State v. Morrow , 200 N.C. App. 123 ( 2009 )

STROUD, Judge.

Defendant was ordered to enroll in satellite-based monitoring (“SBM”) for seven to ten years pursuant to his 16 November 2006 no contest plea to indecent liberties with a child. Defendant presents three issues for this Court’s review: (1) whether requiring SBM enrollment on the basis of crimes committed before enactment of the SBM statutory scheme violates the Ex Post Facto Clause of the United States Constitution, (2) whether the procedure for determining SBM enrollment violates the Due Process Clause of the United States Constitution, and (3) if the SBM statutory scheme is otherwise constitutionally sound on its face, whether the trial court’s findings of fact supported its legal conclusion that defendant must be enrolled in SBM for seven to ten years. For the following reasons, we conclude defendant’s constitutional claims are without merit, but remand for additional findings of fact.

I. Background

On 16 November 2006, defendant pled no contest to two counts of indecent liberties with a child. He was sentenced to 18 to 22 months on each count. The two sentences were suspended and defendant was placed on 36 months supervised probation. As a condition of his probation, defendant was required, inter alia, to “enroll in [a] sex offender control program, receive psychological treatment for depression, substance abuse, and specific sex offender treatment includig [sic] treatment outside Wilkes County.”

On 20 December 2007, defendant’s probation officer filed a probation violation report in Superior Court, Wilkes County. The report alleged four violations, including that defendant inexcusably missed seven scheduled sessions of his sexual abuse treatment program. On 8 January 2008, the Department of Correction (“DOC”) notified defendant¹ that it would seek continuous SBM of his movements pursuant to the “bring back” provisions of N.C. Gen. Stat. § 14-208.40B.² The trial court held a hearing on 19 February 2008 to address both the probation violation report and SBM.

At the hearing, defendant admitted the allegations in the probation violation report. The trial court revoked his probation and activated his sentence for 11 months, with an additional 36 months of probation upon his release from prison.

Immediately following the revocation of defendant’s probation, the trial court heard evidence on whether to enroll defendant in SBM. The trial court received the Sheriff’s Incident/Investigation Report for the underlying crimes and the DOC’s STATIC-99 Risk Factor Worksheet³ as evidence.

At the hearing, defense counsel objected to SBM enrollment on the grounds that defendant was assessed as “moderate risk [while] the Statute talks about the highest possible type of supervision. He would [also] raise the ... claim ... of due process — ex post facto violations, and just for notice of monitoring[.]” The trial court made oral findings in open court, but no written findings, that DOC had assessed defendant as moderate risk, but because defendant “was 16 or 17 years of age, approximately 11 to 12 years older than the victim [,]” he should be given “the highest level of supervision^]” Accordingly, the trial court ordered defendant to enroll in SBM for seven to ten years. Defendant appeals the SBM enrollment order.

II.Standard of Review

This Court established the standard of review for SBM enrollment in State v. Kilby, - N.C. App. -, -, 679 S.E.2d 430. Kilby first noted that the trial court is statutorily required to make findings of fact to support its legal conclusions. Id. (citing N.C. Gen. Stat. § 14-208.40B(c) (2007)). Kilby further stated:

[W]e review the trial court’s findings of fact to determine whether they are supported by competent record evidence, and we review the trial court’s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found. We [then] review the trial court’s order to ensure that the determination that defendant requires the highest possible level of supervision and monitoring reflects a correct application of law to the facts found.

— N.C. App. at -, 679 S.E.2d at 432 (citations, quotation marks and brackets in original omitted).

III.Findings of Fact

Defendant does not dispute either of the trial court’s findings at the SBM hearing: (1) that he was assessed at moderate risk by the DOC and (2) that he was eleven or twelve years older than the victim. Therefore, they are “presumed to be supported by competent evidence and [are] binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted).

IV.Constitutional Issues

Defendant contends that the SBM enrollment statutory scheme (I) violates the Ex Post Facto Clause because it increases the punishment for a crime after the crime is committed and (2) violates the Due Process Clause because the statute (i) is void for vagueness and (ii) does not provide a defendant with notice and opportunity to be heard. We disagree.

A. Ex Post Facto Clause

Defendant argues that because “mandatory GPS monitoring did not exist” on the date he committed the underlying offense, the SBM statute violated the Ex Post Facto Clause of the United States Constitution by increasing his permissible punishment after the offense was committed. However, this Court carefully considered and overruled an identical challenge to the SBM statute in State v. Bare, - N.C. App. -, -, 677 S.E.2d 518, 531 (2009). Bare controls the instant case and we therefore overrule this argument. Id.

