State v. Vogt

685 S.E.2d 23, 200 N.C. App. 664, 2009 N.C. App. LEXIS 1738

Opinions

ERVIN, Judge.

On 28 August 2006, the Mecklenburg County Grand Jury returned a true bill of indictment charging Defendant with taking indecent liberties with a minor. On 9 June 2008, Defendant entered a plea of guilty to that offense. After accepting Defendant’s guilty plea, the trial court found that Defendant had a prior record level of II. As a result, the trial court sentenced Defendant to a minimum term of 15 months and a maximum term of 18 months imprisonment in the custody of the North Carolina Department of Correction. The trial court suspended Defendant’s active sentence and placed Defendant on supervised probation for a term of 60 months subject to a number of terms and conditions, including, but not limited to, requiring that Defendant serve an active term of 120 days in the custody of the Sheriff of Mecklenburg County and that Defendant be supervised by officers assigned to the Intensive Probation Program for a period of six months. The trial court also notified Defendant of his obligation to register “with the sheriff of the county where you reside for a period of at least 10 years, because you have been convicted of a ‘reportable conviction’ as defined by [N.C. Gen. Stat. §] 14-208.6(4).”

An additional hearing was held on 3 July 2008 for the purpose of determining whether Defendant would be subject to lifetime satellite-based monitoring. At the conclusion of the 3 July 2008 hearing, the trial court determined that Defendant had been convicted of third degree sexual exploitation of a minor in Avery County on 15 April 2005, that he was properly classified as a “recidivist” as that term is defined in N.C. Gen. Stat. § 14-208.6(2b), and that Defendant “shall be enrolled in a satellitebased monitoring program as a special condition of the defendant’s probation and, following the period of supervised, probation, the defendant shall be enrolled in a satellite-based monitoring program for his/her natural life unless the monitoring program is terminated pursuant to [N.C. Gen. Stat. §] 14-208.43.” Defendant noted an appeal to this Court from the 3 July 2008 order.

On appeal, Defendant contends that the trial court erred by subjecting him to lifetime satellite monitoring on the grounds that the date upon which he committed the offense leading to his 9 June 2008 conviction antedated the effective date of the satellite-based monitoring statutes¹ and that he received constitutionally deficient representation from his trial counsel because she failed to argue that subjecting Defendant to lifetime satellite-based monitoring violated his federal and state constitutional rights against the enactment of ex post facto laws. The section of Defendant’s brief addressing the first issue does not, however, contain a traditional statutory construction argument focused on the structure, purpose, and language of the relevant statutory provisions. Instead, Defendant argues that these statutory provisions should not be applied to persons convicted of offenses committed prior to their effective date because doing so would violate the federal and state constitutional prohibition against the enactment of ex post facto laws and because applying the relevant statutory provisions in that manner would invalidate Defendant’s guilty plea given that he could not have been advised that he would be subjected to lifetime satellite-based monitoring as required by N.C. Gen. Stat. § 15A-1022 since such monitoring did not exist at the time that he entered his guilty plea.² Furthermore, given that courts are permitted to deal with ineffective assistance of counsel claims by “determinfing] at the outset that there is no reasonable probability that in the absence of counsel’s alleged errors the result of the proceeding would have been different,” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985), Defendant’s ineffective assistance of counsel claim can be resolved in the event that subjecting Defendant to lifetime satellite-based monitoring does not violate the constitutional prohibition against the enactment of ex post facto laws.³ As a result, Defendant’s challenges to the 3 July 2008 order ultimately rest on contentions that subjecting him to lifetime satellite-based monitoring violates the constitutional prohibition against the enactment of ex post facto laws and results in a violation of N.C. Gen. Stat. § 15A-1022.

On 16 June 2009, a panel of this Court filed its decision in State v. Bare, - N.C. App. -, 677 S.E.2d 518 (2009). In Bare, we concluded that “the legislature intended [satellite-based monitoring] to be a civil and regulatory scheme,” Id.,- N.C. App. at -, 677 S.E.2d at 524; that “the restrictions imposed by the [satellite-based monitoring] provisions do not negate the legislature’s expressed civil intent,” Id., - N.C. App. at -, 677 S.E.2d at 531; and that “retroactive appli cation of the [satellite-based monitoring] provisions do[es] not violate the ex post facto clause.” Id. In addition, we also concluded that “lifetime satellite-based monitoring was [not] an automatic result of defendant’s no contest plea,” “unlike a mandatory minimum sentence or an additional term of imprisonment,” so that the fact that the defendant in Bare was not advised that he might be subjected to lifetime satellite-based monitoring at the time of his no contest plea did not serve to invalidate his conviction. Id., - N.C. App. at — , 677 S.E.2d at 531-32. Since, this Court has already decided both of the claims Defendant asserts in this case adversely to his position in Bare and since we are bound by our decision in Bare with respect to these issues, In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (stating that, “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court”); Harrison v. Harrison, 180 N.C. App. 452, 455, 637 S.E.2d 284, 287 (2006) (stating that “it is axiomatic that one panel of the Court of Appeals may not overrule another panel”), we conclude that the trial court’s decision should be affirmed on the basis of our decision in Bare.

