State v. Carter ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-262
No. COA20-885
Filed 19 April 2022
Forsyth County, Nos. 19 CRS 55896, 56057-62
STATE OF NORTH CAROLINA
v.
MICHAEL EUGENE CARTER, Defendant.
Appeal by Defendant from order entered 11 February 2020 by Judge David L.
Hall in Forsyth County Superior Court. Heard in the Court of Appeals 19 October
2021.
Attorney General Joshua H. Stein, by Assistant Attorney General Caden
William Hayes, for the State.
Joseph P. Lattimore for Defendant-Appellant.
INMAN, Judge.
¶1 Following our Supreme Court’s recent decision in State v. Hilton, 378 N.C. 692,
2021-NCSC-115, and in light of recent amendments to North Carolina’s satellite-
based monitoring (“SBM”) statutes, we affirm the trial court’s order imposing SBM
for the sex offender’s life.
I. FACTUAL & PROCEDURAL BACKGROUND
¶2 The facts underlying the sex offender’s convictions are undisputed:
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¶3 Defendant-Appellant Michael Eugene Carter (“Defendant”) and his partner,
Elizabeth Hairston (“Ms. Hairston”), lived together with their child and Ms.
Hairston’s two other children from prior relationships. At the time they were living
together, Defendant was a registered sex offender based on a conviction in 2002 for
solicitation to commit statutory rape.
¶4 In May 2014, Ms. Hairston went out of town for the weekend, leaving the
children in Defendant’s sole care. While Ms. Hairston was away, Defendant lured
Ms. Hairston’s 12-year-old daughter, Takira,1 to Ms. Hairston’s bedroom and forced
her to perform oral sex on him. Defendant silenced Takira by telling her “no one
would believe her.”
¶5 In June 2014, Defendant again forced Takira to perform oral sex on him and
digitally penetrated her vagina. On a third occasion, Defendant forced Takira to
perform oral sex on him in a closet in the home while the other children played
outside. Ms. Hairston’s father saw Defendant and the child emerge from the closet
and told Ms. Hairston.
¶6 In late October and early November 2014, Defendant was arrested for various
traffic violations. Following his release, Defendant assaulted Takira a fourth time,
forcing her to perform oral sex. Before August of 2015, Takira reported the abuse to
1 We use a pseudonym to protect the identity of the child.
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her mother. Ms. Hairston confronted Defendant and kicked him out of the home. She
did not report the abuse to police until 2019.
¶7 In 2019, Defendant was indicted for unlawfully being at a school while a sex
offender, three charges of sexual offense with a child while in a parental role, three
charges of indecent liberties with a child, and four charges of first-degree sexual
offense with a child below the age of thirteen. Defendant pled guilty to all charges.
Pursuant to the plea agreement, the trial court consolidated the charges and
sentenced Defendant to 220 to 324 months in prison on 10 February 2020.
¶8 During sentencing, the trial court announced its intent to order SBM along
with related proposed factual findings. The trial court considered Defendant for SBM
because he was a recidivist and had committed a sexually violent offense. After
stating its proposed findings, the trial court asked the case detective to testify about
Defendant’s prior 2002 conviction. The State then elicited testimony from the
detective about Defendant’s past sex offender registration violations. The State
presented no further evidence. The trial court recessed the proceeding for additional
research.
¶9 The next day, after returning from recess, the trial court judge announced, “I
don’t know that lifetime monitoring is appropriate. What I’m considering is satellite-
based monitoring as a condition to his five-year post-release supervision[.]” Defense
counsel objected, asserting that a reasonableness hearing was required under State
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v. Grady, 372 N.C. 509, 831 S.E.2d 542 (2019) (“Grady III”). In response to defense
counsel’s final objection to SBM’s reasonableness, the trial court said, “I don’t know,
given that it is not lifetime, I don’t know that the reasonable Fourth Amendment
concerns that from [sic] the basis of Grady, or post Grady decisions, apply.” Then the
trial court orally ordered “as a condition of Mr. Carter’s post-release supervision,
pursuant to [N.C. Gen. Stat. §] 15(a)-1368.4(b)(1), subsection (6), that he be required
to enroll in satellite-based monitoring for the duration of his post-release supervision,
as provided by statute.”
