It’s time to post an updated sex offender and monitoring flow chart. I was going to do it last week, but I’m glad I didn’t. Yesterday, the Supreme Court of the United States reversed North Carolina’s appellate courts on an issue that may impact the constitutionality of SBM. The new chart, available here, incorporates Grady v. North Carolina and includes several other changes. Continue reading
Tag Archives: satellite based monitoring
It’s time to post an updated sex offender registration and monitoring flow chart. The new chart is available here. It incorporates the following issues, which were resolved by recent appellate cases.
“Final conviction” for registration purposes. As discussed in this prior post, the Supreme Court of North Carolina affirmed the ruling of the court of appeals that a person who receives a PJC for an otherwise reportable offense is not required to register. Walters v. Cooper, 748 S.E.2d 144 (2013). By contrast, a superior court conviction on appeal to the appellate division requires registration during the appeal’s pendency. State v. Smith, 749 S.E.2d 507 (2013). A note on these cases is added to the first page of the chart.
Bring-back hearing venue. If a satellite-based monitoring determination hearing is not done at sentencing, the corrections system is required to bring the person back to court for a determination hearing. The proper place to hold that hearing is superior court in the county in which the offender resides. G.S. 14-208.40B. In State v. Mills, 754 S.E.2d 674 (2014), the defendant complained that the State failed to put on evidence that he lived in Buncombe County, and that the trial court therefore lacked subject matter jurisdiction over the hearing held there. The court of appeals disagreed, holding that the place-of-hearing provision in G.S. 14-208.40B relates to venue, not jurisdiction, and that any objection to it was therefore waived by the defendant’s failure to object in the trial court. (Note the difference between this case and In re Dunn, 738 S.E.2d 198 (2013), which deemed the requirement to hear a petition to terminate sex offender registration in the county of conviction to be a jurisdictional requirement.)
Aggravated offense. A new case regarding what crimes qualify as an aggravated offense is added to the back of the chart. In State v. Talbert, 756 S.E.2d 98 (2014), the court of appeals held that second-degree rape of a physically helpless victim under G.S. 14-27.3(a)(2) is an aggravated offense. The court rejected the defendant’s argument that the crime was not aggravated because it did not involve force as an element. Citing prior supreme court case law, the court of appeals concluded that rape of a mentally disabled or incapacitated person necessarily involves sufficient use or threat of violence to qualify as an aggravated offense for SBM purposes. Talbert confirms the view that, under the requisite elements-based analytical framework, all reportable rapes are aggravated, and all other sex crimes (sexual offense and indecent liberties, mainly) are not.
Findings that may trump a Static-99. As noted here, a judge is not bound by the results of the Static-99 risk assessment when determining whether an offender requires the “highest possible level of supervision of monitoring,” and thus SBM for a period determined by the court. The chart is updated to include the rejected additional findings from State v. Jones, __ N.C. App. __ (June 3, 2014). In Jones, the court of appeals held that the trial court erred by making findings related to a “prior sexual offense” that actually turned out to be a conviction for assault on a female (a non-reportable offense). Though that assault had initially been charged as a first-degree sexual offense, the court concluded that the judge should not have looked at the facts underlying the prior conviction to make its determination that the defendant required the highest level of supervision and monitoring.
All-in-all, relatively minor revisions to the chart this time around. I’m not aware of any major legislative initiatives related to sex offender registration during this short session, despite the fact that North Carolina—like most states—continues to be out of compliance with federal rules on sex offender registration, which costs the state a relatively small amount of grant money each year. Remember that this chart only covers “front-end” decisions related to registration and monitoring. For a discussion of all the additional restrictions and crimes related to registration, see John Rubin’s excellent publication here. And for help with petitions to terminate registration, see this outline.
In 2008 the General Assembly enacted two new crimes, rape of a child by an adult offender under G.S. 14-27.2A, and sexual offense with a child by an adult under G.S. 14-27.4A. S.L. 2008-117. Both crimes have special sentencing rules and special provisions for lifetime satellite-based monitoring. Today’s post responds to some of the questions I have been getting about those special rules. (Some of these issues were discussed immediately after the law came into effect in John Rubin’s 2008 legislative summary, available here.)
