{ "id": 12168698, "name": "STATE OF NORTH CAROLINA v. PHILLIP MARK JONES", "name_abbreviation": "State v. Jones", "decision_date": "2014-06-03", "docket_number": "No. COA13-1181", "first_page": "239", "last_page": "247", "citations": [ { "type": "official", "cite": "234 N.C. App. 239" } ], "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": "754 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2014, "opinion_index": -1 }, { "cite": "689 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "517", "parenthetical": "\"[W]hen 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.\"" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173701 ], "year": 2009, "pin_cites": [ { "page": "364", "parenthetical": "\"[W]hen 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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0354-01" ] }, { "cite": "735 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "380", "parenthetical": "\"In determining whether a particular crime constitutes an aggravated offense, 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.\"" } ], "opinion_index": 0 }, { "cite": "429 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "370" }, { "page": "367" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525080 ], "year": 1993, "pin_cites": [ { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0138-01" ] }, { "cite": "710 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "294", "parenthetical": "quoting Kilby, 198 N.C. App. at 369-70, 679 S.E.2d at 434" } ], "opinion_index": 0 }, { "cite": "211 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3806369 ], "year": 2011, "pin_cites": [ { "page": "601", "parenthetical": "quoting Kilby, 198 N.C. App. at 369-70, 679 S.E.2d at 434" } ], "opinion_index": 0, "case_paths": [ "/nc-app/211/0599-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "714 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "211 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3806155 ], "year": 2011, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/211/0060-01" ] }, { "cite": "679 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2009, "pin_cites": [ { "page": "432" }, { "page": "434" }, { "page": "434" }, { "page": "434" }, { "page": "432" }, { "page": "432" }, { "page": "434", "parenthetical": "reversing the SBM order when the State presented no evidence which tended to support a determination of a higher level of risk than the 'moderate' rating assigned by the DOC" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169223 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "367" }, { "page": "369-70" }, { "page": "370-71" }, { "page": "367" }, { "page": "370-71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0363-01" ] }, { "cite": "700 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152446 ], "weight": 2, "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0424-01" ] }, { "cite": "683 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "757" }, { "page": "760-62" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171957 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "126" }, { "page": "130-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0123-01" ] }, { "cite": "754 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2014, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 612, "char_count": 19894, "ocr_confidence": 0.716, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24685782839076717 }, "sha256": "79565e4f66461ccf7b711ad0eb46b84fce8328f7b76b0f380796e2913280dd86", "simhash": "1:03a85484774e0dee", "word_count": 3167 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PHILLIP MARK JONES" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant Phillip Mark Jones appeals the order requiring him to enroll in satellite-based monitoring (\u201cSBM\u201d) for the duration of his post-release supervision. On appeal, defendant argues that: (1) the trial court lacked subject matter jurisdiction to order SBM because the State presented no evidence that defendant was a resident of Craven County at the time of the SBM hearing; and (2) the trial court\u2019s \u201cadditional findings\u201d supporting the highest possible level of supervision and monitoring were not supported by competent evidence.\nAfter careful review, we reverse the SBM order.\nBackground\nOn 15 January 1998, defendant pled guilty to statutory rape; the trial court sentenced him to 173 months to 217 months imprisonment (\u201cthe 1998 offense\u201d). While defendant was serving his prison sentence, the North Carolina Department of Public Safety (\u201cDPS\u201d) sent him notice that it had scheduled an SBM determination hearing in Craven County Superior Court after making the initial determination that defendant fell into a category that made him eligible for SBM. DPS claimed that it made that determination based on defendant\u2019s 1998 conviction in Craven County which \u201cinvolv[ed] the physical, mental, or sexual abuse of a minor.