State v. Vaughn

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-364
NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2014

STATE OF NORTH CAROLINA

v. Wilson County
Nos. 11-CRS-55061, 13-CRS-
00418-20
LONNELLE VAUGHN

Appeal by Defendant from judgment entered 18 November 2013

by Judge Walter H. Godwin, Jr., in Wilson County Superior Court.

Heard in the Court of Appeals 10 September 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Kimberly N. Callahan, for the State.

James W. Carter for Defendant.

STEPHENS, Judge.

This appeal arises from Defendant Lonnelle Vaughn’s plea of

guilty to one count of statutory rape of a person who is 13, 14,

or 15 years old. Defendant now petitions this Court to grant a

writ of certiorari and seeks to vacate his plea, arguing that

the trial court erred in accepting it because: (1) it was not

the product of an informed choice, based on his allegation that
 -2-
the court violated N.C. Gen. Stat. § 15A-1022(a)(6) by failing

to accurately inform him of the maximum and minimum possible

sentences he faced, and (2) it was not supported by a factual

basis as required by N.C. Gen. Stat. § 15A-1022(c). In our

discretion, we grant Defendant’s petition for certiorari review

and hold that the trial court did not err in accepting his

guilty plea.

Additionally, Defendant seeks certiorari review of the

trial court’s order that he enroll in Satellite-Based Monitoring

(“SBM”) for a period of 15 years following his release from

prison, arguing that the court’s finding that he was in a

supervisory role with the victim is insufficient to justify

subjecting him to the highest possible level of supervision and

monitoring because he was not convicted of an aggravated offense

and his STATIC-99 report indicated a low risk of reoffending.

The State has also petitioned for a writ of certiorari to

challenge the trial court’s conclusion that statutory rape of a

person who is 13, 14, or 15 years old is not an aggravated

offense. In light of this Court’s holding in State v. Sprouse,

217 N.C. App. 230, 719 S.E.2d 234 (2011), disc. review denied,

365 N.C. 552, 722 S.E.2d 787 (2012), that statutory rape of a

person who is 13, 14, or 15 years old does qualify as an
 -3-
aggravated offense, we remand to the trial court for entry of an

SBM order consistent with this Court’s present ruling.

Facts and Procedural History

On 6 August 2012, Defendant was indicted by a Wilson County

grand jury for statutory rape of a person who is 13, 14, or 15

years old and sexual offense by a person in a parental role for

allegedly “guilt-tripping” a 13-year-old girl for whom he served

as guardian, and was more than six years older than, into

regularly having sex with him by threatening to withhold money,

food, and clothing from her and the other six children in

Defendant’s household. On 4 March 2013, Defendant was indicted

on three additional counts of statutory rape and sexual offense.

On 18 November 2013, pursuant to a plea agreement,

Defendant pled guilty to one count of statutory rape of a person

who is 13, 14, or 15 years old, with sentencing at the trial

court’s discretion, in exchange for dismissal of all other

pending charges. After a sentencing hearing, the trial court

imposed a sentence within the presumptive range for an offender

at Defendant’s prior record level of a minimum 267 and maximum

330 months in prison. The trial court also ordered that upon his

release from prison, Defendant must register as a sex offender
 -4-
for a period of 30 years. Regarding SBM, the State’s STATIC-99

report classified Defendant at the lowest risk level for

reoffending with minus-one point, and the order the State

prepared for the trial judge to sign stated Defendant was not a

sexually violent predator or recidivist and that the offense of

conviction was not an aggravated offense. The prosecutor

explained that although these factors standing alone did not

require that Defendant be ordered to enroll in SBM, the trial

court could enter additional findings to support such an order,

which the trial court subsequently did. Citing Defendant’s

supervisory role with the victim as an additional finding that

required the highest possible level of supervision and

monitoring, the court ordered Defendant to enroll in SBM for a

period of 15 years following his release from prison. On 22

November 2013, Defendant filed a pro se notice of his intent to

appeal.