¶ 10 In its written judgment, the trial court entered a form order titled “Judicial
Findings and Order for Sex Offenders––Active Punishment,” AOC-CR-615 (rev.
11/18), requiring SBM enrollment upon Defendant’s release from prison for his
“natural life” based on his status as a recidivist.2 Although Defendant committed
sexual offenses with a child younger than thirteen, the trial court did not check the
box on the order imposing SBM indicating that fact, which is an independent basis
2 Our statutes at the time mandated lifetime enrollment for recidivists. N.C. Gen.
Stat. § 14-208.40A(c) (2019) (“If the court finds that the offender . . . is a recidivist, the court
shall order the offender to enroll in a satellite-based monitoring program for life.” (emphasis
added)); see also infra 2. To the extent the trial court’s oral findings conflict with its written
findings, the trial court’s written findings and order control on appeal. State v. Johnson, 246
N.C. App. 677, 684 (2016) (“Even if there is some conflict between oral findings and ones that
are reduced to writing, the written order controls for purposes of appeal.” (citation omitted)).
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for the imposition of lifetime SBM. It is undisputed that Defendant pled guilty to and
was convicted of committing sexual offenses against a child younger than thirteen.
¶ 11 The trial court entered additional written findings addressing the
reasonableness of Defendant’s post-release SBM and ordered further trial court
review after Defendant’s release to consider then-existing technology and
constitutional standards:
1. The defendant was on the Sex-Offender Registry at the
time of the present offenses and the Registry was not
effective in deterring the defendant’s conduct or providing
for public safety;
2. The offenses for which the defendant has now been
convicted occurred over many dates and over a span of
time, indicating persistent child sexual criminal intent and
fixation;
3. The span between the defendant’s initial conviction for a
child sex offense and the present series of offenses indicates
a long-standing and persistent tendency and is predictive
of future offenses;
4. The defendant’s expectation of privacy is necessarily
limited during Post-Release Supervision, and the
additional Search attendant with Satellite-Based
Monitoring during Supervision is reasonable under the
circumstances;
5. During the commission of the present child sex offenses
the defendant repeatedly went upon school property in
violation of the North Carolina General Statutes, and
furthermore was in the presence and care of unauthorized
children in violation of the North Carolina General
Statutes, and thus the Sex-Offender Registry and Statutes
relating to child sex offenders were not effective in
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Opinion of the Court
deterring the defendant’s conduct or providing for the
public safety.
It is further Ordered that the defendant have a Hearing
before the Superior Court after his release from the
Division of Adult Correction so that the Court may
determine the nature and degree that a “Search” such as
Satellite-Based Monitoring will constitute under then
existing technology, and therefore determine whether
Satellite-Based Monitoring is constitutional under then-
existing circumstances pursuant to Grady and subsequent
case law.
Defendant timely appealed.
II. ANALYSIS
A. Appellate Jurisdiction
¶ 12 As an initial matter, we overrule the State’s contention this issue is not ripe
for our review. Although the trial court has ordered another reasonableness hearing
upon Defendant’s release from prison, the trial court has already imposed SBM upon
Defendant. We have reviewed challenges to the reasonableness of SBM at the time
it is imposed on many occasions. See, e.g., State v. Hutchens, 272 N.C. App. 156, 162,
846 S.E.2d 306, 312 (2020) (“Defendant’s SBM order was entered at the same time as
his sentence, so he will not be subject to SBM until he serves his prison term of
roughly seven-and-a-half to fourteen-and-a-half years.”); State v. Gordon, 270 N.C.
App. 468, 474, 840 S.E.2d 907, 913 (2020) (“Defendant was ordered to submit to
satellite-based monitoring solely due to his conviction of an aggravated offense;
however, he will not actually enroll in the program for approximately 15 to 20 years,
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after he has completed his active prison sentence. The State filed its satellite-based
monitoring application at the time of Defendant’s sentencing, in accordance with N.C.
Gen. Stat. § 14-208.40A.”).
