Proper Notice for SBM Determinations: State v. Stines

I mentioned earlier that the court of appeals decided two satellite-based monitoring cases this week. I discussed State v. Morrow on Wednesday. Today I’ll cover State v. Stines.

In Stines, the defendant was convicted of taking indecent liberties with children in 1997 and again in 2004. He was sentenced to active time for the 2004 conviction and released in 2007, at which point the Department of Correction made an initial determination under G.S. 14-208.40B(b) that he fell within one of the categories of sex offenders required to enroll in monitoring. DOC sent Mr. Stines a letter saying the department had “made the initial determination that [he met] the criteria set out in General Statute 14-208.40(a),” and ordered him to come to court for a hearing at which a judge would decide whether he had to enroll in SBM. The trial court found the defendant to be a recidivist and ordered him to enroll in SBM for life. Stines appealed.

After quickly rejecting Mr. Stines’s ex post facto argument, the court of appeals considered his due process claim. Stines argued that the State failed to give him sufficient notice of the basis for DOC’s preliminary determination because the hearing notification letter did not indicate which of the SBM eligibility categories (recidivist; aggravated offender; sexually violent predator; or offense involving the mental, physical, or sexual abuse of a minor) applied to him. The court agreed.

Enrollment in SBM, the court said, infringes on a significant liberty interest-it requires the physical attachment of a device to the offender, continuous surveillance of the offender’s movement, and compliance with DOC regulations. To avoid “serious doubts” about the constitutionality of the generalized notice Mr. Stines received, the court construed G.S. 14-208.40B(b) to require DOC to give the defendant notice not just that an initial SBM determination has been made, but also of the content of the determination. In other words, DOC must specify “the category or categories into which the offender falls and the basis for that conclusion.” The court remanded Mr. Stines’s case for a new SBM hearing.

I have a few thoughts about Stines. First, it seems to me that the court walks a pretty fine line in concluding that SBM infringes on a significant liberty interest but is not punitive. Indeed, in support of its liberty-infringement analysis the court cites to Commonwealth v. Cory, the only reported case in the nation in which a court finds that satellite-based monitoring amounts to punishment. See 911 N.E.2d 187 (Mass. 2009) (“There is no context other than punishment in which the State physically attaches an item to a person . . . that must remain attached for a period of years and may not be tampered with or removed on penalty of imprisonment. Such an imposition is a serious, affirmative restraint.”). This leads me to think that SBM, if not punishment, must be just about as close to punishment as you can possibly get. Other defendants making due process arguments (about the standard of proof in an SBM hearing, for example) could probably marshal the court’s language in Stines in support of a more trial-like hearing procedure.

Second, there’s an apparent disconnect between the court’s requirement of enhanced notice in Stines and its rejection of a very similar argument in State v. Morrow. Mr. Morrow argued that the SBM statute violated his due process rights by failing to give him notice of what facts would require him to be monitored. He went into the hearing, he said, with “absolutely no idea of the basis upon which the decision to require monitoring will be made.” The Morrow court dismissed the due process argument, noting that defendants could get some idea about the evidence that might come into play at an SBM hearing by examining DOC regulations on file with the Attorney General. The Stines court, meanwhile, found it unreasonable to require offenders to investigate and prepare to respond to all possible SBM eligibility categories in as little as 15 days, the minimum notice period set out in G.S. 14-208.40B(b). If anything it seems like Morrow, a conditional offender subject to the complicated and fact-laden “offense involving the abuse of a minor” and “highest possible level of supervision and monitoring” determinations, would derive greater benefit from a more detailed notification letter than Stines, an alleged recidivist for whom the SBM determination is relatively straightforward.

I suppose it’s possible to reconcile the cases: Mr. Morrow complained of a lack of notice of facts, whereas Mr. Stines complained that he didn’t know which eligibility category applied to him. But the court’s holding in Stines, that G.S. 14-208.40B(b) requires DOC to “specify the category set out in N.C. Gen. Stat. ยง 14-208.40(a) into which the Department has determined the offender falls and briefly state the factual basis for that conclusion,” appears to encompass both complaints. Based on that language I think DOC ought to beef up its bring-back hearing notification letter to include both the alleged SBM eligibility category and, briefly, the facts behind that allegation.

Finally, it appears I was wrong when I wrote in an earlier post that SBM hearings at sentencing should look pretty much the same as bring-back hearings. In Stines the court noted that G.S. 14-208.40A requires the district attorney to present evidence when an SBM hearing is conducted at sentencing, but G.S. 14-208.40B, the bring-back hearing statute, includes no comparable provision. The DA does, however, have to represent DOC at bring-back hearings under legislation enacted this term (S.L. 2009-387). It seems like that representation would require the DA to present evidence in line with DOC’s initial determination of SBM eligibility. Anyone have any thoughts on that?