State v. Allen
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-878 NORTH CAROLINA COURT OF APPEALS Filed: 18 February 2014 STATE OF NORTH CAROLINA v. Alamance County Nos. 04 CRS 54678-79 JAMES RAY ALLEN Appeal by defendant from order entered 28 May 2013 by Judge G. Wayne Abernathy in Alamance County Superior Court. Heard in the Court of Appeals 27 January 2014. Attorney General Roy Cooper, by Special General Joseph Finarelli, for the State. Deputy Attorney Jason Christopher Yoder for defendant. DILLON, Judge. Defendant James Ray Allen appeals from an order requiring him to register as a sex offender and enroll in a satellitebased monitoring program for the rest of his natural life. reverse the court s order and remand proceedings. I. Background this case for We further -2On 8 February 2007, Defendant entered guilty pleas to one count of taking indecent liberties with a child and one count of second-degree sexual offense. The trial court sentenced Defendant to a term of 84 to 110 months imprisonment for his conviction for second-degree sex offense. Also, the court sentenced Defendant to a term of 19 to 23 months imprisonment for his conviction for taking indecent liberties with a child, but suspended the sentence on the condition that he be placed on supervised probation for 30 months. On 13 March 2013, the North Carolina Department of Public Safety Division of Adult Correction sent Defendant notice that a hearing would determine monitoring. be whether held he in Alamance would be County subject Superior to Court to satellite-based At the conclusion of the hearing held 28 May 2013, the superior court concluded that Defendant was convicted of a reportable conviction as defined by N.C. Gen. Stat. § 14- 208.6(4), and that the offense for which Defendant was convicted was an aggravated offense. Based on these conclusions, the superior court ordered Defendant to enroll in satellite-based monitoring for the remainder of his natural life. filed timely notice of appeal. II. Analysis Defendant -3A. Jurisdictional Challenge We first address Defendant s argument that the trial court lacked jurisdiction to order him to enroll in lifetime satellite-based monitoring because the notice of hearing did not state that he could be required to enroll in satellite-based monitoring for the remainder of his natural life. Defendant s argument is without merit. Our outside General Assembly devised of the Rules eligibility for satellite-based granted the conduct these procedures. Superior of has Civil Courts determinations a specific Procedure, monitoring subject pursuant and matter to for procedure, determining has clearly jurisdiction specific to statutory State v. Jarvis, 214 N.C. App. 84, 91, 715 S.E.2d 252, 257 (2011). By following these statutory procedures, which are set forth in N.C. Gen. Stat. § 14-208.40B, the trial court has jurisdiction, as granted by the General Assembly, to conduct the hearing. State v. Self, __ N.C. App. __, __, 720 S.E.2d 776, 777 (2011). However, this Court has further explained that while the General Assembly within constitutional limitations, can fix and circumscribe the jurisdiction upon the trial court, the specific notice provisions found in N.C. Gen. Stat. § 14208.40B(b) are merely that, notice provisions to protect the due -4process rights of offenders who are not currently incarcerated. State v. Wooten, 194 N.C. App. 524, 527-28, 669 S.E.2d 749, 75051 (2008), disc. review denied and cert. dismissed, 363 N.C. 138, 676 S.E.2d 308 (2009). Here, the State s written notification to Defendant of the satellite-based monitoring hearing fully complies with the provisions of section 14-208.40B(b), and thus the trial court had jurisdiction over the hearing. While the Division is required to set forth its initial determination that Defendant fell into one of the categories of section 14-208.40(a), see N.C. Gen. Stat. § 14-208.40B(a), the notice provisions of section 14-208.40B(b) do not limit the jurisdiction of the trial court to hear and determine a Defendant s eligibility for satellite-based monitoring. B. Ex Post Facto Challenge Defendant also contends the trial court s order requiring him to enroll in satellite-based monitoring based on statutes that came into effect after his offenses were committed violates the ex post facto clauses of the United States and North Carolina Constitutions, citing United States v. Jones, ___ U.S. ___, 181 L. Ed. 2d 911 (2012), notwithstanding that, prior to Jones, our North Carolina Supreme Court held that our state s -5satellite-based monitoring scheme does not violate the ex post facto clause of either constitution. N.C. 335, 700 S.E.2d 1 (2010). this Court to reconsider State v. Bowditch, 364 Nevertheless, Defendant asks the issue in light of Jones to determine whether in Bowditch the North Carolina Supreme Court properly weighed the Fourth Amendment satellite-based monitoring searches. burdens of forced We recently considered a similar argument in State v. Jones, __ N.C. App. __, 750 S.E.2d 883 (2013) (COA13-286); and for the reasons stated therein, this argument is overruled. C. Improper Classification Challenge Defendant argues the trial court erred in ordering him to enroll in lifetime satellite-based monitoring based on an alleged conviction for an aggravated offense, because neither second-degree sex offense nor taking indecent liberties with a child is an aggravated offense. A trial reportable sex court must offense to We agree. order enroll a defendant in lifetime convicted of a satellite-based monitoring if the defendant has been classified as a sexually violent predator, is a recidivist, has committed an aggravated offense, or was convicted of the rape or sex offense of a child pursuant to N.C. Gen. Stat. §§ 14-27.2A and 14-27.4A. N.C. Gen. -6Stat. § 14-208.40A(c) (2011). Here, the State contended and the trial court concluded that Defendant was required to enroll in lifetime satellite-based aggravated offense. monitoring An because aggravated he offense committed an defined as is follows: any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old. N.C. Gen. Stat. § 14-208.6(1a) (2011). When determining whether a crime constitutes an aggravated offense, a 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. In other words, the fit elements of the conviction offense must within the statutory definition of aggravated offense. State v. Boyett, __ (2012) N.C. App. __, __, 735 S.E.2d 371, 380 (internal quotations and citations omitted), superseded in part on other grounds, __ N.C. App. __, 747 S.E.2d 739 (2013). held that offense based nor on taking aggravated offense. their elements indecent neither liberties with This Court has second-degree a child is sex an Id. at __, 735 S.E.2d 380-81; State v. -7Davison, 201 N.C. App. 354, 361, 689 S.E.2d 510, 515 (2009), disc. review Accordingly, denied, we 364 reverse N.C. the 599, trial 703 S.E.2d court s 738 order (2010). requiring Defendant to enroll in a satellite-based monitoring program for life and remand for a proper determination of defendant s eligibility for satellite-based monitoring pursuant to N.C. Gen. Stat. § 14-208.40A. Reverse and Remanded. Chief Judge MARTIN and Judge HUNTER, JR., concur. Report per Rule 30(e).
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