State v. Oxendine

696 S.E.2d 850, 206 N.C. App. 205, 2010 N.C. App. LEXIS 1450

Opinions

HUNTER, JR., Robert N., Judge.

Leon Oxendine, Jr. (“defendant”) was ordered to enroll in satellite-based monitoring (“SBM”) for ten years after release from prison for sexual crimes to which defendant pled guilty. Defendant now appeals from the trial court’s judgment arguing that the court erred by (1) finding defendant required the “highest possible level of supervision and monitoring” and (2) ordering defendant to enroll in SBM given that the Department of Corrections’ (“DOC”) risk assessment determined defendant was a low level risk. In addition, defendant argues that, in the event this Court fails to reverse his sentence based on the aforementioned assignments of error, the Court should hold the SBM statute unconstitutional on due process grounds for vagueness or lack of statutory notice. With regard to defendant’s appeal, the State concedes that the trial court’s judgment should be vacated due to defendant’s low risk assessment, and in light of this Court’s recent decisions in State v. Kilby, - N.C. App. -, 679 S.E.2d 430 (2009) (concluding that the findings of fact were insufficient to support the trial court’s conclusion that “defendant required the highest possible level of supervision and monitoring” based upon a “moderate” risk assessment from DOC), and State v. Causby, N.C. App. -, 683 S.E.2d 262 (2009) (applying and adopting the holding in Kilby). As Kilby and Causby are controlling, and defendant was assessed to be a “low” level risk, we reverse the decision of the trial court. However, in light of State v. McCravey, - N.C. App. -, -, S.E. -, - 2010 N.C. App. LEXIS 722 (filed 4 May 2010) (No. COA09-712) (holding that second-degree rape pursuant to N.C. Gen. Stat. § 14-27.3(a) (2009) is an aggravated offense as defined by the statute), we remand to the trial court for entry of an order consistent with this Court’s present ruling.

I. FACTUAL BACKGROUND

On 8 September 2008, defendant was indicted for three counts of second-degree rape involving a mentally disabled victim, two counts of statutory rape by a defendant more than six years older than the victim, and five counts of statutory sex offense by a defendant in a parental role. On 9 March 2009, defendant pled guilty to all charges following a plea agreement with the State. The trial court consolidated the convictions for judgment and sentenced defendant to an active term of 173 to 217 months’ imprisonment.

After defendant was sentenced, the trial court attempted to assess defendant’s SBM eligibility on three occasions — occurring on 9 March 2009 and 10 March 2009 — after a request was made to do so by the State pursuant to N.C. Gen. Stat. § 14-208.40A (2009).

In its first assessment, on 9 March 2009, the trial court made several findings of fact, relying on AOC-CR-615 — Judicial'Findings and Order for Sex Offenders, including that defendant: (1) was convicted of an offense against a minor, (2) was not classified as a sexually violent offender, (3) was not a recidivist, (4) the offense of conviction was not an aggravated offense, and (5) that the offense of conviction involved the physical, mental or sexual abuse of a minor. Based on these findings, the court ordered that defendant enroll in the SBM program upon his release from prison. The court did not require that DOC'conduct a Static 99¹ risk assessment or specify a particular duration for the monitoring. Defendant’s counsel gave immediate notice of appeal to the trial court’s order and expressed doubts about the correctness of the court’s determination.

After a brief recess, the trial court struck its initial order and findings of fact and in its second assessment, again relying on AOC-CR-615, made essentially the same findings of fact, except that the court specifically noted that defendant had been convicted of the reportable conviction of rape of a child under the age of twelve as a principal, in violation of N.C. Gen. Stat. § 14-27.2A (2009). Moreover, when asked whether the evidence supported a finding that the offense of conviction was an aggravated offense, the State specifically stated that defendant’s conviction was not an aggravated offense. After conducting its findings, the court acknowledged that DOC had not conducted a Static- 99 risk assessment, but nonetheless ordered that defendant enroll in SBM for his natural life following his release from prison. Subsequently, the trial court struck the findings in its second order after the prosecutor notified the trial court that N.C.G.S. § 14-27.2A was inapplicable because defendant’s victims were not under the age of twelve as required by the statute.

In its third assessment of defendant’s SBM eligibility, the trial court again made findings of fact pursuant to AOC-CR-615 and specifically found that defendant’s convictions for second-degree rape were aggravated offenses, as defined by N.C. Gen. Stat. § 14-208.6(la) (2009). Before the trial court’s findings were made, when asked a second time whether defendant’s conviction was an aggravated offense, the State answered

No, sir. The definition of aggravated offense is by force or engaging in a sexual act involving vaginal, anal or oral penetration where the victim was less than 12. And the crimes that he is charged with are not forceable. .