Rape of a child by an adult offender is defined as vaginal intercourse with a child under 13 by a defendant who is at least 18. Sexual offense with a child by an adult offender is defined as engaging in a sexual act (cunnilingus, analingus, fellatio, anal intercourse, or the insertion of any object into another’s genital or anal opening) with a child under 13 by a defendant who is at least 18. There is thus some overlap between these crimes and the “regular” first-degree statutory rape and sexual offense crimes set out in G.S. 14-27.2 and 14-27.4, respectively—and like those crimes, the “adult offender” versions are Class B1 felonies. The adult offender versions are different, however, in that they carry a notably higher punishment than that applicable to an ordinary Class B1 felony under Structured Sentencing.
Before delving into the special rules, I should say at the outset that the adult offender crimes only apply to offenses committed on or after December 1, 2008. For earlier offenses only the regular Class B1 rape and sexual offense crimes could apply. Many times I have received questions about the special sentencing rules for the adult offender versions, only to discover that the acts in question occurred before December 1, 2008 and thus were not properly charged under the new statutes in the first place. I should also note that these rules appear to apply only to the completed crimes; there is no indication that the special provisions apply to attempts or other inchoate crimes.
As for the special rules themselves, both G.S. 14-27.2A and 14-27.4A provide that a person convicted of those crimes must be sentenced to an active punishment of at least 300 months. I read that as a mandatory minimum sentence of imprisonment, supplanting any shorter minimum sentence otherwise applicable to a Class B1 felon according to the sentencing grid. Depending on the defendant’s prior record level that can make for a pretty substantial increase in the sentence. For example, the adult offender mandatory minimum increases the lowest possible (bottom-of-the-mitigated-range) minimum sentence for a first-time offender from 144 months to 300 months—an increase of 13 years. No statute expressly says so, but it seems to me that if the court imposes a 300-month minimum sentence, the corresponding maximum should be determined according to the regular “formula” applicable to a Class B1 reportable sex crime. Thus, for an offense committed on or after December 1, 2011, the maximum would be 120% of the minimum plus 60 months, making the sentence 300–420 months. For an offense committed before December 1, 2011, the maximum would be 120% of the minimum plus 9 months, making the sentence 300–369 months. (For a description of the changes to sex offender sentencing effective December 1, 2011, see this post.) For defendants otherwise eligible for a sentence in excess of the 300-month minimum, just use the regular sentencing grid as usual.
Both adult offender statutes provide that the court can impose a sentence to a term of months even longer than that allowed by the sentence grid, up to and including life imprisonment without parole, if the court finds “egregious aggravation.” The statutes state that egregious aggravation may be found if “the nature of the offense and the harm inflicted are of such brutality, duration, severity, degree, or scope beyond that normally committed in such crimes, or considered in basic aggravation of these crimes, so as to require a sentence to active punishment in excess of that authorized pursuant to [Structured Sentencing].” The term also includes “further consideration of existing aggravating factors where the conduct of the defendant falls outside the heartland of cases even the aggravating factors were designed to cover,” or consideration of the “extraordinarily young age of the victim, or the depraved torture or mutilation of the victim, or extraordinary physical pain inflicted on the victim.” What sort of aggravation rises to the level of egregious aggravation is not entirely clear from the law itself, but the real problem with the statutes is who they charge with the responsibility of making the egregious aggravation determination. Both laws say that the sentencing judge does it, but it would almost certainly run afoul of a defendant’s Sixth Amendment rights to allow such findings—which clearly increase the maximum permissible punishment—to be made by anyone other than the jury. Blakely v. Washington, 542 U.S. 296 (2004) (holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be admitted to by the defendant or submitted to the jury and proved beyond a reasonable doubt).
A trial court judge could perhaps fashion a remedy for the possible constitutional defect by submitting the issue of egregious aggravation to the jury using a special verdict. See State v. Blackwell, 361 N.C. 41 (2006) (speaking approvingly of the special verdict as a way to protect a defendant’s jury trial right after Blakely was decided but before North Carolina’s Blakely fix legislation came into effect). [Author’s note: In State v. Singletary, __ N.C. App. __ (May 3, 2016), the court of appeals cast doubt on a trial court’s authority to fashion a remedy for this constitutional violation by use of a special verdict.]