B. SBM and Fourth Amendment Reasonableness
¶ 13 Defendant asserts the trial court erred by imposing SBM because the State
failed to present any evidence about the reasonableness of the monitoring and the
trial court did not conduct a formal hearing on this issue. A recent decision from our
Supreme Court and legislative amendments to our SBM statutes compel us to
disagree.
¶ 14 Reviewing a trial court order, we consider “whether the trial judge’s underlying
findings of fact are supported by competent evidence, . . . and whether those factual
findings in turn support the judge’s ultimate conclusions of law.’” State v. Williams,
362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted).
We review a trial court’s determination that SBM is reasonable de novo. State v.
Gambrell, 265 N.C. App. 641, 642, 828 S.E.2d 749, 750 (2019) (citation omitted).
1. Recent Reasonableness Precedence
¶ 15 The Supreme Court of the United States held in Grady v. North Carolina, 575
U.S. 306, 191 L. Ed. 2d 459 (2015) (“Grady I”), that the imposition of SBM constitutes
a warrantless search under the Fourth Amendment and necessitates an inquiry into
reasonableness under the totality of the circumstances. 575 U.S. at 310, 191 L. Ed.
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2d at 462.
¶ 16 Following that holding by the Supreme Court of the United States, in Grady
III, our Supreme Court considered whether mandatory lifetime SBM based solely on
the defendant’s status as a “recidivist” sex offender “is reasonable when ‘its intrusion
on the individual’s Fourth Amendment interests’ is balanced ‘against its promotion
of legitimate governmental interests.’” 372 N.C. at 527, 831 S.E.2d at 557 (quoting
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53, 132 L. Ed. 2d 564, 574 (1995)).
After extensive and careful balancing, our Supreme Court concluded:
[A]pplication of the relevant portions of N.C.G.S. §§ 14-
208.40A(c) and 14-208.40B(c) to individuals in the same
category as defendant, under which these individuals are
required to submit to a mandatory, continuous,
nonconsensual search by lifetime satellite-based
monitoring, violates the Fourth Amendment to the United
States Constitution. The category to which this holding
applies includes only those individuals who are not on
probation, parole, or post-release supervision; who are
subject to lifetime SBM solely by virtue of being recidivists
as defined by the statute; and who have not been classified
as a sexually violent predator, convicted of an aggravated
offense, or are adults convicted of statutory rape or
statutory sex offense with a victim under the age of
thirteen.
Id. at 545, 831 S.E.2d at 568.
¶ 17 This Court, in resolving an array of other SBM appeals, looked to Grady III for
guidance as to the scope of the reasonableness analysis required by the United States
Supreme Court in Grady I. See, e.g., State v. Gordon, 270 N.C. App. 468, 469, 840
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S.E.2d 907, 908 (2020), remanded by 379 N.C. 670, 865 S.E.2d 852 (2021); State v.
Griffin, 270 N.C. App. 98, 106, 840 S.E.2d 267, 273 (2020), remanded by 379 N.C. 671,
865 S.E.2d 849 (2021); Hutchens, 272 N.C. App. at 160-61, 846 S.E.2d at 310-11. For
example, the majority opinion set forth factors to be considered in determining
whether SBM is reasonable under the totality of the circumstances, including an
offender’s “legitimate” and not “greatly diminished” privacy interests and SBM’s
“substantial” and “deep, if not unique, intrusion” into them, as weighed against the
State’s “without question legitimate” interest in monitoring sex offenders. Grady III,
372 N.C. at 527, 534, 538, 543-44, 831 S.E.2d at 557, 561, 564, 568.
¶ 18 Two years after Grady III, in Hilton, a case involving a defendant whose sex
offenses fit the legal category of “aggravated,” our Supreme Court narrowly construed
Grady III’s holding:
[T]his Court held the SBM program to be unconstitutional
as applied to the narrow category of individuals “who are
subject to mandatory lifetime SBM based solely on their
status as a statutorily defined ‘recidivist’ who have
completed their prison sentences and are no longer
supervised by the State through probation, parole, or post-
release supervision.” State v. Grady (Grady III), 372 N.C.
509, 522, 831 S.E.2d 542, 553 (2019) (footnote omitted).
Our Grady III decision, however, left unanswered the
question of whether the SBM program is constitutional as
applied to sex offenders who are in categories other than
that of recidivists who are no longer under State
supervision.
