State v. Barton, COA23-1148, ___ N.C. App. ___ (Aug. 6, 2024)

In this Brunswick County case, defendant appealed after entering guilty pleas to four counts of second-degree exploitation of a minor. Defendant argued error in (1) requiring him to register for satellite-based monitoring (SBM) when he was in the low-risk range, and (2) sentencing him to probation after his post-release supervision was completed. The Court of Appeals agreed, vacating the SBM order without remand, and vacating the probation judgment and remanding to the trial court for further proceedings. 

Defendant entered his guilty pleas in May 2023. The trial court entered four judgments; in the first, defendant was sentenced to 25 to 90 months of imprisonment, followed by the mandatory five years of post-release supervision for a reportable conviction under G.S. 14-208.6. The trial court suspended the active sentences of the other three judgments and imposed 60 months of probation to run consecutively with the first judgment. The trial court specified that “probation is not going to begin to run until the conclusion of his post-release supervision.” Slip Op. at 2. The trial court then conducted an SBM hearing where evidence of defendant’s STATIC-99R score of “1” was admitted, classifying him as “low risk range” for recidivism. Id. at 3. Despite the low risk score and the lack of additional evidence from the State, the trial court ordered five years of SBM, with no additional findings justifying the order. The Court of Appeals granted defendant’s petitions for writ of certiorari to consider both issues. 

Considering (1), the court explained it was error under State v. Jones, 234 N.C. App. 239 (2014), to impose SBM on a low risk defendant without additional findings. Here the State admitted no evidence and the trial court made no findings justifying the imposition of SBM. The court held this was error, and following the Jonesprecedent, reversed the imposition of SBM without remand.  

Moving to (2), the court noted that the structure of G.S. 15A-1346 could permit two different interpretations, as this section does not specifically address whether probation should run concurrently with post-release supervision. The section provides that probation must run concurrently with “probation, parole, or imprisonment,” but does not reference post-release supervision, and no previous case had determined “imprisonment” included post-release supervision. Id. at 10. This led the court to conclude that “the General Assembly has not clearly stated whether probation can run consecutively with post-release supervision.” Id. at 12. The court applied the rule of lenity and determined that defendant’s “probation must run concurrently with his post-release supervision.” Id. This necessitated vacating and remanding to the trial court for a new plea agreement or a trial on the matter.