{
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  "name": "STATE OF NORTH CAROLINA v. MICHAEL BURNETTE SINGLETON, Defendant",
  "name_abbreviation": "State v. Singleton",
  "decision_date": "2010-01-05",
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    "judges": [
      "Judges GEER and ERVIN concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. MICHAEL BURNETTE SINGLETON, Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nDefendant appeals from an order requiring him to enroll in satellite-based monitoring (SBM) pursuant to N.C. Gen. Stat. \u00a7 14-208.40B for the remainder of his natural life. Because the plain language of N.C. Gen. Stat. \u00a7 14-208.40(a)(l), N.C. Gen. Stat. \u00a7 14-208B(c) and N.C. Gen. Stat. \u00a7 14-208.6(la) requires enrollment in lifetime satellite-based monitoring for an offender who is convicted of an \u201caggravated offense,\u201d we reverse.\nI. Factual background\nOn 5 May 2006, a warrant for defendant\u2019s arrest was issued, charging him with taking indecent liberties with a child pursuant to N.C. Gen. Stat. \u00a7 14-202.1(a)(l) (2005). At the time of the offense, defendant was age sixteen and the victim was age four. On 19 June 2006, a superceding indictment was issued, also charging defendant with taking indecent liberties with a child. On 21 August 2006, defendant pled guilty to a charge of taking indecent liberties with a child pursuant to N.C. Gen. Stat. \u00a7 14-202.1. Defendant had no prior record and was sentenced within the presumptive range based on prior record level I to imprisonment for not less than sixteen months and not more than twenty months, but this sentence was suspended and defendant was placed on probation for thirty-six months. Defendant was placed on intensive supervision for six months and was required to remain in high school, to complete the sex offender control program, and to register as a sex offender.\nOn 2 June 2008, the State filed a Petition for Judicial Findings as to Satellite-Based Monitoring, pursuant to N.C. Gen. Stat. \u00a7 14-208.40B (2007) for the trial court to order defendant to enroll in SBM. The State alleged that (1) the defendant is classified as a sexually violent predator pursuant to N.C. Gen. Stat. \u00a7 14-208.40B or; (2) the defendant is a recidivist or; (3) the offense of which defendant was convicted was an aggravated offense. The petition identified defendant\u2019s prior reportable conviction for taking indecent liberties with a child as the basis for the request for SBM.\nThe trial court held the SBM determination hearing on 29 August 2008. The State presented testimony by Probation Officer Brian Holbrook, who was defendant\u2019s assigned probation officer. Officer Holbrook testified that defendant had not been assessed as a sexually violent predator, and that he had no prior convictions, so he was not a recidivist, but that defendant\u2019s conviction was for an \u201caggravated offense.\u201d Officer Holbrook testified that the victim was a 4 year old boy who was a friend of the family. On 20 April 2006, defendant and the victim were playing outside and then they went inside and, \u201clong story short, there was anal penetration on a four year old boy.\u201d The court inquired \u201cI guess as a result of the plea, it was reduced to indecent liberties?\u201d Officer Holbrook answered, \u201cYes, Your Honor.\u201d Although the record does not contain defendant\u2019s STATIC 99 Risk Assessment, Officer Holbrook testified that the probation department had made a determination that defendant \u201cis risked at a high.\u201d Officer Holbrook noted that he could inform the court \u201cabout his supervision if you\u2019d like[,]\u201d but the court inquired only as to whether defendant was registered, and Officer Holbrook said that defendant was registered as a sex offender. Defendant did not present any evidence. On 29 August 2008, the trial court entered an order finding that \u201cThe defendant (a) falls into one of the categories requiring satellite-based monitoring under G.S. 14-208.40 in that the offense of which the defendant was convicted was an aggravated offense.\u201d The trial court therefore ordered that defendant shall enroll in SBM for \u201cthe remainder of his natural life.