We recognize, as noted by the dissent, that there may be serious legal issues raised by the DOC’s manner of execution of SBM under some provisions of the N.C. Department of Correction Policies-Procedures, No. VII.F Sex Offender Management Interim Policy (2007) (“Interim Policy”). However, just as in Bare, - N.C. App. -, 677 S.E.2d 518, those issues regarding the execution of SBM have not been raised by either party in this case and our record contains no evidence, and certainly no findings by the trial court, as to the Interim Policy or details of SBM as applied to defendant. Defendant has challenged the constitutionality of the statute under which he was ordered to enroll in SBM, N.C. Gen. Stat. § 14-208.40B; defendant has not challenged the Interim Policy. Pursuant to our record, neither defendant nor the State mentioned the Interim Policy before the trial court or in their briefs. Although this Court may have the ability to take judicial notice of the Interim Policy, we have not had the benefit of briefing and arguments regarding the Interim Policy. For these reasons, we have addressed only the issues presented to us in this case, based upon the arguments and record presented in this case.

B. Void for Vagueness

Defendant argues that the SBM statutory enrollment scheme is constitutionally void because it is too vague to be interpreted and administered uniformly However, defendant did not raise a void for vagueness challenge to the trial court. “Appellate courts will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court.” State v. Cumber, 280 N.C. 127, 131-32, 185 S.E.2d 141, 144 (1971). Accordingly we dismiss this argument.

C. Lack of Notice and Opportunity to Be Heard

Defendant argues that “the satellite-based monitoring statute is unconstitutional because it does not give an offender notice and an opportunity to be heard on whether he should be monitored.” Defendant further argues that the statute is unconstitutional because “under the ‘bring back’ statute . . . the offender [is not] entitled to be represented by counsel or to present evidence in his own defense.”

The State’s evidence that defendant was personally served with notice on 8 January 2008 was undisputed at the hearing. Service of notice was more than a month before defendant’s 19 February 2008 hearing; fifteen days is the minimum required notice under the statute. N.C. Gen. Stat. § 14-208.40B(b) (2007) (“The hearing shall be scheduled no sooner than 15 days from the date the notification is mailed.”). Furthermore, defendant was represented by counsel⁴ at the SBM hearing sub judice. Because defendant received timely notice of the hearing and was represented by an attorney at the SBM hearing, we need not address these arguments. See N.C. Gen. Stat. § 1-271 (2007) (allowing appeal only by an aggrieved party); Culton v. Culton, 327 N.C. 624, 625-26, 398 S.E.2d 323, 324-25 (1990) (citing N.C. Gen. Stat. § 1-271 as grounds for dismissing appeal when appellant had not been “directly and injuriously affected” by an order of the court).

Defendant also argues that “[t]he monitoring statutes, G.S. § 14-208.40A and 40B, do not put an offender on notice of what facts will require him to be monitored. . . . Thus, an offender goes into the hearing with absolutely no idea of the basis upon which the decision to require monitoring will be made.” In support, defendant cites State v. Battle, 136 N.C. App. 781, 525 S.E.2d 850 (2000). Battle does not avail for defendant.

In Battle, “defendant attempted several times to make [a] motion to suppress[.]” 136 N.C. App. at 786, 525 S.E.2d at 853. However, the trial court “barely allowed defendant to state his motion and denied defendant any opportunity to state his grounds or present evidence in support of his motion.” Id. at 787, 525 S.E.2d at 854. Accordingly, this Court granted a new trial, holding that due process required the defendant be given “an opportunity to offer evidence and present his version of the” events in question. Id. at 786, 525 S.E.2d at 854.

This case is distinguishable from Battle, because defendant did not attempt to introduce any evidence at the SBM hearing. Even though the SBM enrollment statutory scheme expressly gives a defendant the right “to present to the court any evidence that the [State’s] evidence [pertaining to a defendant’s risk assessment] is not correct[,]” N.C. Gen. Stat. § 14-208.40A(a) (2007), defendant did not seek to refute the State’s evidence or attempt to offer any other evidence. It is well settled that a party who does not attempt to offer evidence for the trial court’s determination of its admissibility has no basis for appeal. Kor Xiong v. Marks, - N.C. App. -, -, 668 S.E.2d 594, 597 (2008). Accordingly, this argument is dismissed.