That the second-degree rape was due to the mental retardation of the child, of the woman, and the statutory crimes were not enforceable [sic].

After the trial court inquired as to whether defendant had pled guilty to second-degree rape, the State replied in the affirmative, and stated that “the allegation in the indictment was that — it could be force that the victim was mentally retarded” and that, since “it is alleged by force and against their will[,] I would concur, then, that that is an aggravated offense.” Before determining whether defendant should enroll in SBM upon his release for life or for a specific number of years, the trial court ordered DOC to conduct a Static 99 risk assessment of defendant. Chief Probation and Parole Officer Tom Grant conducted defendant’s risk assessment, and on 10 March 2009, testified that defendant’s answers generated a score of “1,” placing him in a “low” category. Based on this and further discussion, the trial court again struck its findings of fact from the previous SBM eligibility assessment.

In its final assessment, the trial court again made the same findings of fact as it had in the previous assessment, except that the court found that defendant had not been convicted of an aggravated offense. During this assessment, the trial court acknowledged that there had been disagreement about whether second-degree rape was an aggravated offense. However, at this time, the court specifically asked the State, “[a]s I understand it, the contention was that the 18-year-old [victim] had some mental instability while there was not even actual physical force with the threat of serious violence to that victim; is that correct?” The State responded, “[t]hat’s correct!]” without explicitly objecting to any aspect of the trial court’s order. Based on the findings, the trial court ultimately ordered that defendant be enrolled in the SBM program for a period of ten years upon his release from prison. Defendant gave oral notice of appeal from the court’s 10 March 2009 order.

II. ISSUES ON APPEAL

Defendant raises three issues on appeal: (1) whether the trial court erred in finding that defendant required the “highest possible level of supervision and monitoring” and by ordering him to enroll in SBM; (2) whether the SBM statutes are facially unconstitutional and, as applied to defendant, violate both state and federal provisions for vagueness and overbreath; and (3) whether the trial court’s order violates defendant’s due process rights. In the absence of evidence sufficient to contradict DOC’s risk assessment, the State concedes that the trial court’s order requiring that defendant receive the “highest possible level of supervision and monitoring” and enroll in SBM for a period of ten years following his release from prison should be vacated. Based on the analysis below, we reverse the trial court’s order.

We also note that the State filed a Petition for Writ of Certiorari concurrent with its brief arguing that defendant should nonetheless be required to enroll in lifetime SBM given that he pled guilty to three counts of second-degree rape of a mentally disabled victim, an aggravated offense as defined by N.C.G.S. § 14-208.6(1a). In light of this Court’s decision in McCravey, - N.C. App. at -, - S.E.2d at - (holding as an issue of first impression, that second-degree rape pursuant to N.C.G.S. § 14-27.3(a) is an aggravated offense as defined by the statute), and the extensive discussion of this issue in the trial court, we grant the State’s petition for certiorari.

III. GROUNDS FOR APPELLATE REVIEW OF DEFENDANT’S APPEAL

We note that defendant gave oral notice of appeal at the SBM hearing from the trial court’s final order. SBM hearings and proceedings are civil regulatory proceedings; therefore, defendant’s oral notice of appeal is insufficient to confer jurisdiction on this Court. State v. Bare, - N.C. App. -, -, 677 S.E.2d 518, 527 (2009); see State v. Brooks, - N.C. App. -, -, 693 S.E.2d 204, 206 (2010) (holding that oral notice of appeal from an SBM hearing or proceeding is insufficient to confer jurisdiction on this Court, and instructing that a defendant must, instead, give written notice of appeal with the clerk of superior court and serve copies of such notice upon all parties pursuant to N.C.R. App. R 3(a)). However, in the interest of justice, and to expedite the decision in the public interest, we ex mero motu treat defendant’s brief as a petition for certiorari and grant said petition to address the merits of defendant’s appeal.

IV. ANALYSIS

A. Standard of Review

The Court recently stated in State v. Kilby that “whether ‘[an] offender requires the highest possible level of supervision and monitoring],]’ is neither clearly a question of fact nor a conclusion of law.” Kilby, - N.C. App. at -, 679 S.E.2d at 432. The Court in Kilby held that, on appeal, the trial court’s order should be reviewed to ensure that “the determination that ‘defendant requires the highest possible level of supervision and monitoring’ ‘reflects] a correct application of law to the facts found.’ ” Id. (alteration in original).