\u201d\nII. Grounds for Appellate Review\nDefendant first argues that the court has jurisdiction over this appeal pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) and N.C. Gen. Stat. \u00a7 15A-1442. In the alternative, defendant filed a petition for certiorari requesting review pursuant to N.C. Gen. Stat. \u00a7 15A-1444(al) (2007). The State does not contest that this Court has jurisdiction over this appeal, although the State argues that certiorari is not appropriate. However, defendant\u2019s argument as to the grounds for appellate review is well-taken, as the grounds for appeal are not entirely obvious. Although this Court has considered several appeals of orders for SBM under N.C. Gen. Stat. \u00a7 14-208.40B and N.C. Gen. Stat. \u00a7 14-208.40A, we have not addressed the basis for this Court\u2019s jurisdiction. Unfortunately, Chapter 14, Article 27A leaves many procedural questions as to SBM, including the manner of appeal, unanswered. \u25a0\nGenerally, appeals based upon \u201cerrors committed in criminal trials and proceedings\u201d are governed by Article 91 of Chapter 15A, the Criminal Procedure Act. N.C. Gen. Stat. \u00a7 15A-1401 (2007). Appellate jurisdiction in criminal appeals by a defendant and grounds for appeal in criminal cases are set forth in N.C. Gen. Stat. \u00a7 15A-1442 and N.C. Gen. Stat. \u00a7 15A-1444. \u201c[A] defendant\u2019s right to appeal in a criminal proceeding is purely a creation of state statute. Furthermore, there is no federal constitutional right obligating courts to hear appeals in criminal proceedings.\u201d State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).\nGenerally, the right to appeal in criminal cases is set out in N.C. Gen. Stat. \u00a7 15A-1444 (2003). Under that statute, a defendant who pleads not guilty at trial may appeal the judgment itself as a matter of right. N.C. Gen. Stat. \u00a7 15A-1444(a). In addition, a defendant who was found guilty or who pled guilty or no contest has the right to appeal the following issues:\n(1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant\u2019s prior record level under N.C. Gen. Stat. \u00a7 15A-1340.14 or the defendant\u2019s prior conviction level under N.C. Gen. Stat. \u00a7 15A-1340.21; (3) whether the sentence constitutes a type of sentence not authorized by N.C. Gen. Stat. \u00a7 15A-1340.17 or \u00a7 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant\u2019s motion to suppress; and (5) whether the trial court improperly denied the defendant\u2019s motion to withdraw his guilty plea.\nState v. Brown, 170 N.C. App. 601, 606, 613 S.E.2d 284, 287 (quoting State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004)), disc. review denied, 360 N.C. 68, 621 S.E.2d 882 (2005).\nIn Brown, this Court held that a defendant has no statutory right of appeal from an order denying post-conviction DNA testing pursuant to N.C. Gen. Stat. \u00a7 15A-269. Id. at 606-07, 613 S.E.2d at 287. We rejected defendant\u2019s contention that he had a right to appeal under N.C. Gen. Stat. \u00a7 7A-27(b) because a post-conviction DNA motion is a \u201ccriminal proceeding,\u201d but an order denying DNA testing is not a \u201cfinal judgment\u201d in a \u201ccriminal proceeding.\u201d Id. at 606, 613 S.E.2d at 287. We went on to hold that\n[u]nder N.C. Gen. Stat. \u00a7 15A-101(4a) (2003), judgment is defined as \u2018when sentence is pronounced.\u2019 See also Berman v. United States, 302 U.S. 211, 212, 82 L. Ed. 204, 204, 58 S. Ct. 164, 165 (1937) (\u2018Final judgment in a criminal case means sentence. The sentence is the judgment.\u2019). The [order denying post-conviction DNA testing] does not involve the pronouncement of a sentence.\nId. at 606-07, 613 S.E.2d at 287.\nIn all of the SBM cases considered thus far by this Court, the SBM hearings have been conducted as \u201ccriminal\u201d hearings, at least in the sense that the hearings were placed on criminal, not civil, calendars; the district attorney has represented the State; and the defendants have been represented by court-appointed counsel. However, SBM hearings are not \u201ccriminal\u201d proceedings in the sense as addressed by Article 15A, Chapter 91. N.C. Gen. Stat. \u00a7 1-5 (2007) defines a \u201ccriminal action\u201d as \u201c(1) An action prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof. (2) An action prosecuted by the State, at the instance of an individual, to prevent an apprehended crime against his person or property.