State v. Wagoner

IN THE COURT OF APPEALS v.

STATE WAGONER

[199 STATE OF NORTH CAROLINA v. EDWARD JUNIOR Defendant WAGONER,

No. COA08-982 (Filed 2009) 1 September post 1. Constitutional monitoring— Law— ex facto — satellite punishment not criminal

The of an enrollment indecent liberties defendant in the satel- system monitoring lite-based (SBM) did not violate the constitu- post prohibition tional ex legislature because the did not facto intend SBMto be criminal 2. jeopardy Constitutional Law— double monitor- — satellite ing punishment criminal —not attorney

The failure of the of an indecent liberties defendant jeopardy argument against advance double imposition monitoring satellite-based was not ineffective assistance of coun- only claim matters, sel. That in available criminal and this was not a criminal jeopardy mater. The claim of double fails for the same reason.

3. plea bargain subsequent Criminal Law— satellite moni- — toring requirement imposition of a system monitoring satellite-based on an plea

indecent liberties did not agreement. defendant violate his Judge separate ELMORE opinion. dissents Appeal by from February defendant order entered on or about 19 Henry Judge Frye, Superior Court, E. County. Jr. Wilkes Appeals January Heard in Court

Attorney Roy III, Cooper, Attorney General A. Assistant Ricci, General YvonneB. the State. for Jester, defendant-appellant. Richard E.

STROUD,Judge.

Defendant was ordered to enroll in satellite-based pursuant appeals, to N.C. Gen. Stat. § 14-208.40B.Defendant arguing (1) violating the trial court erred in rights defendant’s “constitutional prohibition against violation of the punishments[,]” ex (2) “his violating right jeopardy[,]” to be free from double “imposing upon condition restriction the defendant which was APPEALS OF IN THE COURT

STATE WAGONER N.C. App. (2Ó09)] with of North plea bargain in the State specifically agreed to his not following specific agreements.” For in of the Carolina violation reasons, we affirm. Background

I. pled no contest at- February defendant 27 On or about liberties; and one count indecent tempted degree first sex offense years imprisonment. Also on or five was sentenced to defendant guilty committing a crime February 1996, pled 27 defendant about was liberties; defendant count of indecent against nature and one January 2005, imprisonment. years On or about to two sentenced with charge of indecent liberties pled no contest to the defendant months, but received sus- to 20 to a child and was sentenced 2005, defendant’s sus- 14 November pended sentence. On or about he the conditions of activated because violated pended sentence was probation. his (“DOC”) January 2008, Department of Correction noti-

On 7 hearing regarding satellite-based mon- fied scheduled defendant February 2008, appointed to was (“SBM”). On 12 counsel itoring hearing. his On or about 19 represent regarding SBM defendant Defendant and his counsel February 2008, hearing the SBM was held. present any documentary evidence hearing attended the but did testimony. in SBMfor the remain- was ordered to enroll Defendant he was found to be a recidivist. Defendant of his life because der SBM, arguing the requiring him to enroll in appeals from the order rights “constitutional in (1) violating defendant’s trial court erred post punishments[,]” (2) prohibition against ex violation facto “impos- jeopardy[,]” “his free from double violating right upon the was not or restriction defendant which ing condition plea bargain with the State of North specifically agreed to his following specific agreements.” For the Carolina in violation of reasons, we affirm.

II. Post Facto Law Ex ^[1] Defendant first contends that first en- monitoring of sex offenders was

[s]atellite-based years he had taken indecent after admitted acted two [defendant] by which was returned to with a minor. The Statute he liberties years than three after his offense. law more Court became Ordering monitoring for the in satellite-based him to enroll punishment post an ex his life constituted remainder of facto of our law. violation

IN THE COURT OF APPEALS

STATE WAGONER App. N.C.

A. Standard of Review

The standard of review determining whether SBMviolates the prohibition post Constitutional on ex law is de novo. State v. facto App. 461, Bare 197 (citation 464,—S.E.2d—,—(2009) omit ted). Furthermore, both the federal and state constitu “[b]ecause provisions tional ex are evaluated under the same defini tion, analyze we defendant’s state and federal constitutional jointly.” 464,-S.E.2d contentions Id. at at-(quotation marks (quoting White, omitted) State v. 183, 191, 590 S.E.2d (2004)). Analytical B. Framework for Ex Post Challenges Facto to SBM prohibition against post ex applies laws to: facto Every . .

. law changes punishment, that the a inflicts greater punishment, than the law crime, annexed to the when committed. . .. determining

In a law greater punishment whether inflicts a than was established commission, for a crime at the time of its we legislature first examine whether the SBM im- intended pose punishment regulatory or enact a scheme is nonpunitive. civil and impose

If the of the legislature intent was to punishment, that inquiry. however, the If ends the intention regula- was to enact a tory scheme nonpunitive, that is civil and we further examine statutory whether the punitive purpose scheme is so in either or ás to negate legislature’s effect the intention to deem it civil. ordinarily legislature’s Because we defer to intent, the stated only proof the legislative clearest will suffice to override intent remedy and transform what has beén denominated a civil into a penalty. criminal statutory

Whether a scheme is civil criminal is first of all question statutory of construction. We consider the text statute’s and its structure to legislative objective. determine the A conclu- sion that the legislature punish satisfy intended to would an ex challenge inquiry effects, without further its so into leg- considerable deference be accorded to must the intent as the APPEALS IN THE COURT OF