B. SBM Hearing Procedure

Where, as in the present case, a defendant has been convicted of a reportable offense pursuant to N.C.G.S. § 14.208.6(4) involving the physical, mental or sexual abuse of a minor and the district attorney has requested that the trial court consider SBM during the defendant’s sentencing hearing pursuant to N.C.G.S. § 14.208.40A, the trial court is required to base its determination that defendant enroll in SBM on evidence presented during two phases — a “qualification” phase and a “risk assessment” phase. Causby, - N.C. App. at -, 683 S.E.2d at 264 (citing Kilby, - N.C. App. at -, 679 S.E.2d at 433).

During the qualification phase, the Court in Causby provides that the following events must occur:

[First,] the “district attorney shall present to the court any evidence” that the defendant falls into one of five categories: “(i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.2A or G.S. 14-27.4A, or (v) the offense involved the physical, mental, or sexual abuse of a minor.” N.C. Gen. Stat. § 14-208.40A(a). [Second,] [u]pon receipt of the evidence from the State and any contrary evidence from the offender, the trial court is required to determine “whether the offender’s conviction places the offender” in one of the five categories and to “make a finding of fact of that determination,” specifying the category into which the offender falls. N.C. Gen. Stat. § 14-208.40A(b).

Id. In the present case, defendant pled guilty to several reportable offenses as defined by N.C.G.S. § 14-208.6(4) and the trial court, after receiving evidence from the State, found that defendant’s offense involved the physical, mental, or sexual abuse of a minor. Defendant does not argue that the trial court erred in making this determination during the qualification phase, thus we do not question nor address its accuracy on appeal.

Where the reportable offense involves the physical, mental, or sexual abuse of a minor, and the defendant was not convicted of an aggravated offense, or determined to be a recidivist or a sexually violent predator, the trial court must order that DOC conduct a Static 99 risk assessment of the defendant. N.C.G.S. § 14-208.40A(d). If the trial court determines that the defendant requires the “highest possible level of supervision and monitoring” based on DOC’s Static 99 risk assessment that defendant poses a “high” risk of re-offending, the court is required to order the defendant to enroll in a satellite-based monitoring program for a period of time to be specified by the court. N.C.G.S. § 14-208.40A(e); Causby, - N.C. App. at -, 683 S.E.2d at 263; Kilby, - N.C. App. at -, 679 S.E.2d at 434.

In the present case, DOC’s Static 99 risk assessment concluded that defendant posed a “low” risk of re-offending. Based solely on DOC’s assessment, with no further findings of fact or additional evidence from the State to support its determination, the trial court found that defendant “requires the highest possible level of supervision and monitoring” and ordered defendant to enroll in SBM for a period of ten years following his release from prison. On appeal, the State concedes that the trial court’s ruling should be vacated in light of defendant’s “low” risk assessment and this Court’s recent holdings in Kilby and Causby. In Kilby and Causby, our Court held that a DOC risk assessment of “moderate,” without any other evidence as to the defendant’s risk of recidivism, was insufficient to support the trial court’s finding that defendant “requires the highest possible level of supervision and monitoring.” Causby, - N.C. App. at -, 683 S.E.2d at 263; Kilby, - N.C. App. at -, 679 S.E.2d at 434. Therefore, applying these holdings to the present case, the trial court’s determination was clearly erroneous.

Defendant’s remaining assignments of error ask this Court to hold the SBM statute unconstitutional on due process grounds for vagueness or lack of statutory notice. Defendant did not raise the constitutionality of the SBM statute before the trial court by asserting an objection on this basis. “Appellate courts will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court.” State v. Cumber, 280 N.C. 127, 131-32, 185 S.E.2d 141, 144 (1971). Moreover, we note that this Court has previously rejected similar arguments to those presently raised by defendant where defendant failed to preserve the issue for appeal. See State v. Morrow, - N.C. App. -, -, 683 S.E.2d 754, 758-59 (2009) (dismissing defendant’s constitutional challenge to the SBM statute where defendant failed to raise the issue in the trial court). As such, we dismiss defendant’s remaining assignments of error.

Based on the aforementioned, we reverse the trial court’s order requiring defendant to enroll in SBM based on DOC’s risk assessment of defendant. However, because we grant the State’s petition for writ of certiorari, we remand this matter to the trial court to enter an appropriate order in light of McCravey.

Reversed and remanded.

Judge ERVIN concurs. Judge STROUD concurs in the result with separate opinion.

1 . Where the trial court finds that a male offender committed an offense involving the physical, mental, or sexual abuse of a minor, the court must order DOC to do a Static 99 risk assessment on the offender, allowing at least 30 days but not more than 60 days to complete the assessment. The Static 99 is an actuarial instrument normalized for use with adult males age 18 and older which involves taking answers from an offender to ten standard, predetermined questions, wherein the offender’s answers are assigned a point value and tabulated, with the total determining whether the offender poses a low, moderate or high risk of recidivism.