State v. Spry

• Court: Court of Appeals of North Carolina
• Decided: February 5, 2025
• Docket: 24-129
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-129

Filed 5 February 2025

Guilford County, Nos. 06CRS99612-13 07CRS24002

STATE OF NORTH CAROLINA

v.

NICHOLAS JAMES SPRY

Appeal by defendant by writ of certiorari from orders entered 7 March 2023

and 2 June 2023 by Judge R. Stuart Albright in Guilford County Superior Court.

Heard in the Court of Appeals 15 January 2025.

Attorney General Jeff Jackson, by Assistant Attorney General, Caden W. Hayes, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender, Heidi Reiner, for the defendant.

TYSON, Judge.

Nicholas James Spry (“Defendant”) appeals the 7 March 2023 order denying

his Motion for Appropriate Relief (MAR) and the 2 June 2023 order denying his

“supplemental” MARs. We vacate and remand to the trial court to hold an

evidentiary hearing regarding Defendant’s MARs.

I. Background

Defendant robbed an adult employee at a restaurant in Greensboro on 25

November 2006. He was subsequently indicted for three crimes stemming from that STATE V. SPRY

Opinion of the Court

robbery: common law robbery, second-degree kidnapping, and attempted second-

degree kidnapping. The two kidnapping indictments alleged Defendant had

attempted to kidnap Kate and had kidnapped Leslie, who were both “person[s] under

the age of sixteen (16) years.”

Defendant entered into a plea bargain and pled guilty to all three charges on

30 January 2007. Consistent with the plea arrangement, the trial court consolidated

the offenses for judgment and sentenced Defendant to an active term of 25 to 39

months of imprisonment, and he was placed on nine months of post-release

supervision. On the original judgment, the sentencing judge failed to check the box

indicating “the above designated offense(s) is a reportable conviction involving a

minor. G.S. 14-208.6.”

The Combined Records Section of North Carolina Department of Correction

sent a letter to the trial court in February 2007 asking for clarification of the victims’

ages for the kidnapping and attempted kidnapping offenses. Without prior notice nor

Defendant being present, the trial court entered a “corrected” judgment on 5 March

2007, which included the now-checked box indicating “the above designated offense(s)

is a reportable conviction involving a minor. G.S. 14-208.6.”

Defendant originally pled guilty to second-degree kidnapping and attempted

second-degree kidnapping, both in violation of N.C. Gen. Stat. § 14-39 (2005). After

the “correction” of the original judgment, and although the indictment did not allege

Defendant had committed a sexual offense against the purportedly minor victims,

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Defendant was required to register under the Sex Offender and Public Protection

Registration Program pursuant to N.C. Gen. Stat. § 14-208.6(4) (2005). See N.C. Gen.

Stat. §§ 14-208.5 to 14-208.46 (2023) (Sex Offender and Public Protection

Registration Programs); State v. Sakobie, 165 N.C. App. 447, 453, 598 S.E.2d 615, 619

(2004) (“The language of section 14-208.6(1[m]) is clear and unambiguous: an offense

against a minor includes kidnapping pursuant to N.C. Gen. Stat. § 14-39.”).

Because the kidnapping offenses required Defendant to register as a sex

offender, Defendant was also sentenced to five years of post-release supervision

pursuant to N.C. Gen. Stat. § 15A-1368.2(c) (2005) (providing a person convicted of a

class F through I felony was required to receive nine months of post-release

supervision “unless the offense is an offense for which registration is required,” in

which case “the period of post-release supervision is five years”). In sum, the

“corrected” judgment sentenced Defendant to 25 to 39 months of active imprisonment,

placed him on five years of post-release supervision, and required him to register as

a sex offender.

Defendant was not present when the “corrected” judgment was entered, and

the record is devoid of any proof Defendant was aware of the letter sent from

Combined Records. Defendant’s first MAR asserts Defendant only learned of the

“corrected” judgment shortly before he was released from prison in April of 2009,

more than two years after the “corrected” judgment was entered.

Richard Wells (“Wells”), the counsel who represented Defendant when he

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entered into the plea agreement on 30 January 2007, was appointed to represent

Defendant on his Petition for Termination of Sex Offender Registration in 2022.

