State v. Styles

• Court: Court of Appeals of North Carolina
• Decided: August 5, 2014
• Docket: 14-281
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

COA14-281 NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. McDowell County Nos. 02 CRS 52509-11 KENNETH ALLAN STYLES

Appeal by defendant from orders entered 28 October 2013 by

Judge Robert T. Sumner in McDowell County Superior Court. Heard

in the Court of Appeals 21 July 2014.

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

James N. Freeman, Jr., for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Defendant appeals from three orders requiring him to enroll

in lifetime satellite-based monitoring (“SBM”) pursuant to N.C.

Gen. Stat. § 14-208.40B (2013). Recognizing that his oral

notice of appeal was invalid, see State v. Cowan, 207 N.C. App.

192, 195, 700 S.E.2d 239, 241 (2010), defendant has filed a

petition for writ of certiorari to review the orders. We allow

defendant’s petition and hold that the trial court erroneously -2-

found in each case that he was convicted of an “aggravated

offense” under N.C. Gen. Stat. § 14-208.6(1)(a) (2013).

Accordingly, we reverse the SBM orders and remand for further

proceedings.

In 02 CRS 52509-11, defendant pled guilty to three counts

of taking indecent liberties with a child, a “sexually violent

offense” requiring defendant to register as a sex offender. See

N.C. Gen. Stat. §§ 14-208.6(4)-(5), 14-208.7 (2013). Following

defendant’s release from prison in 2012, the District Attorney

scheduled a “bring-back” hearing under N.C. Gen. Stat. § 14-

208.40B to determine whether defendant was subject to SBM under

the Sex Offender and Public Protection Registration Program,

N.C. Gen. Stat. Ch. 14, art. 27A (2013). At the conclusion of

the hearing, the trial court found in 02 CRS 52509 and 52510

that defendant was convicted of the “aggravated offense” of

statutory rape of a person 13, 14, or 15 years of age by an

adult at least six years older than the victim under N.C. Gen.

Stat. § 14-27.7A(a) (2013).1 The court further found that

defendant’s conviction for indecent liberties in 02 CRS 52511

was an “aggravated offense.” Based on these findings, the court

1 In open court, the judge stated that defendant was convicted of “an aggravated offense, and that is statutory rape of [a child] under six years old – six or under[.]” -3-

ordered defendant to enroll in the SBM program for the remainder

of his natural life.

Under the Sex Offender and Public Protection Registration

Program, an offender is subject to lifetime SBM if he or she is

(1) a recidivist, (2) convicted of an aggravated offense, (3) a

sexually violent predator, or (4) convicted under N.C. Gen.

Stat. §§ 14-27.2A or 14-27.4A (2013). See N.C. Gen. Stat. § 14-

280.40B(c) (2013). A court may impose SBM for a specific period

short of the offender’s life if the offense of conviction

involved the “physical, mental, or sexual abuse of a minor” and

the court determines that, “based on the Division of Adult

Correction’s risk assessment, the offender requires the highest

possible level of supervision and monitoring.” N.C. Gen. Stat.

§ 14-208.40B(c); see also State v. Cowan, 207 N.C. App. at 203,

700 S.E.2d at 246.

Defendant now argues, and the State concedes, that his

convictions for taking indecent liberties with a child in 02 CRS

52509-11 do not qualify as aggravated offenses. We agree. See

State v. Davison, 201 N.C. App. 354, 361–62, 689 S.E.2d 510,

515–16 (2009). Because the court imposed lifetime SBM based

solely on the ground that defendant had been convicted of an

aggravated offense, we vacate the court’s orders and remand for -4-

a new hearing pursuant to N.C. Gen. Stat. § 14-208.40B. See id.

at 364–65, 689 S.E.2d at 517.

Defendant further claims that the trial court’s imposition

of lifetime SBM violated his constitutional right to due

process. As the State observes, however, defendant failed to

present this issue to the trial court. See N.C.R. App. P.

10(a)(1). “Therefore, defendant has failed to preserve this

constitutional issue for appeal.” State v. Mills, ___ N.C. App.

___, ___, 754 S.E.2d 674, 678 (2013).

Finally, defendant contends that requiring him to enroll in

the SBM program violates the constitutional ban on ex post facto

laws. Assuming this claim is properly before us, see N.C.R.

App. P. 10(a)(1), we are bound by our Supreme Court’s holding

that “subjecting defendants to the SBM program does not violate

the Ex Post Facto Clauses of the state or federal

constitution.” State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d

1, 13 (2010).

Vacated and remanded.

Judges BRYANT and STROUD concur.

Report per Rule 30(e).