               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-678

                                  Filed: 7 April 2020

Catawba County, No. 17 CRS 2027-29, 50237-38

STATE OF NORTH CAROLINA

              v.

DONALD EUGENE BLANKENSHIP


      Appeal by defendant from judgments entered 6 December 2017 by Judge Julia

Lynn Gullett in Catawba County Superior Court. Heard in the Court of Appeals 3

March 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Yvonne B.
      Ricci, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Andrew
      DeSimone, for defendant-appellant.


      TYSON, Judge.


      Donald Eugene Blankenship (“Defendant”) appeals from judgments entered

upon his guilty plea to five counts of indecent liberties with minor children. We affirm

the trial court’s order imposing ten years of satellite-based monitoring (“SBM”).

      We dismiss Defendant’s unpreserved constitutional challenge to the

reasonableness of the trial court’s order on SBM.       We also dismiss Defendant’s

ineffective assistance of counsel (“IAC”) claim.

                                    I. Background
                               STATE V. BLANKENSHIP

                                 Opinion of the Court



      Federal law enforcement officers located in Joplin, Missouri were investigating

David Lee Perkins for filming and distributing child pornography.            Perkins

distributed child pornography to Defendant and corresponded via email with him

concerning the minor victim depicted in the pornography. The Federal Bureau of

Investigation executed a search warrant on Defendant at home and confiscated his

computer.   During Defendant’s interview, he admitted to receiving, having, and

sharing child pornography on his computer and to fondling several victims.

      Defendant was indicted for five counts of taking indecent liberties with

children on 1 May 2017. He pleaded guilty to those charges on 6 December 2017. The

State presented a factual basis for Defendant’s plea, asserting three of the sexual

assault victims, both male and female children, were between the ages of six to

fourteen years old. The State also identified two additional minor victims and child

pornography crimes, for which Defendant was not indicted.

      T.S. was six or seven years old between 1 July 2010 and 31 August 2010. T.S.’

parents were friends with Defendant, and they had left T.S. alone with him on several

occasions. Defendant fondled and assaulted T.S. two times by touching T.S.’ penis

and buttocks and had T.S. touch Defendant’s penis.

      V.G. was fourteen years old between 1 June 2012 and 30 June 2012. V.G. was

friends with Defendant’s daughter and had stayed overnight at Defendant’s house.




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While V.G. was staying at Defendant’s house, he tried to touch “her breasts and her

vaginal area.”

      The third victim, M.B., was eleven years old between 1 June 2012 and 30

September 2012.    M.B. was also friends with Defendant’s daughter and visited

Defendant’s house. On “numerous occasions” at Defendant’s house he tried to touch

M.B.’s breasts and vagina. Once M.B. had to “put[] a pillow over her [body] trying to

protect herself” from Defendant’s assaults.

      As a part of Defendant’s plea agreement on the five indecent liberties charges,

the State agreed not to proceed on any charges related to the child pornography

Defendant possessed or concerning assaults on the two other unindicted victims.

      The State requested to be heard on the imposition of SBM. Prosecutors argued

and the trial court found Defendant had committed sexually violent offenses under

N.C. Gen. Stat. § 14-208.65. The State used the factual basis for the plea and the

findings of the STATIC-99R, an actuarial assessment instrument, as the basis for

requesting the imposition of SBM on Defendant for ten years. The STATIC-99R

concluded Defendant had one point from the individual risk factors, and the

Department of Corrections characterized his risk as “Average Risk.”

      On 6 December 2017, Judge Gullett sentenced Defendant to an active term of

five consecutive sentences of 16 to 29 months. Defendant was ordered to register as

a sex-offender for thirty years, and to be subject to SBM for a period of ten years



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                                  Opinion of the Court



following his release from incarceration. On 5 December 2018, Judge Nathaniel J.

Poovey entered an amended judgment nunc pro tunc modifying Defendant’s sentence

to five consecutive active terms of 16 to 20 months each.