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State v. Hilton, 378 N.C. 692, 2021-NCSC-115, ¶ 2.3 Disregarding much of the
reasoning provided in Grady III, in Hilton, our Supreme Court held “the SBM statute
as applied to aggravated offenders is not unconstitutional” because the “search
effected by the imposition of lifetime SBM on the category of aggravated offenders is
reasonable under the Fourth Amendment.” Id. ¶ 36.4
¶ 19 Hilton does not remove the requirement of a reasonableness hearing
altogether. As in cases challenging pre-trial searches as violating the Fourth
Amendment, trial courts must continue to conduct reasonableness hearings before
ordering SBM unless a defendant waives his or her right to a hearing or fails to object
to SBM on this basis. See State v. Ricks, 378 N.C. 737, 2021-NCSC-116, ¶ 10 (“Absent
an objection, the trial court was under no constitutional requirement to inquire into
3 The Supreme Court has remanded several SBM decisions by this Court for
reconsideration in lieu of Hilton’s interpretation of Grady III. See, e.g., State v. Anthony, 379
N.C. 668, 865 S.E.2d 851 (2021) (remanding to this Court “to reconsider its holding in light
of State v. Hilton, 378 N.C. 692, 2021-NCSC-115, 862 S.E.2d 806, and State v. Strudwick,
2021-NCSC-127, 864 S.E.2d 231, as well as the General Assembly’s recent amendments to
the satellite-based monitoring program”); State v. Cooper, 379 N.C. 669, 865 S.E.2d 855(2021) (same); State v. Gordon, 379 N.C. 670, 865 S.E.2d 852 (2021) (same); State v. Griffin,
379 N.C. 671, 865 S.E.2d 849 (2021) (same); State v. O’Kelly, 379 N.C. 673, 865 S.E.2d 851(2021) (same).
4 To date, the Supreme Court and this Court have applied Hilton’s per se
reasonableness determination to SBM orders in cases where defendants have been convicted
of an aggravated offense. See, e.g., State v. Strudwick, 379 N.C. 94, 2021-NCSC-127, ¶ 20
(declining to follow Grady III and applying Hilton because the defendant was convicted of an
aggravated offense); State v. McCauley, 2022-NCCOA-80, ¶ 10 (unpublished) (affirming the
imposition of satellite-based monitoring for a period of ten years following an aggravated
offender’s release from incarceration).
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the reasonableness of imposing SBM.”).
¶ 20 Since the trial court imposed lifetime SBM in this case and Defendant objected
on constitutional grounds, the trial court was required to consider whether the
monitoring was constitutional under the Fourth Amendment. Grady I, 575 U.S. at
310, 191 L. Ed. 2d at 462. Contrary to Defendant’s assertion, the record reveals the
trial court grappled with North Carolina’s rapidly evolving jurisprudence on this
issue, conducted a hearing regarding the facts and applicable law, and weighed the
State’s interests against Defendant’s expectation of privacy. The trial court heard
testimony from the State’s witness about Defendant’s 2002 sex offense conviction as
evidence of his recidivism. It reviewed Defendant’s STATIC-99 assessment, which
rated Defendant an “average risk” to reoffend. It further considered how Defendant’s
prior sex offender registration had proved ineffective to deter his conduct or protect
public safety. Finally, the trial court measured Defendant’s sex offender registry
violations, including repeatedly going onto school property while registered. In
particular, the trial court balanced Defendant’s “long-standing and persistent
tendency” for sexual abuse, his disposition as a reoffender, and his sex offender
registry violations, against the State’s interest in protecting the public from a
recidivist sex offender. Following this fact-specific analysis, the trial court concluded
SBM was reasonable as applied to Defendant.
¶ 21 We now review the trial court’s determination de novo. Gambrell, 265 N.C.
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App. at 642, 828 S.E.2d at 750.
