{ "id": 4167386, "name": "STATE OF NORTH CAROLINA v. FREDDIE JUNIOR BARE", "name_abbreviation": "State v. Bare", "decision_date": "2009-06-16", "docket_number": "No. COA08-818", "first_page": "461", "last_page": "480", "citations": [ { "type": "official", "cite": "197 N.C. App. 461" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "616 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633572 ], "year": 2005, "pin_cites": [ { "page": "498", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0496-01" ] }, { "cite": "663 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641540 ], "year": 2008, "pin_cites": [ { "page": "472-73", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0470-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "475 F.2d 1364", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 281602 ], "year": 1973, "pin_cites": [ { "page": "1365, 1367" } ], "opinion_index": 0, "case_paths": [ "/f2d/475/1364-01" ] }, { "cite": "611 F.2d 61", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 469979 ], "year": 1979, "pin_cites": [ { "page": "63", "parenthetical": "holding parole eligibility status is a collateral consequence of a guilty plea" } ], "opinion_index": 0, "case_paths": [ "/f2d/611/0061-01" ] }, { "cite": "580 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "31", "parenthetical": "additional terms of imprisonment resulting from defendant's guilty plea to habitual offender status were a direct consequence" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186136 ], "year": 2003, "pin_cites": [ { "page": "104", "parenthetical": "additional terms of imprisonment resulting from defendant's guilty plea to habitual offender status were a direct consequence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0096-01" ] }, { "cite": "532 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "352 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685072 ], "year": 2000, "pin_cites": [ { "page": "550-51" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0531-01" ] }, { "cite": "397 U.S. 742", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058257 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "755", "parenthetical": "emphasis added" }, { "page": "1472", "parenthetical": "emphasis added" }, { "page": "760", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/397/0742-01" ] }, { "cite": "446 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "142", "parenthetical": "quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L. Ed. 2d 747, 760 (1970) (emphasis added)" }, { "page": "142-43", "parenthetical": "holding mandatory minimum sentences are a direct consequence of a guilty plea" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12138596 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "661", "parenthetical": "quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L. Ed. 2d 747, 760 (1970) (emphasis added)" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0658-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.43", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(dl)" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "478 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "193", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "345 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54151 ], "year": 1996, "pin_cites": [ { "page": "173", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0170-01" ] }, { "cite": "364 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "417" } ], "opinion_index": 0 }, { "cite": "321 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568324 ], "year": 1988, "pin_cites": [ { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0584-01" ] }, { "cite": "317 Mont. 481", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 617184 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "491" }, { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/mont/317/0481-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2006, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.42", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "opinion_index": 0 }, { "cite": "558 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "257-58" }, { "page": "257-58" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 282", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365531 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "285-86" }, { "page": "285-87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0282-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "598 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "618", "parenthetical": "\"Having previously determined that Article 27A is a civil and not a criminal remedy, this panel is not at liberty to revisit the issue.\"" }, { "page": "618", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8998116 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "452", "parenthetical": "\"Having previously determined that Article 27A is a civil and not a criminal remedy, this panel is not at liberty to revisit the issue.\"" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0447-01" ] }, { "cite": "495 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "408", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656152 ], "year": 1998, "pin_cites": [ { "page": "603", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0599-01" ] }, { "cite": "359 N.C. 832", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793573 ], "year": 2005, "pin_cites": [ { "page": "836", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0832-01" ] }, { "cite": "191 N.C. App. 776", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159678 ], "year": 2008, "pin_cites": [ { "page": "779", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0776-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "453 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "864", "parenthetical": "quoting Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558634 ], "year": 1995, "pin_cites": [ { "page": "728", "parenthetical": "quoting Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0725-01" ] }, { "cite": "521 U.S. 346", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 916116 ], "weight": 12, "year": 1997, "pin_cites": [ { "page": "361" }, { "page": "361", "parenthetical": "internal citations, quotation marks, and brackets omitted" }, { "page": "2082", "parenthetical": "internal citations, quotation marks, and brackets omitted" }, { "page": "515", "parenthetical": "internal citations, quotation marks, and brackets omitted" }, { "page": "363" }, { "page": "2083" }, { "page": "516" }, { "page": "351-52" }, { "page": "2077" }, { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/us/521/0346-01" ] }, { "cite": "507 F.3d 998", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 6046563 ], "weight": 11, "year": 2007, "pin_cites": [ { "page": "1003", "parenthetical": "internal quotations omitted" }, { "page": "1000" }, { "page": "1001" }, { "page": "1005-07" }, { "page": "1002" }, { "page": "1005", "parenthetical": "holding despite restrictions on his daily activities as a result of wearing the GPS device, because the Monitoring Act did not increase the length of his incarceration, or prevent him from changing jobs, residences or traveling, it was not a punitive restraint" }, { "page": "1006", "parenthetical": "holding the Tennessee legislature could rationally conclude sex offenders pose a high risk of recidivism and that electronic monitoring could reduce the risk of recidivism and protect the public without