      Defendant petitioned for writ of certiorari. This Court allowed Defendant’s

petition “for the purpose of granting defendant a belated appeal from the ‘Judicial

Findings and Order for Sex Offenders’ and criminal judgments” dated 6 December

2017. This Court’s order also expressly limited the scope of Defendant’s appeal from

the criminal judgments “to those issues the defendant could have raised on direct

appeal pursuant to N.C. Gen. Stat. [§] 15A-1444 (2017).”

                                   II. Jurisdiction

      A defendant entering a guilty plea has no statutory right to appeal the trial

court’s judgment.     See N.C. Gen. Stat. § 15A-1444(e) (2019).         This Court

discretionarily reviews Defendant’s “Judicial Findings and Order for Sex Offenders”

and criminal judgments under the terms of the writ of certiorari granted on 12

February 2019 pursuant to N.C. Gen. Stat. § 15A-1444(g).

                                      III. Issues

      Defendant argues the trial court erred by requiring him to enroll in SBM when

the Department of Corrections (“DOC”) characterized his risk at the lowest level of

the “Average Risk” category on the STATIC-99R form. Defendant also asserts the

State had failed to establish his enrollment in SBM constituted a reasonable search



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                                    Opinion of the Court



under the Fourth Amendment as required by State v. Grady, 372 N.C. 509, 831 S.E.2d

542 (2019). Defendant further argues he received ineffective assistance of counsel

upon his trial counsel’s failure to argue the constitutionality of the SBM program

being applied to him.

                                IV. SBM Determination

                                 A. Standard of Review

               [W]e review the trial court’s findings of fact to determine
               whether they are supported by competent record evidence,
               and we review the trial court’s conclusions of law for legal
               accuracy and to ensure that those conclusions reflect a
               correct application of law to the facts found. We [then]
               review the trial court’s order to ensure that the
               determination that defendant requires the highest possible
               level of supervision and monitoring reflects a correct
               application of law to the facts found.

State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009) (citations, quotation

marks and brackets in original omitted).

                                       B. Analysis

         Defendant argues the trial court erred by requiring him to enroll in the SBM

program for a period of ten years. Defendant contends the trial court’s four additional

findings, the DOC’s “Average Risk” assessment, and the basis for the plea do not

adequately support the legal conclusion requiring Defendant to enroll in SBM for ten

years.




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                                  Opinion of the Court



      An offender may be required to enroll in SBM without a finding of a high risk

by the DOC. See State v. Morrow, 200 N.C. App. 123, 132, 683 S.E.2d 754, 761 (2009)

(declining “to adopt . . . construction of the statute that would require a DOC rating

of high risk as a necessary requisite to SBM”).

      “[A] trial court’s determination that the defendant requires the highest

possible level of supervision may be adequately supported where the trial court

makes additional findings regarding the need for the highest possible level of

supervision and where there is competent record evidence to support those additional

findings.” State v. Green, 211 N.C. App. 599, 601, 710 S.E.2d 292, 294 (2011) (internal

quotation marks omitted). In Green, this Court held a “trial court may properly

consider evidence of the factual context of a defendant’s conviction when making

additional findings as to the level of supervision required of a defendant convicted of

an offense involving the physical, mental, or sexual abuse of a minor.” Id. at 603, 710

S.E.2d at 295.

      Before we consider whether the trial court properly concluded Defendant

requires the highest possible level of supervision, we must first determine whether

the challenged additional findings are supported by competent evidence. The trial

court made the following additional findings of fact: (1) Defendant “sexually assaulted

multiple child victims;” (2) Defendant “sexually assaulted both male and female child




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                                   Opinion of the Court



victims;” (3) “the children ranged in ages from 6 to 14;” and, (4) Defendant “took

advantage of a position of trust to sexually assault his victims.”

