The court of appeals issued a new decision on satellite-based monitoring (SBM) of sex offenders this week. It gives further guidance on what the State will need to show to establish that SBM is a reasonable search under the Fourth Amendment in light of Grady v. North Carolina. Continue reading
Tag Archives: sbm
In Grady v. North Carolina, 135 S. Ct. 1368 (2015), the Supreme Court held that North Carolina’s satellite-based monitoring regime for sex offenders is a search, but left it to North Carolina’s courts to decide whether it is an unreasonable search in violation of the Fourth Amendment. We got an answer for one defendant this week, as Torrey Grady’s case circled back through the court of appeals. Continue reading →
Maybe so, if two decisions from earlier this month are any indication. They are: State v. Bishop, ___ N.C. App. ___ (Oct. 3, 2017), where the court refused to consider arguments about the reasonableness of satellite-based monitoring (“SBM”) when the issue was not preserved or properly appealed, and State v. Greene, ___N.C. App. ___ (Oct. 3, 2017), where the court refused to remand a SBM hearing when the State failed to present sufficient evidence of the reasonableness of SBM. Before I discuss those cases, some background first. Continue reading →
The trial court’s order regarding sex offender registration and satellite-based monitoring (SBM) in State v. Johnson was wrong in part. But also right in part. But ultimately wrong. Continue reading →
Today’s post is an update to the sex offender registration and monitoring flow chart. (It’s really more of a cheat sheet than a flow chart, but after seven years of calling it a flow chart—the first version appeared in 2009—I’m going to stick with it.) Continue reading →
In Grady v. North Carolina, 575 U.S. __, 135 S. Ct. 1368 (2015), the Supreme Court concluded that North Carolina’s satellite-based monitoring (SBM) program for sex offenders is a search. The Court left to the lower courts the question of whether the search is “unreasonable” under the Fourth Amendment. The lower courts have started to answer it. Continue reading →
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 →
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 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.