We note at the outset that Defendant is not entitled to an

appeal as a matter of right to challenge the trial court’s

acceptance of his guilty plea. See State v. Bolinger, 320 N.C.

596, 601, 359 S.E.2d 459, 462 (1987) (“[A] defendant is not

entitled as a matter of right to appellate review of his

contention that the trial court improperly accepted his guilty
 -5-
plea.”). Under North Carolina law, a defendant who pleads guilty

has a right of appeal limited to the issues of whether the

sentence: (1) is supported by sufficient evidence, but only if

the minimum term of imprisonment does not fall within the

presumptive range; (2) is based on an erroneous finding of the

defendant’s prior record or conviction level; (3) imposes a type

of sentence disposition or term of imprisonment that is not

authorized for the defendant’s class of offense and prior record

or conviction level; (4) resulted from the trial court’s

improper denial of the defendant’s motion to suppress; or (5)

resulted from the trial court’s improper denial of the

defendant’s motion to withdraw his guilty plea. See N.C. Gen.

Stat. § 15A–1444 (2013). However, our Supreme Court has held

that a defendant who alleges the trial court improperly accepted

his guilty plea “may obtain appellate review of this issue only

upon grant of a writ of certiorari.” Bolinger, 320 N.C. at 601,

359 S.E.2d at 462.

Here, through his appointed appellate counsel, Defendant

has timely petitioned this Court for writs of certiorari

pursuant to N.C. Gen. Stat. § 15A-1444(e) and N.C.R. App. P. 21

to challenge (1) whether his guilty plea was voluntarily and

knowingly entered and was the product of an informed choice; and
 -6-
(2) whether his guilty plea was supported by an adequate factual

basis. Additionally, Defendant has petitioned for a writ of

certiorari to challenge whether the trial court erred in

ordering him to enroll in SBM after his release from prison, and

the State has filed its own petition for a writ of certiorari

seeking to challenge the trial court’s ruling that statutory

rape of a person 13, 14, or 15 years old was not an aggravated

offense pursuant to N.C. Gen. Stat. § 14-208.6(1a) (2013). We

first address Defendant’s argument that his guilty plea should

be vacated.

Since our decision in State v. Rhodes, 163 N.C. App. 191,

592 S.E.2d 731 (2004), this Court has regularly granted

certiorari to review alleged violations of the procedural

requirements set forth in N.C. Gen. Stat. § 15A-1022 for

accepting guilty pleas. Id. at 194, 592 S.E.2d at 733. See also,

e.g., State v. DeMaio, 216 N.C. App. 558, 562, 716 S.E.2d 863,

866 (2011) (allowing review of defendant’s challenge that his

plea was improperly accepted because it was not the product of

informed choice and did not provide him the benefit of his

bargain). Accordingly, we grant Defendant’s petition and review

the issues.

I. Defendant’s Guilty Plea
 -7-
A. Voluntary and Knowing Product of an Informed Choice

Defendant first argues that the trial court erred in

determining that his plea was entered knowingly and voluntarily

as the product of an informed choice, as required by N.C. Gen.

Stat. § 15A-1022(b), because the terms of his plea were not

sufficiently clear to allow him to be fully aware of its direct

consequences. Specifically, Defendant contends the trial court

violated N.C. Gen. Stat. § 15A-1022(a)(6) by failing to inform

him of the minimum term of imprisonment and by misinforming him

of the maximum possible punishment on the charge for which he

was being sentenced. As a result of this alleged error,

Defendant argues that the trial court’s judgment must be

vacated. We disagree.

Because a plea of guilty requires a defendant to forfeit

fundamental rights such as a trial by jury and the right against

self-incrimination, due process requires that the record must

affirmatively establish that the entry of the plea was made

voluntarily, knowingly, and understandingly. See Boykin v.