When reviewing Defendant’s court documents, Wells “noticed that [he] almost

certainly didn’t advise [Defendant] on sex registration.” Wells noticed this, in part,

because Wells had failed to instruct another defendant on mandatory sex registration

in an unrelated case on 7 February 2007, merely one week after Defendant entered

into his plea agreement. Wells, on his own initiative, met with Defendant and agreed

to draft a MAR.

Defendant, proceeding pro se, filed the MAR drafted by Wells on 26 January

2023, nearly sixteen years after the “corrected” judgment was entered. The MAR

sought to vacate Defendant’s guilty plea, asserting Defendant was never informed he

would be required to register as a sex offender or be subject to the extended post-

release supervision consequences of that registration status. Defendant supported

his MAR with the following: (1) his own affidavit; (2) an affidavit from his trial

counsel, both of whom asserted neither sex offender registration nor extended post-

release supervision were ever discussed prior to Defendant’s guilty plea; and, (3) the

letter from Combined Records to the court, which led to an amended judgment

identifying the kidnapping as a reportable conviction involving a minor.

The trial court summarily denied Defendant’s MAR on 7 March 2023 based

upon its finding the “matter presents only legal issues, which may be resolved without

an evidentiary hearing.” The court in the order found: (1) sex offender registration

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constituted a collateral consequence of Defendant’s guilty plea; (2) sex offender

registration did not affect the voluntariness of Defendant’s plea; and, (3) potential

registration did not need to be disclosed by Defendant’s counsel.

Although Defendant was never provided with the requested transcript of his

plea, the trial court found the original sentencing judge had “asked all of the required

questions and made all of the findings set forth in NCGS 15A-1022”, and “the trial

court’s plea colloquy with Defendant was in all respects legally valid.”

The trial court took judicial notice of the following facts: Defendant had filed

his MAR “more than fifteen” years after he had entered his plea; Defendant had been

convicted of failing to register as a sex offender on multiple occasions in 2012;

Defendant pled guilty to failing to register as a sex offender in 2016; Defendant did

not challenge his duty to register as a sex offender in those subsequent proceedings,

either prior to his failure to register as a sex offender convictions or in postconviction

MARs; and, Defendant waited to file his MAR after his request to be removed from

the sex offender registration was denied. The trial court found “the unambiguous

record shows Defendant was well aware of his requirement to register as a sex

offender when he entered his guilty plea in this case in 2007.”

Defendant filed additional motions on 1 May and 17 May 2023, which sought

relief in a “supplemental” MAR and a copy of the stenographic transcript of the plea

hearing. In the first motion, Defendant again argued his plea was involuntary,

emphasizing he was unaware he would be placed on post-release supervision for five

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years because of his sex offender registration, when he agreed to, expected to, and

was originally sentenced to receive nine months post-release supervision. He also

argued his first MAR was improperly denied without an evidentiary hearing. In his

second motion on 17 May 2023, he contended, for the first time, that the sentencing

judge had “made improper statements regarding plea and participated in plea

arrangement.”

The trial court denied Defendant’s motions on 2 June 2023. The order treated

petitioner’s two filings as “supplemental” MARs and summarily denied both filings

as procedurally barred, based on the denial of petitioner’s original MAR. The record

is devoid of any proof Defendant ever received a transcript of the original plea

hearing. Defendant appeals.

II. Jurisdiction

A prior panel of this Court granted Defendant’s petition for writ of certiorari

on 31 August 2023. N.C. R. App. P. 21(a)(1). See State v. Saldana, 291 N.C. App.

674, 677, 896 S.E.2d 193, 196 (2023) (“Because Defendant filed the MAR ‘long after

the time for taking appeal had expired, he can obtain appellate review of the court’s

ruling only by a petition for a writ of certiorari.’” (quoting State v. Isom, 119 N.C. App.

225, 227, 458 S.E.2d 420, 421 (1995))), review dismissed, cert. denied, 901 S.E.2d 800

(2024).

III. Motions for Appropriate Relief

Defendant seeks review of the 7 March 2023 order summarily denying his

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original MAR and the 2 June 2023 order denying his supplemental MARs. Defendant

argues the trial court erred by summarily denying his MARs and concluding his

guilty plea was knowingly and voluntarily entered and the consequences thereof were

collateral or indirect.

