                                      NO. COA13-1181

                             NORTH CAROLINA COURT OF APPEALS

                                     Filed: 3 June 2014


STATE OF NORTH CAROLINA

      v.                                         Craven County
                                                 No. 98 CRS 915
PHILLIP MARK JONES



      Appeal 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.


      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.


      HUNTER, Robert C., Judge.


      Defendant Phillip Mark Jones appeals the order requiring

him   to   enroll       in    satellite-based     monitoring     (“SBM”)    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’s “additional
                                    -2-
findings” supporting the highest possible level of supervision

and monitoring were not supported by competent evidence.

    After careful review, we reverse the SBM order.

                                 Background

    On   15    January   1998,   defendant    pled    guilty    to   statutory

rape; the trial court sentenced him to 173 months to 217 months

imprisonment (“the 1998 offense”).           While defendant was serving

his prison sentence, the North Carolina Department of Public

Safety (“DPS”) 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’s 1998 conviction in

Craven County which “involv[ed] the physical, mental, or sexual

abuse of a minor.”       Defendant acknowledged that he received the

notice by signing the letter on 9 October 2012.

    Prior 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’s likelihood for reoffending.

Defendant earned a score of three points, which                  indicated a

“moderate-low” risk of reoffending.           The results of the STATIC-

99 were submitted to the trial court at defendant’s SBM hearing.
                                           -3-
       The 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) (“the 1994 offense”).                          In defendant’s

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

“ascribe[d]       no    significance”      to    it     given    that     it   was    over

fifteen years old.          The trial court asked defendant’s probation

officer how defendant was “doing” 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.

       On 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
                                             -4-
provided adequate notice of the hearing; and (4) defendant’s

1998 conviction involved the physical, mental, or sexual abuse

of a minor.            The trial court made two “additional findings”: (1)

there      was    a     short    period     of    time    from      the    conclusion         of

defendant’s supervision for the “prior sexual offense” in 94 CR

1252 to reoffending (“additional finding no. 1”); and (2) there

was    a   similarity          between    the     victims     in    both       age    and    sex

(“additional           finding    no.     2”).      Based     on     these      “additional

findings,” 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.

                                   Standard of Review

       For       SBM     enrollment,       “the    trial      court       is    statutorily

required         to     make    findings     of    fact      to    support       its       legal

conclusions.”            State v. Morrow, 200 N.C. App. 123, 126, 683

S.E.2d 754, 757 (2009), aff’d per curiam, 364 N.C. 424, 700

S.E.2d 224 (2010).               On appeal, this Court “review[s] the trial

court’s findings of fact to determine whether they are supported

by competent record evidence[.]”                   State v. Kilby, 198 N.C. App.

363,    367,      679    S.E.2d    430,    432     (2009).         Moreover,         the   Court
                                           -5-
reviews 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.”                        State v. Clark, 211

N.C. App. 60, 70, 714 S.E.2d 754, 761 (2011).

                                       Arguments

I.    Subject Matter Jurisdiction

      First, 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’s    finding       that   the

hearing was held in the county of defendant’s residence was not

supported by competent evidence.                   Based on State v. Mills, __

N.C. App. __,           754 S.E.2d 674 (2014), we dismiss defendant’s

argument.

      Pursuant     to    N.C.    Gen.     Stat.      §    14-208.40B(b),      “[i]f      the

[DOC]    determines       that   the      offender        falls    into     one    of    the

categories described in [N.C. Gen. Stat. §] 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.”       Defendant argues that although he did not challenge

the location of the hearing before the trial court, this issue
                                             -6-
may be raised for the first time on appeal since it addresses

subject matter jurisdiction.

      In support of his argument, defendant cites two unpublished

cases.     However, this Court’s 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’s

characterization        of    his     argument      as     one    challenging        subject

matter jurisdiction; instead, the Court concluded that “while

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.”           Id.     Thus, the defendant could not raise his

venue challenge for the first time on appeal because it had been

waived.       Id.
                                         -7-
       Similarly,      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’s 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.

II.    The “Additional Findings”

       Next, defendant challenges the two “additional findings”

the    trial   court     made   in     requiring    defendant     enroll    in   the

highest level of supervision and monitoring.                Specifically, with

regard to “additional finding no. 1,” defendant contends that

there was no evidence that defendant had committed a “prior

sexual offense” or that the present offense was committed within

a “short period of time from [the] conclusion of supervision”

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’s “additional finding

no.    2.”     Consequently,      defendant      argues    that    because    these

findings were not supported by competent evidence and defendant
                                          -8-
was assessed as a “moderate-low” risk, the trial court erred in

ordering him to enroll in the highest level of supervision and

monitoring.       We agree.