      “The trial court’s findings of fact are conclusive on appeal if supported by

competent evidence, even if the evidence is conflicting.” State v. Brewington, 352 N.C.

489, 498, 532 S.E.2d 496, 501 (2000) (citation omitted). Prior to the start of the SBM

hearing, the trial court engaged in a plea colloquy with Defendant, in which

Defendant stipulated to the State’s factual basis for the plea.

      In offering the factual basis to support the plea, the State provided the details

of Defendant’s assault on three minor victims between the ages of six to fourteen

years old. The victims were both male and female. Defendant’s victims were either

guests in his home to visit his daughter or T.S., a six-year-old male child, whose

parents had asked Defendant to care for and protect him. The unobjected to evidence,

that Defendant admitted as a part of his plea bargain, provides competent evidence

to support the trial court’s additional findings. Defendant’s pretext of providing

childcare for T.S. to accommodate T.S.’ parents and affording a purported safe place

for female minors to visit his daughter and then committing these assaults is

especially egregious.

      As we have concluded the trial court’s additional findings of fact one, two,

three, and four are supported by competent evidence, we must next determine

whether these findings, along with the “Average Risk” STATIC-99R assessment,



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                                    Opinion of the Court



support the trial court’s determination that Defendant “requires the highest possible

level of supervision and monitoring.”         This Court’s review of the trial court’s

determination is to ensure it “reflect[s] a correct application of law to the facts found.”

Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432.

       Relating to additional finding one, that Defendant “sexually assaulted multiple

child victims,” Defendant argues this finding of fact merely shows the way or manner

of how he committed the offense and did not support its conclusion that Defendant

posed a high risk of re-offending. Defendant argues this issue is governed by State v.

Pell, 211 N.C. App. 376, 712 S.E.2d 189 (2011). Defendant asserts the “evidence

offered very little in the way of predicative statements concerning [the] [d]efendant’s

likelihood of recidivism.” Id. at 382, 712 S.E.2d at 193.

       The holding in Pell is inapposite to the present facts. In Pell, the defendant

was sentenced to register as a sex offender, in part, on the trial court’s finding that

he was a “danger to the community.” Id. at 377, 712 S.E.2d at 190. The Court

recognized that the “legislative intent reveals that ‘danger to the community’ only

refers to those defendants who pose a risk of engaging in sex offenses following their

release from incarceration.” Id. at 381, 712 S.E.2d at 192. This Court held the State’s

expert witness’ testimony that defendant was at a low risk of offending and the

victim’s impact statements addressing the impact defendant’s actions had on their




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                                  Opinion of the Court



lives, were insufficient evidence to support a conclusion that the defendant

“represented a ‘danger to the community.’” Id. at 381-82, 712 S.E.2d at 193.

      Unlike in Pell, the trial court here found Defendant had “sexually assaulted

multiple child victims.” This finding does not merely relate to the manner of the

commission of the offenses. It shows Defendant’s multiple actions on multiple minor

victims at multiple times rather than a single or isolated incident. The court’s

additional finding corresponds to and is exactly a “predictive statement concerning

Defendant’s likelihood of recidivism.” Id. at 382, 712 S.E.2d at 193.

      As previously discussed, the trial court may consider the context under which

the crimes occurred, revealed in the factual basis for Defendant’s guilty plea, when

making additional findings “as to the level of supervision required of a defendant

convicted of an offense involving the physical, mental, or sexual abuse of a minor.”

Green, 211 N.C. App. at 603, 710 S.E.2d at 295. Defendant stipulated to the factual

basis for his plea. Defendant’s crimes of sexually abusing multiple minor victims, on

multiple occasions within the pretext of providing a safe environment to gain access

to them supports the imposition of SBM.

      Turning to additional finding two, Defendant “sexually assaulted both male

and female child victims.” Defendant argues this additional finding is contained in

the STATIC-99R assessment and cannot also be considered as an additional finding.

