An unpublished opinion of the North Carolina Court of Appeals does not constitute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

NO. COA 13

- 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 .
Att orne y 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. W e reverse the court’s or der and remand this case for further proceedings. I. Background- 2
-

On 8 February 2007, D efendant 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
D efendant to a term of 84 to 110 months imprisonment for his conviction for second

- degree sex offense. Also, t he court sentenced D efendant 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 Div ision of Adult Correction sent D efendant notice that a hearing would be held in Alamance County S uperior 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 D efendant was convicted of a reportable conviction as defined by N.C. Gen. Stat. § 14

- 208. 6( 4 ) , and that the offense for which D efendant was convicted was an aggravated offense. Based on these conclusio ns, the superior court ordered D efendant 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 D efendant’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 elig ibility 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 t hese 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). H owever, 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 mere ly 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 D efendant of the satellite

- based monitoring hearing fully complies with the provisions of s ection 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 D efendant fell into one of the categories of s ection 14

- 208.40(a) , see N.C. Gen. Stat. § 14

- 208.40B(a) , the notice provisions of

s ection 14

- 208.40B(b) do not limit the jurisdiction of the trial court to hear and determine a D efendant’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 clause s 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 N orth 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, D efendant asks this Court to reconsi der 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 D efendant 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 D efendant was required to enroll in lifetime satellite

- based monitoring because he c ommitted 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 off ense, 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, 36 1 , 689 S.E.2d 510, 51 5 (2009), disc. review denied , 364 N.C. 599, 703 S.E.2d 738 (2010). Accordingly, we reverse the trial court’s order requiring
D efendant to enroll in a satellite

- based monitoring program for life and remand for a proper determination of d efendant’s eligibility for satellite

- based monitoring pursuant to N.C. G en . S tat . § 14

- 208.40A. Reverse and Remanded . Chief Judge MARTIN and Judge HUNTER, JR., concur. Report per Rule 30(e).