STATE v. MORROW
No. COA08-867
IN THE COURT OF APPEALS
6 October 2009
[200 N.C. App. 123 (2009)]
STATE OF NORTH CAROLINA v. JOSEPH DWAYNE MORROW, DEFENDANT
Constitutional Law— ex post facto—satellite-based monitoring (SBM)—new requirement Mandatory (SBM) of a defendant convicted of indecent liberties did not violate the ex post facto clause of the United States Constitution where the requirement did not exist when the offense was committed. Issues regarding implementation of the SBM policy were not raised by either party.
- Constitutional Law— void for vagueness—not raised at trial
A void for vagueness argument not raised at trial was dismissed on appeal.
- Sexual Offenders— satellite-based monitoring (SBM)—notice of hearing
An argument concerning the lack of notice of SBM was not addressed where defendant received timely notice of the SBM hearing and was represented by counsel at the hearing.
- Sexual Offenders— satellite-based monitoring (SBM)—notice of criteria
An argument concerning the absence of notice to a sex offender of the criteria for SBM was dismissed where defendant did not seek to refute the State‘s evidence or to offer any other evidence. However, the types of evidence that might be presented by the Department of Correction (DOC) may be gained through reference to the statutes and DOC guidelines.
- Sexual Offenders— satellite-based monitoring (SBM)—determined by trial court
A Department of Correction (DOC) rating of high risk is not a necessary prerequisite to SBM under
N.C.G.S. § 14-208.40B(c) ; the trial court is not limited by DOC‘s risk assessment and may hear any admissible evidence relevant to the risk presented by defendant. In this case, there was evidence from a probation revocation hearing immediately preceding the SBM hearing that defendant had failed to attend sexual abuse treatment sessions. The matter was remanded for additional evidentiary proceedings and more thorough findings.
Sexual Offenders— satellite-based monitoring (SBM)—definite time A case involving the SBM of a sex offender was remanded for the trial court to set a definite time for the monitoring.
Judge ELMORE concurring in part and dissenting in part.
Appeal by defendant from order entered on 19 February 2008 by Judge Henry E. Frye, Jr. in Superior Court, Wilkes County. Heard in the Court of Appeals 11 February 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Peter A. Regulski, for the State.
Mark Montgomery, for defendant-appellant.
STROUD, Judge.
Defendant was ordered to enroll in satellite-based monitoring (“SBM“) for seven to ten years pursuant to his 16 November 2006 no contest plea to indecent liberties with a child. Defendant presents three issues for this Court‘s review: (1) whether requiring SBM enrollment on the basis of crimes committed before enactment of the SBM statutory scheme violates the Ex Post Facto Clause of the United States Constitution, (2) whether the procedure for determining SBM enrollment violates the Due Process Clause of the United States Constitution, and (3) if the SBM statutory scheme is otherwise constitutionally sound on its face, whether the trial court‘s findings of fact supported its legal conclusion that defendant must be enrolled in SBM for seven to ten years. For the following reasons, we conclude defendant‘s constitutional claims are without merit, but remand for additional findings of fact.
I. Background
On 16 November 2006, defendant pled no contest to two counts of indecent liberties with a child. He was sentenced to 18 to 22 months on each count. The two sentences were suspended and defendant was placed on 36 months supervised probation. As a condition of his probation, defendant was required, inter alia, to “enroll in [a] sex offender control program, receive psychological treatment for depression, substance abuse, and specific sex offender treatment includig [sic] treatment outside Wilkes County.”
On 20 December 2007, defendant‘s probation officer filed a probation violation report in Superior Court, Wilkes County. The report
At the hearing, defendant admitted the allegations in the probation violation report. The trial court revoked his probation and activated his sentence for 11 months, with an additional 36 months of probation upon his release from prison.
Immediately following the revocation of defendant‘s probation, the trial court heard evidence on whether to enroll defendant in SBM. The trial court received the Sheriff‘s Incident/Investigation Report for the underlying crimes and the DOC‘S STATIC-99 Risk Factor Worksheet3 as evidence.
II. Standard of Review
This Court established the standard of review for SBM enrollment in State v. Kilby, — N.C. App. —, —, 679 S.E.2d 430. Kilby first noted that the trial court is statutorily required to make findings of fact to support its legal conclusions. Id. (citing
[W]e review the trial court‘s findings of fact to determine whether they are supported by competent record evidence, and we review the trial court‘s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found. We [then] review the trial court‘s order 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.
N.C. App. at —, 679 S.E.2d at 432 (citations, quotation marks and brackets in original omitted).
