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  "name": "STATE OF NORTH CAROLINA v. ADAM EDWARD SPARKS, JR.",
  "name_abbreviation": "State v. Sparks",
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    "judges": [
      "Judge BRYANT concurs.",
      "Judge TYSON dissents with a separate opinion."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ADAM EDWARD SPARKS, JR."
    ],
    "opinions": [
      {
        "text": "LEVINSON, Judge.\nThe State appeals from the trial court\u2019s order granting Adam Edward Sparks, Jr.\u2019s (defendant) motion to dismiss. We reverse.\nOn 29 November 1999, defendant pled guilty to indecent liberties with a child, crimes against nature, and sexual activity by a substitute parent. Defendant\u2019s guilty plea required defendant to register as a sex offender under N.C. Gen. Stat. \u00a7 14-208.7.\nOn 24 February 2003, the North Carolina Department of Correction granted defendant early release after he had served thirty-nine months. Defendant was placed on intensive supervision in Catawba County for six months. Defendant registered as a sex offender in Catawba County on 24 February 2003.\nOn 4 December 2003, defendant\u2019s supervising officer, Gary Blalock, completed a post-release supervision violation report alleging defendant: (1) left his residence in Hickory on 27 November 2003 without notifying his probation officer; (2) failed to comply with the sex offender treatment program due to five unexcused absences; and (3) failed to pay $480.00 for his sex offender treatment program.\nOn 1 July 2004, defendant\u2019s early release was revoked because he was \u201cnot adjusting satisfactorily or [had] violated conditions of [supervision].\u201d The remaining portion of defendant\u2019s original sentence was activated on 1 July 2004 pursuant to N.C. Gen. Stat. \u00a7 15A-1373. Defendant was incarcerated from 5 June 2004 through his final, unconditional release on 20 December 2004.\nWhile defendant was incarcerated, a grand jury indicted defendant for failure to comply with sex offender registration in violation of N.C. Gen. Stat. \u00a7 14-208.11. This August 2004 indictment alleged defendant failed to register with the Sheriff within ten days after a change of address on 13 December 2003. On 24 October 2005, the trial court dismissed the charge, -concluding that \u201cto prosecute the Defendant for the offense alleged in the above captioned file number would place the Defendant in jeopardy twice for the same behavior.\u201d In its order, the trial court found that defendant\u2019s actions \u2014 leaving his residence and not making his whereabouts known \u2014 were the grounds not only of the parole revocation report which led to his return to prison, but also of the August 2004 indictment for failing to register as a sex offender. The State appeals.\nThe State contends the prohibitions against double jeopardy are inapplicable to the instant facts and that the trial court erred by granting defendant\u2019s motion to dismiss. Defendant counters that his indictment under N.C. Gen. Stat. \u00a7 14-208.11(a)(2) violates the double jeopardy provisions of the United States and North Carolina Constitutions because the elements contained in defendant\u2019s indictment pursuant to N.C. Gen. Stat. \u00a7 14-208.11(a)(2) are also the \u201celements\u201d for which defendant\u2019s post-release supervision was terminated after a parole hearing. Defendant also asserts that his actions in \u201cleaving his residence\u201d and in \u201cnot making his whereabouts known\u201d serve as the grounds for both the indictment under N.C. Gen. Stat. \u00a7 14-208.11(a)(2) and parole violation report, and that now allowing him to be prosecuted for the indictment would constitute multiple punishments for the same offense in accordance with Blockburger v. U.S., 284 U.S. 299, 76 L. Ed. 306 (1932), and State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). We conclude that the constitutional protections of double jeopardy are inapplicable to parole revocation proceedings, and therefore reverse the order of the trial court.\nThe Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution prohibit double jeopardy. U.S. Const, amend. V; N.C. Const, art. I, \u00a7 19. \u201cThe Double Jeopardy Clause . . . provides that no person shall \u2018be subject for the same offence to be twice put in jeopardy of life or limb.\u2019 \u201d United States v. Dixon, 509 U.S. 688, 695-96, 125 L. Ed. 2d 556, 567 (1993) (quoting U.S. Const, amend. V). Under North Carolina Constitution Article I, section 19, \u201ca person cannot be tried twice for the same offense[.]\u201d State v. Mansfield, 207 N.C. 233, 236, 176 S.E. 761, 762 (1934); see N.C. Const, art. I, \u00a7 19 (\u201cNo person shall be taken, imprisoned, or disseized . . . but by the law of the land.