State v. Wagoner, Satellite-Based Monitoring, and the Ex Post Facto Issue Revisited

Last week the court of appeals decided State v. Wagoner, its latest case involving satellite-based monitoring (SBM) of sex offenders. Mr. Wagoner, who had previously been convicted of multiple reportable sex crimes in 1996, pled no contest to another one (indecent liberties with a child) in 2005. He received a suspended sentence for the 2005 conviction, but he violated the conditions of his probation and went to prison to serve his 20-24 month sentence. After he was released from prison, DOC called him to court for a satellite-based monitoring determination hearing under G.S. 14-208.40B - a bring-back hearing. At the hearing the court found him to be a recidivist and ordered SBM for life. On appeal, Mr. Wagoner argued that the court's order (1) ran afoul of constitutional prohibitions against ex post facto punishment, (2) violated double jeopardy principles, and (3) amounted to a breach of his plea bargain with the State. The court of appeals disagreed, affirming the trial court. To the extent that it echoes the court's prior decision in State v. Bare, Wagoner doesn't break much new ground. The court concluded - largely through the use of about three pages of blocked quotation from Bare - that the General Assembly did not intend for SBM to be a criminal sanction, and that the regime is not so punitive in purpose or effect to negate the legislature's intent to deem it civil. Just as it did in Bare, the court noted a lack of evidence in the record on [...]