2. Fourth Amendment Reasonableness Analysis in this Case
¶ 22 The trial court found Defendant was a recidivist. Because Defendant is a
recidivist, the trial court was required to order Defendant to “enroll in satellite-based
monitoring for the duration of his post-release supervision” and the duration of his
natural life. N.C. Gen. Stat. §§ 15A-1368.4(b1)(6), 14-208.40A(c) (2019) (“If the court
finds that the offender . . . is a recidivist, the court shall order the offender to enroll
in a satellite-based monitoring program for life.” (emphasis added)). However, during
the pendency of this appeal, our legislature amended the SBM statutes, in part, to
create an avenue by which Defendant may petition a superior court to terminate his
monitoring after ten years of enrollment. An Act . . . to Address Constitutional Issues
with Satellite-Based Monitoring, S.L. 2021-138, § 18(i) (“If the petitioner has been
enrolled in the satellite-based monitoring program for more than 10 years, the court
shall order the petitioner’s requirement to enroll in the satellite-based monitoring
program be terminated.” (emphasis added)) and S.L. 2021-182, § 2(e) (collectively to
be codified at N.C. Gen. Stat. § 14-208.46). Therefore, we consider the reasonableness
of Defendant’s SBM within the parameters of not only recent Supreme Court
precedent but also the amended statutes.
a. Intrusion upon Defendant’s Privacy Interests
¶ 23 An offender subject to post-release supervision has a diminished privacy
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expectation. See Samson v. California, 547 U.S. 843, 844, 165 L. Ed. 2d 250, 254
(2006) (“An inmate electing to complete his sentence out of physical custody remains
in the Department of Corrections’ legal custody for the remainder of his term and
must comply with the terms and conditions of his parole. The extent and reach of
those conditions demonstrate that parolees have severely diminished privacy
expectations by virtue of their status alone.”); Hilton, ¶ 29 (“SBM is clearly
constitutionally reasonable during a defendant’s post-release supervision period.”);
§ 15A-1368.4(b1)(6) (mandating SBM as a condition of post-release supervision for
recidivists). So SBM as a condition of Defendant’s 60-month period post-release
supervision is constitutional. Cf. Grady III, 372 N.C. at 546, 831 S.E.2d at 569-70
(“Our holding is as-applied in the sense that it addresses the current implementation
of the SBM program and does not enjoin all of the program’s applications or even all
applications of the specific statutory provision we consider here (authorizing lifetime
SBM based on a finding that an individual is a recidivist) because this provision is
still enforceable against a recidivist during the period of his or her State
supervision[.]”).
¶ 24 Our Supreme Court’s decision in Hilton concluded that for aggravated
offenders, “the imposition of lifetime SBM causes only a limited intrusion into [the]
diminished privacy expectation.” Hilton, ¶ 36. Defendant is not in the same
statutorily-defined category of “aggravated offender” as the offender in Hilton. And
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because he has not completed his prison sentence and post-release supervision period,
he does not fit neatly into Grady III’s limited category of “recidivist”5 not otherwise
subject to State supervision in the form of imprisonment, post-release supervision,
parole, or probation. See Grady III, 372 N.C. at 545, 831 S.E.2d at 568. Yet, because
the trial court enrolled Defendant in SBM solely because of his status as a recidivist,
we look to Grady III for guidance about the intrusion upon Defendant’s privacy
interests.
¶ 25 Grady III held recidivists “do not have a greatly diminished privacy interest in
their bodily integrity or their daily movements merely by being also subject to the
civil regulatory requirements that accompany the status of being a sex offender. The
SBM program constitutes a substantial intrusion into those privacy interests . . . [.]”
Id. at 544-45, 831 S.E.2d at 568. As in Grady III, lifetime monitoring of Defendant
in this case constitutes a substantial intrusion into his not greatly diminished privacy
interests well beyond the period of his post-release supervision. However, the
opportunity to be freed from monitoring after a period of ten years renders SBM,
while still serious, something less than the “substantial intrusion” identified in Grady
III.
5 Amendments to the SBM statutes also replace “recidivist” with “reoffender,” defining
a reoffender as, “A person who has two or more convictions for a felony that is described in
G.S. 14-208.6(4).” S.L. 2021-138, § 18(b) (amending N.C. Gen. Stat. § 14-208.6 (2021)).
