dissenting.
I respectfully dissent from the majority opinion affirming the trial court’s order requiring defendant to enroll in satellite-based monitoring. Although I recognize that most of defendant’s arguments were addressed by this Court several months ago in State v. Bare, I believe that we have the benefit of an expanded record in this case, which makes defendant’s case distinguishable from Mr. Bare’s. In Bare, we explained repeatedly that our conclusions were based upon the record before us and that the record could not support a contrary finding. 197 N.C. App. 461, 473-75, 677 S.E.2d 518, 528 (2009). I believe that the record before us now can and should support a contrary finding.
Here, we may augment the record on appeal by taking judicial notice of the DOC’s “Sex Offender Management Interim Policy” (Interim Policy). “The device of judicial notice is available to an appellate court as well as a trial court[.] This Court has recognized in the past that important public documents will be judicially noticed.” State ex rel. Utilities Com. v. Southern Bell Tel. & Tel. Co., 289 N.C. 286, 288, 221 S.E.2d 322, 323 (1976) (quotations and citations omitted). Although the DOC has not yet drafted final regulations governing the SBM program that are available in our state register, its interim policy is the sort of public document of which this Court may take judicial notice. See, e.g., W. R. Co. v. North Carolina Property Tax Com., 48 N.C. App. 245, 261, 269 S.E.2d 636, 645 (1980) (stating that we may take judicial notice of a corporate charter on file with the Secretary of State but not included by either party in the record on appeal). Our opinion in Bare makes no mention of the DOC’s Interim Policy and thus, in my opinion, the contents of the Interim Policy are new facts and circumstances unique to defendant’s appeal.
A. Ex Post Facto Punishment
I respectfully disagree with the majority’s conclusion that SBM has no punitive purpose or effect and thus does not violate the ex *334post facto clause. To determine whether a statute is penal or regulatory in character, a court examines the following seven factors, known as the Mendoza-Martinez factors:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of .scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned[.]
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 661 (1963) (footnotes and citations omitted). Although these factors “may often point in different directionsf, a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.” Id. at 169, 9 L. Ed. 2d at 661. Because I agree with the majority that there is no conclusive evidence that the legislative intended the SBM statute to be penal, I begin my analysis by examining the seven Mendoza-Martinez factors.
1. Affirmative disability or restraint. The first question is “[w]hether the sanction involves an affirmative disability or restraint.” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661 (footnote and citations omitted). To echo the Supreme Court of Indiana, “[t]he short answer is that the Act imposes significant affirmative obligations and a severe stigma on every person to whom it applies.” Wallace v. State, 905 N.E.2d 371, -(Ind. 2009). Both the SBM statutory provisions and its implementing guidelines require affirmative and intrusive post-discharge conduct under threat of prosecution.
In addition to the regular sex offender registration program requirements, which, though judicially determined to be non-punitive, are nevertheless significant in practice, SBM monitoring participants are subject to the following additional affirmative disabilities or restraints: (1) The DOC has “the authority to have contact with the offender at the offender’s residence or to require the offender to appear at a specific location as needed[.]” N.C. Gen. Stat. § 14-208.42 (2007). (2) “The offender shall cooperate with the [DOC] and the requirements of the satellite-based monitoring programf.]” Id. *335(emphasis added). (3) An offender is subject to unannounced warrantless searches of his residence every ninety days. N.C. Dep’t of Correction Policies-Procedures, No. VII.F Sex Offender Management Interim Policy 12 (2007). (4) An offender must maintain a daily schedule and curfew as established by his DOC .case manager. An offender’s schedule and curfew includes spending at least six hours each day at his residence in order to charge his portable tracking device. Id. at 15. (5) “If the offender has an active religious affiliation,” the offender’s case manager must “notify church officials of the offender’s criminal history and supervision conditions[.]” Id. at 12.