Although this Court’s decision in Bare addresses and rejects both of Defendant’s challenges to the trial court’s order, the dissent concludes that, because of differences between the record in this case and the record before the Court in Bare, we are entitled to look at certain issues relating to the lawfulness of satellite-based monitoring afresh and reach a different result.⁴ The extent to which the dissent’s argument has persuasive force hinges upon the extent to which it has identified legally material differences between the record before the Court in Bare and the record before the Court in this case. After carefully reviewing the opinion in Bare and the present record, we are not persuaded that we should revisit either of the relevant holdings in Bare on the grounds advocated by the dissent.

Although the dissent concedes “that most of [Defendant's arguments were addressed by this Court several months ago in” Bare, our dissenting colleague believes “that we have the benefit of additional Department of Correction (DOC) rules and regulations” which serve to make [Defendant’s case distinguishable from” Bare. As we read the dissenting opinion, it distinguishes Bare from this case based upon its determination that we should judicially notice the North Carolina Department of Correction Policies-Procedures, No. VII.F Sex Offender Management Interim Policy (interim guidelines). In essence, the dissent utilizes various provisions of the interim guidelines to argue that the satellite-based monitoring statutes have a punitive effect under the test set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644 (1963), so as to render the satellite-based monitoring program a “punishment” for purposes of the prohibition against the enactment of ex post facto laws. For example, in concluding that the satellite-based monitoring program “involves an affirmative disability or restraint,” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661, the dissent notes the provisions of the interim guidelines to the effect that “ ‘[t]he offender shall cooperate with the [DOC] and the requirements of the satellite-based monitoring program;’ ” that “[a]n offender cannot leave the [S]tate of North Carolina;” that “[a]n offender is subject to unannounced warrantless searches of his residence every ninety days;” that “[a]n offender must maintain a daily schedule and curfew as established by his DOC case manager;” that “[a]n offender’s schedule and curfew includes spending at least six hours each day at his residence in order to charge his portable tracking device;” and that, “ ‘[i]f an offender has an active religious affiliation,’ ” “the offender’s case manager must ‘notify church officials of the offender’s criminal history and supervision conditions[.]’ ” According to the dissent, given the provisions of the interim guidelines, “the [satellite-based monitoring] program imposes affirmative and intrusive post-discharge conduct [restrictions] upon offenders long after they have completed their sentences, their parole, their probation, and their regular post-release supervision; these restraints continue forever.” As a result, the dissent concludes that, because the interim guidelines were not discussed in Bare and because these documents demonstrate that the satellite-based monitoring program has a punitive effect, we can appropriately revisit the issue of whether satellite-based monitoring constitutes a punishment rather than a civil and regulatory regime for purposes of the ex post facto provisions of the federal and state constitutions and conclude that the imposition of such monitoring upon Defendant violates the ex post facto law clauses despite the fact that a contrary result was reached in Bare.

Although we do not dispute the Court’s authority to judicially notice the interim guidelines, State ex rel. Utilities Commission v. Southern Bell Telephone and Telegraph Co., 289 N.C. 286, 288, 221 S.E.2d 322, 323 (1976), we are not persuaded that we should exercise our discretion to do so given that the parties did not bring these guidelines to our attention or discuss them in their briefs. N.C. Gen. Stat. § 8C-1, Rules 201(c) and (f). A decision to judicially notice the interim guidelines in this case does not simply have the effect of filling a gap in the record or supplying a missing, essentially undisputed fact; instead, judicially noticing the interim guidelines in this case introduces a large volume of additional information which has not been subjected to adversarial testing in the trial courts. In the absence of a full and thorough discussion of the contents and implications of these documents by the parties and in view of their interim nature, we are concerned about basing a decision of the nature suggested by the dissent upon them, since acting in that fashion might well put this Court in the position of a trier of fact, a role that we are not supposed to occupy. Hobbs Staffing Servs., Inc. v. Lumbermens Mut. Cas. Co. 168 N.C. App. 223, 226, 606 S.E.2d 708, 711 (2005) (stating that an appellate court should not initially decide questions of fact).

