Opinion
No. COA15-664
04-05-2016
STATE OF NORTH CAROLINA v. FREDDIE LAMONT WILSON
Roy Cooper, Attorney General, by Joseph Finarelli, Special Deputy Attorney General, for the State. Russell J. Hollers, III 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. New Hanover County, No. 8 CRS 16625 Appeal by defendant from order entered 14 January 2015 by Judge W. Douglas Parsons in New Hanover County Superior Court. Heard in the Court of Appeals 16 November 2015. Roy Cooper, Attorney General, by Joseph Finarelli, Special Deputy Attorney General, for the State. Russell J. Hollers, III for defendant-appellant. DAVIS, Judge.
Freddie Lamont Wilson ("Defendant") appeals from the trial court's order requiring him to enroll in satellite-based monitoring ("SBM"). On appeal, he argues that (1) the trial court erred by failing to make findings sufficient to require his enrollment in SBM; and (2) he is entitled to a hearing on whether being subjected to SBM would violate his Fourth Amendment rights in light of the United States Supreme Court's decision in Grady v. North Carolina, ___ U.S. ___, 135 S.Ct. 1368, 191 L.Ed.2d 459 (2015). After careful review, we reverse the trial court's order and remand for additional findings.
Factual Background
In July of 2008, Defendant engaged in a sexual relationship with Alice, a member of a youth basketball team that he coached who was 16 years old at the time and had recently been diagnosed with autism. Shortly thereafter, Alice's parents discovered in her possession several sexually explicit letters written by Defendant. They turned these letters over to the New Hanover County Sheriff's Office, which, in turn, led to a criminal investigation of Defendant.
The pseudonym "Alice" is used throughout this opinion to protect the identity of the minor child and for ease of reading.
On 27 October 2008, Defendant was indicted on two counts of sexual activity by a substitute parent. On 15 January 2009, Defendant pled guilty to both counts. That same day, the trial court sentenced Defendant to 17-30 months imprisonment for the first count and 17-30 months imprisonment for the second count to run at the expiration of the first sentence. The court then suspended the second sentence and placed Defendant on supervised probation for a period of 60 months.
On 22 September 2014, the Division of Adult Correction of the North Carolina Department of Public Safety ("the DAC") served Defendant with notice that it had made an initial determination that he was eligible for enrollment in SBM. The DAC simultaneously scheduled a hearing pursuant to N.C. Gen. Stat. § 14-208.40B(b).
N.C. Gen. Stat. § 14-208.40B(b) provides, in pertinent part, that "[i]f 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) (2015).
A hearing was held before the Honorable W. Douglas Parsons in New Hanover County Superior Court on 14 January 2015. Prior to the hearing, Defendant filed a motion to dismiss in which he contended, inter alia, that his enrollment in SBM would violate his right under the Fourth Amendment to be free from unreasonable searches.
At the hearing, the State introduced into evidence a "Revised STATIC-99 Coding Form" ("STATIC-99") for Defendant. The STATIC-99 contained a determination that Defendant was in the "low risk" category for potential recidivism. The State further provided the trial court with the transcript of Defendant's January 2009 plea hearing. In addition, the court heard testimony from Alice's mother.
"The STATIC-99 Risk Assessment is an actuarial instrument designed to estimate the probability of sexual and violent recidivism among male offenders who have already been convicted of at least one sexual offense against a child or non-consenting adult. The Department of Correction uses the STATIC-99 risk assessment to determine levels of supervision required for offenders. The STATIC-99 factors include: (1) the age of the offender, (2) whether the offender has ever lived with a lover for at least two years, (3) non-sexual violence convictions, (4) prior sexual offense charges and convictions, (5) prior sentencing dates, (6) convictions for non-contact sex offenses, (7) any unrelated victims, (8) stranger victims, or (9) male victims." State v. Morrow, 200 N.C. App. 123, 125 n.3, 683 S.E.2d 754, 757 n.3 (internal citations, quotation marks, and brackets omitted), disc. review denied, 363 N.C. 747, 689 S.E.2d 372 (2009), aff'd per curiam, 364 N.C. 424, 700 S.E.2d 224 (2010).
At the conclusion of the hearing, the trial court entered a written order prepared by the State on an AOC-CR-616 form requiring that Defendant enroll in SBM until 17 October 2022. On 3 February 2015, Defendant filed a timely notice of appeal.
Analysis
I. Enrollment in SBM
On appeal, Defendant initially argues that the trial court erred in ordering that he be enrolled in SBM based solely on his STATIC-99 in the absence of additional findings that would support such an order. The State concedes error on this issue, and we agree.
"On appeal from 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." State v. Green, 211 N.C. App. 599, 601, 710 S.E.2d 292, 294 (2011) (citation and quotation marks omitted).
