Opinion
No. COA11–1063.
2012-07-3
STATE of North Carolina v. Brannagan Dale SCOTT aka Brannagan Lamar Scott, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly G. Grande, for the State. John T. Hall for defendant-appellee.
Appeal by defendant from order entered 13 April 2011 by Judge Robert F. Floyd, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 11 January 2012. Attorney General Roy Cooper, by Assistant Attorney General Kimberly G. Grande, for the State. John T. Hall for defendant-appellee.
GEER, Judge.
Defendant Brannagan Dale Scott appeals from the trial court's order requiring him to enroll in satellite based monitoring (“SBM”) for 15 years. Because, as the State concedes, the North Carolina Department of Correction (“DOC”) failed to provide defendant with the notice required by N.C. Gen.Stat. § 14–208.40B(b) (2011) and State v. Stines, 200 N.C.App. 193, 683 S.E.2d 411 (2009), we vacate the trial court's order and remand for further proceedings.
Facts
Defendant entered an Alford plea to two counts of indecent liberties with a child on 7 September 2006. The trial court imposed a presumptive range sentence of 19 to 23 months imprisonment, suspended that sentence, and ordered defendant to serve 36 months of supervised probation. Defendant's probation was subsequently twice extended, each time by one year.
On 6 March 2008, the DOC notified defendant that it had made an initial determination pursuant to N.C. Gen.Stat. §§ 14–208.40, 14–208.40A, and 14–208.40B that defendant fell into one of the categories in N.C. Gen.Stat. § 14–208.40(a) requiring his enrollment in an SBM program. The notice did not, however, identify the particular category that the DOC believed applied to defendant and did not describe the factual basis for the DOC's determination. The notice indicated that the hearing was calendared for 7 April 2008.
Defendant's SBM hearing was not, however, held until 13 April 2011. Following that hearing, the trial court entered an order finding that defendant had been convicted of a reportable conviction under N.C. Gen.Stat. § 14–208.6. The court further found that defendant had not been classified as a sexually violent predator, was not a recidivist, and had not committed an aggravated offense. The court then found that defendant's offense of conviction involved the physical, mental, or sexual abuse of a minor and that, based on the DOC risk assessment, defendant required the highest possible level of supervision and monitoring. Based on these findings of fact, the trial court ordered that defendant be enrolled in an SBM program for 15 years. Defendant timely appealed to this Court from the SBM order.
Discussion
Defendant first contends that the trial court lacked subject matter jurisdiction because even though an SBM hearing is a civil proceeding, the proceeding was not initiated by the filing of a complaint and the issuance of a summons. This Court, however, rejected that precise argument in State v. Sims, ––– N.C.App. ––––, ––––, 720 S.E.2d 398, 401,disc. review denied,365 N.C. 371, 719 S.E.2d 35 (2011). Accordingly, we hold that the trial court had subject matter jurisdiction.
Nonetheless, in Stines, 200 N.C.App. at 204, 683 S.E.2d at 418, this Court held that N.C. Gen.Stat. § 14–208.40B mandates that the DOC, in its notice to a defendant of a SBM hearing, must “specify the category set out in N.C. Gen.Stat. § 14–208.40(a) into which the Department has determined the offender falls and briefly state the factual basis for that conclusion.” The notice in this case is materially indistinguishable from the one found insufficient in Stines. As the State concedes, the DOC's notice neither specified the category set out in N.C. Gen.Stat. § 14–208.40(a) (2011) applicable to defendant nor stated a factual basis for the DOC's determination.
Under this Court's holding in Stines, we must vacate the trial court's order and remand for a new hearing. Because we are ordering a new hearing, we do not address defendant's remaining arguments.
Vacated and remanded. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).