Alabama, 395 U.S. 238, 244, 23 L. Ed. 2d 274, 280 (1969). In

order for a guilty plea to be voluntary, it must be “entered by

one fully aware of the direct consequences, including the actual

value of any commitments made to him by the court . . . .” Brady
 -8-
v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 760

(1970) (citation omitted). Thus, our General Assembly has

codified the procedural requirements governing the adjudication

of guilty pleas. Under N.C. Gen. Stat. § 15A–1022, a trial court

may not accept a guilty plea from a defendant without first

addressing him personally and:

(1) Informing him that he has a right to
remain silent and that any statement he
makes may be used against him;

(2) Determining that he understands the
nature of the charge;

(3) Informing him that he has a right to
plead not guilty;

(4) Informing him that by his plea he
waives his right to trial by jury and his
right to be confronted by the witnesses
against him;

(5) Determining that the defendant, if
represented by counsel, is satisfied with
his representation;

(6) Informing him of the maximum possible
sentence on the charge for the class of
offense for which the defendant is being
sentenced, including that possible from
consecutive sentences, and of the mandatory
minimum sentence, if any, on the charge; and

(7) Informing him that if he is not a
citizen of the United States of America, a
plea of guilty or no contest may result in
deportation, the exclusion from admission to
this country, or the denial of
naturalization under federal law.
 -9-

N.C. Gen. Stat. § 15A–1022(a) (2013). However, this Court has

“refuse[d] to adopt a technical, ritualistic approach” to

assessing compliance with the requirements of section 15A-1022.

State v. Richardson, 61 N.C. App. 284, 289, 300 S.E.2d 826, 829

(1983). “Failure to strictly adhere to the requirements of the

statute, without more, does not entitle [a] defendant to have

the judgment vacated.” State v. Salvetti, 202 N.C. App. 18, 27,

687 S.E.2d 698, 704, disc. review denied, 364 N.C. 246, 699

S.E.2d 919 (2010). “Even when a violation occurs, there must be

prejudice before a plea will be set aside.” State v. McNeill,

158 N.C. App. 96, 103, 580 S.E.2d 27, 31 (2003). Indeed, “the

omission of this inquiry has been held to be harmless error if

the record demonstrates that the defendant’s plea was knowingly

and voluntarily entered.” State v. Santos, 210 N.C. App. 448,

451, 708 S.E.2d 208, 211 (2011). Thus, we must “look to the

totality of the circumstances” surrounding the acceptance of the

plea and “determine whether non-compliance with the statute

either affected [the] defendant’s decision to plead or

undermined the plea’s validity.” State v. Hendricks, 138 N.C.

App. 668, 670, 531 S.E.2d 896, 898 (2000).

In the present case, Defendant insists that the trial court

erred when it told him he could potentially be sentenced to life
 -10-
in prison because——as a prior record level II offender——the

presumptive range maximum he faced for one class B1 felony

conviction is only 344 months according to our State’s

structured sentencing grid. N.C. Gen Stat. § 15A-1340.17(c)

(2013). Defendant relies on this Court’s decision in State v.

Reynolds, 218 N.C. App. 433, 721 S.E.2d 333, disc. review

denied, 366 N.C. 219, 726 S.E.2d 855 (2012), as support for his

argument that because he was not properly informed of the

maximum sentence he faced, his plea was not knowing, voluntary,

or the product of an informed choice. Defendant’s reliance on

Reynolds is misplaced.

In Reynolds, this Court vacated a guilty plea of a

defendant who was erroneously informed by the trial court that

the maximum possible sentence he faced for felony breaking and

entering and felony larceny as an habitual felon was 168 months

imprisonment when, in actuality, he received a maximum sentence

of 171 months. As we explained, “[w]hile the difference between

the maximum sentence described by the trial court and the

correct maximum sentence is only three months, we cannot say

that an additional three months of possible imprisonment is not

prejudicial.” Id. at 437, 721 S.E.2d at 336. Thus, we held that

“the trial court’s failure to properly inform [the d]efendant of
 -11-
the maximum sentence he faced calls into question the

voluntariness of his guilty plea” and remanded the case for a

new trial. Id. at 438, 721 S.E.2d at 336 (citation and internal

quotation marks omitted).