Though we dismiss this argument, we do note that a sex offender should have some idea of what evidence the DOC would introduce at an SBM hearing by referring to the statutes creating the SBM program. One of the SBM statutes requires “[t]he Department of Correction . . . [to] create guidelines to govern the [SBM] program.” N.C. Gen. Stat. § 14-208.40 (2007). A separate statute further requires that DOC regulations “shall be filed with and published by the office of the Attorney General and shall be made available by the Department for public inspection.” N.C. Gen. Stat. § 143B-261.1 (2007).

These DOC guidelines, created pursuant to N.C., Gen. Stat. § 14-208.40, are contained in the Interim Policy, which refers for example, to the Static-99 risk factors outlined in footnote 3 supra. The Interim Policy additionally refers to dynamic, or changeable, risk factors which “include, but are not limited to, substance abuse, poor family relations, access to victims, resistance to treatment, anger issues, residence instability, or antisocial personality.” N.C. Dep’t of Correction Policies-Procedures, No. VII.F Sex Offender Management Interim Policy 9 (2007). An offender may also be determined to be high risk based on factors which “override” the STATIC-99, including that the offender is “[c]linically diagnosed as a pedophile according to the DSM-IV[, in] [w]illful noncompliance with treatment^]” or has been “[c]harged with a new sex offense.” Id. These are all examples of types of evidence which might be presented by the DOC at an SBM hearing.

V. Adequacy of Factual Support for the Conclusions of Law

Defendant argues that the trial court’s two findings, the DOC’s “moderate” risk assessment and the ages of defendant and his victim at the time of the underlying offense do not adequately support the legal conclusion that defendant must enroll in SBM for seven to ten years. Defendant argues that “a DOC finding of ‘high risk’ is .... a necessary prerequisite to monitoring.” Defendant further argues that because the DOC assessed him at moderate risk, the trial court had no factual basis for requiring the highest possible level of monitoring. The State argues that the trial court is not limited to the DOC risk assessment but “is duty-bound to consider all relevant evidence on the issue of whether Defendant is subject to SBM and requires the highest possible level of monitoring.”

The statutory text in question reads:

Upon receipt of a risk assessment from the Department, the court shall determine whether, based on the Department’s risk assessment, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in a satellite-based monitoring program for a period of time to be specified by the court.

N.C. Gen. Stat. § 14-208.40B(c).

“Under the canons of statutory construction, the cardinal principle is to ensure accomplishment of the legislative intent. To that end, we must consider the language of the statute, the spirit of the act and what the act seeks to accomplish.” Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998) (citations, quotation marks and ellipses omitted), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671 (1999), abrogated on other grounds by Lenox, Inc. v. Tolson, 353 N.C. 659, 663-64, 548 S.E.2d 513, 516-17 (2001). “[W]e first look to the words chosen by the legislature and ‘if they are clear and unambiguous within the context of the statute, they are to be given their plain and ordinary meanings.’ ” Fix v. City of Eden, 175 N.C. App. 1, 19, 622 S.E.2d 647, 658 (2005) (quoting Brown v. Flowe, 349 N.C. 520, 522, 507 S.E.2d 894, 896 (1998)). “[W]here the words of a statute are plain, direct and unambiguous, no interpretation is needed to ascertain their meaning.” In re Duckett, 271 N.C. 430, 436, 156 S.E.2d 838, 844 (1967) (quoting Mook v. City of Lincoln, 146 Neb. 779, [781,] 21 N.W.2d 743, [744 (1946)].

The plain words of the statute sub judice that “the court shall determine whether, based on the Department’s risk assessment, the offender requires the highest possible level of supervision and monitoring [,]” N.C. Gen. Stat. § 14-208.40B(c), are not entirely “clear and unambigious[,]” Fix at 19, 622 S.E.2d at 658. As noted in Kilby, “N.C. Gen. Stat. § 14-208.40B provides no specific legal principles which define when ‘the highest possible level of supervision and monitoring’ must be required.” - N.C. App. -, -, 679 S.E.2d 430, 432. In addition, “[t]he ‘highest possible level of supervision and monitoring’ simply refers to SBM, as the statute provides only for SBM and does not provide for any lesser levels or forms of supervision or monitoring of a sex offender. If SBM is imposed, the only remaining variable to be determined by the court is the duration of the SBM.” Id. - at - n.2, 679 S.E.2d at 432 n.2. Therefore, we must construe the statute according to well established principles of statutory construction.

