STATE v. DAVIS, COA10-1441 (N.C.App. 8-2-2011)

714 S.E.2d 530

No. COA10-1441North Carolina Court of Appeals
Filed 2 August 2011 This case not for publication

Hertford County Nos. 94CRS4560; 1723-24; 10CRS583-584.

Appeal by Defendant from order entered 9 June 2010 by Judge Cy A. Grant in Superior Court, Hertford County. Heard in the Court of Appeals 24 May 2011.

Attorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State.
Greene Wilson, P.A., by Thomas Reston Wilson, for Defendant-Appellant.

McGEE, Judge.

Texas Thomas Davis, Jr. (Defendant) was convicted of three counts of felonious incest and two counts of first-degree statutory rape on 15 March 1995, and given an active sentence. Defendant filed a “Motion for Appropriate Relief” (MAR) with the trial court on 11 August 2009, arguing that the trial court had improperly instructed the jury on first-degree statutory rape,

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and that Defendant’s appellate counsel was ineffective in failing to bring the issue forward in Defendant’s appeal from his 15 March 1995 convictions. Defendant’s MAR was heard on 9 June 2010.

At the MAR hearing, Defendant and the State reached an agreement whereby the State and Defendant moved the trial court to vacate Defendant’s convictions for first-degree statutory rape in return for Defendant’s pleading guilty to two counts of taking indecent liberties with a child. The trial court granted this joint motion, accepted Defendant’s plea of guilty on two counts of taking indecent liberties with a child, and entered judgment on 9 June 2010. The State filed a “Petition for Judicial Findings as to Satellite-Based Monitoring” (SBM) on that same day (9 June 2010) and requested the trial court impose lifetime SBM for Defendant’s two convictions of taking indecent liberties with a child. Following Defendant’s plea on 9 June 2010, the trial court heard the State’s petition for SBM, and concluded that Defendant should be placed on lifetime SBM based upon Defendant’s plea to two counts of taking indecent liberties with a child. The trial court imposed lifetime SBM by order entered 9 July 2010. Defendant appeals the 9 July 2010 order subjecting him to lifetime SBM.

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Defendant pleaded guilty to two counts of taking indecent liberties with a child. In its “Judicial Findings and Order for Sex Offenders — Active Punishment[,]” the trial court found, as the only basis for imposing lifetime SBM, that “the offense(s) of conviction is . . . an aggravated offense. G.S. 14-208.6(1a).” This Court has held that taking indecent liberties with a child is not an aggravated offense for the purposes of N.C. Gen. Stat § 14-208.6(1a). State v. Davison, 201 N.C. App. 354, 361-65, 689 S.E.2d 510, 515-17 (2009). The State agrees that it was error for the trial court to impose lifetime SBM on this basis. Because the only finding in support of the trial court’s imposition of lifetime SBM was made in error, we must vacate the trial court’s order imposing lifetime SBM. We remand to the trial court without prejudice to the State to re-petition the trial court for imposition of SBM, and a rehearing on the matter, should the State so petition. Because we vacate the order imposing SBM, we do not address other issues Defendant has brought forward on appeal.

Vacated and remanded.

Judges ERVIN and McCULLOUGH concur.

Report per Rule 30(e).

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