State v. Sparks

• Decision Date: 07 March 2008
• Docket Number: No. 160A07.,160A07.
• Citation: 657 S.E.2d 655,362 N.C. 181
• Parties: STATE of North Carolina v. Adam Edward SPARKS, Jr.
• Court: North Carolina Supreme Court

657 S.E.2d 655

362 N.C. 181

STATE of North Carolina v. Adam Edward SPARKS, Jr.

No. 160A07.

Supreme Court of North Carolina.

March 7, 2008.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 182 N.C.App. 45, 641 S.E.2d 339 (2007), reversing an order entered 24 October 2005 by Judge Timothy L. Patti in Superior Court, Catawba County. Heard in the Supreme Court 10 September 2007.

Roy Cooper, Attorney General, by Ashby T. Ray, Assistant Attorney General, for The State.

Richard E. Jester, Louisburg, for defendant-appellant.

HUDSON, Justice.

Here we review a decision of the Court of Appeals reversing the trial court's order granting, on double jeopardy grounds, defendant's motion to dismiss the criminal charge of failing to register his change of address with the county sheriff as required by N.C.G.S. § 14-208.9. The majority in the Court of Appeals determined that the constitutional protections of double jeopardy do not apply to a post-release supervision and parole revocation hearing¹ (hereinafter, "post-release revocation hearing") and that the revocation of post-release supervision (hereinafter, "post-release") and reinstatement of the time remaining on the original sentence do not constitute new or additional punishment. Hence, the Court of Appeals concluded that double jeopardy did not bar the State from pursuing a criminal charge against defendant for failing to register as a sex offender. We affirm.

I. BACKGROUND

On 29 November 1999, defendant Adam Edward Sparks, Jr. pleaded guilty to sexual activity by a substitute parent, indecent liberties with a child, and crime against nature, offenses classified respectively as Class E, Class F, and Class I felonies. N.C.G.S. §§ 14-27.7(a), -202.1, -177 (2005). Defendant was sentenced to an active term of twenty-five to thirty-nine months for sexual activity by a substitute parent, plus a consecutive sixteen to twenty month term for the other convictions. In addition, N.C.G.S. § 14-208.7 required defendant to register as a sex offender.

On 24 February 2003, after defendant had served thirty-nine months in prison, he was granted early release and placed on post-release. On the same date, defendant registered as a sex offender in Catawba County in accordance with section 14-208.7.

On 4 December 2003, defendant's post-release supervising officer completed a Post-Release Supervision and Parole Commission violation report, which alleged that defendant had violated conditions of his post-release by: (1) leaving his residence without notifying his post-release officer and failing to make his whereabouts known, rendering himself "an absconder;" (2) failing to pay the monthly supervision fee set by law; and (3) not complying with his mandatory sex offender treatment program (over five unexcused absences and an outstanding balance of $480.00 in costs for such treatment).

On 1 July 2004, the North Carolina Department of Correction's Post-Release Supervision and Parole Commission ("Commission") revoked defendant's post-release status, which it called "parole," after "having found that this parolee [was] not adjusting satisfactorily or [had] violated conditions of parole," pursuant to "[N.C.G.S. §] 15A-1373."² The Commission activated the remainder of defendant's original sentence, which defendant served from 5 June 2004 through 20 December 2004, the date of his final, unconditional release.

On 2 August 2004, while defendant was serving out his time, a grand jury indicted him for failing to comply with sex offender registration as required by N.C.G.S. § 14-208.9 and in violation of N.C.G.S. § 14-208.11, which is a Class F felony. Specifically, the indictment alleged that on or about 13 December 2003, defendant

fail[ed] to register with the Sheriff's office in the County where the defendant did in fact reside and fail[ed] to provide written notice of his change of address no later than the 10th day after his change in address to the Sheriff's office in the County of Catawba with whom the individual was last registered.

Defendant moved to dismiss the charge, alleging that the State could not both revoke his post-release for absconding and prosecute him for failing to notify the sheriff about his change of address without violating constitutional prohibitions against double jeopardy. On 19 September 2005, defendant testified that a hearing officer informed him at his June 2004 post-release revocation hearing that "he found me guilty of absconding, and that was the only thing he found me guilty of." On 24 October 2005, the trial court allowed defendant's motion and dismissed the charge, concluding that "to prosecute the Defendant for the offense alleged ... would place the Defendant in jeopardy twice for the same behavior."

