State v. Stines

• Decision Date: 06 October 2009
• Docket Number: No. COA08-1418.,COA08-1418.
• Citation: 683 S.E.2d 411
• Parties: STATE of North Carolina v. Stephen Jack STINES, Defendant.
• Court: North Carolina Court of Appeals

683 S.E.2d 411

STATE of North Carolina v. Stephen Jack STINES, Defendant.

No. COA08-1418.

Court of Appeals of North Carolina.

October 6, 2009.

Appeal by defendant from order entered 26 June 2008 by Judge Nathaniel J. Poovey in Catawba County Superior Court. Heard in the Court of Appeals 9 April 2009.

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

Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant.

GEER, Judge.

Defendant Stephen Jack Stines, a convicted sex offender, appeals from the trial court's order requiring him to enroll in the State's Satellite-Based Monitoring ("SBM") program. On appeal, defendant primarily contends that the State violated his procedural due process rights by failing to give him sufficient notice in advance of the SBM hearing of the basis for the Department of Correction's preliminary determination that he met the criteria for enrollment in the SBM program. After reviewing the statute at issue, N.C. Gen.Stat. § 14-208.40B (2007), we conclude that the statute itself requires that the Department of Correction notify the offender, in advance of the SBM hearing, of the basis for its determination that the offender falls within one of the categories set out in N.C. Gen.Stat. § 14-208.40(a) (2007), making the offender subject to enrollment in the SBM program. Because defendant, in this case, did not receive such notice, we reverse and remand for a new SBM hearing.

Facts

Defendant was convicted of taking indecent liberties with a child on 4 December 1997 and was sentenced to 17 to 21 months imprisonment. He subsequently pled guilty to another count of taking indecent liberties with a child on 17 May 2004 and was sentenced to 34 to 41 months imprisonment. Defendant was released from prison in January 2007 and placed on post-release supervision for five years.

In 2007, the General Assembly enacted N.C. Gen.Stat. § 14-208.40A (2007) and N.C. Gen.Stat. § 14-208.40B, which together set out the procedure for determining who is required to enroll in the SBM program. N.C. Gen.Stat. § 14-208.40B applies to offenders, like defendant in this case, who were previously convicted and sentenced without consideration of SBM. Pursuant to that statute, when an offender has been previously convicted and sentenced for a reportable conviction as defined by N.C. Gen.Stat. § 14-208.6(4) (2007), but a court has never determined whether he should be required to enroll in the SBM program, the Department of Correction must make an initial determination as to whether he falls into one of the categories of offenders set out in N.C. Gen. Stat. § 14-208.40(a). N.C. Gen.Stat. § 14-208.40B(b) further provides that if the Department of Correction determines that the offender does fall within N.C. Gen.Stat. § 14-208.40(a), it shall schedule an SBM hearing and shall notify the offender of the Department's determination and the date of the hearing.

On 15 February 2008, defendant received a letter from the Department of Correction informing him that he was to appear for an SBM hearing. The letter notified defendant that "[t]he Department of Correction has made the initial determination that you meet the criteria set out in General Statute 14-208.40(a), which requires your enrollment in Satellite Based Monitoring." The letter did not identify which of the criteria in N.C. Gen.Stat. § 14-208.40(a) the Department had concluded defendant met. After setting out the date, time, and location of the hearing, the letter explained that a trial court would finally decide whether defendant would be required to enroll in the SBM program.

At the hearing in Catawba County Superior Court on 23 June 2008, defendant moved to dismiss the proceedings against him, arguing that the application of the statute to him violated the ex post facto clauses of the state and federal constitutions. Defendant also argued that the letter sent to him by the Department of Correction was insufficient notice under the Due Process Clause of the United States Constitution and the Law of the Land Clause of the North Carolina Constitution. The trial court denied defendant's motion to dismiss and found that defendant fell within N.C. Gen.Stat. § 14-208.40(a) because "defendant is a recidivist as that term is defined pursuant to 14-208.2(b) [sic] in that he has two reportable convictions of taking indecent liberties with a minor or with a child." The trial court ordered defendant to enroll in the SBM program for the remainder of his natural life. Defendant timely appealed to this Court.