Finally, the two adult offender statutes are unique in that they require convicted defendants to submit to satellite-based monitoring (SBM) for life upon their release from prison. For other crimes, lifetime SBM does not flow from the crime of conviction, but rather from a separate finding that the offender is a sexually violent predator, a recidivist, or that the conviction offense was an aggravated offense. G.S. 14-208.40A. Both adult offender crimes are “sexually violent offenses” under G.S. 14-208.6(5), meaning they require registration as a sex offender. But there is no provision in the statutes for automatic lifetime registration—raising the odd possibility that a convicted person might be subject to SBM for life but registration for a term of years. Additionally, the adult offender statutes make no mention of automatic lifetime SBM for offenders convicted of attempts, conspiracies, or solicitations to commit those crimes. Those crimes are reportable under G.S. 14-208.6(4)a (attempts) and G.S. 14-208.6(5) (conspiracies and solicitation), but only require SBM if ordered by the court pursuant to the rules applicable to other sexually violent offenses. The special status of the adult offender crimes with respect to SBM is reflected on Form AOC-CR-615, which includes a separate check-box (finding 1.d, near the top of the first page) for defendants convicted of those crimes.
It’s been over six months since the last update of my sex offender flow chart (the previous version was current as of January 12, 2012). A revised version is now available here. As in the prior version, everything to do with registration is on the front and everything to do with satellite-based monitoring (SBM) is on the back. Among other changes, the latest version:
- Includes a reference to the permanent no contact order permissible under G.S. 15A-1340.50, discussed in this prior post.
- Adds the new crime of sale, surrender, or purchase of a minor, G.S. 14-43.14, to the list of reportable offenses. Similar to peeping offenses and aiding and abetting sex crimes, a violation of the new law is only reportable if the sentencing judge rules that the defendant is a danger to the community and issues an order requiring him or her to register. G.S. 14-208.6(4)e. Attempts, conspiracies, and solicitations to sell, surrender, or purchase a child apparently are not reportable. The revised law applies to offenses committed on or after December 1, 2012. S.L. 2012-153.
- Adds a reference to State v. Carter, __ N.C. App. __, 718 S.E.2d 687 (2011), which held that first-degree sexual offense is not an aggravated offense triggering lifetime SBM but is an offense involving sexual abuse of a minor that can trigger SBM for a period determined by the court.
- Expands the reference to State v. Jarvis, __ N.C. App. __, 715 S.E.2d 252 (2011), to include the appellate court’s discussion of the findings the trial court made in support of its conclusion that the defendant required the “highest possible level of supervision and monitoring” in spite of his LOW Static-99 risk assessment score.
- Updates the “Constitutional Issues” section to add State v. Manning, __ N.C. App. __, 727 S.E.2d 380 (2012), a recent case holding that, in the absence of any record evidence showing an actual violation, SBM does not infringe on an offender’s right to travel.
The General Assembly did not pass any legislation on the SORNA-compliance front (background here), but I wouldn’t be surprised to see that come up next year. And finally, a bill that would have made certain human trafficking crimes reportable, Senate Bill 922, did not become law. The budget bill established a commission to consider, among other things, whether those crimes should be reportable. S.L. 2012-142, sec. 15.3A.(c)(7).
It’s been a while since I wrote anything about satellite-based monitoring (SBM) of sex offenders. A recent case from the court of appeals provides a nice opportunity for an update.
The case, State v. Sprouse, dealt with (among other issues) the heavily-litigated question of what constitutes an “aggravated offense” for purposes of the SBM law. The defendant was convicted of multiple counts of (1) statutory rape of a person who is 13, 14, or 15 years old by a defendant who is at least six years older than the defendant; (2) statutory sexual offense of a person who is 13, 14, or 15 years old by a defendant who is at least six years older than the defendant; (3) taking indecent liberties with a child; and (4) sexual activity by a substitute parent. The trial court found that all of the convictions were for aggravated offenses, and thus required enrollment in SBM for life.
Under G.S. 14-208.6(1a), an aggravated offense is a one that includes:
(1) A sexual act involving vaginal, anal, or oral penetration
(2) (a) With a victim of any age through the use of force or the threat of serious violence, or
(b) With a victim who is less than 12 years old.
