By Michael D. Abernethy
RALEIGH - A Snow Camp man convicted of sex offenses can’t be placed under lifetime satellite-based monitoring but can be monitored for a given length of time, the N.C. Court of Appeals ruled Tuesday.
It will be up to a Superior Court judge in Alamance County to decide whether and how long _____, 31, will be required to wear a device that tracks his location.
State law requires satellite-based monitoring for sex offenders convicted of certain types of crimes. It’s separate from the requirement that a defendant register as a sex offender. Some crimes — including violent, aggravated or repeat offenses — require a lifetime of monitoring. In other circumstances, it’s left up to a judge to decide whether a defendant should be placed on satellite-based monitoring and for how long.
In _____’s case, the appeals court ruled that his conviction didn’t classify as an aggravated offense under state law and found that he couldn’t be made to be monitored for life.
_____ pleaded guilty in 2007 to one count of indecent liberties with a minor and one count of second-degree sex offense. He served an active 84- to 110-month prison sentence and was released in December 2012. Satellite-based monitoring wasn’t available at the time of his conviction.
He was serving 30 months’ probation under an additional suspended 19- to 23-month sentence when he received notice April 22 that the state intended to pursue satellite-based monitoring.
At a hearing May 28, Superior Court Judge Wayne Abernathy found that a second-degree sex offense classified as an aggravated offense under state law. Aggravated offenses are defined as those where penetration occurs by the use of force or the threat of physical violence against a victim, or that involve penetration of a victim younger than 12 years old. Abernathy imposed lifetime monitoring.
Court documents also show that Abernathy expressed doubt at that hearing about the necessity of _____’s lifetime monitoring, finding also that he was a moderate- to low-risk offender taking steps to improve himself.
_____’s appellate defender argued three points: that the Superior Court didn’t have jurisdiction to impose lifetime monitoring, that the state couldn't impose the monitoring after his original sentencing, and that second-degree sex offense is not an aggravated offense.
In an unpublished opinion filed Tuesday, a three-judge panel denied attorney Jason Christopher Yoder’s first two claims but held that second-degree sex offenses can’t be classified as aggravated offenses. Second-degree sex offenses don’t include penetration as an element of the crime.
In court documents, Attorney General Roy Cooper’s office agreed that second-degree sex offenses aren't aggravated offenses. Cooper’s office argued that the state should be allowed to present evidence for a shorter period of satellite-based monitoring.
The appeals court agreed.
“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 of satellite-based monitoring pursuant to (state law),” N.C. Appeals Court Judge Chris Dillon wrote in the opinion. Chief Judge John C. Martin and Judge Robert N. Hunter Jr. concurred.
In recent years North Carolina’s higher courts have made a number of rulings surrounding aggravated offenses and state statutes requiring satellite-based monitoring. Jamie Markham, with the UNC’s School of Government, said Tuesday that’s because state laws often don’t match up well with federal guidelines regarding sex-offender laws.
“That this continues to happen (four or five years after the N.C. Supreme Court ruled on aggravated offenses) demonstrates they are kind of counterintuitive and confusing,” Markham said.