“When the plain language of a statute proves unrevealing, a court may look to other indicia of legislative will, including: the purposes appearing from the statute taken as a whole,... the end to be accomplished, . . . and other like means.” In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 560, 589 S.E.2d 179, 181 (2003) (citation, quotation marks and brackets omitted). This Court also “look[s] ... to our prior interpretations of the [entire] statutory framework.” Fix at 19, 622 S.E.2d at 658.

To interpret the statute and determine the evidence which could be admitted in an SBM proceeding, we begin with the clear legislative purpose of the SBM statutory scheme, which is “to supervise certain offenders whom the legislature has identified as posing a particular risk to society.” Bare, — N.C. App. at —, 677 S.E.2d at 530. Therefore any proffered and otherwise admissible evidence relevant to the risk posed by a defendant should be heard by the trial court; the trial court is not limited to the DOC’s risk assessment. See N.C. Gen. Stat. § 8C-1, Rule 402 (“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules.”)

If the General Assembly had meant for the DOC’s assessment of “high risk” to be a necessary prerequisite to the trial court’s SBM determination, it could have said so, but instead, it places override authority with the trial court with the words “[i]f the trial court determines . . . .” N.C. Gen. Stat. § 14-208.40B(c). Furthermore, such a broad grant of power to the DOC, to alone determine if the offender requires “the highest possible level of supervision and monitoring” would have been an unconstitutional delegation of legislative authority by the General Assembly. See Harvell v. Scheidt, Comr. of Motor Vehicles, 249 N.C. 699, 702, 107 S.E.2d 549, 551 (1959) (holding that legislative grant of authority to the Department of Motor Vehicles to define the meaning of “habitual violator” and to suspend the driver’s license of a “habitual violator of the traffic laws” without a preliminary hearing was an unconstitutional delegation of legislative authority); State v. Harris, 216 N.C. 746, 754, 6 S.E.2d 854, 860 (1940) (declaring unconstitutional on the grounds of improper delegation of legislative responsibilities a statute granting an administrative agency unlimited discretion to set licensing requirements for dry cleaners). Construing the risk assessment provision of the SBM statutes as a constitutionally infirm delegation of legislative authority would violate the principle that “[t]his Court presumes that any act promulgated by the General Assembly is constitutional and resolves all doubt in favor of its constitutionality.” Guilford Co. Bd. of Education v. Guilford Co. Bd. of Elections, 110 N.C. App. 506, 511, 430 S.E.2d 681, 684 (1993). Accordingly, we decline to adopt defendant’s proposed construction of the statute that would requires a DOC rating of high risk as a necessary prerequisite to SBM.

Even though we do not agree with defendant’s construction of the statute, our review requires us to consider whether evidence was presented which could support findings of fact leading to a conclusion that “the defendant requires the highest possible level of supervision and monitoring.” N.C. Gen. Stat. § 14-208.40B(c). If “the State presented no evidence which would tend to support a determination of a higher level of risk than the “moderate” rating assigned by the DOC[,]” then the order requiring defendant to enroll in SBM should be reversed. Kilby, - N.C. App. at -, 679 S.E.2d at 434. However, if evidence supporting the trial court’s determination of a higher level of risk is “presented, it [is] . . . proper to remand this case to the trial court to consider the evidence and make additional findings[.]” Id.

This case is distinguishable from our recent decision in Kilby where we reversed the SBM enrollment order when “thé State presented no evidence which . . . tend[ed] to support a determination of a higher level of risk than the ‘moderate’ rating assigned by the DOC.” Id. (emphasis added). In fact, all of the evidence in Kilby presented alongside the DOC’s risk assessment indicated that the “defendant was fully cooperating with his post release supervision, which might support a finding of a lower risk level, but not a higher one.” Id. Accordingly, Kilby reasoned that “[t]he findings of fact [were] insufficient to support the trial court’s conclusion that ‘defendant requires the highest possible level of supervision and monitoring’ based upon a ‘moderate’ risk assessment from the DOC” and reversed. Id.

In contrast, in the case sub judice, in the probation revocation hearing which immediately preceded the SBM hearing, defendant admitted that he inexcusably failed to attend at least seven sessions of a sexual abuse treatment program required as a condition of his probation. This is evidence which could support a finding of higher risk. See McKune v. Lile, 536 U.S. 24, 33, 153 L. Ed. 2d 47, 57 (2002) (noting that an untreated sex offender is significantly more likely to reoffend than if treated). While we appreciate the difference between the probation revocation hearing and the SBM hearing, we cannot ignore the fact that less than two hours before ordering defendant to enroll in SBM the trial court had relevant and persuasive evidence before it as to defendant’s risk to the public; this evidence is also a part of the record before this court. Accordingly, we remand to the trial court for additional evidentiary proceedings and more thorough findings of fact as to the level of defendant’s risk.