North Carolina’s appellate courts have repeatedly held that when making a determination as to whether an offense is aggravated, the court can consider only the elements of the conviction offense. It may not look at the factual scenario giving rise to the conviction. State v. Davison, 201 N.C. App. 354 (2009). With that rule in mind, the defendant in Sprouse argued that none of his convictions were aggravated offenses.
The court of appeals agreed as to three of the four crimes for which the defendant was convicted. Indecent liberties can never be an aggravated offense because its elements can be satisfied by acts that do not involve penetration, force, or a defendant under age 12. See id. at 363. Sexual activity by a substitute parent and statutory sexual offense are likewise excluded because they do not necessarily require penetration (because some qualifying “sexual acts,” such as cunnilingus and analingus, can be committed without penetration). See also State v. Mann, __ N.C. App. __, 715 S.E.2d 213 (2011) (holding sexual offense by a substitute parent is not an aggravated offense); State v. Treadway, __ N.C. App. __, 702 S.E.2d 335 (2010) (reaching the same conclusion for first-degree statutory sexual offense).
For the rape, however, the appellate court disagreed with the defendant. Rape necessarily involves penetration, and thus satisfies the first prong of the aggravated offense definition. Rape of a 13-, 14-, or 15-year-old obviously does not satisfy the victim-age pathway of the second prong (“a victim who is less than 12,” set out as (2)(b) above), so the court was left to determine whether the act necessarily involves the use of force or the threat of serious violence. For that analysis the court looked to its recent decision in State v. Clark, __ N.C. App. __, 714 S.E.2d 754 (2011), discussed here, in which it concluded that statutory rape of a child under 13 under G.S. 14-27.2(a)(1) is an aggravated offense. In Clark the court had reasoned that any rape of a child under 13 necessarily involves the threat of serious violence, because a child of that age is “inherently incapable of consenting to sexual intercourse.” The Sprouse court saw “no meaningful distinction” between a victim under 13 and a victim who is 13, 14, or 15—the child is still incapable of consent, and thus the crime necessarily involves violence. The court therefore affirmed the trial court’s determination that rape under G.S. 14-27.7A is an aggravated offense.
Writing about an SBM case also gives me a chance to post the most recent version my sex offender registration and monitoring information sheet. (I’ve previously referred to it as a flow chart, but it doesn’t really flow in the traditional sense.) In addition to incorporating Sprouse and several other recent cases, the latest version makes some pretty extensive organizational changes. Everything to do with the threshold question of what constitutes a reportable offense is on the front page; everything to do with SBM is on the back. I even increased the font size slightly. The chart is available here.
Before you go laminating it, though, note that State v. Brown, __ N.C. App. __, 710 S.E.2d 265 (2011), is pending before the supreme court. In Brown, statutory rape of a victim under 13 under G.S. 14-27.2(a)(1) was held to be an aggravated offense under the same rationale set out in Clark. The supreme court has agreed to review the propriety of that determination in Brown, see __ N.C. __, 717 S.E.2d 371 (2011) (allowing review on issues in addition to those presented as the basis for the dissenting opinion in the court of appeals), so that will be a case to watch.
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.
The court of appeals recently decided a few cases involving satellite-based monitoring (SBM) of sex offenders, so it seemed a good time to write a blog post about it and to update my sex offender registration and monitoring flow chart.
In State v. Clark, the defendant was convicted of first-degree rape under G.S. 14-27.2(a)(1)—that is, statutory rape of a victim under the age of 13 by a defendant who is at least 12 years old and at least four years older than the victim. The trial court determined that the rape was an “aggravated offense” under G.S. 14-208.6(1a) and ordered him to enroll in SBM for life under G.S. 14-208.40A(c).
An aggravated offense, you’ll recall, is a criminal offense that involves
(1) Vaginal, anal, or oral penetration
(a) With a victim of any age through the use of force or the threat of serious violence, or
(b) With a victim who is less than 12 years old.