In addition, the DOC has created maintenance agreements that all program participants must sign. Form DCC-44 applies to supervised sex offenders (monitoring) and form DCC-45 applies to unsupervised sex offenders (tracking). DCC-45, which is slightly less burdensome than DCC-44, requires the offender to agree to the following affirmative disabilities or restraints or else face criminal prosecution:
4; My location will be monitored by a tamper proof, non-removable ankle transmitter and a receiver. I will be required to wear the transmitter and carry the receiver with me 24 hours a day, 7 days a week.
5. I understand that it is my responsibility to charge the receiver for a minimum of four (4) hours each 24-hour period to enable the equipment to work properly. I understand that charging the receiver requires electric service to be available.
6. I understand a unit in the home will be assigned to me and it will be necessary for a designated representative of DCC to enter my residence or other location(s) where I may temporarily reside to install, retrieve, or periodically inspect the unit in order to maintain tracking as required.
7. I understand I must place the receiver in an area that is unobstructed with the receiver display screen facing out at all times. The receiver should not be covered by metal containers, lockers, vehicle trunks, etc. or hidden under clothing, car seats, purses, briefcases, tote bags, etc.
* * *
9. In order to maintain equipment and receive necessary communications, I agree to reside at _, _ with contact *336phone number __. Prior to changing my residence, ! will contact the appropriate DCC representative and the Sheriffs Office where I am registered with my new address.
10. I understand that messages may be sent to me via my receiver. I will acknowledge these messages and follow the instructions in order to maintain the equipment.
Clearly, the SBM program imposes affirmative and intrusive post-discharge conduct upon offenders long after they have completed their sentences, their parole, their probation, and their regular post-release supervision; these restraints continue forever.
Though some may argue that the remaining restrictions are mere inconveniences, this would be a deceiving understatement. Although offenders are no longer subject to formal probation, the requirements that they are subject to are nearly if not equally intrusive: they cannot spend nights away from their homes, they are subject to schedules and curfews, they must appear on command, and they must submit to all DOC requests and warrantless searches. An offender’s freedom is as restricted by the SBM monitoring requirements as by the regular conditions of probation, which include: remaining in the jurisdiction unless the court or a probation officer grants written permission to leave, reporting to a probation officer as directed, permitting the probation officer to visit at reasonable times, answering all reasonable inquiries by the probation officer, and notifying the probation officer of any change in address or employment. In addition, submission to warrantless searches is not a regular condition of probation and is instead a special condition of probation.
Accordingly, I believe that SBM imposes an affirmative disability or restraint upon defendant, which weighs in favor of the SBM statute being punitive rather than regulatory.
2. Sanctions that have historically been considered punishment. The next question is whether SBM “has historically been regarded as a punishment.” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661 (footnote and citations omitted). Obviously, satellite monitoring technology is new and thus tracking offenders using the technology is not a historical or traditional punishment. However, the additional restrictions imposed upon offenders are considered punishments, both historical and current. In addition, some courts have suggested that the SBM units, made up of an ankle bracelet and a miniature tracking device (MTD), are analogous to the historical pun*337ishments of shaming. See, e.g., Doe v. Bredeson, 507 F.3d 998, 1010 (Keith, J., concurring in part and dissenting in part).
In Bredeson, the Sixth Circuit considered whether Tennessee’s SBM statute violated the ex post facto clause. The Bredeson majority first held that the Tennessee legislature’s purpose when enacting the SBM statute was to establish a civil, nonpunitive regime. Id. at 1004. The majority then examined the Mendoza-Martinez factors and concluded, in relevant part, that Tennessee’s SBM program was not a sanction historically regarded as punishment. Id. at 1005. It explained that the Tennessee “Registration and Monitoring Acts do not increase the length of incarceration for covered sex offenders, nor do they prevent them from changing jobs or residences or traveling to the extent otherwise permitted by their conditions of parole or probation.” Id. Judge Keith, in his dissent, characterized the GPS monitoring system as a “catalyst for ridicule” because the defendant’s monitoring device was “visible to the public when worn” and had to “be worn everywhere” the defendant went. Id. at 1010 (Keith, J., dissenting in part and concurring in part). “Public shaming, humiliation, and banishment are well-recogniz,ed historical forms of punishments.” Id. (citations omitted). It is clear from the DOC guidelines and maintenance agreements that the LTD must be worn on the outside of all clothing and cannot be concealed or camouflaged in any way, even though some forms of concealment or camouflage would not interfere with the LTD’s function. In addition, an offender’s religious institution must be informed of his status and his SBM compliance requirements. I agree with Judge Keith that the SBM scheme is reminiscent of historical shaming punishments, which weighs in favor of finding the scheme punitive, rather than regulatory.
