State v. Singleton

• Decision Date: 05 January 2010
• Docket Number: No. COA09-263.,COA09-263.
• Citation: 689 S.E.2d 562
• Parties: STATE of North Carolina v. Michael Burnette SINGLETON, Defendant.
• Court: North Carolina Court of Appeals

689 S.E.2d 562

STATE of North Carolina v. Michael Burnette SINGLETON, Defendant.

No. COA09-263.

Court of Appeals of North Carolina.

January 5, 2010.

Appeal by defendant from judicial findings and order entered on or about 29 August 2008 by Judge Henry E. Frye, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 2 September 2009.

Attorney General Roy A. Cooper, III, by Special Counsel Hilary S. Peterson, for the State.

Robert W. Ewing, Clemmons, for defendant-appellant.

STROUD, Judge.

Defendant appeals from an order requiring him to enroll in satellite-based monitoring (SBM) pursuant to N.C. Gen.Stat. § 14-208.40B for the remainder of his natural life. Because the plain language of N.C. Gen.Stat § 14-208.40(a)(1), N.C. Gen.Stat. § 14-208.40B(c) and N.C. Gen.Stat. § 14-208.6(1a) requires enrollment in lifetime satellite-based monitoring for an offender who is convicted of an "aggravated offense," we reverse.

I. Factual background

On 5 May 2006, a warrant for defendant's arrest was issued, charging him with taking indecent liberties with a child pursuant to N.C. Gen.Stat. § 14-202.1(a)(1) (2005). At the time of the offense, defendant was age sixteen and the victim was age four. On 19 June 2006, a superceding indictment was issued, also charging defendant with taking indecent liberties with a child. On 21 August 2006, defendant pled guilty to a charge of taking indecent liberties with a child pursuant to N.C. Gen.Stat. § 14-202.1. Defendant had no prior record and was sentenced within the presumptive range based on prior record level I to imprisonment for not less than sixteen months and not more than twenty months, but this sentence was suspended and defendant was placed on probation for thirty-six months. Defendant was placed on intensive supervision for six months and was required to remain in high school, to complete the sex offender control program, and to register as a sex offender.

On 2 June 2008, the State filed a Petition for Judicial Findings as to Satellite-Based Monitoring, pursuant to N.C. Gen.Stat. § 14-208.40B (2007) for the trial court to order defendant to enroll in SBM. The State alleged that (1) the defendant is classified as a sexually violent predator pursuant to N.C. Gen.Stat. § 14-208.40B or; (2) the defendant is a recidivist or; (3) the offense of which defendant was convicted was an aggravated offense. The petition identified defendant's prior reportable conviction¹ for taking indecent liberties with a child as the basis for the request for SBM.

The trial court held the SBM determination hearing on 29 August 2008. The State presented testimony by Probation Officer Brian Holbrook, who was defendant's assigned probation officer. Officer Holbrook testified that defendant had not been assessed as a sexually violent predator, and that he had no prior convictions, so he was not a recidivist, but that defendant's conviction was for an "aggravated offense." Officer Holbrook testified that the victim was a 4 year old boy who was a friend of the family. On 20 April 2006, defendant and the victim were playing outside and then they went inside and, "long story short, there was anal penetration on a four year old boy." The court inquired "I guess as a result of the plea, it was reduced to indecent liberties?" Officer Holbrook answered, "Yes, Your Honor." Although the record does not contain defendant's STATIC 99 Risk Assessment, Officer Holbrook testified that the probation department had made a determination that defendant "is risked at a high."² Officer Holbrook noted that he could inform the court "about his supervision if you'd like[,]" but the court inquired only as to whether defendant was registered, and Officer Holbrook said that defendant was registered as a sex offender. Defendant did not present any evidence. On 29 August 2008, the trial court entered an order finding that "The defendant (a) falls into one of the categories requiring satellite-based monitoring under G.S. 14-208.40 in that the offense of which the defendant was convicted was an aggravated offense." The trial court therefore ordered that defendant shall enroll in SBM for "the remainder of his natural life."

II. Grounds for Appellate Review

Defendant first argues that the court has jurisdiction over this appeal pursuant to N.C. Gen.Stat. § 7A-27(b)³ and N.C. Gen. Stat. § 15A-1442⁴. In the alternative, defendant filed a petition for certiorari requesting review pursuant to N.C. Gen.Stat. § 15A-1444 (a1) (2007). The State does not contest that this Court has jurisdiction over this appeal, although the State argues that certiorari is not appropriate. However, defendant's argument as to the grounds for appellate review is well-taken, as the grounds for appeal are not entirely obvious. Although this Court has considered several appeals of orders for SBM under N.C. Gen. Stat. § 14-208.40B and N.C. Gen.Stat. § 14-208.40A, we have not addressed the basis for this Court's jurisdiction. Unfortunately, Chapter 14, Article 27A leaves many procedural questions as to SBM, including the manner of appeal, unanswered.

