An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                  COA14-281
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


STATE OF NORTH CAROLINA

       v.                                     McDowell County
                                              Nos. 02 CRS 52509-11
KENNETH ALLAN STYLES



       Appeal by defendant from orders entered 28 October 2013 by

Judge Robert T. Sumner in McDowell County Superior Court.                      Heard

in the Court of Appeals 21 July 2014.


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

       James N. Freeman, Jr., for defendant-appellant.


       HUNTER, JR., Robert N., Judge.


       Defendant appeals from three orders requiring him to enroll

in lifetime satellite-based monitoring (“SBM”) pursuant to N.C.

Gen.   Stat.    §   14-208.40B     (2013).       Recognizing     that    his    oral

notice of appeal was invalid, see State v. Cowan, 207 N.C. App.

192, 195, 700 S.E.2d 239, 241 (2010), defendant has filed a

petition for writ of certiorari to review the orders.                     We allow

defendant’s petition and hold that the trial court erroneously
                                          -2-

found   in   each    case   that    he    was     convicted    of   an   “aggravated

offense”     under      N.C.    Gen.      Stat.     §    14-208.6(1)(a)      (2013).

Accordingly, we reverse the SBM orders and remand for further

proceedings.

       In 02 CRS 52509-11, defendant pled guilty to three counts

of taking indecent liberties with a child, a “sexually violent

offense” requiring defendant to register as a sex offender.                         See

N.C. Gen. Stat. §§ 14-208.6(4)-(5), 14-208.7 (2013).                       Following

defendant’s release from prison in 2012, the District Attorney

scheduled a “bring-back” hearing under N.C. Gen. Stat. § 14-

208.40B to determine whether defendant was subject to SBM under

the    Sex   Offender    and    Public     Protection     Registration      Program,

N.C. Gen. Stat. Ch. 14, art. 27A (2013).                    At the conclusion of

the hearing, the trial court found in 02 CRS 52509 and 52510

that    defendant    was    convicted      of     the   “aggravated      offense”   of

statutory rape of a person 13, 14, or 15 years of age by an

adult at least six years older than the victim under N.C. Gen.

Stat.    §   14-27.7A(a)       (2013).1      The    court     further    found   that

defendant’s conviction for indecent liberties in 02 CRS 52511

was an “aggravated offense.”              Based on these findings, the court


1
 In open court, the judge stated that defendant was convicted of
“an aggravated offense, and that is statutory rape of [a child]
under six years old – six or under[.]”
                                       -3-

ordered defendant to enroll in the SBM program for the remainder

of his natural life.

      Under the Sex Offender and Public Protection Registration

Program, an offender is subject to lifetime SBM if he or she is

(1) a recidivist, (2) convicted of an aggravated offense, (3) a

sexually     violent   predator,     or    (4)   convicted     under     N.C.    Gen.

Stat. §§ 14-27.2A or 14-27.4A (2013).              See N.C. Gen. Stat. § 14-

280.40B(c) (2013).        A court may impose SBM for a specific period

short   of    the   offender’s      life   if    the   offense    of     conviction

involved the “physical, mental, or sexual abuse of a minor” and

the   court   determines     that,    “based     on    the   Division     of    Adult

Correction’s risk assessment, the offender requires the highest

possible level of supervision and monitoring.”                   N.C. Gen. Stat.

§ 14-208.40B(c); see also State v. Cowan, 207 N.C. App. at 203,

700 S.E.2d at 246.

      Defendant     now   argues,    and   the    State      concedes,    that   his

convictions for taking indecent liberties with a child in 02 CRS

52509-11 do not qualify as aggravated offenses.                  We agree.        See

State v. Davison, 201 N.C. App. 354, 361–62, 689 S.E.2d 510,

515–16 (2009).         Because the court imposed lifetime SBM based

solely on the ground that defendant had been convicted of an

aggravated offense, we vacate the court’s orders and remand for
                                         -4-

a new hearing pursuant to N.C. Gen. Stat. § 14-208.40B.                     See id.

at 364–65, 689 S.E.2d at 517.

      Defendant further claims that the trial court’s imposition

of    lifetime    SBM     violated      his    constitutional       right   to   due

process.     As the State observes, however, defendant failed to

present this issue to the trial court.                     See N.C.R. App. P.

10(a)(1).        “Therefore, defendant has failed to preserve this

constitutional issue for appeal.”              State v. Mills, ___ N.C. App.

___, ___, 754 S.E.2d 674, 678 (2013).

      Finally, defendant contends that requiring him to enroll in

the SBM program violates the constitutional ban on ex post facto

laws.    Assuming       this    claim   is    properly    before    us, see N.C.R.

App. P. 10(a)(1), we are bound by our Supreme Court’s holding

that “subjecting defendants to the SBM program does not violate

the     Ex   Post       Facto    Clauses       of   the     state     or    federal

constitution.”      State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d

1, 13 (2010).

      Vacated and remanded.

      Judges BRYANT and STROUD concur.

      Report per Rule 30(e).