       “This Court has previously held that a DOC risk assessment

of    ‘moderate,’      without    more,     is    insufficient       to    support         the

finding that a defendant requires the highest possible level of

supervision and monitoring.”              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

“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.”             Id.

(citing State v. Morrow, 200 N.C. App. 123, 130–34, 683 S.E.2d

754, 760–62 (2009), aff'd per curiam, 364 N.C. 424, 700 S.E.2d

224     (2010)).       However,     if     a     defendant     is    assessed         as     a

“moderate” risk and the State presented no evidence to support

findings of a higher level of risk or to support the requirement

for     “the     highest       possible        level     of         supervision            and

monitoring[,]” the trial court’s 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
                                           -9-
support the highest level, “it would be proper to remand this

case    to   the    trial     court   to   consider         the   evidence       and   make

additional findings.”          Id. at 370, 679 S.E.2d at 434.

         A. “Additional Finding No. 1” – Short Period of Time
            between Conclusion of Supervision for Defendant’s
            “Prior Sexual Offense” and Reoffending

       First,      defendant    contends      that      there      was    no     competent

evidence introduced at the hearing to support the trial court’s

finding that defendant was convicted of a “prior sexual offense”

or that the 1998 offense was committed within a short period of

time from the conclusion of supervision for the 1994 offense.

       At 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’s

finding—that defendant had been convicted of a “prior sexual

offense”—was not supported by competent evidence.

       With regard to defendant’s contention that there was no

competent       evidence      presented     to     support        the    trial     court’s

“additional        finding”    that   there       was   a    short      period    of   time

between the conclusion of his probation for the 1994 nonsexual
                                          -10-
offense     before    he    committed       the   1998     sexual      offense,    his

argument is without merit.            Initially, it should be noted that

the trial court classified defendant’s probation as “supervised”

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’s 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 “additional finding no. 1”—that defendant committed the

1998   offense    soon     after    his    probation      for    the    1994   offense

ended—was supported by competent evidence.                        Thus,     it may be
                                      -11-
considered    when       determining      whether    the     trial     court’s

determination     that    defendant      requires   the   highest    level   of

supervision and monitoring “reflect[s] a correct application of

law to the facts found.”             Kilby, 198 N.C. App. at 367, 679

S.E.2d at 432.

       B. “Additional Finding No. 2” – “Similarity in Victims’
          Age and Sex”

    Initially, it should be noted that the State concedes, and

we agree, that the trial court’s “additional finding no. 2”—

similarity   of   victims    in    age    and   sex—was    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’s determination that defendant required the

highest level of monitoring and supervision.

       C. Does the Evidence that Defendant Committed the 1998
          Offense Within a Short Period After Completing
          Probation for the 1994 Nonsexual Offense Along with
          his “Moderate-Low” Risk of Reoffending Support the
          Trial Court’s Determination That Defendant Required
          the Highest Level of Supervision and Monitoring?
                                           -12-
       Finally, we must determine whether the “additional finding”

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 “additional finding” does

not,    and    the     trial    court’s    determination            is    “not     a   correct

application of the law to the facts found,” Id. at 367, 679

S.E.2d at 432.          A defendant’s “risk of reoffending” 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’s 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.

       Furthermore, we conclude that the State presented no other

evidence to support the trial court’s determination.                                   See id.
                                         -13-
(noting      that    if   “evidence    was   presented    which    could   support

findings of fact which could lead to a conclusion that ‘the

defendant requires the highest possible level of supervision and

monitoring[,]’ . . . it would be proper to remand this case to

the trial court to consider the evidence and make additional

findings”).         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’s conviction may not be used to determine whether the

defendant      committed     an    aggravated   offense        under   section   14-

208.6(1a).      See State v. Boyett, __ N.C. App. __, __, 735 S.E.2d

371,   380    (2012)      (“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
                                       -14-
giving    rise    to    the   conviction.”)        (internal   quotation   marks

omitted); State v. Davison, 201 N.C. App. 354, 364, 689 S.E.2d

510,   517     (2009)   (“[W]hen     making    a   determination   pursuant     to

N.C.G.S. § 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.”).              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.

       In 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’s 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 ‘moderate’

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’s probation

officer indicated that defendant was fully cooperating with his
                                       -15-
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 “additional finding” supported by competent evidence—that

defendant committed the 1998 sexual offense shortly after ending

probation for the 1994 nonsexual offense—would 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’s SBM

order.

                                    Conclusion

    Because      the    State       presented     no   evidence   other     than

defendant’s 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.



    REVERSED.

    Judges BRYANT and STEELMAN concur.