III. Findings of Fact
Defendant does not dispute either of the trial court‘s findings at the SBM hearing: (1) that he was assessed at moderate risk by the DOC and (2) that he was eleven or twelve years older than the victim. Therefore, they are “presumed to be supported by competent evidence and [are] binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted).
IV. Constitutional Issues
Defendant contends that the SBM enrollment statutory scheme (1) violates the Ex Post Facto Clause because it increases the punishment for a crime after the crime is committed and (2) violates the
A. Ex Post Facto Clause
[1] Defendant argues that because “mandatory GPS monitoring did not exist” on the date he committed the underlying offense, the SBM statute violated the Ex Post Facto Clause of the United States Constitution by increasing his permissible punishment after the offense was committed. However, this Court carefully considered and overruled an identical challenge to the SBM statute in State v. Bare, — N.C. App. —, —, 677 S.E.2d 518, 531 (2009). Bare controls the instant case and we therefore overrule this argument. Id.
We recognize, as noted by the dissent, that there may be serious legal issues raised by the DOC‘s manner of execution of SBM under some provisions of the N.C. Department of Correction Policies-Procedures, No. VII.F Sex Offender Management Interim Policy (2007) (“Interim Policy“). However, just as in Bare, — N.C. App. —, 677 S.E.2d 518, those issues regarding the execution of SBM have not been raised by either party in this case and our record contains no evidence, and certainly no findings by the trial court, as to the Interim Policy or details of SBM as applied to defendant. Defendant has challenged the constitutionality of the statute under which he was ordered to enroll in SBM,
B. Void for Vagueness
[2] Defendant argues that the SBM statutory enrollment scheme is constitutionally void because it is too vague to be interpreted and administered uniformly. However, defendant did not raise a void for vagueness challenge to the trial court. “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). Accordingly, we dismiss this argument.
[3] Defendant argues that “the satellite-based monitoring statute is unconstitutional because it does not give an offender notice and an opportunity to be heard on whether he should be monitored.” Defendant further argues that the statute is unconstitutional because “under the ‘bring back’ statute . . . the offender [is not] entitled to be represented by counsel or to present evidence in his own defense.”
The State‘s evidence that defendant was personally served with notice on 8 January 2008 was undisputed at the hearing. Service of notice was more than a month before defendant‘s 19 February 2008 hearing; fifteen days is the minimum required notice under the statute.
[4] Defendant also argues that “[t]he monitoring statutes, G.S. § 14-208.40A and 40B, do not put an offender on notice of what facts will require him to be monitored. . . . Thus, an offender goes into the hearing with absolutely no idea of the basis upon which the decision to require monitoring will be made.” In support, defendant cites State v. Battle, 136 N.C. App. 781, 525 S.E.2d 850 (2000). Battle does not avail for defendant.
In Battle, “defendant attempted several times to make [a] motion to suppress[.]” 136 N.C. App. at 786, 525 S.E.2d at 853. However, the trial court “barely allowed defendant to state his motion and denied defendant any opportunity to state his grounds or present evidence in support of his motion.” Id. at 787, 525 S.E.2d at 854. Accordingly, this Court granted a new trial, holding that due process required the defendant be given “an opportunity to offer evidence and present his version of the” events in question. Id. at 786, 525 S.E.2d at 854.
Though we dismiss this argument, we do note that a sex offender should have some idea of what evidence the DOC would introduce at an SBM hearing by referring to the statutes creating the SBM program. One of the SBM statutes requires “[t]he Department of Correction . . . [to] create guidelines to govern the [SBM] program.”
These DOC guidelines, created pursuant to
V. Adequacy of Factual Support for the Conclusions of Law
[5] Defendant argues that the trial court‘s two findings, the DOC‘s “moderate” risk assessment and the ages of defendant and his victim at the time of the underlying offense do not adequately support the legal conclusion that defendant must enroll in SBM for seven to ten
The statutory text in question reads:
Upon receipt of a risk assessment from the Department, the court shall determine whether, based on the Department‘s risk assessment, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in a satellite-based monitoring program for a period of time to be specified by the court.
