1
No. 448PA09TWENTY-EIGHTH JUDICIAL DISTRICT
SUPREME COURT OF NORTH CAROLINA
*****************************************
STATE OF NORTH CAROLINA)
)
v.)From Buncombe
)
KENNY BOWDITCH,)
KENNETH EDWARD PLEMMONS,)
MARK WATERS)
*****************************************
BRIEF OF DEFENDANTS-APPELLEES
*****************************************
1
INDEX
TABLE OF AUTHORITIES………………………………………….ii
QUESTIONS PRESENTED…………………………………………..1
STATEMENT OF THE CASE………………………………………..2
STATEMENT OF THE FACTS…………………………………...... 3
ARGUMENT…………………………………………………………..11
I.THE TRIAL COURT CORRECTLY CONCLUDED
THAT THE GENERAL ASSEMBLY INTENDED
SATELLITE-BASED MONITORING OF CONVICTED
SEX OFFENDERS TO CONSTITUTE PUNISHMENT,
THEREBY PRECLUDING ITS APPLICATION TO
OFFENSES COMMITTED PRIOR TO ENACTMENT
OF THE STATUTORY SCHEME……………………………..11
II.THE TRIAL COURT CORRECTLY CONCLUDED
THAT SATELLITE-BASED MONITORING IS SO
PUNITIVE IN PURPOSE AND EFFECT THAT
ORDERING ENROLLMENT OF OFFENDERS
WHOSE OFFENSES PRE-DATED ENACTMENT
OF THE STATUTE VIOLATED EX POST FACTO
GUARANTEES...... 29
CONCLUSION……………………………………...... 45
CERTIFICATE OF FILING AND SERVICE…………………………46
TABLE OF AUTHORITIES
Cases
Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985)…………22
Cases v. United States, 131 F.2d 916 (1st Cir. 1942)………………43
Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009)…………….25
Commonwealth v. Cory, 454 Mass. 559, 911 N.E.2d 187 (2009)….17,31,32,40,
42
Commonwealth v. Renderos, 440 Mass. 422, 799 N.E.2d 97
(2003)……………………………………………………………….36
Cummings v. Missouri, 4 Wall. 277 (1867)…………………………11,21
Doe v. Bredesen, 521 F.3d 680 (6th Cir. 2008)……………………..39,44
Doe v. Bredesen, 507 F.3d 689 (6th Cir. 2007), rehearing denied,
rehearing denied en banc, 521 F.3d 680 (6th Cir. 2008)……………37
Gall v. United States, 522 U.S. 38, 169 L.Ed.2d 445 (2007)………..18
Griffin v. Wisconsin, 483 U.S. 868, 97 L.Ed.2d 709 (1987)…………18,38
Hudson v. United States, 522 U.S. 93, 139 L.Ed.2d 450 (1997)…….13
In re Appeal of Martin, 286 N.C. 66, 209 S.E.2d 766 (1974)……….22
In re D.M., 129 N.C. App. 729, 666 S.E.2d 501 (2008)…………….38
Kansas v. Hendricks, 521 U.S. 346, 138 L.Ed.2d 501 (1997)……...12,29,36,40,
41
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L.Ed.2d 644
(1963)……………………………………………………………….29,30,40
Miller v. Florida, 482 U.S. 423, 96 L.Ed.2d 351 (1987)……………11
Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484 (1972)………..18
Samson v. California, 547 U.S. 843, 165 L.Ed.2d 250 (2006)………36
Sheffield v. Consolidated Foods, 302 N.C. 403, 276 S.E.2d 422
(1981)……………………………………………………………….22
Sims v. Charlotte Liberty Mutual Ins. Co., 257 N.C. 32, 125 S.E.2d
326 (1962)……………………………………………………………24
Smith v. Doe, 538 U.S. 84, 155 L.Ed.2d 164 (2003)………………..12,13,26,29,
32,36,38,39
State v. Barnes, 158 N.C. App. 606, 582 S.E.2d 313 (2003)………..37
State v. Beckham, 148 N.C. App. 282, 558 S.E.2d 255 (2002)……..40
State v. Conway, __ N.C. App. __, 699 S.E.2d 40 (2008)…………..38
State v. Craven, 312 N.C. 580, 324 S.E.2d 499 (1985)……………..40
Stat v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980)……………….24
State v. Davison, __ N.C. App. __, __ S.E.2d __, 2009 N.C. App.
