An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-558
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 October 2014


STATE OF NORTH CAROLINA

      v.                                          Pamlico County
                                                  No. 07 CRS 50615
JAMES DAVID RODGERS



      On writ of certiorari to review order entered 28 May 2013

by Judge Benjamin G. Alford in Pamlico County Superior Court.

Heard in the Court of Appeals 25 August 2014.


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

      Appellate  Defender          Staples         S.   Hughes,   by       Assistant
      Appellate  Defender           Andrew         DeSimone,    for       defendant-
      appellant.


      CALABRIA, Judge.


      James David Rodgers (“defendant”) appeals from the trial

court’s     order     requiring     him      to    enroll    in    satellite-based

monitoring (“SBM”) for a period of ten years.                       We reverse and

remand.

      On 14 July 2008, defendant pled guilty to two counts of

taking     indecent    liberties      with    a     child.        The   trial   court
                                         -2-
sentenced defendant to two consecutive terms of twenty-four to

twenty-nine      months     in     the       North   Carolina      Department       of

Correction.       The     trial    court      suspended    the    second     term   of

imprisonment and placed defendant on supervised probation for

sixty months.

      On 15 April 2013, a probation violation hearing was held in

Pamlico County Superior Court.               Defendant admitted to violating

his probation and his probation was revoked.                      On 28 May 2013,

the   trial   court     conducted        a    hearing     to    determine    whether

defendant was required to be enrolled in SBM.                    Defendant was not

represented by counsel and the trial court did not inquire as to

whether defendant desired representation.                  At the conclusion of

the   hearing,    the      trial    court      entered     an    order      requiring

defendant to enroll in SBM for ten years.                  On 31 December 2013,

this Court granted defendant’s petition for writ of certiorari

to review the trial court’s SBM order.

      Defendant’s sole argument on appeal is that he is entitled

to a new SBM hearing because he was deprived of his statutory

right to counsel.       The State concedes that defendant is correct,

and we agree.

      Pursuant to N.C. Gen. Stat. § 14–208.40B(b), at a hearing

to determine whether a defendant should be required to enroll in
                                       -3-
SBM,   “[u]pon    the    court’s    determination      that    the    offender     is

indigent and entitled to counsel, the court shall assign counsel

to   represent    the    offender    at   the     hearing    pursuant      to   rules

adopted by the Office of Indigent Defense Services.”                    N.C. Gen.

Stat. § 14–208.40B(b) (2013).             In the instant case, defendant

appeared at the SBM hearing without counsel, but the trial court

made   no   inquiry     into   defendant’s        indigent   status    or   whether

defendant desired appointed counsel.                 Defendant had previously

been represented by appointed counsel when he entered his guilty

plea to the charges of taking indecent liberties with a child.

Additionally, following this Court’s issuance of the writ of

certiorari, the trial court again determined that defendant was

indigent    and   appointed     counsel      to    represent   him    on    appeal.

Thus, because the trial court erred by not making an inquiry

into defendant’s indigent status and right to appointed counsel

as required by N.C. Gen. Stat. § 14-208.40B(b), we reverse the

SBM order and remand for a new hearing.

       Reversed and remanded.

       Judges GEER and McCULLOUGH concur.

       Report per Rule 30(e).