We have ample case law holding that when determining whether an offense fits within the statutory definition of an aggravated offense, the court may consider only the elements of the offense of conviction and may not consider the underlying factual scenario giving rise to the conviction. E.g., State v. Davison, __ N.C. App. __, 689 S.E.2d 510 (2009) (indecent liberties with a child is not an aggravated offense). Even first-degree statutory sexual offense is not aggravated because the elements of that crime only require that the child be under age 13 and “a child under the age of 13 is not necessarily also a child less than 12 years old.” State v. Treadway, __ N.C. App. __, 702 S.E.2d 335 (2010).
The defendant in Clark seized upon the Treadway court’s logic and argued that a first-degree statutory rape should be no different from a statutory sexual offense—you cannot know, looking at the elements alone, whether the victim might have been 12 years old, and thus outside the definition of an aggravated offense. The court of appeals agreed that the trial court’s aggravated offense determination could not be upheld on the “child victim” prong of the aggravated offense definition (that’s prong (2)(b) as I set it out above).
But the court went on to add a new wrinkle to the analysis. Because statutory rape necessarily involves the act of vaginal intercourse with a person under the age of 13, the court concluded that it also “necessarily involves the use of force or the threat of serious violence”—and thus fits within the “violent conduct” prong (prong (2)(a) in my formulation) of the of the aggravated offense definition. The court supported that conclusion with a citation to State v. Holden, 338 N.C. 394 (1994), a case in which the supreme court, when considering whether a person’s prior second-degree rape conviction could be deemed a violent felony for the purpose of establishing an aggravating circumstance in a capital sentencing, explicitly rejected the notion that any rape is “non-violent.” So, even if Clark’s crime had been against the hypothetical 12-year-old victim, it would be proper to deem it aggravated, and the trial court thus did not err by ordering SBM for life. On Tuesday of this week—two weeks after Clark was decided—the court of appeals reached the same conclusion in State v. Brown.
After Clark, we can say that any first-degree rape—statutory or forcible—is an aggravated offense for SBM purposes. Add to that the rules from State v. McCravey, __ N.C. App. __, 692 S.E.2d 409 (2010) (second-degree rape based on force under G.S. 14-27.3(a)(1) is an aggravated offense), and State v. Oxendine, __ N.C. App. __, 696 S.E.2d 850 (2010) (Stroud, J., concurring) (second-degree rape of a mentally disabled victim is an aggravated offense), and it appears that any first- or second-degree rape is an aggravated offense (assuming the crime falls within the applicable effective date provisions for SBM). By contrast, attempts to commit those crimes are never aggravated because they fail to satisfy the “penetration” prong of the definition. Davison, 689 S.E.2d at 515–16 (2009). And the sexual offense analogues of rape are never aggravated because you cannot tell, looking at the elements of the offense alone, whether the sexual act in question actually involved penetration (something the court noted in footnote 4 in Clark), so they also fail to satisfy prong (1).
Another SBM case decided in this week, State v. Green, dealt with offenses involving the physical, mental, or sexual abuse of a minor. I’ll write about it in a subsequent post.
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As regular readers are aware, Jamie is a leading expert, if not the leading expert, on North Carolina’s sex offender laws. Now you can have much of his expertise at your fingertips.
by School of Government faculty member Jamie Markham
In an earlier post I wrote about the satellite-based monitoring (SBM) effective-date question resolved by the court of appeals in State v. Cowan. To paraphrase Inigo Montoya, let me sum up: August 16, 2006 is the effective date that matters for SBM. Today, I want to come back around to another issue discussed (but not finally resolved) in Cowan: what is an offense that “involved the physical, mental, or sexual abuse of a minor,” and what should the court look at to determine whether an offender committed one?
To recap the general facts of the case, Mr. Cowan pled guilty to solicitation to commit indecent liberties with a child for sexual acts involving a four-year-old girl. At his G.S. 14-208.40B SBM determination hearing, the court ruled that he was not a sexually violent predator, not a recidivist, and not an aggravated offender, and that he had not been convicted of rape or sexual offense of a child by an adult offender under G.S. 14-27.2A or -27.4A. Thus, he did not fall in any of the categories that trigger mandatory lifetime enrollment in SBM. The court did, however, decide that Cowan had committed an offense that “involved the physical, mental, or sexual abuse of a minor,” and that based on a DOC risk assessment (his Static-99 scored out “High”) he required the highest possible level of supervision and monitoring. As a result, the judge ordered him to enroll in SBM for a period specified by the court—in this case, life. (For ease of reference, I’ll point out that DOC refers to SBM enrollees who aren’t subject to mandatory lifetime SBM as “conditional” offenders—as in, whether and how long they are monitored is conditioned upon the results of a risk assessment and the discretion of the court.)
