Opinion
No. COA10-418
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgment entered 30 September 2009 by Judge Ripley E. Rand in Guilford County Superior Court. Heard in the Court of Appeals 29 September 2010.
Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant.
Guilford County Nos. 09 CRS 82899, 09 CRS 82900, 09 CRS 86302.
Defendant Ray Kennedy Roseboro appeals from the judgment entered after he pled guilty to attempted second degree sexual offense. Defendant contends that the State improperly enrolled him in lifetime sex offender registration and satellite-based monitoring because the crime of attempted sexual offense is not an aggravated offense under N.C. Gen. Stat. § 14-208.6(1a) (2009). We agree and, accordingly, vacate and remand.
Facts
Defendant entered into a plea agreement pursuant to which he pled guilty to attempted second degree sexual offense, assault on a female, breaking and entering, and larceny after breaking and entering. In exchange, the State dismissed charges of possession of stolen goods and conspiracy to commit breaking and entering. In accordance with the plea agreement, the trial court, on 30 September 2009, sentenced defendant to a mitigated-range sentence of 42 to 60 months imprisonment.
At the same hearing, the trial court addressed whether defendant should be required to register as a sex offender and to enroll in satellite-based monitoring ("SBM") based on the attempted second degree sexual offense charge. The prosecution made no argument that defendant should be enrolled in SBM and presented no additional evidence during defendant's SBM hearing. Counsel for defendant argued that lifetime registration and SBM enrollment were improper because attempted second degree sexual offense is not an aggravated offense as required by N.C. Gen. Stat. § 14-208.6(1a).
At the conclusion of the SBM hearing, the trial court determined, based on the factual basis presented by the State in support of defendant's plea, that the conviction constituted an aggravated offense under N.C. Gen. Stat. § 14-208.6(1a). It, therefore, ordered defendant to register as a sex offender and enroll in SBM for the duration of his natural life.
Defendant did not file written notice of appeal of the trial court's registration and SBM decision, but rather only gave oral notice of appeal. Defendant subsequently filed a petition for writ of certiorari seeking review of the trial court's order.
I
Defendant filed his brief with this Court on 12 May 2010. Six days later, on 18 May 2010, this Court filed its opinion in State v. Brooks, ___ N.C. App. ___, 693 S.E.2d 204 (2010), which 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)). Three days later, on 21 May 2010, defendant filed his petition for writ of certiorari pursuant to Rule 21 of the Rules of Appellate Procedure.
The defendant in Brooks also failed to give written notice of appeal pursuant to N.C.R. App. P. 3(a). Brooks, ___ 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 timing of the filing of this case, we exercise our discretion to allow defendant's petition for writ of certiorari.
II
Defendant argues that the trial court improperly ordered lifetime sex offender registration and SBM because the court based that decision on an evidence-based or fact-based test in deciding whether defendant had been convicted of an aggravated offense as defined in N.C. Gen. Stat. § 14-208.6(1a). Defendant contends that the trial court should instead have considered only the elements of the crime to which defendant pled guilty.
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) (2009):
If 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.
In this case, the issue is whether defendant committed an aggravated offense. An "aggravated offense" is
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.
N.C. Gen. Stat. § 14-208.6(1a).
The trial court concluded defendant committed an aggravated offense based on the facts underlying defendant's guilty plea. The court explained: "Based upon my reading of 14-208.40 with respect to the Court's responsibility of — excuse me 14-208.40A, that the Court must weigh all of the evidence in the matter, and the Court finds that an evidence-based or facts-based test is an appropriate way to address the aggravated offense rather than an elements-based test, and I'll note your objection and exception to that ruling for the record, [defense counsel]."
As the State concedes, however, in State v. Davison, ___ N.C. App. ___, 689 S.E.2d 510 (2009), disc. review denied, ___ N.C. ___, 703 S.E.2d 738 (2010), this Court concluded that the approach adopted by the trial court in this case is not consistent with N.C. Gen. Stat. § 14-208.40A. Instead, "when making a determination pursuant to N.C.G.S. § 14-208.40A, the trial court is only to consider 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." Davison, ___ N.C. App. at ___, 689 S.E.2d at 517 (vacating trial court's order enrolling defendant in lifetime SBM for conviction of attempted sexual offense). Accord State v. Phillips, ___ N.C. App. ___, ___, 691 S.E.2d 104, 106 (reversing order of lifetime SBM enrollment for conviction of indecent liberties with child), disc. review denied, 364 N.C. 439, 702 S.E.2d 794 (2010); State v. Singleton, ___ N.C. App. ___, ___, 689 S.E.2d 562, 567 (reversing order requiring defendant, who was convicted of indecent liberties with child, to enroll in lifetime SBM), disc. review improvidently allowed, 364 N.C. 418, 700 S.E.2d 226 (2010).
The State candidly "acknowledges that the trial court's placement of the Defendant on lifetime SBM is contrary to this Court's decision in [ Davison and Singleton]." Further, the State does not dispute that the elements of attempted second degree sexual offense do not meet the definition of an "aggravated offense." See Davison, ___ N.C. App. at ___, 689 S.E.2d at 515 (holding that "while a completed first-degree sexual offense would be an aggravated offense, an attempted first-degree sexual offense is not an aggravated offense").
We must, therefore, vacate the trial court's order requiring defendant to enroll in SBM for his natural life. Because the trial court specifically found that defendant has not been classified as a sexually violent predator and is not a recidivist, we must remand for a further determination of defendant's SBM eligibility pursuant to the procedure set forth in N.C. Gen. Stat. § 14-208.40A. See Davison, ___ N.C. App. at ___, 689 S.E.2d at 517 ("Because the trial court failed to follow the required sentencing procedure, we vacate its order requiring Defendant to enroll in an SBM program for life and remand for a determination of Defendant's SBM eligibility pursuant to the procedure set forth in N.C.G.S. § 14-208.40A, as discussed herein."). Moreover, the trial court's findings also require that we "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." Phillips, ___ N.C. App. at ___, 691 S.E.2d at 108.
Vacated and remanded.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).