A. Standard of Review

This Court reviews de novo an order summarily denying an MAR. State v.

Allen, 378 N.C. 286, 296, 861 S.E.2d 273, 281 (2021). The Court must determine

“whether the evidence contained in the record and presented in [the] MAR—

considered in the light most favorable to [Defendant]—would, if ultimately proven

true, entitle him to relief.” Id.

A defendant is entitled to an evidentiary hearing on his MAR “[i]f answering

this question requires resolution of any factual disputes[.]” Id. at 297, 861 S.E.2d at

281. “By contrast, when a defendant’s MAR ‘presents only questions of law, including

questions of constitutional law, the trial court must determine the motion without an

evidentiary hearing.’” Id. at 296, 861 S.E.2d at 281 (quoting State v. McHone, 348

N.C. 254, 257, 499 S.E.2d 761, 763 (1998)).

The trial court summarily denied Defendant’s MAR after finding the motion

presented solely a legal question versus a factual one: whether the requirement that

Defendant register as a sex offender and its consequences affected the validity of his

guilty plea.

B. Analysis

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“Under Boykin, due process, as established by the Fourteenth Amendment to

the United States Constitution, requires that a defendant’s guilty plea be made

voluntarily, intelligently and understandingly.” State v. Bozeman, 115 N.C. App. 658,

661, 446 S.E.2d 140, 142 (1994) (citing Boykin v. Alabama, 395 U.S. 238, 244, 23

L.Ed.2d 274, 280 (1969)).

“Although a defendant need not be informed of all possible indirect and

collateral consequences, the plea nonetheless must be ‘entered by one fully aware of

the direct consequences, including the actual value of any commitments made to him

by the court. . . .’” Id. (first quoting Brady v. United States, 397 U.S. 742, 755, 25

L.Ed.2d 747, 760 (1970) (emphasis supplied); then citing State v. Mercer, 84 N.C. App.

623, 627, 353 S.E.2d 682, 684 (1987)).

“Direct consequences are those that have a definite, immediate and largely

automatic effect on the range of the defendant’s punishment.” State v. Smith, 352

N.C. 531, 551, 532 S.E.2d 773, 786 (2000) (quotation marks and citation omitted).

“However, [t]he imposition of a sentence or sentences may have a number of collateral

consequences, and a plea of guilty is not rendered involuntary in a constitutional

sense if the defendant is not informed of all of the possible indirect and collateral

consequences.” State v. Bare, 197 N.C. App. 461, 479, 677 S.E.2d 518, 531 (2009)

(emphasis supplied) (quotation marks and citation omitted).

Nevertheless, “[a] defendant cannot plead guilty without being informed of

collateral consequences that might affect their taking the plea.” State v. Womble, 277

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N.C. App. 164, 193, 858 S.E.2d 304, 323 (2021) (citing Padilla v. Kentucky, 559 U.S.

356, 371, 176 L. Ed. 2d 284, 297 (2010)).

Defendant argues he was not informed and was factually unaware of two

consequences when entering his guilty plea to the two kidnapping charges: (1) sex

offender registration; and, (2) the imposition of five years of post-release supervision,

compared to the nine months of post-release supervision to which the parties agreed

in the plea agreement and imposed in the original judgment.

1. Question of Fact

Before we address whether sex offender registration or the extended post-

release supervision period to which Defendant was subjected were direct or collateral

consequences of Defendant’s guilty plea, we must address whether the trial court

erred by failing to hold an evidentiary hearing. Defendant argues the trial court erred

by summarily dismissing his MARs. We agree.

A defendant is entitled to an evidentiary hearing if the trial court’s ruling on a

defendant’s MAR requires the trial court to settle “any factual disputes[.]” Allen, 378

N.C. at 297, 861 S.E.2d at 281. Additionally, our General Statutes require trial courts

to record and retain “[a] verbatim record of the proceedings at which the defendant

enters a plea of guilty[.]” N.C. Gen. Stat. § 15A-1026 (2023). “This record must

include the judge’s advice to the defendant, and his inquiries of the defendant,

defense counsel, and the prosecutor, and any responses.” Id.

