State v Keel

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-624 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 STATE OF NORTH CAROLINA v. Pitt County No. 05 CRS 18750 BILLY RAY KEEL Appeal by defendant from order entered 10 February 2011 by Judge W. Russell Duke Jr., in Pitt County Superior Court. Heard in the Court of Appeals 8 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Kimberly Grande, for the State. Daniel F. Read, for defendant-appellant. CALABRIA, Judge. Billy order Ray Keel requiring him ( defendant ) to enroll in appeals the satellite-based ( SBM ) for the remainder of his natural life. I. trial court s monitoring We affirm. Background On 22 April 1991, defendant was convicted of the offense of second degree rape. the offense of On 19 June 2006, defendant pled guilty to taking indecent liberties with a minor. -2Defendant pled guilty pursuant to a plea agreement with the State in charges: exchange first for degree the State s kidnapping, dismissal first of degree three other statutory sex offense, and failure to register as a sex offender. On 17 July 2006, the trial court sentenced defendant to an active term of imprisonment of a minimum of 25 months to a maximum of 30 months in the North Carolina Department of Correction ( NCDOC ). Defendant was released from NCDOC on or about 15 August 2008. NCDOC then notified defendant, pursuant to N.C. Gen. Stat. § 14-208.40B(b), that he would be subject to an SBM determination hearing. After a hearing on 10 February 2011, the trial court ordered defendant to enroll in SBM for the remainder of his natural life. II. Defendant appeals. Findings Supporting Lifetime SBM Defendant argues that the trial court erred by ordering him to enroll in lifetime SBM. Specifically, defendant contends that the trial court erroneously found that defendant was a recidivist and that he was convicted of an aggravated offense. We disagree. 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 -3accuracy and to ensure that those conclusions reflect a correct application of law to the facts found. State v. Singleton, 201 N.C. App. 620, 626, 689 S.E.2d 562, 566 (quoting State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009)), disc. review allowed, 364 N.C. 131, 696 S.E.2d 697 and disc. review improvidently allowed, 364 N.C. 418, 700 S.E.2d 226 (2010). Since there was no SBM determination at the time defendant was sentenced in 2006, the instant case is governed by N.C. Gen. Stat. § 14-208.40B (2009). S.E.2d at 432-33. See Kilby, 198 N.C. App. at 367, 679 This statute provides, in relevant part: If the court finds that (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, or (iv) the conviction offense was a violation of G.S. 14-27.2A or G.S. 1427.4A, the court shall order the offender to enroll in satellite-based monitoring for life. N.C. Gen. Stat. § 14-208.40B (c) (2009). In the instant case, defendant was found both to be a recidivist and to have been convicted statute, of an either aggravated finding, offense. standing As alone, indicated requires court to order a defendant to enroll in lifetime SBM. A. Recidivist by the the trial -4N.C. Gen. Stat. § 14-208.6(2b) defines a recidivist as a person who described has in 208.6(4)(a), a prior G.S. in includes a Finally, N.C. for 14-208.6(4). turn, final conviction provides conviction Gen. Stat. § N.C. that of an a a Gen. is § 14- conviction violent defines offense. a violent offense to include a violation of . . . (second degree rape). that Stat. reportable sexually 14-208.6(5) offense sexually G.S. 14-27.3 There is no dispute that defendant was convicted of the offense of second degree rape on 22 April 1991. As a result, defendant clearly falls within the statutory definition of a recidivist. Nonetheless, defendant contends that he does not meet what defendant refers recidivist, to citing as a the common dictionary definition definition of of the the term term. Specifically, defendant notes that more than twenty years had passed between the time of his second degree rape conviction and the SBM hearing, and he argues that it would be inappropriate to count a conviction of that age in the recidivist determination. Defendant relies primarily on Britt v. State, 363 N.C. 546, 681 S.E.2d Supreme 320 (2009), Court held to support that a his recent argument. amendment In to Britt, the our Felony Firearms Act, which stripped the plaintiff of his right to keep -5and bear arms after he had been responsibly exercising that right for seventeen years, was an unreasonable and unconstitutional regulation as applied to that plaintiff. Id. at 550, 681 S.E.2d at 323. However, the Britt case dealt solely with the reasonableness of the amended Felony Firearms Act under Article I, Section 30 of the North Carolina Constitution and did not involve any issues of statutory construction. reasoning is not applicable to defendant s Indeed, inconsistent defendant s with our statutory construction. clear and statutory Supreme Thus, its statutory argument. argument Court s is relevant wholly rules of Where the language of a statute is unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein. State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974)(internal quotations and citation omitted). The SBM statutes do not contain any provision which would permit the trial court to ignore prior convictions of a certain age and such a limitation cannot be conviction judicially is imposed. specifically Since listed as a second a degree conviction rape which qualifies a defendant as a recidivist under the SBM statutes, -6the trial recidivist court as correctly defined that N.C. by determined Stat. Gen. defendant § was a 14-208.6(2b). Defendant s argument is overruled. B. Aggravated Offense Since the recidivist finding alone required the trial court to enter its lifetime SBM order, we do not address in detail defendant s argument offense finding. regarding the trial court s aggravated However, we note that the State concedes, and we agree, that the trial court erred by making this finding, as the offense of indecent liberties is not an aggravated offense under the SBM statutes. See State v. Davison, 201 N.C. App. 354, 361, 689 S.E.2d 510, 515 (2009). III. Ex Post Facto and Double Jeopardy Finally, defendant argues that the imposition of lifetime SBM constitutes an unconstitutional ex post facto punishment and violates his constitutional protection against double jeopardy. As defendant concedes, our Supreme Court has previously rejected this precise argument. S.E.2d 1 See State v. Bowditch, 364 N.C. 335, 700 (2010)(holding regulatory scheme that protections against ex that the does not post facto SBM program implicate laws or is a civil constitutional double jeopardy). Since this Court is bound by Bowditch, defendant s argument must -7be overruled. IV. Conclusion The evidence presented at the SBM hearing supported the trial court s definition of finding a that recidivist. defendant met Consequently, the the statutory trial court correctly ordered defendant to enroll in SBM for the remainder of his natural life. The trial court s order is affirmed. Affirmed. Judges McGEE and HUNTER, Robert C. concur. Report per Rule 30(e).

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