State v. Bare

• Citation: 677 S.E.2d 518
• Decision Date: 16 June 2009
• Docket Number: No. COA08-818.,COA08-818.
• Parties: STATE of North Carolina v. Freddie Junior BARE.
• Court: Court of Appeal of North Carolina (US)

677 S.E.2d 518

STATE of North Carolina v. Freddie Junior BARE.

No. COA08-818.

Court of Appeals of North Carolina.

June 16, 2009.

Appeal by defendant from order entered 19 February 2008 by Judge Henry E. Frye, Jr., in Wilkes County Superior Court. Heard in the Court of Appeals 20 November 2008.

Attorney General Roy Cooper, by Assistant Attorney General Catherine M. (Katie) Kayser, for the State.

Mary McCullers Reece, Smithfield, for defendant-appellant.

CALABRIA, Judge.

Freddie Junior Bare ("defendant") appeals the trial court's order directing him to enroll in satellite-based monitoring ("SBM") pursuant to N.C. Gen.Stat. § 14-208.40B. We affirm the trial court's order.

Defendant pled guilty to indecent liberties with a minor in 1998. The court sentenced defendant to a minimum term of 19 months to a maximum term of 23 months in the North Carolina Department of Correction. In 2002, he pled no contest to failure to register as a sex offender in violation of N.C. Gen.Stat. § 14-208.11 and sexual activity by a custodian of a minor under § 14-27.7. The court consolidated the offenses for judgment and sentenced defendant to a minimum term of 46 months to a maximum term of 65 months in the North Carolina Department of Correction. The court recommended defendant attend and complete a sex offenders program while incarcerated. Defendant was ordered to register as a sex offender within ten days of his release date. In 2006, the General Assembly enacted the SBM provisions which became effective 16 August 2006. N.C. Sess. Laws 2006-247, section 15(a); N.C. Gen.Stat. § 14-208.40 (2007). Defendant was released on 20 April 2007. Defendant was enrolled in SBM on 11 May 2007.

On 19 February 2008, the trial court held a determination hearing pursuant to N.C. Gen. Stat. § 14-208.40B. The trial court found that defendant was convicted of a reportable conviction as defined by N.C. Gen.Stat. § 14-208.6(4) and is a recidivist. Defendant was ordered to enroll in SBM for the remainder of his natural life. Defendant appeals.

I. Ex Post Facto

Defendant contends imposition of SBM violates the ex post facto clause of the North Carolina and United States Constitutions because the SBM provisions did not exist at the time defendant was convicted of the charges and imposition of SBM increases defendant's punishment for his crime. We disagree.

The standard of review is de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C.App. 807, 809, 513 S.E.2d 572, 574 (1999) (citation omitted) ("Alleged errors of law are subject to de novo review on appeal."). "Because both the federal and state constitutional ex post facto provisions are evaluated under the same definition, we analyze defendant's state and federal constitutional contentions jointly." State v. White, 162 N.C.App. 183, 191, 590 S.E.2d 448, 454 (2004) (quoting State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (quotation marks omitted)).

The prohibition against ex post facto laws applies to:

1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

State v. Pardon, 272 N.C. 72, 76, 157 S.E.2d 698, 701 (1967) (quotation omitted). Defendant argues that imposition of SBM falls under the third category of ex post facto law: "a law which changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Id.

In determining whether a law inflicts a greater punishment than was established for a crime at the time of its commission, we first examine whether the legislature intended SBM to impose a punishment or to enact a regulatory scheme that is civil and nonpunitive. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1147, 155 L.Ed.2d 164, 176 (2003); State v. Johnson, 169 N.C.App. 301, 307, 610 S.E.2d 739, 743-44 (2005); White, 162 N.C.App. at 192, 590 S.E.2d at 454.

If the intent of the legislature was to impose punishment, that ends the inquiry. If however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the [legislature's] intention to deem it civil.

Doe v. Bredesen, 507 F.3d 998, 1003 (6th Cir.2007) (internal quotations omitted) (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 2082, 138 L.Ed.2d 501, ___ (1997)).