\u201d Defendant acknowledged that he received the notice by signing the letter on 9 October 2012.\nPrior to the SBM hearing, defendant submitted to a STATIC-99 assessment, the tool used by the Division of Adult Correction for assessing a sexual offender\u2019s likelihood for reoffending. Defendant earned a score of three points, which indicated a \u201cmoderate-low\u201d risk of reoff-ending. The results of the STATIC-99 were submitted to the trial court at defendant\u2019s SBM hearing.\nThe trial court held the SBM hearing on 25 January 2013. Defendant stipulated that he had received notice of the hearing. As for the prior conviction, the State submitted evidence showing that, in 1994, defendant had been initially charged with first degree sex offense; however, the prosecuting attorney had reduced the charge to assault on a female, to which defendant pled guilty (94 CR 1252) (\u201cthe 1994 offense\u201d). In defendant\u2019s file, the trial court noted that there was a 1997 report from Dorothea Dix Hospital evaluating defendant; the psychiatric evaluation was completed before his 1998 trial for statutory rape. Although the trial court reviewed the Dix report, it \u201cascribe [d] no significance\u201d to it given that it was over fifteen years old. The trial court asked defendant\u2019s probation officer how defendant was \u201cdoing\u201d on probation; the officer reported that defendant has reported to all his office appointments, has not missed a curfew, and has been paying the money he owes.\nOn a standard, preprinted AOC form, the trial court made the following findings: (1) defendant was convicted of a reportable conviction; (2) defendant fell into at least one of the categories requiring SBM; (3) the District Attorney scheduled a hearing in the county in which defendant resided and provided adequate notice of the hearing; and (4) defendant\u2019s 1998 conviction involved the physical, mental, or sexual abuse of a minor. The trial court made two \u201cadditional findings\u201d: (1) there was a short period of time from the conclusion of defendant\u2019s supervision for the \u201cprior sexual offense\u201d in 94 CR 1252 to reoffending (\u201cadditional finding no. 1\u201d); and (2) there was a similarity between the victims in both age and sex (\u201cadditional finding no. 2\u201d). Based on these \u201cadditional findings,\u201d the trial court ordered that defendant enroll in the highest possible level of supervision and monitoring until his post-release supervision ended for the 1998 offense (at some point in October 2017). Defendant filed timely notice of appeal.\nStandard of Review\nFor SBM enrollment, \u201cthe trial court is statutorily required to make findings of fact to support its legal conclusions.\u201d State v. Morrow, 200 N.C. App. 123, 126, 683 S.E.2d 754, 757 (2009), aff\u2019d per curiam, 364 N.C. 424, 700 S.E.2d 224 (2010). On appeal, this Court \u201creview[s] the trial court\u2019s findings of fact to determine whether they are supported by competent record evidence[.]\u201d State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009). Moreover, the Court reviews the trial court\u2019s conclusions of law for \u201clegal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found.\u201d State v. Clark, 211 N.C. App. 60, 70, 714 S.E.2d 754, 761 (2011).\nArguments\nI. Subject Matter Jurisdiction\nFirst, defendant argues that the trial court lacked subject matter jurisdiction over him to order SBM. Specifically, defendant contends that the State failed to present any evidence that defendant was a resident of Craven County at the time of the hearing; therefore, the trial court\u2019s finding that the hearing was held in the county of defendant\u2019s residence was not supported by competent evidence. Based on State v. Mills, _ N.C. App. _, 754 S.E.2d 674 (2014), we dismiss defendant\u2019s argument.\nPursuant to N.C. Gen. Stat. \u00a7 14-208.40B(b), \u201c[i]f the [DOC] determines that the offender falls into one of the categories described in [N.C. Gen. Stat. \u00a7] 14-208.40(a), the district attorney, representing the [DOC], shall schedule a hearing in superior court for the county in which the offender resides.\u201d Defendant argues that although he did not challenge the location of the hearing before the trial court, this issue may be raised for the first time on appeal since it addresses subject matter jurisdiction.