“Under the canons of statutory construction, the cardinal principle is to ensure accomplishment of the legislative intent. To that end, we must consider the language of the statute, the spirit of the act and what the act seeks to accomplish.” Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998) (citations, quotation marks and ellipses omitted), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671 (1999), abrogated on other grounds by Lenox, Inc. v. Tolson, 353 N.C. 659, 663-64, 548 S.E.2d 513, 516-17 (2001). “[W]e first look to the words chosen by the legislature and ‘if they are clear and unambiguous within the context of the statute, they are to be given their plain and ordinary meanings.‘” Fix v. City of Eden, 175 N.C. App. 1, 19, 622 S.E.2d 647, 658 (2005) (quoting Brown v. Flowe, 349 N.C. 520, 522, 507 S.E.2d 894, 896 (1998)). “[W]here the words of a statute are plain, direct and unambiguous, no interpretation is needed to ascertain their meaning.” In re Duckett, 271 N.C. 430, 436, 156 S.E.2d 838, 844 (1967) (quoting Mook v. City of Lincoln, 146 Neb. 779, 781, 21 N.W.2d 743, 744 (1946)).
The plain words of the statute sub judice that “the court shall determine whether, based on the Department‘s risk assessment, the offender requires the highest possible level of supervision and monitoring[,]”
“When the plain language of a statute proves unrevealing, a court may look to other indicia of legislative will, including: the purposes appearing from the statute taken as a whole, . . . the end to be accomplished, . . . and other like means.” In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 560, 589 S.E.2d 179, 181 (2003) (citation, quotation marks and brackets omitted). This Court also “look[s] . . . to our prior interpretations of the [entire] statutory framework.” Fix at 19, 622 S.E.2d at 658.
To interpret the statute and determine the evidence which could be admitted in an SBM proceeding, we begin with the clear legislative purpose of the SBM statutory scheme, which is “to supervise certain offenders whom the legislature has identified as posing a particular risk to society.” Bare, — N.C. App. at —, 677 S.E.2d at 530. Therefore any proffered and otherwise admissible evidence relevant to the risk posed by a defendant should be heard by the trial court; the trial court is not limited to the DOC‘s risk assessment. See
If the General Assembly had meant for the DOC‘s assessment of “high risk” to be a necessary prerequisite to the trial court‘s SBM determination, it could have said so, but instead, it places override authority with the trial court with the words “[i]f the trial court determines. . . .”
Even though we do not agree with defendant‘s construction of the statute, our review requires us to consider whether evidence was presented which could support findings of fact leading to a conclusion that “the defendant requires the highest possible level of supervision and monitoring.”
This case is distinguishable from our recent decision in Kilby where we reversed the SBM enrollment order when “the State presented no evidence which . . . tend[ed] to support a determination of a higher level of risk than the ‘moderate’ rating assigned by the DOC.” Id. (emphasis added). In fact, all of the evidence in Kilby presented alongside the DOC‘s risk assessment indicated that the “defendant was fully cooperating with his post release supervision, which might support a finding of a lower risk level, but not a higher one.” Id. Accordingly, Kilby reasoned that “[t]he findings of fact [were] insufficient to support the trial court‘s conclusion that ‘defendant requires the highest possible level of supervision and monitoring’ based upon a ‘moderate’ risk assessment from the DOC” and reversed. Id.
VI. Unspecified Time for Monitoring
[6] Defendant also argues that the trial court erred by ordering him to enroll in SBM for an indefinite period of time, seven to ten years. Defendant argues that “[i]t is not clear whether the defendant is subject to ten years of monitoring, which could somehow be reduced to seven, or is subject to seven years of monitoring, which DOC could somehow lengthen to ten.” This appears to be an issue of first impression for this Court.
The plain language of the applicable statute leaves the determination of a defendant‘s enrollment in SBM “to be specified by the court.”
VII. Conclusion
We remand the trial court order requiring defendant to enroll in SBM for further findings of fact regarding whether defendant “requires the highest possible level of supervision and monitoring[,]” and if so, for the trial court to determine a definite time period for which defendant should be required to enroll in SBM.
Remanded.
Judge CALABRIA concurs.
Judge ELMORE concurs in part and dissents in part in a separate opinion.
ELMORE, Judge, concurring in part and dissenting in part.
I would reverse the order enrolling defendant in the satellite-based monitoring (SBM) program because I believe that it constitutes an unconstitutional ex post facto punishment and, for the following reasons, I respectfully dissent from those parts of the majority opinion holding that, or based upon a holding that, SBM does not violate the ex post facto clause. However, I concur in the majority‘s conclusions in parts IV.B, IV.C, and VI.
Although I recognize and acknowledge that this Court addressed whether SBM violates the ex post facto clause several months ago in State v. Bare, I believe that we have the benefit of additional Department of Correction (DOC) rules and regulations in this case, which makes defendant‘s case distinguishable from Mr. Bare‘s. In Bare, we explained repeatedly that our conclusions were based upon the record before us and that the record could not support a contrary finding. See, e.g., — N.C. App. —, —, 67 S.E.2d 518, 528 (2009). I believe that the record before us now can and should support a contrary finding.
