State v. SingletonState v. Singleton
- Reporters:
- , ,
- Before:
- Stroud
Defendant appeals from an order requiring him to enroll in satellite-based monitoring (SBM) pursuant to
I. Factual background
On 5 May 2006, a warrant for defendant’s arrest was issued, charging him with taking indecent liberties with a child pursuant to
On 2 June 2008, the State filed a Petition for Judicial Findings as to Satellite-Based Monitoring, pursuant to
The trial court held the SBM determination hearing on 29 August 2008. The State presented testimony by Probation Officer Brian Holbrook, who was defendant’s assigned probation officer. Officer Holbrook testified that defendant had not been assessed as a sexually violent predator, and that he had no prior convictions, so he was not a recidivist, but that defendant’s conviction was for an “aggravated offense.” Officer Holbrook testified that the victim was a 4 year old boy who was a friend of the family. On 20 April 2006, defendant and the victim were playing outside and then they went inside and, “long story short, there was anal penetration on a four year old boy.” The court inquired “I guess as a result of the plea, it was reduced to indecent liberties?” Officer Holbrook answered, “Yes, Your Honor.” Although the record does not contain defendant’s STATIC 99 Risk Assessment, Officer Holbrook testified that the probation department had made a determination that defendant “is risked at a high.”2 Officer Holbrook noted that he could inform the
II. Grounds for Appellate Review
Defendant first argues that the court has jurisdiction over this appeal pursuant to N.C. Gen. Stat. § 7A-27(b)3 and N.C. Gen. Stat. § 15A-14424. In the alternative, defendant filed a petition for certiorari requesting review pursuant to N.C. Gen. Stat. § 15A-1444(al) (2007). The State does not contest that this Court has jurisdiction over this appeal, although the State argues that certiorari is not appropriate. However, defendant’s argument as to the grounds for appellate review is well-taken, as the grounds for appeal are not entirely obvious. Although this Court has considered several appeals of orders for SBM under
Generally, appeals based upon “errors committed in criminal trials and proceedings” are governed by Article 91 of Chapter 15A, the Criminal Procedure Act. N.C. Gen. Stat. § 15A-1401 (2007). Appellate jurisdiction in criminal appeals by a defendant and grounds for appeal in criminal cases are set forth in N.C. Gen. Stat. § 15A-1442 and N.C. Gen. Stat. § 15A-1444. “[A] defendant’s right to appeal in a criminal proceeding is purely a creation of state statute. Furthermore, there is no federal constitutional right obligating courts to hear appeals in criminal proceedings.” State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
Generally, the right to appeal in criminal cases is set out in N.C. Gen. Stat. § 15A-1444 (2003). Under that statute, a defendant who pleads not guilty at trial may appeal the judgment itself as a matter of right. N.C. Gen. Stat. § 15A-1444(a). In addition, a defendant who was found guilty or who pled guilty or no contest has the right to appeal the following issues:
(1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant’s prior record level under N.C. Gen. Stat. § 15A-1340.14 or the defendant’s prior conviction level under N.C. Gen. Stat. § 15A-1340.21; (3) whether the sentence constitutes a type of sentence not authorized by N.C. Gen. Stat. § 15A-1340.17 or § 15A-1340.23 for the defendant’s class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant’s motion to suppress; and (5) whether the trial court improperly denied the defendant’s motion to withdraw his guilty plea.
State v. Brown, 170 N.C. App. 601, 606, 613 S.E.2d 284, 287 (quoting State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004)), disc. review denied, 360 N.C. 68, 621 S.E.2d 882 (2005).
In Brown, this Court held that a defendant has no statutory right of appeal from an order denying post-conviction DNA testing
[u]nder N.C. Gen. Stat. § 15A-101(4a) (2003), judgment is defined as ‘when sentence is pronounced.’ See also Berman v. United States, 302 U.S. 211, 212, 82 L. Ed. 204, 204, 58 S. Ct. 164, 165 (1937) (‘Final judgment in a criminal case means sentence. The sentence is the judgment.’). The [order denying post-conviction DNA testing] does not involve the pronouncement of a sentence.
Id. at 606-07, 613 S.E.2d at 287.
In all of the SBM cases considered thus far by this Court, the SBM hearings have been conducted as “criminal” hearings, at least in the sense that the hearings were placed on criminal, not civil, calendars; the district attorney has represented the State; and the defendants have been represented by court-appointed counsel. However, SBM hearings are not “criminal” proceedings in the sense as addressed by Article 15A, Chapter 91.
In addition to these distinctions between SBM proceedings and criminal prosecutions, the most important distinction is that this Court has held that the SBM statutes establish a civil regulatory regime and not a means of punishment for a crime. See State v. Bare, -N.C. App. -, — , 677 S.E.2d 518, 527 (2009); State v. Anderson, - N.C. App. -, -, 679 S.E.2d 165, 167 (2009). Therefore, for purposes of appeal, a SBM hearing is not a “criminal trial or proceeding” for which a right of appeal is based upon N.C. Gen. Stat. § 15A-1442 or
SBM hearings have been conducted much like probation violation hearings, which may be appropriate as probation violation hearings are not criminal prosecutions either.