Furthermore, assuming that these documents are to be judicially noticed, we are not persuaded that they constitute a material difference between the record in this case and that before the Court in Bare. At bottom, the issue raised by Defendant’s ex post facto challenge to the trial court’s order subjecting him to lifetime satellite-based monitoring is whether that program as enacted by the General Assembly had a punitive effect.⁵ In view of the fact that the Department of Correction’s interim guidelines may or may not be sustained as consistent with the rulemaking and contracting authority granted by the General Assembly⁶ in the event that they are subject to challenge in an appropriate forum, the fact that the guidelines are expressly described as interim in nature, and the fact that the courts retain the authority to strike down various provisions of the interim guidelines and related documents as violative of either the relevant statutory provisions or various provisions of the federal or state constitutions⁷, it appears to us that we should focus our attention on the statutory provisions adopted by the General Assembly rather than on an executive branch agency’s efforts to implement the General Assembly’s decision in resolving the ex post facto law issue. To put it another way, it appears to us that the manner in which the Department of Correction chooses to implement the lifetime satellite-based monitoring program on an interim basis is a separate and distinct issue from the question of whether subjecting an individual to satellite-based monitoring based on a conviction for an offense that occurred prior to the effective date of the statutory provisions establishing that program violates the prohibition against the enactment of ex post facto laws. For all of these reasons, we do not believe that a decision to judicially notice the interim guidelines provides an adequate basis for disregarding the decision in Bare. As a result, despite the arguments advanced in the dissent, we believe that we remain bound by the Bare decision and that it precludes granting the relief requested by Defendant on appeal.⁸

In addition to concluding that “[Defendant’s enrollment in the [satellite-based monitoring] program constitute [d] an unconstitutional ex post facto punishment,” the dissent also concludes that “the trial court erred by imposing a condition upon [Defendant that was not specifically agreed to in his plea bargain.” In essence, the dissent concludes that, since “[D]efendant received a punishment in excess of what he was promised in exchange for his guilty plea,” he is entitled to be relieved from the requirement to participate in the satellite-based monitoring program. We find this argument unpersuasive for three different reasons.

First, the “negotiated plea” argument adopted in the dissent is foreclosed by our decision in Bare. As we have already noted, Bare held that satellite-based monitoring is a civil and regulatory rather than a punitive regime. Subjecting Defendant to the impact of a civil and regulatory regime is not tantamount to the imposition of an additional punishment. Thus, given that we are bound by the result reached in Bare, we cannot conclude that Defendant has been subjected to a punishment over and above that contemplated under his plea agreement.

Secondly, Defendant did not make the “negotiated plea” argument adopted in the dissent in his brief. Although the appellate courts in this jurisdiction have gone to considerable lengths to reach the merits where litigants have arguably presented substantive issues for review, Carolina Forest Asso. v. White, - N.C. App. -, -, 678 S.E.2d 725, 729-30 (2009) (stating that the Court, “[a]fter careful study of the record and Defendant’s brief,” could “discern four possible issues in this appeal” and would address them rather than dismissing Plaintiffs’ appeal), the Supreme Court has instructed us not to “create an appeal for an appellant.” Viar v. North Carolina Dept. of Transportation, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). See also State v. Gareell, 363 N.C. 10, 70, 678 S.E.2d 618, 655 (2009) (stating, in reliance on N.C.R. App. P. 28(b)(6) that defendant’s failure to provide any argument or supporting authority for certain assignments of error resulting in their abandonment). Although Defendant did, as we have already discussed, argue in his brief that construing the relevant statutory provisions as applicable to a person in his position would violate his rights under N.C. Gen. Stat. § 15A-1022(a), he never contended that the State breached his plea agreement by virtue of the fact that the trial court entered an order subjecting him to lifetime satellite-based monitoring. As a result, we believe that Defendant’s failure to advance the “negotiated plea” argument adopted by the dissent on appeal precludes us from relying on it to exempt Defendant from participating in the satellite-based monitoring program.

Finally, the “negotiated plea” argument advanced by the dissent rests upon at least two fundamental premises that lack adequate record support. First, we are not aware of any evidence in the record to the effect that, at the time that he entered his negotiated guilty plea, Defendant was unaware that the State took the position that he was subject to a satellite-based monitoring obligation. Secondly, in order for the dissent’s “contract-based” theory to be sustainable, it appears to us that the State would have had to have agreed that Defendant would not be subject to satellite-based monitoring as part of the parties’ plea agreement. Once again, the record is totally devoid of any indication that the State ever agreed to forego seeking to have Defendant enrolled in the satellite-based monitoring program. In the absence of evidentiary support for these two factual propositions, the “negotiated plea” argument advanced in the dissent is unpersuasive.

Thus, given our conclusion that this case is not materially distinguishable from Bare and that the issues that Defendant has brought forward for our consideration on appeal were resolved in the State’s favor in Bare, we believe that we are obligated to affirm the trial court’s order subjecting Defendant to lifetime satellite-based monitoring. As a result, the trial court’s order should be, and hereby is, affirmed.

