State Of North Carolina v. Bowditch

• Decision Date: 08 October 2010
• Docket Number: No. 448PA09.,448PA09.
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Kenney BOWDITCH, Kenneth Edward Plemmons, and Mark Allen Waters.

364 N.C. 335

700 S.E.2d 1

STATE of North Carolina

v.Kenney BOWDITCH, Kenneth Edward Plemmons, and Mark Allen Waters.

No. 448PA09.

Supreme Court of North Carolina.

Oct. 8, 2010.

On discretionary review pursuant to N.C.G.S. § 7A-31, prior to a determination by the Court of Appeals, of a memorandum and order entered 12 June 2009 by Judge Dennis J. Winner in Superior Court, Buncombe County, allowing defendants' motions to dismiss petitions filed by the State to enforce satellite monitoring provisions on defendants. Heard in the Supreme Court 10 May 2010.

Roy Cooper, Attorney General, by Joseph Finarelli, Assistant Attorney General, for the State-appellant.

Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellee Kenneth Plemmons; Paul F. Herzog, Fayetteville, for defendant-appellee Kenney Bowditch; and Rhonda K. Moorefield, Asheville, for defendant-appellee Mark Waters.

BRADY, Justice.

In 2006 the North Carolina General Assembly ratified “An Act To Protect North Carolina's Children/Sex Offender Law Changes” directing the Department of Correction (DOC) to establish a continuous satellite-based monitoring (“SBM”) program for certain classes of sex offenders. An Act To Protect North Carolina's Children/Sex Offender Law Changes, ch. 247, sec. 15, 2006 N.C. Sess. Laws 1065, 1074-79 (codified as amended at N.C.G.S. §§ 14-208.40 to-208.45 (2009)). Defendants Kenney Bowditch, Kenneth Edward Plemmons, and Mark Allen Waters have each pleaded guilty to multiple counts of taking indecent liberties with a child. All of these offenses occurred before the SBM statutes took effect on 16 August 2006. Defendants dispute their eligibility for SBM, arguing that their participation would violate guarantees against ex post facto laws contained in the federal and state constitutions. We hold that the SBM program at issue was not intended to be criminal punishment and is not punitive in purpose or effect. Thus, subjecting defendants to the SBM program does not violate constitutional prohibitions against ex post facto laws.

PROCEDURAL BACKGROUND

Defendant Plemmons pleaded guilty on 1 November 2006 to five counts of taking indecent liberties with a child. He stipulated to the aggravating factors that the victim was very young and that he abused a position of trust with the victim. Beginning in February and ending in May 2006, defendant Plemmons committed the multiple offenses when he was at least fifty years of age and his victim was a young girl of five to six years of age. Two of the offenses were consolidated for sentencing, and defendant Plemmons received an active term of imprisonment of twenty-four to twenty-nine months. The trial court suspended the remaining sentences and imposed a period of supervised probation.

Defendant Waters pleaded guilty on 12 April 2007 to five counts of taking indecent liberties with a child. At the time of his offenses, which were committed between August and December 2004, defendant Waters was approximately forty years old and his victim was a ten year old girl. The trial court suspended the sentences and imposed a period of supervised probation on defendant Waters.

Defendant Bowditch pleaded guilty on 3 December 2007 to eight counts of taking indecent liberties with a child. From June through August 2006, Bowditch, who was then sixteen years old, committed his offenses against an eight year old victim. After consolidating some of the cases and suspending sentences, the trial court imposed a period of supervised probation on defendant Bowditch.

Upon receiving notice of the State's intention to seek their enrollment in the SBM program, defendants filed separate motions on constitutional grounds to dismiss the State's petitions for satellite-based monitoring. After conducting hearings on 1 May and 28 May 2009, the trial court issued a memorandum and order on 12 June 2009 making numerous findings of fact and concluding as a matter of law that (1) determining whether an offense is aggravated for purposes of imposing lifetime satellite-based monitoring is a fact-based, rather than an element-based, inquiry; ¹ (2) the legislature “intended Satellite monitoring to be criminal punishment”; and (3) even if not intended to be punitive, SBM's purpose and effect, when analyzed according to the factors enunciated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), “are so punitive that civil intent is negated.” The trial court then ruled that applying SBM to defendants “would be unconstitutional under the ex post facto provisions of both the United States and North Carolina Constitutions.” As such, the trial court allowed defendants' motions and dismissed the State's petitions. The State gave notice of appeal to the Court of Appeals on 23 June 2009. Defendants then filed a petition with this Court on 27 October 2009 to certify the case for discretionary review prior to determination by the Court of Appeals. This Court allowed defendants' petition on 18 February 2010 to address the significant constitutional question at issue.