VI. Unspecified Time for Monitoring

Defendant also argues that the trial court erred by ordering him to enroll in SBM for an indefinite period of time, seven to ten years. Defendant argues that “[i]t is not clear whether the defendant is subject to ten years of monitoring, which could somehow be reduced to seven, or is subject to seven years of monitoring, which DOC could somehow lengthen to ten.” This appears to be an issue of first impression for this Court.

The plain language of the applicable statute leaves the determination of a defendant’s enrollment in SBM “to be specified by the court.” N.C. Gen. Stat. § 14-208.40B(c) (emphasis added). However, we find no statute or regulation which prqvides fqr any procedure for defendant to seek termination of his monitoring after seven years, but prior to ten years. Pursuant to N.C. Gen. Stat. § 14-208.43, offenders who are required to enroll in lifetime SBM under N.C. Gen. Stat. § 14-208.40(a)(l) may file a request with the Post-Release Supervision and Parole Commission requesting termination of SBM under certain conditions, but there is no statutory provision for termination of SBM of offenders, like defendant herein, who are enrolled under N.C. Gen. Stat. § 14-208.40(a)(2).⁵ In the absence of any statutory provisions to determine when an offender’s monitoring would end if his “period of time” is a range of time, we conclude that N.C. Gen. Stat. § 14-208.40B(c) requires the trial court to set a definite time period for defendant’s enrollment in SBM. We therefore remand to the trial court with the direction that if the trial court determines pursuant to Part V supra, that defendant “requires the highest possible level of supervision and monitoring” per N.C. Gen. Stat. § 14-208.40B(c), the trial court shall also set a definite period of time for defendant to be enrolled in SBM.

VII. Conclusion

We remand the trial court order requiring defendant to enroll in SBM for further findings of fact regarding whether defendant “requires the highest possible level of supervision and monitoring[,] and if so, for the trial court to determine a definite time period for which defendant should be required to enroll in SBM.

Remanded.

Judge CALABRIA concurs. Judge ELMORE concurs in part and dissents in part in a separate opinion.

1 . The record does not contain a copy of any notice of an SBM hearing served on defendant, but he did not dispute the testimony of the probation officer that notice was personally served on 8 January 2008.

2 . N.C. Gen. Stat. § 14-208.40B reads, in pertinent part,

(a) When an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), and there has been no determination by a court on whether the offender shall be required to enroll in satellite-based monitoring, the Department shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a).

(b) If the Department determines that the offender falls into one of the categories described in G.S. 14-208.40(a), the Department shall schedule a hearing in the court of the county in which the offender resides. The Department shall notify the offender of the Department’s determination and the date of the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14-208.7. The hearing shall be scheduled no sooner than 15 days from the date the notification is mailed. Receipt of notification shall be presumed to be the date indicated by the certified mail receipt.

N.C. Gen. Stat. § 14-208.40B (2007).

3 . “The STATIC-99 Risk Assessment is an actuarial instrument designed to estimate the probability of sexual and violent recidivism among male offenders who have already been convicted of at least one sexual offense against a child or non-consenting adult.” N.C. Dep’t of Correction Policies-Procedures, No. VII.F Sex Offender Management Interim Policy 9 (2007). The Department of Correction uses the STATIC-99 risk assessment to determine levels of supervision required for offenders. Id. The STATIC-99 factors include: (1) the age of the offender, (2) whether the offender has “ever lived with a lover for at least two years[,]” (3) non-sexual violence convictions, (4) prior sexual offense charges and convictions, (5) prior sentencing dates, (6) convictions for non-contact sex offenses, (7) any unrelated victims, (8) stranger victims, or (9) male victims.

4 . Defendant sought to minimize this very obvious flaw in his argument by mentioning in a footnote that “[t]he fact that the defendant in this case did have counsel was serendipitous; counsel was already there to represent the defendant on the probation revocation.”

5 . N.C. Gen. Stat. § 14-208.43(e) states that “The Commission shall not consider any request to terminate a monitoring requirement except as provided by this section. The Commission has no authority to consider or terminate a monitoring requirement for an offender described in G.S. 14-208.40(a)(2).” N.C. Gen. Stat. § 14-208.43(e) (2007).