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“[I]n most cases[,] reference to the verbatim record of the guilty plea

proceedings will conclusively resolve all questions of fact raised by a defendant’s

motion to withdraw a plea of guilty and will permit a trial judge to dispose of such

motion without holding an evidentiary hearing.” State v. Dickens, 299 N.C. 76, 84,

261 S.E.2d 183, 188 (1980) (citation omitted). “[R]egardless of whether evidentiary

hearings are held, the importance of protecting the innocent and [e]nsuring that

guilty pleas are a product of free and intelligent choice requires that such claims be

patiently and fairly considered by the courts.” Id. (quotation omitted).

In State v. Dickens, our Supreme Court held the trial court should have

conducted an evidentiary hearing regarding whether the defendant had agreed to a

plea bargain while under a misapprehension regarding his sentence:

We note the record on appeal in this case does not contain a verbatim record of the proceedings at which defendant entered his pleas of guilty. See G.S. 15A-1026. Absent such a verbatim record, we have no way of determining the import of defendant’s failures to give written answers to Questions 7 and 10 in the Transcript of Plea. Nor do we know the nature of the representations, if any, made by defendant, defendant’s trial attorney, or the prosecutor in response to mandatory inquiries by the trial court as to whether any plea bargains had been made or discussed. See G.S. 15A-1022(b). On this record we must conclude that defendant’s allegations raise a question of fact as to whether defendant entered the guilty pleas under the misapprehension that a plea bargain had been made with respect to sentence. Accordingly, an evidentiary hearing must be held in which defendant “has the burden of proving by a preponderance of the evidence every fact essential to support the motion.” G.S. 15A-1420(c)(5).

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Id. at 84-85, 261 S.E.2d at 188 (emphasis supplied).

Here, as in Dickens, “the record on appeal in this case does not contain a

verbatim record of the proceedings at which defendant entered his pleas of guilty.”

Id. at 84. The sentencing court was statutorily obligated to create such a record,

pursuant to N.C. Gen. Stat. § 15A-1026, and its absence from the record on appeal

limits this Court’s ability to adjudicate Defendant’s claims. Id. Although the trial

court made findings of fact in its first 7 March 2023 order indicating it had reviewed

the transcript of Defendant’s guilty plea, the record before us is devoid of any

transcript of those proceedings. Defendant’s request for the transcript of entry of his

pleas in his supplemental MAR was also summarily denied by the trial court on 2

June 2023.

Similar to Dickens, “the trial court should have held a hearing, received

evidence under oath from defendant personally and from his trial counsel [Richard

Wells], together with any other relevant evidence, and then made findings of fact as

to whether or not defendant entered the guilty pleas under [a] misapprehension[.]”

Dickens, 299 N.C. at 83, 261 S.E.2d at 187. For these reasons, we remand this matter

to the trial court to hold an evidentiary hearing to receive, hear, and resolve factual

issues regarding whether Defendant’s guilt was entered into “voluntarily,

intelligently and understandingly.” Bozeman, 115 N.C. App. at 661, 446 S.E.2d at

142.

2. Sex Offender Registration

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North Carolina appellate courts have not addressed whether the sex offender

registration requirement, as outlined in N.C. Gen. Stat. § 14-208.7, should be

considered a direct or collateral consequence of a guilty plea to an offense compelling

mandatory sex offender registration. N.C. Gen. Stat. § 14-208.7 (2023). In State v.

Bare, this Court rejected a defendant’s argument that a related requirement, lifetime

satellite-based monitoring (“SBM”), constituted a direct consequence of the

defendant’s plea:

We disagree that lifetime satellite-based monitoring was an automatic result of defendant’s no contest plea. “When an offender is convicted of a reportable conviction as defined by N.C. Gen. Stat. § 14-208.6(4), during the sentencing phase,” the trial court is required to separately determine whether an offender meets the criteria subjecting him to SBM. N.C. Gen. Stat. § 14-208.40A. If there has been no determination by the court whether an offender is required to enroll in SBM, the DOC makes the initial determination, schedules a hearing, notifies the offender, and the trial court determines in a separate hearing whether the offender falls under one of the categories subjecting him to SBM. N.C. Gen. Stat. § 14- 208.40B (2007). Therefore, imposition of SBM was not an automatic result of his no contest plea, unlike a mandatory minimum sentence or an additional term of imprisonment.

State v. Bare, 197 N.C. App. 461, 480, 677 S.E.2d 518, 531-32 (2009).

