State v. Perkins

• Decision Date: 18 January 2022
• Docket Number: COA20-572
• Citation: 2022 NCCOA 38
• Parties: STATE OF NORTH CAROLINA v. GREGORY ALDON PERKINS, Defendant.
• Court: North Carolina Court of Appeals

2022-NCCOA-38

STATE OF NORTH CAROLINA v. GREGORY ALDON PERKINS, Defendant.

No. COA20-572

Court of Appeals of North Carolina

January 18, 2022

Heard in the Court of Appeals 21 June 2021.

Appeal by Defendant from judgments entered 19 February 2020 by Judge Paul C. Ridgeway in Wake County Nos. 09 CRS 211758-60, 09 CRS 211765 Superior Court.

Attorney General Joshua H. Stein, by Special Deputy Attorney Generals Amy Kunstling Irene & Jonathan P. Babb, for the State.

Jason Christopher Yoder for defendant-appellant.

MURPHY, Judge.

¶ 1 An indictment for a sex crime that refers to a victim by her initials is facially valid when a person of common understanding would know the intent of the indictment was to charge the offender with the offense stated in the indictment and the offender's constitutional rights to notice and freedom from double jeopardy are adequately protected. Here the use of the victim's initials in two sex offense with a child indictments, one first-degree rape indictment, and one incest indictment did not render the indictments fatally defective because a person of common understanding would know the intent of the indictments was to charge Defendant with the offenses as stated in the indictments, and his constitutional rights to notice and freedom from double jeopardy were adequately protected.

¶ 2 The trial court is statutorily required to order a defendant to enroll in lifetime satellite-based monitoring ("SBM") when he is classified as a sexual predator a recidivist, convicted of an aggravated offense, or an adult convicted of statutory rape of a child or statutory sex offense with a victim under the age of thirteen. As Defendant was convicted of at least one aggravated offense, the trial court did not err by ordering him to enroll in lifetime SBM.^[1]

¶ 3 A defendant may maintain a claim for statutory ineffective assistance of counsel on appeal of an SBM order if he can demonstrate that the trial counsel's failure to object rises to the level of deficient performance and he was prejudiced by the deficient performance. However, Defendant fails to demonstrate he was prejudiced by Defense Counsel's failure to object to the reasonableness of the imposition of lifetime SBM because searches effected by the imposition of lifetime SBM upon aggravated sex offenders are per se reasonable.

BACKGROUND

¶ 4 This appeal includes a lengthy procedural history. We summarized the underlying facts of this case in one of Defendant's earlier appeals as follows:

In June 1998, [D]efendant [Gregory Aldon Perkins] was hired by "Jane"^[2] to perform computer system work for the Town of Albemarle. At that time, Jane was married with two girls, [Katrina] and [Maria]; [D]efendant was also married but had no children. Defendant and Jane separated from their spouses to begin dating each other. They married in June 2001 and subsequently moved from Albemarle to Apex.

[Maria] testified that when she was in the third grade [D]efendant began to sexually abuse her. Defendant would give [Maria] a back rub before moving his hands beneath her clothes. The sexual abuse included [D]efendant digitally penetrating her vagina and performing oral sex on her. Defendant also taught [Maria] how to perform oral sex on him. According to [Maria], the abuse occurred as many as four times a week.

In the summer before she began the sixth grade, [D]efendant had vaginal intercourse with [Maria]. Defendant offered [Maria] a "deal" by which she could receive things such as new clothes, no curfew restrictions, or spending more time with friends if she cooperated with his requests for sex. When [Maria] was in the ninth grade, [D]efendant convinced Jane to let [Maria] start taking birth control. [Maria] reiterated that [D]efendant would typically abuse her about four times a week.

In 2008, [D]efendant announced that he was unhappy with his marriage to Jane and wanted to move out of the house. Defendant's last sexual encounter with [Maria] occurred sometime between Christmas 2008 and January 2009 when he moved out.

In October 2009, [Maria] became upset while looking at pictures of accused sexual offenders in a newspaper and told her boyfriend that [D]efendant had sexually abused her. [Maria] then told her sister, [Katrina], and her mother, Jane, that [D]efendant had abused her "for a long time." Jane called the Apex Police Department.

The Apex Police interviewed [Maria], [Katrina], Jane, and [Maria's] boyfriend. They also interviewed two childhood friends of [Maria] who, years before, had been told by [Maria] that she was being sexually abused by [D]efendant. Mental health counselors determined that [Maria] was depressed and exhibited symptoms of post-traumatic stress disorder associated with long-term child sexual abuse. When interviewed by the Apex Police, [D]efendant denied [Maria's] allegations and stated that [Maria] created the allegations against him because she did not want [D]efendant to reconcile with Jane.