It is well settled that "[t]he procedure for SBM hearings is set forth in N.C. Gen. Stat. §§ 14-208.40A and 14-208.40B. . . . N.C. Gen. Stat. § 14-208.40B applies in cases in which the offender has been convicted of an applicable conviction and the trial court has not previously determined whether the offender must be required to enroll in SBM." State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432-33 (2009).
Subsection (c) of N.C. Gen. Stat. § 14-208.40B states, in pertinent part, as follows:
(c) At the hearing, the court shall determine if the offender falls into one of the categories described in G.S. 14-208.40(a). The court shall hold the hearing and make findings of fact pursuant to G.S. 14-208.40A.N.C. Gen. Stat. § 14-208.40B(c) (2015).
. . . .
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 or a violation of G.S. 14-27.23 or G.S. 14-27.28, and the offender is not a recidivist, the court shall order that the Division of Adult Correction do a risk assessment of the offender. . . .
Upon receipt of a risk assessment from the Division of Adult Correction, the court shall determine whether, based on the Division of Adult Correction'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.
In applying this statutory procedure, we have held that "if the only evidence presented to the trial court is a STATIC-99 risk assessment of 'Moderate,' the trial court errs in imposing SBM. If the State presents additional evidence, and the trial court makes additional findings, then the trial court may order SBM." State v. Smith, ___ N.C. App. ___, ___, 769 S.E.2d 838, 840 (2015) (internal citation omitted and emphasis added); see also Green, 211 N.C. App. at 601, 710 S.E.2d at 294 ("This Court has previously held that a DOC risk assessment of 'moderate,' without more, is insufficient to support the finding that a defendant requires the highest possible level of supervision and monitoring. However, in the face of a DOC risk assessment of 'moderate,' a trial court's determination that the defendant requires the highest possible level of supervision may be adequately supported where the trial court makes additional findings regarding the need for the highest possible level of supervision and where there is competent record evidence to support those additional findings." (internal citations and quotation marks omitted)).
In the present case, the STATIC-99 introduced at the hearing determined Defendant to be in the "low" risk category for potential recidivism — a category below the "moderate" risk category. Therefore, additional appropriate findings were necessary before the trial court could order that Defendant be enrolled in SBM. However, the trial court did not make any such findings. In announcing its ruling, the trial court did, however, state the rationale for its decision:
I will tell you my reasoning although I don't need to. Based on these facts, I don't think it is out of order, except for the fact that he did make the decision to choose an autistic young lady, which makes a difference to me in terms of his thought process, in terms of what I am afraid might cloud his judgment again and I would prefer that this protection be afforded to other people until he is 75 years of age.
We addressed an analogous set of circumstances in Kilby. In Kilby, the defendant pled guilty in 2002 to one count of second degree sexual offense and six counts of indecent liberties with a child. In 2008, an SBM hearing was held pursuant to N.C. Gen. Stat. § 14-208.40B. Kilby, 198 N.C. App. at 364-65, 679 S.E.2d at 431. At the hearing, the State introduced a risk assessment of the defendant that determined he was in the "moderate" category for potential recidivism. Id. at 366, 679 S.E.2d at 432. Based on this report and without making any additional findings, the trial court ordered the defendant to enroll in SBM for a period of five to ten years. Id. at 365, 679 S.E.2d at 431.
On appeal, we held that
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.
. . . .
The State did not present evidence which could support a finding that defendant requires the highest possible level of supervision and monitoring. The DOC assessment of defendant rated him as a moderate risk. The State's other evidence indicated that defendant was fully cooperating with his post release supervision, which might support a finding of a lower risk level, but not a higher one. 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. at 369-70, 679 S.E.2d at 434 (internal citation, quotation marks, and brackets omitted).
Similarly, in State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262 (2009), an SBM hearing was held for a defendant who had previously been found guilty of taking indecent liberties with a child. Id. at 113-14, 683 S.E.2d at 262-63. The trial court relied upon a STATIC-99 assessment of the defendant that found him to be at the "moderate" risk level for potential recidivism. Id. at 114, 683 S.E.2d at 263. The trial court entered an order requiring the defendant to enroll in SBM, making this determination by "relying upon only the typewritten findings already set out in the form, including the findings (1) that defendant had committed an offense involving the physical, mental, or sexual abuse of a minor and (2) that defendant 'requires the highest possible level of supervision and monitoring based on the Department of Correction's risk assessment program.'" Id. The trial court "made no further findings of fact to support this determination." Id. at 116, 683 S.E.2d at 264.