\u201d N.C. Gen. Stat. \u00a7 1-6 (2007) provides that \u201c[e]very other is a civil action.\u201d A SBM proceeding is prosecuted by the State, but the defendant has not been charged with a \u201cpublic offense\u201d for which the State is seeking punishment. State v. Bare, -N.C. App. -, -, 677 S.E.2d 518, 526-27 (2009) (holding that even though the SBM hearings are prosecuted by the State, they are not designed as criminal punishment). According to N.C. Gen. Stat. \u00a7\u00a7 1-5 and 1-6, an SBM proceeding, particularly one conducted under N.C. Gen. Stat. \u00a7 14-208.40B, would not be a \u201ccriminal action,\u201d so it must be a \u201ccivil action.\u201d In a SBM hearing, there is no entry of a plea of \u201cguilty,\u201d \u201cnot guilty\u201d or \u201cno contest.\u201d See N.C. Gen. Stat. \u00a7 15A-1444. There is no jury verdict and certainly no \u201csentence\u201d is pronounced in a SBM determination hearing under N.C. Gen. Stat. \u00a7 14-208.40B. The SBM determination is distinguished from post-conviction DNA testing by the fact that a motion for DNA testing seeks to attack the underlying final criminal judgment. If a post-conviction DNA testing reveals evidence which is favorable to the defendant, \u201cthe court shall enter an order that \u2018serves the interests of justice\u2019 and may (1) vacate and set aside the judgment, (2) discharge the defendant, (3) resentence the defendant, or (4) grant a new trial.\u201d Brown, 170 N.C. App. at 605, 613 S.E.2d at 286-87 (quoting N.C. Gen. Stat. \u00a7 15A-270(c)). By contrast, the SBM determination hearing has no effect whatsoever upon the defendant\u2019s prior criminal convictions or sentencing and is not a part of any \u201ccriminal proceedings\u201d or \u201ccriminal prosecution\u201d of the defendant.\nIn addition to these distinctions between SBM proceedings and criminal prosecutions, the most important distinction is that this Court has held that the SBM statutes establish a civil regulatory regime and not a means of punishment for a crime. See State v. Bare, -N.C. App. -, \u2014 , 677 S.E.2d 518, 527 (2009); State v. Anderson, - N.C. App. -, -, 679 S.E.2d 165, 167 (2009). Therefore, for purposes of appeal, a SBM hearing is not a \u201ccriminal trial or proceeding\u201d for which a right of appeal is based upon N.C. Gen. Stat. \u00a7 15A-1442 or N.C. Gen. Stat. \u00a7 1444.\nSBM hearings have been conducted much like probation violation hearings, which may be appropriate as probation violation hearings are not criminal prosecutions either. See State v. Pratt, 21 N.C. App. 538, 540, 204 S.E.2d 906, 907 (1974)(\u201cA proceeding to revoke probation is not a criminal prosecution but is a proceeding solely for the determination by the court whether there has been a violation of a valid condition of probation so as to warrant putting into effect a sentence theretofore entered[.]\u201d) However, SBM hearings are unlike probation violation hearings in that a defendant who appeals from a revocation of probation has a specific right to appeal under N.C. Gen. Stat. \u00a7 15A-1347 (2007). The SBM statutes do not contain any specific right of appeal from the superior court\u2019s determination as to SBM.\nThis Court has previously noted that, \u201c[f]or all practical purposes there is an unlimited right of appeal in North Carolina to the Appellate Division of the General Court of Justice from any final judgment of the superior court or the district court in civil and criminal cases.\u201d State v. Black, 7 N.C. App. 324, 327, 172 S.E.2d 217, 219 (1970) (citing N.C. Gen. Stat. \u00a7 7A-27). Under N.C. Gen. Stat. \u00a7 7A-27, the primary consideration is that the appeal must be from a \u201cfinal judgment,\u201d and that appeals from interlocutory orders are allowed only in certain limited situations. Certainly the 29 August 2008 order requiring defendant to submit to SBM for the remainder of his natural life is a \u201cfinal judgment.