3. Finding of scienter. The next question is whether the statute “comes into play only on a finding of scienter.” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661 (footnote and citations omitted). I believe that this factor is met because the underlying criminal acts, indecent liberties with a child and third degree sexual exploitation of a minor, require intentional conduct. State v. Beckham, 148 N.C. App. 282, 286, 558 S.E.2d 255, 258 (2002) (citation omitted); see N.C. Gen. Stat. § 14-202.1(a) (2007) (“A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either: (1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or (2) *338Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.”); N.C. Gen. Stat. § 14-190.17A(a) (2007) (“A person commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity.”).
4. Traditional aims of punishment. The next question is “whether the sanction promotes the ‘traditional aims of punishment — retribution and deterrence.’ ” Beckham, 148 N.C. App. at 286, 558 S.E.2d at 258 (quoting Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 661). Without question, the sanction promotes deterrence. For example, offenders are restricted in their movements, ostensibly in part to prevent them from venturing into schoolyards or nurseries; when satellite-monitored offenders venture into these restricted zones, their supervisors are notified and the offender may be charged with a felony. Although “the mere presence of a [deterrent quality] is insufficient to render a sanction criminal [because] deterrence may serve civil, as well as criminal goals,” Hudson v. United States, 522 U.S. 93, 105, 139 L. Ed. 2d 450, 463 (1997) (quotations and citation omitted), the deterrent effect here is substantial and not merely incidental. Accordingly, it weighs in favor of finding the sanction to be punitive.
5. Applicability only to criminal behavior. The next question is “whether the behavior to which [the] statute applies is already a crime.” Mendoza-Martinez, 372 U.S. at 168, 9 L. Ed. 2d at 567 (footnote and citation omitted). The SBM statute applies only to people who have been convicted of “reportable offenses.” Thus, this factor weighs in favor of finding the sanction to be punitive.
6. Advancing non-punitive interest. The next question is “whether an alternative purpose to which [the statute] may rationally be connected is assignable for it[.]” Id. at 168-69, 9 L. Ed. 2d at 567 (footnote and citation omitted). The SBM statute does advance a rationally related non-punitive interest, which is to keep law enforcement officers informed of certain offenders’ whereabouts in order to protect the public. Preventing further victimization by recidivists is a worthy non-punitive interest and one that weighs in favor of finding the sanction to be regulatory.
7. Excessiveness in relation to State’s articulated purpose. The final question is “whether [the statute] appears excessive *339in relation to the alternative purpose assigned” to it. Id. at 169, 9 L. Ed. 2d at 568 (footnote and citation omitted). “The excessiveness inquiry ... is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” Smith v. Doe, 538 U.S. 84, 105, 155 L. Ed. 2d 164, 185 (2003) (emphasis added). Judge Keith, dissenting from the majority opinion in Bredeson, explained SBM’s excessiveness as follows:
I fail to see how putting all persons in public places on alert as to the presence of offenders, like Doe, helps law enforcement officers geographically link offenders to new crimes or release them from ongoing investigations. It equally eludes me as to how the satellite-based monitoring program prevents offenders, like Doe, from committing a new crime. Although the device is obvious, it cannot physically prevent an offender from re-offending. Granted, it may help law enforcement officers track the offender (after the crime has already been committed), but it does not serve the intended purpose of public safety because neither the device, nor the monitoring, serve as actual preventative measures. Likewise, it is puzzling how the regulatory means of requiring the wearing of this plainly visible device fosters rehabilitation. To the contrary, and as the reflection above denotes, a public sighting of the modem day “scarlet letter” — the relatively large G.PS. device — will undoubtedly cause panic, assaults, harassment, and humiliation. Of course, a state may improve the methods it uses to promote public safety and prevent sexual offenses, but requiring Doe to wear a visible device for the purpose of the satellite-based monitoring program is not a regulatory means that is reasonable with respect to its non-punitive purpose.