Although Defendant acknowledges the ruling in Bare, Defendant argues sex

offender registration differs from SBM because it is a direct and immediate

consequence of pleading guilty to certain crimes. Before a defendant is subjected to

SBM, a separate hearing is held after a judgment has been entered. Id. (explaining

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SBM is “not an automatic result” of a guilty plea because “the DOC makes the initial

determination, schedules a hearing, notifies the offender, and the trial court

determines in a separate hearing whether the offender falls under one of the

categories subjecting him to SBM”).

Defendant argues sex offender registration differs from SBM, because the

registration requirement is an immediate consequence following a conviction for

certain crimes, as indicated by the check-box option requiring mandatory sex offender

registration on the front page of a criminal judgment.

This Court has held our General Assembly’s intent when enacting the sex

offender registration statute was nonpunitive. State v. White, 162 N.C. App. 183, 197,

590 S.E.2d 448, 457 (2004) (“Since North Carolina only requires registration for ten

years, N.C. Gen. Stat. § 14-208.7, we hold that the registration requirements are not

excessive in light of the General Assembly’s nonpunitive objective.”).

Other states have agreed sex offender registration is nonpunitive. See e.g.,

State v. Legg, 28 Kan. App. 2d 203, 207, 13 P.3d 355, 358 (2000) (“Sex offender

registration is not penal in nature or a direct consequence to a plea.”). Most states

have concluded sex offender registration constitutes a collateral consequence, which

does not impact the validity of a guilty plea. See Magyar v. State, 18 So. 3d 807, 812

fn. 5 (Miss. 2009) (collecting cases from twenty-eight states and holding “although we

do not recognize the law of other states as controlling precedent, our decision today

is nevertheless aided by the viewpoint of virtually every other jurisdiction to address

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the question” viewed sex offender registration as a collateral consequence of a guilty

plea).

We find the research and analysis by the court in Magyar persuasive. The

court in Magyar researched the way other states handled this question and found

twenty-eight states have held sex offender registration is a collateral consequence of

a guilty plea. Magyar, 18 So. 3d at 812 fn. 5. While other states’ decisions are not

binding upon this Court, they are persuasive. N.C. Ins. Guar. Ass’n v. Weathersfield

Mgmt., 268 N.C. App. 198, 203, 836 S.E.2d 754, 758 (2019) (citation omitted) (“When

this Court reviews an issue of first impression, it is appropriate to look to decisions

from other jurisdictions for persuasive guidance.”).

We agree with the overwhelming majority of state courts and hold sex offender

registration is a collateral consequence of a guilty plea to a crime requiring

registration. Id.; Magyar, 18 So. 3d at 812 fn. 5. The trial court did not err by holding

the requirement for Defendant to register as a sex offender is a collateral consequence

of his guilty plea.

3. Extended Post-Release Supervision

The trial court’s first 7 March 2023 order found sex offender registration was

a collateral consequence of Defendant’s guilty plea. The order, however, failed to

mention the extended post-release supervision period to which Defendant was

subjected and which was imposed as a result of his plea.

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Defendant’s first “supplemental” MAR, filed on 1 May 2023 and titled “Motion

to Vacate Trial Court’s Order AND Supplemental Motion for Appropriate Relief,”

emphasized Defendant’s post-release supervision argument. Defendant included the

following information in this motion:

Defendant signed a plea for 25-39 months active with the impression that he would do 25-30 months to be released on 9 months (PRS). . . . [D]efendant was not admonished that he would be subject to registration requirements or the lengthier 5 years PRS and its much more onerous conditions of supervision. Specifically, [D]efendant was not advised that a condition of his PRS would be that minors would not be allowed to live with him during his time on PRS. Defendant was ultimately forced to kick his own brother(s) out and into foster care. Defendant served ten months on PRS before it was revoked. He therefore spent 40 months of imprisonment, and was prejudiced by a lengthier sentence th[a]n he had agreed to.

The affidavit attached to this motion contained the following:

3. I was forced to kick my minor brothers out of my apartment when my PRS officer discovered they were living with me. I was not aware that a direct consequence of my plea forbid minors to live with me during my time on PRS. At the time in 2009-2010[,] my mother had been suffering from serial homelessness for years. I was aware of this, and the fact that my brothers were likely to be in need of help with housing upon my release, when I took the plea.

