State v. StinesState v. Stines
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Defendant Stephen Jack Stines, a convicted sex offender, appeals from the trial court’s order requiring him to enroll in the State’s Satellite-Based Monitoring (“SBM”) program. On appeal, defendant primarily contends that the State violated his procedural due process rights by failing to give him sufficient notice in advance of the SBM hearing of the basis for the Department of Correction’s preliminary determination that he met the criteria for enrollment in the SBM program. After reviewing the statute at issue,
Facts
Defendant was convicted of taking indecent liberties with a child on 4 December 1997 and was sentenced to 17 to 21 months imprisonment. He subsequently pled guilty to another count of taking indecent liberties with a child on 17 May 2004 and was sentenced to 34 to 41 months imprisonment. Defendant was released from prison in January 2007 and placed on post-release supervision for five years.
In 2007, the General Assembly enacted
On 15 February 2008, defendant received a letter from the Department of Correction informing him that he was to appear for an SBM hearing. The letter notified defendant that “[t]he Department of Correction has made the initial determination that you meet the criteria set out in General Statute 14-208.40(a), which requires your enrollment in Satellite Based Monitoring.” The letter did not identify which of the criteria in
At the hearing in Catawba County Superior Court on 23 June 2008, defendant moved to dismiss the proceedings against him, arguing that the application of the statute to him violated the
ex post facto
clauses of the state and federal constitutions. Defendant also argued that the letter sent to him by the Department of Correction was insufficient notice under the Due Process Clause of the United States Constitution and the Law of the Land Clause of the North Carolina Constitution. The trial court denied defendant’s motion to dismiss and found that defendant fell within
Discussion
On appeal, defendant first contends that requiring him to enroll in the SBM program violates the ex post facto clauses of the state and federal constitutions. This Court, however, recently rejected this argument in State v. Bare, 197 N.C. App. 461, 478, 677 S.E.2d 518, 531 (2009) (holding that retroactive application of SBM program does not violate ex post facto clause because program was intended by legislature to be civil, regulatory scheme and its effects are not so punitive as to negate that intent). We, therefore, do not discuss that argument further.
Defendant further contends that his procedural due process rights were violated because the Department’s hearing notification letter did not indicate which of the
We believe that requiring defendant to submit to SBM implicates a protected liberty interest. Although defendant is on post-release supervision and, accordingly, his liberty is already somewhat restricted, the SBM will continue past the conclusion of his post-release supervision.
See
Although our courts have not had occasion to address this issue before, in Commonwealth v. Cory, 454 Mass. 559, 911 N.E.2d 187 (2009), the Massachusetts Supreme Judicial Court recently discussed whether required participation in SBM infringes upon a protected liberty interest. The court identified two ways in which a GPS device would burden an individual’s liberty: “by its permanent, physical attachment to the offender, and by its continuous surveillance of the offender’s activities.” Id. at 570, 911 N.E.2d at 916.
With respect to the first of these, the court reasoned that requiring an individual to permanently attach a GPS device to his or her person would be “dramatically more intrusive and burdensome” than the burden imposed through the State’s sex offender registration program. Id. The court explained:
There is no context other than punishment in which the State physically attaches an item to a person, without consent and also without consideration of individual circumstances, that must remain attached for a period of years and may not be tampered with or removed on penalty of imprisonment. Such an imposition is a serious, affirmative restraint.
Id. As for the second potential intrusion on liberty, the court maintained:
The intended function of the GPS device, continuous reporting of the offender’s location to the probation department, also represents an affirmative burden on liberty. While GPS monitoring does not rise to the same level of intrusive regulation that having a personal guard constantly and physically present would impose, it is certainly far greater than that associated with traditional monitoring. And the impact of such intrusion is of course heightened by the physical attachment of the GPS bracelet, which serves as a continual reminder of the State’s oversight.
Id. at 570-71, 911 N.E.2d at 196-97.
