State v. Styles ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
COA14-281
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. McDowell County
Nos. 02 CRS 52509-11
KENNETH ALLAN STYLES
Appeal by defendant from orders entered 28 October 2013 by
Judge Robert T. Sumner in McDowell County Superior Court. Heard
in the Court of Appeals 21 July 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph Finarelli, for the State.
James N. Freeman, Jr., for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Defendant appeals from three orders requiring him to enroll
in lifetime satellite-based monitoring (“SBM”) pursuant to N.C.
Gen. Stat. § 14-208.40B (2013). Recognizing that his oral
notice of appeal was invalid, see State v. Cowan, 207 N.C. App.
192, 195, 700 S.E.2d 239, 241 (2010), defendant has filed a
petition for writ of certiorari to review the orders. We allow
defendant’s petition and hold that the trial court erroneously
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found in each case that he was convicted of an “aggravated
offense” under N.C. Gen. Stat. § 14-208.6(1)(a) (2013).
Accordingly, we reverse the SBM orders and remand for further
proceedings.
In 02 CRS 52509-11, defendant pled guilty to three counts
of taking indecent liberties with a child, a “sexually violent
offense” requiring defendant to register as a sex offender. See
N.C. Gen. Stat. §§ 14-208.6(4)-(5), 14-208.7 (2013). Following
defendant’s release from prison in 2012, the District Attorney
scheduled a “bring-back” hearing under N.C. Gen. Stat. § 14-
208.40B to determine whether defendant was subject to SBM under
the Sex Offender and Public Protection Registration Program,
N.C. Gen. Stat. Ch. 14, art. 27A (2013). At the conclusion of
the hearing, the trial court found in 02 CRS 52509 and 52510
that defendant was convicted of the “aggravated offense” of
statutory rape of a person 13, 14, or 15 years of age by an
adult at least six years older than the victim under N.C. Gen.
Stat. § 14-27.7A(a) (2013).1 The court further found that
defendant’s conviction for indecent liberties in 02 CRS 52511
was an “aggravated offense.” Based on these findings, the court
1
In open court, the judge stated that defendant was convicted of
“an aggravated offense, and that is statutory rape of [a child]
under six years old – six or under[.]”
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ordered defendant to enroll in the SBM program for the remainder
of his natural life.
Under the Sex Offender and Public Protection Registration
Program, an offender is subject to lifetime SBM if he or she is
(1) a recidivist, (2) convicted of an aggravated offense, (3) a
sexually violent predator, or (4) convicted under N.C. Gen.
Stat. §§ 14-27.2A or 14-27.4A (2013). See N.C. Gen. Stat. § 14-
280.40B(c) (2013). A court may impose SBM for a specific period
short of the offender’s life if the offense of conviction
involved the “physical, mental, or sexual abuse of a minor” and
the court determines that, “based on the Division of Adult
Correction’s risk assessment, the offender requires the highest
possible level of supervision and monitoring.” N.C. Gen. Stat.
§ 14-208.40B(c); see also State v. Cowan, 207 N.C. App. at 203,
700 S.E.2d at 246.
Defendant now argues, and the State concedes, that his
convictions for taking indecent liberties with a child in 02 CRS
52509-11 do not qualify as aggravated offenses. We agree. See
State v. Davison, 201 N.C. App. 354, 361–62, 689 S.E.2d 510,
515–16 (2009). Because the court imposed lifetime SBM based
solely on the ground that defendant had been convicted of an
aggravated offense, we vacate the court’s orders and remand for
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a new hearing pursuant to N.C. Gen. Stat. § 14-208.40B. See id.at 364–65, 689 S.E.2d at 517.
Defendant further claims that the trial court’s imposition
of lifetime SBM violated his constitutional right to due
process. As the State observes, however, defendant failed to
present this issue to the trial court. See N.C.R. App. P.
10(a)(1). “Therefore, defendant has failed to preserve this
constitutional issue for appeal.” State v. Mills, ___ N.C. App.
___, ___, 754 S.E.2d 674, 678 (2013).
Finally, defendant contends that requiring him to enroll in
the SBM program violates the constitutional ban on ex post facto
laws. Assuming this claim is properly before us, see N.C.R.
App. P. 10(a)(1), we are bound by our Supreme Court’s holding
that “subjecting defendants to the SBM program does not violate
the Ex Post Facto Clauses of the state or federal
constitution.” State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d
1, 13 (2010).
Vacated and remanded.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).