In support of this assertion, Defendant cites State v. Thomas, wherein this Court



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                                   Opinion of the Court



overturned an order of SBM because “additional findings cannot be based upon

factors explicitly considered in the STATIC-99 assessment.” State v. Thomas, 225

N.C. App. 631, 634, 741 S.E.2d 384, 387 (2013).

      The STATIC-99 assessment in Thomas included a prior conviction. Id. at 632,

741 S.E.2d at 386. This prior conviction was also listed as an “additional finding.” Id.

However, the finding number two in the present case is distinct from Thomas. The

entire factor was not “explicitly considered” in Defendant’s STATIC-99R.           The

challenged finding before us incorporates both male and female victims in

Defendant’s home, while only the male victims were included in the STATIC-99R’s

assessment. In Thomas, both the trial court’s “additional findings” were overruled

by this Court leaving no additional findings to support the SBM order. Id. at 635, 741

S.E.2d at 387-88. Here, additional factors to support the order of SBM are not

duplicative and remain.

      Defendant argues additional finding three, “[t]he children range in ages from

6 to 14” does not support a conclusion that Defendant required the highest possible

level of supervision and monitoring. Again, Defendant cites Green, where neither of

the victims were “able to advocate” for themselves. Green, 211 N.C. App. at 601, 710

S.E.2d at 294. However, the statement in Green has been read more expansively than

being limited to victims so young they cannot speak. The finding goes to the general

ability of the victims to advocate and report incidents and abuses. A child, who can



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                                  Opinion of the Court



speak, may also not have the will, courage, or maturity to report what has happened

to them. See State v. Smith, 240 N.C. App. 73, 76, 769 S.E.2d 838, 841 (2015)

(upholding the SBM in part based upon the fact victims were very young females).

      Defendant argues additional finding four, “[t]he defendant took advantage of

a position of trust to sexually assault his victims” does not support the conclusion

that he posed a high risk of re-offending. Defendant cites State v. Blakeman, wherein

this Court overruled a determination to impose SBM because insufficient evidence

supported the sentencing factor that the defendant was in a position of trust over the

assault victim. State v. Blakeman, 202 N.C. App. 259, 272, 688 S.E.2d 525, 533 (2010).

      In Blakeman, no evidence showed the victim’s “mother had arranged for [the

defendant] to care for [the victim] on a regular basis, or that [the defendant] had any

role in [the victim’s] life other than being her friend’s stepfather.” Id. at 270, 688

S.E.2d at 532.

      Here, some of Defendant’s minor victims were placed in Defendant’s care to be

watched and kept safe under the direction of the minor’s parents, or were children

visiting Defendant’s daughter in his home. T.S. is distinguishable from the victim in

Blakeman. The parents of T.S. had left the six-year-old child with Defendant to care

for and monitor the child when he took advantage of a position of trust to assault T.S.

Defendant’s arguments are overruled.

                        V. Reasonableness of Ten Year SBM



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                                    Opinion of the Court



      Defendant argues the State failed to establish his enrollment in SBM

constituted a reasonable search under the Fourth Amendment as required by Grady,

372 N.C. 509, 831 S.E.2d 542. “[T]he State shall bear the burden of proving that the

SBM program is reasonable.” State v. Blue, 246 N.C. App. 259, 264, 783 S.E.2d 524,

527 (2016).

      The transcript of Defendant’s SBM hearing shows:

              [The State]: Your Honor, that would be the general
              presentation of the State for the factual basis and the
              findings that the State would like the Court to find
              regarding the Static-99 and the additional findings, and in
              particular the State would like the Court to, of course,
              based on the findings that it’s required to regarding on the
              615 Form is that this is a . . . sexually violent offense under
              GS 14-208.65. I don’t think there’s any objection to that.

              ....