Cowan argued that determinations of whether an offense involved the physical, mental, or sexual abuse of a minor should, like aggravated offense determinations under State v. Davison and State v. Singleton (discussed here), be based solely upon the elements of the conviction offense. And under that approach, he maintained in his brief, solicitation to commit indecent liberties would not qualify as abuse of a minor for two reasons. First, the target crime of indecent liberties does not, in a categorical, elemental sense, require a sexual act, physical force, or mental abuse. Second, a solicitation to commit that crime—complete upon merely asking another to commit it—does not necessarily require any physical, mental, or sexual abuse at all.
The court of appeals disagreed—even after assuming (without deciding) that the law requires an elements-based approach. Through a careful analysis of the dictionary definition of “involve,” the court ruled that G.S. 14-208.40(a)(2) encompasses both completed acts of abuse and inchoate “acts that create a substantial risk that such abuse will occur.” So, we know that a solicitation to do something can still involve that something within the language of the SBM law.
But what’s the something?
“Aggravated offense” is defined in G.S. 14-208.6(1a). That definition itself includes several essential elements (penetration and force or victim age), against which the elements of the conviction offense are mapped to determine whether the aggravated-offense requirements are satisfied. By contrast, “physical, mental, or sexual abuse of a minor” is undefined; the term first appeared in the General Statutes in 1996 in the context of special supervision conditions for certain probationers and post-release supervisees. S.L. 1996-18-es2, § 20.14. It’s harder, therefore, to know what elements to look for in a conviction offense to determine whether it meets the definition. Would employing a minor in an offense against public morality under G.S. 14-190.6 be covered? It necessarily involves a minor, but is it “abuse”? What about the sexual exploitation of a minor crimes? Solicitation of a child by computer? Even if you could look at the facts behind those convictions, it’s not clear from Cowan precisely which facts would be necessary to prove that “abuse of a minor” occurred.
Thus far, the best we can say as a matter of case law is that indecent liberties qualifies as sexual abuse of a minor under Cowan (and State v. Morrow) and that statutory rape of a 13-, 14-, or 15-year-old under G.S. 14-27.7A(a) qualifies under State v. Smith. 687 S.E.2d 525 (2010) (“Statutory rape is, by definition, an offense involving the sexual abuse of a minor.”). As far as which other crimes might also qualify, I sometimes suggest looking at the definition of “abused juvenile” in G.S. 7B-101(1) as a starting point for arguments about which crimes might rise to the level of “abuse.”
Finally, the Cowan court also noted that the trial court erred by ordering the defendant to enroll in SBM for life. For conditional offenders under G.S. 14-208.40(a)(2)—who have necessarily been deemed to fall outside the lifetime SBM categories set out in G.S. 14-208.40(a)(1) or -208.40(a)(3)—the “period of time . . . specified by the court” should, the court said in a footnote, be a “term of years,” not life.
I mentioned in my last post that State v. Bowditch was not the only satellite-based monitoring (SBM) case recently decided by the Supreme Court of North Carolina. The court also affirmed four other decisions from the court of appeals and decided it had improvidently allowed discretionary review in another. Although those decisions turned in part on the underlying question of whether SBM is punishment, there were different issues at stake in each case. This post summarizes the various issues that we can now consider to have been resolved—either by affirmance or avoidance—after Bowditch and its companion cases.
State v. Hagerman. The trial court determined that the defendant, convicted of four counts of indecent liberties with a child based on acts that occurred in 2005, was an aggravated offender and ordered him to enroll in SBM for life. The defendant did not raise any ex post facto argument, but instead argued that SBM enhanced his punishment in violation of his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the trial court’s aggravated-offense determination rested on facts not conceded by the defendant or found by a jury beyond a reasonable doubt. Over a dissent, the court of appeals concluded that SBM is part of a civil regulatory scheme and thus does not implicate a defendant’s Sixth Amendment jury-trial rights under Apprendi at all. The supreme court affirmed. (It appears to me the defendant should not have been required to enroll in lifetime SBM as a statutory, not constitutional, matter—as discussed below, indecent liberties can never, by its elements, be an aggravated offense. The defendant did not raise the issue in his brief.)