\nIn support of his argument, defendant cites two unpublished cases. However, this Court\u2019s recent published opinion in Mills, is controlling. In Mills, the defendant did not argue at his SBM hearing that it was not being held in the county of his residence. On appeal, the defendant contended that: (1) he could raise this issue for the first time on appeal because it involved subject matter jurisdiction; and (2) there was no competent evidence presented at the hearing that defendant resided in Buncombe County, where the SBM hearing occurred. Id. at _, 754 S.E.2d at 677. After noting that SBM hearings are civil in nature, the Mills Court rejected the defendant\u2019s characterization of his argument as one challenging subject matter jurisdiction; instead, the Court concluded that \u201cwhile the superior court has subject matter jurisdiction over SBM hearings, the requirement that the hearing be held in the superior court in the county in which the offender resides relates to venue.\u201d Id. Thus, the defendant could not raise his venue challenge for the first time on appeal because it had been waived. Id.\nSimilarly, here, when defendant stipulated that he had received notice of the hearing, he did not raise any argument that he was not a resident of Craven County. Because the requirement that the SBM hearing be held in the county in which defendant resided relates to venue, not subject matter jurisdiction, id., defendant\u2019s failure to raise the issue before the trial court waived his ability to raise it for the first time on appeal, and this argument is dismissed.\nII. The \u201cAdditional Findings\u201d\nNext, defendant challenges the two \u201cadditional findings\u201d the trial court made in requiring defendant enroll in the highest level of supervision and monitoring. Specifically, with regard to \u201cadditional finding no. 1,\u201d defendant contends that there was no evidence that defendant had committed a \u201cprior sexual offense\u201d or that the present offense was committed within a \u201cshort period of time from [the] conclusion of supervision\u201d for the 1994 conviction of assault on a female. Additionally, defendant alleges that there was no evidence presented that the victims in the 1994 and 1998 offenses were similar in age and sex, which was noted in the trial court\u2019s \u201cadditional finding no. 2.\u201d Consequently, defendant argues that because these findings were not supported by competent evidence and defendant was assessed as a \u201cmoderate-low\u201d risk, the trial court erred in ordering him to enroll in the highest level of supervision and monitoring. We agree.\n\u201cThis Court has previously held that a DOC risk assessment of \u2018moderate,\u2019 without more, is insufficient to support the finding that a defendant requires the highest possible level of supervision and monitoring.\u201d State v. Green, 211 N.C. App. 599, 601, 710 S.E.2d 292, 294 (2011) (quoting Kilby, 198 N.C. App. at 369-70, 679 S.E.2d at 434). A trial court may order a defendant receive the highest level of supervision and monitoring if it \u201cmakes \u2018additional findings\u2019 regarding the need for the highest possible level of supervision and where there is competent record evidence to support those additional findings.\u201d Id. (citing State v. Morrow, 200 N.C. App. 123, 130-34, 683 S.E.2d 754, 760-62 (2009), aff\u2019d per curiam, 364 N.C. 424, 700 S.E.2d 224 (2010)). However, if a defendant is assessed as a \u201cmoderate\u201d risk and the State presented no evidence to support findings of a higher level of risk or to support the requirement for \u201cthe highest possible level of supervision and monitoring [,]\u201d the trial court\u2019s order must be reversed. Kilby, 198 N.C. App. at 370-71, 679 S.E.2d at 434. In contrast, if the State presented any evidence at the SBM hearing that would support the highest level, \u201cit would be proper to remand this case to the trial court to consider the evidence and make additional findings.\u201d Id. at 370, 679 S.E.2d at 434.\nA. \u201cAdditional Finding No. 1\u201d - Short Period of Time between Conclusion of Supervision for Defendant\u2019s \u201cPrior Sexual Offense\u201d and Reoffending\nFirst, defendant contends that there was no competent evidence introduced at the hearing to support the trial court\u2019s finding that defendant was convicted of a \u201cprior sexual offense\u201d or that the 1998 offense was committed within a short period of time from the conclusion of supervision for the 1994 offense.\nAt the SBM hearing, the State introduced evidence that, although defendant had initially been charged with first degree sex offense in 1994 (94 CR 1252), that charge was reduced and defendant pled guilty to assault on a female. The crime of assault on a female is not a sexual offense, a point which the State concedes. Therefore, that part of the trial court\u2019s finding\u2014-that defendant had been convicted of a \u201cprior sexual offense\u201d\u2014was not supported by competent evidence.