\u201d); see also State v. Urban, 31 N.C. App. 531, 534, 230 S.E.2d 210, 212 (1976) (prohibition against double jeopardy has long been regarded as part of the \u201claw of the land\u201d in North Carolina).\nThe United States Supreme Court established the test for double jeopardy as:\n[Where] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. ... A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.\nBlockburger, 284 U.S. 304, 76 L. Ed. at 309 (internal quotation marks omitted). \u201cThe same-elements test, sometimes referred to as the Bloekburger\u2019 test, inquires whether each offense contains an element not contained in the other; if not, they are the \u2018same offence\u2019 and double jeopardy bars additional punishment and successive prosecution.\u201d Dixon, 509 U.S. at 696, 125 L. Ed. 2d at 568.\nNorth Carolina has followed the United States Supreme Court\u2019s \u201csame elements\u201d test from Bloekburger. See Etheridge, 319 N.C. at 50, 352 S.E.2d at 683 (\u201cWhere, as here, a single criminal transaction constitutes a violation of more than one criminal statute, the test to determine if the elements of the offenses are the same is whether each statute requires proof of a fact which the others do not.\u201d); State v. Perry, 305 N.C. 225, 232, 287 S.E.2d 810, 814 (1982) (North Carolina\u2019s test \u201cfollows closely the test employed by the United States Supreme Court to determine whether certain activity constitutes two offenses or only one as set out in Blockburger.\u201d'). \u201cThe Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.\u201d State v. Monk, 132 N.C. App. 248, 252, 511 S.E.2d 332, 334 (1999) (citing State v. Ballenger, 123 N.C. App. 179, 180, 472 S.E.2d 572, 572-73 (1996)).\nHere, defendant\u2019s conditional release was revoked pursuant to N.C. Gen. Stat. \u00a7 15A-1373(d) (2005), providing \u201c[i]f the parolee violates a condition at any time prior to the expiration or termination of the period, the [Parole] Commission... may revoke the parole as provided in G.S. 15A-1376 and reimprison the parolee[.]\u201d Defendant was indicted in August 2004 pursuant to N.C. Gen. Stat. \u00a7 14-208.9(a) (2005), which states \u201c[i]f a person required to register changes address, the person shall provide written notice of the new address not later than the tenth day after the change to the sheriff of the county with whom the person had last registered.\u201d \u201cA person required by this Article to register who does any of the following is guilty of a Class F felony ... (2) Fails to notify the last registering sheriff of a change of address.\u201d N.C. Gen. Stat. \u00a7 14-208.11(a)(2) (2005).\nIt is well established in North Carolina that probation revocation hearings are not criminal proceedings and that \u201cdouble jeopardy protections do not apply to probation revocation hearings.\u201d In re O\u2019Neal, 160 N.C. App. 409, 413, 585 S.E.2d 478, 481 (2003). The rationale which supports this rule is that revocation of probation is simply a ministerial proceeding which determines whether an individual has violated the conditions of his probation. See Monk, 312 N.C. App. at 252, 511 S.E.2d at 334. Probation revocation is, in other words, an administrative proceeding used to determine whether the probationer has violated the conditions of probation, and a court\u2019s determination that probation should be revoked does not constitute a new \u201cpunishment.\u201d\nWe conclude that parole revocation is so akin to probation revocation as to be functionally indistinguishable for purposes of double jeopardy analysis. Compare N.C. Gen. Stat. \u00a7 15A-1345 (2005), with N.C. Gen. Stat. \u00a7 15A-1368.6 (2005). In short, revocation of parole does not result in an additional punishment within the meaning of double jeopardy. Accord Jonas v. Wainwright, 779 F.2d 1576, 1577 (11th Cir. 1986) (the \u201cdouble jeopardy clause does not apply to parole revocation proceedings\u201d); United States v. Whitney, 649 F.2d 296, 298 (5th Cir. 1981) (declining to extend the double jeopardy clause to parole and probation revocation proceedings because they are not designed to punish a criminal defendant for violation of a criminal law); United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1995) (parole revocation does not violate double jeopardy); People v. Sa\u2019ra, 117 P.3d 51, 58 (Colo. Ct. App. 2004) (double jeopardy protections do not apply to parole revocation because it is \u201cnot a proceeding meant to punish\u201d); Burke v. Goodrich, 154 Wis. 2d 347, 353, 453 N.W.2d 497, 500 (1990) (denial of discretionary parole is not punishment because even parole revocation is not deemed punishment for double jeopardy purposes).\nReversed.\nJudge BRYANT concurs.\nJudge TYSON dissents with a separate opinion.",
        "type": "majority",
        "author": "LEVINSON, Judge."
