii) has committed an offense involving the physical, mental, or sexual abuse of a minor, and (iv) based on the Department's risk assessment program requires the highest possible level of supervision and monitoring.
N.C. Gen. Stat. § 14-208.40(a)(1) and (2). When an offender has already been sentenced and the Department seeks to have an offender enroll in SBM, N.C. Gen. Stat. § 14-208.40B provides the procedural framework under which a trial court should determine whether the offender must enroll in the SBM program. First, the trial court must determine whether the offender's conviction is "reportable," as defined by N.C. Gen. Stat. § 14-208.6(4). Secondly, the trial court must determine, based on the evidence presented by the State and any rebuttal evidence presented by the defendant, whether the offender's conviction places him in one of the categories described above. N.C. Gen. Stat. § 14-208.40B(b).
If the court finds that (i) the offender has been classified as a sexually violent predator pursuant to [N.C. Gen. Stat. § ] 14-208.20, (ii) the offender is a recidivist, [or] (iii) the conviction was an aggravated offense, . . . the court shall order the offender to enroll in satellite-based monitoring for life.
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 . . ., and the offender is not a recidivist, the court shall order that the Department do a risk assessment of the offender. The Department 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.
N.C. Gen. Stat. § 14-208.40B(c). Thus, the relevant statutory framework requires the trial court to first determine whether the offender falls into a category mandating lifetime monitoring. If the offender does not fall into such a category, the trial court must then proceed to the risk assessment phase to determine whether the offender should be subjected to SBM for a period of years:
Upon receipt of a risk assessment from the Department, the court shall determine whether, based on the Department'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. § 14-208.40B(c).
In this case, the trial court correctly found that indecent liberties with a child is a reportable offense as defined by N.C. Gen. Stat. § 14-208.6(4). However, at the next step in the required process, the trial court found that the offense for which Defendant had been convicted was an "aggravated offense." As we explain in more detail below, the trial court erred in making this finding.
N. C. Gen. Stat. § 14-208.6(1a) 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.
Defendant was convicted of taking indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1, which provides that
(a) 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). We have previously addressed the issue of whether taking indecent liberties with a child constitutes an "aggravated offense," as defined by N.C. Gen. Stat. § 14-208.6(1a), in State v. Davison, ___ N.C. App. ___, 689 S.E.2d 510 (2009) and Singleton, ___ N.C. App. at ___, 689 S.E.2d at 562. In Davison, after reviewing the pertinent statutory language, we held 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." Davison, ___ N.C. App. at ___, 689 S.E.2d at 517. After comparing the statutory definition of "aggravated offense" to the elements of the crime of taking indecent liberties with a child, we found that the offense of taking indecent liberties with a child does not require proof of the elements specified in the statutory definition of "aggravated offense." Id. at ___, 689 S.E.2d at 516. Therefore, we held that the trial court erred in considering the facts underlying defendant's conviction in determining whether the defendant had been convicted of an "aggravated offense." Id. at ___, 689 S.E.2d at 516; see also Singleton, ___ N.C. App. at ___, 689 S.E.2d at 566-69 (holding that the trial court's conclusion in that case that the defendant had been convicted of an aggravated offense was legally incorrect, because the offense of indecent liberties does not meet the statutory definition of aggravated offense).
In this case, the prosecutor read a statement containing the alleged facts that led to Defendant's conviction at the SBM hearing. Based upon the prosecutor's recitation, the trial court found that Defendant had been convicted of an aggravated offense. However, given that Davison and Singleton establish that, as a matter of law, the crime of taking indecent liberties with a child is not an "aggravated offense" as defined in N.C. Gen. Stat. § 14-208.6(1a) and given that a trial court may not rely on the underlying facts in determining that a defendant convicted of taking indecent liberties with a child has committed an "aggravated offense," we hold that the trial court erred by concluding that Defendant was convicted of an "aggravated offense" and that Defendant should be required to enroll in lifetime SBM pursuant to N.C. Gen. Stat. § 14-208.40B(c).
The State concedes that indecent liberties with a child is not an "aggravated offense" as defined by N.C. Gen. Stat. § 14-208.6(1a). However, the State argues, without extensive citation to the record, that the case should be remanded for a new hearing to determine whether Defendant should be required to enroll in SBM for a definite period of time pursuant to N.C. Gen. Stat. § 14-208.40B(b). Although our decisions in State v. Morrow, ___ N.C. App. ___, ___, 683 S.E.2d 754, 761-762 (2009), and State v. King, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ 2010 N.C. LEXIS 797 * 8-*10 (2010), provide us with the authority to grant the relief requested by the State, we clearly have no such authority to act in that manner in the absence of some basis for concluding that the entry of an order requiring the Defendant to enroll in SBM for a term of years would be appropriate on remand. After careful review of the record, we are unable to discern any basis for concluding that the entry of such an order would be appropriate.
According to the existing record, the risk assessment performed upon Defendant prior to the entry of the trial court's order indicated that he posed a "moderate" risk. Similar risk assessments have been held, in the absence of additional evidence, to be insufficient to support orders requiring enrollment in SBM for a period of years in State v. Kilby, ___ N.C. App. ___, ___, 679 S.E.2d 430, 434-35 (2009) (holding that a "moderate" risk assessment coupled with the absence of additional evidence supporting a higher level of risk did not support the entry of an order requiring defendant to enroll in SBM for a term of years), and State v. Causby, ___ N.C. App. ___, ___, 683 S.E.2d 262, 265 (2009) (holding that a "moderate" risk assessment coupled with the absence of evidence supporting findings of a higher risk level did not support the entry of an order requiring defendant to enroll in SBM for a term of years). The State has not pointed to any additional evidence tending to show that Defendant "requires the highest possible level of supervision and monitoring," N.C. Gen. Stat. § 14-208.40B(c), other than the facts surrounding the incident that led to Defendant's conviction. In the event that we were to consider such information sufficient to support a finding that Defendant "requires the highest level of monitoring" despite the presence of a "moderate" risk assessment, we would be acting inconsistently with the definition of an "aggravated offense" deemed appropriate in Davison and Singleton. The only other evidence contained in the record indicates that defendant had not reoffended; that his failure to satisfy his monetary conditions of probation stemmed from a lack of work; that his failure to attend all of the required sex offender treatment classes resulted from his inability to pay the required up-front per meeting fee; and that, when he attended the meetings, he was a real asset to the sex offender treatment program. This evidence, taken in conjunction with defendant's "moderate" risk assessment score, is simply not enough to support a finding that defendant "requires the highest possible level of supervision and monitoring." As a result, we conclude that the present record does not support remanding this case to the trial court for a determination of whether Defendant should be required to enroll in SBM for a period of years.
N.C. Gen. Stat. § 14-208.40B(c) provides that the Department of Correction "may use a risk assessment of the offender done within six months of the date of the hearing" to determine whether an offender "requires the highest possible level of supervision and monitoring." However, we do not see any obstacle to examining older risk assessments during the process of appellate review for the purpose of determining whether a remand of the nature requested by the State would be appropriate, particularly given that an updated risk assessment will necessarily be performed in the event that a new hearing actually takes place.
Reversed.
Judges STEPHENS and BEASLEY concur.
Report per Rule 30(e).