State v. Wooten and Satellite Monitoring of Sex Offenders

Like about half the states, North Carolina monitors certain sex offenders by satellite. The General Assembly first enacted our satellite-based monitoring (SBM) program in 2006, requiring lifetime monitoring of recidivists, aggravated offenders, and sexually violent predators, and monitoring for a period of years determined by the court for offenders whose crime involved the physical, mental, or sexual abuse of a minor. Monitored offenders wear an ankle bracelet and carry a Walkman-sized GPS tracking device that transmits their whereabouts to DOC. I’ve left out a lot of the details, but suffice it to say the SBM regime raises some questions. To whom does the law apply? Is SBM a criminal punishment? And if it is, to what extent does it apply to offenders who committed their crimes before the law was passed? What do the statutory definitions of “recidivist” and “aggravated offender” mean? There are many more.

The Court of Appeals recently issued its decision in State v. Wooten, offering some preliminary guidance on how and to whom the law should be applied.

Defendant Robert Lee Wooten was ordered to enroll in SBM for life as a recidivist based on his two convictions for indecent liberties with a minor, one in 1989 and one in 2006. The defendant’s bring-back hearing was held on January 24, 2008—four days prior to his expected release from prison.

The defendant argued that the court lacked jurisdiction to hold the bring-back hearing because he did not receive notice of the hearing in the manner set out in 14-208.40B(b), that is, via certified mail “sent to the address provided by the offender pursuant to G.S. 14-208.7 [the sex offender registration statute].” Notice in this manner would have been impossible, of course, because Mr. Wooten had not yet been released from prison and therefore had yet to establish a registration address. The court held that the failure to follow the precise letter of the statute’s notice provisions—which were intended merely “to protect the due process rights of offenders who are not currently incarcerated”—did not amount to a jurisdictional flaw.

The defendant next argued that his 1989 conviction for indecent liberties should not qualify him as a recidivist because that conviction was not itself reportable (convictions for indecent liberties are reportable for those convicted or released from a penal institution on or after January 1, 1996). Though the defendant’s 1989 conviction did not fall within this definition, the court held that a prior conviction need only be “described” in the statute defining reportable offenses. Thus, a prior conviction can qualify a person as a recidivist no matter how far back in time it occurred.

In addition to clarifying the definition of a recidivist, the court also answered a broader question about the scope of SBM. The regime was initially enacted in 2006 (S.L. 2006-247) and made applicable to “any person sentenced to intermediate punishment on or after [August 16, 2006] and to any person released from prison by parole or post-release supervision on or after that date.” SBM “also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole.” As originally enacted, the regime did not explicitly require a judicial determination of eligibility. Legislation enacted in 2007 fixed that omission by adding the hearing requirements set out in G.S. 14-208.40A & B, but those statutes were merely made “effective” December 1, 2007 (S.L. 2007-484, §15(l))—leaving it unclear whether they applied to offenses committed on or after that date, or whether they merely added a new procedural requirement for the same population covered by the 2006 legislation. The court’s opinion in Wooten suggests the latter, referring only to the 2006 enacting legislation and the August 16, 2006 effective date. Some interpretive questions remain about the 2006 law itself (for example, what does the session law mean by “any person who completes his or her sentence on or after [August 16, 2006]? Does that include offenders who complete a probationary sentence after that date, or just those released from prison?), but the court did not have to reach them in Wooten.

Finally, the court determined that the defendant’s third argument, that he received ineffective assistance of counsel when trial counsel failed to present a legally sound argument that the SBM regime violates the Ex Post Facto clauses of the United States and North Carolina constitutions, was not properly preserved for appellate review. The ex post facto issue was therefore not resolved in Wooten, but the same issue will be before the Court of Appeals in numerous other cases in the coming months. I’ll post on those decisions as they are issued. In the meantime, I welcome your questions and thoughts on how the law is being applied around the state.