      },
      {
        "text": "TYSON, Judge,\ndissenting.\nThe State failed to assign error to the trial court\u2019s findings of fact and those findings are binding upon appeal. The trial court\u2019s order should be affirmed. The majority\u2019s opinion erroneously reverses the trial court\u2019s order granting defendant\u2019s motion to dismiss. I respectfully dissent.\nI. Standard of Review\nA trial court\u2019s findings of fact are binding upon this Court if supported by any competent evidence. State v. Elliot, 360 N.C. 400, 417, 628 S.E.2d 735, 747 (2006); see State v. Pendleton, 339 N.C. 379, 389, 451 S.E.2d 274, 280 (1994) (The State failed to object to the foregoing findings and did not take exception to them on appeal.), cert. denied, 515 U.S. 1121, 132 L. Ed. 2d 280 (1995).\nII. Double Jeopardy\nOn 11 June 2004, defendant\u2019s conditional release was revoked and he was re-incarcerated on the conviction that originally imposed a duty to register his residence with the Sheriff. On 2 August 2004, defendant was indicted pursuant to N.C. Gen. Stat. \u00a7 14-208.11(a)(2), which states: \u201c[a] person required by this Article to register who does any of the following is guilty of a Class F felony ... (2) Fails to notify the last registering sheriff of a change of address.\u201d Under N.C. Gen. Stat. \u00a7 14-208.9(a) (2005), \u201c[i]f a person required to register changes address, the person shall provide written notice of the new address not later than the tenth day after the change to the sheriff of the county with whom the person had last registered.\u201d\nThe State appeals from the 24 October 2005 trial court\u2019s order. The trial court found as fact:\n10. That the actions of the defendant, of allegedly leaving his residence at 780 3rd Ave. Place S.E., Hickory, North Carolina, and not making his whereabouts known are the basis for the pending criminal charges in Catawba County file # 04-CRS-11042 and were also part of the basis for the violation report which was drafted by the Defendant\u2019s probation officer to terminate his post-release supervision.\n13. That the parole document which terminated/revoked the Defendants\u2019 post-release supervision is non-specific as to the reason the Defendant\u2019s post-release supervision was terminated/ revoked. The Court further finds that one of the allegations for the hearing was that the Defendant had moved from his residence, and that to prosecute the Defendant for moving from his residence without notifying the sheriff in 04-CRS-11042 would place the Defendant in jeopardy twice for the same behavior.\n(Emphasis supplied). The State failed to assign error to either findings of fact numbered 10 and 13, and they are binding on appeal. N-C.R. App. P. 10 (a) (2006) (\u201c[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal[.]\u201d); Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962) (\u201cWhere no [assignment of error] is taken to a finding of fact such findings are presumed to be supported by competent evidence and are binding on appeal.\u201d).\nThe trial court\u2019s order conclusively states defendant\u2019s actions of (1) \u201cleaving his residence\u201d and (2) \u201cnot making his whereabouts known\u201d are the basis for both defendant\u2019s revocation of his post-release supervision and re-incarceration and his subsequent criminal indictment. The trial court\u2019s unchallenged findings of fact state this indictment would place defendant in \u201cjeopardy twice.\u201d Once defendant was returned to prison for this violation, the trial court concluded he could not be punished again for the same violation.