Generally, appeals based upon "errors committed in criminal trials and proceedings" are governed by Article 91 of Chapter 15A, the Criminal Procedure Act. N.C. Gen.Stat. § 15A-1401 (2007). Appellate jurisdiction in criminal appeals by a defendant and grounds for appeal in criminal cases are set forth in N.C. Gen.Stat. § 15A-1442 and N.C. Gen.Stat. § 15A-1444. "[A] defendant's right to appeal in a criminal proceeding is purely a creation of state statute. Furthermore, there is no federal constitutional right obligating courts to hear appeals in criminal proceedings." State v. Pimental, 153 N.C.App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).

Generally, the right to appeal in criminal cases is set out in N.C. Gen.Stat. § 15A-1444 (2003). Under that statute, a defendant who pleads not guilty at trial may appeal the judgment itself as a matter of right. N.C. Gen.Stat. § 15A-1444(a). In addition, a defendant who was found guilty or who pled guilty or no contest has the right to appeal the following issues:

(1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant's prior record level under N.C. Gen.Stat. § 15A-1340.14 or the defendant's prior conviction level under N.C. Gen.Stat. § 15A-1340.21; (3) whether the sentence constitutes a type of sentence not authorized by N.C. Gen.Stat. § 15A-1340.17 or § 15A-1340.23 for the defendant's class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant's motion to suppress; and (5) whether the trial court improperly denied the defendant's motion to withdraw his guilty plea.

State v. Brown, 170 N.C.App. 601, 606, 613 S.E.2d 284, 287 (quoting State v. Carter, 167 N.C.App. 582, 584, 605 S.E.2d 676, 678 (2004)), disc. review denied, 360 N.C. 68, 621 S.E.2d 882 (2005).

In Brown, this Court held that a defendant has no statutory right of appeal from an order denying post-conviction DNA testing pursuant to N.C. Gen.Stat. § 15A-269. Id. at 606-07, 613 S.E.2d at 287. We rejected defendant's contention that he had a right to appeal under N.C. Gen.Stat. § 7A-27(b) because a post-conviction DNA motion is a "criminal proceeding," but an order denying DNA testing is not a "final judgment" in a "criminal proceeding." Id. at 606, 613 S.E.2d at 287. We went on to hold that

[u]nder N.C. Gen.Stat. § 15A-101(4a) (2003), judgment is defined as `when sentence is pronounced.' See also Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 165, 82 L.Ed. 204, 204 (1937) (`Final judgment in a criminal case means sentence. The sentence is the judgment.'). The [order denying post-conviction DNA testing] does not involve the pronouncement of a sentence.

Id. at 606-07, 613 S.E.2d at 287.

In all of the SBM cases considered thus far by this Court, the SBM hearings have been conducted as "criminal" hearings, at least in the sense that the hearings were placed on criminal, not civil, calendars; the district attorney has represented the State; and the defendants have been represented by court-appointed counsel. However, SBM hearings are not "criminal" proceedings in the sense as addressed by Article 15A, Chapter 91. N.C. Gen.Stat. § 1-5 (2007) defines a "criminal action" as "(1) An action prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof. (2) An action prosecuted by the State, at the instance of an individual, to prevent an apprehended crime against his person or property." N.C. Gen.Stat. § 1-6 (2007) provides that "[e]very other is a civil action." A SBM proceeding is prosecuted by the State, but the defendant has not been charged with a "public offense" for which the State is seeking punishment. State v. Bare, ___ N.C.App. ___, ___, 677 S.E.2d 518, 526-27 (2009) (holding that even though the SBM hearings are prosecuted by the State, they are not designed as criminal punishment). According to N.C. Gen.Stat. §§ 1-5 and 1-6, an SBM proceeding, particularly one conducted under N.C. Gen.Stat. § 14-208.40B, would not be a "criminal action," so it must be a "civil action." In a SBM hearing, there is no entry of a plea of "guilty," "not guilty" or "no contest." See N.C.Gen. Stat. § 15A-1444. There is no jury verdict and certainly no "sentence" is pronounced in a SBM determination hearing under N.C. Gen.Stat. § 14-208.40B.⁵ The SBM determination is distinguished from post-conviction DNA testing by the fact that a motion for DNA testing seeks to attack the underlying final criminal judgment. If a post-conviction DNA testing reveals evidence which is favorable to the defendant, "the court shall enter an order that `serves the interests of justice' and may (1) vacate and set aside the...