STATE v. WAGONER of a statute is clear language it. Where the islature has stated judicial and the is construction unambiguous, there no room meaning. using plain its the statute courts must construe ambiguous pre- the is or lacks However, language if the statute meanings, more the cision, fairly susceptible of two or or is pertinent and aid of all sought it the intended sense of Proper include law considerations admissible considerations. public policy enactment, at time of its as it existed acts, pub- injudicial opinions legislative State as declared act. interest, purpose and the lic Assembly, statutes in of the General discerning intent and harmonized pari together be construed materia should legisla- first possible. The must ask whether whenever courts mechanism, penalizing indicated either ture, establishing It preference for label or the other. expressly impliedly one subject mat- dealing well statutes with the same settled that pari materia, together constituting ter must be construed law. one Sess. Laws provisions were enacted

The SBM act be known as An Act 2006-247, 1(a) which states: This shall Changes. Law Children/Sex Offender To Protect North Carolina’s part provisions 5 of Article 27A of The SBM are located Chapter Art. 14 of the Chapter 14 of the General Statutes. 27A Sex and Public Protection General Statutes is entitled Offender system required provide to The SBM is Registration Programs. tracking geographic loca- and continuous time-correlated system subject global-positioning based on using tion of the a of tracking technology reporting and satellite and other location prescriptive subject’s proscriptive of and schedule violations requirements. Frequency reporting range of from location day (active). to (passive) once a near real-time monitoring program monitors two cate- The sex offender any who is category The first is offender gories of offenders. reportable Gen. Stat. of a conviction defined N.C. convicted required under register to as a sex offender 14-208.6(4) and § sexually he ... a vio- Part 3 Article 27Abecause is classified as of aggravated predator, recidivist, or was convicted of an is a lent category is 14-208.6.The second § offense as defined G.S. is of (1) who four criteria: convicted offender satisfies required by 14-208.6(4), is to reportable (2) defined conviction IN THE COURT OF APPEALS

STATE WAGONER register 27A, under Part 2 an (3) of Article has committed offense mental, involving physical, minor, (4) sexual abuse of a and requires based risk program, highest pos- on a assessment supervision sible monitoring. level of and construing whole, In the statute as a we leg- conclude the islature SBM be a regulatory intended to civil and scheme. This interpreted legislative Court has intent of Article 27A as establishing protect public. civil regulatory By scheme to provisions SBM placing the 27A, under the umbrella of Article the legislature intended part SBM be considered same regulatory registration provisions scheme as the under the same article. 464,-S.E.2d marks,

Id. at at-(citations, quotation brackets, heading, omitted). and footnote Legislative Intent legislative

Defendant claims that the intent to make SBM crim- sanction, subject inal and thus prohibition, the ex through: (1) demonstrated use the term “intermediate sanction” to describe SBMin imposing Section 16 of House Bill (2) SBM“as probation, parole, post-release supervision,” and (3) [a] condition[] selecting entity governmental the DOC “as the develop super- SBM, (4) vise” not “that specifying enrollment orders would enter in any forum sentencing other than a hearing courtf,]” (5) criminal “probation” replacing the word with “cooperation” in Bill House clumsy disguise “a cosmetic penal SBM, effort to nature (6) of’ requiring of eligibility “that determinations for made while [SBM] sentencing or, present case, offenders awaited ... reg- as in the had istered as sex prison[,]” (7) placing offenders after their release from responsibility initiating for eligibility “the determinations Attorney for awaiting sentencing District Department offenders . . . and on the already released[,]

of Corrections for (8) offenders not creating proceedings eligibility “administrative determinations, mandating] but that the law[,]” determinations be made in courts of authorizing “non-judicial eligi- officers to make final bility directing] superior . . . court but] [i]nstead determination^ judges eligibility Bare, fully to issue orders.” this Court addressed arguments 1, 2, 7; defendant’s regarding above issues accord- — ingly, arguments 461, these are overruled. See id. at at —. S.E.2d will now We address defendant’s remaining leg- contentions that the islature that intended SBMbe criminal OF APPEALS IN THE COURT

326 v. WAGONER STATE N.C. 321 System of the Criminal Justice a. Involvement contends that Defendant above:)] Legislature 4 did argument

[(Defendant’s number [the] any forum specify orders would enter not that enrollment court[,] hearing in criminal sentencing than a other . . . 29 above:)] House Bill (Defendant’s argument number 6 [and, by specifying how offend- enacting legislation in the filled void so placed monitoring, did would be on satellite-based ers penal evidenced the nature of scheme. again a manner which eligibility for required determinations of Legislature The that sen- monitoring made while offenders awaited satellite-based case, or, present registered as sex offend- tencing ... as in the had prison[.] from ers after their release a dif registration sex statutes on considering Alaska’s offender Supreme noted, “Invoking the issue States Court ferent the United statutory process regime in aid of a does render criminal statutory Doe, 84, 96, 155 punitive.” itself Smith v. 538 U.S. scheme Furthermore, 164, (2003). registration L. 2d North Carolina’s Ed. depart by is maintained the offender’s local sheriff’s sex offenders registration not intended ment, have found that was but our courts Sakobie, 165 punitive. (2007); § See N.C. Gen. Stat. 14-208.7 State White, N.C. App. 447, 452, (2004); State v. N.C. S.E.2d agree Smith, with in that App. 183,198, (2004). 590 S.E.2d We statutory process regime in aid of a mere involvement of “the criminal statutory 96, 155 punitive.” itself Smith at does not render the scheme L. Ed. 2d at 179. Replaced “Cooperation” with

b. “Probation” points language of the 2007revision to Defendant next by attempt argues the revision was an § Gen. Stat. 14-208.42and that Assembly up punitive ver- to cover its intent. General provided Stat. 14-208.42 sion of Gen. law, when court