The trial court’s 2 June 2023 order, which summarily dismissed Defendant’s

supplemental MARs, found this motion “essentially reargues [Defendant’s] previous

MAR and asks this Court to change its ruling.” The trial court summarily dismissed

Defendant’s supplemental MARs.

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On appeal, the State argues Defendant’s post-release supervision argument is

procedurally barred because Defendant failed to raise it in his first MAR. We

disagree.

Defendant’s first MAR asserted the following:

4. Prior to entry of the plea, and in discussion with defense counsel Richard Wells, no mention was made of the possibility of having to register under the Sex Offender and Public Protection Registration Program (Sex Registry). My guilty plea was not fully informed because it left out this very important and restrictive detail. I would then, and still now, plead guilty to the Common Law Robbery. But I would not have pled guilty to the kidnapping-related charges had I known sex registration was the result. ... 12. In addition, it is my belief that these sex registerable kidnapping-related convictions resulted in my receiving 5 years of post-release supervision. This time period is different than persons convicted of crimes that do not carry sex registration. NCGS 15A-1368.2(c). This additional post-release supervision was never explained to me prior to my 2007 plea[,] and I have never attended a court hearing where I had notice and a chance to address this question in a courtroom. This additional sanction of definite and potential increased time on post-release supervision is a violation of constitutional principles as noted in Blakely v. Washington, 542 US 296 (2004). See also “Reportable Kidnapping,” Jamie Markham, NCSOG Criminal Law Blog (Feb 5th, 2015).

Defendant pled sufficient facts in this motion to preserve Defendant’s post-release

supervision argument.

Defendant similarly argues his plea was not knowing and voluntary because it

resulted in sixty (60) months of post-release supervision, a term that only applies to

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sex offenders. He asserts this extended supervision was not mentioned nor agreed to

during his plea negotiations or hearing. Defendant also asserts the extended post-

release supervision should be considered a direct consequence, which would render

his guilty plea involuntary. He argues the statute mandating sixty (60) months of

post-release supervision creates “a definite, immediate and largely automatic effect

on the range of the defendant’s punishment.” Smith, 352 N.C. at 551 (internal

quotations and citations omitted).

a. Statutory Guidance

N.C. Gen. Stat. § 15A-1022 (2023) sets out the requirements for advising

criminal defendants of the consequences of their guilty pleas. The statute does not

include a requirement for a defendant to be informed of post-release supervision

before the trial court may accept a defendant’s guilty plea. See id.

N.C. Gen. Stat. § 15A-1368(a)(1) (2023) defines post-release supervision as

“[t]he time for which a sentenced prisoner is released from prison before the

termination of his maximum prison term[.]” N.C. Gen. Stat. § 15A-1368(a)(1). One

of the purposes of post-release supervision is “to monitor and control the prisoner in

the community[.]” Id.

b. State v. Bare

This Court in State v. Bare clearly distinguished SBM and sex offender

registration from post-release supervision and probation:

The sex offender registration requirements may also

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be imposed as a condition to probation or post-release supervision. See N.C. Gen. Stat. § 15A-1343(b2)(1) (2007) (registration “as required by N.C. Gen. Stat. § 14-208.7” is included as a “special condition of probation”); N.C. Gen. Stat. § 15A-1368.4(b1)(1) (2007). In Smith, the United States Supreme Court examined whether registration requirements for sex offenders were parallel to supervised release or probation, which are punishments for crime. 538 U.S. at 101-02, 123 S. Ct. at 1152, 155 L.Ed.2d at 182. The Supreme Court distinguished the registration requirements from conditions imposed by probation because offenders were still “free to move where they wish and to live and work as other citizens with no supervision.” Id. While SBM results in electronic monitoring of an offender’s whereabouts, the record does not indicate that it restricts an offender’s liberty in matters such as where to live and work. SBM is therefore similar to registration requirements in this regard and is distinguishable from probation, parole, and post-release supervision. See id.

Bare, 197 N.C. App. at 470-71, 677 S.E.2d at 526 (emphasis supplied). The reasoning

in Bare states the classification of SBM monitoring and sex offender registration as

collateral consequences does not also mean post-release supervision is also a

collateral consequence. Id. Instead, the Court in Bare states post-release supervision

is “distinguishable” and is a “punishment[ ] for a crime.” Id.