punishing offenders" } ], "opinion_index": 0, "case_paths": [ "/f3d/507/0998-01" ] }, { "cite": "610 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "743-44" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469669 ], "year": 2005, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0301-01" ] }, { "cite": "538 U.S. 84", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9030411 ], "weight": 57, "year": 2003, "pin_cites": [ { "page": "92" }, { "page": "1147" }, { "page": "176" }, { "page": "92" }, { "page": "1147" }, { "page": "176", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "92, 93" }, { "page": "1147" }, { "page": "177", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "1147" }, { "page": "177", "parenthetical": "citation and internal quotation marks omitted" }, { "page": "1147" }, { "page": "177", "parenthetical": "citation and quotation marks omitted" }, { "page": "100" }, { "page": "1151" }, { "page": "181", "parenthetical": "comparing the restraints imposed by Alaska's sex offender registration act as being less harsh than \"the sanctions of occupational debarment which we have held to be nonpunitive\"" }, { "page": "101-02" }, { "page": "1152" }, { "page": "182" }, { "page": "93" }, { "page": "1147" }, { "page": "176" }, { "page": "1147" }, { "page": "176", "parenthetical": "citation, quotation marks, and brackets omitted" }, { "page": "97" }, { "page": "1149" }, { "page": "180" }, { "page": "1149" }, { "page": "179-80", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "98" }, { "page": "1150" }, { "page": "180" }, { "page": "98-99" }, { "page": "1150" }, { "page": "100" }, { "page": "1140" }, { "page": "102" }, { "page": "1152" }, { "page": "183", "parenthetical": "recognizing sex offender registration requirement imposes an indirect restraint but holding it is not a punitive restraint" }, { "page": "102" }, { "page": "1152" }, { "page": "183" }, { "page": "102" }, { "page": "1152" }, { "page": "183", "parenthetical": "internal quotation marks omitted" }, { "page": "103" }, { "page": "1152" }, { "page": "183" }, { "page": "105" }, { "page": "1154" }, { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/us/538/0084-01" ] }, { "cite": "157 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "701", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "272 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570716 ], "year": 1967, "pin_cites": [ { "page": "76", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0072-01" ] }, { "cite": "565 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "45", "parenthetical": "quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220016 ], "year": 2002, "pin_cites": [ { "page": "625", "parenthetical": "quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0592-01" ] }, { "cite": "590 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2004, "pin_cites": [ { "page": "454", "parenthetical": "quoting State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (quotation marks omitted)" }, { "page": "454" }, { "page": "455", "parenthetical": "holding that retroactive application of sex offender registration statute does not offend the ex post facto clause" }, { "page": "455" }, { "page": "456" }, { "page": "456", "parenthetical": "concluding public disclosure of sex offender registry is not designed to humiliate and punish" }, { "page": "457" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915905 ], "weight": 9, "year": 2004, "pin_cites": [ { "page": "191", "parenthetical": "quoting State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (quotation marks omitted)" }, { "page": "192" }, { "page": "193" }, { "page": "193-94" }, { "page": "194" }, { "page": "194" }, { "page": "195" }, { "page": "196" }, { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0183-01" ] }, { "cite": "513 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "574", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240754 ], "year": 1999, "pin_cites": [ { "page": "809", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0807-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(4)" }, { "page": "(4)" }, { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.40", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "year": 2007, "pin_cites": [ { "page": "(c)(l)" }, { "page": "(a)" }, { "page": "(a)(l)", "parenthetical": "effective until Dec. 1, 2008" }, { "page": "(a)(2)", "parenthetical": "effective until Dec. 1, 2008" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 } ], "analysis": { "cardinality": 1479, "char_count": 48026, "ocr_confidence": 0.75, "pagerank": { "raw": 4.107118560808925e-07, "percentile": 0.9099213892392954 }, "sha256": "f46b5e448725b65d313b419218fd0e41fcec2f2a6c0462bc3e61455ca2a891ae", "simhash": "1:eb293142d63b6ee3", "word_count": 7720 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FREDDIE JUNIOR BARE" ], "opinions": [ { "text": "CALABRIA, Judge.\nFreddie Junior Bare (\u201cdefendant\u201d) appeals the trial court\u2019s order directing him to enroll in satellite-based monitoring (\u201cSBM\u201d) pursuant to N.C. Gen. Stat. \u00a7 14-208.40B. We affirm the trial court\u2019s order.\nDefendant pled guilty to indecent liberties with a minor in 1998. The court sentenced defendant to a minimum term of 19 months to a maximum term of 23 months in the North Carolina Department of Correction. In 2002, he pled no contest to failure to register as a sex offender in violation of N.C. Gen. Stat. \u00a7 14-208.11 and sexual activity by a custodian of a minor under \u00a7 14-27.7. The court consolidated the offenses for judgment and sentenced defendant to a minimum term of 46 months to a maximum term of 65 months in the North Carolina Department of Correction. The court recommended defendant attend and complete a sex offenders program while incarcerated. Defendant was ordered to register as a sex offender within ten days of his release date. In 2006, the General Assembly enacted the SBM provisions which became effective 16 August 2006. N.C. Sess. Laws 2006-247, section 15(a); N.C. Gen. Stat. \u00a7 14-208.40 (2007). Defendant was released on 20 April 2007. Defendant was enrolled in SBM on 11 May 2007.\nOn 19 February 2008, the trial court held a determination hearing pursuant to N.C. Gen. Stat. \u00a7 14-208.40B. The trial court found that defendant was convicted of a reportable conviction as defined by N.C. Gen. Stat. \u00a7 14-208.6(4) and is a recidivist. Defendant was ordered to enroll in SBM for the remainder of his natural life. Defendant appeals.\nI. -Ex Post Facto\nDefendant contends imposition of SBM violates the ex post facto clause of the North Carolina and United States Constitutions because the SBM provisions did not exist at the time defendant was convicted of the charges and imposition of SBM increases defendant\u2019s punishment for his crime. We disagree.\nThe standard of review is de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999) (citation omitted) (\u201cAlleged errors of law are subject to de novo review on appeal.\u201d). \u201cBecause both the federal and state constitutional ex post facto provisions are evaluated under the same definition, we analyze defendant\u2019s state and federal constitutional contentions jointly.\u201d State v. White, 162 N.C. App. 183, 191, 590 S.E.2d 448, 454 (2004) (quoting State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (quotation marks omitted)).\nThe prohibition against ex post facto laws applies to:\n1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.