Regular readers know the court of appeals has decided a lot of cases recently dealing with satellite-based monitoring (SBM) of sex offenders. Though many issues remain undecided, my sense is that some of the districts that were postponing SBM hearings to allow the appellate courts to weigh in on a few things are now moving forward with the backlog of offenders who may require monitoring. Their question now is, what should the hearing look like?
The hearing procedure is set out in G.S. 14-208.40A (for hearings conducted at sentencing) and G.S. 14-208.40B (for “bring-back hearings,” when no determination was made at sentencing). I read the provision in the bring-back hearing section (G.S. 14-208.40B(c)) saying the “court shall hold the hearing and make findings of fact pursuant to G.S. 14-208.40A” to incorporate by reference the procedure for hearings conducted at sentencing. In other words, determination hearings conducted at sentencing and bring-back hearings should look pretty much the same.
I won’t go through the statutes line by line, but I wanted to touch on some of the recurring issues. First, there’s the question of what evidence the court can consider in determining whether an offense was “aggravated.” An aggravated offense, you’ll recall, is one that includes vaginal, anal, or oral penetration, either by force or with a victim under 12 years old. G.S. 14-208.6(a1). The issue comes up a lot, usually when there’s evidence (perhaps in a police report) that the defendant committed a penetrative act but ultimately pled guilty to indecent liberties with a child. Should the court consider only the elements of the conviction offense (which, in the case of indecent liberties, do not include penetration)? Or may it also consider the facts underlying the conviction? It’s a question of statutory interpretation. Weighing in favor of an elements-based approach is the General Assembly’s reference in G.S. 14-208.40A/B to the “conviction offense” as an aggravated offense. Pointing toward a facts-based approach is the requirement that the “district attorney shall have no discretion to withhold any evidence required to be submitted to the court pursuant to this subsection”-why would the district attorney need to present “evidence” if the court were limited to the elements of the conviction offense? Analyzing Nebraska’s similar law, the Nebraska Supreme Court adopted a facts-based approach. State v. Hamilton, 763 N.W.2d 731 (Neb. 2009) (“[A] sentencing judge need not consider only the elements of an offense in determining whether an aggravated offense . . . has been committed. Instead, the court may make this determination based upon information contained in the record, including the factual basis for a plea-based conviction and information contained in the presentence report.”). It’s an unresolved question here, but there are cases pending before the court of appeals that raise the issue.
Suppose you fall in the facts camp and you’re ready to hold an evidentiary hearing to determine whether the facts behind a conviction make it an aggravated offense. How do you find those facts? Do the rules of evidence apply? SBM determinations happen at sentencing (or at a sentencing-like hearing), and the rules of evidence don’t apply at sentencing. But we know SBM isn’t part of the criminal sentence. State v. Bare. Under Rule 1101 of the evidence code, the rules of evidence apply to all actions and proceedings in the courts of North Carolina, except as provided in Rule 1101(b) or by statute. There’s no exemption for SBM determinations in Rule 1101(b) or any other statute, so it seems like the rules of evidence would apply.
Finally, there’s the issue of the standard of proof. Ordinarily a civil matter would be decided by a preponderance of the evidence. There is an argument, though, that a heightened standard of proof may be required in SBM determinations as a matter of due process. In United States v. Comstock, 507 F. Supp. 2d 522 (E.D.N.C. 2007), aff’d, 551 F.3d 274 (4th Cir. 2009), cert. granted, __ U.S. __, 129 S. Ct. 2828 (2009), for example, the district court concluded that even a “clear and convincing” standard of proof was inadequate in the context of involuntary commitment of sex offenders under the Adam Walsh Act. SBM is a lesser restriction than involuntary commitment, but the district court’s opinion in Comstock includes a helpful collection of cases in its analysis of what process is due in relation to a particular intrusion on liberty. 507 F. Supp. 2d at 551-59.
[For those who find it helpful, an updated version of my registration and monitoring flow chart is available here.]