The court then concluded that “[t]he GPS requirement thus places significant restraints on offenders” that amount to “liberty burdens.” Id. at 571, 911 N.E.2d at 197. See also U.S. v. Smedley, 611 F. Supp. 2d 971, 975 (E.D. Mo. 2009) (holding that imposing home detention with electronic monitoring as condition of release impinged on liberty interest); U.S. v. Merritt, 612 F. Supp. 2d 1074, 1079 (D. Neb. 2009) (holding that “[a] curfew with electronic monitoring restricts the defendant’s ability to move about at will and implicates a liberty interest protected under the Due Process Clause”); U.S. v. Arzberger, 592 F. Supp. 2d 590, 600 (S.D.N.Y. 2008) (recognizing that “the curfew and attendant electronic monitoring here would impinge on a constitutionally-protected liberty interest”).
We agree with the reasoning of the Massachusetts Supreme Judicial Court and hold that requiring enrollment in the SBM program does deprive an offender of a significant liberty interest. We must, therefore, next determine whether defendant, in this case, was given all the process he was due. Our Supreme Court has stressed that “[t]he fundamental premise of procedural due process protection is notice and the opportunity to be heard.” Peace, 349 N.C. at 322, 507 S.E.2d at 278. “At a minimum, due process requires adequate notice of the charges and a fair opportunity to meet them, and the particulars of notice and hearing must be tailored to the capacities and circumstances of those who are to be heard.” In re Lamm, 116 N.C. App. 382, 386, 448 S.E.2d 125, 128-29 (1994), aff‘d per curiam, 341 N.C. 196, 458 S.E.2d 921 (1995), cert. denied, 516 U.S. 1047, 133 L. Ed. 2d 663, 116 S. Ct. 708 (1996). As there is no contention that defendant was deprived of the opportunity to be heard, the sole issue here is whether the notice given to defendant was sufficient.
The State contends that
The statute itself requires that the Department of Correction “shall make an initial determination on whether the offender falls
into one of the categories described in G.S. 14-208.40(a).”
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.
Thus, the statute requires notice of two facts: (1) the hearing date and (2) the Department’s determination with respect to
This construction of the statute is further supported by the fact that the statute allows the hearing to be held in as short a time frame as 15 days after notification of the hearing. While the State points to the fact that counsel in this case had more time, the relevant consideration is the least amount of time that counsel for the offender could have. We do not believe that it is reasonable to assume that the General Assembly intended that counsel for an offender have to investigate and prepare to respond to all possible categories under
Moreover, the State’s interpretation of
In Morrissey v. Brewer, 408 U.S. 471, 486-87, 33 L. Ed. 2d 484, 497, 92 S. Ct. 2593, 2603 (1972), the Supreme Court discussed the degree of notice required for preliminary parole revocation hearings, holding that “the parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged.” (Emphasis added). For a final parole revocation hearing, the Court held that the “minimum requirements of due process” include “written notice of the claimed violations of parole.” Id. at 489, 33 L. Ed. 2d at 499, 92 S. Ct. at 2604. Our appellate courts have similarly required notice of the alleged probation violations giving rise to the probation revocation hearing. See State v. Sellers, 185 N.C. App. 726, 728, 649 S.E.2d 656, 657 (2007) (explaining that minimum due process requirements in probation revocation hearings include written notice of conditions allegedly violated); State v. Cunningham, 63 N.C. App. 470, 475, 305 S.E.2d 193, 196-97 (1983) (holding that evidence was insufficient to support trial court’s order revoking defendant’s suspended sentence in part because State sought to prove additional conduct not contained in notice to defendant of alleged probation violations).