\nState v. Pardon, 272 N.C. 72, 76, 157 S.E.2d 698, 701 (1967) (quotation omitted). Defendant argues that imposition of SBM falls under the third category of ex post facto law: \u201ca law which changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.\u201d Id.\nIn determining whether a law inflicts a greater punishment than was established for a crime at the time of its commission, we first examine whether the legislature intended SBM to impose a punishment or to enact a regulatory scheme that is civil and nonpunitive. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1147, 155 L. Ed. 2d 164, 176 (2003); State v. Johnson, 169 N.C. App. 301, 307, 610 S.E.2d 739, 743-44 (2005); White, 162 N.C. App. at 192, 590 S.E.2d at 454.\nIf the intent of the legislature was to impose punishment, that ends the inquiry. If however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the [legislature\u2019s] intention to deem it civil.\nDoe v. Bredesen, 507 F.3d 998, 1003 (6th Cir. 2007) (internal quotations omitted) (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, -, 138 L. Ed. 2d 501, - (1997)).\n\u201cBecause we ordinarily defer to the legislature\u2019s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.\u201d Smith v. Doe, 538 U.S. at 92, 123 S.Ct. at 1147, 155 L. Ed. 2d at 176 (internal citations and quotation marks omitted) (citations omitted).\nA. Legislative Intent\nWhether a statutory scheme is civil or criminal is first of all a question of statutory construction. We consider the statute\u2019s text and its structure to determine the legislative objective. A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it.\nSmith, 538 U.S. at 92, 93, 123 S.Ct. at 1147, 155 L. Ed. 2d at 177 (internal citations and quotation marks omitted). \u201c \u2018Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.\u2019 \u201d State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995) (quoting Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)). However, if\nthe language of the statute is ambiguous or lacks precision, or is fairly susceptible of two or more meanings, the intended sense of it may be sought by the aid of all pertinent and admissible considerations. Proper considerations include the law as it existed at the time of its enactment, the public policy of the State as declared in judicial opinions and legislative acts, the public interest, and the purpose of the act.\nState v. Sherrod, 191 N.C. App. 776, 779, 663 S.E.2d 470, 472-73 (2008) (internal citations and quotations omitted). \u201cIn discerning the intent of the General Assembly, statutes in pari materia should be construed together and harmonized whenever possible.\u201d State v. Jones, 359 N.C. 832, 836, 616 S.E.2d 496, 498 (2005) (citation omitted). \u201cThe courts must first ask'whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.\u201d Smith at 93, 123 S.Ct. at 1147, 155 L. Ed. 2d at 177 (citation and internal quotation marks omitted). \u201cIt is well settled that statutes dealing with the same subject matter must be construed in pari materia, as together constituting one law.\u201d Williams v. Alexander County Bd. of Educ., 128 N.C. App. 599, 603, 495 S.E.2d 406, 408 (1998) (citation and quotation marks omitted).\nThe SBM provisions were enacted by N.C. Sess. Laws 2006-247, \u00a7 1(a) which states: \u201cThis act shall be known as \u2018An Act To Protect North Carolina\u2019s Children/Sex Offender Law Changes.\u2019 \u201d N.C. Sess. Laws 2006-247, \u00a7 1(a). The SBM provisions are located in part 5 of Article 27A of Chapter 14 of the General Statutes. Art. 27A of Chapter 14 of the General Statutes is entitled \u201cSex Offender and Public Protection Registration Programs.\u201d The SBM system is required to provide \u201c[t]ime-correlated and continuous tracking of the geographic location of the subject using a global-positioning system based on satellite and other location tracking technology\u201d and \u201c[r] eporting of subject\u2019s violations of prescriptive and proscriptive schedule or location requirements. Frequency of reporting may range from once a day (passive) to near r\u00e9al-time (active).\u201d N.C. Gen. Stat. \u00a7 14-208.40(c)(l)-(2) (2007).\nThe sex offender monitoring program monitors two categories of offenders. N.C. Gen. Stat. \u00a7 14-208.40(a) (2007). The first category is any offender who is convicted of a reportable conviction defined by N.C. Gen. Stat. \u00a7 14-208.6(4) and required to register as a sex offender under Part 3 of Article 27A because he or she is \u201cclassified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense as defined in G.S. \u00a7 14-208.6.\u201d N.C. Gen. Stat. \u00a7 14-208.40(a)(l) (2007) (effective until Dec. 1, 2008). The second category is any offender who satisfies four criteria: (1) is convicted of a reportable conviction defined by \u00a7 14-208.6(4), (2) is required to register under Part 2 of Article 27A, (3) has committed an offense involving the \u201cphysical, mental, or sexual abuse of a minor,\u201d and (4) based on a risk assessment program, \u201crequires the highest possible level of supervision and monitoring.\u201d N.C. Gen. Stat. \u00a7 14-208.40(a)(2) (2007) (effective until Dec. 1, 2008).\nIn construing the statute as a whole, we conclude the legislature intended SBM to be a civil and regulatory scheme. This Court has interpreted the legislative intent of Article 27A as establishing \u201ca civil regulatory scheme to protect the public.\u201d See White, 162 N.C. App. at 193, 590 S.E.2d at 455 (holding that retroactive application of sex offender registration statute does not offend the ex post facto clause); see also State v. Sakobie, 165 N.C. App. 447, 452, 598 S.E.2d 615, 618 (2004) (\u201cHaving previously determined that Article 27A is a civil and not a criminal remedy, this panel is not at liberty to revisit the issue.\u201d) (citing In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). By placing the SBM provisions under the umbrella of Article 27A, the legislature intended SBM to be considered part of the same regulatory scheme as the registration provisions under the same article. See also Smith at 93, 123 S.Ct. at 1147, 155 L. Ed. 2d at 177 (citation and quotation marks omitted) (\u201can imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective and has been historically so regarded\u201d).\nDefendant argues SBM was intended to be punitive because (1) \u201cthe original enacting legislation\u201d included language that the system was to be used as \u201can intermediate sanction,\u201d (2) the statute requires SBM as a condition of probation, parole and post-release supervision; (3) SBM provisions are located in Chapters 14 and 15, both criminal statutes; (4) the district attorney initiates the determination regarding whether an offender is eligible for SBM and (5) the Department of Correction (\u201cDOC\u201d) maintains and monitors the SBM system.\n(1) \u201cIntermediate Sanction\u201d\nDefendant directs our attention to an Editor\u2019s Note to the 2007 version of N.C. Gen. Stat. \u00a7 14-208.40 describing the \u201cGlobal Positioning System\u201d for use \u201cas an intermediate sanction.\u201d Defendant contends including the words \u201cintermediate sanction\u201d expresses the legislature\u2019s intent that the purpose of the SBM provisions is punitive. Defendant equates the term \u201cintermediate sanction\u201d with \u201cintermediate punishments\u201d as defined in N.C. Gen. Stat. \u00a7 15A-1340.11(6) (2007).