\u201d Our Supreme Court has defined a final judgment as \u201cone which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.\u201d Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citation omitted). The 29 August 2008 order disposes of the State\u2019s petition for judicial findings as to satellite-based monitoring of defendant and leaves nothing further to be judicially determined. As the SBM order is a final judgment from the superior court, we hold that this Court has jurisdiction to consider appeals from SBM monitoring determinations under N.C. Gen. Stat. \u00a7 14-208.40B pursuant to N.C. Gen. Stat. \u00a7 7A-27.\nIII. Standard of Review\nThis Court stated the standard of review for orders as to SBM in State v. Kilby: \u201c[w]e review the trial court\u2019s findings of fact to determine whether they are supported by competent record evidence, and we review the trial court\u2019s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found.\u201d-N.C. App.-,-, 679 S.E.2d 430, 432 (2009) (quoting State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004) (citation, quotation marks, and brackets omitted), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005)).\nIV. Aggravated Offense\nDefendant argues that the trial court\u2019s finding that he was convicted of an \u201caggravated offense\u201d and that he therefore was required to enroll in SBM for the rest of his natural life was in error as the finding is not supported by competent evidence. The State sought an order for SBM based upon N.C. Gen. Stat. \u00a7 14-208.40 (a)(1), which provides for SBM for \u201c[a]ny offender who is convicted of a reportable conviction as defined by G.S. 14-208.6(4) and who is required to register under Part 3 of Article 27A of Chapter 14 of the General Statutes because the defendant is classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense as those terms are defined in G.S. 14-208.6.\u201d N.C. Gen. Stat. \u00a7 14-208.40(a)(l) (2007) (emphasis added). N.C. Gen. Stat. \u00a7 14-208.40B(c) provides that if the court determines that \u201cthe conviction offense was an aggravated offense, the court shall order the offender to enroll in satellite-based monitoring for life.\u201d (emphasis added).\nN.C. Gen. Stat. \u00a7 14-208.6(la) (2007) defines \u201caggravated offense\u201d as \u201cany criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.\u201d N.C. Gen. Stat. \u00a7 14-208.6(la).\nDefendant was convicted of taking indecent liberties with a child in violation of N.C. Gen. Stat. \u00a7 14-202.1, which provides that\n(a) 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:\n(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\n(2) Willfully 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.\nN.C. Gen. Stat. \u00a7 14-202.1 (2005).\nThe State concedes that indecent liberties with a child is not an \u201caggravated offense\u201d as defined by N.C. Gen. Stat. \u00a7 14-208.6(la), as the \u201cbare elements\u201d of the offense do not require either \u201cengaging in a sexual act involving vaginal, anal, or oral penetration of a minor under the age of twelve.\u201d However, the State argues that\n[t]he crucial question in this appeal is not whether, by definition, the crime of which Defendant was convicted \u2014 aking indecent liberties with a child \u2014 is an \u2018aggravated offense\u2019 under N.C.G.S. \u00a7 14-208.6(la). Instead, the issue is whether Defendant\u2019s guilty plea, in conjunction with the proffered factual basis for the conviction at the determination hearing, supported the trial court\u2019s conclusion that Defendant committed an \u2018aggravated offense\u2019 thus subjecting him to lifetime enrollment in the SBM program.\n(emphasis added). According to the State \u201cthe testimony of Defendant\u2019s probation officer and through no objections from the Defendant, established the necessary criteria to meet the \u2018aggravated offense\u2019 standard, the trial court\u2019s lifetime enrollment of Defendant in the SBM program was proper.\u201d Therefore, the State asks us to base the determination of whether the defendant\u2019s \u201ccriminal offense\u201d was an \u201caggravated offense\u201d upon the facts of the underlying reportable offense as presented at the SBM hearing instead of upon the statutory elements of the crime for which the defendant was convicted.