Here, Defendant essentially argues that because he got a

better deal than he bargained for——267 to 330 months in prison,

rather than a life sentence——we should stretch our holding in

Reynolds to apply under the opposite circumstances and vacate

his plea. But this argument ignores a crucial distinction

between the two cases. In Reynolds, the voluntariness of the

defendant’s guilty plea was called into question because he

received a harsher sentence than he was told he could receive as

a result of the trial court’s error, whereas here, Defendant not

only received a lighter sentence but, more significantly, our

cases indicate that the trial court did not err at all.

Our Supreme Court has stated that the maximum possible

sentence “is that which could be imposed if the defendant were

in the highest criminal history category and the offense were

aggravated.” State v. Lucas, 353 N.C. 568, 596, 548 S.E.2d 712,

730 (2001), overruled on other grounds by State v. Allen, 359

N.C. 425, 615 S.E.2d 256 (2005). The rationale for such a rule

is that:
 -12-
Although the parties may have agreed to the
sentence that will actually be imposed, the
court must nevertheless again advise the
defendant of the maximum possible sentence.
Warning a defendant of the harshest possible
outcome ensures that the defendant is fully
advised of the implications of the charge
against him or her and, if pleading, is
aware of the possible consequences of the
plea.

Id. (citation omitted). Thus, when advising a defendant of the

consequences of his guilty plea, the trial court does not err by

focusing on the theoretical maximum sentence that any defendant

could receive. Indeed, in at least two prior unpublished

opinions, this Court has explained that the plain language of

section 15A-1022(a)(6) does not require the trial court to

specifically tailor its explanation of the maximum possible

sentence to fit a particular defendant’s projected prior record

level. See State v. Felton, __ N.C. App. __, 606 S.E.2d 458

(2005) (unpublished), available at 2005 WL 14623 (“[N]othing in

G.S. § 15A-1022(a)(6) requires the trial court to adjust the

‘maximum possible sentence’ based upon a particular defendant’s

projected prior record level.”); State v. Hayes, __ N.C. App.

__, 615 S.E.2d 739 (2005) (unpublished) available at 2005 WL

1669612 (“Contrary to defendant’s assertion, nothing in N.C.

Gen. Stat. § 15A-1022(a)(6) requires a trial court to tailor

the information regarding the maximum and minimum possible
 -13-
sentences for an offense by inquiring into each defendant’s

projected prior record level.”).1

According to our State’s structured sentencing grid, the

maximum possible sentence for an aggravated B1 felony for a

defendant with either of the highest two prior record levels (V

or VI) is life imprisonment without the possibility of parole.

N.C. Gen. Stat. § 15A-1340.17(c). Because Defendant was

accurately informed of this in the written transcript of his

plea and during his plea colloquy, we hold that the trial court

did not err in advising Defendant of the maximum sentence he

faced.

Defendant further contends that his plea could not have

been the result of an informed decision because the trial court

erred by failing to inform him of the minimum sentence he faced.

This argument also fails. Under section 15A-1022(a)(6), the

trial court is required to inform defendants “of the mandatory

minimum sentence, if any, on the charge[.]” N.C. Gen. Stat. §

15A-1022(a)(6). Thus, the statute’s plain language demonstrates

that this requirement only applies to certain offenses that are

1
Although Rule 30(e)(3) of North Carolina’s Rules of Appellate
Procedure holds that this Court’s unpublished decisions do not
constitute controlling legal authority, we find these two cases
persuasive and consistent with the precedent established by our
Supreme Court’s decision in Lucas.
 -14-
not subject to our State’s structured sentencing scheme because

our General Assembly has prescribed statutory mandatory minimum

sentences for those offenses. See, e.g., N.C. Gen. Stat. § 90-

95(h) (2013) (providing for mandatory sentences based upon the

type and weight of the controlled substance trafficked); N.C.

