State v. Styles

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-281 NORTH CAROLINA COURT OF APPEALS Filed: 5 August 2014 STATE OF NORTH CAROLINA v. McDowell County Nos. 02 CRS 52509-11 KENNETH ALLAN STYLES Appeal by defendant from orders entered 28 October 2013 by Judge Robert T. Sumner in McDowell County Superior Court. Heard in the Court of Appeals 21 July 2014. Attorney General Roy Cooper, by Special General Joseph Finarelli, for the State. Deputy Attorney James N. Freeman, Jr., for defendant-appellant. HUNTER, JR., Robert N., Judge. Defendant appeals from three orders requiring him to enroll in lifetime satellite-based monitoring ( SBM ) pursuant to N.C. Gen. Stat. § 14-208.40B (2013). Recognizing that his oral notice of appeal was invalid, see State v. Cowan, 207 N.C. App. 192, 195, 700 S.E.2d 239, 241 (2010), defendant has filed a petition for writ of certiorari to review the orders. We allow defendant s petition and hold that the trial court erroneously -2found in offense each case under that N.C. he Gen. was convicted Stat. § of an aggravated 14-208.6(1)(a) (2013). Accordingly, we reverse the SBM orders and remand for further proceedings. In 02 CRS 52509-11, defendant pled guilty to three counts of taking indecent liberties with a child, a sexually violent offense requiring defendant to register as a sex offender. N.C. Gen. Stat. §§ 14-208.6(4)-(5), 14-208.7 (2013). See Following defendant s release from prison in 2012, the District Attorney scheduled a bring-back hearing under N.C. Gen. Stat. § 14208.40B to determine whether defendant was subject to SBM under the Sex Offender and Public Protection Registration N.C. Gen. Stat. Ch. 14, art. 27A (2013). Program, At the conclusion of the hearing, the trial court found in 02 CRS 52509 and 52510 that defendant was convicted of the aggravated offense of statutory rape of a person 13, 14, or 15 years of age by an adult at least six years older than the victim under N.C. Gen. Stat. § 14-27.7A(a) (2013).1 The court further found that defendant s conviction for indecent liberties in 02 CRS 52511 was an aggravated offense. 1 Based on these findings, the court In open court, the judge stated that defendant was convicted of an aggravated offense, and that is statutory rape of [a child] under six years old six or under[.] -3ordered defendant to enroll in the SBM program for the remainder of his natural life. Under the Sex Offender and Public Protection Registration Program, an offender is subject to lifetime SBM if he or she is (1) a recidivist, (2) convicted of an aggravated offense, (3) a sexually violent predator, or (4) convicted Stat. §§ 14-27.2A or 14-27.4A (2013). 280.40B(c) (2013). short of the under N.C. Gen. See N.C. Gen. Stat. § 14- A court may impose SBM for a specific period offender s life if the offense of conviction involved the physical, mental, or sexual abuse of a minor and the court determines that, based on the Division of Adult Correction s risk assessment, the offender requires the highest possible level of supervision and monitoring. N.C. Gen. Stat. § 14-208.40B(c); see also State v. Cowan, 207 N.C. App. at 203, 700 S.E.2d at 246. Defendant now argues, and the State concedes, that his convictions for taking indecent liberties with a child in 02 CRS 52509-11 do not qualify as aggravated offenses. We agree. See State v. Davison, 201 N.C. App. 354, 361 62, 689 S.E.2d 510, 515 16 (2009). Because the court imposed lifetime SBM based solely on the ground that defendant had been convicted of an aggravated offense, we vacate the court s orders and remand for -4a new hearing pursuant to N.C. Gen. Stat. § 14-208.40B. See id. at 364 65, 689 S.E.2d at 517. Defendant further claims that the trial court s imposition of lifetime process. SBM violated his constitutional to due As the State observes, however, defendant failed to present this issue to the trial court. 10(a)(1). right See N.C.R. App. P. Therefore, defendant has failed to preserve this constitutional issue for appeal. State v. Mills, ___ N.C. App. ___, ___, 754 S.E.2d 674, 678 (2013). Finally, defendant contends that requiring him to enroll in the SBM program violates the constitutional ban on ex post facto laws. Assuming this claim is properly before us, see N.C.R. App. P. 10(a)(1), we are bound by our Supreme Court s holding that subjecting defendants to the SBM program does not violate the Ex Post constitution. Facto Clauses of the state or federal State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010). Vacated and remanded. Judges BRYANT and STROUD concur. Report per Rule 30(e).

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