State v. Vorndran

• Court: Court of Appeals of North Carolina
• Decided: August 4, 2020
• Docket: 19-889
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-889

Filed: 4 August 2020

Wake County, No. 16 CRS 216326

STATE OF NORTH CAROLINA

v.

JOSHUA VORNDRAN

Appeal by Defendant from Order entered 20 December 2018 by Judge A.

Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 12

May 2020.

Attorney General Joshua H. Stein, by Assistant Attorney General Rebecca E. Lem, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily Holmes Davis, for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

Joshua Vorndran (Defendant) appeals from Order entered 20 December 2018

requiring Defendant to register on the sex offender registry for thirty years. The

Record reflects the following relevant facts:

On 21 March 2018, Defendant entered a guilty plea to Felony Secret Peeping,

a violation of N.C. Gen. Stat. § 14-202(e). Pursuant to the plea arrangement,

Defendant received an 8-19 month suspended sentence with 48 months of supervised STATE V. VORNDRAN

Opinion of the Court

probation and was required to comply with enumerated conditions of probation,

including that Defendant “not be unsupervised around any children under the age of

14.” The plea arrangement provided at a later date “[a] hearing shall be held

pursuant to [Section] 14-202(l) as to whether or not the defendant is a danger to the

community and should therefore register as a sex offender.” As a result of

Defendant’s guilty plea, the trial court dismissed the second charge of Taking

Indecent Liberties with Children.

At an accompanying hearing also held on 21 March 2018, the trial court

discussed Defendant’s potential registration requirement provided for in N.C. Gen.

Stat. § 14-202(l), noting Defendant’s “conduct in this is extremely disturbing.” The

trial court continued: “It probably would further the purposes of the Article to have

[Defendant] register, but . . . taking into account the fact that it occurred when he

was 18 and that he’s now 20, and taking into account the fact that it’s not automatic

registration, [it is] giving him a chance[.]” The trial court then announced it

“retain[ed] jurisdiction of the hearing under [N.C. Gen. Stat. §] 14-202 in Wake

County Superior Court . . . and there shall be a hearing conducted 12 months from

[21 March 2018] to see if [Defendant is] in full compliance with probation,” reasoning

Defendant has “a year to show to the Court that he’s not a recidivist or danger to the

community.” Counsel for both parties agreed to set the hearing on 18 March 2019,

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and the trial court emphasized “if there’s any noncompliance within the 12 months,

that [Defendant’s] hearing can be accelerated.”

On 1 December 2018, Defendant was arrested in New Hanover County for

Felony Secret Peeping involving a nine-year-old child. On 4 December 2018, the State

notified Defendant that “based on his recent arrest” he should be required to register

for his original conviction and in accordance with the terms of Defendant’s plea

arrangement, Defendant’s registration hearing was being accelerated.

On 20 December 2018, Defendant came back before Wake County Superior

Court, Judge A. Graham Shirley presiding. At the beginning of Defendant’s hearing,

defense counsel objected to the trial court’s jurisdiction on the basis Judge Michael

O’Foghludha, who presided over Defendant’s 21 March 2018 hearing, was not

presiding over his second hearing. The trial court noted Defendant’s objection but

proceeded with Defendant’s registration hearing, remarking it was “concerned by a

finding [of] probable cause to arrest [Defendant] with the exact same offense[.]” The

trial court orally rendered findings Defendant “is above-average risk, he’s been

arrested for a crime which is similar to the crime [to which he pleaded guilty], the

offenses are against children[,] and he at least violated, it appears, the terms of his

probation by being unaccompanied in the presence of a nine-year-old.” The trial court

then ordered Defendant to “register on the sex offender registry for a period of 30

years.” Defendant filed timely Notice of Appeal on 18 January 2019.

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Issue

The sole issue on appeal is whether the trial court had jurisdiction over

Defendant’s second hearing to order Defendant to register as a sex offender pursuant

to N.C. Gen. Stat. § 14-202(l).

Analysis

I. Jurisdiction

On appeal, Defendant contends the trial court lacked jurisdiction to order

Defendant to register as a sex offender pursuant to N.C. Gen. Stat. § 14-202(l)

because Judge Shirley did not preside over Defendant’s initial hearing and therefore

was not the “sentencing court” as contemplated by N.C. Gen. Stat. § 14-202(l).

