Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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Criminal Procedure > Sex Offenders > Satellite-Based Monitoring (SBM) > Highest Level of Supervision and Monitoring
In this Catawba County case, the defendant pled guilty to five counts of indecent liberties with a minor in lieu of other related charges, including possession of child pornography and other sexual assaults on children. The State argued for the imposition of satellite-based monitoring (“SBM”), pointing to the factual bases for the pleas and a STATIC-99R assessment finding the defendant to be “Average Risk.” The trial court ordered the defendant to enroll in SBM for a term of ten years following his release from prison. The defendant sought certiorari review, arguing the trial court erred by ordering SBM, that the State failed to demonstrate that SBM was reasonable under State v. Grady, 372 N.C. 509 (2019), and that his trial counsel was ineffective for failing to raise a constitutional challenge to the SBM order.
(1) In addition to the factual bases and the STATIC-99R, the trial court found that the defendant assaulted several children of both genders, that those children were between 6 and 14 years old, and that the defendant abused a position of trust to facilitate the assaults. These findings were supported by the evidence: “The unobjected to evidence, that Defendant admitted as part of his plea bargain, provides competent evidence to support [these] additional findings.” Blankenship Slip op. at 7. These findings and the STATIC-99R also supported a finding that the defendant “require[d] the highest possible level of supervision,” warranting imposition of SBM. Id. at 8. The trial court properly considered the context of the offenses, and the additional findings were related to the defendant’s likely recidivism and were not duplicative of the STATIC-99R. The trial court did not therefore err in ordering the defendant to enroll in SBM.
(2) The defendant did not object or raise any challenge to the imposition of SBM for a term at the time of the order. Any constitutional objection was therefore unpreserved: “The defendant did not raise a constitutional issue before the trial court, cannot raise it for the first time on appeal, and has waived this argument on appeal.” Id. at 13. The court declined to invoke Rule 2 of the Rules of Appellate Procedure to review the unpreserved issue and dismissed the claim.
(3) The court likewise rejected any alleged ineffective assistance of counsel claim in the SBM context: “Our Court has held ‘hearings on SBM eligibility are civil proceedings.’. . .[and ineffective assistance of counsel] claims are not available in civil appeals such as that form an SBM eligibility hearing.” Id. at 14. This claim was also dismissed, and the trial court’s judgments were unanimously affirmed.
As conceded by the State, the trial court erred by ordering the defendant to enroll in SBM. The Static-99 risk assessment of “Moderate-Low” without additional findings by the trial court was insufficient to support the trial court’s conclusion that the defendant requires the highest level of supervision and monitoring.
The trial court erred by imposing satellite-based monitoring for a period of thirty years due to a violation of G.S. 14-208.40A. Here, the Static-99 revealed a risk assessment of four points, which translated into a “Moderate-High” risk category. Pursuant to existing law, the “Moderate-High” risk category is insufficient to support a finding that the highest possible level of supervision and monitoring was required.
In this indecent liberties case, the trial court did not err by considering evidence regarding the age of the alleged victims, the temporal proximity of the events, and the defendant’s increasing sexual aggressiveness; making findings of fact based on this evidence; and imposing SBM. Although the trial court could not rely on charges that had been dismissed, the other evidence supported the trial court’s findings, was not part of the STATIC-99 evaluation, and could be considered by the trial court.
The trial court erred by requiring the defendant to enroll in lifetime SBM. Two of the trial court’s additional findings supporting its order that the defendant—who tested at moderate-low risk on the Static 99—enroll in lifetime SBM were not supported by the evidence. Also, the additional finding that there was a short period of time between the end of probation for the defendant’s 1994 nonsexual offense and committing the sexual offense at issue does not support the conclusion that he requires the highest possible level of supervision and monitoring. Although the 1994 offense was originally charged as a sexual offense, it was pleaded down to a non-sexual offense. The trial court may only consider the offense of conviction for purposes of the SBM determination.
(1) The trial court erred by concluding that the defendant required the highest level of supervision and monitoring and ordering him to enroll in SBM for ten years when the STATIC-99 risk assessment classified him as a low risk and the trial court’s additional findings were not supported by the evidence. The trial court made additional findings that the victim suffered significant emotional trauma, that the defendant took advantage of a position of trust, and that the defendant had a prior record for a sex offense; it found that these factors “create some concern for the court on the likelihood of recidivism.” The finding regarding trauma was based solely on unsworn statements by the victim’s mother, which were insufficient to support this finding. The defendant’s prior record and likelihood of recidivism was already accounted for in the STATIC-99 and thus did not constitute additional evidence outside of the STATIC-99. However, because the State had presented evidence which could support a determination of a higher risk level, the court remanded for a new SBM hearing. (2) The trial court erred by concluding that indecent liberties was an offense against a minor as defined by G.S. 14-208.6(1m). However, that offense may constitute a sexually violent offense, and can thus support a SBM order.