\nWith regard to defendant\u2019s contention that there was no competent evidence presented to support the trial court\u2019s \u201cadditional finding\u201d that there was a short period of time between the conclusion of his probation for the 1994 nonsexual offense before he committed the 1998 sexual offense, his argument is without merit. Initially, it should be noted that the trial court classified defendant\u2019s probation as \u201csupervised\u201d for the 1994 offense. However, there is no evidence in the record to support this classification; the ACIS print-out submitted to the trial court for defendant\u2019s 1994 offense only indicated that defendant received three years of probation. Notwithstanding this classification, the ACIS print-out clearly indicated that defendant was sentenced to two years imprisonment on 30 March 1994 for assault on a female, but that sentence was suspended and defendant was placed on three years of probation. The offense date for the 1998 sexual offense was 19 August 1997, approximately three years and five months after defendant was sentenced for the 1994 nonsexual offense. While defendant is correct in that it is not exactly clear when defendant ended his probation for the 1994 offense, the print-out supports a finding that a short amount of time elapsed between the end of probation for the 1994 offense, sometime around April 1997, and the date of offense for the 1998 conviction, August 1997. Accordingly, part of \u201cadditional finding no. 1\u201d\u2014that defendant committed the 1998 offense soon after his probation for the 1994 offense ended\u2014was supported by competent evidence. Thus, it may be considered when determining whether the trial court\u2019s determination that defendant requires the highest level of supervision and monitoring \u201creflects] a correct application of law to the facts found.\u201d Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432.\nB. \u201cAdditional Finding No. 2\u201d - \u201cSimilarity in Victims\u2019 Age and Sex\u201d\nInitially, it should be noted that the State concedes, and we agree, that the trial court\u2019s \u201cadditional finding no. 2\u201d\u2014similarity of victims in age and sex\u2014was not supported by competent record evidence because the only documents establishing this finding were the 1997 Dorothea Dix documents. Citing State v. Mixion, 110 N.C. App. 138, 150, 429 S.E.2d 353, 370 (1993), since those documents were not offered into evidence before the trial court nor did defendant stipulate to their contents, the State concedes that the evidence was insufficient to support this finding. Therefore, it may not provide support for the trial court\u2019s determination that defendant required the highest level of monitoring and supervision.\nC. Does the Evidence that Defendant Committed the 1998 Offense Within a Short Period After Completing Probation for the 1994 Nonsexual Offense Along with his \u201cModerate-Low\u201d Risk of Reoffending Support the Trial Court\u2019s Determination That Defendant Required the Highest Level of Supervision and Monitoring?\nFinally, we must determine whether the \u201cadditional finding\u201d that there was a short period of time between the end of probation for the 1994 offense, a nonsexual offense, and committing a sexual offense supports the conclusion that defendant requires the highest possible level of supervision and monitoring. We conclude that this \u201cadditional finding\u201d does not, and the trial court\u2019s determination is \u201cnot a correct application of the law to the facts found,\u201d Id. at 367, 679 S.E.2d at 432. A defendant\u2019s \u201crisk of reoffending\u201d is based on the risk of the defendant committing another sexual offense. Here, the only conviction that the trial court may use in accessing defendant\u2019s risk of reoffending is the 1998 offense since that offense constitutes the only sexual offense defendant was convicted of; in contrast, the 1994 offense was a nonsexual offense and does not indicate any increased risk that he would commit another sexual offense. Consequently, this finding does not support a conclusion that defendant is at a high risk of reoffending and does not support a conclusion that defendant requires the highest possible level of supervision and monitoring.