State v. Jones

NO. COA13-1181

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Craven County
No. 98 CRS 915
PHILLIP MARK JONES

Appeal by defendant from order entered 7 February 2013,

nunc pro tunc to 25 January 2013, by Judge Benjamin G. Alford in

Craven County Superior Court. Heard in the Court of Appeals 22

April 2014.

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

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt, for defendant.

HUNTER, Robert C., Judge.

Defendant Phillip Mark Jones appeals the order requiring

him to enroll in satellite-based monitoring (“SBM”) for the

duration of his post-release supervision. On appeal, defendant

argues that: (1) the trial court lacked subject matter

jurisdiction to order SBM because the State presented no

evidence that defendant was a resident of Craven County at the

time of the SBM hearing; and (2) the trial court’s “additional
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findings” supporting the highest possible level of supervision

and monitoring were not supported by competent evidence.

After careful review, we reverse the SBM order.

Background

On 15 January 1998, defendant pled guilty to statutory

rape; the trial court sentenced him to 173 months to 217 months

imprisonment (“the 1998 offense”). While defendant was serving

his prison sentence, the North Carolina Department of Public

Safety (“DPS”) sent him notice that it had scheduled an SBM

determination hearing in Craven County Superior Court after

making the initial determination that defendant fell into a

category that made him eligible for SBM. DPS claimed that it

made that determination based on defendant’s 1998 conviction in

Craven County which “involv[ed] the physical, mental, or sexual

abuse of a minor.” Defendant acknowledged that he received the

notice by signing the letter on 9 October 2012.

Prior to the SBM hearing, defendant submitted to a STATIC-

99 assessment, the tool used by the Division of Adult Correction

for assessing a sexual offender’s likelihood for reoffending.

Defendant earned a score of three points, which indicated a

“moderate-low” risk of reoffending. The results of the STATIC-

99 were submitted to the trial court at defendant’s SBM hearing.
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The trial court held the SBM hearing on 25 January 2013.

Defendant stipulated that he had received notice of the hearing.

As for the prior conviction, the State submitted evidence

showing that, in 1994, defendant had been initially charged with

first degree sex offense; however, the prosecuting attorney had

reduced the charge to assault on a female, to which defendant

pled guilty (94 CR 1252) (“the 1994 offense”). In defendant’s

file, the trial court noted that there was a 1997 report from

Dorothea Dix Hospital evaluating defendant; the psychiatric

evaluation was completed before his 1998 trial for statutory

rape. Although the trial court reviewed the Dix report, it

“ascribe[d] no significance” to it given that it was over

fifteen years old. The trial court asked defendant’s probation

officer how defendant was “doing” on probation; the officer

reported that defendant has reported to all his office

appointments, has not missed a curfew, and has been paying the

money he owes.

On a standard, preprinted AOC form, the trial court made

the following findings: (1) defendant was convicted of a

reportable conviction; (2) defendant fell into at least one of

the categories requiring SBM; (3) the District Attorney

scheduled a hearing in the county in which defendant resided and
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provided adequate notice of the hearing; and (4) defendant’s

1998 conviction involved the physical, mental, or sexual abuse

of a minor. The trial court made two “additional findings”: (1)

there was a short period of time from the conclusion of

defendant’s supervision for the “prior sexual offense” in 94 CR

1252 to reoffending (“additional finding no. 1”); and (2) there

was a similarity between the victims in both age and sex

(“additional finding no. 2”). Based on these “additional

findings,” the trial court ordered that defendant enroll in the

highest possible level of supervision and monitoring until his

post-release supervision ended for the 1998 offense (at some

point in October 2017). Defendant filed timely notice of

appeal.

Standard of Review

For SBM enrollment, “the trial court is statutorily

required to make findings of fact to support its legal

conclusions.” State v. Morrow, 200 N.C. App. 123, 126, 683

S.E.2d 754, 757 (2009), aff’d per curiam, 364 N.C. 424, 700

S.E.2d 224 (2010). On appeal, this Court “review[s] the trial

court’s findings of fact to determine whether they are supported

by competent record evidence[.]” State v. Kilby, 198 N.C. App.