"Because we ordinarily defer to the legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Smith v. Doe, 538 U.S. at 92, 123 S.Ct. at 1147, 155 L.Ed.2d at 176 (internal citations and quotation marks omitted) (citations omitted).

A. Legislative Intent

Whether a statutory scheme is civil or criminal is first of all a question of statutory construction. We consider the statute's text and its structure to determine the legislative objective. A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it.

Smith, 538 U.S. at 92, 93, 123 S.Ct. at 1147, 155 L.Ed.2d at 177 (internal citations and quotation marks omitted). "`Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.'" State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995) (quoting Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)). However, if

the language of the statute is ambiguous or lacks precision, or is fairly susceptible of two or more meanings, the intended sense of it may be sought by the aid of all pertinent and admissible considerations. Proper considerations include the law as it existed at the time of its enactment, the public policy of the State as declared in judicial opinions and legislative acts, the public interest, and the purpose of the act.

State v. Sherrod, ___ N.C.App. ___, ___, 663 S.E.2d 470, 472-73 (2008) (internal citations and quotations omitted). "In discerning the intent of the General Assembly, statutes in pari materia should be construed together and harmonized whenever possible." State v. Jones, 359 N.C. 832, 836, 616 S.E.2d 496, 498 (2005) (citation omitted). "The courts must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Smith at 93, 123 S.Ct. at 1147, 155 L.Ed.2d at 177 (citation and internal quotation marks omitted). "It is well settled that statutes dealing with the same subject matter must be construed in pari materia, as together constituting one law." Williams v. Alexander County Bd. of Educ., 128 N.C.App. 599, 603, 495 S.E.2d 406, 408 (1998) (citation and quotation marks omitted).

The SBM provisions were enacted by N.C. Sess. Laws 2006-247, § 1(a) which states: "This act shall be known as `An Act To Protect North Carolina's Children/Sex Offender Law Changes.'" N.C. Sess. Laws 2006-247, § 1(a). The SBM provisions are located in part 5 of Article 27A of Chapter 14 of the General Statutes. Art. 27A of Chapter 14 of the General Statutes is entitled "Sex Offender and Public Protection Registration Programs." The SBM system is required to provide "[t]ime-correlated and continuous tracking of the geographic location of the subject using a global-positioning system based on satellite and other location tracking technology" and "[r]eporting of subject's violations of prescriptive and proscriptive schedule or location requirements. Frequency of reporting may range from once a day (passive) to near real-time (active)." N.C. Gen. Stat. § 14-208.40(c)(1)-(2) (2007).

The sex offender monitoring program monitors two categories of offenders. N.C. Gen.Stat. § 14-208.40(a) (2007). The first category is any offender who is convicted of a reportable conviction defined by N.C. Gen. Stat. § 14-208.6(4) and required to register as a sex offender under Part 3 of Article 27A because he or she is "classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense as defined in G.S. § 14-208.6." N.C. Gen.Stat. § 14-208.40(a)(1) (2007) (effective until Dec. 1, 2008). The second category is any offender who satisfies four criteria: (1) is convicted of a reportable conviction defined by § 14-208.6(4), (2) is required to register under Part 2¹ of Article 27A, (3) has committed an offense involving the "physical, mental, or sexual abuse of a minor," and (4) based on a risk assessment program, "requires the highest possible level of supervision and monitoring." N.C. Gen.Stat. § 14-208.40(a)(2) (2007) (effective until Dec. 1, 2008).

In construing the statute as a whole, we conclude the legislature intended SBM to be a civil and regulatory scheme. This Court has interpreted the legislative intent of Article 27A as establishing "a civil regulatory scheme to protect the public." See White, 162 N.C.App. at 193, 590 S.E.2d at 455 (holding that retroactive application of sex offender registration statute does not offend the ex post facto clause); see also State v. Sakobie, 165 N.C.App. 447, 452, 598 S.E.2d 615, 618 (2004) ("Having previously determined that Article 27A is a civil and not a criminal remedy, this panel is not at liberty to revisit the issue.") (citing In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d...