\nFurthermore, we conclude that the State presented no other evidence to support the trial court\u2019s determination. See id. (noting that if \u201cevidence was presented which could support findings of fact which could lead to a conclusion that \u2018the defendant requires the highest possible level of supervision and monitoring[,]\u2019 ... it would be proper to remand this case to the trial court to consider the evidence and make additional findings\u201d). The fact that defendant was originally charged with a sexual offense, established by the ACIS print-out indicating this initial charge, but pled to the lesser, nonsexual offense of assault on a female would not support a determination that defendant required the highest level of supervision and monitoring. In other words, the underlying facts of the 1994 offense may not be considered by the trial court in determining the level of supervision and monitoring a defendant requires for purposes of SBM. In support of this conclusion, we note that this Court has repeatedly held that the underlying facts of a defendant\u2019s conviction may not be used to determine whether the defendant committed an aggravated offense under section 14-208.6(la). See State v. Boyett, _ N.C. App. _, _, 735 S.E.2d 371, 380 (2012) (\u201cIn determining whether a particular crime constitutes an aggravated offense, 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) (internal quotation marks omitted); State v. Davison, 201 N.C. App. 354, 364, 689 S.E.2d 510, 517 (2009) (\u201c[W]hen 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). Thus, applying this analysis, we hold that the trial court may only consider the offense of which a defendant was convicted for purposes of determining what level of supervision and monitoring a defendant requires for SBM.\nIn summary, since the State presented no other evidence which could tend to support a determination of a higher level of risk that would require the highest level of supervision and monitoring other than his STATIC-99 score of moderate-low risk, the trial court\u2019s order must be reversed. See Kilby, 198 N.C. App. at 370-71, 679 S.E.2d at 434 (reversing the SBM order when the State presented no evidence which tended to support a determination of a higher level of risk than the \u2018moderate\u2019 rating assigned by the DOC). In fact, it should be noted that the only other evidence submitted at the SBM hearing supported the opposite conclusion. Specifically, defendant\u2019s probation officer indicated that defendant was fully cooperating with his post-release supervision, which might support a finding of a lower risk level, but not a higher one. Additionally, although he had not found work at the time of the SBM hearing, he was living with his mother and father, and his father attended the hearing, indicating some familial support. Thus, given that the only \u201cadditional finding\u201d supported by competent evidence\u2014that defendant committed the 1998 sexual offense shortly after ending probation for the 1994 nonsexual offense\u2014would not support a higher level of risk and that the State presented no other evidence showing that defendant required the highest level of monitoring and supervision, we reverse the trial court\u2019s SBM order.\nConclusion\nBecause the State presented no evidence other than defendant\u2019s moderate-low STATIC-99 risk assessment to support a finding that defendant required the highest level of supervision and monitoring, we reverse the SBM order.\nREVERSED.\nJudges BRYANT and STEELMAN concur.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PHILLIP MARK JONES\nNo. COA13-1181\nFiled 3 June 2014\n1. Jurisdiction\u2014subject matter\u2014venue\u2014satellite-based monitoring hearing\nDefendant\u2019s argument in a satellite-based monitoring (SBM) case that the trial court lacked subject matter jurisdiction over him because the State failed to present any evidence that he was a resident of the county in which the hearing was held was dismissed under State v. Mills, 754 S.E.2d 674 (2014). The requirement that the SBM hearing be held in the county in which defendant resided related to venue, not subject matter jurisdiction, and defendant\u2019s failure to raise the issue before the trial court waived his ability to raise it for the first time on appeal.\n2. Satellite-based monitoring\u2014highest level of supervision and monitoring\u2014additional findings not supported\u2014remaining finding not sufficient\nA majority of the trial court\u2019s \u201cadditional findings\u201d of fact in a satellite-based monitoring case were not supported by competent evidence. The remaining supported \u201cadditional finding],]\u201d coupled with defendant\u2019s assessment as a \u201cmoderate-low\u201d risk for committing another sexual offense, did not support the trial court\u2019s order that he enroll in the highest level of supervision and monitoring.\nAppeal by defendant from order entered 7 February 2013, nunc pro tunc to 25 January 2013, by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 22 April 2014.\nAttorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt, for defendant." }, "file_name": "0239-01", "first_page_order": 249, "last_page_order": 257 }