Opinion
No. COA10-665
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgments entered 13 April 2009 by Judge Kevin M. Bridges in Iredell County Superior Court. Heard in the Court of Appeals 4 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State. Kevin P. Bradley for defendant-appellant.
Iredell County Nos. 02 CRS 58743-44, 02 CRS 28749, 02 CRS 58760-61, 02 CRS 58770-71, 09 CRS 2065.
The trial court ordered that defendant Karl Goble register as a sex offender and enroll in satellite-based monitoring ("SBM") for the remainder of his natural life. We agree with defendant that the trial court erred in its application of the pertinent statutes and hold that, under controlling precedent, the trial court erred in ordering lifetime registration and lifetime enrollment in SBM. We, therefore, vacate the registration and SBM orders and remand for further proceedings in accordance with the applicable statutes.
Facts
On 15 December 2 003, defendant was indicted for six counts of sexual activity by a substitute parent, in violation of N.C. Gen. Stat. § 14-27.7(a) (2009), and four counts of first degree sexual exploitation of a minor, in violation of N.C. Gen. Stat. § 14-190.16 (2009). Subsequently, on 6 April 2009, defendant was also indicted for one count of disseminating obscenity to a minor, in violation of N.C. Gen. Stat. § 14-190.1(a)(2) (2009).
On 13 April 2009, defendant entered an Alford plea to these charges. Defendant agreed that there were facts supporting the plea and consented to the prosecutor's summarizing evidence related to the factual basis. The prosecutor explained that on several occasions throughout April, May, and June 2000, defendant engaged in cunnilingus and fellatio with his minor stepdaughter, "Amanda." Between January and August 2001, defendant permitted Amanda and her boyfriend to engage in cunnilingus and fellatio together multiple times in the presence of defendant and Amanda's mother and for "the purpose of producing material making a visual representation depicting this activity." In addition, at some point between August 1999 and June 2002, defendant and Amanda's mother engaged in vaginal intercourse in Amanda's presence, and defendant instructed Amanda to videotape the encounter.
The pseudonym of "Amanda" is used to protect the privacy of the victim and for ease of reading.
After accepting defendant's plea, the court consolidated the first degree sexual exploitation of a minor counts and imposed a presumptive-range active term of 73 to 97 months imprisonment. The court also consolidated the sexual activity by a substitute parent counts (identified on the judgment as sex offense — parental role) and imposed a presumptive-range active term of 29 to 44 months imprisonment, to run consecutive to the sexual exploitation sentence. As to the disseminating obscenity count, the court imposed a presumptive-range term of six to eight months but suspended the sentence and ordered defendant to be placed on 36 months supervised probation commencing upon completion of his active sentence.
In each of the three judgments, the trial court found that the specified offenses constituted "reportable conviction[s]" as defined in N.C. Gen. Stat. § 14-208.6 (2009). The court further found that defendant had not been classified as a sexually violent predator under N.C. Gen. Stat. § 14-208.20 (2009) or as a recidivist under N.C. Gen. Stat. § 14-208.6. The trial court, however, found that each of the offenses was an "aggravated offense" and an "offense against a minor" within the meaning of N.C. Gen. Stat. § 14-208.6.
In addition, in connection with each judgment, the trial court entered a form order (Judicial Findings and Order as to Satellite-Based Monitoring for Sex Offenders — Lifetime Monitoring). The order found for each offense that defendant "was convicted of a reportable conviction as defined by G.S. 14-208.6(4) and is required to register under Part 3 of Article 27A of Chapter 14 of the General Statutes because the defendant is classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense as those terms are defined in G.S. 14-208.6." Based on that finding, each order concluded that defendant was required to enroll in an SBM program for his natural life. Defendant gave oral notice of appeal at the conclusion of the SBM hearing.
Discussion
We first address the issue of appellate jurisdiction. Defendant gave oral notice of appeal on 13 April 2009. More than a year later, on 18 May 2010, this Court filed its opinion in State v. Brooks, N.C. App., 693 S.E.2d 204 (2010), and held that, because the SBM program is a civil regulatory scheme and not a criminal punishment, "a defendant must give notice of appeal pursuant to N.C.R. App. P. 3(a) as is proper `in a civil action or special proceeding[.]'" Id. at, 693 S.E.2d at 206 (quoting N.C.R. App. P. 3(a)). Rule 3(a) of the Rules of Appellate Procedure requires that a party "fil[e] notice of appeal with the clerk of superior court and serv[e] copies thereof upon all other parties. . . ."
Although appellate entries were signed 13 April 2009, it appears from the record that the transcript was not requested by the clerk until 23 November 2009, and counsel was not appointed until 30 December 2009.
Because defendant only gave oral notice of appeal, we lack jurisdiction. Defendant has, however, requested that we review his appeal pursuant to a petition for writ of certiorari under Rule 21 of the Rules of Appellate Procedure. In Brooks, the defendant likewise failed to give written notice of appeal pursuant to N.C.R. App. P. 3(a). ___ N.C. App. at ___, 693 S.E.2d at 206. This Court, however, granted the defendant's petition for writ of certiorari in the interest of justice. Id. at ___, 693 S.E.2d at 206. In light of the similarity between the current case and Brooks, and the fact that Brooks was decided more than a year after defendant attempted to appeal, we exercise our discretion to allow defendant's petition for writ of certiorari, and we address the merits of his appeal.