\nThe term \u201cintermediate punishment\u201d is defined as \u201c[a] sentence in a criminal case that places an offender on supervised probation and includes at least one of . . . [six] conditions\u201d enumerated in N.C. Gen. Stat. \u00a7 15A-1340.11(6). N.C. Gen. Stat. \u00a7 15A-1340.11(6) (2007). At least two other criminal sentencing statutes, N.C. Gen. Stat. \u00a7\u00a7 15A-837(a)(5) and 15A-1340.13(h) use the terms \u201cintermediate punishment\u201d and \u201cintermediate sanction\u201d interchangeably. See N.C. Gen. Stat. \u00a7 15A-837(a)(5), -1340.13(h) (2007). N.C. Gen. Stat. \u00a7 15A-837(a)(5) specifically cites to the definition of \u201cintermediate punishment\u201d in N.C. Gen. Stat. \u00a7 15A-1340.11(6) and N.C. Gen. Stat. \u00a7 15A-1340.13(h) is located within Chapter 15A, Article 81B entitled, \u201cStructured Sentencing of Persons Convicted of Crimes[,]\u201d of the North Carolina General Statutes, the article for which N.C. Gen. Stat. \u00a7 15A-1340.11(6) provides definitions. See N.C. Gen. Stat. \u00a7 15A-837(a)(5), -1340.11(6), 1340.13(h). However, the statutes regarding SBM do not refer to, incorporate, or rely upon the definition of \u201cintermediate punishment\u201d as set forth in N.C. Gen. Stat. \u00a7 15A-1340.11(6) in any way related to their use of the term \u201cintermediate sanction.\u201d The use of the term \u201cintermediate sanction\u201d in the Editor\u2019s Note of N.C. Gen. Stat. \u00a7 14-208.40 is therefore distinct from and unrelated to the term \u201cintermediate punishment\u201d as defined in N.C. Gen. Stat. \u00a7 15A-1340.11(6).\nThe word \u201csanction\u201d as used in this context is defined by Black\u2019s Law Dictionary as \u201c[a] penalty or coercive measure that results from failure to comply with a law, rule, or order.\u201d Black\u2019s Law Dictionary 1368 (8th ed. 2004). The word \u201csanction\u201d often appears in cases and statutes in both the civil and criminal context. See, e.g., N.C. Gen. Stat. \u00a7 1A-1, Rule 11(a), 26(g), 37(b)(l-2); State v. Beckham, 148 N.C. App. 282, 285-86, 558 S.E.2d 255, 257-58 (2002); see Smith, 538 U.S. at 100, 123 S.Ct. at 1151, 155 L. Ed. 2d at 181 (comparing the restraints imposed by Alaska\u2019s sex offender registration act as being less harsh than \u201cthe sanctions of occupational debarment which we have held to be nonpunitive\u201d). For example, this Court refers to the civil remedy in N.G. Gen. Stat. \u00a7 1-538.2 as a \u201csanction.\u201d See Beckham, 148 N.C. App. at 285-87, 558 S.E.2d at 257-58. Furthermore, various \u201csanctions\u201d are often imposed against parties who violate the North Carolina Rules of Civil Procedure, clearly these \u201csanctions\u201d are not criminal punishments. See, e.g., N.C. Gen. Stat. \u00a7 1A-1, Rule 11(a), 26(g), 37(b)(1). Thus, the words \u201cintermediate sanction\u201d or the word \u201csanction\u201d does not compel an interpretation that the legislature intended SBM as a punishment.\n(2) Condition of probation\nDefendant next contends the SBM provisions were intended to be punitive because \u201cthe Legislature required courts to place offenders subject to lifetime satellite-based monitoring on lifetime probation.\u201d Defendant also contends the \u201crequirement that the trial court impose monitoring as a condition of probation, parole, and post-release supervision; was consistent with the Legislature\u2019s intent that monitoring serve as punishment, since mandatory probation, parole, and post-release supervision have long been deemed \u2018punishment.\u2019 \u201d\nDefendant supports this argument by relying on N.C. Gen. Stat. \u00a7 14-208.42. Prior to a 2007 amendment the words \u201c\u00fansupervised probation\u201d were included in the statute, \u201cLifetime registration offenders required to submit to satellite-based monitoring for life and to continue on unsupervised probation upon completion of sentence.\u201d (Emphasis added). N.C. Sess. Laws 2006-247, \u00a7 15(a) (codified as N.C. Gen. Stat. \u00a7 14-208.35 (2006)). In 2007, the General Assembly amended the provision to read: \u201cOffenders required to submit to satellite-based monitoring required to cooperate with Department upon completion of sentence.\u201d N.C. Gen. Stat. \u00a7 14-208.42 (2007); N.C. Sess. Laws 2007-213, \u00a7 5; N.C. Sess. Laws 2007-484, \u00a7 42(b). The text of N.C. Gen. Stat. \u00a7 14-208.42 originally stated:\nNotwithstanding any other provision of law, when the court sentences an offender who is in the category described by G.S. 14-208.40(a)(l) for a reportable conviction as defined by G.S. 14-208.6(4), and orders the offender to enroll in a satellite-based monitoring program, the court shall also order that the offender, upon completion of the offender\u2019s sentence and any term of parole, post-release supervision, intermediate punishment, or supervised probation that follows the sentence, continue to be enrolled in the satellite-based monitoring program for the offender\u2019s life and be placed on unsupervised probation unless the requirement that the person enroll in a satellite-based monitoring program is terminated pursuant to G.S. 14-208.43.\nN.C. Sess. Laws 2006-247, \u00a7 15(a) (emphasis added).\nSubsequently, the General Assembly removed the language referring to \u201cunsupervised probation\u201d in the title of N.C. Gen. Stat. \u00a7 14-208.42. N.C. Sess. Laws 2007-213, \u00a7 5. The statute specifies enrollment in SBM is to continue after \u201ccompletion of the offender\u2019s sentence and any term of parole, post-release supervision, intermediate punishment, or supervised probation that follows the sentence.\u201d N.C. Gen. Stat. \u00a7 14-208.42 (2007). The statute does not require an offender who is subject to SBM to be on \u201cparole, post-release supervision, intermediate punishment, or supervised probation,\u201d (although SBM may be imposed during these time periods) but that SBM may be imposed after completion of these forms of punishment. N.C. Gen. Stat. \u00a7 14-208.42 (2007). Therefore, the fact that SBM can be one of the conditions imposed upon an offender who has not completed his probation, parole, or post-release supervision does not mean that SBM alone is intended as punitive.\nThe sex offender registration requirements may also be imposed as a condition to probation or post-release supervision. See N.C. Gen. Stat. \u00a7 15A-1343(b2)(l) (2007) (registration \u201cas required by N.C. Gen. Stat. \u00a7 14-208.7\u201d is included as a \u201cspecial condition of probation\u201d); N.C. Gen. Stat. \u00a7 15A-1368.4(bl)(l) (2007). In Smith, the United States Supreme Court examined whether registration requirements for sex offenders were parallel to supervised release or probation, which are punishments for crime. 538 U.S. at 101-02, 123 S.Ct. at 1152, 155 L. Ed. 2d at 182. The Supreme Court distinguished the registration requirements from conditions imposed by probation because offenders were still \u201cfree to move where they wish and to live and work as other citizens with no supervision.\u201d Id. While SBM results in electronic monitoring of an offender\u2019s whereabouts, the record does not indicate that it restricts an offender\u2019s liberty in matters such as where to live and work. SBM is therefore similar to registration requirements in this regard and is distinguishable from probation, parole, and post-release supervision. See id.