A. Ex Post Facto Punishment
I respectfully disagree with the majority‘s conclusion that SBM has no punitive purpose or effect and thus does not violate the ex post facto clause. To determine whether a statute is penal or regulatory in character, a court examines the following seven factors, known as the Mendoza-Martinez factors:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned[.]
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 661 (1963) (footnotes and citations omitted). Although these factors “may often point in different directions[, a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.” Id. at 169, 9 L. Ed. 2d at 661. Because I believe that Bare is determinative as to the question of whether there is conclusive evidence that the legislature intended the SBM statute to be penal, I begin my analysis by examining the seven Mendoza-Martinez factors.
1. Affirmative disability or restraint. The first question is “[w]hether the sanction involves an affirmative disability or restraint.” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661 (footnote and citations omitted). To echo the Supreme Court of Indiana, “[t]he short answer is that the Act imposes significant affirmative obligations and a severe stigma on every person to whom
In addition to the regular sex offender registration program requirements, which, though judicially determined to be non-punitive, are nevertheless significant in practice, SBM participants are subject to the following additional affirmative disabilities or restraints: (1) The DOC has “the authority to have contact with the offender at the offender‘s residence or to require the offender to appear at a specific location as needed[.]”
Clearly, the SBM program imposes affirmative and intrusive post-discharge conduct upon an offender long after he has completed his sentence, his parole, his probation, and his regular post-release supervision; these restraints continue forever. Of particular note is the prohibition against leaving the state. As the U.S. Supreme Court has repeated,
The word “travel” is not found in the text of the Constitution. Yet the constitutional right to travel from one State to another is firmly embedded in our jurisprudence. Indeed, as Justice Stewart reminded us in Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969), the right is so important that it is “assertable against private interference as well as governmental action . . . a virtually unconditional personal right, guaranteed by the Constitution to us all.” Id., at 643 (concurring opinion).
Saenz v. Roe, 526 U.S. 489, 498, 143 L. Ed. 2d 689, 701 (1999) (additional quotations and citations omitted). The government may only
Though some may argue that the remaining restrictions are mere inconveniences, this would be a deceiving understatement. Although offenders are no longer subject to formal probation, the requirements that they are subject to are equally intrusive: they cannot leave the state, they cannot spend nights away from their homes, they are subject to schedules and curfews, they must appear on command, and they must submit to all DOC requests and warrantless searches. An offender‘s freedom is as restricted by the SBM requirements as by the regular conditions of probation, which include: remaining in the jurisdiction unless the court or a probation officer grants written permission to leave, reporting to a probation officer as directed, permitting the probation officer to visit at reasonable times, answering all reasonable inquiries by the probation officer, and notifying the probation officer of any change in address or employment. In addition, submission to warrantless searches is not a regular condition of probation and is instead a special condition of probation.
Accordingly, I believe that SBM imposes an affirmative disability or restraint upon defendant, which weighs in favor of the SBM statute being punitive rather than regulatory.
2. Sanctions that have historically been considered punishment. The next question is whether SBM “has historically been regarded as a punishment.” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661 (footnote and citations omitted). Obviously, satellite monitoring technology is new and thus tracking offenders using the technology is not a historical or traditional punishment. However, the additional restrictions imposed upon offenders are considered punishments, both historical and current. In addition, some courts have suggested that the SBM units, made up of an ankle bracelet and a miniature tracking device (MTD), are analogous to the historical punishments of shaming. See, e.g., Doe v. Bredeson, 507 F.3d 998, 110 (2007) (Keith, J., concurring in part and dissenting in part), cert. denied, 172 L. Ed. 2d 210 (2008).
In Bredeson, the Sixth Circuit considered whether Tennessee‘s SBM statute violated the ex post facto clause. The Bredeson majority first held that the Tennessee legislature‘s purpose when enacting the
3. Finding of scienter. The next question is whether the statute “comes into play only on a finding of scienter.” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661 (footnote and citations omitted). I believe that this factor is met because the underlying criminal acts, indecent liberties with a child and third degree sexual exploitation of a minor, require intentional conduct. State v. Beckham, 148 N.C. App. 282, 286, 558 S.E.2d 255, 258 (2002) (citation omitted); see
4. Traditional aims of punishment. The next question is “whether the sanction promotes the ‘traditional aims of punishment—retribution and deterrence.‘” Beckham, 148 N.C. App. at 286, 558 S.E.2d at 258 (quoting Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661). Without question, the sanction promotes deterrence. For example, offenders are restricted in their movements, ostensibly in part to prevent them from venturing into schoolyards or nurseries; when satellite-monitored offenders venture into these restricted zones, their supervisors are notified and the offender may be charged with a felony. Although “the mere presence of a [deterrent quality] is insufficient to render a sanction criminal [because] deterrence may serve civil, as well as criminal goals,” Hudson v. United States, 522 U.S. 93, 105, 139 L. Ed. 2d 450, 463 (1997) (quotations and citation omitted), the deterrent effect here is substantial and not merely incidental. Accordingly, it weighs in favor of finding the sanction to be punitive.