Discussion

On appeal, defendant first contends that requiring him to enroll in the SBM program violates the ex post facto clauses of the state and federal constitutions. This Court, however, recently rejected this argument in State v. Bare, ___ N.C.App. ___, ___, 677 S.E.2d 518, 531 (2009) (holding that retroactive application of SBM program does not violate ex post facto clause because program was intended by legislature to be civil, regulatory scheme and its effects are not so punitive as to negate that intent). We, therefore, do not discuss that argument further.

Defendant further contends that his procedural due process rights were violated because the Department's hearing notification letter did not indicate which of the N.C. Gen.Stat. § 14-208.40(a) categories applied to him or explain the basis for that determination. Our appellate courts have held that "[n]o process is due a person who is deprived of an interest by official action unless that interest is protected by law, i.e., unless it is an interest in life, liberty or property." Henry v. Edmisten, 315 N.C. 474, 480, 340 S.E.2d 720, 725 (1986). Once a protected life, liberty, or property interest has been demonstrated, the Court "must inquire further and determine exactly what procedure or `process' is due." Peace v. Employment Sec. Comm'n, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998).

We believe that requiring defendant to submit to SBM implicates a protected liberty interest. Although defendant is on post-release supervision and, accordingly, his liberty is already somewhat restricted, the SBM will continue past the conclusion of his post-release supervision. See N.C. Gen.Stat. § 14-208.42 (2007). In addition, if an offender is ordered to enroll in the SBM program, he will be required to have the necessary monitoring equipment attached to his person, and he will be required to cooperate with the Department of Correction and the SBM program's regulations. Id. The General Assembly has made it a criminal offense if the offender (1) fails to enroll in the program, (2) intentionally tampers or interferes with the functioning of the SBM device, or (3) fails to cooperate with the Department of Correction guidelines and regulations for the SBM program. N.C. Gen.Stat. § 14-208.44 (2007). The SBM program is required to use a global positioning system ("GPS") that permits time-correlated and continuous tracking of the offender and reporting of the offender's location from a minimum of once a day to a maximum of near real time. N.C. Gen.Stat. § 14-208.40(c).

Although our courts have not had occasion to address this issue before, in Commonwealth v. Cory, 454 Mass. 559, 911 N.E.2d 187 (2009), the Massachusetts Supreme Judicial Court recently discussed whether required participation in SBM infringes upon a protected liberty interest. The court identified two ways in which a GPS device would burden an individual's liberty: "by its permanent, physical attachment to the offender, and by its continuous surveillance of the offender's activities." Id. at 570, 911 N.E.2d at 196.

With respect to the first of these, the court reasoned that requiring an individual to permanently attach a GPS device to his or her person would be "dramatically more intrusive and burdensome" than the burden imposed through the State's sex offender registration program. Id. The court explained:

There is no context other than punishment in which the State physically attaches an item to a person, without consent and also without consideration of individual circumstances, that must remain attached for a period of years and may not be tampered with or removed on penalty of imprisonment. Such an imposition is a serious, affirmative restraint.

Id. As for the second potential intrusion on liberty, the court maintained:

The intended function of the GPS device, continuous reporting of the offender's location to the probation department, also represents an affirmative burden on liberty. While GPS monitoring does not rise to the same level of intrusive regulation that having a personal guard constantly and physically present would impose, it is certainly far greater than that associated with traditional monitoring. And the impact of such intrusion is of course heightened by the physical attachment of the GPS bracelet, which serves as a continual reminder of the State's oversight.

Id. at 570-71, 911 N.E.2d at 196-97.

The court then concluded that "[t]he GPS requirement thus places significant restraints on offenders" that amount to "liberty burdens." Id. at 571, 911 N.E.2d at 197. See also U.S. v. Smedley, 611 F.Supp.2d 971, 975 (E.D.Mo.2009) (holding that imposing home detention with electronic monitoring as condition of release impinged on liberty interest); U.S. v. Merritt, 612 F.Supp.2d 1074, 1079 (D.Neb.2009) (holding that "[a] curfew with electronic monitoring restricts the defendant's ability to move about at will and implicates a liberty interest protected under the Due Process Clause"); U.S. v. Arzberger, 592 F.Supp.2d 590, 600 (S.D.N.Y.2008) (recognizing that "the curfew and attendant electronic monitoring here would impinge on a constitutionally-protected liberty interest").

We agree with the reasoning of the Massachusetts Supreme Judicial Court and hold that requiring enrollment in the SBM program does deprive an offender of a...