\nThe State\u2019s argument has recently been rejected by this Court in State v. Davison,-N.C. App.-,-, S.E.2d-,-(December 8, 2009) (No. COA09-212) (stating that \u201c[t]he General Assembly\u2019s repeated use of the term \u2018conviction\u2019 compels us to conclude that, when making a determination pursuant to N.C.G.S. \u00a7 14-208.40A, the trial court is only to consider the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction.\u201d). Accordingly, N.C. Gen. Stat. \u00a7 14-208.40(a)(l) requires that the offender be \u201cconvicted of an aggravated offense[,]\u201d and N.C. Gen. Stat. \u00a7 14-208.40B(c) refers to the trial court\u2019s determination that \u201cthe conviction offense was an aggravated offense.\u201d (emphasis added). N.C. Gen. Stat. \u00a7 208.6(4) defines \u201creportable conviction\u201d based upon a particular \u201cfinal conviction.\u201d\nThe State notes the General Assembly\u2019s intent of protecting the public from sex offenders as expressed in Article 27A and argues that based upon the General Assembly\u2019s protective intent, we should read the definition of an \u201caggravated offense\u201d broadly, such that we look beyond the statutory elements of a crime and consider both the elements of the crime and \u201cthe specific facts upon which the conviction is based.\u201d However, the plain language of the statute dictates a contrary result. We have previously held that\n[t]he primary goal of statutory construction is to effectuate the purpose of the legislature in enacting the statute. The first step in determining a statute\u2019s purpose is to examine the statute\u2019s plain language. Where 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.\nCashwell v. Department of State Treasurer, Retirement Systems Division,-N.C. App.-,-, 675 S.E.2d 73, 76 (2009). At least in\nregard to this particular issue, the statutes are clear and unambiguous. All of the relevant SBM statutes refer to the offense of which the offender was convicted, not charged, or even, as in this case, perhaps could have been charged. See N.C. Gen. Stat. \u00a7\u00a7 14-208.6(4); 14-208.40; 14-208.40B.\nThis case demonstrates some of the problems which arise if the determination as to SBM could be based upon the \u201cfactual basis\u201d of a prior conviction as opposed to the actual conviction. The State argues that \u201c[i]n its proffer to the trial court at the determination hearing, the State related the factual basis for Defendant\u2019s guilty plea was that Defendant had anally penetrated a four year old boy.\u201d It is true that defendant\u2019s probation officer testified that the defendant\u2019s anal penetration of a four year old boy was the factual basis for his prior conviction, but the record does not contain any information whatsoever about the \u201cfactual basis\u201d for the defendant\u2019s plea which was actually provided to the court on 21 August 2006, when defendant entered his plea. In addition, the trial court, upon hearing the testimony concerning the anal penetration of a four year old child, understandably assumed that defendant must have originally been charged with a greater offense, such as a first degree sexual offense under N.C. Gen. Stat. \u00a7 14-27.4 (2005) or a second degree sexual offense under N.C. Gen. Stat. \u00a7 14-27.5 (2005), but defendant had agreed to enter a plea to a lesser offense, taking indecent liberties with a child. Officer Holbrook incorrectly informed the trial court that defendant had pled to a reduced charge. The State introduced the file for the underlying offense at the SBM hearing, which demonstrates that defendant was charged only with taking indecent liberties with a child. He pled guilty to the same charge, with no reduction in the charge against him. He was never convicted of, or even charged with, any crime other than taking indecent liberties with a child.\nThe SBM statutes require a \u201creportable conviction,\u201d which is itself defined as a \u201cfinal conviction\u201d of one of many particular enumerated offenses, in order for the State to petition for an offender\u2019s enrollment in SBM. N.C. Gen. Stat. \u00a7 14-208.40B; N.C. Gen. Stat. \u00a7 14-208.6(4). The SBM statutes break down the various \u201creportable convictions\u201d into two categories for purposes of SBM. N.C. Gen. Stat. \u00a7 14-208.6(4)(a). Those two categories include \u201cA final conviction for [1] an offense against a minor [or] [2] a sexually violent offense].]