On appeal, we reversed the trial court's order in light of our decision in Kilby. Id. at 114, 683 S.E.2d at 263. We noted that
[w]ith respect to the risk assessment phase, in Kilby, as in
this case, the DOC risk assessment concluded that defendant posed a "moderate" risk of reoffending. The trial court in that case, using the same AOC form used here, nonetheless found that the defendant requires the highest possible level of supervision and monitoring. The Kilby trial court, like the trial court here, made no further findings of fact to support this determination.Id. at 115-16, 683 S.E.2d at 264 (internal citations and quotation marks omitted).
We concluded that "[a]s the DOC assessed defendant herein as a 'moderate' risk and the State presented no evidence to support findings of a higher level of risk or to support the requirement for the highest possible level of supervision and monitoring, the trial court's order is reversed." Id. at 117, 683 S.E.2d at 265 (citation, quotation marks, and brackets omitted).
As the State concedes, the present case is indistinguishable from Kilby and Causby on the issue of whether the trial court's order was legally sufficient. However, it is necessary for us to also determine whether the trial court's order must be simply reversed or, alternatively, whether the matter should be remanded for the trial court to make further findings. See Kilby, 198 N.C. App. at 370, 679 S.E.2d at 434 ("We must now consider whether evidence was presented which could support findings of fact which could lead to a conclusion that the defendant requires the highest possible level of supervision and monitoring. If such evidence was presented, it would be proper to remand this case to the trial court to consider the evidence and make additional findings, as requested by the State." (internal quotation marks omitted)).
Here, in addition to introducing the STATIC-99, the State also called Alice's mother as a witness at the hearing, and she testified, in pertinent part, as follows:
Q. Is there anything -- as the Judge has just instructed, is there anything else that you think is important for the Court to know about [Defendant] and whether or not he needs the highest level of monitoring supervision for the children of New Hanover County?
A. [Defendant] is an excellent communicator. He was able to -- he was able to convince myself and many, many other people that he was a good person to be a custodial [sic] while they were practicing and even, you know, take care of them. He's very, very good at that. I would never, you know, I never thought that way. So I mean, I was not able to -- I couldn't even consider, you know, thinking, oh, what would he do, what could he do? He just seemed like a good person who had an interest in children. I hope that for other children in this state, in this place, in this area, wherever he resides, that they are completely aware and that, you know, he wears something that monitors him so, you know, that he's not going to be in a place where children are because he can be very persuasive. And what happened to my daughter, nothing should ever happen like it happened to my daughter. She still has severe PTSD symptoms and may never recover.
In light of this evidence presented by the State at the hearing, we believe that remand is appropriate. See State v. Jarvis, 214 N.C. App. 84, 95, 715 S.E.2d 252, 259 (2011) (remanding case where trial court erred in relying on STATIC-99 form and failed to make sufficient additional findings of fact in SBM order despite fact that State introduced testimony of detective and victim's mother at hearing). II. Effect of Grady v. North Carolina
Defendant's final argument on appeal is that his enrollment in SBM violated his right under the Fourth Amendment to be free from unreasonable searches in light of the United States Supreme Court's decision in Grady. In Grady, the Supreme Court held that the SBM program in North Carolina constitutes a search under the Fourth Amendment. See Grady, ___ U.S. at ___, 135 S.Ct. at 1371, 191 L.Ed.2d at 462 ("The State's [SBM] program is plainly designed to obtain information. And since it does so by physically intruding on a subject's body, it effects a Fourth Amendment search.").
The Court further stated that this
conclusion, however, does not decide the ultimate question of the program's constitutionality. The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. The North Carolina courts did not examine whether the State's monitoring program is reasonable — when properly viewed as a search — and we will not do so in the first instance.Id. at ___, 135 S.Ct. at 1371, 191 L.Ed.2d at 462-63 (internal citations omitted).
We agree — and the State concedes — that a remand is necessary on this issue as well. See State v. Collins, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (filed Feb. 16, 2016) (No. COA15-659) ("The appropriate disposition is to remand for resentencing. . . . As part of Defendant's resentencing, the trial court shall also conduct a new hearing on whether the imposition of lifetime satellite-based monitoring is consistent with Grady, ___ U.S. ___, 191 L.Ed.2d 459 (2015)[.]"). On remand, in the event that the trial court once again determines that Defendant's enrollment in SBM is appropriate, it must then conduct a hearing and determine whether the application of SBM to Defendant would violate his rights under the Fourth Amendment under the totality of the circumstances. See State v. Blue, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (filed Mar. 15, 2016) (No. COA15-837) ("We reverse the trial court's order and remand for a new hearing in which the trial court shall determine if SBM is reasonable, based on the totality of the circumstances, as mandated by the Supreme Court of the United States in Grady v. North Carolina[.]").
Conclusion
For the reasons stated above, we reverse the trial court's order and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Chief Judge McGEE and Judge DILLON concur.
Report per Rule 30(e).