Opinion
No. COA12–1249.
2013-05-7
STATE of North Carolina v. Robert Phillip LINCOURT.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly Grande, for the State. Hunt Law Group, P.C., by James A. Hunt for defendant appellant.
Appeal by defendant from order entered 14 May 2012 by Judge C. Winston Gilchrist in Harnett County Superior Court. Heard in the Court of Appeals 15 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Kimberly Grande, for the State. Hunt Law Group, P.C., by James A. Hunt for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals from the trial court's order requiring him to enroll in lifetime satellite-based monitoring (“SBM”). For the reasons discussed herein, we affirm the trial court's order.
On 16 October 2006, defendant pled guilty to second-degree rape and first-degree kidnapping. The trial court sentenced defendant to a term of 44 to 62 months' imprisonment.
Prior to defendant's release from the Department of Corrections (“DOC”), DOC made an initial determination that defendant had been convicted of an offense requiring him to enroll in SBM. The district attorney in Harnett County scheduled a hearing to determine whether defendant should be subject to SBM.
The matter came on for hearing on 16 April and 14 May 2012. The trial court found defendant was convicted of an “aggravated offense” and ordered defendant to enroll in SBM for “the remainder of [his] natural life.” Defendant entered written notice of appeal from the trial court's order.
Defendant argues the trial court erred in determining that he committed an aggravated offense and should be subject to lifetime SBM when that determination was not supported by competent evidence. Defendant contends that the trial court was required to follow the procedures set forth in N.C. Gen.Stat. § 14–208.40A and that the trial court failed to follow these procedures. We disagree.
As an initial matter, we note that the procedures set forth in N.C. Gen.Stat. § 14–208.40B, not N.C. Gen.Stat. § 14–208.40A, are applicable in this case.
When an offender is convicted of a reportable conviction as defined by G.S. 14–208.6(4), and there has been no determination by a court on whether the offender shall be required to enroll in satellite-based monitoring, the Division of Adult Correction 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) (2011). “If the Division of Adult Correction determines that the offender falls into one of the categories described in G.S. 14–208.40(a), the district attorney, representing the Division of Adult Correction, shall schedule a hearing in superior court for the county in which the offender resides.” N.C. Gen.Stat. § 14–208.40B(b). Here, these procedures were followed.
At the hearing, the trial court found that defendant was convicted of a reportable conviction and that the conviction was for an aggravated offense. In this case, defendant was convicted of second-degree rape under N.C. Gen.Stat. § 14–27.3. Pursuant to N.C. Gen.Stat. § 14–208.6(4) (2011), a “reportable conviction” includes a conviction for “a sexually violent offense.” Id. A “sexually violent offense” includes second-degree rape under N.C. Gen.Stat. § 14–27.3. N.C. Gen.Stat. § 14–208.6(5). Thus, the trial court properly found that defendant was convicted of a reportable conviction.
Likewise, the trial court properly found that defendant was convicted of an aggravated offense. An aggravated offense is
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). “[I]n order for a trial court to conclude that a conviction offense is an ‘aggravated offense’ under the procedures of either N.C.G.S. §§ 14–208.40A or 14–208.40B, this Court has determined that the elements of the conviction offense must ‘fit within’ the statutory definition of ‘aggravated offense.’ “ State v. Phillips, 203 N.C.App. 326, 329, 691 S.E.2d 104, 106 (2010). “The essential elements of second-degree rape include vaginal intercourse ‘[b]y force and against the will of the other person[.]’ “ State v. McCravey, 203 N.C.App. 627, 641, 692 S.E.2d 409, 420 (2010) (alterations in original) (quoting N.C. Gen.Stat. § 14–27.3(a)(1)). In McCravey, this Court stated that “the essential elements of second-degree rape are covered by the plain language of ‘aggravated offense’ as defined by N.C. Gen.Stat. § 14–208.6(1a),” and held “that second-degree rape is an ‘aggravated offense[.]’ “ Id. Thus, the trial court did not err in determining that defendant was convicted of an aggravated offense in the present case.
Since the trial court properly determined that defendant was convicted of an aggravated offense, the trial court was required to order defendant to enroll in lifetime SBM. SeeN.C. Gen.Stat. § 14–208.40B(c) (“If the court finds that ... the conviction offense was an aggravated offense ... the court shall order the offender to enroll in satellite-based monitoring for life.”). The order of the trial court is therefore affirmed.
Affirmed. Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).