State v. Cheers, 2022-NCCOA-597, ___ N.C. App. ___ (Sept. 6, 2022)

In this Brunswick County case, defendant appealed an order vacating lifetime satellite-based monitoring (SBM) and imposing a 30-year term of SBM. Defendant argued (1) trial court lacked subject matter jurisdiction to impose SBM upon him; (2) trial court did not have statutory authority to impose a term of years based on his classification as a “recidivist;” and (3) the trial court erred in determining defendant required the highest level of supervision applicable under the statute. The Court of Appeals disagreed and affirmed the order of the trial court. 

Defendant was convicted of four counts of indecent liberties with a child in 1994. Subsequently defendant pleaded guilty to two counts of indecent liberties with a child in 2008 and received lifetime SBM. The court’s form order found that defendant “is classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense,” but did not clarify which of these grounds justified the lifetime SBM. Slip Op. at ¶2. After the holding in State v. Grady (Grady III), 327 N.C. 509 (2019), prosecutors advised defendant that he was entitled to a hearing on the unconstitutional nature of his lifetime SBM, and defendant filed a motion for appropriate relief. Defendant’s motion was heard in January of 2021; the trial court found that defendant required the highest level of supervision, vacated the lifetime SBM and imposed a 30-year term, retroactive to the start of defendant’s monitoring in 2010. 

Considering defendant’s first argument, the Court of Appeals found that the trial court had subject matter jurisdiction to conduct the January 2021 hearing and enter the new order imposing SBM. Although defendant pointed to State v. Billings, 278 N.C. App. 267 (2021) to support the trial court’s lack of jurisdiction, the Court of Appeals explained that the Billings fact pattern was not present in the current case, as “[d]efendant’s own motion properly brought the matter before the trial court.” Slip Op. at ¶9. Instead, the court applied State v. Hilton, 378 N.C. 692 (2021) and State v. Strudwick, 379 N.C. 94 (2021), holding that “the trial court had continued jurisdiction over the original 2008 SBM order and could modify it pursuant to [d]efendant’s motion.” Slip Op. at ¶12. 

Reviewing defendant’s argument that the trial court lacked statutory authority to impose SBM, the court held that “[d]efendant’s reading of our statutes conflicts with precedent defining the Legislature’s intent.” Slip Op. at ¶14. The core of defendant’s argument came from the text of N.C.G.S. § 14-208.40A(d) in effect at the time of the 2021 hearing, specifically the following:

If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, that the offense is not an aggravated offense or a violation of G.S. 14-27.23 or G.S. 14-27.28 and the offender is not a recidivist[. . . .]

Slip Op. at ¶18. As explained by the court, “[i]n holding our SBM statutes were unconstitutional as applied to unsupervised, recidivist offenders in Grady III, our Supreme Court created a loophole for individuals in Defendant’s position, as an unsupervised recidivist convicted of an offense involving the physical, mental, or sexual abuse of a minor.” Slip Op. at 21. The court rejected defendant’s reading of the applicable statute, as it “would lead to absurd results, contrary to the intent of the General Assembly in identifying specific categories of sex offenders subject to monitoring.” Slip Op. at 19. Instead, the court construed the applicable provisions along with the entire SBM statute classifying offenders, and applied Hilton and Strudwick to support the application of SBM for offenders like defendant. Slip Op. at 21. The court also noted that just months after the 2021 hearing, the General Assembly amended N.C.G.S. § 14-208.40A(d)-(e) to resolve the issue. Summarizing defendant’s situation, the court explained that the amendments to North Carolina’s SBM program created a ten-year cap on the term of SBM enrollment and a procedure for petitioning the trial court to end SBM, meaning that “since [d]efendant has been enrolled in SBM for more than ten years, he can obtain a court order terminating that enrollment today.” Slip Op. at ¶23. 

Finally, the court examined defendant’s argument that the trial court misapplied his risk assessment when determining he required the highest level of supervision. The court explained that, even if it misapplied or misinterpreted the risk assessment tool, the “trial court made sufficient findings to support its determination that [d]efendant required the ‘highest possible level of supervision and monitoring’ for a term of 30 years.” Slip Op. at ¶28.