An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-878
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


STATE OF NORTH CAROLINA

      v.                                      Alamance County
                                              Nos. 04 CRS 54678-79
JAMES RAY ALLEN



      Appeal by defendant from order entered 28 May 2013 by Judge

G. Wayne Abernathy in Alamance County Superior Court.                      Heard in

the Court of Appeals 27 January 2014.


      Attorney General Roy Cooper, by Special                   Deputy     Attorney
      General Joseph Finarelli, for the State.

      Jason Christopher Yoder for defendant.


      DILLON, Judge.


      Defendant James Ray Allen appeals from an order requiring

him to register as a sex offender and enroll in a satellite-

based monitoring program for the rest of his natural life.                        We

reverse    the   court’s     order     and   remand   this   case    for    further

proceedings.

                                  I.     Background
                                            -2-
    On 8 February 2007, Defendant entered guilty pleas to one

count of taking indecent liberties with a child and one count of

second-degree       sexual      offense.          The    trial       court   sentenced

Defendant to a term of 84 to 110 months imprisonment for his

conviction    for    second-degree          sex   offense.           Also,   the   court

sentenced Defendant to a term of 19 to 23 months imprisonment

for his conviction for taking indecent liberties with a child,

but suspended the sentence on the condition that he be placed on

supervised probation for 30 months.

    On 13 March 2013, the North Carolina Department of Public

Safety Division of Adult Correction sent Defendant notice that a

hearing   would     be   held    in    Alamance        County    Superior     Court     to

determine     whether     he     would       be   subject       to    satellite-based

monitoring.     At the conclusion of the hearing held 28 May 2013,

the superior court concluded that Defendant was convicted of a

reportable    conviction        as    defined     by    N.C.    Gen.    Stat.      §   14-

208.6(4), and that the offense for which Defendant was convicted

was an aggravated offense.                  Based on these conclusions, the

superior court ordered Defendant to enroll in satellite-based

monitoring for the remainder of his natural life.                            Defendant

filed timely notice of appeal.

                                      II.    Analysis
                                       -3-
                         A. Jurisdictional Challenge

    We first address Defendant’s argument that the trial court

lacked    jurisdiction     to    order       him     to        enroll    in    lifetime

satellite-based monitoring because the notice of hearing did not

state that he could be required to enroll in satellite-based

monitoring for the remainder of his natural life.                         Defendant’s

argument is without merit.

    Our    General    Assembly       has    devised       a    specific       procedure,

outside   of    the   Rules     of    Civil    Procedure,          for    determining

eligibility     for   satellite-based         monitoring         and     has    “clearly

granted   the   Superior      Courts       subject    matter       jurisdiction       to

conduct   these    determinations          pursuant       to    specific       statutory

procedures.”      State v. Jarvis, 214 N.C. App. 84, 91, 715 S.E.2d

252, 257 (2011).      By following these statutory procedures, which

are set forth in N.C. Gen. Stat. § 14-208.40B, the trial court

has jurisdiction, as granted by the General Assembly, to conduct

the hearing.      State v. Self, __ N.C. App. __, __, 720 S.E.2d

776, 777 (2011).      However, this Court has further explained that

while “the General Assembly ‘within constitutional limitations,

can fix and circumscribe the jurisdiction” upon the trial court,

the specific “notice provisions found in N.C. Gen. Stat. § 14-

208.40B(b) are merely that, notice provisions to protect the due
                                          -4-
process rights of offenders who are not currently incarcerated.”

State v. Wooten, 194 N.C. App. 524, 527-28, 669 S.E.2d 749, 750-

51 (2008), disc. review denied and cert. dismissed, 363 N.C.

138, 676 S.E.2d 308 (2009).

       Here, the State’s written notification to Defendant of the

satellite-based           monitoring     hearing         fully     complies     with     the

provisions of section 14-208.40B(b), and thus the trial court

had    jurisdiction        over   the    hearing.              While    the   Division   is

required to set forth its initial determination that Defendant

fell into one of the categories of section 14-208.40(a), see

N.C.    Gen.      Stat.    §    14-208.40B(a),           the    notice    provisions      of

section 14-208.40B(b) do not limit the jurisdiction of the trial

court       to   hear   and     determine      a    Defendant’s          eligibility     for

satellite-based monitoring.