Challenges to the jurisdiction of the trial court are reviewed de novo. State v. Marino,

___ N.C. App. ___, ___, 828 S.E.2d 689, 692 (2019). “Under a de novo review, the court

considers the matter anew and freely substitutes its own judgment for that of the

lower tribunal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)

(citations and quotation marks omitted).

In the present case, Defendant entered a guilty plea to Felony Secret Peeping—

a violation of N.C. Gen. Stat. § 14-202(e). Section 14-202(l) continues:

When a person violates subsection . . . (e) . . . of this section . . . the sentencing court shall consider whether the person is a danger to the community and whether requiring the person to register as a sex offender pursuant to Article 27A of this Chapter would further the purposes of that Article . . . . If the sentencing court rules that the person is a danger to the community and that

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the person shall register, then an order shall be entered requiring the person to register.

N.C. Gen. Stat. § 14-202(l) (2019). Thus, registration is not automatic for a violation

of N.C. Gen. Stat. § 14-202(e); instead, the trial court shall order registration if it

determines “(1) the defendant is a danger to the community; and (2) the defendant’s

registration would further the purpose of the Article as stated in N.C. Gen. Stat. §

14-208.5[.]” State v. Pell, 211 N.C. App. 376, 379, 712 S.E.2d 189, 191 (2011).

Defendant argues “no statute authorized a different judge to impose

registration for the peeping conviction at a subsequent hearing” and the “sentencing

court” as stated in Section 14-202(l) was not Wake County Superior Court but was

specifically Judge O’Foghludha. Defendant contends the trial court lacked

jurisdiction to enter its Order requiring Defendant to register and therefore the Order

should be vacated. In support of his argument, Defendant relies exclusively on our

decision in State v. Clayton as analogous and instructive. 206 N.C. App. 300, 697

S.E.2d 428 (2010).

In Clayton, the defendant pleaded guilty to two counts of indecent liberties and

was sentenced to two consecutive sentences, which were suspended pending thirty-

six months of probation. Id. at 301, 697 S.E.2d at 430. At a separate hearing

conducted pursuant to N.C. Gen. Stat. § 14-208.40B, the trial court determined the

defendant was not required to submit to electronic monitoring. Id. A couple of

months later, the defendant was charged with violating the terms of his probation.

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At a hearing expressly designated as a probation violation hearing, the trial court

reconsidered the requirement that the defendant register for satellite-based

monitoring (SBM) and ultimately ordered “defendant be placed on GPS monitoring

for a period of ten years.” Id. at 301-02, 697 S.E.2d at 430 (quotation marks omitted).

On appeal, this Court vacated the trial court’s order requiring the defendant

to enroll in SBM for lack of jurisdiction. Id. at 306, 697 S.E.2d at 433. This Court

determined there was “no indication in the record that [the Department of

Corrections] followed the notice requirements” or “ma[d]e the findings of fact”

required by N.C. Gen. Stat. § 14-208.40B(b) and (c). Id. at 305, 697 S.E.2d at 432.

Furthermore, the trial court had previously conducted a SBM hearing where it

determined the defendant did not need to enroll in monitoring. Id. Accordingly, this

Court concluded “the trial court did not have jurisdiction to conduct the 2009 SBM

hearing or to order defendant to enroll in SBM for a period of 10 years.” Id. (citation

omitted).

We conclude Clayton is inapplicable to the present case and readily

distinguishable. First, Clayton provides no support for Defendant’s central

assertion—only Judge O’Foghludha himself retained jurisdiction to preside over

Defendant’s subsequent hearing—and Defendant cites no other authority in support

of this argument. Cf. State v. Degree, 110 N.C. App. 638, 642, 430 S.E.2d 491, 493-94

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(1993) (“[I]t is not material that a trial judge different from the judge who presided

over the taking of the guilty plea entered the sentence.”).

Second, unlike in Clayton, Judge Shirley was not overruling or altering a prior

order of Judge O’Foghludha. Here, the trial court had not previously determined

Defendant was not required to register as a sex offender. Rather, the Record before

us reflects at Defendant’s March 2018 hearing, the trial court was concerned

“[Defendant’s] conduct in this [case] is extremely disturbing[.]” However, the trial

court did not immediately require Defendant register as a sex offender, indicating it

was “retain[ing] jurisdiction of the hearing . . . in Wake County Superior Court” but

was “giving [Defendant] a chance” to “show to the Court that he’s not a recidivist or

danger to the community.” (emphasis added). Defendant consented to a future

hearing on the matter and, in fact, went as far as to set a date—18 March 2019—to

return to Wake County Superior Court for the hearing.1

As a condition of probation, Defendant not only agreed to the subsequent

hearing under N.C. Gen. Stat. § 14-202(l) but also agreed he “not be unsupervised

around any children under the age of 14.” Defendant consented to the condition his

hearing may be accelerated “if there[ was] any noncompliance[.]” Accordingly, when