[notwithstanding provision other category who G.S. an offender is in described sentences reportable defined G.S. 14-208.40(a)(l) for a conviction as to enroll in a satellite-based 14-208.6(4), orders offender offender, program, the court shall also order that IN THE OF COURT APPEALS v.

STATE WAGONER App. (2009)] N.C. [199 upon completion any of the offender’s sentence and term of post-release parole, supervision, punishment, intermediate supervised probation sentence, that follows the continue to be enrolled in the monitoring program satellite-based for the placed unsupervised probation offender’s life and be unless requirement the person that the enroll a satellite-based moni- toring program is pursuant terminated to G.S. 14-208.43. N.C. Gen. Stat. (2006). (emphasis § 14-208.42 added). The 2007 ver- sion 14-208.42, of N.C. Gen. Stat. applicable § which is to defendant provides that any

[notwithstanding provision law, other when an required offender is to enroll in monitoring pur- satellite-based 14-208.40B, suant to G.S. upon 14-208.40Aor G.S. completion of any the offender’s sentence and parole, post-release term of supervision, punishment, supervised probation intermediate sentence, that the follows the offender shall continue to be enrolled in the satellite-based monitoring program period for the required by G.S. 14-208.40Aor require- G.S. 14-208.40Bunless the person ment that the enroll in a monitoring pro- satellite-based gram pursuant is terminated G.S. to. 14-208.43. Department authority shall have the to have contact with

the offender at the require offender’s residence or to the offender appear specific at a purpose location as for the needed enrollment, monitoring equipment, equipment to receive to have maintained, any examined or complete purpose necessary and for other requirements the monitoring pro- satellite-based gram. cooperate Department The offender shall with the requirements of program satellite-based until requirement offender’s to enroll is terminated and the offender monitoring equipment has returned all Department. to the Gen. Stat. 14-208.42 (emphasis added). Defendant contends that the 2007 amendment “manifested clumsy penal disguise cosmetic effort to nature of satellite-based monitoring” replacing requirement “unsupervised proba “cooperation] tion” with Department[.]” with the (2006)-(2007). Id. Hearst, Defendant directs our attention to State where the term “residential treatment” was substituted statute “confine 132, 137, ment.” 356 N.C. (2002). Hearst, S.E.2d Supreme North Carolina Court determined that OF APPEALS IN THE COURT v. WAGONER

STATE changes not make substantive amendments did the 1998 acknowledge wording used we itself. While program we that this provide guidance, hold an can useful in the title of act clearly merely and does not terminology is cosmetic change in should program IMPACT intent that the legislative demonstrate 15-196.1. N.C.G.S. quality § for credit under at 128. at 567 S.E.2d Id. made a 2007amendment consider whether the must therefore

We version of N.C. id. The 2006 change to the statute. See substantive unsuper- placed on required that 14-208.42 offenders Gen. Stat. § 2007 ver- (2006). 14-208.42 § See N.C. Gen. Stat. probation. vised requirement the of unsu- Gen. Stat. 14-208.42removes § sion of N.C. to contact defendant probation and enables the DOC pervised instead equipment examined or equipment, to have “to receive complete necessary any purpose to the maintained, other (2007). Id. monitoring program.” requirements of the satellite-based of regular forth the conditions 15A-1343(b) § Stat. sets N.C. Gen. probation unsupervised as follows: any jurisdiction. no criminal offense

(1) Commit family obligations as Satisfy support and child other (4) by requires payment of required If the the court. court payments shall be deter- support, child the amount of the provided 50-13.4(c). as G.S. mined deadly firearm, explosive device or other (5) Possess no permission weapon listed in G.S. 14-269without written of the court. faithfully pursue suitably employed gainfully and or

(7) Remain equip study training that will of or of vocational course employment. pursuing A a course him for suitable defendant by all of study training shall abide or of vocational training, or providing the education rules of the institution copy proba- probation and the officer shall forward request be notified judgment that institution and tion any institutional rules the defendant. violations of IN THE OF COURT APPEALS

STATE WAGONER Pay (9) court, the costs of court, fine ordered reparation make restitution provided . in subsec- (d). tion Pay

(10) appointed the State Carolina for the costs of North public counsel, defender, appellate represent defender to case(s) him in placed probation. for which he was complete program Attend and an if (i) abuser treatment responsible court finds the defendant is for acts of domestic (ii) violence and a program, approved by there is Commission, reasonably Domestic Violence available defendant, unless the court finds that such would not inbe justice. the best interests of