In order for a defendant to be required to register as a sex offender or enroll in SBM, he must have a "[r]eportable conviction" as defined by N.C. Gen. Stat. § 14-208.6(4). See N.C. Gen. Stat. § 14-208.7(a) (2009) (sex offender registration); N.C. Gen. Stat. § 14-208.40A (2009) (SBM). N.C. Gen. Stat. § 14-208.6(4) provides, in pertinent part, that "[r]eportable conviction" includes "[a] final conviction for an offense against a minor, a sexually violent offense, or an attempt to commit any of those offenses unless the conviction is for aiding and abetting."
Defendant first contends that the trial court erred in determining that his conviction for disseminating obscenity constituted a reportable conviction. The State concedes and we agree that the offense of disseminating obscenity does not fall within the definition of a "[r]eportable conviction" set out in N.C. Gen. Stat. § 14-208.6(4). The trial court, therefore, erred in concluding that defendant could be required to register as a sex offender and enroll in SBM based on his conviction for disseminating obscenity.
Defendant next challenges the trial court's finding that defendant's convictions for first degree sexual exploitation of a minor, sexual offense in a parental role, and disseminating obscenity were "offenses against a minor" for purposes of sex offender registration and SBM. N.C. Gen. Stat. § 14-208.6(1m) defines an "[o]ffense against a minor" as:
any of the following offenses if the offense is committed against a minor, and the person committing the offense is not the minor's parent: G.S. 14-39 (kidnapping), G.S. 14-41 (abduction of children), and G.S. 14-43.3 (felonious restraint). The term also includes the following if the person convicted of the following is not the minor's parent: a solicitation or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.
Since none of defendant's offenses are included in this definition, the trial court also erred, as the State concedes, in concluding that defendant committed offenses against a minor as defined in N.C. Gen. Stat. § 14-208.6.
Nevertheless, defendant's convictions of first degree sexual exploitation of a minor, N.C. Gen. Stat. § 14-190.16, and sexual offense in a parental role, N.C. Gen. Stat. § 14-27.7(a), constitute sexually violent offenses as defined by N.C. Gen. Stat. § 14-208.6(5). The trial court did, therefore, properly conclude that defendant had reportable convictions for purposes of sex offender registration and the SBM program.
The trial court, in ordering that the sex offender registration and enrollment in SBM should be for defendant's lifetime, concluded that his convictions for first degree sexual exploitation and sexual offense in a parental role constituted "aggravated offenses." Under N.C. Gen. Stat. § 14-208.23 (2009), if a sex offender is a recidivist, convicted of an aggravated offense, or is classified as a sexually violent predator, he is required to maintain sex offender registration for the rest of his natural life. Additionally, under N.C. Gen. Stat. § 14-208.40A(c):
[i]f the court finds that the offender has been classified as a sexually violent predator, is a recidivist, has committed an aggravated offense, or was convicted of G.S. 14-27.2A or G.S. 14-27.4A, the court shall order the offender to enroll in a satellite-based monitoring program for life.
N.C. Gen. Stat. § 14-208.6(1a) defines an aggravated offense as "any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old."
It appears that the trial court based its finding that defendant had committed an aggravated offense as defined in N.C. Gen. Stat. § 14-208.6(1a) on the factual basis presented by the State in support of defendant's guilty plea. Defendant argues that the trial court was instead required to consider only the elements of the crimes of which he was convicted and that the trial court, therefore, erred in concluding that his convictions were aggravated offenses.
The State acknowledges that State v. Davison, ___ N.C. App. ___, 689 S.E.2d 510 (2009), disc. review denied, ___ N.C. ___, 703 S.E.2d 738 (2010), is controlling as to this issue. In Davison, this Court explained that "when making a determination pursuant to N.C.G.S. § 14-208.40A, the trial court is to consider only the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction." Id. at ___, 689 S.E.2d at 517 (emphasis added). The Court, therefore, held that the trial court had erred in considering the defendant's plea colloquy in determining that the defendant had committed an aggravated offense. Id. at ___, 689 S.E.2d at 517.
In Davison, after considering the elements of the defendant's offenses, rather than the underlying facts, the Court concluded that neither attempted first degree sexual offense nor indecent liberties with a child could constitute aggravated offenses. Id. at ___, 689 S.E.2d at 516. As to the former, attempted sexual offense, there was no completed sexual act as required by the definition of "aggravated offense" and, as to the latter, the elements of indecent liberties do not "require" any of the elements set out in the definition of an aggravated offense. Id. at ___, 689 S.E.2d at 516. Accord State v. Singleton, ___ N.C. App. ___, ___, 689 S.E.2d 562, 567 (relying on Davison and rejecting State's argument that facts of underlying reportable conviction as presented at SBM hearing, rather than only statutory elements of crime for which defendant was convicted, could warrant finding of aggravated offense), disc. review improvidently allowed, 364 N.C. 418, 700 S.E.2d 226 (2010).
Here, as in Davison, the elements of defendant's offenses of first degree sexual exploitation and sexual offense in a parental role do not require proof of any of the factors set out in N.C. Gen. Stat. § 14-208.6(1a). We must, therefore, vacate the trial court's order that defendant register as a sex offender and enroll in the SBM program for the duration of his lifetime. We remand for the trial court to make a determination of the defendant's SBM eligibility pursuant to the procedure set forth in N.C. Gen. Stat. § 14-208.40A (d), (e) . Davison, N.C. App. at ___, 689 S.E.2d at 517. See also State v. Phillips, N.C. App. ___, ___, 691 S.E.2d 104, 108 (holding that reversal of lifetime SBM order required that Court "conclude that the trial court's order requiring defendant to register as a sex offender for the duration of his natural life is also in error"), disc. review denied, 364 N.C. 439, 702 S.E.2d 794 (2010) .
Vacated and remanded.
Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).