The courts in New York, New Jersey, and Kansas agree with the reasoning in

Bare. Each of those jurisdictions has found the failure to advise a pleading defendant

about a mandatory term of post-release supervision renders a plea involuntary. See

People v. Catu, 825 N.E.2d 1081 (N.Y. 2005) (“Because a defendant pleading guilty to

a determinate sentence must be aware of the post[-]release supervision component of

that sentence in order to knowingly, voluntarily and intelligently choose among

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alternative courses of action, the failure of a court to advise of post[-]release

supervision requires reversal of the conviction.”); State v. Johnson, 864 A.2d 400, 405

(N.J. 2005) (holding that being subject to a “mandatory period of parole supervision

constituted a direct, penal consequence of defendant’s plea” and that “because

defendant was not informed about the consequences of being subject to [the] fixed

period of parole supervision, . . . he is entitled to seek the vacation of his plea”); Helms

v. State, 281 P.3d 180 (Kan. Ct. App. 2012) (unpublished) (“The State concedes that

the district court failed to mention the mandatory post[-]release supervision

requirements until Helm’s sentencing hearing. Accordingly, Helm’s pleas must be

set aside.”).

In accordance with Bare, we hold post-release supervision is distinguishable

from SBM and sex offender registration. Bare, 197 N.C. App. at 470-71, 677 S.E.2d

at 526 (explaining SBM is “distinguishable from probation, parole, and post-release

supervision” because it does not “restrict[ ] an offender’s liberty in matters such as

where to live and work”).

Our General Statutes also indicate the purpose of post-release supervision is

“to monitor and control the prisoner in the community,” and post-release supervision

is not intended to be nonpunitive in nature. Compare N.C. Gen. Stat. § 15A-

1368(a)(1) with State v. White, 162 N.C. App. 183, 197, 590 S.E.2d 448, 457 (2004)

(“Since North Carolina only requires registration for ten years, N.C. Gen. Stat. § 14-

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208.7, we hold that the registration requirements are not excessive in light of the

General Assembly’s nonpunitive objective.”).

The five years of post-release supervision to which Defendant was subjected ,

as opposed to the nine months to which he agreed, were a “direct consequence” of his

guilty plea, because those additional months had a “definite, immediate and largely

automatic effect on the range of the defendant’s punishment.” Smith, 352 N.C. at

551, 532 S.E.2d at 786 (internal quotations and citations omitted). Defendant spent

an additional four years in prison after serving his agreed-upon active sentence and

his post-release supervision was revoked ten months after his release simply for

housing his younger brothers.

Without being aware of the direct consequences of his guilty plea, Defendant

cannot be said to have made his plea “voluntarily, intelligently and understandingly.”

Bozeman, 115 N.C. App. at 661, 446 S.E.2d at 142 (citing Boykin, 395 U.S. at 244, 23

L.Ed.2d at 280). For Defendant’s plea to be knowing and voluntary, and thus valid,

Defendant must have been made aware of “the actual value of any commitments

made to him by the court.” Id. (quotations omitted).

We remand to the trial court to address Defendant’s post-release supervision

arguments consistent with this opinion. It is unnecessary for us to address

Defendant’s ineffective assistance of counsel claim. On remand, Defendant may raise

his ineffective assistance of counsel claim before the trial court to determine whether

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the relief he seeks in his MARs, if granted, addresses and moots the relief sought in

his ineffective assistance of counsel claim.

IV. Conclusion

The trial court erred by summarily denying Defendant’s MARs. This matter

is remanded to the trial court to hold a hearing, receive and consider evidence, and to

make additional findings of fact. See Dickens, 299 N.C. at 83, 261 S.E.2d at 187.

The trial court’s summary denials of Defendant’s MARs are vacated and

remanded. Consistent with the guidance and conclusions in this opinion regarding

sex offender registration and post-release supervision, the trial court must determine

whether Defendant’s guilty plea was entered into “voluntarily, intelligently and

understandingly.” See Bozeman, 115 N.C. App. at 661, 446 S.E.2d at 142 (internal

quotations and citations omitted). It is so ordered.

VACATED AND REMANDED.

Judges ZACHARY and FLOOD concur.

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