Wednesday, May 19, 2010

Satelite Based Monitoring Cases (COA May 18, 2010)

Yesterday the Court of Appeals issued 4 satellite-based monitoring cases today.

SBM (14-208.40), is automatic for life if the offender is classified as:

1) A Sexually violent predator: convicted of a sexually violent offense and have a mental abnormality or personality disorder that makes them likely to engage in violent offenses with strangers or persons with whom a relationship has been established for the purposes of victimization.

2) Recidivist

3) Convicted of an "aggravated offense"- one that includes vaginal, anal or oral penetration with use of force or with a victim less than 12.

4) Was a violation of Gen. Stat. 14-27.2A (statutory rape of child under 13 by adult) or 4A (sexual offense with child under 13 by adult)

If the offender committed "physical, mental, or sexual" abuse against a minor, then the DOC must do a risk assessment and SBM is appropriate if the court determines that "the offender requires the highest possible level of supervision...for a period of time to be specified by the court."

State v. Bowlin. Defendant ordered to enroll in lifetime SBM for 2 counts of indecent liberties (which she received probation for in 2004). Defendant challenged solely on ex post facto grounds, as she committed the offense before the statute went into effect (2007). No violation, based on Bare. (see post on Bare decision, here.)

State v. Brooks. Defendant convicted of sexual battery and assault by strangulation and sentenced to 50-60 M and ordered to enroll in SBM for life. Defendant gave oral notice of appeal at the hearing, which the court found inadequate because SBM is not punitive, but decided to treat his brief as a writ and granted certiorari.

The basis of the lower court finding for SBM was that this was an aggravated offense. In determining if an offense was aggravated, the trial court looks only to the elements of the offense, not the underlying facts.

The underlying elements of sexual battery 14-27.5A do not include penetration. In fact, the difference between sexual battery and 2d degree rape or 2d sex offense is penetration. Therefore, must reverse the enrollment into SBM (even though the underlying allegations and initial charge here were for 2d rape, the plea was only to sexual battery which does not include penetration as an element). Reversed.

State v. King. Defendant convicted of indecent liberties with a minor. The court ordered SBM for life based on finding that this was an aggravated offense.

Held: COA found that this was not an aggravated offense (same rationale as above). Remanded for findings of on SBM under "highest level of supervision" prong.

State v. Yow. Defendant convicted of 3d sexual exploitation of a minor, received probation and the trial court ordered SBM for 10 years as a recidivist.

Defendant argued that this was barred by ex post facto, double jeopardy, and trial by jury. All these constitutional issues are rejected.

Trial court erred in only ordering enrollment for 10 years. Upon a finding of recidivist, enrollment for life is mandatory. However, there is no cross-appeal by the state, so the court does not address this error.

I will do an update with the rest of the cases soon.

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