LEXIS 2239 (2009)…………………………………………………..2
State v. Hearst, 356 N.C. 132, 567 S.E.2d 124 (2002)………………21,38
State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997)………..11
State v. Singleton, __ N.C. App. __, __ S.E.2d __, 2010 N.C. App.
LEXIS 34 (2010)…………………………………………………….2
State v. Stines, __ N.C. App. __, 683 S.E.2d 411 (2009)……………35
State v. Vogt, __ N.C. App. __, 685 S.E.2d 23 (2009), review
pending………………………………………………………………35
United States v. Knights, 534 U.S. 112, 151 L.Ed.2d 497 (2001)……36
United States v. United States District Court, 407 U.S. 297, 32
L.Ed.2d 752 (1972)…………………………………………………..37
Wallace v. State, 905 N.E.2d 371 (Ind. 2009)……………………….25
Weaver v. Graham, 450 U.S. 24, 67 L.Ed.2d 17 (1981)…………….11,21
Constitutions
North Carolina Constitution
Article I, §16…………………………………………………..12
Article XI, §1………………………………………………….18
United States Constitution
Article I, §10(1)………………………………………………..12
Amendment I…………………………………………………..21
Amendment IV…………………………………………………21
Amendment XIV……………………………………………….21
Statutes
North Carolina General Statutes
§14-202.1…………………………………………………….40
§14-208.5…………………………………………………….25
§14-208.6…………………………………………………….16,27
§14-208.7…………………………………………………….27
§14-208.9…………………………………………………….27
§14-208.33……………………………………………………16,26
§14-208.35……………………………………………………16,19,21,24,
25
§14-208.40……………………………………………………26,41
§14-208.40B………………………………………………….11,42
§14-208.40C………………………………………………….27
§14-208.41……………………………………………………27
§14-208.42……………………………………………………19,21,25,26,
36
§14-208.43……………………………………………………20,27,41
§15A-837……………………………………………………..22
§15A-1340.11………………………………………………...19,22
§15A-1340.12…………………………………………………28
§15A-1340.13…………………………………………………22
§15A-1343……………………………………………………16,36
§15A-1344……………………………………………………16
§15A-1368……………………………………………………16
§15A-1374……………………………………………………16
§143B-261……………………………………………………26,28
Other Authorities
Black’s Law Dictionary (7th ed. 1999)………………………………39
Stephens H. Clarke, Law of Sentencing, Probation, and Parole in
North Carolina(2nd ed. 1997)……………………………………….18,19
National Association to Protect Children, California REAL Safety
Coalition……………………………………………………………...19
North Carolina Department of Correction (September 2009)………..27
North Carolina Department of Correction Division of Community
Corrections Legislative Report on Global Positioning Satellite
Systems (March 1, 2006)…………………………………………….14,15
North Carolina Department of Correction Division of Community
Corrections Annual Report 2002/2003...... 13,14,41
North Carolina Rules of Civil Procedure……………………………..27
North Carolina Session Laws
2007-213………………………………………………………19,29
2006-247……………………………………………………….15,16,17,21,
23,26,27
2005-276……………………………………………………….14
The Oxford English Reference Dictionary (2nd ed. 1996)……………20
Senate Bill 2063 (2008)……………………………………………….23,25
Tennessee Board of Probation and Parole, Monitoring Tennessee’s
Sex Offenders Using Global Positioning Systems: A Project
Evaluation (2009)……………………………………………………..38,44
1
No. 448PA09TWENTY-EIGHTH JUDICIAL DISTRICT
SUPREME COURT OF NORTH CAROLINA
*********************************************
STATE OF NORTH CAROLINA)
)
v.)From Buncombe
)
KENNY BOWDITCH,)
KENNETH EDWARD PLEMMONS,)
MARK WATERS)
*********************************************
BRIEF OF DEFENDANTS-APPELLEES
*********************************************
QUESTIONS PRESENTED
I.WHETHER THE TRIAL COURT CORRECTLY CONCLUDED THAT THE GENERAL ASSEMBLY INTENDED SATELLITE-BASED MONITORING OF CONVICTED SEX OFFENDERS TO CONSTITUTE PUNISHMENT, THEREBY PRECLUDING ITS APPLICATION TO OFFENSES COMMITTED PRIOR TO ENACTMENT OF THE STATUTORY SCHEME?
