State v. Davison

• Citation: 689 S.E.2d 510
• Decision Date: 08 December 2009
• Docket Number: No. COA09-212.,COA09-212.
• Parties: STATE of North Carolina v. Robert MacFarlane DAVISON.
• Court: Court of Appeal of North Carolina (US)

689 S.E.2d 510

STATE of North Carolina v. Robert MacFarlane DAVISON.

No. COA09-212.

Court of Appeals of North Carolina.

December 8, 2009.

Appeal by Defendant from judgment and order entered 29 September 2008 by Judge R. Stuart Albright in Superior Court, Forsyth County. Heard in the Court of Appeals 2 September 2009.

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

Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for Defendant-Appellant.

McGEE, Judge.

Robert MacFarlane Davison (Defendant) entered an Alford plea of guilty on 29 September 2008 to attempted first-degree sex offense and taking indecent liberties with a child. The trial court sentenced Defendant to a term of 94 months to 122 months in prison and ordered Defendant, following his release from custody, to enroll in a satellite-based monitoring (SBM) program for the remainder of his natural life. Defendant appeals from the order subjecting him to SBM for the remainder of his natural life.

As a factual basis for Defendant's plea, the State asserted that BM, the victim, was five years old at the time of the offense. BM, along with her mother and sister, had been staying with Defendant in his residence after BM's mother moved from her marital residence because of family issues. BM's mother left BM in Defendant's care during the evenings while she worked.

BM informed her mother one morning that her "coochee [referring to her vagina] hurt because [Defendant] wouldn't quit touching it." BM's mother inspected that area of BM's body and took BM to an emergency room. Defendant was subsequently charged with first-degree sex offense and indecent liberties with a child. Defendant entered an Alford plea in exchange for the State's agreement to reduce the charge of first-degree sex offense to attempted first-degree sex offense and to limit the sentence for the charge of indecent liberties to the bottom of the mitigated range.

In entering his plea, Defendant made the following statement to the trial court:

I want it perfectly clear that everybody says I put my finger in her, it was the very tip. I did not insert my finger like everybody is implying. Like when you swipe for a booger, that's all, but under the statute law, that was a crime. . . . I meant no harm. She was the one laying on the floor. She was the one that I say lethargic [sic], because I had a massive migraine and I didn't understand at the time that she had actually — was falling asleep. This was at a midnight time frame and I now know that she had fallen asleep, and when I woke her up laying on the bathroom floor, it caught her by surprise. And when she said her weewee hurt, I had all these toys and I didn't know — I said, "Why does your weewee hurt?" She had mentioned that she had put something where she shouldn't have. So that's why my mind thought, well, maybe she put something in there. So I wasn't trying to molest her. . . .

The trial court accepted Defendant's plea, finding that both of the offenses were "sexually violent offenses as defined by statute, making both of them reportable [convictions pursuant to N.C. Gen.Stat. § 14-208.6(4).]" The trial court also found that the offenses "involve[d] the sexual, physical and mental abuse of a minor."

The trial court entered the following order:

The [c]ourt would order the State to have a risk assessment performed on this offender before the end of the day, if at all possible, and report back to the [c]ourt. Given the fact of his confession, which I was unaware of, and given the fact of what he's pleading guilty to, I'd be inclined to still find it's an aggravated offense when you combine the two together. However, I still want to see the risk assessment in any event, and I will continue these proceedings. That's the judgment of the [c]ourt. The only reason I'm continuing the rest of the proceedings is to determine the duration of the lifetime or the duration of the satellite monitoring and possibly lifetime registration requirements.

In a brief exchange with Defendant's counsel, the trial court stated: "At this point, I would be inclined to find an aggravated offense. However, because we can do it and I'd rather just go ahead and do it on the front end, let's go ahead and have his risk assessment performed."

The risk assessment was completed that day and Defendant was determined to be in the "Low" risk category. After reviewing the risk assessment, the trial court then made the following announcement:

All right. I have the assessment. It's a low category. Notwithstanding what the assessment is — and I appreciate the assessment being completed — obviously I didn't know all the facts of the case until I heard from both parties. Given the fact that it's undisputed about at least the defendant's confession as to what he — it's no longer allegedly did to the victim in the case. I understand there are different reasonings possibly, but coupled with what he did, his overt acts to the child, with his pleas, I'm going to find it to be an aggravated offense and I will order monitoring and registration for a lifetime. That's going to be the judgment of the [c]ourt.