N.C. Gen. 15A-1343(b) (2007). placed Stat. If an offender were unsupervised probation, all of the 'conditions N.C. Gen. Stat. 15A-1343(b) apply. However, § could none of the conditions of probation required by enumerated are now above N.C. Gen. Stat. Compare § 14-208.42. N.C. Gen. Stat. (2007); 14-208.42 §§ Hearst, 15A-1343(b). legislature Unlike in did “make .. . substan- tive changes itself.” Hearst at program to the 567 S.E.2d at 128. requirements The of quite SBM under the 2007 revision are different unsupervised probation required by from the of conditions as Compare 2006 statute. N.C. Gen. Stat. (2006)-(2007). § 14-208.42 way amendment maintaining establishes different of SBM which is Compare merely not a “cosmetic” change. N.C. Gen. § Stat. 14-208.42 but see Hearst at (2006)-(2007); Furthermore, at S.E.2d legislative 2007 amendment does not indicate a intent that SBM be a punishment, “cooperation” required by criminal as the “unsupervised revised statute is less probation” restrictive than the by the 2006 required statute. N.C. Gen. Stat. 14-208.42(2006)-(2007). c. of Determinations Enrollment in SBM Made in Courts Lawof

Superior Judges Court

Defendant argues punitive also SBM was intended be because [(Defendants argument above:)] Legislature number 8 did [t]he not create proceedings eligibility administrative for determina- tions, but mandated that the determinations made in courts of law[,] . . (Defendant’s argument . above:)] number 9 [and [t]he Legislature non-judicial did not authorize officers to make OF APPEALS THE COURT IN v. WAGONER

STATE Instead, directed Legislature eligibility determination. final eligibility to issue orders. superior judges court superior judges serve law and court However, our courts of certainly involvement is non-punitive purposes and their numerous Indeed, North criminal scheme. of a civil or determinative many jurisdiction regarding different have Superior Courts Carolina’s (2007) e.g., N.C. Gen. Stat. 7A-241 See, §§ types of civil matters. jurisdiction probate of wills and the original for the (“Exclusive superior in the court estates is vested of decedents’ administration division[.]”); proper (“The superior court division (2007) -245 principal relief where the is” ... for the trial of civil actions division declaratory (2007) (“The -246 types injunctive relief.); of certain superior . proper hearing . . for the division is the division court superior special ....”); (2007) (“The -247 court proceedings of trial all actions seek- proper .. . for the trial all division is the division civil remedy quo .”); . . . -248 warranto principal relief the ing proper ... for the trial (“The superior court division is the division property is con- proceedings being wherein taken all actions and superior . court division is .”); (2007) (“The . . -249 demnation receiverships[.]”). proper corporate . . for division . actions “superior Therefore, of “courts of law” and court the involvement punitive legislative intent. judges” does not indicate Regarding Legislative Intent d. Conclusion agree with Bare that We thus considerations has failed to direct us [defendant Assembly support that the General

which would his contention Therefore, in SBM ... be criminal intended that prior registration, regarding sex offender accord with our cases Chapter 14 of the North again we that Article 27A of conclude Statutes, Offender and Public Carolina General entitled “Sex which now includes “Part 5. Registration Programs,” Protection Monitoring,”was intended as “a civil and not crim- Sex Offender remedy.” inal - - omitted). (citation S.E.2d and brackets

Bare at at legislature SBM to be the intended Defendant’s contentions that punishment merit. criminal are without Purpose in or Effect 2. Punitive statutory puni scheme is so “whether the

Wenow must consider to negate the State’s intention purpose tive in or effect as either THE IN COURT OF APPEALS

STATE WAGONER 465,-S.E.2d deem it civil.” at at-(citation quotation Id. omitted). However, marks all of defendant’s contentions regarding punitive fully the of SBM effect have been addressed Bare. See —465, id. presented at S.E.2d at —. Defendant no evidence be punitive fore trial the as to upon court effects him ar nor gument permit which us distinguish would defendant’s situation from that of the by defendant in Bare.1 We are controlled Bare’s conclusion that imposed by provisions restrictions the SBM do not negate the

legislature’s expressed civil intent. Defendant has failed to show sufficiently that the of punitive effects SBMare to transform the remedy civil into criminal Based on the record us, application before provisions retroactive of the SBM do not violate the ex clause. 478,-S.E.2d

Id. at at-. dissent, recognize, by may We as noted that there be serious legal by issues raised DOC’smanner of execution of SBMunder provisions some of the DOC’s Sex Management Offender Interim Policy (“Interim Policy”). However,just Bare, as in App. 461, 197N.C. —, -S.E.2d regarding those issues execution SBMhave not party been raised either in this case and our record contains no evidence, certainly court, no findings the trial as to the Interim Policy or details applied of SBMas to defendant. Defendant has chal- lenged constitutionality of the statute under which he was SBM, 14-208.40B; ordered to enroll in Gen. Stat. defendant has challenged Policy. the Interim record, Pursuant to neither our Policy defendant nor the State mentioned the Interim before the trial court or in their Although ability briefs. this Court have the judicial take Policy, notice the Interim we have not had the benefit briefing arguments regarding Policy. the Interim For these rea- sons, only presented we have case, addressed issues to us in this upon based the arguments presented and record this case. III. Jeopardy Ineffective Assistance of Counsel and Double ^[2] Defendant'argues that he had ineffective assistance of counsel due to his failure legally jeop counsel’s to “advance a sound double ardy argument.” Defendant right contends that his to be free from only us, 1. This Court can consider information the record before and the nothing performed upon record reveals almost about how SBM is effects its defend- Indeed, ant. the record does not even reveal the size SBM unit how operated it is and maintained. THE OF APPEALS IN COURT 332 v. WAGONER