II.WHETHER THE TRIAL COURT CORRECTLY CONCLUDED THATSATELLITE-BASED MONITORING IS SO PUNITIVE IN PURPOSE AND EFFECT THAT ORDERING ENROLLMENT OF OFFENDERS WHOSE OFFENSES PRE-DATED ENACTMENT OF THE STATUTE VIOLATED EX POST FACTO GUARANTEES?
STATEMENT OF THE CASE
Messrs. Bowditch, Plemmons, and Waters concur in the State’s Statement of the Case, except for its characterization of the order entered by the Honorable Dennis J. Winner. Judge Winner ruled that (1) determining whether an offender committed an “aggravated offense” required review of the facts underlying the offense, rather than examination of the elements of the conviction offense[1]; (2) satellite-based monitoring was intended by the General Assembly to constitute punishment and could not be ordered for offenders whose offenses pre-dated enactment of satellite-based monitoring without offending federal and state ex post facto guarantees; and (3) if the General Assembly did not intend satellite-based monitoring to be penal, satellite-based monitoring was so punitive in purpose and effect as to constitute punishment, retroactive application of which violated ex post facto guarantees. (Rp. 2-7)
STATEMENT OF THE FACTS
The Department of Correction (DOC) implemented satellite-based monitoring (SBM) of sex offenders on 1 January 2007. (Vol. 2Tp. 5) The DOC Division of Community Corrections establishes SBM policies and procedures for state-wide application. (Vol. 1Tp. 36, 52-53, 60) Though rules and regulations have been promulgated, no written guidelines exist. (Vol. 2Tp. 55-56) Matters not covered by state-wide policies, such as how to respond to various signals sent by the miniature tracking device worn by offenders, have been left to the discretion of the individual supervisors and their practices vary throughout the State. (Vol. 1Tp. 36, 52-53)
Offenders subject to SBM fall into two categories: offenders ordered to enroll while on probation, parole, or post-release supervision (supervised offenders) and offenders ordered to enroll in lifetime SBM (unsupervised offenders). (Vol. 2Tp. 9-10) No assessment of future risk is undertaken as to offenders ordered to enroll in lifetime monitoring (Vol. 2Tp. 42) and no test has been devised to assess the future risk posed by female offenders. (Vol. 1Tp. 88; Vol. 2Tp. 16-17)
Supervised offenders are overseen by local departments of probation and parole. (Vol. 1Tp. 26) Unsupervised offenders are overseen by a thirty-person SBM-electronic house arrest unit within the DOC Division of Community Corrections. (Vol. 2Tp. 6) Interaction between local probation departments and DOC frequently occurs, as two probation officers within the Division of Community Corrections assist local probation departments with supervised offenders and local probation departments assist DOC with unsupervised offenders. (Vol. 1Tp. 76; Vol. 2Tp. 6) Alerts for unsupervised offenders generated after 5:00 p.m. are received by local probation officers. (Vol. 2Tp. 44) Local sheriffs and law enforcement also assist DOC with the unsupervised population. (Vol. 2Tp. 10)
Both groups of offenders are required to sign SBM agreements with DOC. (Vol. 1Tp. 32, 47, 60) The agreements provide, inter alia, that the offender will wear a tamper-proof non-removable ankle bracelet and a miniature tracking device (MTD) twenty-four hours a day, seven days a week; will charge the MTD base unit daily; will display the MTD at all times; and will acknowledge and follow all messages sent via the MTD. (Vol. 1Tp. 33-35, 49) The MTD must be visible to the public, cannot be placed under outerwear, and must be recharged six hours a day. (Vol. 1Tp. 34-35; Vol. 2Tp. 47)