              Number 2, the [D]efendant has not been classified as a
              sexually violent predator.
              Number 3, the [D]efendant is not a recidivist.
              Number 4, this conviction is not for an aggravated offense.
              But we do believe that under 5B, this did involve the
              physical, mental or sexual abuse of a minor.
              I think [Defendant’s counsel] will probably stipulate to
              that.

              ....

              And our recommendation to the Court is based on what you
              heard and the nature and what the systematic desire for
              child pornography, to exploit children, that this
              [D]efendant should be subjected to [SBM] for ten years
              after he is let out of incarceration.



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                                  Opinion of the Court



      Defendant’s counsel raised no objections or constitutional challenge in

response to the State’s showing and argument.            Defendant further raised no

objections or constitutional challenge at any point during this hearing. Defendant’s

counsel filed no motion, objection, or asserted any argument the SBM imposed upon

Defendant was an unreasonable search.

      This case mirrors State v. Bishop, wherein the defendant was convicted of

taking indecent liberties with a child and the trial court sentenced him to SBM for a

term of thirty years. State v. Bishop, 255 N.C. App. 767, 768, 805 S.E.2d 367, 368

(2017). The defendant did not raise any constitutional issue before the trial court,

cannot raise it for the first time on appeal, and has waived this argument on appeal.

Id. at 770, 805 S.E.2d at 370. The writ that brought this case before us for review is

expressly limited “to those issues the defendant could have raised on direct appeal

pursuant to N.C. Gen. Stat. 15A-1444 (2017).”

      The defendant in Bishop requested the Court invoke Rule 2 of the North

Carolina Rules of Appellate Procedure to hear his arguments and review his

constitutional challenge. Id. This Court held the defendant was “no different from

other defendants who failed to preserve their constitutional arguments in the trial

court, and because he has not argued any specific facts that demonstrate manifest

injustice if we decline to invoke Rule 2, we do not believe this case is an appropriate

use of that extraordinary step.” Id.



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                                   Opinion of the Court



      Here, in the exercise of our discretion, we decline to invoke Rule 2 to issue a

further writ of certiorari to review Defendant’s unasserted and unpreserved

argument on appeal. Defendant’s unpreserved constitutional argument challenging

his enrollment in SBM is dismissed. See State v. Spinks, 256 N.C. App. 596, 611, 808

S.E.2d 350, 360 (2017).

                          VI. Ineffective Assistance of Counsel

      Defendant argues his counsel’s failure to argue the constitutionality of the

SBM program before the trial court consisted ineffective assistance of counsel. Our

Court has held “hearings on SBM eligibility are civil proceedings.” State v. Miller, 209

N.C. App. 466, 469, 706 S.E.2d 260, 262 (2011). This Court also held: “IAC claims

are not available in civil appeals such as that form an SBM eligibility hearing.” Id.

An order for enrollment in SBM is a civil penalty. See State v. Brooks, 204 N.C. App.

193, 194-95, 693 S.E.2d 204, 206 (2010). Defendant’s argument is dismissed.

                                    VII. Conclusion

      Defendant’s argument that the trial court had no factual basis for requiring

the highest level of monitoring based upon the DOC’s finding of “Average Risk” is

without merit.    The conclusion that he requires the highest possible level of

supervision is supported by the factual basis for his plea, the State’s decision not to

pursue further charges, the risks identified by the STATIC-99R, and the four




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                                 Opinion of the Court



additional findings of fact. The trial court properly found and determined SBM could

be lawfully imposed upon Defendant.

       Defendant failed to assert at trial and has waived direct appellate review of

any Fourth Amendment challenge to the order requiring him to enroll in the SBM

program for ten years. His argument is dismissed. We also dismiss Defendant’s IAC

claim on this civil issue.

       We affirm the judgments entered upon Defendant’s guilty plea. Defendant’s

unpreserved constitutional and his IAC claims are dismissed. It is so ordered.

       AFFIRMED IN PART, DISMISSED IN PART.

       Chief Judge McGEE and Judge YOUNG concur.




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