STATE App. subjected he been been violated because has jeopardy has double offenses. prior convictions of sexual punishment for his an additional prosecu- against (1) second protects a Jeopardy Clause “The Double prosecution a for acquittal, (2) second same offense after tion for the multiple punishments for conviction, (3) after the same offense 444, 701, 451, 340 S.E.2d Gardner, 315 N.C. State v. the same offense.” omitted). (1986) (citations a for ineffective assistance of counsel note that claim We first already concluded only matters, and we have in criminal available Const, VI. U.S. amend. not a criminal See that SBM is prosecutions, the accused shall (“In all criminal (emphasis added) Counsel for his enjoy right ... to have the Assistance of 486, 491, Lowery, generally defence.”); see Alford authority no and we have 543, (“Plaintiff cites (2002) S.E.2d jury in a civil case precedent setting for aside verdict no found counsel.”). on ineffective assistance based an inef- if that defendant could raise However, even we assume context, argument an argument counsel in this fective assistance of jeopardy SBMis civil double would fail because that SBMviolates prosecuted a second regulatory scheme. Defendant has been offenses, he any previously but contends has for committed time already subjected punishments. As we have held to additional been scheme, punishment, regulatory and not double that SBMis a civil 346, 369, Hendricks, jeopardy apply. Kansas v. 521 U.S. does not See (“Our that the Act is non- L. 2d conclusion 138 Ed. prerequisite jeop- . . . an double punitive thus removes essential ardy argument . . . This is without merit. claims.”). Bargain

IV. Plea Violation of ^[3] Lastly, defendant contends “[t]he trial court erred impos upon was not or restriction the defendant which ing condition plea bargain with the State of North specifically agreed to in his specific agreements.” Again, Bare has in violation Carolina precedent fully and we are bound its which addressed this issue plea agree SBM does not violate defendant’s has determined that argument S.E.2d at-. This is overruled. ment. See Bare at

V. Conclusion in SBMdoes not violate We enrollment conclude that defendant’s jeopardy. against law or double prohibitions ex We Furthermore, plea bargain has not been violated. defendant’s IN THE COURT OF APPEALS 333

STATE v. WAGONER App. (2009)] [199 therefore affirm trial requiring the court’s order defendant to enroll in SBM.

AFFIRMED.

Judge CALABRIAconcurs. separate

Judge-ELMORE opinion. dissents in a ELMORE,Judge, dissenting. respectfully majority

I opinion dissent from affirming the the requiring trial court’s order defendant enroll in satellite-based monitoring. Although recognize I that most argu- of defendant’s were ago ments addressed this Court several in months State v. Bare, I expanded believe we that have the benefit of an record in this case, which makes distinguishable defendant’s case from Mr. Bare’s. Bare, explained repeatedly we that our conclusions were based upon the record us and the support before that record could not contrary 461, finding. App. 473-75, 518, 197 N.C. 677 S.E.2d I (2009). believe that record before us now can and should support contrary finding.

Here, may augment appeal by we taking judicial the record on Management Policy” notice the DOC’s “Sex Offender Interim (Interim judicial “The Policy). device of notice available to an appellate court well as a recognized as trial This Court has court[.] past public important judicially that documents will be noticed.” ex rel. Co., State Utilities Com. v. Southern Bell Tel. Tel.& 289 N.C. 286, 288, (quotations 221 S.E.2d (1976) and citations omit ted). Although yet DOC regulations govern has not drafted final ing program SBM that are available in register, our state its policy public may interim is the sort of document of which this Court judicial See, e.g., take W. Co. v. Property notice. R. North Carolina Com., App. 245, 261, Tax 48 N.C. 269 S.E.2d (stating judicial corporate we take notice aof charter on file with Secretary but party of State not included either in the record appeal). opinion in on Our Bare makes no mention DOC’s Policy thus, my opinion, Interim and contents the Interim Policy unique are appeal. new facts circumstances to defendant’s ExA. Post Facto Punishment respectfully majority’s

I disagree with conclusion that SBM punitive purpose has no effect thus does not violate the ex OF APPEALS THE COURT IN v. WAGONER

STATE penal regula- whether a statute is To determine clause. factors, following seven tory character, a court examines factors: the Mendoza-Martinez known as disability or involves an affirmative the sanction Whether punish- historically regarded been restraint, it has whether .scienter, play only finding ment, whether it comes into pun- promote aims of operation its will the traditional whether deterrence, whether the behavior ishment —retribution pur- applies already crime, whether alternative it is a an which it, may rationally assignable for pose be connected is to which it appears in relation to the alternative whether it excessive and purpose assigned[.] 144, 168-69, 644, L. Ed. Mendoza-Martinez, 372 2d

Kennedy v. U.S. omitted). Although these factors (1963) (footnotes 661 “may citations evidence point directionsf, conclusive often in different a]bsent statute, a these factors penal as to the nature of [legislative] of intent 169, its face.” Id. at must in relation to the statute on be considered majority no agree I with the that there is L. Ed. 2d at 661. Because legislative intended SBMstatute to evidence that the conclusive my analysis by examining seven Mendoza- penal, begin I be Martinez factors. disability question first is Affirmative The or restraint.