Offenders ordered to enroll in SBM prior to June 2009 wear an ankle bracelet approximately three inches long, one and three-fourth inches tall, and one inch deep. The ankle bracelet includes a transmitter that sends signals to the MTD. The MTD, which weighs one to two pounds, is approximately four and one-fourth inches long, two inches wide, and three inches deep. (Vol. 1Tp. 27, 29) The ankle bracelet on equipment available after June 2009 is similarly sized, but contains a smaller transmitter unit. (Vol. 2Tp. 25) The MTD sends signals to and from global satellites and to and from the supervising agency. (Vol. 1Tp. 27, 38) Alerts sent from the MTD appear as text messages on the supervisor’s cell phone. (Vol. 1Tp. 43; Vol. 2Tp. 8)
All offenders, including those on lifetime monitoring, receive their SBM equipment from local probation departments. (Vol. 2Tp. 25) All offenders are required to cooperate with the Division of Community Corrections, including allowing probation officers into their homes every ninety days to check the SBM equipment. DOC contacts the local district attorney or sheriff if an unsupervised offender refuses to allow access to a probation officer, as failure to allow access is a class 1 misdemeanor. (Vol. 1Tp. 79; Vol. 2Tp. 13, 40) The mandatory cooperation extends to whoever is overseeing the unsupervised offender at the time. (Vol. 1Tp. 79) Telephonic contact occurs between probation officers and unsupervised lifetime offenders. (Vol. 2Tp. 25)
In the open air, a “bracelet gone” alert is generated when the ankle bracelet is more than fifty feet from the MTD on pre-June 2009 models and more than thirty feet on post-June 2009 models. (Vol. 2Tp. 2Tp. 41) A “bracelet gone,” “no GPS,” or “lost signal” alert is generated at less than fifty or thirty feet if the offender is inside a building, vehicle, or other structure. (Vol. 1Tp. 48, 71; Vol. 2Tp. 9) When the “no GPS” or “lost signal” alert is generated, a message appears on the MTD ordering the offender to go outside so that the satellite can reacquire a signal. (Vol. 1Tp. 31, 50, 71)
When a “no GPS” or “lost signal” alert is generated, which can occur at any time of day for no discernible reason, the supervising agency allows the offender ten minutes to comply with the directive on the MTD to go outside. (Vol. 1Tp. 32; Vol. 2Tp. 31) If contact is not reestablished, a probation officer, DOC employee, or sheriff first tries to locate the offender by telephone. If the probation officer, DOC employee, or sheriff is unable to reach the offender, he or she then calls a list of friends, family, and employers provided by the offender. If those efforts fail, the probation officer, DOC employee, or sheriff goes to the offender’s home. If the offender is at home, he is required to stand outside with the supervising agent, regardless of the weather or time of day, to reestablish contact with the satellite. (Vol. 1Tp. 64; Vol. 2Tp. 30-31)
If an offender was in a movie theater and placed the MTD on the adjacent seat, a “bracelet gone” signal would alert if the offender subsequently went to the restroom. If the offender reattached the MTD in order to go to the restroom, the reattachment would cause a “no GPS” signal to alert. In either situation, the offender would be required to exit the movie theater in order to reestablish contact with the satellite. (Vol. 1Tp. 35, 50; Vol. 2Tp. 36) Nothing would prevent the offender from leaving the MTD on the adjacent seat, exiting the movie theater to commit a crime, returning to the theater, reattaching the MTD, and going outside to reestablish a connection with the satellite. (Vol. 2Tp. 37)
The MTD cannot read the ankle bracelet if the bracelet is submerged in two to three feet of water. The MTD responds by sending a “bracelet gone” alert. (Vol. 2Tp. 29) An offender cannot swim in the ocean or a swimming pool, scuba dive, or sit in a full bath without generating a “bracelet gone” signal. (Vol. 1Tp. 30-31, 45; Vol. 2Tp. 29, 31) Scuba diving permanently damages the ankle bracelet, thereby violating the agreement signed by all offenders assuming responsibility for the equipment. (Vol. 2Tp. 23, 33)
