Last week I wrote about State v. Clark and State v. Brown, the latest cases from the court of appeals on what qualifies as an aggravated offense at a satellite-based monitoring (SBM) determination hearing. You can read that post here. To sum it up, under a line of cases summarized in Clark, first- and second-degree rape appear to be the only crimes that can qualify as aggravated offenses triggering lifetime SBM. Today’s post is about State v. Green, another recent SBM case that sheds light on offenses that might prompt SBM for a period specified by the court.
Backing up for a moment, recall that there are two broad categories of SBM: lifetime SBM and SBM for a period specified by the court. Lifetime SBM is mandatory for recidivists, sexually violent predators, and offenders convicted of an aggravated offense, as well as for defendants convicted of rape or sexual offense with a child by an adult under G.S. 14-27.2A or G.S. 14-27.4A. G.S. 14-208.40(a)(1) and (a)(3). Non-lifetime SBM (which DOC sometimes refers to as “conditional” SBM) applies if the court (a) finds that the defendant committed an offense that involved the physical, mental, or sexual abuse of a minor, and (b) determines, based on a DOC risk assessment (and, potentially, other findings, which I’ll discuss in a moment) that the defendant requires the “highest possible level of supervision and monitoring.” G.S. 14-208.40(a)(2).
Green is a “conditional” SBM case. The defendant pled guilty in 2008 to two counts of indecent liberties with a child—a crime we know can never be an aggravated offense because it does not include penetration as an element. He was sentenced to about two years in prison and ordered to complete the Sex Offender Accountability and Responsibility (SOAR) program while in DOC. At sentencing the trial court began an SBM determination hearing under G.S. 14-208.40A, but continued the hearing for 21 months to allow the parties to gather evidence about whether SBM might apply, including a risk assessment. When everyone got back together in 2010 the court found that the defendant’s indecent liberties convictions were offenses “involving the physical, mental, or sexual abuse of a minor.” Though the defendant’s STATIC-99 risk assessment came back “moderate-low,” the court made additional findings (recorded on a generic form AOC-CR-618) in support of its conclusion that Green required the highest possible level of supervision and monitoring and ordered SBM for a period of five years. The court found (1) that the defendant’s victims were especially young; (2) that the defendant had committed multiple acts of domestic violence; and (3) that he did not obtain sex offender treatment. Green contended that finding (1) was improper because it was based on the factual scenario underlying his actual conviction, and that findings (2) and (3) were improper because they were unsupported by the evidence.
The court of appeals began by noting that a trial court’s authority to supplement or override a non-“high” risk assessment with additional findings was established in State v. Morrow (discussed here and here). The appellate court went on to evaluate the appropriateness of each finding in turn.
As to finding (1) (regarding the victims’ youth), the appellate court ruled that it was permissible for the trial court to look beyond the elements of the conviction offense when making findings about whether a defendant requires the highest possible level of supervision and monitoring. The facts behind the conviction are only off limits, the court said, when “determining whether a defendant’s offense of conviction was an ‘aggravated offense’ or an offense involving the physical, mental, or sexual abuse of a minor.” (I actually do not think our appellate courts have ever affirmatively stated that the determination of whether an offense involves the physical, mental, or sexual abuse of a minor is, like an aggravated offense determination, an elements-only proposition. The closest they came was in State v. Cowan, __ N.C. App. __, 700 S.E.2d 239 (2010), where the court of appeals expressly assumed without deciding that an elements-based approach would apply and concluded that a conviction for solicitation to commit indecent liberties categorically involved abuse of a minor for purposes of the SBM law. I discussed the Cowan case—somewhat critically, I’ll admit—here.) Because the defendant admitted in his plea colloquy that one of his victims was 17 months old and another was 4 years old, the appellate court ruled the trial court’s finding was properly made. The court of appeals agreed with the defendant that finding (2) (regarding domestic violence) was unsupported by the evidence, but disagreed as to finding (3) (that the defendant had failed to obtain treatment) because Green admitted at the continuation of his SBM determination hearing that he never completed the SOAR program.
After concluding that the trial court’s findings about the victims’ ages and the defendant’s failure to complete treatment were properly made, the court of appeals held that they were, substantively, appropriate support for the trial court’s conclusion that the defendant required SBM, notwithstanding the moderate-low risk score.
A final note about Green, Brown, and Clark: the defendants in all three cases erred by noting their appeal of the trial court’s SBM determination orally instead of in writing. Because SBM determinations are civil in nature, oral notice of appeal is insufficient to confer jurisdiction on the court of appeals under Rule 4(a)(1) of the North Carolina Rules of Appellate Procedure. See State v. Brooks, _ N.C. App. __, 693 S.E.2d 204 (2010), discussed here. In all three cases the court of appeals chose, in the interest of justice, to issue a writ of certiorari and hear the matter. It’s possible, though, that the court’s willingness to do that will wane as more defendants are on notice of the court’s holding in Brooks. So, defendants should be sure to notice their appeals in writing.
And a final, final note about SBM hearings in general. Last month the AOC released a new version of form AOC-CR-615 and AOC-CR-616. The new form gives the court a box to check (it’s in the “ORDER” section, Number 2.c.i) when it wants to incorporate additional findings in support of a conditional SBM order. The form also acknowledges the recurring logistical issue that it will not always be possible to complete the determination hearing all at once when the court has yet to order DOC to perform a risk assessment on the defendant. DOC needs some time (30 to 60 days, according to G.S. 14-208.40A(d)) to complete the assessment. Number 2.c.ii in the ORDER section now gives the court boilerplate language to order the defendant back to court at a future date for the post-assessment culmination of the hearing.