State v. Blankenship, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 7, 2020)

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.