State v. Wagoner, Satellite-Based Monitoring, and the Ex Post Facto Issue Revisited

Last week the court of appeals decided State v. Wagoner, its latest case involving satellite-based monitoring (SBM) of sex offenders. Mr. Wagoner, who had previously been convicted of multiple reportable sex crimes in 1996, pled no contest to another one (indecent liberties with a child) in 2005. He received a suspended sentence for the 2005 conviction, but he violated the conditions of his probation and went to prison to serve his 20-24 month sentence. After he was released from prison, DOC called him to court for a satellite-based monitoring determination hearing under G.S. 14-208.40B – a bring-back hearing. At the hearing the court found him to be a recidivist and ordered SBM for life. On appeal, Mr. Wagoner argued that the court’s order (1) ran afoul of constitutional prohibitions against ex post facto punishment, (2) violated double jeopardy principles, and (3) amounted to a breach of his plea bargain with the State. The court of appeals disagreed, affirming the trial court.

To the extent that it echoes the court’s prior decision in State v. Bare, Wagoner doesn’t break much new ground. The court concluded – largely through the use of about three pages of blocked quotation from Bare – that the General Assembly did not intend for SBM to be a criminal sanction, and that the regime is not so punitive in purpose or effect to negate the legislature’s intent to deem it civil. Just as it did in Bare, the court noted a lack of evidence in the record on how SBM plays out in practice. “Indeed,” the court noted in a footnote, “the record does not even reveal the size of the SBM monitoring unit or how it is operated and maintained.” After concluding once again that SBM is a civil regulatory regime, the court rejected Mr. Wagoner’s ex post facto, double jeopardy, and breach-of-plea arguments.

So what’s new? For the first time in a satellite-based monitoring case, there’s a dissent.

Judge Elmore wrote that in this case – unlike Bare – the court did have enough information to determine whether SBM is punitive in purpose and effect. Taking judicial notice of the Division of Community Corrections’ (DCC) interim policy on sex offender management, his opinion works through the seven-factor test from Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), concluding that SBM does amount to punishment. It’s worth noting that some of the conditions cited by the dissent in its analysis of the “affirmative disability or restraint” factor (warrantless searches, curfews, and notification to church officials) are excerpted from the portion of the DCC policy applicable to sex offenders on probation or post-release supervision, not to offenders subject to SBM. Additionally, the restriction on interstate travel does not exist in the current version of the supervision agreement given to unsupervised SBM participants. Nevertheless, the point remains that SBM participants are subject to certain administrative requirements, and in any event the opinion goes on to find that six of the seven Mendoza-Martinez factors weigh in favor of treating SBM as punitive. Based on that analysis, Judge Elmore wrote that he would hold SBM to be punishment – and thus ex post facto punishment as applied to Mr. Wagoner, who committed his offense before the SBM law was passed.

The existence of a dissent, of course, entitles the defendant to review by Supreme Court. I’ll be anxious to see what happens if it goes up.

By the way, this is the first time I’ve written about SBM since S.L. 2009-387 became effective on July 31, 2009. That law made a few changes related to bring-back hearings. First, it amended G.S. 7A-451 to say that an indigent person is entitled to counsel at a bring-back hearing. Additionally, the law shifted responsibility for scheduling hearings from DOC to the district attorney, at the same time adding (somewhat oddly, in my opinion) that the DA represents DOC at the hearing. The purpose of the change, as I understand it, is to ensure the DA’s involvement in the hearing; previously, at least one elected district attorney had read G.S. 14-208.40B to not require the DA to be there at all.