Sexual offenses unquestionably rank amongst the most despicable crimes, and the government should take measures to protect the public and stop sexual offenders from re-offending. However, to allow the placement of a large, plainly obvious G.P.S. monitoring device on Doe that monitors his every move, is dangerously close to having a law enforcement officer openly escorting him to every place he chooses to visit for all (the general public) to see, but without the ability to prevent him from re-offending. As this is clearly excessive, this factor weighs in favor of finding the Surveillance Act’s satellite-based monitoring program punitive.
*340Bredesen, 507 F.3d at 1012 (Keith, J., dissenting). I agree with Judge Keith’s assessment; the restrictions imposed upon defendant by the SBM statute are dangerously close to supervised probation if not personal accompaniment by a DOC officer. The Bredeson majority dismissed Justice Keith’s concerns about the device’s visibility by stating its “belie[f] that the dimensions of the system, while not presently conspicuous, will only become smaller and less cumbersome as technology progresses.” Id. at 1005. Smaller, less conspicuous, and less cumbersome technologies already exist, but implementation of new technologies is expensive and time-consuming. Though we may one day be able to tag and release a recidivist sex offender as though he were a migrating songbird, it is not a practical reality for defendant at this time or in the immediate future. The SBM equipment and accompanying restrictions as they exist now support a conclusion that SBM is a punishment.
In sum, of the seven factors specifically identified by the U.S. Supreme Court in Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent to the contrary, I believe that six factors point in favor of treating the SBM provisions as punitive. Only one — that the statute advances a non-punitive purpose — points in favor of treating the SBM provisions as non-punitive. Accordingly, I would hold that defendant’s enrollment in the SBM program constitutes a punishment.
Accordingly, I would also hold that defendant’s enrollment in the SBM program constitutes an unconstitutional ex post facto punishment.
B. Ineffective Assistance of Counsel and Double Jeopardy
I also respectfully disagree with the majority’s analysis of defendant’s ineffective assistance of counsel argument. Because I would hold that SBM is a criminal punishment, not a civil regulatory scheme, I would not dismiss this argument on those bases.
C. Violation of Plea Bargain
Finally, I respectfully disagree with the majority’s analysis of defendant’s argument that the trial court erred by imposing a condition upon defendant that was not specifically agreed to in his plea bargain. “Although a plea agreement occurs in the context of a criminal proceeding, it remains contractual in nature. A plea agreement will be valid if both sides voluntarily and knowingly fulfill every aspect of the bargain.” State v. Rodriguez, 111 N.C. App. 141, 144, 431 S.E.2d 788, 790 (1993) (citations omitted). We explained that, because a defend*341ant surrenders fundamental constitutional rights when he pleads guilty based upon the State’s promise, “when a prosecutor fails to fulfill promises made to the defendant in negotiating a plea bargain, the defendant’s constitutional rights have been violated and he is entitled to relief.” Id. at 145, 431 S.E.2d at 790 (quotations and citations omitted). Accordingly, I would hold that defendant received a punishment in excess of what he was promised in exchange for his guilty plea in violation of his constitutional rights.
For the foregoing reasons, I would reverse the order imposing lifetime satellite-based monitoring upon defendant.