                               B. Ex Post Facto Challenge

       Defendant also contends the trial court’s order requiring

him to enroll in satellite-based monitoring based on statutes

that came into effect after his offenses were committed violates

the    ex    post   facto      clauses    of       the    United       States   and    North

Carolina Constitutions, citing United States v. Jones, ___ U.S.

___, 181 L. Ed. 2d 911 (2012), notwithstanding that, prior to

Jones, our North Carolina Supreme Court held that our state’s
                                          -5-
satellite-based monitoring scheme does not violate the ex post

facto clause of either constitution.                      State v. Bowditch, 364

N.C. 335, 700 S.E.2d 1 (2010).                   Nevertheless, Defendant asks

this   Court      to     reconsider     the    issue      in   light    of    Jones     to

determine whether in Bowditch the North Carolina Supreme Court

properly        weighed    the    Fourth       Amendment       burdens       of   forced

satellite-based monitoring searches.                     We recently considered a

similar argument in State v. Jones, __ N.C. App. __, 750 S.E.2d

883 (2013) (COA13-286); and for the reasons stated therein, this

argument is overruled.

                        C. Improper Classification Challenge

       Defendant argues the trial court erred in ordering him to

enroll     in    lifetime      satellite-based           monitoring     based     on    an

alleged conviction for an aggravated offense, because neither

second-degree sex offense nor taking indecent liberties with a

child is an aggravated offense.               We agree.

       A   trial       court   must    order    a    defendant      convicted      of   a

reportable       sex    offense   to   enroll       in   lifetime      satellite-based

monitoring if the defendant has been classified as a sexually

violent predator, is a recidivist, has committed an aggravated

offense, or was convicted of the rape or sex offense of a child

pursuant to N.C. Gen. Stat. §§ 14-27.2A and 14-27.4A.                         N.C. Gen.
                                            -6-
Stat. § 14-208.40A(c) (2011).                Here, the State contended and the

trial court concluded that Defendant was required to enroll in

lifetime      satellite-based            monitoring     because      he     committed       an

aggravated         offense.         An    aggravated      offense      is    defined       as

follows:

              any criminal offense that includes either of
              the following: (i) engaging in a sexual act
              involving vaginal, anal, or oral penetration
              with a victim of any age through the use of
              force or the threat of serious violence; or
              (ii) engaging in a sexual act involving
              vaginal, anal, or oral penetration with a
              victim who is less than 12 years old.

N.C. Gen. Stat. § 14-208.6(1a) (2011).                    When determining whether

a crime constitutes an aggravated offense, a 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.                        In other words,

the    elements      of   the     conviction      offense     must     fit    within       the

statutory definition of aggravated offense.”                         State v. Boyett,

__    N.C.   App.     __,     __,   735    S.E.2d      371,   380    (2012)       (internal

quotations and citations omitted), superseded in part on other

grounds, __ N.C. App. __, 747 S.E.2d 739 (2013).                          This Court has

held   that    based      on    their     elements     neither       second-degree         sex

offense      nor    taking      indecent     liberties        with    a     child    is     an

aggravated offense.             Id. at __, 735 S.E.2d 380-81; State v.
                                         -7-
Davison, 201 N.C. App. 354, 361, 689 S.E.2d 510, 515 (2009),

disc.   review   denied,     364    N.C.       599,   703   S.E.2d    738   (2010).

Accordingly,     we    reverse     the     trial      court’s   order     requiring

Defendant to enroll in a satellite-based monitoring program for

life    and   remand   for   a     proper      determination     of     defendant’s

eligibility for satellite-based monitoring pursuant to N.C. Gen.

Stat. § 14-208.40A.

       Reverse and Remanded.

       Chief Judge MARTIN and Judge HUNTER, JR., concur.

       Report per Rule 30(e).
