State v. Jones ( 2014 )

NO. COA13-1181
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Craven County
No. 98 CRS 915
PHILLIP MARK JONES
Appeal by defendant from order entered 7 February 2013,
nunc pro tunc to 25 January 2013, by Judge Benjamin G. Alford in
Craven County Superior Court. Heard in the Court of Appeals 22
April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph Finarelli, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt, for defendant.
HUNTER, Robert C., Judge.
Defendant Phillip Mark Jones appeals the order requiring
him to enroll in satellite-based monitoring (“SBM”) for the
duration of his post-release supervision. On appeal, defendant
argues that: (1) the trial court lacked subject matter
jurisdiction to order SBM because the State presented no
evidence that defendant was a resident of Craven County at the
time of the SBM hearing; and (2) the trial court’s “additional
-2-
findings” supporting the highest possible level of supervision
and monitoring were not supported by competent evidence.
After careful review, we reverse the SBM order.
Background
On 15 January 1998, defendant pled guilty to statutory
rape; the trial court sentenced him to 173 months to 217 months
imprisonment (“the 1998 offense”). While defendant was serving
his prison sentence, the North Carolina Department of Public
Safety (“DPS”) sent him notice that it had scheduled an SBM
determination hearing in Craven County Superior Court after
making the initial determination that defendant fell into a
category that made him eligible for SBM. DPS claimed that it
made that determination based on defendant’s 1998 conviction in
Craven County which “involv[ed] the physical, mental, or sexual
abuse of a minor.” Defendant acknowledged that he received the
notice by signing the letter on 9 October 2012.
Prior to the SBM hearing, defendant submitted to a STATIC-
99 assessment, the tool used by the Division of Adult Correction
for assessing a sexual offender’s likelihood for reoffending.
Defendant earned a score of three points, which indicated a
“moderate-low” risk of reoffending. The results of the STATIC-
99 were submitted to the trial court at defendant’s SBM hearing.
-3-
The trial court held the SBM hearing on 25 January 2013.
Defendant stipulated that he had received notice of the hearing.
As for the prior conviction, the State submitted evidence
showing that, in 1994, defendant had been initially charged with
first degree sex offense; however, the prosecuting attorney had
reduced the charge to assault on a female, to which defendant
pled guilty (94 CR 1252) (“the 1994 offense”). In defendant’s
file, the trial court noted that there was a 1997 report from
Dorothea Dix Hospital evaluating defendant; the psychiatric
evaluation was completed before his 1998 trial for statutory
rape. Although the trial court reviewed the Dix report, it
“ascribe[d] no significance” to it given that it was over
fifteen years old. The trial court asked defendant’s probation
officer how defendant was “doing” on probation; the officer
reported that defendant has reported to all his office
appointments, has not missed a curfew, and has been paying the
money he owes.
On a standard, preprinted AOC form, the trial court made
the following findings: (1) defendant was convicted of a
reportable conviction; (2) defendant fell into at least one of
the categories requiring SBM; (3) the District Attorney
scheduled a hearing in the county in which defendant resided and
-4-
provided adequate notice of the hearing; and (4) defendant’s
1998 conviction involved the physical, mental, or sexual abuse
of a minor. The trial court made two “additional findings”: (1)
there was a short period of time from the conclusion of
defendant’s supervision for the “prior sexual offense” in 94 CR
1252 to reoffending (“additional finding no. 1”); and (2) there
was a similarity between the victims in both age and sex
(“additional finding no. 2”). Based on these “additional
findings,” the trial court ordered that defendant enroll in the
highest possible level of supervision and monitoring until his
post-release supervision ended for the 1998 offense (at some
point in October 2017). Defendant filed timely notice of
appeal.
Standard of Review
For SBM enrollment, “the trial court is statutorily
required to make findings of fact to support its legal
conclusions.” State v. Morrow, 200 N.C. App. 123, 126, 683
S.E.2d 754, 757 (2009), aff’d per curiam, 364 N.C. 424, 700
S.E.2d 224 (2010). On appeal, this Court “review[s] the trial
court’s findings of fact to determine whether they are supported
by competent record evidence[.]” State v. Kilby, 198 N.C. App.