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b. State’s Interests in SBM
¶ 26 Next, we consider the State’s interests in monitoring Defendant. In Hilton, the
Supreme Court acknowledged the paramount purpose of the SBM program to protect
the public from sex crimes, Hilton, ¶ 42, but it distinguished the State’s interest in
monitoring recidivists from its interest in monitoring aggravated offenders:
[W]e opined in Grady III that the State’s “interests [in
protecting the public through SBM] are without question
legitimate.” Grady III, 372 N.C. at 543, 831 S.E.2d at 568.
There, however, our analysis applied only to the recidivist
category. Id. at 522, 831 S.E.2d at 553. Notably, we made
the following observation regarding the recidivist category:
[l]ifetime monitoring for recidivists is
mandated by our statute for anyone who is
convicted of two sex offenses that carry a
registration requirement. A wide range of
different offenses are swept into this category.
For example, a court is required to impose
lifetime SBM on an offender who twice
attempts to solicit a teen under the age of
sixteen in an online chat room to meet with
him, regardless of whether the person
solicited was actually a teen or an undercover
officer, or whether any meeting ever
happened.
Id. at 544, 831 S.E.2d at 568. Unlike the recidivist
category, the aggravated offender category applies only to
a small subset of individuals who have committed the most
heinous sex crimes.
Id. ¶ 21. The Court further explained, “after our decision in Grady III, the three
categories of offenders who require continuous lifetime SBM to protect public safety
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are (1) sexually violent predators, (2) aggravated offenders, and (3) adults convicted
of statutory rape or a sex offense with a victim under the age of thirteen.” Id. ¶ 23
(footnote omitted).
¶ 27 In this case, Defendant was convicted of committing sex offenses against a
child under the age of thirteen. So we must follow the Supreme Court’s holding in
Hilton that he requires continuous lifetime SBM to protect public safety. Id.
c. Efficacy of SBM
¶ 28 Relying on the same study our General Assembly included as a legislative
finding in its recent amendments to the State’s SBM program, the Supreme Court in
Hilton relieved the State of its burden to demonstrate the efficacy of SBM in
promoting the State’s interests on an individualized basis and concluded SBM is
generally effective in reducing recidivism. Id. ¶ 28 (“These studies demonstrate that
SBM is efficacious in reducing recidivism. Since we have recognized the efficacy of
SBM in assisting with the apprehension of offenders and in deterring recidivism,
there is no need for the State to prove SBM’s efficacy on an individualized basis.)”.6
6 We note the tension between our Supreme Court’s reliance on a legislative finding
in Hilton and the Court’s previous descriptions of legislative findings. See Hest Techs., Inc.
v. State ex rel. Perdue, 366 N.C. 289, 294, 749 S.E.2d 429, 433 (2012) (opining that legislative
findings “have no magical quality to make valid that which is invalid” (citation omitted));
Martin v. N.C. Hous. Corp., 277 N.C. 29, 44, 175 S.E.2d 665, 673 (1970) (explaining legislative
findings are entitled to limited deference in determining the constitutionality of legislative
amendments). See also Jamie Markham, UNC Sch. of Gov’t, Revisions to North Carolina’s
Satellite-Based Monitoring Law, (Oct. 11, 2021) https://nccriminallaw.sog.unc.edu/revisions-
to-north-carolinas-satellite-based-monitoring-law/.
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¶ 29 Hilton compels us to conclude that the State was not required to present
further evidence of the efficacy of SBM monitoring in this case “because the SBM
program serves a legitimate government interest.” Id. ¶ 29.
d. Totality of the Circumstances
¶ 30 Considering the totality of the circumstances, we weigh SBM’s serious
intrusion into Defendant’s not “greatly diminished privacy interest,” Grady III, 372
N.C. at 543, 831 S.E.2d at 568, against the State’s paramount interest in protecting
the public through lifetime monitoring of offender’s convicted of a sexual offense with
a child under the age of thirteen and the declared efficacy of SBM in promoting those
interests, Hilton, ¶¶ 23, 28, in the context of our recently amended and enacted SBM
statutes. We are compelled by the Supreme Court’s holding in Hilton to hold the
search of Defendant as imposed is reasonable and therefore constitutional under the
Fourth Amendment. We affirm the trial court’s order in this regard.