State v. Perkins, COA13-1352 (further citation omitted) (2014) (unpublished) ("Perkins I"), disc. rev. denied, (further citation omitted) (2015).^[3] On 5 January 2010, Defendant was indicted, inter alia, for two counts of first-degree sexual offense with a child (one count by digital vaginal penetration and one count by cunnilingus), one count of indecent liberties with a child, one count of first-degree rape of a child, and one count of incest.

¶ 5 Defendant's first trial began in November 2010. On 29 November 2010, a mistrial was declared after the jury failed to reach a unanimous verdict. Defendant was retried on 19 September 2011. The jury found Defendant guilty of one count of taking indecent liberties with a child but was unable to reach unanimous verdicts on the other charges. As a result, the trial court declared a mistrial for the remaining charges and sentenced Defendant on the one indecent liberties conviction. Defendant received (as a Prior Record Level I offender) an active sentence of 16 to 20 months.

¶ 6 Defendant did not timely appeal the indecent liberties conviction. As the only remaining avenue to appellate review, Defendant filed a Petition for Writ of Certiorari with this Court for the purpose of reviewing the judgment entered upon his indecent liberties conviction. We allowed his petition and found no error. State v. Perkins, COA15-5, (further citation omitted) (2015) (unpublished) ("Perkins II"), disc. rev. denied, appeal dismissed, (further citation omitted) (2015).

¶ 7 In 2012, Defendant was retried for the remaining charges: two counts of first- degree sexual offense with a child, one count of first-degree rape, and one count of incest. On 4 December 2012, the jury found Defendant guilty on these charges. During sentencing, Defense Counsel stipulated to Defendant being sentenced as a Prior Record Level II offender, with his indecent liberties conviction from the second trial listed on the prior record level worksheet as his only prior conviction. Defendant received three consecutive active sentences of 276 to 341 months each for the two first-degree sexual offense with a child convictions and the first-degree rape conviction. Defendant further received a consecutive sentence of 19 to 23 months for the incest conviction. Defendant was also ordered to register as a sex offender for his natural life and to enroll in SBM for his natural life upon his release from imprisonment.

¶ 8 Defendant timely appealed the judgments from his third trial, arguing the trial court erred (1) "in ruling that Defendant's prior [indecent liberties with a child] conviction was admissible"; (2) "in using Defendant's prior [indecent liberties with a child conviction] to calculate his prior record level"; and (3) "by failing to intervene ex mero motu during the prosecutor's arguments during sentencing." Perkins I. We found no error. Id.

¶ 9 On 30 December 2016, Defendant filed a motion for appropriate relief ("MAR"), arguing he received ineffective assistance of counsel at his third trial when Defense Counsel stipulated to sentencing Defendant as a Prior Record Level II offender. Defendant further argued he should be resentenced on the two first-degree sexual offense with a child convictions, the first-degree rape conviction, and the incest conviction as a Prior Record Level I offender. The trial court denied Defendant's MAR. ¶ 10 Defendant subsequently filed a Petition for Writ of Certiorari with this Court seeking review of the trial court's order denying his MAR. We allowed the petition, vacated the trial court's order denying the MAR, and remanded the case for reconsideration in light of our holdings in State v. West, 180 N.C.App. 664, 638 S.E.2d 508 (2006), disc. rev. denied, appeal dismissed, 361 N.C. 368, 644 S.E.2d 562 (2007), and State v. Watlington, 234 N.C.App. 601, 759 S.E.2d 392, disc. rev. denied, 367 N.C. 791, 766 S.E.2d 644 (2014). On remand, the trial court "[found] the stipulation to be erroneous" but did "not find that the stipulation by trial counsel [rose] to the level of ineffective assistance of counsel[.]" As a result, the trial court ordered a new sentencing hearing.

¶ 11 On 19 February 2020, Defendant was resentenced as a Prior Record Level I offender for the two first-degree sexual offense with a child convictions, the first-degree rape conviction, and the incest conviction. Pursuant to the trial court's judgments dated 19 February 2020, Defendant received three consecutive active sentences of 240 to 297 months each for the two first-degree sexual offense with a child convictions and the first-degree rape conviction. Defendant further received a consecutive sentence of 16 to 23 months for the incest conviction. The trial court further ordered that "upon release from imprisonment [Defendant] shall enroll in...