363, 367, 679 S.E.2d 430, 432 (2009). Moreover, the Court
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reviews the trial court’s conclusions of law for “legal accuracy

and to ensure that those conclusions reflect a correct

application of law to the facts found.” State v. Clark, 211

N.C. App. 60, 70, 714 S.E.2d 754, 761 (2011).

Arguments

I. Subject Matter Jurisdiction

First, defendant argues that the trial court lacked subject

matter jurisdiction over him to order SBM. Specifically,

defendant contends that the State failed to present any evidence

that defendant was a resident of Craven County at the time of

the hearing; therefore, the trial court’s finding that the

hearing was held in the county of defendant’s residence was not

supported by competent evidence. Based on State v. Mills, __

N.C. App. __, 754 S.E.2d 674 (2014), we dismiss defendant’s

argument.

Pursuant to N.C. Gen. Stat. § 14-208.40B(b), “[i]f the

[DOC] determines that the offender falls into one of the

categories described in [N.C. Gen. Stat. §] 14-208.40(a), the

district attorney, representing the [DOC], shall schedule a

hearing in superior court for the county in which the offender

resides.” Defendant argues that although he did not challenge

the location of the hearing before the trial court, this issue
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may be raised for the first time on appeal since it addresses

subject matter jurisdiction.

In support of his argument, defendant cites two unpublished

cases. However, this Court’s recent published opinion in Mills,

is controlling. In Mills, the defendant did not argue at his

SBM hearing that it was not being held in the county of his

residence. On appeal, the defendant contended that: (1) he

could raise this issue for the first time on appeal because it

involved subject matter jurisdiction; and (2) there was no

competent evidence presented at the hearing that defendant

resided in Buncombe County, where the SBM hearing occurred. Id.

at ___, 754 S.E.2d at 677. After noting that SBM hearings are

civil in nature, the Mills Court rejected the defendant’s

characterization of his argument as one challenging subject

matter jurisdiction; instead, the Court concluded that “while

the superior court has subject matter jurisdiction over SBM

hearings, the requirement that the hearing be held in the

superior court in the county in which the offender resides

relates to venue.” Id. Thus, the defendant could not raise his

venue challenge for the first time on appeal because it had been

waived. Id.
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Similarly, here, when defendant stipulated that he had

received notice of the hearing, he did not raise any argument

that he was not a resident of Craven County. Because the

requirement that the SBM hearing be held in the county in which

defendant resided relates to venue, not subject matter

jurisdiction, id., defendant’s failure to raise the issue before

the trial court waived his ability to raise it for the first

time on appeal, and this argument is dismissed.

II. The “Additional Findings”

Next, defendant challenges the two “additional findings”

the trial court made in requiring defendant enroll in the

highest level of supervision and monitoring. Specifically, with

regard to “additional finding no. 1,” defendant contends that

there was no evidence that defendant had committed a “prior

sexual offense” or that the present offense was committed within

a “short period of time from [the] conclusion of supervision”

for the 1994 conviction of assault on a female. Additionally,

defendant alleges that there was no evidence presented that the

victims in the 1994 and 1998 offenses were similar in age and

sex, which was noted in the trial court’s “additional finding

no. 2.” Consequently, defendant argues that because these

findings were not supported by competent evidence and defendant
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was assessed as a “moderate-low” risk, the trial court erred in

ordering him to enroll in the highest level of supervision and

monitoring. We agree.

“This Court has previously held that a DOC risk assessment

of ‘moderate,’ without more, is insufficient to support the

finding that a defendant requires the highest possible level of

supervision and monitoring.” State v. Green, 211 N.C. App. 599,

601, 710 S.E.2d 292, 294 (2011) (quoting Kilby, 198 N.C. App. at

369–70, 679 S.E.2d at 434). A trial court may order a defendant

receive the highest level of supervision and monitoring if it

“makes ‘additional findings’ regarding the need for the highest

possible level of supervision and where there is competent

record evidence to support those additional findings.” Id.