AFFIRMED.

Judge Stroud concurs. Judge Elmore dissents in a separate opinion.

Footnotes

1

. According to the record, the offense which subjected Defendant to lifetime satellite-based monitoring was committed on 21 June 2006. The satellite-based monitoring statute became effective for defendants sentenced to intermediate punishment after 16 August 2006. Judgment was initially entered against Defendant on 9 June 2008. The trial court’s order subjecting Defendant to lifetime satellite-based monitoring was entered on 3 July 2008.

2

. This aspect of Defendant’s argument is not entirely clear to us. In his brief, Defendant states that, “[a]s the satellite monitoring law was not in effect until after entry of [Defendant’s] plea, there is no question that he was not advised of the prospect of additional punishment being imposed at some later date.” The record indicates that Defendant entered a plea of guilty to taking indecent liberties with a minor in Mecklenburg County File No. 06 CrS 236346 on 9 June 2008, almost two years after the lifetime satellite-based monitoring statutes became effective on 16 August 2006. From this language, one might well assume, as the State appears to do, that Defendant is making reference to his 15 April 2005 conviction in this portion of his brief. On the other hand, the dissent focuses on Defendant’s plea agreement in this case. However, Defendant has not asked us to set aside his guilty plea or any requirement imposed upon him in Mecklenburg County File No. 06 CrS 235346 aside from the obligation that he be subject to lifetime satellite-based monitoring. On the contrary, he specifically states in his brief that “[Defendant does not challenge any issue relating to the acceptance of his plea or judgment entered on” 9 June 2008. In addition, Defendant has not sought to have his 15 April 2005 conviction set aside either. Thus, we are at something of a loss to understand the exact nature of Defendant’s argument in reliance on N.C. Gen. Stat. § 15A-1022, although we still address it in the text to a limited extent.

3

. Not surprisingly, since the dissent reaches a different result than we do with respect to the principal.substantive issue raised by Defendant’s appeal, our dissenting colleague would not dispose of Defendant’s ineffective assistance of counsel claim in the manner that we deem appropriate.

4

. As the dissent notes, the panel in Bare clearly indicated that its decisions were based on the record that was before it in that case. For example, the Court stated that, “[b]ased on the record before us, retroactive application of the [satellite-based monitoring] provisions do not violate the ex post facto clause.” Thus, we do not dispute the dissent’s proposition that a material difference in the record between this case and Bare could conceivably support a different outcome. Instead, for the reasons set out below, we simply do not believe that such a material difference exists in this case.

5

. The dissent points out that, “[w]hen the legislature chooses not to amend a statutory provision that has been interpreted in a specific way, [the appellate courts] assume that it is satisfied with the administrative interpretation.” Wells v. Consol. Jud’l Ret. Sys. (of N.C.), 354 N.C. 313, 319-20, 553, S.E.2d 877, 881 (2001). A careful analysis of the decision upon which the dissent relies, however, indicates that the strength of this “legislative acquiescence” argument varies with the antiquity of the administrative interpretation. In this instance, the relative novelty of the satellite-based monitoring regime militates against giving much, if any, weight to any interpretation of the General Assembly’s intent embodied in the interim guidelines.

6

. According to N.C. Gen. Stat. § 14-208.40(a), the General Assembly required the “Department of Correction [to] establish a sex offender monitoring program that uses a continuous satellite-based monitoring system” and to “create guidelines to govern the program." Furthermore, N.C. Gen. Stat. § 14-208.40(d) provides that the Department of Correction may enter into a contract or contracts with one or more vendors “for the hardware services needed to monitor subject offenders and correlate their movements to reported crime incidents.” It should go without saying that the guidelines adopted and contracts entered into by the Department pursuant to N.C. Gen. Stat. § 14-208.40 must be consistent with the various statutory provisions governing the lifetime satellite-based monitoring program. Com’r of Ins. v. Ins. Co., 28 N.C. App. 7, 11, 220 S.E.2d 409, 412 (1975) (stating that “[a]n administrative agency has no power to promulgate rules and regulations which alter or add to the law it was set up to administer or which have the effect of substantive law”) (citation omitted).

7

. To be absolutely clear, we believe that an individual subject to satellite-based monitoring has the right, in an appropriate proceeding, to challenge the validity of specific provisions of the interim guidelines or contracts on the grounds that they violate state or federal law, including relevant provisions of the federal and state constitutions, and obtain a ruling on that claim in the appropriate division of the General Court of Justice.

8

. As should be obvious, we express no opinion about the likely outcome of an analysis using the Mendoza-Martinez factors conducted on the basis of a record that contains properly-developed information relating to the interim guidelines.