An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-878
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Alamance County
Nos. 04 CRS 54678-79
JAMES RAY ALLEN
Appeal by defendant from order entered 28 May 2013 by Judge
G. Wayne Abernathy in Alamance County Superior Court. Heard in
the Court of Appeals 27 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph Finarelli, for the State.
Jason Christopher Yoder for defendant.
DILLON, Judge.
Defendant James Ray Allen appeals from an order requiring
him to register as a sex offender and enroll in a satellite-
based monitoring program for the rest of his natural life. We
reverse the court’s order and remand this case for further
proceedings.
I. Background
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On 8 February 2007, Defendant entered guilty pleas to one
count of taking indecent liberties with a child and one count of
second-degree sexual offense. The trial court sentenced
Defendant to a term of 84 to 110 months imprisonment for his
conviction for second-degree sex offense. Also, the court
sentenced Defendant to a term of 19 to 23 months imprisonment
for his conviction for taking indecent liberties with a child,
but suspended the sentence on the condition that he be placed on
supervised probation for 30 months.
On 13 March 2013, the North Carolina Department of Public
Safety Division of Adult Correction sent Defendant notice that a
hearing would be held in Alamance County Superior Court to
determine whether he would be subject to satellite-based
monitoring. At the conclusion of the hearing held 28 May 2013,
the superior court concluded that Defendant was convicted of a
reportable conviction as defined by N.C. Gen. Stat. § 14-
208.6(4), and that the offense for which Defendant was convicted
was an aggravated offense. Based on these conclusions, the
superior court ordered Defendant to enroll in satellite-based
monitoring for the remainder of his natural life. Defendant
filed timely notice of appeal.
II. Analysis
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A. Jurisdictional Challenge
We first address Defendant’s argument that the trial court
lacked jurisdiction to order him to enroll in lifetime
satellite-based monitoring because the notice of hearing did not
state that he could be required to enroll in satellite-based
monitoring for the remainder of his natural life. Defendant’s
argument is without merit.
Our General Assembly has devised a specific procedure,
outside of the Rules of Civil Procedure, for determining
eligibility for satellite-based monitoring and has “clearly
granted the Superior Courts subject matter jurisdiction to
conduct these determinations pursuant to specific statutory
procedures.” State v. Jarvis, 214 N.C. App. 84, 91, 715 S.E.2d
252, 257 (2011). By following these statutory procedures, which
are set forth in N.C. Gen. Stat. § 14-208.40B, the trial court
has jurisdiction, as granted by the General Assembly, to conduct
the hearing. State v. Self, __ N.C. App. __, __, 720 S.E.2d
776, 777 (2011). However, this Court has further explained that
while “the General Assembly ‘within constitutional limitations,
can fix and circumscribe the jurisdiction” upon the trial court,
the specific “notice provisions found in N.C. Gen. Stat. § 14-
208.40B(b) are merely that, notice provisions to protect the due
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process rights of offenders who are not currently incarcerated.”
State v. Wooten, 194 N.C. App. 524, 527-28, 669 S.E.2d 749, 750-
51 (2008), disc. review denied and cert. dismissed, 363 N.C.
138, 676 S.E.2d 308 (2009).
Here, the State’s written notification to Defendant of the
satellite-based monitoring hearing fully complies with the
provisions of section 14-208.40B(b), and thus the trial court
had jurisdiction over the hearing. While the Division is
required to set forth its initial determination that Defendant
fell into one of the categories of section 14-208.40(a), see
N.C. Gen. Stat. § 14-208.40B(a), the notice provisions of
section 14-208.40B(b) do not limit the jurisdiction of the trial
court to hear and determine a Defendant’s eligibility for
satellite-based monitoring.
B. Ex Post Facto Challenge
Defendant also contends the trial court’s order requiring
him to enroll in satellite-based monitoring based on statutes
that came into effect after his offenses were committed violates
the ex post facto clauses of the United States and North
Carolina Constitutions, citing United States v. Jones, ___ U.S.
___, 181 L. Ed. 2d 911 (2012), notwithstanding that, prior to
Jones, our North Carolina Supreme Court held that our state’s
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satellite-based monitoring scheme does not violate the ex post
facto clause of either constitution. State v. Bowditch, 364
N.C. 335, 700 S.E.2d 1 (2010). Nevertheless, Defendant asks
this Court to reconsider the issue in light of Jones to
determine whether in Bowditch the North Carolina Supreme Court
properly weighed the Fourth Amendment burdens of forced
satellite-based monitoring searches. We recently considered a
similar argument in State v. Jones, __ N.C. App. __, 750 S.E.2d
883 (2013) (COA13-286); and for the reasons stated therein, this
argument is overruled.
C. Improper Classification Challenge
Defendant argues the trial court erred in ordering him to
enroll in lifetime satellite-based monitoring based on an
alleged conviction for an aggravated offense, because neither
second-degree sex offense nor taking indecent liberties with a
child is an aggravated offense. We agree.
A trial court must order a defendant convicted of a
reportable sex offense to enroll in lifetime satellite-based
monitoring if the defendant has been classified as a sexually
violent predator, is a recidivist, has committed an aggravated
offense, or was convicted of the rape or sex offense of a child
pursuant to N.C. Gen. Stat. §§ 14-27.2A and 14-27.4A. N.C. Gen.
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Stat. § 14-208.40A(c) (2011). Here, the State contended and the
trial court concluded that Defendant was required to enroll in
lifetime satellite-based monitoring because he committed an
aggravated offense. An aggravated offense is defined as
follows:
any criminal offense that includes either of
the following: (i) engaging in a sexual act
involving vaginal, anal, or oral penetration
with a victim of any age through the use of
force or the threat of serious violence; or
(ii) engaging in a sexual act involving
vaginal, anal, or oral penetration with a
victim who is less than 12 years old.
N.C. Gen. Stat. § 14-208.6(1a) (2011). When determining whether
a crime constitutes an aggravated offense, a 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. In other words,
the elements of the conviction offense must fit within the
statutory definition of aggravated offense.” State v. Boyett,
__ N.C. App. __, __, 735 S.E.2d 371, 380 (2012) (internal
quotations and citations omitted), superseded in part on other
grounds, __ N.C. App. __, 747 S.E.2d 739 (2013). This Court has
held that based on their elements neither second-degree sex
offense nor taking indecent liberties with a child is an
aggravated offense. Id. at __, 735 S.E.2d 380-81; State v.
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Davison, 201 N.C. App. 354, 361, 689 S.E.2d 510, 515 (2009),
disc. review denied, 364 N.C. 599, 703 S.E.2d 738 (2010).
Accordingly, we reverse the trial court’s order requiring
Defendant to enroll in a satellite-based monitoring program for
life and remand for a proper determination of defendant’s
eligibility for satellite-based monitoring pursuant to N.C. Gen.
Stat. § 14-208.40A.
Reverse and Remanded.
Chief Judge MARTIN and Judge HUNTER, JR., concur.
Report per Rule 30(e).