Defendant's Argument

Defendant argues the trial court erred in ordering that Defendant be registered as a sex offender for life and also be enrolled in SBM for life, because the trial court lacked statutory authority to do so. Defendant asserts that the trial court failed to follow the procedure set forth by statute for determining whether SBM is required. Defendant also argues the trial court lacked statutory authority to order Defendant to enroll in SBM for life because its finding that the crimes to which Defendant entered Alford pleas constituted "aggravated offense[s]" was erroneous as a matter of law. We agree and address each argument in turn.

Resolution of issues involving statutory construction is "ultimately a question of law for the courts." Brown v. Flowe, 349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998). "`"[W]here an appeal presents [a] question[] of statutory interpretation, full review is appropriate,"' and we review a trial court's conclusions of law de novo." Bruning & Federle Mfg. Co. v. Mills, 185 N.C.App. 153, 156, 647 S.E.2d 672, 674, cert. denied, 362 N.C. 86, 655 S.E.2d 837 (2007), (quoting Coffman v. Roberson, 153 N.C.App. 618, 623, 571 S.E.2d 255, 258 (2002)). We therefore review de novo the trial court's interpretation of the procedure required under N.C. Gen.Stat. § 14-208.40A and the trial court's application of the statutory procedure in this case.

In matters of statutory interpretation, our Court applies the following principle set forth by our Supreme Court: "`[w]hen the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required.'" State v. Abshire, 363 N.C. 322, 329-30, 677 S.E.2d 444, 450 (2009) (quoting Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006)).

Sentencing Procedure

We first address whether the trial court followed the correct procedure in sentencing Defendant. We hold that it did not.

The SBM program was created to monitor two categories of offenders:

(1) Any offender who is convicted of a reportable conviction as defined by G.S. 14-208.6(4) and who is required to register under Part 3 of Article 27A of Chapter 14 of the General Statutes because the defendant is classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense as those terms are defined in G.S. 14-208.6.

(2) Any offender who satisfies all of the following criteria: (i) is convicted of a reportable conviction as defined by G.S. 14-208.6(4), (ii) is required to register under Part 2 of Article 27A of Chapter 14 of the General Statutes, (iii) has committed an offense involving the physical, mental, or sexual abuse of a minor, and (iv) based on the Department's risk assessment program requires the highest possible level of supervision and monitoring.

N.C. Gen.Stat. § 14-208.40(a) (2007).

N.C. Gen.Stat. § 14-208.40A (2007) sets forth the procedural framework for a determination of SBM enrollment.¹ First, a trial court must determine whether a defendant's conviction is "a reportable conviction" as defined by N.C. Gen.Stat. § 14-208.6(4). N.C. Gen.Stat. § 14-208.40A(a) (2007). A "reportable conviction" is defined in pertinent part as "[a] final conviction for an offense against a minor, a sexually violent offense, or an attempt to commit any of those offenses unless the conviction is for aiding and abetting[.]" N.C. Gen.Stat. § 14-208.6(4)(a) (2007).

The next step requires that

the district attorney shall present to the court any evidence that (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, or (iv) the offense involved the physical, mental, or sexual abuse of a minor. The district attorney shall have no discretion to withhold any evidence required to be submitted to the court pursuant to this subsection. The offender shall be allowed to present to the court any evidence that the district attorney's evidence is not correct.

N.C.G.S. § 14-208.40A(a).

After presentation of the above-described evidence by the district attorney, the trial court must determine whether a defendant's conviction places the defendant "in one of the categories described in G.S. 14-208.40(a)[.]" N.C. Gen.Stat. § 14-208.40A(b) (2007). If so, the trial court

shall make a finding of fact of that determination, specifying whether (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, or (iv) the offense involved the physical, mental, or sexual abuse of a minor.

Id.

The trial court...