C. Trial Court’s Authority to Order a Second Reasonableness Hearing
¶ 31 Defendant also contends the trial court was without statutory authority and
jurisdiction to order Defendant to appear for a second SBM hearing after completing
his prison sentence. We agree, in part.
¶ 32 Assuming arguendo Defendant is aggrieved by this portion of the trial court’s
order, our “SBM statutes do not provide for reassessment of [a] defendant’s SBM
eligibility based on the same reportable conviction, after the initial SBM
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determination is made based on that conviction.” State v. Clayton, 206 N.C. App. 300,
305-06, 697 S.E.2d 428, 432 (2010). Section 14-208.40A of our General Statutes
provides:
(a) When an offender is convicted of a reportable conviction
as defined by G.S. 14-208.6(4), during the sentencing phase,
the district attorney shall present to the court any evidence
that (i) the offender has been classified as a sexually violent
predator pursuant to G.S. 14-208.20, (ii) the offender is a
reoffender, (iii) the conviction offense was an aggravated
offense, (iv) the conviction offense was a violation of G.S.
14-27.23 or G.S. 14-27.28, or (v) the offense involved the
physical, mental, or sexual abuse of a minor.
...
(c) If the court finds that the offender has been classified as
a sexually violent predator, is a reoffender, has committed
an aggravated offense, or was convicted of G.S. 14-27.23 or
G.S. 14-27.28, the court shall order the offender to enroll in
a satellite-based monitoring program for life.
N.C. Gen. Stat. § 14-208.40A (a),(c) (2021) (emphasis added). Section 14-208.40B
provides a different mechanism for the trial court to hold an SBM hearing only when
there is no previous determination that the offender enroll in SBM. Id. § 14-
208.40B(a) (2021) (“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 . . . .”) (emphasis
added)); see also State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432-33 (2009)
(holding Section 14-208.40B(a) “applies in cases in which the offender has been
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convicted of an applicable conviction and the trial court has not previously
determined whether the offender must be required to enroll in SBM”).
¶ 33 Here, the trial court ordered Defendant enroll in SBM during the sentencing
phase pursuant to Section 14-208.40A based on his reportable 10 February 2020 sex
offense convictions. The trial court did not have statutory authority to require
another reasonableness hearing at the end of Defendant’s active sentence or make a
second eligibility determination by the mechanism provided in Section 14-208.40B
based on those same convictions. Clayton, 206 N.C. App. at 305-06, 697 S.E.2d at
432.
¶ 34 However, SBM is a “civil, regulatory scheme,” State v. Bowditch, 364 N.C. 335,
352, 700 S.E.2d 1, 13 (2010), and the trial court maintains continuing jurisdiction
over its civil actions. N.C. Gen. Stat. § 7A-20 (2021) (“[O]riginal general jurisdiction
of all justiciable matters of a civil nature cognizable in the General Court of Justice
is vested in the aggregate in the superior court division and the district court division
as the trial divisions of the General Court of Justice.”). The trial court also retains
authority to modify its own civil judgments. See Hilton, ¶ 34 (“Since the SBM
program is civil in nature, the North Carolina Rules of Civil Procedure govern. As
such, a defendant may also seek removal of SBM[.]” (citing N.C. Gen. Stat. § 1A-1,
Rule 60(b)(6) (2019)). For example, as noted above, the legislature has created an
avenue by which an offender who has been enrolled in SBM for a period of more than
STATE V. CARTER
2022-NCCOA-262
Opinion of the Court
ten years may petition the superior court to have their monitoring terminated. S.L.
2021-138, § 18(i) and 2021-182 § 2(e) (to be codified at § 14-208.46).
¶ 35 We vacate the portion of the trial court’s order requiring a second
reasonableness hearing after Defendant’s release. Our holding does not otherwise
affect the trial court’s continuing authority to amend or modify its own orders or
Defendant’s ability to petition the trial court for modification or termination pursuant
to our statutes.
III. CONCLUSION
¶ 36 For the reasons set forth above, we affirm the trial court’s SBM order in part
and vacate the portion which orders a second SBM hearing after Defendant’s release.
AFFIRMED IN PART; VACATED IN PART.
Chief Judge STROUD and Judge GORE concur.