State v. Morrow. The trial court found that the defendant, convicted of indecent liberties with a child based on acts that occurred in 2005, committed an offense involving the sexual abuse of a minor. The court then found, based on the defendant’s “moderate risk” Static-99 score, that the defendant required “the highest possible level of supervision and monitoring” and ordered him to enroll in SBM for “7-10 years.” The court of appeals held that SBM was not punishment and thus did not violate the Ex Post Facto Clause—a conclusion obviously upheld by the supreme court’s reasoning Bowditch. The court of appeals also held in Morrow that G.S. 14-208.40B(c) does not limit a trial court to the Static-99 when determining whether a defendant requires the highest possible level of supervision and monitoring. Thus a finding of “high risk” is not a necessary prerequisite to an order to enroll in SBM, provided the trial court makes findings of fact (based on evidence presented by the State) in support of its determination that the defendant might pose a risk higher than that indicated by the Static-99 score alone. Additionally, the court of appeals held that the trial court erred by ordering the defendant to enroll in SBM for a range of “7-10” years. It should have ordered enrollment for a definite length of time (e.g., “7 years”), not an indeterminate range. The latter conclusions do not necessarily flow from the supreme court’s holding in Bowditch, but they were equally affirmed.
State v. Vogt. The trial court found, based on the defendant’s convictions for indecent liberties with a child in 2006 and third degree sexual exploitation of a minor in 2005, that he was a recidivist under G.S. 14-208.6(2b) and ordered him to enroll in SBM for life. The court of appeals rejected his ex post facto argument, refusing to take judicial notice of DOC’s interim policy on sex offender management to aid the court’s analysis of the SBM regime’s purportedly punitive effect. There was some discussion in Vogt as to whether imposition of SBM violated the defendant’s negotiated plea agreement, but, based on the way the issue was briefed, the appellate court never had to reach it to decide the case. The supreme court affirmed.
State v. Wagoner. The trial court found, based on the defendant’s convictions of reportable crimes in 1996 and 2005, that he was a recidivist and ordered him to enroll in SBM for life. In addition to rejecting the defendant’s ex post facto argument, the court of appeals reached several additional issues. The defendant argued that he received ineffective assistance of counsel based on his lawyer’s failure to raise a double jeopardy argument at the SBM determination hearing. The court of appeals rejected this argument on two fronts. First, it noted that a “claim for ineffective assistance of counsel is available only in criminal matters, and we have already concluded that SBM is not a criminal punishment.” Second, the court concluded that even if it were to consider the defendant’s ineffective assistance argument, the underlying double jeopardy argument would fail because SBM is a civil regime that doesn’t implicate the double jeopardy clause. The court of appeals also held that the defendant’s negotiated plea was not rendered invalid by the later imposition of SBM, for the reasons set out in State v. Bare, discussed here. The supreme court affirmed all of the above. (As an aside, there’s a collateral consequence argument under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), discussed here, lurking in all of this. Jeff has been imploring me to write about it—he noted an Eleventh Circuit case on point here—and eventually I will.)
Finally, State v. Singleton. The trial court ordered the defendant to enroll in SBM for life based on its conclusion that his 2006 conviction for indecent liberties with a child was an aggravated offense. The court of appeals reversed, citing its prior conclusion in State v. Davison that a trial court may consider only the “bare elements” of the crime of conviction when determining whether a particular offense was aggravated. The court of appeals rejected the State’s argument that the trial court ought also to be permitted to consider uncontested evidence set out in the factual basis for the defendant’s guilty plea. The supreme court initially granted the State’s petition for discretionary review, 696 S.E.2d 697 (2010), but then determined when it issued Bowditch that discretionary review had been improvidently allowed. So, the decision of the court of appeals—and thus the elements-based approach to aggravated-offense determinations—stands. (I’m not sure why the supreme court’s order declining to review Singleton describes the court of appeals opinion as unpublished. It was a published decision.)