(citing State v. Morrow, 200 N.C. App. 123, 130–34, 683 S.E.2d

754, 760–62 (2009), aff'd per curiam, 364 N.C. 424, 700 S.E.2d

224 (2010)). However, if a defendant is assessed as a

“moderate” risk and the State presented no evidence to support

findings of a higher level of risk or to support the requirement

for “the highest possible level of supervision and

monitoring[,]” the trial court’s order must be reversed. Kilby,

198 N.C. App. at 370-71, 679 S.E.2d at 434. In contrast, if the

State presented any evidence at the SBM hearing that would
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support the highest level, “it would be proper to remand this

case to the trial court to consider the evidence and make

additional findings.” Id. at 370, 679 S.E.2d at 434.

A. “Additional Finding No. 1” – Short Period of Time
between Conclusion of Supervision for Defendant’s
“Prior Sexual Offense” and Reoffending

First, defendant contends that there was no competent

evidence introduced at the hearing to support the trial court’s

finding that defendant was convicted of a “prior sexual offense”

or that the 1998 offense was committed within a short period of

time from the conclusion of supervision for the 1994 offense.

At the SBM hearing, the State introduced evidence that,

although defendant had initially been charged with first degree

sex offense in 1994 (94 CR 1252), that charge was reduced and

defendant pled guilty to assault on a female. The crime of

assault on a female is not a sexual offense, a point which the

State concedes. Therefore, that part of the trial court’s

finding—that defendant had been convicted of a “prior sexual

offense”—was not supported by competent evidence.

With regard to defendant’s contention that there was no

competent evidence presented to support the trial court’s

“additional finding” that there was a short period of time

between the conclusion of his probation for the 1994 nonsexual
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offense before he committed the 1998 sexual offense, his

argument is without merit. Initially, it should be noted that

the trial court classified defendant’s probation as “supervised”

for the 1994 offense. However, there is no evidence in the

record to support this classification; the ACIS print-out

submitted to the trial court for defendant’s 1994 offense only

indicated that defendant received three years of probation.

Notwithstanding this classification, the ACIS print-out clearly

indicated that defendant was sentenced to two years imprisonment

on 30 March 1994 for assault on a female, but that sentence was

suspended and defendant was placed on three years of probation.

The offense date for the 1998 sexual offense was 19 August 1997,

approximately three years and five months after defendant was

sentenced for the 1994 nonsexual offense. While defendant is

correct in that it is not exactly clear when defendant ended his

probation for the 1994 offense, the print-out supports a finding

that a short amount of time elapsed between the end of probation

for the 1994 offense, sometime around April 1997, and the date

of offense for the 1998 conviction, August 1997. Accordingly,

part of “additional finding no. 1”—that defendant committed the

1998 offense soon after his probation for the 1994 offense

ended—was supported by competent evidence. Thus, it may be
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considered when determining whether the trial court’s

determination that defendant requires the highest level of

supervision and monitoring “reflect[s] a correct application of

law to the facts found.” Kilby, 198 N.C. App. at 367, 679

S.E.2d at 432.

B. “Additional Finding No. 2” – “Similarity in Victims’
Age and Sex”

Initially, it should be noted that the State concedes, and

we agree, that the trial court’s “additional finding no. 2”—

similarity of victims in age and sex—was not supported by

competent record evidence because the only documents

establishing this finding were the 1997 Dorothea Dix documents.

Citing State v. Mixion, 110 N.C. App. 138, 150, 429 S.E.2d 353,

370 (1993), since those documents were not offered into evidence

before the trial court nor did defendant stipulate to their

contents, the State concedes that the evidence was insufficient

to support this finding. Therefore, it may not provide support

for the trial court’s determination that defendant required the

highest level of monitoring and supervision.