Gen. Stat. § 20-138.5(b) (2013) (providing a person convicted of

habitual impaired driving shall be sentenced to a minimum active

term of not less than 12 months of imprisonment). Rather than

prescribing a mandatory minimum sentence for statutory rape of a

person who is 13, 14, or 15 years old, our General Assembly has

classified the offense as a Class B1 felony, subject to

structured sentencing. In the present case, this means that the

trial court was not under any duty to inform Defendant of any

mandatory minimum sentence, and we accordingly find no violation

of section 15A-1022(a)(6).

Finally, considering the totality of the circumstances, in

both the written transcript of his plea and during his plea

colloquy, Defendant averred that he understood that he had the

right to remain silent, he understood the nature of the charges

against him, and that he had discussed with his lawyer any

possible defenses. Defendant understood that he was pleading

guilty to one count of statutory rape of a person who is 13, 14,
 -15-
or 15 years old, a Class B1 felony with a maximum punishment of

life imprisonment, and that in exchange for his plea, the State

had agreed to dismiss three additional charges of statutory rape

and four counts of sex offense by a person in a parental role.

Defendant also averred that no one had promised him anything or

threatened him in any way to cause him to enter the plea against

his wishes. Thus, the record indicates Defendant’s plea was, in

fact, knowingly and voluntarily entered. Accordingly, because

Defendant’s argument for vacating his guilty plea under section

15A-1022(b) is predicated entirely on these erroneous assertions

that the trial court failed to comply with section 15A-

1022(a)(6), we hold that the trial court did not err in finding

Defendant’s guilty plea was the product of an informed choice.

B. Factual Basis to Support Guilty Plea

Defendant next contends that the trial court erred in

determining that there was a factual basis to support his guilty

plea to statutory rape of a person who is 13, 14, or 15 years

old because the State failed to prove each element of the

offense. Specifically, Defendant claims that the State did not

prove that he engaged in vaginal intercourse with the victim. We

find this argument to be entirely devoid of merit.
 -16-
Under North Carolina law, the trial court may not accept a

guilty plea “without first determining that there is a factual

basis for the plea.” N.C. Gen. Stat. § 15A-1022(c). While a

guilty plea standing alone is itself insufficient to establish a

factual basis, see State v. Sinclair, 301 N.C. 193, 199, 270

S.E.2d 418, 421 (1980), the statute expressly provides that the

trial court’s determination may be based upon “[a] statement of

the facts by the prosecutor.” N.C. Gen. Stat. § 15A-1022(c)(1).

This Court has repeatedly held that when a prosecutor recites

the factual basis at the plea hearing and the defendant

stipulates to those facts, the trial court does not err in

determining that a factual basis exists to support a guilty

plea. See, e.g., State v. Crawford, __ N.C. App. __, __, 737

S.E.2d 768, 771, disc. review denied, 366 N.C. 590, 743 S.E.2d

196 (2013).

In the present case, Defendant stipulated in the transcript

of his plea agreement and again during his plea colloquy that

there was a factual basis for his plea, and he also consented to

the prosecutor summarizing the facts for the trial court. The

prosecutor summarized the factual basis to support Defendant’s

guilty plea as follows:

In the fall of 2009 a minor child at the
time age 13-years-old, [A.M.], was placed
 -17-
into this Defendant’s home along with that,
along with Lonnelle Vaughn’s wife, Kitrell
(phonetic) Vaughn. He was the guardian for
that minor at the time. A sexual
relationship started by this Defendant. This
Defendant was the only person who got income
to the house. It was a disability check
that’s fairly sizeable and he would withhold
money and food and clothing for the other
children in the house which there were six
other children in the house at the time,
Your Honor, and force the minor child, 13-
years-old, to have sex with him in order for
him to provide money, clothing, food for the
other children in the house. In a sense he
guilt tripped her into having sex with him.