1. disability involves an affirmative sanction “[w]hether Mendoza-Martinez, 9 L. Ed. 2d at 661 372 U.S. at restraint.” Supreme omitted). To echo the Court (footnote and citations imposes significant Act Indiana, answer is that the short “[t]he obligations every person whom stigma and a severe to affirmative State, -(Ind. 2009). Both applies.” it Wallace v. 905 N.E.2d statutory implementing guidelines its re- provisions SBM quire post-discharge conduct under threat affirmative and intrusive prosecution. registration program re- regular sex offender

In addition to the non-punitive, though judicially quirements, which, determined to participants practice, monitoring significant are nevertheless SBM subject to additional affirmative disabilities following are authority with the (1) DOC “the to have contact restraints: has require to or to the offender offender at appear offender’s residence specific N.C. Gen. Stat. 14-208.42 location as at needed[.]” cooperate with and the “The offender shall (2007). (2) [DOC] programf.]” Id. requirements satellite-based IN THE OF COURT APPEALS

STATE v. WAGONER (emphasis added). (3) subject An offender is to unannounced war- every ninety days. Dep’t rantless searches of his residence Policies-Procedures, Correction No. VII.F Manage- Sex Offender Policy ment Interim 12 (2007). (4) daily An offender must maintain a schedule and curfew as established manager. his DOC.case An offender’s schedule and curfew includes spending at least six hours day each at his portable residence in order to charge his track- ing device. Id. at 15. “If the offender an religious has active affiliation,” the manager “notify offender’s case must church offi- history cials of the supervision offender’s criminal conditions[.]” Id. at addition, the DOChas created agreements maintenance that all program participants must sign. applies supervised Form DCC-44 sex (monitoring) offenders applies unsupervised and form DCC-45 sex (tracking). DCC-45, offenders which slightly less burdensome DCC-44,requires than agree the offender to following to the affirma- tive disabilities or prosecution: restraints or else face criminal

4; My will tamper proof, location be monitored non-remov-

able ankle required transmitter and a receiver. I will be carry wear the transmitter and the receiver with me 24 hours day, days a week. my responsibility 5. I understand it charge that is to the receiver for a minimum of four period hours each 24-hour to en- equipment properly. able the to work I understand that charg- ing requires the receiver electric service to be available. 6. I understand a unit in assigned the home will be to me it and necessary

will designated representative be for a of DCC to my enter location(s) may residence or other I where tem- porarily install, retrieve, periodically inspect reside to unit in order tracking required. to maintain as place 7. I understand I must the receiver in an area that is unob- structed display with the receiver facing screen out at all by times. The receiver should not be covered metal con- tainers, lockers, trunks, vehicle etc. or hidden under clothing, seats, purses, car briefcases, bags, tote etc.

* * * 9. In equipment necessary order to maintain and receive com- _

munications, agree I to reside at _, with contact OF APPEALS IN THE COURT STATE v. WAGONER __. residence, ! my will changing number Prior to phone representative and the Sheriffs appropriate DCC contact the my address. registered where I with new Office am my may via to me re- messages I understand that sent 10. messages will these and follow the acknowledge I ceiver. equipment. to maintain instructions order post- imposes intrusive Clearly,the SBM affirmative and program upon they completed long after have discharge conduct offenders post- sentences, parole, probation, regular their their their and their supervision; forever. these restraints continue release are remaining some that the restrictions mere Though argue inconveniences, deceiving Although this be a understatement. would probation, requirements longer subject are no to formal offenders they subject nearly equally they are to if not intrusive: cannot are they spend away homes, subject nights from their are to schedules they command, they curfews, appear must must submit to requests and searches. freedom all DOC warrantless An offender’s is requirements by regular as restricted the SBM jurisdiction probation, in the remaining conditions of which include: probation grants permission or a written unless the court officer probation permitting pro- leave, reporting directed, officer as times, answering visit all bation officer to at reasonable reasonable probation officer, probation inquiries notifying officer any change employment. addition, submission address or probation regular warrantless searches not a condition of and is special probation. instead a condition of imposes disability Accordingly, I that SBM an affirmative believe upon defendant, weighs which favor of the SBMstatute restraint being punitive regulatory. rather than historically pun- Sanctions that have been considered historically question

ishment. The next is whether SBM “has been punishment.” at regarded Mendoza-Martinez, as a 372 U.S. Obviously, L. (footnote omitted). Ed. 2d at 661 and citations satellite monitoring technology tracking using and thus is new offenders punishment. However, a technology is not historical or traditional upon pun- imposed restrictions offenders are considered additional ishments, addition, In courts both historical and current. some have up units, that the SBM made of an ankle bracelet suggested pun- tracking (MTD), analogous are to the historical miniature device IN THE COURT OF APPEALS 337

