Opinion
No. COA09-1122
Filed 18 January 2011 This case not for publication
Appeal by defendant from order entered 20 February 2009 by Judge R. Allen Baddour in Orange County Superior Court. Heard in the Court of Appeals 9 March 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Pitman, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellant.
Orange County Nos. 08 CRS 837, 08 CRS 838.
Defendant Earl Wiley appeals from an order requiring him to enroll in a satellite-based monitoring ("SBM") program for life. Defendant correctly asserts that the trial court erred in requiring lifetime enrollment after it determined based on the State's summary of the factual basis for defendant's plea — and not on the elements of the offenses to which defendant pled guilty — that defendant had committed aggravated offenses. Since none of the offenses to which defendant pled guilty include the elements necessary to amount to an aggravated offense for SBM purposes, the order requiring lifetime enrollment in the SBM program must be vacated.
Facts
On 7 July 2008, defendant was indicted for first degree statutory rape of a child under the age of 13, indecent liberties with a child, assault on a child under the age of 12, and sexual battery. On 17 February 2009, defendant entered an Alford plea to the charges of assault on a child under the age of 12, indecent liberties with a child, and sexual battery. As part of the plea agreement, the State dismissed the charge of first degree statutory rape of a child under the age of 13.
According to the State's summary of the factual basis for the plea, three-year-old Kelly and her four-year-old brother were residing with their great-grandmother and defendant from approximately 1 September 2005 to 9 March 2007. Kelly's great-grandmother is defendant's mother. In March 2007, when Kelly's mother was in the process of regaining custody of her children, Kelly's brother reported that defendant "had been having sex with" Kelly. Kelly's mother took Kelly to the hospital, and a physical examination revealed that Kelly was missing hymenal tissue. Kelly also participated in a forensic interview in which she demonstrated a simulated sexual act with anatomical dolls.
The pseudonym "Kelly" is used throughout this opinion to protect the minor's privacy and for ease of reading.
Defendant, through counsel, stipulated that a factual basis for the plea existed. Defendant also admitted to the existence of two aggravating factors for sentencing purposes — that "the victim . . . was very young" and that defendant "took advantage of a position of trust or confidence including a domestic relationship to commit the offense."
The trial court found there was a factual basis for the plea and found the existence of the two aggravating factors. The court then imposed an aggravated-range term of 24 to 29 months imprisonment for the conviction of indecent liberties with a child. For the convictions of assault on a child under the age of 12 and sexual battery, the court imposed a suspended sentence of 150 days imprisonment running consecutive to the indecent liberties conviction and placed defendant on supervised probation for 60 months.
The trial court also found that all of defendant's convictions were sexually violent offenses, that defendant had not been classified as a sexually violent predator, that he was not a recidivist, and that the offenses of which he was convicted were aggravated offenses that involved the physical, mental, or sexual abuse of a minor. The court ordered defendant, upon release from imprisonment, to register as a sex offender and to enroll in the SBM program for his natural life. Defendant gave oral notice of appeal in open court. Subsequently, on 8 June 2010, defendant filed a petition for writ of certiorari, which this Court allowed.
Discussion
Defendant first argues that the trial court, in determining that defendant committed aggravated offenses for SBM purposes, improperly considered the underlying factual basis for defendant's plea rather than focusing only on the elements of the crimes. N.C. Gen. Stat. § 14-208.40A(c) (2009) provides that if the trial court "finds that the offender . . . has committed an aggravated offense, . . ., the court shall order the offender to enroll in a satellite-based monitoring program for life." An "[a]ggravated offense" is "any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old." N.C. Gen. Stat. § 14-208.6(1a) (2009).
In State v. Davison, ___ N.C. App. ___, 689 S.E.2d 510 (2009), disc. review denied, 2010 NC LEXIS 2239, 2010 WL 5287496 (Nov. 4, 2010), and State v. Singleton, ___ N.C. App. ___, ___, 689 S.E.2d 562, 567, disc. review improvidently allowed per curiam, 364 N.C. 418, 700 S.E.2d 226 (2010), this Court held that "when 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." Davison, ___ N.C. App. at ___, 689 S.E.2d at 517 (emphasis added). See also Singleton, ___ N.C. App. at ___, 689 S.E.2d at 567 (relying on Davison and rejecting State's argument that facts of underlying reportable conviction as presented at SBM hearing, rather than only statutory elements of crime for which defendant was convicted, could support finding that defendant was convicted of aggravated offense).
Here, although defendant was charged with first degree statutory rape of a child under the age of 13, which would have qualified as an aggravated offense, none of the three offenses to which defendant pled guilty contain the element of penetration. See State v. Kelso, 187 N.C. App. 718, 722, 654 S.E.2d 28, 31 (2007) ("The essential elements of sexual battery are: (1) sexual contact with another person; (2) by force and against the will of the other person; and (3) for the purpose of sexual arousal, gratification or abuse."), disc. review denied, 362 N.C. 367, 663 S.E.2d 432 (2008); State v. Thaggard, 168 N.C. App. 263, 282, 608 S.E.2d 774, 786-87 (2005) (noting elements of indecent liberties with a child are "(1) the defendant was at least 16 years of age; (2) he was five years older than his victim; (3) he willfully took or attempted to take an indecent liberty with the victim; (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred; and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire"); State v. Beal, 181 N.C. App. 100, 103, 638 S.E.2d 541, 544 (2007) ("An assault is defined as `an overt act or attempt, with force or violence, to do some immediate physical injury to the person of another, which is sufficient to put a person of reasonable firmness in fear of immediate physical injury.'" (quoting State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995))).
The State concedes that this case is indistinguishable from Davison. In accordance with Davison and Singleton, we vacate the order requiring defendant to enroll in the SBM program for life. We remand for a further determination of defendant's SBM eligibility pursuant to the procedure set forth in N.C. Gen. Stat. § 14-208.40A. See Davison, ___ N.C. App. at ___, 689 S.E.2d at 517.
Defendant also contends that he received ineffective assistance of counsel because his attorney failed to argue that requiring him to enroll in the SBM program violates the ex post facto clauses of the federal and state constitutions. Recently, however, in State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010), the Supreme Court held that subjecting defendants to the SBM program does not violate constitutional prohibitions against ex post facto laws:
The SBM program . . . was enacted with the intent to create a civil, regulatory scheme to protect citizens of our state from the threat posed by the recidivist tendencies of convicted sex offenders. Having examined the relevant [ Kennedy v.] Mendoza-Martinez[, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963),] factors in detail, we conclude that neither the purpose nor effect of the SBM program negates the legislature's civil intent. Accordingly, subjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution.
Since Bowditch establishes that no ex post facto violation occurred, defendant was not denied effective assistance of counsel when his counsel failed to make the ex post facto argument.
No error.
Judges STROUD and ERVIN concur.
Report per Rule 30(e).