I’m Ready to Conduct a Satellite Monitoring Determination Hearing . . . Now What?

Regular readers know the court of appeals has decided a lot of cases recently dealing with satellite-based monitoring (SBM) of sex offenders. Though many issues remain undecided, my sense is that some of the districts that were postponing SBM hearings to allow the appellate courts to weigh in on a few things are now moving forward with the backlog of offenders who may require monitoring. Their question now is, what should the hearing look like? The hearing procedure is set out in G.S. 14-208.40A (for hearings conducted at sentencing) and G.S. 14-208.40B (for "bring-back hearings," when no determination was made at sentencing). I read the provision in the bring-back hearing section (G.S. 14-208.40B(c)) saying the "court shall hold the hearing and make findings of fact pursuant to G.S. 14-208.40A" to incorporate by reference the procedure for hearings conducted at sentencing. In other words, determination hearings conducted at sentencing and bring-back hearings should look pretty much the same. I won't go through the statutes line by line, but I wanted to touch on some of the recurring issues. First, there's the question of what evidence the court can consider in determining whether an offense was "aggravated." An aggravated offense, you'll recall, is one that includes vaginal, anal, or oral penetration, either by force or with a victim under 12 years old. G.S. 14-208.6(a1). The issue comes up a lot, usually when there's evidence (perhaps in a police report) that the defendant committed a penetrative act but ultimately pled guilty to indecent liberties [...]