STATE v. WAGONER 321 shaming. See, e.g., ishments of Bredeson, 998, Doe v. 507 F.3d J., part (Keith, concurring in in dissenting part). Bredeson, the Sixth Circuit considered whether Tennessee’s SBMstatute violated majority the ex clause. The Bredeson legislature’s purpose

first held that the enacting Tennessee when civil, nonpunitive SBMstatute was to regime. establish Id. at 1004. majority then examined the Mendoza-Martinez factors and con- cluded, part, in relevant program Tennessee’s SBM was historically regarded sanction explained Id. at 1005.It that the “Registration Tennessee and Monitoring Acts do not increase length of offenders, they incarceration for covered sex pre- nor do jobs vent them from changing or traveling residences or to the extent permitted by otherwise parole probation.” their conditions of or Id. Judge Keith, dissent, in system his characterized monitoring the GPS “catalyst as a for ridicule” because the defendant’s device public was “visible to the when every- worn” and had to “be worn where” the defendant went. Id. at (Keith, J., dissenting part and concurring part). shaming, humiliation, “Public and banish- ment are well-recogniz,ed punishments.” historical (cita- forms of Id. omitted). tions It is clear guidelines from the DOC and maintenance agreements that the LTD must worn on the outside of all clothing and cannot be camouflaged any way, concealed or though even some forms of camouflage concealment or would not interfere with addition, the LTD’s function. In religious an offender’s institution must be informed of his compliance requirements. status and his SBM agree I Judge with Keith that the SBMscheme is reminiscent of his- shaming punishments, torical weighs finding which in favor of punitive, regulatory. scheme rather than Finding question scienter. The next is whether the stat- play only

ute “comes into finding on a of scienter.” Mendoza- Martinez, 372 U.S. at 9 L. Ed. 2d at (footnote and citations I omitted). believe that this factor is met because the underlying crim- acts,

inal indecent degree liberties with a child and third sexual exploitation minor, require of a intentional conduct. State v. Beckham, App. 282, 286, 148N.C. (2002) (citation 558 S.E.2d omitted); see N.C. Gen. Stat. 14-202.1(a)(2007) (“Aperson guilty taking years indecent if, being liberties with children age or years question, more and at least five older than the child in he either: (1) Willfully attempts any immoral, improper, takes or to take or indecent with age liberties child of either sex under the of years purpose for the of arousing gratifying desire; sexual APPEALS COURT OF IN THE

338 WAGONER STATE App. (2009)] 321 [199 lascivious lewd or attempts to commit or Willfully commits body body any part or member or upon with the act any N.C. Gen. Stat. years.”); 16 age sex under child of either third the offense of person commits (“A 14-190.17A(a) (2007) knowing character if, exploitation of a minor degree sexual a visual material that contains material, possesses he content of the activity.”). in sexual engaging a minor representation of question is The next aims of Traditional 4. punish- ‘traditional aims promotes the the sanction “whether ” App. at Beckham, 148 N.C. and deterrence.’ ment—retribution Mendoza-Martinez, 168, at 372 U.S. (quoting at 258 286, 558 S.E.2d promotes deter- question, the sanction 661). Without L. Ed. 2d at movements, in their example, are restricted For offenders rence. schoolyards or venturing into prevent them from ostensibly part venture into these offenders nurseries; satellite-monitored when may and the offender supervisors are notified zones, their restricted presence of a felony. “the mere Although charged with [deterrent deter- a sanction criminal to render quality] [because] is insufficient United goals,” Hudson v. civil, well as criminal serve rence 450, (1997) (quotations 93, 105, L. Ed. 2d States, 522 U.S. and not here is substantial the deterrent effect omitted), citation finding the sanc- weighs it in favor of merely Accordingly, incidental. punitive. tion to be only Applicability question to criminal behavior. The next 5. already applies statute is to which “whether the behavior

is [the] (foot- L. 2d at 567 Mendoza-Martinez, at 9 Ed. 372 U.S. crime.” only people applies The SBM statute omitted). note and citation Thus, this factor “reportable offenses.” convicted of who have been punitive. sanction to be finding in favor of weighs Advancing non-punitive question is interest. The next 6. may rationally which purpose to “whether an alternative statute] [the 168-69,9 L. Ed. 2d at 567 Id. at assignable be connected it[.]” does advance omitted). The SBM statute citation (footnote and keep interest, law enforce- rationally non-punitive which is to related in order to whereabouts informed of certain offenders’ ment officers by recidivists is a victimization public. Preventing further protect the finding in favor of weighs and one that worthy non-punitive interest regulatory. to be the sanction pur- articulated relation to State’s Excessiveness

pose. appears excessive question final is “whether statute] [the APPEALS IN THE COURT OF STATE v. WAGONER purpose at assigned” alternative to it. Id. relation to the (footnote omitted). L. 2d at 568 and citation “The excessiveness Ed. determining legislature the inquiry ... is not an exercise whether problem possible to address the it seeks to has made the best choice remedy. question regulatory whether the means chosen are is nonpunitive objective.” Doe, light reasonable in of the Smith v. 84, 105, (2003) (emphasis added). Judge L. U.S. 155 Ed. 2d Bredeson, explained Keith, majority opinion in dissenting from the as follows: SBM’sexcessiveness persons public places as putting

I fail to see how all on alert Doe, helps presence offenders, to the like law enforcement or release geographically officers link offenders to new crimes equally eludes me as to how ongoing investigations. them from It prevents offenders, like monitoring program the satellite-based Although device is obvi- Doe, committing from a new crime. physically prevent re-offending. an ous, it cannot offender from may Granted, help law enforcement officers track the offender it already committed), the crime has been but it does not (after purpose public safety neither the serve the intended because preventative device, monitoring, serve as actual mea- nor the Likewise, re- puzzling regulatory sures. it is how the means of plainly rehabili- quiring wearing of this visible device fosters contrary, denotes, a tation. To the and as the reflection above day relatively public sighting of modem “scarlet letter”—the assaults, undoubtedly panic, large G.PS. device—will cause course, may improve harassment, and humiliation. Of a state public safety prevent promote it to and the methods uses offenses, requiring Doe to wear a visible device for sexual but purpose program is not a of the satellite-based respect means that is reasonable with to its non- regulatory punitive purpose. despic- unquestionably amongst rank the most