The trial court erred by ordering lifetime SBM. The trial court concluded that the defendant was not a sexually violent predator or a recidivist and that although the offenses involved the physical, mental, or sexual abuse of a minor, he did not require the highest possible level of supervision and monitoring. The trial court’s finding that the defendant did not require the highest possible level of supervision and monitoring did not support its order requiring lifetime SBM.
The trial court erred by requiring the defendant to enroll in satellite-based monitoring (SBM) for ten years after finding that he required the highest level of supervision and monitoring. The DOC risk assessment classified the defendant as a low risk and only two of the trial court’s four additional findings of fact were supported by competent evidence. One finding of fact involved the defendant’s Alford plea and lack of remorse. Remanding, the court instructed that the trial court may consider whether the defendant’s actions showed lack of remorse but indicated that no authority suggests that the fact of an Alford plea itself shows lack of remorse.
Although one of its factual findings was erroneous, the trial court did not err by requiring the defendant to enroll in SBM for five years after finding that he required the highest possible level of supervision.The trial court based its conclusion on a DOC risk assessment of “moderate-low” and on three additional findings: (1) the victims were especially young, neither was able to advocate for herself, and one was possibly too young to speak; therefore the risk to similarly situated individuals is substantial; (2) the defendant has committed multiple acts of domestic violence; and (3) the defendant obtained no sex offender treatment. Distinguishing the determination at issue from the “aggravated offense” determination and the determination as to whether an offense involves the physical, mental, or sexual abuse of a minor, the court rejected the defendant’s argument that the first additional finding was erroneous because it relied on the underlying facts of the conviction. The court concluded that this finding was supported by competent evidence, specifically, the defendant’s stipulation to the prosecutor’s summary of facts provided at the defendant’s Alford plea. The court concluded that additional finding two was not supported by competent evidence. The only relevant evidence was the State’s representation that the defendant pled guilty to an assault charge involving the victim’s mother and a list of priors on his Prior Record Level worksheet, containing the following entry: “AWDWIKI G/L AWDW AND CT”. The court concluded that additional finding three was supported by the defendant’s admission that he had not completed the treatment. Finally, the court determined that the risk assessment and additional findings one and three supported the trial court’s order.
The trial court erred in requiring lifetime SBM under G.S. 14-208.40(a)(2); that provision subjects a person to SBM for a term of years.
Following Kilby and Causby, the court held that the trial court erroneously determined that the defendant required the highest level of supervision and monitoring. The Static 99 concluded that the defendant posed a low risk of re-offending and no other evidence supported the trial court’s determination.
Remanding for a determination of whether the defendant required the highest level of supervision and monitoring. Although the DOC’s risk assessment indicated that the defendant was a moderate risk, there was evidence that he had violated six conditions of probation, including failure to be at home for two home visits, failure to pay his monetary obligation, failure to obtain approval before moving, failure to report his new address and update the sex offender registry, failure to enroll in and attend sex offender treatment, and failure to inform his supervising officer of his whereabouts, leading to the conclusion that he had absconded supervision. Noting that in Morrow (discussed above), the probation revocation hearing and the SBM hearing were held on the same day and before the same judge and in this case they were held at different times, the court found that distinction irrelevant. It stated: “The trial court can consider the number and frequency of defendant’s probation violations as well as the nature of the conditions violated in making its determination. In particular, defendant’s violations of failing to report his residence address and to update the sex offender registry as well as his failure to enroll in and attend sex offender treatment could support a finding that defendant poses a higher level of risk and is thus in need of SBM.”
Once the trial judge determines that the defendant has been convicted of such an offense, the trial judge should order the DOC to perform a risk assessment. The trial court then must decide, based on the risk assessment and any other evidence presented, whether defendant requires “the highest possible level of supervision and monitoring.” If the trial court determines that the defendant requires such supervision and monitoring, then the court must order the offender to enroll in SBM for a period of time specified by the court.
In determining whether the defendant requires the highest possible level of supervision and monitoring, the trial court may consider any evidence relevant to the defendant’s risk and is not limited to the DOC’s risk assessment. Because evidence supporting a finding of high risk was presented in a probation revocation hearing held the same day (the defendant admitted that he failed to attend several sexual abuse treatment program sessions), the court remanded for an evidentiary hearing as to the defendant’s risk.
It was error for the trial court to order that the defendant enroll in SBM for a period of 7-10 years; G.S. 14-208.40B(c) requires the trial court to set a definite period of time for SBM enrollment.
Following Kilby (discussed immediately above), on similar facts.
The trial judge erred in concluding that the defendant required the highest possible level of supervision and monitoring when the Department of Correction risk assessment found that the defendant posed only a moderate risk and trial judge made no findings of fact that would support its conclusion beyond those stated on form AOC-CR-616.