This Court has previously noted that, “[f]or all practical purposes there is an unlimited right of appeal in North Carolina to the Appellate Division of the General Court of Justice from any final judgment of the superior court or the district court in civil and criminal cases.” State v. Black, 7 N.C. App. 324, 327, 172 S.E.2d 217, 219 (1970) (citing N.C. Gen. Stat. § 7A-27). Under N.C. Gen. Stat. § 7A-27, the primary consideration is that the appeal must be from a “final judgment,” and that appeals from interlocutory orders are allowed only in certain limited situations. Certainly the 29 August 2008 order requiring defendant to submit to SBM for the remainder of his natural life is a “final judgment.” Our Supreme Court has defined a final judgment as “one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citation omitted). The 29 August 2008 order disposes of the State’s petition for judicial findings as to satellite-based monitoring of defendant and leaves nothing further to be judicially determined. As the SBM order is a final judgment from the superior court, we hold that this Court has jurisdiction to consider appeals from SBM monitoring determinations under
III. Standard of Review
This Court stated the standard of review for orders as to SBM in State v. Kilby: “[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.”-N.C. App.-,-, 679 S.E.2d 430, 432 (2009) (quoting State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004) (citation, quotation marks, and brackets omitted), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005)).
IV. Aggravated Offense
Defendant argues that the trial court’s finding that he was convicted of an “aggravated offense” and that he therefore was required to enroll in SBM for the rest of his natural life was in error as the finding is not supported by competent evidence. The State sought an order for SBM based upon
Defendant was convicted of taking indecent liberties with a child in violation of
(a) A person is guilty of taking indecent liberties with children if, being 16 years ofage or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
The State concedes that indecent liberties with a child is not an “aggravated offense” as defined by
[t]he crucial question in this appeal is not whether, by definition, the crime of which Defendant was convicted — aking indecent liberties with a child — is an ‘aggravated offense’ under N.C.G.S.§ 14-208.6(la) . Instead, the issue is whether Defendant’s guilty plea, in conjunction with the proffered factual basis for the conviction at the determination hearing, supported the trial court’s conclusion that Defendant committed an ‘aggravated offense’ thus subjecting him to lifetime enrollment in the SBM program.
(emphasis added). According to the State “the testimony of Defendant’s probation officer and through no objections from the Defendant, established the necessary criteria to meet the ‘aggravated offense’ standard, the trial court’s lifetime enrollment of Defendant in the SBM program was proper.” Therefore, the State asks us to base the determination of whether the defendant’s “criminal offense” was an “aggravated offense” upon the facts of the underlying reportable offense as presented at the SBM hearing instead of upon the statutory elements of the crime for which the defendant was convicted.
The State’s argument has recently been rejected by this Court in State v. Davison,-N.C. App.-,-, S.E.2d-,-(December 8, 2009) (No. COA09-212) (stating that “[t]he General Assembly’s repeated use of the term ‘conviction’ compels us to conclude that, when making a determination pursuant to N.C.G.S. § 14-208.40A, the trial court is only to consider the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction.”). Accordingly,
The State notes the General Assembly’s intent of protecting the public from sex offenders as expressed in Article 27A and argues that based upon the General Assembly’s protective intent, we should read the definition of an “aggravated offense” broadly, such that we look beyond the statutory elements of a crime and consider both the elements of the crime and “the specific facts upon which the conviction is based.” However, the plain language of the statute dictates a contrary result. We have previously held that
[t]he primary goal of statutory construction is to effectuate the purpose of the legislature in enacting the statute. The first step in determining a statute’s purpose is to examine the statute’s plain language. Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.
Cashwell v. Department of State Treasurer, Retirement Systems Division,-N.C. App.-,-, 675 S.E.2d 73, 76 (2009). At least in
regard to this particular issue, the statutes are clear and unambiguous. All of the relevant SBM statutes refer to the offense of which the offender was convicted, not charged, or even, as in this case, perhaps could have been charged. See
This case demonstrates some of the problems which arise if the determination as to SBM could be based upon the “factual basis”
The SBM statutes require a “reportable conviction,” which is itself defined as a “final conviction” of one of many particular enumerated offenses, in order for the State to petition for an offender’s enrollment in SBM.
As to the particular offenses identified under
Therefore, the trial court’s finding that defendant was convicted of indecent liberties with a child was supported by competent record evidence, as this was his “conviction offense.” The trial court’s conclusion that defendant had been convicted of an “aggravated
Because we have granted the relief as defendant requested, we need not address defendant’s other assignments of error.
REVERSED.
Judges GEER and ERVIN concur.
Notes
.
. We note that the evidence regarding the DOC’s risk assessment, which found the defendant to be a “high” risk, was actually unnecessary and irrelevant at this particular hearing. In the “first category” of offenders under
. N.C. Gen. Stat. § 7A-27 (2007) governs the appellate jurisdiction of the Court of Appeals and of the Supreme Court for appeals from the trial divisions. Subsection (b) provides that “[f]rom any final judgment of a superior court. . . appeal lies of right to the Court of Appeals.” Id.
. N.C. Gen. Stat. § 15A-1442 (2007) governs the grounds for correction of error by the appellate division in criminal cases, and provides that “The following constitute grounds for correction of errors by the appellate division.
(6) Other Errors of Law. — Any other error of law was committed by the trial court to the prejudice of the defendant.”
. Under
. N.C. Gen. Stat. § 15A-1022(c) (2007) states the requirements for a “factual basis” for acceptance of a plea of guilty or no contest. Although we express no opinion on the issue, there is certainly a question as to whether Officer Holbrook’s brief hearsay description of defendant’s offense would suffice as a “factual basis” under N.C. Gen. Stat. § 15A-1022(c)(4). Article 27A, Sex Offender and Public Protection Registration Programs, contains no reference to a “factual basis” for any reportable conviction.
. The definition of “offense against a minor” includes reference to three separate crimes, identified by specific statutory references.