5. Applicability only to criminal behavior. The next question is “whether the behavior to which [the] statute applies is already a crime.” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 567 (footnote and citation omitted). The SBM statute applies only to people who have been convicted of “reportable offenses.” Thus, this factor weighs in favor of finding the sanction to be punitive.
6. Advancing non-punitive interest. The next question is “whether an alternative purpose to which [the statute] may rationally be connected is assignable for it[.]” Id. at 168-69, 9 L. Ed. 2d at 567 (footnote and citation omitted). The SBM statute does advance a rationally related non-punitive interest, which is to keep law enforcement officers informed of certain offenders’ whereabouts in order to protect the public. Preventing further victimization by recidivists is a worthy non-punitive interest and one that weighs in favor of finding the sanction to be regulatory.
7. Excessiveness in relation to State‘s articulated purpose. The final question is “whether [the statute] appears excessive in relation to the alternative purpose assigned” to it. Id. at 169, 9 L. Ed. 2d at 568 (footnote and citation omitted). “The excessiveness inquiry . . . is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means
I fail to see how putting all persons in public places on alert as to the presence of offenders, like Doe, helps law enforcement officers geographically link offenders to new crimes or release them from ongoing investigations. It equally eludes me as to how the satellite-based monitoring program prevents offenders, like Doe, from committing a new crime. Although the device is obvious, it cannot physically prevent an offender from re-offending. Granted, it may help law enforcement officers track the offender (after the crime has already been committed), but it does not serve the intended purpose of public safety because neither the device, nor the monitoring, serve as actual preventative measures. Likewise, it is puzzling how the regulatory means of requiring the wearing of this plainly visible device fosters rehabilitation. To the contrary, and as the reflection above denotes, a public sighting of the modern day “scarlet letter“—the relatively large G.P.S. device—will undoubtedly cause panic, assaults, harassment, and humiliation. Of course, a state may improve the methods it uses to promote public safety and prevent sexual offenses, but requiring Doe to wear a visible device for the purpose of the satellite-based monitoring program is not a regulatory means that is reasonable with respect to its non-punitive purpose.
Sexual offenses unquestionably rank amongst the most despicable crimes, and the government should take measures to protect the public and stop sexual offenders from re-offending. However, to allow the placement of a large, plainly obvious G.P.S. monitoring device on Doe that monitors his every move, is dangerously close to having a law enforcement officer openly escorting him to every place he chooses to visit for all (the general public) to see, but without the ability to prevent him from re-offending. As this is clearly excessive, this factor weighs in favor of finding the Surveillance Act‘s satellite-based monitoring program punitive.
Bredeson, 507 F.3d at 1012 (Keith, J., dissenting). I agree with Judge Keith‘s assessment; the restrictions imposed upon defendant by the SBM statute are dangerously close to supervised probation if not personal accompaniment by a DOC officer. The Bredeson majority dismissed Justice Keith‘s concerns about the device‘s visibility by stating
In sum, of the seven factors specifically identified by the U.S. Supreme Court in Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent to the contrary, I believe that six factors point in favor of treating the SBM provisions as punitive. Only one—that the statute advances a non-punitive purpose—points in favor of treating the SBM provisions as non-punitive. Accordingly, I would hold that defendant‘s enrollment in the SBM program constitutes a punishment.
Accordingly, I would also hold that defendant‘s enrollment in the SBM program constitutes an unconstitutional ex post facto punishment and would reverse the order enrolling him in the program.
Notes
(a) When an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), and there has been no determination by a court on whether the offender shall be required to enroll in satellite-based monitoring, the Department shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a).
(b) If the Department determines that the offender falls into one of the categories described in G.S. 14-208.40(a), the Department shall schedule a hearing in the court of the county in which the offender resides. The Department shall notify the offender of the Department‘s determination and the date of the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14-208.7. The hearing shall be scheduled no sooner than 15 days from the date the notification is mailed. Receipt of notification shall be presumed to be the date indicated by the certified mail receipt.