Additionally, in a variety of other contexts, North Carolina courts have held that procedural due process requires notice sufficient to inform the recipient in advance of a hearing of the bases for the proceedings against him or her so that the individual will have a meaningful opportunity to respond. See, e.g., Egelhof ex rel. Red Hat, Inc. v. Szulik, 193 N.C. App. 612, 616, 668 S.E.2d 367, 370 (2008) (noting that although North Carolina courts have not required “a party, against whom statutory sanctions have been sought, to be put on notice of the specific type of sanctions, which may be ordered,” courts have “consistently required,” as a matter of due process, “(1) notice of the bases of the sanctions and (2) an opportunity to be heard”); Dunn v. Ganoy, 180 N.C. App. 30, 40, 636 S.E.2d 243, 250 (2006) (holding that “[t]o receive adequate notice, ‘[t]he bases for the sanctions must be alleged. ... In order to pass constitutional muster, the person against whom sanctions are to be imposed must be advised in advance of the charges against him.’ ” (quoting Griffin v. Griffin, 348 N.C. 278, 280, 500 S.E.2d 437, 439 (1998))), appeal dismissed and disc. review denied, 361 N.C. 351, 645 S.E.2d 766 (2007); In re Alexander v. Cumberland County Bd. of Educ., 171 N.C. App. 649, 658, 615 S.E.2d 408, 415 (2005) (finding no due process violation where student who was suspended for 10 days received notice in advance of hearing of alleged violations); Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 686, 468 S.E.2d 813, 816 (explaining that “the federal due process concern for fundamental fairness is satisfied if the employee receives ‘oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story’ ” (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506, 105 S. Ct. 1487, 1495 (1985))), disc. review improvidently allowed, 344 N.C. 731, 477 S.E.2d 33 (1996).
We can conceive of no meaningful distinction, between these cases — consistently requiring notice in advance of a hearing of the contentions giving rise to the hearing — from an SBM hearing that could result in an offender, for a substantial period of time, having a GPS device attached to his leg, having his whereabouts constantly monitored, and being required to comply with Department of Correction regulations. The State, in arguing that due process does not require such notice, does not address procedural due process
In
Golphin,
the Court held that the State is not required to set out in a short-form murder indictment the specific aggravating circumstances that it intends to rely upon in seeking the death penalty.
Id.
at 397, 533 S.E.2d at 193-94. The Court reasoned that because
As an initial matter, we note that the Court in
Golphin
did not specifically address the requirements of procedural due process, but rather focused on the ramifications of
Apprendi v. New Jersey,
530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), for short-form indictments. Importantly, however, as the Court stressed in
State v. Hunt,
357 N.C. 257, 265, 582 S.E.2d 593, 599,
cert. denied,
539 U.S. 985, 156 L. Ed. 2d 702, 124 S. Ct. 43-44 (2003), addressing the same issue, in capital cases there is a “Rule 24 hearing” at which the court and parties “shall” consider “the existence of evidence of aggravating circumstances.” Although the prosecutor is not limited to aggravating factors discussed at the Rule 24 hearing, a capital defendant can also request a pretrial hearing on “the legal sufficiency of a set of facts supporting the aggravating circumstances” set out in the statute.
Id.
at 264, 582 S.E.2d at 598. Of course, defense counsel is also entitled to discovery from the State pursuant to
We do not believe that
Golphin
— addressing capital cases with their unique protections combined with the discovery available in criminal cases generally — warrants the conclusion that the Department of Correction need not advise an offender of the specifics of its determination that an offender falls within the scope of
We note that with probation revocation hearings, as with SBM hearings, there are only a limited number of possible bases for the revocation hearing because the defendant is already aware of the probation conditions. We nonetheless require notice to the defendant in advance of the hearing of the conditions that the State contends were violated. See, e.g., Sellers, 185 N.C. App. at 728, 649 S.E.2d at 657; Cunningham, 63 N.C. App. at 475, 3,05 S.E.2d at 196-97. We believe that the SBM hearing is more analogous to a probation revocation hearing than to a capital sentencing hearing.
The State also argues, citing
Moreover, recent amendments to
The State has identified no other reason that the Department of Correction should not be required, in its
We, therefore, hold that
Reversed and remanded.
Judges BRYANT and STEPHENS concur.