FACTUAL BACKGROUND

After its enactment effective 16 August 2006, the SBM legislation was codified at Part 5 of Article 27A, Chapter 14, of the North Carolina General Statutes. Chapter 14 contains the Criminal Law portion of our statutes, and Article 27A is entitled “Sex Offender and Public Protection Registration Programs.” As authorized by the legislation, DOC established and began administering the SBM program on 1 January 2007.

At the hearings conducted on 1 May and 28 May 2009, the trial court heard testimony from three individuals who were employed by DOC in the Division of Community Corrections (DCC). Todd Carter testified about his role as a probation officer assigned to assist with monitoring SBM participants on a local level; Lori Anderson testified as a manager for the Twenty-Eighth Judicial District; and Hannah Roland, who was based in Raleigh, testified as the special operations administrator in charge of the SBM program for sex offenders.

In relevant part, their testimony tended to reflect the following: SBM's enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as “lifetime trackers.” Cf. N.C.G.S. §§ 14-208.40, -208.40A, -208.40B (describing when SBM is required at all, when it is mandatory “for life,” and when it should be imposed “for a period of time to be specified by the court”).

All SBM participants receive three items of equipment. First, at all times they wear a transmitter, which is a bracelet held in place by a strap worn around one ankle. Tampering with the bracelet or removing it triggers an alert. The ankle bracelet in use at the time of the hearings was approximately three inches by one and three-quarters inches by one inch. Second, participants wear a miniature tracking device (MTD) around the shoulder or at the waistline on a belt. The MTD may not be hidden under clothing. The device contains the Global Positioning System (GPS) receiver and is tethered to the ankle bracelet by a radio-frequency (RF) signal. The size of the MTD in use at the time of the hearings was four and one-quarter inches by two inches by three inches. The MTD includes an electronic screen that displays text messages communicating possible violations or information to the participant. Third, a base unit is required for charging the MTD's battery, and although it is typically kept at a participant's residence, the base unit may be used to recharge the MTD wherever electricity is available. The MTD requires at least six hours of charging per twenty-four hour period.

Personnel from DCC perform maintenance on the equipment every ninety days and replace the transmitter once a year. This maintenance requires a visit to the location of the base. The maintenance is conducted under an agreement signed by SBM participants when monitoring begins. Criminal liability is imposed for, inter alia, refusing to allow the required maintenance, destroying the equipment, or interfering with its proper functioning. N.C.G.S. § 14-208.44(b), (c).

The monitoring aspects of SBM are conducted by DOC/DCC. Personnel in Raleigh monitor unsupervised participants and assist field staff with tracking supervised offenders. Outside of normal work hours for the personnel in Raleigh, local law enforcement officers are on call to receive and address alerts as necessary.

The equipment facilitates a “near real time” log of a participant's movements. However, only periodic checks are conducted on the movements of unsupervised participants, going back a day or two at a time. If DCC personnel observe certain patterns of movement or locations that a participant appears to frequent, they may contact local officers to identify the area and look for vulnerable sites, such as schools or day-care centers. If reviewing the tracking information reveals a participant's presence at a location that may constitute a violation of North Carolina law, DCC contacts local law enforcement, which may investigate further. Supervised offenders may be subject to “inclusion zones,” areas in which they must remain for a period of time, or “exclusion zones,” which they must refrain from visiting. No such zones are utilized for unsupervised participants. The tracking information is stored at DOC for one year, and then the program vendor archives the information for the length of the State's contract plus seven years.

The SBM equipment transmits various alerts regarding potential violations to DCC personnel. Alerts that are uploaded “immediately” consist for the most part of alerts indicating “bracelet gone,” violations of “inclusion” or “exclusion” zones, or “no GPS” signal. The alert for “bracelet gone” is...