\nThe State would not be required to prove any other element to prosecute defendant under N.C. Gen. Stat. \u00a7 14-208.11 (a)(2). See United States v. Dixon, 509 U.S. 688, 696, 125 L. Ed. 2d 556, 568 (1993) (The same-elements test, sometimes referred to as the \u2018Blockburger\u2019 test, inquires whether each offense contains an element not contained in the other; if not, they are the \u2018same offence\u2019 and double jeopardy bars additional punishment and successive prosecution.\u201d). Under N.C. Gen. Stat. \u00a7 14-208.11(a)(2), the State was required to prove defendant: (1) left his residence and (2) failed to make his whereabouts known. The trial court found the State was required to prove these two elements in order to revoke defendant\u2019s conditional release and re-incarcerate him for the remainder of his sentence for the crime that originally imposed on him the requirement to initially register with the Sheriff under N.C. Gen. Stat. \u00a7 14-208.11(a)(2).\nAccepting the State\u2019s argument that defendant\u2019s indictment does not punish him twice for the same offense would allow the State to also indict defendant for failure to re-register after he was re-incarcerated with his new address in prison. The State would not be required to prove any additional element to re-incarcerate defendant and convict him under N.C. Gen. Stat. \u00a7 14-208.11(a)(2). The State\u2019s argument ignores any circumstances that required defendant to leave his residence.\nThe trial court\u2019s unchallenged and binding finding of fact shows defendant was indicted after the State proved the same elements that caused his re-incarceration. These findings of fact are conclusive and binding on appeal. The trial court properly granted defendant\u2019s motion to dismiss.\nIII. Conclusion\nThe trial court\u2019s unchallenged and binding finding of fact numbered 10 states that \u201cthe actions of the defendant, of allegedly leaving his residence . . . and not making his whereabouts known are the basis for the pending criminal charges in Catawba County file # 04-CRS-11042 and were also part of the basis for the violation report[.]\" The trial court properly concluded that \u201cto prosecute the Defendant for the offense alleged in the [indictment] would place the Defendant in jeopardy twice for the same behavior.\u201d The Fifth Amendment of the United States Constitution and Article I, Section 19 of the North Carolina Constitution bar the State from seeking to impose \u201cmultiple punishments for the same offense.\u201d See State v. Monk, 132 N.C. App. 248, 252, 511 S.E.2d 332, 334, disc. rev. denied, 350 N.C. 845, 539 S.E.2d 1 (1999). I vote to affirm the trial court\u2019s order granting defendant\u2019s motion to dismiss. I respectfully dissent.",
        "type": "dissent",
        "author": "TYSON, Judge,"
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Ashby T. Ray, for the State.",
      "Richard E. Jester, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ADAM EDWARD SPARKS, JR.\nNo. COA06-170\n(Filed 6 March 2007)\nProbation and Parole\u2014 revocation \u2014 not a new punishment\u2014 conviction for sex offender registration violation \u2014 not double jeopardy\nThe revocation of parole does not result in a new punishment within the meaning of double jeopardy. The defendant here was not subjected to double jeopardy where he was convicted of child sexual abuse charges, was granted early release, had his parole revoked because he changed his address without notifying his parole officer, and was then convicted of violating the sex offender registration statute based upon his failure to notify the sheriff within ten days of his change of address.\nJudge Tyson dissenting.\nAppeal by the State from order entered 24 October 2005 by Judge Timothy L. Patti in Catawba County Superior Court. Heard in the Court of Appeals 11 October 2006.\nAttorney General Roy Cooper, by Assistant Attorney General Ashby T. Ray, for the State.\nRichard E. Jester, for defendant-appellee."
  },
  "file_name": "0045-01",
  "first_page_order": 77,
  "last_page_order": 84
}