Sexual offenses protect crimes, government and the should take measures able re-offending. However, public stop sexual offenders from placement large, plainly obvious G.P.S.monitor- to allow the of a every move, dangerously is ing device on Doe that monitors his openly him to having escorting a law enforcement officer close to every see, place (the general public) he chooses to visit for all ability prevent re-offending. As this him from but without finding clearly excessive, weighs this factor favor of punitive. monitoring program Act’s satellite-based Surveillance APPEALS THE COURT OF IN v. WAGONER STATE Judge with J., dissenting). agree I Bredesen, (Keith, at 1012 507 F.3d imposed upon defendant assessment; the restrictions Keith’s per- supervised probation if not dangerously close to statute are SBM majority dis- accompaniment a DOC officer. The Bredeson sonal visibility by stating Keith’sconcerns about the device’s missed Justice system, presently while not the dimensions its “belie[f] only and less cumbersome as tech- conspicuous, will become smaller Smaller, conspicuous, and less Id. at 1005. less nology progresses.” already exist, implementation of new but technologies cumbersome Though we one expensive time-consuming. technologies is though as he day release a recidivist sex offender tag be able to reality practical for defendant at migrating songbird, it is not a were equipment and accom- in the immediate future. The SBM this time or they support a conclusion that SBM panying exist now restrictions is a specifically the U.S. sum, factors identified of the seven inquiry as relevant to the

Supreme Court in Mendoza-Martinez punitive despite intent to the legislative a has a effect whether statute point treating contrary, that six factors in favor of the SBM I believe punitive. Only advances a non- provisions as one—that the statute treating provisions the SBM punitive purpose points favor of — non-punitive. I would hold that defendant’s enrollment Accordingly, punishment. program constitutes a in the SBM hold that defendant’s enrollment in Accordingly, I would also program SBM constitutes an unconstitutional ex Jeopardy and Double B. Ineffective Assistance of Counsel analysis respectfully majority’s defend- disagree I also with the argument. counsel Because I would ant’s ineffective assistance of punishment, regulatory that is a criminal not a civil hold SBM scheme, argument this on those bases. I would not dismiss Bargain of Plea C. Violation analysis majority’s

Finally, respectfully disagree I with the of de- by imposing a condition argument fendant’s that the trial court erred upon specifically agreed plea bargain. to in his defendant that was not pro- a “Although plea agreement occurs in the context of criminal plea agreement in nature. A will be ceeding, it remains contractual every voluntarily aspect of the knowingly valid if sides fulfill both 788, Rodriguez, App. 141, 111 N.C. 431 S.E.2d bargain.” State v. explained that, a defend- omitted). We because (1993) (citations IN THE COURT OF APPEALS PROPERTIES, LLC v. CITY OF ASHEVILLE ASHEVILLE SPORTS pleads ant surrenders fundamental rights constitutional when he upon guilty promise, prosecutor based the State’s “when a fails to promises plea fulfill made to the defendant in negotiating bargain, rights the defendant’s constitutional have been violated and he is enti- (quotations tled to relief.” Id. at 431 S.E.2d at 790 and citations omitted). Accordingly, pun- I would hold that defendant received a promised ishment in excess exchange of what he was guilty for his plea in violation of his rights. constitutional foregoing reasons,

For the I imposing would reverse the order lifetime monitoring upon satellite-based defendant.

ASHEVILLE SPORTS and ASHEVILLE also d/b/a PROPERTIES, LLC, SPORTS, INC., SKI COUNTRY Plaintiffs THE CITY OF Defendant SPORTS, ASHEVILLE,

No. COA08-1085 (Filed 2009) 1 September Appeal appealability improper Error— materials— — summary judgment motion Appeals disregarded The Court of those materials cited plaintiffs negligence (such in a case pleadings as unverified unsupported allegations) properly factual be con- summary sidered judgment. on motion for municipal liability waterway 2. Cities and Towns— main- drainage pipes duty tenance —storm water to exercise —no inspect, maintain, repair reasonable care to by The trial court did in a negligence granting not err case City’s summary judgment seeking motion for in an action dam- ages developed plaintiffs’ property for two sinkholes that on as a drainage pipes result of the failure of storm running water under plaintiffs’ parking Although plaintiffs City lot. contend the had an duty inspect, maintain, affirmative to exercise reasonable care to repair pipes plaintiffs’ property, the storm drain buried under plaintiffs admitted in their brief that no stormwater structures City plaintiffs’ property owned were located or on immediately properties, undisputed adjoining and it was that the pipes plaintiffs’ put property place previous under were property solely by plaintiffs. owner of the and were owned

Case Details

Case Name: State v. Wagoner

Court Name: Court of Appeals of North Carolina

Date Published: Sep 1, 2009

Citation: 683 S.E.2d 391

Docket Number: COA08-982

Court Abbreviation: N.C. Ct. App.