363, 367, 679 S.E.2d 430, 432 (2009). Moreover, the Court
-5-
reviews the trial court’s conclusions of law for “legal accuracy
and to ensure that those conclusions reflect a correct
application of law to the facts found.” State v. Clark, 211
N.C. App. 60, 70, 714 S.E.2d 754, 761 (2011).
Arguments
I. Subject Matter Jurisdiction
First, defendant argues that the trial court lacked subject
matter jurisdiction over him to order SBM. Specifically,
defendant contends that the State failed to present any evidence
that defendant was a resident of Craven County at the time of
the hearing; therefore, the trial court’s finding that the
hearing was held in the county of defendant’s residence was not
supported by competent evidence. Based on State v. Mills, __
N.C. App. __, 754 S.E.2d 674 (2014), we dismiss defendant’s
argument.
Pursuant to N.C. Gen. Stat. § 14-208.40B(b), “[i]f the
[DOC] determines that the offender falls into one of the
categories described in [N.C. Gen. Stat. §] 14-208.40(a), the
district attorney, representing the [DOC], shall schedule a
hearing in superior court for the county in which the offender
resides.” Defendant argues that although he did not challenge
the location of the hearing before the trial court, this issue
-6-
may be raised for the first time on appeal since it addresses
subject matter jurisdiction.
In support of his argument, defendant cites two unpublished
cases. However, this Court’s recent published opinion in Mills,
is controlling. In Mills, the defendant did not argue at his
SBM hearing that it was not being held in the county of his
residence. On appeal, the defendant contended that: (1) he
could raise this issue for the first time on appeal because it
involved subject matter jurisdiction; and (2) there was no
competent evidence presented at the hearing that defendant
resided in Buncombe County, where the SBM hearing occurred. Id.
at ___, 754 S.E.2d at 677. After noting that SBM hearings are
civil in nature, the Mills Court rejected the defendant’s
characterization of his argument as one challenging subject
matter jurisdiction; instead, the Court concluded that “while
the superior court has subject matter jurisdiction over SBM
hearings, the requirement that the hearing be held in the
superior court in the county in which the offender resides
relates to venue.” Id. Thus, the defendant could not raise his
venue challenge for the first time on appeal because it had been
waived. Id.
-7-
Similarly, here, when defendant stipulated that he had
received notice of the hearing, he did not raise any argument
that he was not a resident of Craven County. Because the
requirement that the SBM hearing be held in the county in which
defendant resided relates to venue, not subject matter
jurisdiction, id., defendant’s failure to raise the issue before
the trial court waived his ability to raise it for the first
time on appeal, and this argument is dismissed.
II. The “Additional Findings”
Next, defendant challenges the two “additional findings”
the trial court made in requiring defendant enroll in the
highest level of supervision and monitoring. Specifically, with
regard to “additional finding no. 1,” defendant contends that
there was no evidence that defendant had committed a “prior
sexual offense” or that the present offense was committed within
a “short period of time from [the] conclusion of supervision”
for the 1994 conviction of assault on a female. Additionally,
defendant alleges that there was no evidence presented that the
victims in the 1994 and 1998 offenses were similar in age and
sex, which was noted in the trial court’s “additional finding
no. 2.” Consequently, defendant argues that because these
findings were not supported by competent evidence and defendant
-8-
was assessed as a “moderate-low” risk, the trial court erred in
ordering him to enroll in the highest level of supervision and
monitoring. We agree.