\n(3) Location of SBM provisions\nAs to defendant\u2019s next argument, the fact that the SBM provisions are codified in Chapter 14 entitled \u201cCriminal Law,\u201d does not \u201cin and of itself transform [a] nonpunitive, civil regulatory scheme into a criminal one.\u201d White, 162 N.C. App. at 193-94, 590 S.E.2d at 455 (quoting State v. Mount, 317 Mont. 481, 491, 78 P.3d 829, 837 (2003)).\n. (4) Involvement of District Attorney\nDefendant contends the legislature chose to \u201cplace [] the responsibility for initiating eligibility determinations on the District Attorney for offend\u00e9rs awaiting sentencing\u201d which evidences an intent the SBM provision serve as punishment. We disagree. Involvement of the district attorney in SBM determination hearings does not by itself supercede the declared intent of the legislature. District attorneys are required to perform a number of nonpunitive statutory duties. See N.C. Gen. Stat. \u00a7 52C-3-308 (2007) (duty of district attorney to represent obligee in proceedings under the Uniform Interstate Family Support Act); N.C. Gen. Stat. \u00a7 122C-268.1 (2007) (district attorney may represent the State in civil commitment hearings following a respondent\u2019s involuntary commitment upon a verdict of not guilty by reason of insanity).\n(5) Involvement of the DOC\nDefendant also argues involvement of the DOC in eligibility determinations for offenders who are released indicates a punitive intent by the legislature. We disagree.\nDefendant cites to N.C. Gen. Stat. \u00a7 14-208.40A, -208.40B in support of this argument. These SBM provisions support our conclusion that imposition of SBM was intended to protect the public and not intended to punish the offender. Where an offender commits an offense that involved physical, mental or sexual abuse of a minor but the offense is not aggravated and the offender is not a recidivist, the DOC performs a risk assessment. N.C. Gen. Stat. \u00a7 14-208.40B(c) (effective until Dec. 1, 2008). The trial court is then required to determine whether \u201cbased on the Department\u2019s risk assessment, the offender requires the highest possible level of supervision and monitoring.\u201d N.C. Gen. Stat. \u00a7 14-208.40B(c) (effective until Dec. 1, 2008). Offenders who have been convicted of a reportable conviction and are recidivists, as well as those classified as sexually violent predators or those convicted of aggravated offenses, are the type of offenders who would receive a high risk assessment. N.C. Gen. Stat. \u00a7 14-208.40B(c) (effective until Dec. 1, 2008). Use of the words \u201crisk assessment\u201d reveals the legislature\u2019s concern that these offenders pose a greater risk to the public. The fact that the DOC is involved in the risk assessment does not override the legislature\u2019s stated intent. Smith, 538 U.S. at 93, 123 S.Ct. at 1147, 155 L. Ed. 2d at 176.\nDefendant has failed to direct us to any considerations which would support his contention that the General Assembly intended that SBM to be a criminal punishment. Therefore, in accord with our prior cases regarding sex offender registration, we again conclude that Article 27A of Chapter 14 of the North Carolina General Statutes, entitled \u201cSex Offender and Public Protection Registration Programs[,]\u201d which now includes \u201cPart 5. Sex Offender Monitoring[,]\u201d was intended as \u201ca civil and not a criminal remedyf.]\u201d Sakobie, 165 N.C. App. at 452, 598 S.E.2d at 618 (citation omitted).\nB. Punitive in Purpose or Effect\nAlthough SBM was created as a civil regulatory scheme, we\nrecognize that a civil label is not always dispositive, [and] we will reject the legislature\u2019s manifest intent only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State\u2019s intention to deem it civil[.]\nKansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 2082, 138 L. Ed. 2d 501, 515 (1997) (internal citations, quotation marks, and brackets omitted). We must therefore further examine whether the statutory scheme is \u201cso punitive either in purpose or effect as to negate the State\u2019s intention to deem it civil.\u201d Smith at 92, 123 S.Ct. at 1147, 155 L. Ed. 2d at 176 (citation, quotation marks, and brackets omitted). In our consideration of SBM\u2019s purpose and effects, we look to\nwhether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a non-punitive purpose; or is excessive with respect to this purpose.\nId. at 97, 123 S.Ct. at 1149, 155 L. Ed. 2d at 180. These \u201cfactors are designed to apply in various constitutional contexts ... [and] are neither exhaustive nor dispositive, but are useful guideposts[.]\u201d Smith at 97, 123 S.Ct. at 1149, 155 L. Ed. 2d at 179-80 (internal citations and quotation marks omitted). We now consider each of defendant\u2019s arguments as to why SBM is punitive in purpose and effect.\nm Historically Regarded as Punishment\nDefendant contends wearing the SBM device is akin to a modern-day shame sanction. Shame sanctions are historically regarded as punishment. Smith, 538 U.S. at 98, 123 S.Ct. at 1150, 155 L. Ed. 2d at 180. However, \u201cdissemination of truthful information in furtherance of a legitimate governmental objective\u201d is not traditionally regarded as punishment. Id. at 98-99, 123 S.Ct. at 1150, 155 L. Ed. 2d at 181 (see also White, 162 N.C. App. at 194, 590 S.E.2d at 456). In Smith, the Supreme Court noted the publicity and resulting stigma of the sex offender registry is not \u201can integral part of the objective of the regulatory scheme.\u201d Id.\nIn 2007, the Sixth Circuit examined whether the \u201cTennessee Serious and Violent Sex Offender Monitoring Pilot Project Act\u201d (\u201cMonitoring Act\u201d) which \u201cauthorized the Tennessee Board of Probation and Parole ... to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation\u201d violated the ex post facto clause. Bredesen, 507 F.3d at 1000. Doe pled guilty to a number of offenses between 1995 and 2004 under the Sex Offender Act. Id. In- 2004, the Tennessee legislature repealed the Sex Offender Act and replaced it with the Registration Act. Id. at 1001. Under the new code, Doe was re-classified as a violent sexual offender and required to wear a global positioning device for the rest of his life. Id. The Bredesen court applied the Mendoza-Martinez factors set forth in Smith v. Doe and concluded Tennessee\u2019s satellite-based monitoring program was not so punitive in effect to override its nonpunitive purpose. Id. at 1005-07.\nWe find the analysis in Bredesen helpful in the case at bar. In Bredesen, Doe alleged the physical nature of the device rendered it visible to any onlooker because the global positioning satellite device was'relatively large and worn outside \u201chis person.\u201d Id., 507 F.3d at 1002. The Bredesen court concluded the Monitoring Act\u2019s registration, reporting and surveillance requirements are \u201cnot of a type that we have traditionally considered as a punishment.\u201d The lifetime registration and monitoring of sex offenders is less harsh than other civil penalties historically considered nonpunitive, such as revocation of a professional license and preclusion from certain employment. Id. at 1005 (citing Smith, 538 U.S. at 100, 123 S.Ct. at 1140. The court also noted that the device was only six inches by 3.25 inches by 1.75 inches and weighed less than a pound. Id. The court noted the appearance of the device was not dissimilar to other electronic devices such as a walkie-talkie or a personal organizer. Id. More importantly, there was no evidence presented to suggest an observer would recognize the device as one that monitored sex offenders. Id.