During that time around, between the times
of January and April of that year she was
having sex with the Defendant regularly,
several times a week. She became pregnant
and had a child who is alive today born in
November of 2010, [L.M.], Your Honor. At the
time she was 13. At the time the Defendant
was more than six-years-older than her, his
birthday being October 9th, 1973. He was not
legally married to her at the time. He is
legally married to a Kitrell Vaughn.

Defense counsel did not object to this recitation of the facts

and expressly declined to add anything further for the trial

court to consider. In defining the offense of statutory rape of

a person who is 13, 14, or 15 years old, section 14-27.7A of our

General Statutes provides that,

[a] defendant is guilty of a Class B1 felony
if the defendant engages in vaginal
intercourse or a sexual act with another
person who is 13, 14, or 15 years old and
the defendant is at least six years older
 -18-
than the person, except when the defendant
is lawfully married to the person.

N.C. Gen. Stat. § 14-27.7A(a) (2013). Although Defendant insists

that the State failed to prove he engaged in vaginal intercourse

with the victim, he has already stipulated to the facts that he

forced the victim “to have sex with him” and that she later gave

birth to his child. Our prior cases make clear that, combined

with the prosecutor’s recitation of the facts, those

stipulations are sufficient to establish a factual basis for

Defendant’s guilty plea. See Crawford, __ N.C. App. at __, 737

S.E.2d at 771. Accordingly, we hold that the trial court did not

err in finding Defendant’s guilty plea was supported by a

factual basis.

II. SBM for Aggravated Offense

Finally, both Defendant and the State filed petitions for

writs of certiorari seeking to challenge the trial court’s order

requiring Defendant to enroll in SBM for a period of 15 years

following his release from prison. On appeal from an SBM order,

this Court reviews “the trial court’s findings of fact to

determine whether they are supported by competent record

evidence, and . . . 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. Kilby,
 -19-
198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009) (citation and

internal quotation marks omitted). “The trial court’s findings

of fact are conclusive on appeal if supported by competent

evidence, even if the evidence is conflicting.” Id. at 366, 679

S.E.2d at 432 (citation and internal quotation marks omitted).

Section 14-208.40A of our General Statutes provides that a

trial court shall order a criminal defendant to enroll in

lifetime SBM if it finds, inter alia, that the offender has

committed an aggravated offense. See N.C. Gen. Stat. § 14-

208.40A(c) (2013). An “aggravated offense” is defined as

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) (2013). Section 14-208.40A(d)

provides that if the defendant was not convicted of an

aggravated offense, or determined to be a recidivist or sexually

violent predator, the trial court can only order SBM enrollment

after reviewing a STATIC-99 risk assessment report. The STATIC-

99 risk assessment “is an actuarial instrument designed to

estimate the probability of sexual and violent recidivism among

male offenders who have already been convicted of at least one
 -20-
sexual offense against a child or non-consenting adult.” State

v. Thomas, __ N.C. App. __, __, 741 S.E.2d 384, 386 (2013)

(citation and internal quotation marks omitted). If, based on

the STATIC-99, the trial court determines that the defendant

“require[s] the highest possible level of supervision and

monitoring, the court shall order the offender to enroll in

[SBM] for a period of time to be specified by the court.” N.C.

Gen. Stat. § 14-208.40A(e). Even if the defendant’s STATIC-99

score indicates his risk of reoffending is low, the trial court

can still order SBM by making additional findings based on “any

proffered and otherwise admissible evidence relevant to the risk

posed by a defendant.” State v. Morrow, 200 N.C. App. 123, 131,

683 S.E.2d 754, 760–61 (2009), affirmed per curiam, 364 N.C.

424, 700 S.E.2d 224 (2010). “These additional findings must be

supported by competent record evidence and must support the

trial court’s ultimate conclusion of law.” See Thomas, __ N.C.

App. at __, 741 S.E.2d at 386 (internal citation and quotation

marks omitted).