“This Court has previously held that a DOC risk assessment
of ‘moderate,’ without more, is insufficient to support the
finding that a defendant requires the highest possible level of
supervision and monitoring.” State v. Green, 211 N.C. App. 599,
601, 710 S.E.2d 292, 294 (2011) (quoting Kilby, 198 N.C. App. at
369–70, 679 S.E.2d at 434). A trial court may order a defendant
receive the highest level of supervision and monitoring if it
“makes ‘additional findings’ regarding the need for the highest
possible level of supervision and where there is competent
record evidence to support those additional findings.” Id.(citing State v. Morrow, 200 N.C. App. 123, 130–34, 683 S.E.2d
754, 760–62 (2009), aff'd per curiam, 364 N.C. 424, 700 S.E.2d
224 (2010)). However, if a defendant is assessed as a
“moderate” risk and the State presented no evidence to support
findings of a higher level of risk or to support the requirement
for “the highest possible level of supervision and
monitoring[,]” the trial court’s order must be reversed. Kilby,
198 N.C. App. at 370-71, 679 S.E.2d at 434. In contrast, if the
State presented any evidence at the SBM hearing that would
-9-
support the highest level, “it would be proper to remand this
case to the trial court to consider the evidence and make
additional findings.” Id. at 370, 679 S.E.2d at 434.
A. “Additional Finding No. 1” – Short Period of Time
between Conclusion of Supervision for Defendant’s
“Prior Sexual Offense” and Reoffending
First, defendant contends that there was no competent
evidence introduced at the hearing to support the trial court’s
finding that defendant was convicted of a “prior sexual offense”
or that the 1998 offense was committed within a short period of
time from the conclusion of supervision for the 1994 offense.
At the SBM hearing, the State introduced evidence that,
although defendant had initially been charged with first degree
sex offense in 1994 (94 CR 1252), that charge was reduced and
defendant pled guilty to assault on a female. The crime of
assault on a female is not a sexual offense, a point which the
State concedes. Therefore, that part of the trial court’s
finding—that defendant had been convicted of a “prior sexual
offense”—was not supported by competent evidence.
With regard to defendant’s contention that there was no
competent evidence presented to support the trial court’s
“additional finding” that there was a short period of time
between the conclusion of his probation for the 1994 nonsexual
-10-
offense before he committed the 1998 sexual offense, his
argument is without merit. Initially, it should be noted that
the trial court classified defendant’s probation as “supervised”
for the 1994 offense. However, there is no evidence in the
record to support this classification; the ACIS print-out
submitted to the trial court for defendant’s 1994 offense only
indicated that defendant received three years of probation.
Notwithstanding this classification, the ACIS print-out clearly
indicated that defendant was sentenced to two years imprisonment
on 30 March 1994 for assault on a female, but that sentence was
suspended and defendant was placed on three years of probation.
The offense date for the 1998 sexual offense was 19 August 1997,
approximately three years and five months after defendant was
sentenced for the 1994 nonsexual offense. While defendant is
correct in that it is not exactly clear when defendant ended his
probation for the 1994 offense, the print-out supports a finding
that a short amount of time elapsed between the end of probation
for the 1994 offense, sometime around April 1997, and the date
of offense for the 1998 conviction, August 1997. Accordingly,
part of “additional finding no. 1”—that defendant committed the
1998 offense soon after his probation for the 1994 offense
ended—was supported by competent evidence. Thus, it may be
-11-
considered when determining whether the trial court’s
determination that defendant requires the highest level of
supervision and monitoring “reflect[s] a correct application of
law to the facts found.” Kilby, 198 N.C. App. at 367, 679
S.E.2d at 432.
B. “Additional Finding No. 2” – “Similarity in Victims’
Age and Sex”
Initially, it should be noted that the State concedes, and
we agree, that the trial court’s “additional finding no. 2”—
similarity of victims in age and sex—was not supported by
competent record evidence because the only documents
establishing this finding were the 1997 Dorothea Dix documents.
Citing State v. Mixion, 110 N.C. App. 138, 150, 429 S.E.2d 353,
370 (1993), since those documents were not offered into evidence
before the trial court nor did defendant stipulate to their
contents, the State concedes that the evidence was insufficient
to support this finding. Therefore, it may not provide support
for the trial court’s determination that defendant required the
highest level of monitoring and supervision.
C. Does the Evidence that Defendant Committed the 1998
Offense Within a Short Period After Completing
Probation for the 1994 Nonsexual Offense Along with
his “Moderate-Low” Risk of Reoffending Support the
Trial Court’s Determination That Defendant Required
the Highest Level of Supervision and Monitoring?