The State appealed. In the Court of Appeals, the State argued that double jeopardy protection did not apply here and the trial court erred by allowing defendant's motion to dismiss. The State asserted, inter alia, that as with probation revocation hearings, double jeopardy does not apply to these post-release proceedings. Specifically, the State contended that like a probation revocation hearing, a post-release revocation hearing is not a criminal prosecution and revoking post-release and activating the remaining sentence does not constitute new or additional punishment. The State maintained that such hearings merely involve an administrative determination of whether the supervisee violated one or more conditions of release, and if so, whether to revoke his post-release and impose consequences.

Defendant contended that a post-release revocation hearing is more like a criminal contempt proceeding and consequently is a criminal prosecution. He asserted that since the indictment contained the same "elements" as the conduct for which his post-release was revoked, allowing the State to prosecute him for the indictment would violate the Blockburger or "same elements" test for double jeopardy. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). The Court of Appeals majority agreed with the State and reversed the trial court's order. State v. Sparks, 182 N.C.App. 45, 49, 641 S.E.2d 339, 342 (2007).

The dissenter would have affirmed the trial court and concluded that defendant would be placed in double jeopardy if the State were permitted to indict and prosecute him for failing to register as a sex offender. Id. at 51-52, 641 S.E.2d at 343 (Tyson, J., dissenting). The dissenting judge reasoned that because the State failed to object to two of the trial court's findings of fact, these "unchallenged findings of fact [which] state [that] this indictment would place defendant in `jeopardy twice'" were binding on appeal. Id. at 50-51, 641 S.E.2d at 343. These "findings of fact" are:

10. That the actions of the defendant, of allegedly leaving his residence at 780 3rd Ave. Place SE, Hickory, North Carolina, and not making his whereabouts known are the basis for the pending criminal charges in Catawba County file # 04-CRS-11042 and were also part of the basis for the violation report which was drafted by the Defendant's probation officer to terminate his post-release supervision.

....

13. That the parole document which terminated/revoked the Defendant's post-release supervision is non-specific as to the reason the Defendant's post-release supervision was terminated/revoked. The Court further finds that one of the allegations for the hearing was that the Defendant had moved from his residence, and that to prosecute the Defendant for moving from his residence without notifying the sheriff in 04-CRS-11042 would place the Defendant in jeopardy twice for the same behavior.

The dissent went on to note that the "trial court's order conclusively states [that] defendant's actions of (1) `leaving his residence' and (2) `not making his whereabouts known' [were] the basis for both defendant's revocation of his post-release supervision and reincarceration and his subsequent criminal indictment." Id. at 50, 641 S.E.2d at 343. As a result, "[t]he trial court properly concluded that `to prosecute the Defendant for the offense alleged in the [indictment] would place the Defendant in jeopardy twice for the same behavior.'" Id. at 51, 641 S.E.2d at 343 (brackets added by court).

II. ANALYSIS

First, we address the argument, brought forth by defendant to this Court due to the dissenting opinion, that the State failed to assign error properly to the trial court's findings of fact, which rendered them binding on appeal and conclusively established a double jeopardy violation. It is well established that if a party fails to object to the findings of fact and bring them forward on appeal, they are binding on the appellate court. See, e.g., State v. Pendleton, 339 N.C. 379, 389, 451 S.E.2d 274, 280 (1994), cert. denied, 515 U.S. 1121, 115 S.Ct. 2276, 132 L.Ed.2d 280 (1995). However, "findings of fact [which] are essentially conclusions of law ... will be treated as such on appeal." Harris v. Harris, 51 N.C.App. 103, 107, 275 S.E.2d 273, 276 (citations omitted), disc. rev. denied, 303 N.C. 180, 280 S.E.2d 452 (1981); see also City of Charlotte v. Heath, 226 N.C. 750, 755, 40 S.E.2d 600, 604 (1946) ("The label of fact put upon a conclusion of law will not defeat appellate review."). In distinguishing between findings of fact and conclusions of law, "[a]s a general rule, ... any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law." In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997) (citing Plott v. Plott, 313 N.C. 63, 74, 326 S.E.2d 863, 870 (1985), and Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 657-58 (1982)).

Here, the trial court's statement in finding of fact number 13 "[t]hat to prosecute the Defendant for moving from his residence without notifying the sheriff ... would place the...