\u201d Id.\nAs to the particular offenses identified under N.C. Gen. Stat. \u00a7 14-208.40(a)(l), lifetime SBM is required, without the need for the court to consider any other factors. N.C. Gen. Stat. \u00a7 14-208.40B(c). As to N.C. Gen. Stat. \u00a7 14-208.40(a)(2), if a defendant is convicted of a \u201creportable conviction,\u201d then the trial court must consider the level of risk of the offender\u2019s recidivism, if the offender requires the \u201chighest possible level of supervision and monitoring\u201d and the time period of SBM which should be imposed. N.C. Gen. Stat. \u00a7 14-208.40B(c). If SBM monitoring determinations could be based only upon the \u201cfactual basis\u201d for a reportable offense which would demonstrate that the defendant actually committed a more serious crime than his \u201cconviction crime,\u201d there would have been no need for the legislature to set forth in such detail the particular crimes which are subject to a particular degree of monitoring. In addition, the offender may be placed in the untenable position of having to refute factual allegations about a crime he may have committed years earlier in order to try to convince the court that the crime for which he was \u201cconvicted\u201d was actually as stated by his conviction, and not a more serious crime. Evidence and witnesses as to the facts of the \u201creportable conviction\u201d may no longer be available.\nTherefore, the trial court\u2019s finding that defendant was convicted of indecent liberties with a child was supported by competent record evidence, as this was his \u201cconviction offense.\u201d The trial court\u2019s conclusion that defendant had been convicted of an \u201caggravated offense\u201d was legally incorrect, as the offense of indecent liberties with a child does not fit within the definition of an \u201caggravated offense\u201d pursuant to N.C. Gen. Stat. \u00a7 14-208.6(la). In addition, the trial court\u2019s conclusion of law that defendant must be enrolled in SBM for the remainder of his natural life was also in error, as this conclusion did not \u201creflect a correct application of law to the facts found.\u201d State v. Kilby, -N.C. App. at-, 679 S.E.2d at 432. The order requiring defendant to enroll in SBM for the remainder of his natural life is therefore reversed.\nBecause we have granted the relief as defendant requested, we need not address defendant\u2019s other assignments of error.\nREVERSED.\nJudges GEER and ERVIN concur.\n. N.C. Gen. Stat. \u00a7 14-208.6(4) (2007) defines four different categories of crimes which are considered as \u201creportable conviction[s]\u201d for purposes of Sex Offender Registration and SBM. Defendant herein had a \u201cfinal conviction\u201d for a \u201csexually violent offense,\u201d which is defined by N.C. Gen. Stat. \u00a7 14-208.6(5). The definition of \u201csexually violent offense[s]\u201d includes reference to nineteen separate crimes, identified by specific statutory references, as well as solicitation or conspiracy to commit any of the offenses or aiding and abetting any of these offenses. Taking indecent liberties with children in violation of N.C. Gen. Stat. \u00a7 14-202.1 is identified as a \u201csexually violent offense.\u201d N.C. Gen. Stat. \u00a7 14-208.6(5).\n. We note that the evidence regarding the DOC\u2019s risk assessment, which found the defendant to be a \u201chigh\u201d risk, was actually unnecessary and irrelevant at this particular hearing. In the \u201cfirst category\u201d of offenders under N.C. Gen. Stat. \u00a7 14-208B(c) (2007), SBM is required if the trial court determines that the offender is \u201cqualified.