\nHere, defendant contends the SBM device is a modem day shame sanction because the \u201cbulky\u201d device is a physical, visible sign notifying the public that the wearer committed a sex offense, unlike the sex offender registry. However, defendant has presented no affidavits or other evidence demonstrating that the device is recognizable as a monitor assigned to sex offenders as opposed to an ordinary electronic device such as a cell phone, personal data assistant, or walkie-talkie.\nWe conclude that based on the record before us, wearing an electronic monitoring device is no more stigmatizing than the public registration of sex offenders required by the sex offender registry. See White, 162 N.C. App. at 194, 590 S.E.2d at 456 (concluding public disclosure of sex offender registry is not designed to humiliate and punish).\n(2) Affirmative Disability or Restraint\nDefendant contends wearing an electronic tracking device \u201cat all times\u201d and being required to cooperate with the DOC in order to ensure the device is working properly pursuant to N.C. Gen. Stat. \u00a7 14-208.42 imposes a punitive restraint on defendant\u2019s daily activities. We disagree.\nIn support of his argument, defendant cites N.C. Gen. Stat. \u00a7 14-208.42, which specifically authorized the DOC to contact offenders for the limited purpose of enrollment and maintenance of the SBM device. The statute states, in relevant part:\nThe Department shall have the authority to have contact with the offender at the offender\u2019s residence or to require the offender to appear at a specific location as needed for the purpose of enrollment, to receive monitoring equipment, to have equipment examined or maintained, and for any other purpose necessary to complete the requirements of the satellite-based monitoring program. The offender shall cooperate with the Department and the requirements of the satellite-based monitoring program until the offender\u2019s requirement to enroll is terminated and the offender has returned all monitoring equipment to the Department.\nN.C. Gen. Stat. \u00a7 14-208.42 (2007). It is clear that defendant must meet with an officer for maintenance of the monitoring device. However, all we can glean from the record and the statute is that an offender who is enrolled in SBM must meet at some unknown frequency and location with an officer who is charged with the maintenance of the transmitting unit. Under these facts, defendant has not shown that cooperation with the department for the purposes of maintaining the SBM device is any more of an affirmative restraint than the registration requirements.\nDefendant also argues the device is \u201cbulky and cumbersome\u201d and \u201chindered his ability to obtain employment.\u201d We first note that although the defendant characterizes the tracking device as \u201cbulky and cumbersome,\u201d the record does not contain any information as to the size of the device or any information as to the manner of its attachment to defendant. Pursuant to the North Carolina Rules of Appellate Procedure, Rule 9, this Court\u2019s \u201creview is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, constituted in accordance with this Rule 9, and any items filed with the record on appeal pursuant to Rule 9(c) and 9(d).\u201d N.C. R. App. P. 9(a) (2008). \u201cThe appellate courts can judicially know only what appears of record.\u201d Jackson v. Housing Authority of High Point, 321 N.C. 584, 586, 364 S.E.2d 416, 417 (1988).\nIn addition, defendant argues that the device has \u201chindered his ability to obtain employment.\u201d However, defendant did not present any testimony or evidence at his determination hearing as to his inability to obtain employment. Defendant\u2019s counsel argued to the trial court that the device had prevented defendant from obtaining two jobs. Specifically, defendant\u2019s counsel argued that because the monitor cannot be cleaned and would be exposed to unsanitary conditions it restricted defendant from obtaining a job at Tyson Foods. Defense counsel also argued the device posed a safety hazard for an assembly job at Hosiery Mills because it would be exposed to belts and machinery. However, the statements of counsel are not evidence. \u201c[I]t is axiomatic that the arguments of counsel are not evidence.\u201d State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193 (1996) (citation omitted). Furthermore, even if defense counsel\u2019s statements could be considered as evidence, it is not the function of this Court to make findings of fact. The trial court made no findings of fact as to defendant\u2019s ability to obtain employment while on SBM, nor could the court make any such findings in the absence of any testimony or evidence. Based upon the record before us, we cannot determine the restraints which would be imposed upon defendant by SBM are anything more than \u201cminor\u201d or \u201cindirect\u201d restraints and thus they do not rise to the level of punishment. White, 162 N.C. App. at 195, 590 S.E.2d at 456 (citing Smith v. Doe, 538 U.S. at 102, 123 S.Ct. at 1152, 155 L. Ed. 2d at 183 (recognizing sex offender registration requirement imposes an indirect restraint but holding it is not a punitive restraint)); Kansas v. Hendricks, 521 U.S. at 363, 117 S.Ct. at 2083, 138 L. Ed. 2d at 516 (concluding that despite the fact a regulatory scheme resulting in the indefinite civil confinement of a person diagnosed as a pedophile imposes an affirmative restraint, an affirmative restraint on a defendant\u2019s freedom does not automatically lead to the presumption that such a restraint is punishment); see also Bredesen, 507 F.3d at 1005 (holding despite restrictions on his daily activities as a result of wearing the GPS device, because the Monitoring Act did not increase the length of his incarceration, or prevent him from changing jobs, residences or traveling, it was not a punitive restraint).\n(3) Promotes Traditional Aims of Punishment\nDefendant also argues SBM serves a deterrent purpose, which is one of the traditional aims of punishment.\nWe agree that the SBM provisions could have a deterrent effect. Presumably, sex offenders would be less likely to repeat offenses since they would be aware their location could be tracked and it would be easier to catch them. However, this factor alone is not enough to override a nonpunitive purpose. See Smith, 538 U.S. at 102, 123 S.Ct. at 1152, 155 L. Ed. 2d at 183 (reasoning that \u201c[a]ny number of governmental programs might deter crime without imposing punishment. To hold that the mere presence of a deterrent purpose renders such sanctions criminal . . . would severely undermine the Government\u2019s ability to engage in effective regulation\u201d (internal citations and quotation marks omitted)).\n(4) Rational Connection to Nonpunitive Purpose\nA statute\u2019s \u201crational connection to a nonpunitive purpose is a most significant factor in our determination that the statute\u2019s effects are not punitive.\u201d Smith, 538 U.S. at 102, 123 S.Ct. at 1152, 155 L. Ed. 2d at 183 (internal quotation marks omitted). \u201cA statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.\u201d Id. at 103, 123 S.Ct. at 1152, 155 L. Ed. 2d at 183.\nHere, as in State v. White, the defendant does not contest that the SBM provisions have a rational connection to a non-punitive purpose. 