Medical procedures such as MRIs, ultrasounds, colonoscopies, and whirlpool baths cannot be conducted on offenders wearing ankle bracelets. Unsupervised and supervised offenders are required to obtain a note from a doctor regarding the treatment, receive permission from DOC or the probation department to obtain the treatment, and be accompanied to the medical procedure by a probation officer. The probation officer removes the ankle bracelet for the duration of the treatment and reattaches it upon its conclusion. (Vol. 2Tp. 49-50, 52-53, 55) If a lifetime offender required physical therapy in a hot tub, DOC could authorize a probation officer to place the ankle bracelet on the offender’s wrist, but does not recommend doing so as some offenders are double jointed and could remove the bracelet. (Vol. 2Tp. 24)
DOC tries to work with offenders in terms of their employment, as SBM poses difficulties depending on the occupation or place of employment. Whether an offender can pursue his desired employment is wholly within the discretion of DOC. (Vol. 2Tp. 40) A parking lot attendant could frequently lose the satellite signal because of signal blocking by the parking garage. (Vol. 1Tp. 76) A janitor required to go into the basement of a building could lose the signal. (Vol. 1Tp. 75) A waiter constantly on the move in a restaurant would be in and out of signal range. (Vol. 2Tp. 35) Employment on a production line could be hampered by wearing the MTD. (Vol. 1Tp. 61) With consent of the offender’s employer, DOC can permit an offender to place the MTD in a stationary location on sleep mode so long as the offender agrees not to leave the building during working hours. (Vol. 1Tp. 67; Vol. 2Tp. 33)
The MTD functions like a cell phone, as it has a SIM card and transmits information. (Vol. 2Tp. 32) If an offender went camping or hiking in an area without cell phone coverage, the satellite would lose contact. (Vol. 1Tp. 45) An offender cannot board an airplane, as the MTD, like a cell phone, would have to be turned off during the flight. If the MTD was confiscated by the FAA or TSA at the airport, the offender would suffer consequences for loss of the equipment. (Vol. 2Tp. 32-33)
As the MTD must be charged daily, an offender cannot remain in a location lacking electricity. (Vol. 1Tp. 72, 78) If the lack of cell phone coverage did not prohibit camping or hiking, such activities could not be pursued if the campsite lacked electricity. (Vol. 1Tp. 69)
DOC and local probation departments have the capability of setting geographical limits on offenders’ movements by setting exclusion zones. (Vol. 1Tp. 36, 48; Vol. 2Tp. 8) The MTD would alert when the offender entered an exclusion zone. DOC and local probation departments could set the inclusion zone as the offender’s residence and all other locations as exclusion zones. (Vol. 1Tp. 74; Vol. 2Tp. 44) DOC and the Buncombe County Probation Department do not presently use exclusion zones, but Probation Officer Todd Carter testified that it was very possible that exclusion zones will be used in the future. He assumed that offenders would be notified of exclusion zones by certified letter. (Vol. 1Tp. 48) DOC’s current position is that exclusion zones could not be used for lifetime offenders. (Vol. 2Tp. 43)
Neither local probation officers nor DOC watch the offenders’ movements on monitors twenty-four hours a day. (Vol. 1Tp. 57-58; Vol. 2Tp. 8) The monitors do not reveal real time movement. (Vol. 1Tp. 40) Local probation departments can retrieve the past 500 locations of an offender. (Vol. 1Tp. 56) DOC can retrieve locations visited for the twelve preceding months. (Vol. 2Tp. 11) The equipment vendor is required to store information for seven years beyond the length of the contract and provide the information to DOC and probation departments upon request. (Vol. 2Tp. 11)