In the present case, Defendant contends the trial court’s

additional finding that he was in a supervisory role with the

victim was insufficient to justify its SBM order, given that the

AOC-CR-615 form the State prepared for his sentencing hearing
 -21-
did not classify him as a sexually violent predator or

recidivist, and did not classify the offense of his conviction

as an aggravated offense, while the DOC’s STATIC-99 risk

assessment indicated he had a low risk of reoffending. On the

other hand, the State argues that, in light of this Court’s

holding in Sprouse, the trial court erred by ruling that the

offense of statutory rape of a person who is 13, 14, or 15 years

old is not an aggravated offense as defined by N.C. Gen. Stat. §

14-208.6(1a). The State therefore seeks remand for the trial

court to order that Defendant be enrolled in lifetime SBM in

accordance with N.C. Gen. Stat. §14-208.40A(c).

Both parties concede they have lost their chance to appeal

as of right: Defendant admits his original pro se notice of

appeal was defective insofar as it omitted the docket number of

the case he sought to appeal, failed to address the appropriate

appellate court, and was never properly served on the State,

while the State acknowledges that it failed to give notice of

its intent to appeal within the thirty-day window allowed by

Rule 3 of our Rules of Appellate Procedure, which governs here

because SBM is a civil regulatory scheme rather than a criminal

punishment. See State v. Brooks, 204 N.C. App. 193, 194, 693

S.E.2d 204, 206 (2010). Rule 21 of North Carolina’s Rules of
 -22-
Appellate Procedure vests us with discretion to grant certiorari

review, and we turn first to the State’s petition, as its

resolution is dispositive on this issue.

Defendant opposes the State’s petition for certiorari on

the grounds that it failed to meet its filing deadline, failed

to preserve the issue for appellate review by objecting at

trial, and is complaining of an error that came at its own

invitation, given that the State originally advised the trial

court that Defendant’s offense was not an aggravated one.

However, this Court has previously allowed the State’s petition

for a writ of certiorari in a virtually identical scenario in

State v. Oxendine, 206 N.C. App. 205, 696 S.E.2d 850 (2010). In

Oxendine, the State petitioned for certiorari to challenge an

SBM determination, arguing that the trial court erred by failing

to classify the defendant’s guilty plea to three counts of

second-degree rape of a mentally disabled victim as an

aggravated offense. Id. at 209, 696 S.E.2d at 853. Although the

prosecutor never objected at trial and the State failed to file

a timely appeal, this Court granted certiorari in light of its

decision in State v. McCravey, 203 N.C. App. 627, 692 S.E.2d

409, disc. review denied, 364 N.C. 438, 702 S.E.2d 506 (2010),

where we held that second-degree rape, as defined by statute,
 -23-
does indeed qualify as an aggravated offense and thus requires

lifetime SBM enrollment. Consequently, in Oxendine, we vacated

the trial court’s original 10-year SBM order and remanded for

entry of an appropriate order in light of McCravey. 206 N.C.

App. at 212, 696 S.E.2d at 854-55.

Similarly, in the present case, the State argues, based on

this Court’s decision in Sprouse, that the trial court’s 15-year

SBM order derives from an improper conclusion of law——

specifically, that statutory rape of a person who is 13, 14, or

15 years old is not an aggravated offense. We agree. In Sprouse,

this Court held that a person who is 13, 14, or 15 years old is

statutorily incapable of consenting to sexual intercourse. 217

N.C. App. at 241, 719 S.E.2d at 242. As we explained, because

“an act of sexual intercourse with a person deemed incapable of

consenting as a matter of law is a violent act,” statutory rape

of a person who is 13, 14, or 15 years old qualifies as an

aggravated offense for lifetime SBM purposes. Id. (citation

omitted).

Because we agree with the State that in light of our prior

holding in Sprouse the trial court erred as a matter of law in

concluding that Defendant had not committed an aggravated

offense, we need not reach Defendant’s argument regarding the
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trial court’s additional findings. Accordingly, we vacate the

trial court’s 15-year SBM order and remand for entry of an

appropriate order in light of Sprouse.

AFFIRMED in part; VACATED and REMANDED in part.

Judges CALABRIA and ELMORE concur.

Report per 30(e).