Defendant was arrested on 1 December 2018 for felony secret peeping involving a

1 We acknowledge, unlike Section 14-208.40B, Section 14-202(l) does not expressly allow for a subsequent hearing to determine whether a defendant be required to register on the sex offender registry. However, Section 14-202(l) also does not disallow a delayed hearing. Compare N.C. Gen. Stat. § 14-202(l) with N.C. Gen. Stat. § 14-208.40B.

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nine-year-old child, he was in violation of the terms of his probation, and his hearing

could be accelerated pursuant to his plea agreement.

In light of Defendant’s purported noncompliance with the terms of his

probation and in contrast to Clayton, the State provided Defendant with advance

notice it was accelerating Defendant’s registration hearing as provided in Defendant’s

plea. The State expressly notified Defendant it intended to argue he should be

required to register for his original conviction as contemplated by N.C. Gen. Stat. §

14-202(l). Unlike in Clayton, Defendant’s 20 December 2018 hearing was not and

never purported to be a probation violation hearing. Instead, when Defendant

appeared again before Wake County Superior Court on 20 December 2018, it was for

the purpose of determining in the first instance if “(1) the defendant is a danger to

the community; and (2) the defendant’s registration would further the purpose of the

Article as stated in N.C. Gen. Stat. § 14-208.5[.]” Pell, 211 N.C. App. at 379, 712

S.E.2d at 191.

Further, when Defendant returned for his hearing, the trial court rendered its

findings on the Record before us, ordering Defendant to register on the sex offender

registry pursuant to Section 14-202(l). See id. at 380-81, 712 S.E.2d at 192 (stating

that the trial court’s determination a defendant is a “danger to the community” will

be reviewed to see if the findings “are supported by competent evidence” and the

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“conclusions of law to ensure that they reflect a correct application of law to the facts”

(citation omitted)).

We conclude on the facts of this case, where Defendant expressly agreed to a

subsequent hearing before the trial court to occur no more than twelve months after

the date of the original hearing, where the postponement was for purposes of giving

Defendant the opportunity to show “the Court that he’s not a recidivist or danger to

the community,” and where Defendant was provided with adequate notice of the

hearing and the State’s arguments to be made therein, the Wake County Superior

Court retained jurisdiction over Defendant’s second hearing. Thus, the trial court’s

December 2018 Order ordering Defendant register as a sex offender for thirty years

is affirmed.

II. Clerical Error

Defendant requests, in the event we decline to vacate the trial court’s Order

requiring registration, we remand the Order for the correction of a clerical error. On

the preprinted Order entered 20 December 2018, the trial court appears to have

erroneously checked box 1(b)—indicating Defendant was convicted of “a sexually

violent offense under [N.C. Gen. Stat. §] 208.6(5) or an attempt, solicitation, or

conspiracy to commit such offense.” However, Defendant pleaded guilty to Felony

Secret Peeping pursuant to N.C. Gen. Stat. § 14-202(e), which is covered under box

1(d). “We realize that in the process of checking boxes on form orders, it is possible

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for the wrong box to be marked inadvertently, creating a clerical error which can be

corrected upon remand.” State v. Yow, 204 N.C. App. 203, 205, 693 S.E.2d 192, 194

(2010). Here, it appears the trial court mistakenly checked box 1(b) instead of box

1(d). Therefore, we remand this matter to the trial court “for the limited purpose of

correcting the clerical error on Form AOC-CR-615” to reflect Defendant’s plea under

Section 14-202(e), as indicated by box 1(d). State v. May, 207 N.C. App. 260, 263, 700

S.E.2d 42, 44 (2010).

Conclusion

Accordingly, for the foregoing reasons, we conclude the trial court had

jurisdiction over Defendant’s second hearing and thus the Order entered 20

December 2018 requiring Defendant to register on the sex offender registry is

affirmed. We remand this matter to the trial court for the limited purpose of

correcting the clerical error noted herein.

AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR.

Chief Judge McGEE and Judge ZACHARY concur.

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