-12-
Finally, we must determine whether the “additional finding”
that there was a short period of time between the end of
probation for the 1994 offense, a nonsexual offense, and
committing a sexual offense supports the conclusion that
defendant requires the highest possible level of supervision and
monitoring. We conclude that this “additional finding” does
not, and the trial court’s determination is “not a correct
application of the law to the facts found,” Id. at 367, 679
S.E.2d at 432. A defendant’s “risk of reoffending” is based on
the risk of the defendant committing another sexual offense.
Here, the only conviction that the trial court may use in
accessing defendant’s risk of reoffending is the 1998 offense
since that offense constitutes the only sexual offense defendant
was convicted of; in contrast, the 1994 offense was a nonsexual
offense and does not indicate any increased risk that he would
commit another sexual offense. Consequently, this finding does
not support a conclusion that defendant is at a high risk of
reoffending and does not support a conclusion that defendant
requires the highest possible level of supervision and
monitoring.
Furthermore, we conclude that the State presented no other
evidence to support the trial court’s determination. See id.-13-
(noting that if “evidence was presented which could support
findings of fact which could lead to a conclusion that ‘the
defendant requires the highest possible level of supervision and
monitoring[,]’ . . . it would be proper to remand this case to
the trial court to consider the evidence and make additional
findings”). The fact that defendant was originally charged with
a sexual offense, established by the ACIS print-out indicating
this initial charge, but pled to the lesser, nonsexual offense
of assault on a female would not support a determination that
defendant required the highest level of supervision and
monitoring. In other words, the underlying facts of the 1994
offense may not be considered by the trial court in determining
the level of supervision and monitoring a defendant requires for
purposes of SBM. In support of this conclusion, we note that
this Court has repeatedly held that the underlying facts of a
defendant’s conviction may not be used to determine whether the
defendant committed an aggravated offense under section 14-
208.6(1a). See State v. Boyett, __ N.C. App. __, __, 735 S.E.2d
371, 380 (2012) (“In determining whether a particular crime
constitutes an aggravated offense, the trial court is only to
consider the elements of the offense of which a defendant was
convicted and is not to consider the underlying factual scenario
-14-
giving rise to the conviction.”) (internal quotation marks
omitted); State v. Davison, 201 N.C. App. 354, 364, 689 S.E.2d
510, 517 (2009) (“[W]hen making a determination pursuant to
N.C.G.S. § 14–208.40A, the trial court is only to consider the
elements of the offense of which a defendant was convicted and
is not to consider the underlying factual scenario giving rise
to the conviction.”). Thus, applying this analysis, we hold
that the trial court may only consider the offense of which a
defendant was convicted for purposes of determining what level
of supervision and monitoring a defendant requires for SBM.
In summary, since the State presented no other evidence
which could tend to support a determination of a higher level of
risk that would require the highest level of supervision and
monitoring other than his STATIC-99 score of moderate-low risk,
the trial court’s order must be reversed. See Kilby, 198 N.C.
App. at 370-71, 679 S.E.2d at 434 (reversing the SBM order when
the State presented no evidence which tended to support a
determination of a higher level of risk than the ‘moderate’
rating assigned by the DOC). In fact, it should be noted that
the only other evidence submitted at the SBM hearing supported
the opposite conclusion. Specifically, defendant’s probation
officer indicated that defendant was fully cooperating with his
-15-
post-release supervision, which might support a finding of a
lower risk level, but not a higher one. Additionally, although
he had not found work at the time of the SBM hearing, he was
living with his mother and father, and his father attended the
hearing, indicating some familial support. Thus, given that the
only “additional finding” supported by competent evidence—that
defendant committed the 1998 sexual offense shortly after ending
probation for the 1994 nonsexual offense—would not support a
higher level of risk and that the State presented no other
evidence showing that defendant required the highest level of
monitoring and supervision, we reverse the trial court’s SBM
order.
Conclusion
Because the State presented no evidence other than
defendant’s moderate-low STATIC-99 risk assessment to support a
finding that defendant required the highest level of supervision
and monitoring, we reverse the SBM order.
REVERSED.
Judges BRYANT and STEELMAN concur.