\u201d No DOC risk assessment is required. The State was not seeking SBM of defendant pursuant to the \u201csecond category\u201d of offenders pursuant to N.C. Gen. Stat. \u00a7 14-208.40B(c). See State v. Kilby,-N.C. App. \u2014\u2022,-, 679 S.E.2d 430, 433 (2009) (This \u201csecond category\u201d includes \u201c(2) Any offender who satisfies all of the following criteria: (i) is convicted of a reportable conviction as defined by N.C. Gen. Stat. \u00a7 14-208.6(4), (ii) is required to register under Part 2 of Article 27A of Chapter 14 of the General Statutes, (iii) has committed an offense involving the physical, mental, or sexual abuse of a minor, and (iv) based on the Department\u2019s risk assessment program requires the highest possible level of supervision and monitoring. N.C. Gen. Stat. \u00a7 14-208.40(a)(l)-(2) (2007).\u201d) A DOC risk assessment is necessary only for offenders alleged to fall in the-\u201csecond category-\u201d\n. N.C. Gen. Stat. \u00a7 7A-27 (2007) governs the appellate jurisdiction of the Court of Appeals and of the Supreme Court for appeals from the trial divisions. Subsection (b) provides that \u201c[f]rom any final judgment of a superior court. . . appeal lies of right to the Court of Appeals.\u201d Id.\n. N.C. Gen. Stat. \u00a7 15A-1442 (2007) governs the grounds for correction of error by the appellate division in criminal cases, and provides that \u201cThe following constitute grounds for correction of errors by the appellate division.\n(6) Other Errors of Law. \u2014 Any other error of law was committed by the trial court to the prejudice of the defendant.\u201d\n. Under N.C. Gen. Stat. \u00a7 14-208.40A(a), the SBM determination is made \u201cduring the sentencing phase,\u201d where the defendant has been convicted of a \u201creportable conviction.\u201d However, the SBM determination is separate from the sentencing hearing. See State v. Causby,-N.C. App.-,-, 683 S.E.2d 262, 263 (2009) (After defendant\u2019s sentencing hearing, the trial court conducted a separate hearing to determine whether defendant should be enrolled in a SBM program.)\n. N.C. Gen. Stat. \u00a7 15A-1022(c) (2007) states the requirements for a \u201cfactual basis\u201d for acceptance of a plea of guilty or no contest. Although we express no opinion on the issue, there is certainly a question as to whether Officer Holbrook\u2019s brief hearsay description of defendant\u2019s offense would suffice as a \u201cfactual basis\u201d under N.C. Gen. Stat. \u00a7 15A-1022(c)(4). Article 27A, Sex Offender and Public Protection Registration Programs, contains no reference to a \u201cfactual basis\u201d for any reportable conviction.\n. The definition of \u201coffense against a minor\u201d includes reference to three separate crimes, identified by specific statutory references. N.C. Gen. Stat. \u00a7 14-208.6(li). The definition of \u201csexually violent offense[s]\u201d includes reference to nineteen separate crimes, identified by specific statutory references. N.C. Gen. Stat. \u00a7 14-208.6(5).",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Special Counsel Hilary S. Peterson, for the State.",
      "Robert W. Ewing, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL BURNETTE SINGLETON, Defendant\nNo. COA09-263\n(Filed 5 January 2010)\n1. Appeal and Error\u2014 jurisdiction \u2014 satellite-based monitoring determinations\nThe Court of Appeals has jurisdiction to consider an appeal from satellite-based monitoring (SBM) determinations under N.C.G.S. \u00a7 14-208.40B pursuant to N.C.G.S. \u00a7 7A-27 because an SBM order is a final judgment from the superior court.\n2. Sexual Offenders\u2014 satellite-based monitoring \u2014 aggravated offense required\nThe trial court erred by ordering defendant to enroll in satellite-based monitoring (SBM) under N.C.G.S. \u00a7 14-208.40B for the remainder of his natural life after he pled guilty to a charge of taking indecent liberties with a child under N.C.G.S. \u00a7 14-202.1 because the offense of indecent liberties with a child does not fit within the definition of an \u201caggravated offense\u201d under N.C.G.S. \u00a7 14-208.6(la).\nAppeal by defendant from judicial findings and order entered on or about 29 August 2008 by Judge Henry E. Frye, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 2 September 2009.\nAttorney General Roy A. Cooper, III, by Special Counsel Hilary S. Peterson, for the State.\nRobert W. Ewing, for defendant-appellant."
  },
  "file_name": "0620-01",
  "first_page_order": 648,
  "last_page_order": 659
}