C. Does the Evidence that Defendant Committed the 1998
Offense Within a Short Period After Completing
Probation for the 1994 Nonsexual Offense Along with
his “Moderate-Low” Risk of Reoffending Support the
Trial Court’s Determination That Defendant Required
the Highest Level of Supervision and Monitoring?
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Finally, we must determine whether the “additional finding”

that there was a short period of time between the end of

probation for the 1994 offense, a nonsexual offense, and

committing a sexual offense supports the conclusion that

defendant requires the highest possible level of supervision and

monitoring. We conclude that this “additional finding” does

not, and the trial court’s determination is “not a correct

application of the law to the facts found,” Id. at 367, 679

S.E.2d at 432. A defendant’s “risk of reoffending” is based on

the risk of the defendant committing another sexual offense.

Here, the only conviction that the trial court may use in

accessing defendant’s risk of reoffending is the 1998 offense

since that offense constitutes the only sexual offense defendant

was convicted of; in contrast, the 1994 offense was a nonsexual

offense and does not indicate any increased risk that he would

commit another sexual offense. Consequently, this finding does

not support a conclusion that defendant is at a high risk of

reoffending and does not support a conclusion that defendant

requires the highest possible level of supervision and

monitoring.

Furthermore, we conclude that the State presented no other

evidence to support the trial court’s determination. See id.
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(noting that if “evidence was presented which could support

findings of fact which could lead to a conclusion that ‘the

defendant requires the highest possible level of supervision and

monitoring[,]’ . . . it would be proper to remand this case to

the trial court to consider the evidence and make additional

findings”). The fact that defendant was originally charged with

a sexual offense, established by the ACIS print-out indicating

this initial charge, but pled to the lesser, nonsexual offense

of assault on a female would not support a determination that

defendant required the highest level of supervision and

monitoring. In other words, the underlying facts of the 1994

offense may not be considered by the trial court in determining

the level of supervision and monitoring a defendant requires for

purposes of SBM. In support of this conclusion, we note that

this Court has repeatedly held that the underlying facts of a

defendant’s conviction may not be used to determine whether the

defendant committed an aggravated offense under section 14-

208.6(1a). See State v. Boyett, __ N.C. App. __, __, 735 S.E.2d

371, 380 (2012) (“In determining whether a particular crime

constitutes an aggravated offense, the trial court is only to

consider the elements of the offense of which a defendant was

convicted and is not to consider the underlying factual scenario
 -14-
giving rise to the conviction.”) (internal quotation marks

omitted); State v. Davison, 201 N.C. App. 354, 364, 689 S.E.2d

510, 517 (2009) (“[W]hen making a determination pursuant to

N.C.G.S. § 14–208.40A, the trial court is only to consider the

elements of the offense of which a defendant was convicted and

is not to consider the underlying factual scenario giving rise

to the conviction.”). Thus, applying this analysis, we hold

that the trial court may only consider the offense of which a

defendant was convicted for purposes of determining what level

of supervision and monitoring a defendant requires for SBM.

In summary, since the State presented no other evidence

which could tend to support a determination of a higher level of

risk that would require the highest level of supervision and

monitoring other than his STATIC-99 score of moderate-low risk,

the trial court’s order must be reversed. See Kilby, 198 N.C.

App. at 370-71, 679 S.E.2d at 434 (reversing the SBM order when

the State presented no evidence which tended to support a

determination of a higher level of risk than the ‘moderate’

rating assigned by the DOC). In fact, it should be noted that

the only other evidence submitted at the SBM hearing supported

the opposite conclusion. Specifically, defendant’s probation

officer indicated that defendant was fully cooperating with his
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post-release supervision, which might support a finding of a

lower risk level, but not a higher one. Additionally, although

he had not found work at the time of the SBM hearing, he was

living with his mother and father, and his father attended the

hearing, indicating some familial support. Thus, given that the

only “additional finding” supported by competent evidence—that

defendant committed the 1998 sexual offense shortly after ending

probation for the 1994 nonsexual offense—would not support a

higher level of risk and that the State presented no other

evidence showing that defendant required the highest level of

monitoring and supervision, we reverse the trial court’s SBM

order.

Conclusion

Because the State presented no evidence other than

defendant’s moderate-low STATIC-99 risk assessment to support a

finding that defendant required the highest level of supervision

and monitoring, we reverse the SBM order.

REVERSED.

Judges BRYANT and STEELMAN concur.