DOC has retrieved offender movements at the request of local sheriffs conducting criminal investigations. (Vol. 2Tp. 13) DOC does not seek a search warrant prior to obtaining the information as it believes it owns the information. (Vol. 2Tp. 39) If DOC notices that an offender has crossed into South Carolina, for example, and has a history of committing crimes in South Carolina, DOC calls the unsupervised offender to investigate the offender’s activity. (Vol. 2Tp. 54)
On advice of counsel, DOC reviews the movements of unsupervised offenders on a random basis to avoid the appearance that the offenders are being “supervised.” (Vol. 2Tp. 10, 14) If DOC notices patterns of movement, DOC may contact local law enforcement to determine what places the offender is visiting. (Vol. 2Tp. 10, 12) Such places could turn out to be a church or political function. (Vol. 1Tp. 58)
Offenders on lifetime monitoring can leave the State and continue to be tracked, but probation officers and DOC have no jurisdiction to enter another state. (Vol. 2Tp. 48-49) A lifetime offender can permanently leave the State if he turns in his SBM equipment. (Vol. 2Tp. 69)
ARGUMENT
I.THE TRIAL COURT CORRECTLY CONCLUDED THAT THE GENERAL ASSEMBLY INTENDED SATELLITE-BASED MONITORING OF CONVICTED SEX OFFENDERS TO CONSTITUTE PUNISHMENT, THEREBY PRECLUDING ITS APPLICATION TO OFFENSES COMMITTED PRIOR TO ENACTMENT OF THE STATUTORY SCHEME.
“The ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28, 67 L.Ed.2d 17, 22 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-326 (1867)). A law violates ex post facto guarantees when it “changes the punishment of a crime to make the punishment greater than the law permitted when the crime was committed.” State v. Mason, 126 N.C. App. 318, 324, 484 S.E.2d 818, 821 (1997). Accord Miller v. Florida, 482 U.S. 423, 96 L.Ed.2d 351 (1987). Satellite-based monitoring (SBM) of sex offenders was enacted after Mr. Bowditch, Mr. Plemmons, and Mr. Waters committed the acts which led to convictions and sentences for indecent liberties. (Rp. 3) After each defendant was sentenced, each was determined by the Department of Correction (DOC) to be eligible for SBM and set for a hearing under N.C.G.S. §14-208.40B for judicial determination of eligibility. The trial court correctly concluded that these offenders could not be ordered to enroll in SBM without violating the ex post facto guarantees of Article I, §10(1) of the United States Constitution and Article I, §16 of the North Carolina Constitution, as SBM constitutes punishment for criminal offenses. The trial court’s ruling was fully supported by the record and should be affirmed.
In conducting an ex post facto inquiry, a court
must ‘ascertain whether the legislature meant the statute to establish “civil” proceedings.’ Kansas v. Hendricks, 521 U.S. 346, 361, 138 L.Ed.2d 501, 117 S.Ct. 2072 (1997). If the intent of the legislature was to impose punishment, that ends the inquiry.
Smith v. Doe, 538 U.S. 84, 92, 155 L.Ed.2d 164, 176 (2003). The trial court engaged in the required analysis and concluded that the General Assembly intended to impose additional punishment on sex offenders when it enacted SBM. The court focused upon three indicators of the General Assembly’s intent: (1) its failure to state that it intended to create a civil regulatory scheme; (2) its designation of DOC as the state agency in charge of implementing and supervising SBM; and (3) its placement of SBM statutes within the Criminal Code. (Rp. 6) Each factor amply supported the trial court’s conclusion.
A.The General Assembly’s Statement of Intent that SBM Constitutes Criminal Punishment.
The first task in examining a statute for ex post facto purposes is determining whether the legislature “indicated either expressly or impliedly a preference for one label or the other.” Smith, 538 U.S. at 93, 155 L.Ed.2d at 177 (quotingHudson v. United States, 522 U.S. 93, 139 L.Ed.2d 450 (1997)). From the enacting legislation through subsequent amendments, the General Assembly both expressly and impliedly indicated a preference that SBM statutes be construed as criminal legislation.