162 N.C. App. at 196, 590 S.E.2d at 457. The ability to track the location of individuals who have committed sex offenses against minors or other aggravated sex offenses has a rational connection to the purpose of protecting the public. See also Bredesen, 507 F.3d at 1006 (holding the Tennessee legislature could rationally conclude sex offenders pose a high risk of recidivism and that electronic monitoring could reduce the risk of recidivism and protect the public without punishing offenders).\n(5) Excessive in Relation to Nonpunitive Purpose\nDefendant also argues the SBM provisions are excessive because wearing a monitor cannot prevent an offender from re-offending.\n\u201cThe excessiveness inquiry of our ex post facto jurisprudence 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.\u201d Smith, 538 U.S. at 105, 123 S.Ct. at 1154, 155 L. Ed. 2d at 185. \u201cThe proper analysis considers whether the regulations required are excessive \u2014 in other words, whether the extent and duration of those requirements are greater than necessary to meet the legislature\u2019s purpose.\u201d White, 162 N.C. App. at 197, 590 S.E.2d at 457.\nThe nonpunitive purpose is to supervise certain offenders whom the legislature has identified as posing a particular risk to society. The question is whether continuous SBM for the remainder of an offender\u2019s life is reasonable in light of the objective to protect the public. The SBM restrictions are not imposed on all sex offenders, but only those whom the legislature has designated as posing a particular risk. In addition, although the trial court initially imposed SBM for the remainder of defendant\u2019s natural life, defendant may request termination of SBM under N.C. Gen. Stat. \u00a7 14-208.43. The Post-Release Supervision and Parole Commission (\u201cthe Commission\u201d) has authority to terminate satellite-based monitoring upon request of the first category of offender who has served his sentence and completed any period of probation, parole, or post-release supervision as part of the sentence, if the offender has not received any additional reportable convictions during the period of satellite-based monitoring. N.C. Gen. Stat. \u00a7 14-208.43 (2007). SBM will also be terminated if the offender has been released from the requirement to register under Part 2 of Article 27A. N.C. Gen. Stat. \u00a7 14-208.43(dl). The Commission does not have authority to consider or terminate a monitoring requirement for an offender in the second category. N.C. Gen. Stat. \u00a7 14-208.43(e). The trial court determined defendant falls under the first category of offender under N.C. Gen. Stat. \u00a7 14-208.40(a)(l).\nThe United States Supreme Court has held that a much more restrictive Kansas statute, which established \u201ca civil commitment procedure for the long-term care and treatment of the sexually violent predator\u201d was not excessive, given its purpose of protection of the public by holding a person until his mental abnormality no longer causes him to be a threat to others. Kansas v. Hendricks, 521 U.S. at 351-52, 117 S.Ct. at 2077, 138 L. Ed. 2d at 509. Accordingly, based on the record before us, we conclude that imposition of continuous SBM of recidivists or violent sex offenders is not unreasonable in light of the statute\u2019s purpose.\nC. Conclusion\nWe hold, that the restrictions imposed by the SBM provisions do not negate the legislature\u2019s expressed civil intent. Defendant has failed to show that the effects of SBM are sufficiently punitive to transform the civil remedy into criminal punishment. Based on the record before us, retroactive application of the SBM provisions do not violate the ex post facto clause.\nII. No Contest Plea Arrangement\nDefendant makes two arguments regarding his 2002 no contest plea arrangement. First, defendant argues the trial court violated N.C. Gen. Stat. \u00a7 15A-1022 when it failed to inform him that imposition of SBM would be a direct consequence of his plea. We disagree.\nN.C. Gen. Stat. \u00a7 15A-1022 provides in relevant part:\n(a) Except in the case of corporations or in misdemeanor cases in which there is a waiver of appearance under G.S. 15A-1011(a)(3), a superior court judge may not accept a plea of guilty or no contest from the defendant without first addressing him personally and:\n(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;\nN.C. Gen. Stat. \u00a7 15A-1022(a) (2007).\nDefendant\u2019s argument is predicated on the assumption that SBM is a punishment. Because we determined the SBM provisions are not punitive, N.C. Gen. Stat. \u00a7 15A-1022(a) is not implicated.\nDefendant next argues his plea is rendered involuntary because imposition of SBM was a direct consequence of his no contest plea. Our case law requires that \u201c[a]lthough a defendant need not be informed of all possible indirect and collateral consequences, the plea nonetheless must be \u2018entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court. . . .\u2019 \u201d State v. Bozeman, 115 N.C. App. 658, 661, 446 S.E.2d 140, 142 (1994) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L. Ed. 2d 747, 760 (1970) (emphasis added)). \u201cDirect consequences\u201d of a plea \u201care those that have a definite, immediate, and largely automatic effect on the range of the defendant\u2019s punishment[,]\u201d and a statute and the due process clause entitle the defendant to be apprised of them. State v. Smith, 352 N.C. 531, 550-51, 532 S.E.2d 773, 786 (2000). Direct consequences include mandatory minimum sentences or additional terms of imprisonment as a result of the guilty plea. Bozeman, 115 N.C. App. at 661, 446 S.E.2d at 142-43 (holding mandatory minimum sentences are a direct consequence of a guilty plea); State v. McNeill, 158 N.C. App. 96, 104, 580 S.E.2d 27, 31 (2003) (additional terms of imprisonment resulting from defendant\u2019s guilty plea to habitual offender status were a direct consequence). However, \u201c[t]he imposition of a sentence or sentences may have a number of collat\u00e9ral consequences, and a plea of guilty is not rendered involuntary in a constitutional sense if the defendant is not informed of all of the possible indirect and collateral consequences.\u201d Strader v. Garrison, 611 F.2d 61, 63 (4th Cir. 1979) (holding parole eligibility status is a collateral consequence of a guilty plea).\nWe disagree that lifetime satellite-based monitoring was an automatic result of defendant\u2019s no contest plea. \u201cWhen an offender is convicted of a reportable conviction as defined by N.C. Gen. Stat. \u00a7 14-208.6(4), during the sentencing phase,\u201d the trial court is required to separately determine whether an offender meets the criteria subjecting him to SBM. N.C. Gen. St'at. \u00a7 14-208.40A. If there has been no determination by the court whether an offender is required to enroll in SBM, the DOC makes the initial determination, schedules a hearing, notifies the offender, and the trial court determines in a separate hearing whether the offender falls under one of the categories subjecting him to SBM. N.C. Gen. Stat. \u00a7 14-208.40B (2007). Therefore, imposition of SBM was not an automatic result of his no contest plea, unlike a mandatory minimum sentence or an additional term of imprisonment. See Cuthrell v. Patuxent Institution, 475 F.2d 1364, 1365, 1367 (1973) (although defendant\u2019s guilty plea subjected him to the possibility of civil commitment, because the purpose of the commitment was not punishment and it occurred after a separate civil commitment hearing, civil commitment was not a direct and automatic consequence of defendant\u2019s guilty plea). This assignment of error is overruled.