State v. Allen

• Court: Court of Appeals of North Carolina
• Decided: February 18, 2014
• Docket: 13-878
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA13-878 NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Alamance County Nos. 04 CRS 54678-79 JAMES RAY ALLEN

Appeal by defendant from order entered 28 May 2013 by Judge

G. Wayne Abernathy in Alamance County Superior Court. Heard in

the Court of Appeals 27 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.

Jason Christopher Yoder for defendant.

DILLON, Judge.

Defendant James Ray Allen appeals from an order requiring

him to register as a sex offender and enroll in a satellite-

based monitoring program for the rest of his natural life. We

reverse the court’s order and remand this case for further

proceedings.

I. Background -2- On 8 February 2007, Defendant entered guilty pleas to one

count of taking indecent liberties with a child and one count of

second-degree sexual offense. The trial court sentenced

Defendant to a term of 84 to 110 months imprisonment for his

conviction for second-degree sex offense. Also, the court

sentenced Defendant to a term of 19 to 23 months imprisonment

for his conviction for taking indecent liberties with a child,

but suspended the sentence on the condition that he be placed on

supervised probation for 30 months.

On 13 March 2013, the North Carolina Department of Public

Safety Division of Adult Correction sent Defendant notice that a

hearing would be held in Alamance County Superior Court to

determine whether he would be subject to satellite-based

monitoring. At the conclusion of the hearing held 28 May 2013,

the superior court concluded that Defendant was convicted of a

reportable conviction as defined by N.C. Gen. Stat. § 14-

208.6(4), and that the offense for which Defendant was convicted

was an aggravated offense. Based on these conclusions, the

superior court ordered Defendant to enroll in satellite-based

monitoring for the remainder of his natural life. Defendant

filed timely notice of appeal.

II. Analysis -3- A. Jurisdictional Challenge

We first address Defendant’s argument that the trial court

lacked jurisdiction to order him to enroll in lifetime

satellite-based monitoring because the notice of hearing did not

state that he could be required to enroll in satellite-based

monitoring for the remainder of his natural life. Defendant’s

argument is without merit.

Our General Assembly has devised a specific procedure,

outside of the Rules of Civil Procedure, for determining

eligibility for satellite-based monitoring and has “clearly

granted the Superior Courts subject matter jurisdiction to

conduct these determinations pursuant to specific statutory

procedures.” State v. Jarvis, 214 N.C. App. 84, 91, 715 S.E.2d

252, 257 (2011). By following these statutory procedures, which

are set forth in N.C. Gen. Stat. § 14-208.40B, the trial court

has jurisdiction, as granted by the General Assembly, to conduct

the hearing. State v. Self, __ N.C. App. __, __, 720 S.E.2d

776, 777 (2011). However, this Court has further explained that

while “the General Assembly ‘within constitutional limitations,

can fix and circumscribe the jurisdiction” upon the trial court,

the specific “notice provisions found in N.C. Gen. Stat. § 14-

208.40B(b) are merely that, notice provisions to protect the due -4- process rights of offenders who are not currently incarcerated.”

State v. Wooten, 194 N.C. App. 524, 527-28, 669 S.E.2d 749, 750-

51 (2008), disc. review denied and cert. dismissed, 363 N.C.

138, 676 S.E.2d 308 (2009).

Here, the State’s written notification to Defendant of the

satellite-based monitoring hearing fully complies with the

provisions of section 14-208.40B(b), and thus the trial court

had jurisdiction over the hearing. While the Division is

required to set forth its initial determination that Defendant

fell into one of the categories of section 14-208.40(a), see

N.C. Gen. Stat. § 14-208.40B(a), the notice provisions of

section 14-208.40B(b) do not limit the jurisdiction of the trial

court to hear and determine a Defendant’s eligibility for

satellite-based monitoring.

B. Ex Post Facto Challenge

Defendant also contends the trial court’s order requiring

him to enroll in satellite-based monitoring based on statutes

that came into effect after his offenses were committed violates

the ex post facto clauses of the United States and North

Carolina Constitutions, citing United States v. Jones, ___ U.S.

___, 181 L. Ed. 2d 911 (2012), notwithstanding that, prior to

Jones, our North Carolina Supreme Court held that our state’s -5- satellite-based monitoring scheme does not violate the ex post

facto clause of either constitution. State v. Bowditch, 364

N.C. 335, 700 S.E.2d 1 (2010). Nevertheless, Defendant asks

this Court to reconsider the issue in light of Jones to

determine whether in Bowditch the North Carolina Supreme Court

properly weighed the Fourth Amendment burdens of forced

satellite-based monitoring searches. We recently considered a

similar argument in State v. Jones, __ N.C. App. __, 750 S.E.2d

883 (2013) (COA13-286); and for the reasons stated therein, this

argument is overruled.

C. Improper Classification Challenge

Defendant argues the trial court erred in ordering him to

enroll in lifetime satellite-based monitoring based on an

alleged conviction for an aggravated offense, because neither

second-degree sex offense nor taking indecent liberties with a

child is an aggravated offense. We agree.

A trial court must order a defendant convicted of a

reportable sex offense to enroll in lifetime satellite-based

monitoring if the defendant has been classified as a sexually

violent predator, is a recidivist, has committed an aggravated

offense, or was convicted of the rape or sex offense of a child

pursuant to N.C. Gen. Stat. §§ 14-27.2A and 14-27.4A. N.C. Gen. -6- Stat. § 14-208.40A(c) (2011). Here, the State contended and the

trial court concluded that Defendant was required to enroll in

lifetime satellite-based monitoring because he committed an

aggravated offense. An aggravated offense is defined as

follows:

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) (2011). When determining whether

a crime constitutes an aggravated offense, a 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. In other words,

the elements of the conviction offense must fit within the

statutory definition of aggravated offense.” State v. Boyett,

__ N.C. App. __, __, 735 S.E.2d 371, 380 (2012) (internal

quotations and citations omitted), superseded in part on other

grounds, __ N.C. App. __, 747 S.E.2d 739 (2013). This Court has

held that based on their elements neither second-degree sex

offense nor taking indecent liberties with a child is an

aggravated offense. Id. at __, 735 S.E.2d 380-81; State v. -7- Davison, 201 N.C. App. 354, 361, 689 S.E.2d 510, 515 (2009),

disc. review denied, 364 N.C. 599, 703 S.E.2d 738 (2010).

Accordingly, we reverse the trial court’s order requiring

Defendant to enroll in a satellite-based monitoring program for

life and remand for a proper determination of defendant’s

eligibility for satellite-based monitoring pursuant to N.C. Gen.

Stat. § 14-208.40A.

Reverse and Remanded.

Chief Judge MARTIN and Judge HUNTER, JR., concur.

Report per Rule 30(e).