\nAffirmed.\nJudges STEELMAN and STROUD concur.\n. Part 2 is entitled \u201cSex Offender and Public Protection Registration Program\u201d and applies to offenders convicted of a reportable conviction. N.C. Gen. Stat. \u00a7 14-208.7 (2007). Part 3 is entitled \u201cSexually Violent Predator Registration Program\u201d and applies to an offender classified as a sexually violent predator. N.C. Gen. Stat. \u00a7 14-208.20 (2007). Part 3 requires sexually violent predators to register additional information in conjunction with the Part 2 registration requirements. N.C. Gen. Stat. \u00a7 14-208.21, -208.22.\n. The relevant portion of the Editor\u2019s Note reads as follows:\nThe Department of Correction shall either issue an RFP prior to signing a contract, or with prior approval by the State Chief Information Officer or his designee, enter into a contract through an approved contracting alliance or consortium for a passive and active Global Positioning System. The system shall be for use as an intermediate sanction and to help supervise certain sex offenders who are placed on probation, parole, or post-release supervision. If an RFP is issued, the contract shall be awarded by October 1, 2006 for contract terms to begin January 1, 2007. The Department of Correction shall report by November 1, 2006 to the Chairs of the House of Representatives and Senate Appropriations Committees and the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety on the details of the awarded contract.\nN.C. Sess. Laws 2006-247, \u00a7 16; Editor\u2019s Note, N.C. Gen. Stat. \u00a7 14-208.40 Ann. (2007) (emphasis added). The quoted language does not appear in the Editor\u2019s Note to the 2008 version of N.C. Gen. Stat. \u00a7 14-208.40. (Interim Supp. Vol. I, 2008)", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Catherine M. (Katie) Kay ser, for the State.", "Mary McGullers Reece, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FREDDIE JUNIOR BARE\nNo. COA08-818\n(Filed 16 June 2009)\n1. Constitutional Law\u2014 ex post facto law \u2014 satellite-based monitoring of sex offenders\nThe trial court did not err by directing defendant to enroll in satellite-based monitoring (SBM) under N.C.G.S. \u00a7 14-208.40B even though defendant contends it violates the ex post facto clause of the North Carolina and United States Constitutions when the SBM provisions did not exist at the time defendant was convicted of the charges and imposition of SBM increases defendant\u2019s punishment for his crime because: (1) the legislature intended SBM to be a civil and regulatory scheme; (2) the statutes regarding SBM do not refer to, incorporate, or rely upon the definition of \u201cintermediate punishment\u201d under N.C.G.S. \u00a7 15A-1340.11(6) and does not compel an interpretation that the legislature intended SBM as a punishment; (3) the fact that SBM can be one of the conditions imposed upon an offender who has not completed his probation, parole, or post-release supervision does not mean that SBM alone is intended as punitive; (4) while SBM results in electronic monitoring of an offender\u2019s whereabouts, the record does not indicate that it restricts an offender\u2019s liberty in matters such as where to live and work; (5) the fact that SBM provisions are codified in Chapter 14 entitled \u201cCriminal Law\u201d does not in and of itself transform a nonpunitive civil regulatory scheme into a criminal one; and (6) involvement of the district attorney in SBM determination hearings does not by itself supersede the declared intent of the legislature, nor does the fact that the Department of Correction is involved in the risk assessment overide the legislature\u2019s stated intent.\n2. Sex Offenses\u2014 satellite-based monitoring \u2014 civil regulatory scheme instead of punitive intent\nThe trial court did not err by directing defendant to enroll in satellite-based monitoring (SBM) under N.C.G.S. \u00a7 14-208.40B even though defendant contends the statutory scheme is so punitive in purpose or effect as to negate the State\u2019s intention to deem it civil because: (1) our Supreme Court has noted the publicity and resulting stigma of the sex offender registry is not an integral part of the objective of the regulatory scheme, and wearing an electronic monitoring device is no more stigmatizing than the public registration of sex offenders required by the sex offender registry; (2) defendant has not shown that cooperation with the Department of Correction for the purposes of maintaining the SBM device is any more of an affirmative restraint than the registration requirements; (3) although defendant characterizes the tracking device as bulky and cumbersome, the record did not contain any information as to the size of the device or any information as to the manner of its attachment to defendant; (4) although defendant contends the device hindered his ability to obtain employment, defendant failed to present any testimony or evidence on this issue, and defense counsel\u2019s statements are not considered evidence; (5) the fact alone that the SBM provisions could have a deterrent effect is not enough to override a non-punitive purpose; (6) defendant does not contest that the SBM provisions have a rational connection to a nonpunitive purpose, and the ability to track the location of individuals who have committed sex offenses against minors or other aggravated sex offenses has a rational connection to the purpose of protecting the public; (7) SBM restrictions are not imposed on all sex offenders, but only those whom the legislature has designated as posing a particular risk; and (8) although the trial court initially imposed SBM for the remainder of defendant\u2019s natural life, defendant may request termination of SBM under N.C.G.S. \u00a7 14-208.43.\n3. Sentencing\u2014 no contest plea \u2014 satellite-based monitoring not a direct consequence of plea\nThe trial court did not violate N.C.G.S. \u00a7 15A-1022 when it failed to inform defendant that imposition of satellite-based monitoring (SBM) would be a direct consequence of his 2002 no contest plea because: (1) defendant\u2019s argument is predicated on the assumption that SBM is a punishment, the Court of Appeals has determined that SBM provisions are not punitive, and thus N.C.G.S. \u00a7 15A-1022 is not implicated; (2) the imposition of a sentence may have a number of collateral consequences, and a plea of guilty is not rendered involuntary if defendant is not informed of all the possible indirect and collateral consequences; and (3) lifetime SBM was not an automatic result of defendant\u2019s no contest plea since the trial court is required to separately determine whether an offender meets the criteria subjecting him to SBM when an offender is convicted of a reportable conviction under N.C.G.S. \u00a7 14-208.6(4), or the Department of Corrections makes the initial determination if there has been no determination by the court.\nAppeal by defendant from order entered 19 February 2008 by Judge Henry E. Frye, Jr., in Wilkes County Superior Court. Heard in the Court of Appeals 20 November 2008.\nAttorney General Roy Cooper, by Assistant Attorney General Catherine M. (Katie) Kay ser, for the State.\nMary McGullers Reece, for defendant-appellant." }, "file_name": "0461-01", "first_page_order": 491, "last_page_order": 510 }